80 N.L.R.B. 625 (N.L.R.B. 1948)

E. A. Laboratories, Inc.

National Labor Relations Board - Board DecisionsNov 23, 1948

80 N.L.R.B. 625 (N.L.R.B. 1948)

In the Matter of E . A. LABORATORIES, INC. and UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., LOCAL 844, and INTERNATIONAL UNION, UNITED AuTO11fO- BILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C..I.O. Case No. 2-C-5751.Decided November 23, 1948 DECISION AND ORDER On July 14, 1947, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 1 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in other unfair labor practices al- leged in the complaint and recommended dismissal of those allegations. Thereafter, the Respondent, the Union, and the attorney for the Board filed exceptions to the Intermediate Report and supporting briefs.2 The Respondent's request for oral argument is hereby de- nied, inasmuch as the record, including the exceptions and briefs, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and 1 The provisions of Section 8 (1), (2), (3), and (5) of the National Labor Relations Act, which the Trial Examiner found were violated, are continued in Section 8 (a) (1), (2), (3), and (5) of the Act, as amended. 2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [Chairman Herzog and Members Houston and Gray]. 80 N. L. R. B., No. 109. 625 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recommendations of the Trial Examiner, save as they are inconsistent with the additions, exceptions, and modifications hereinafter set forth. 1. The Respondent contends that the 1944 strikers are not entitled to back pay because the strikers breached the no-strike clause of the contract by engaging in the strike and the strike was not caused by any unfair labor practice or breach of contract on the part of the Respond- ent. We find it unnecessary to determine the cause of the 1944 strike or to pass upon the question as to whether the strike constituted a breach of the contract. This is because, in any event, as the Trial Ex- aminer found, by its agreement to reinstate the strikers on November 10, 1944, the Respondent waived or condoned the strikers' alleged mis- conduct in engaging in the strike and, on the next day, the Respondent refused to reinstate the strikers, who appeared for work at the plant pursuant to the agreement, although their jobs were then vacant.' Under all the circumstances, we agree with the Trial Examiner that the Respondent refused to reinstate the 1944 strikers on November 11, 1944, because of their union membership and activities and not be- cause of any misconduct on their part, and that the Respondent thereby discriminated in regard to their hire or tenure of employment to dis- courage membership in the Union. Accordingly we will direct that back pay for the 1944 strikers begin to run on November 11, 1944, and not on October 25, 1944, as the Trial Examiner recommended. 2. The Trial Examiner recommended that the Respondent be re- quired to reinstate those strikers who did not apply for reinstatement after the 1945 strike, if they apply for reinstatement within 7 days after service of the Intermediate Report, dismissing, if necessary, any employee hired since August 28, 1945, the date of the beginning of the strike. However, in view of the length of time which had elapsed at the time of the hearing since the abandonment of the strike without such applications having been made, we believe that the Respondent should not be required to displace any employee to provide work for any striker in this category. We believe that the policies of the Act 3 The Trial Examiner found that the strikers refused to return to work unless the Re- spondent recognized the Union and that the Respondent declined to reinstate the strikers unless they abandoned the Union as their current bargaining representative. He further found that the 1944 strike was caused, in part, by the Respondent ' s violation of Section 8 (5) of the Act. This violation consisted of making unilateral changes in working condi- tions and of adopting an arbitrary attitude in dealing with the Union 's grievance committee. Even it we assume, arguendo , that the 1944 strike was caused, in part, by the Respondent's violation of Section 8 (5) of the Act, we are of the view that, by refusing to return to work unless the Respondent recognized the Union , the strikers did not thereby require removal of a cause of the strike as part of the price for its termination . The Union was recognized as the statutory bargaining representative at the time of the outbreak of the strike. Thus, in refusing to reinstate the strikers unless they returned without the Union as their bargaining representative , the Respondent unlawfully refused to recognize the Union and thereby sought to impose a new and illegal condition upon reinstatement of the strikers. E. A. LABORATORIES, INC. 627 would be adequately effectuated by requiring the Respondent to place such strikers on a preferential hiring list for employment as vacancies arise and, in the event of failure to do so, to pay them back pay from such time until placement upon the preferential list. Such preferen- tial list is to be prepared in accordance with a system of seniority or other nondiscriminatory practice to such extent as has heretofore been applied in the conduct of the Respondent's business. 3. Joseph Stanco, Gaspar Russo, Ignazzio Chiappone, and Gilbert Scandale testified that they did not desire reinstatement as of ap- proximately August 1, 1946, February 1, 1946, December 25, 1945, and August 12, 1946, respectively. In view thereof, we shall not direct their reinstatement or placement upon a preferential list, as the case may be, and shall award these four, except Russo who did not apply for reinstatement, back pay for the period from the date when the Respondent refused to reinstate each to the date on which each de- cided to reject reinstatement, respectively.4 4. Patsy Dearado testified that he did not desire reinstatement un- less the Respondent granted him a pay increase. In view thereof, we shall not direct his reinstatement and shall award him back pay only for the period which elapsed from the time that the Respondent re- fused to reinstate him until the date on which he decided not to accept reinstatement unless the Respondent increased his pay. 5. Nicholas Cusanelli returned to work after the 1945 strike but quit a short time thereafter because of dissatisfaction with his earnings. Accordingly we shall not reinstate Cusanelli and shall award him back pay only for the period which elapsed from the date that the Respondent refused to reinstate him to July 1, 1946, when he returned to work for the Respondent. 6. Sometime after the Respondent refused to bargain collectively in 1945, the International revoked the charter of Local 844, took over its assets , and assumed its liabilities." Because the Trial Examiner was of the opinion that Local 844 would be reestablished in the future, he recommended that the Respondent be required to bargain with the International Local 844, with the proviso, however, in the event Local 844 was not reestablished, that the Respondent "may petition for modification of the order when it is prepared to comply with it." We shall not require bargaining with Local 844 inasmuch as it has no legal existence. Under the circumstances, in order to effectuate 4 These dates, as well as others , do not appear in the record . These dates can be ascer- tained in compliance proceedings if the parties are unable to reach agreement. So far as appears , no certification covering the Respondent' s employees has ever issued. The International and Local 844 were parties to the last contract with Respondent. 817319-49-vol. 80-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the policies of the Act, we shall direct the Respondent, upon request, to bargain collectively with the International.' 7. Unlike the Trial Examiner, we do not find that the Respondent violated the Act by vilifying the Union and its officers or by com- pelling employees against their will to attend the July 3 meeting in the plant. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, E. A. Labora- tories, Inc., Brooklyn, New York, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment, or any term or condition of their employment ; (b) Dominating or interfering with the administration of E. A. Laboratories Employees' Association, or the formation or adminis- tration of any other labor organization of its employees and from contributing support to E. A. Laboratories Employees' Association or to any other labor organization of its employees; (c) Refusing, upon request, to bargain collectively with Inter- national Union, United Automobile, Aircraft and Agricultural Im- plement Workers of America, C. I. 0., as the representative of its employees in the appropriate unit; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. We base our order directing the Respondent to bargain upon the last refusal to bargain collectively in 1945, as found by the Trial Examiner , and not upon any refusal to bargain which occurred prior thereto. E. A. LABORATORIES, INC. 629 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Unless already reinstated, offer to the employees named in "Appendix A" hereto, Groups I and II, immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner set forth in the section of the Intermediate Report entitled "The remedy," and hereinabove; (b) Place the employees named in "Appendix A," Group III, upon a preferential list for employment in the manner set forth hereinabove; (c) Make whole all the employees named in "Appendix A" and Ignazzio Chiappone, Gilbert Scandale, and Patsy Dearado, for any loss of wages in the manner provided in the section of the Intermediate Report entitled, "The remedy," and hereinabove; (d) Completely disestablish and withhold recognition from E. A. Laboratories Employees' Association as the collective bargaining rep- resentative of any of its employees; (e) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., as the representative of its employees in the appropriate unit, and, if agreement is reached, embody such under- standing in a written agreement; (f) Post immediately at its plant at Brooklyn, New York, copies of the notice attached hereto marked "Appendix A." T Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (g) Notify the Regional Director for the Second Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent discriminatorily discharged Marie Traynor and Frank Pravata. ' In the event that this Order is enforced by a United States Court of Appeals, there shall be inserted before the words, "A DECISION AND ORDER " the words , "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL BARGAIN collectively upon request with the INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRiCUL- TCRAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All employees employed at the Brooklyn plant exclusive of clerical, bookkeeping and other office employees, employees in the cost and accounting, time study, personnel, engineering experi- mental and model makers, and sales departments, draftsmen, timekeepers, watchmen and guards, two office cleaning employees, inspectors and testors on all defense items, administrative and executive officers, superintendents (including building mainte- nance superintendent) and assistant superintendents, general foremen (including service department foremen), department foreladies, and all other supervisory employees as defined in the Act. WE HEREBY DISESTABLISH E. A. LABORATORIES EMPLOYEES' AssoCIATION as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other condi- tions of employment and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE WILL OFFER to the following named employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination : E. A. LABORATORIES, INC. Yola Granieri Terry Bria Tony Tartamella Americo Aldorasi Elsie Lenhart Frances Pintouri Connie Benvenuto Pauline Lombardo John Gurzillo Catherine Ultimo Carmella Vona James Ruggerio Albert Ruggerio Tomaso Mancuso Michael Monte Joseph Gionta James Lombardo Joseph LaPorta Group I Pat Barbieri Frank Scaccio Mary LaManna Group II Thomas Nunez John Porcelli Alfonse Santoro Stella Ambrazatis Angela Indimeo Oliver Denicola Antionette Basile Julia Zomchick Julia Barnett Teresa Solimine Josephine Albanese Mary Long Mrs. Frances Ruggerio Egon Sorenson WE WILL place upon a preferential list for employment : Mary Quagliari Anthony Graziose Louise Rosati Louise Solimine James DeMattei Patsy Diorati Ralph Cherico Louis Luciano Joseph Carolla D. Ambrosino P. Auzelo R. Grella E. Vonnes T. Sassano A. Bitterman Constance Gurzello J. Ariani David Blackburn Group III M. Morgan Mary Bianco J. Ciro S. Martino J. Braccia R. Catastini D. Villani Clara O'Neil Mary Chetirtso Alphonse Santuro L. Napolitano Rose Baldizzi R. Prescito J. Licori Roberto Constantino N. Pope Umberto Dallasanuro 631 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL also make whole the following named employees for any loss of pay suffered as a result of the discrimination : S. Greenstein C. Pfaff C. Castoro C. Wernet A. Carruba J. Vasaturo J. Di Pietro A. D'Ambrosio T. Grieco M. Grazioso 1. Nagler C. Pagnozzi F. Adrolino N. Viglione D. Limongelli S. Rothschild T. Caliguri B. Tomaino P. Colasuono M. Kuka F. Martano J. Gurzillo Miss C. Benvenuto Mrs. M. De Cola J. Oliverio V. Terruso Miss L. Lezzo Mrs. A. Greenman L. Ambrosino J. Lo Preto Mrs. I. Schwartz Mrs. F. Ruggerio Miss R. Macchio Miss C. Fazio Mrs. M. Yovino Mrs. A. Provenzano J. De Mattei J. Caroleo Group IV Mrs. A. Munari A. Graziose R. Cherico A. Marchiano F. Pravata E. Prusky P. Meier J. Stubel J. Zelez J. De Elia P. Karle E. Sorenson A. Leomonda L. Forte P. Alexxandrelli S. Constanzo J. Russo P. Oehrke N. Pojero V. Zipser D. Limongelli J. Laieta J. Ruggiero J. Roccipio T. Nunez P. Barbieri J. Stanco Miss J. Albanese Miss M. Guadagno J. Fusco Miss C. Frederico Miss M. Bianco Miss S. Palmeri D. Lisita Miss M. Fiore L. Cocchi Miss Y. Savo Miss A. Casentino Mrs. C. Capobianco Miss R. Chiusano Miss A. Aloi Miss S. Rubino P. Kessler Mrs. A. Marelli N. Crisci D. Persutti N. Cusanelli P. Fasanello T. Sassano Mrs. S. Ambrazaitis Mrs. E. Lenhart Miss G. Michiewicz A. Tartamella T. Mancuso Miss R. Kavanaugh J. Scullion Miss F. LaRosa S. DeFigueora A. D'Alessandro J. Zello A. Angelino J. Finno P. DiLorenzo B. M. Doud J. Porcelli S. Marrese L. Medaglia S. Bifalco Miss Y. DiLieto J. Di Napoli J. Mattia Mrs. B. Feirman Miss M. Albarella J. Florio Miss R. DiRienzo Miss A. Bisignoli Miss S. Spanipinato Miss J. Braun Miss J. Esposito E. A. LABORATORIES, INC. Group IV-Continued S. Sarro A. Bruno Mrs. J. Braccia F. Nicolette Miss J. Soldano R. Castastini J. Cingari A. Prudente S. Martino R. Brescia Miss L. D'Onofrio Miss J. Zomchick Miss E. Sierra Miss O. Savo Miss R. Perkal A Vetere Miss N. DiTommaso D. Fischetti J. Mannone J. Grolz J. Zupancic J. Lombardo R. Leone V. Impellizzeri Miss L. Caputo N. Abbondandolo Miss C. Gurzillo F. Carnavale M. Mira Mrs. J. Douglas F. Robleto A. Bitterman A. Zito J. Iofrido F. Sorrentino Mrs. J. Karloff L. Malinosky 0. Denicola V. Forto S. Picano C. Loguerico 633 634 DECISIONS P. Diorato J. Gionta L. Ricciardi J. Mami F. Todisco A. Pandolfo H. King Miss J. Grande Miss J. Fucci Miss M. Sorrentino Mrs. J. Agapito Miss F. Cappellino Miss R. Baldizzi Miss A. Loguericio Miss S. Palmeri T. Stango J. Zamperelli Miss J. Beninato J. Cassano V. Minichiello M. Fasano A. Gabriele F. Amatucci Miss E. Palo Mrs. Z. Philp Mrs. R. Vannata M. Guarno Miss J. Cinque P. Coveli Mrs. M. Chetirko Miss M. Long Mrs. M. Credidio N. Nipitella Miss A. Wurtzel Mrs. A. Indinemao M. Monte J. Marino D. Principe P. Guidice L. Liguri C. Mingacci OF NATIONAL LABOR RELATIONS BOARD Group IV-Continued J. Ursino Miss J. Campo S. Curcio Miss R. Tortorice C. Grella Miss J. Bifulco Miss P. Bock Miss Al. Ferrarelli Miss Al. Morgan A. Del Monico Mrs. J . Langone Miss D. Crispe Mrs. P . Marrazzo Miss L. Bonfandio J. Borelli Miss S.. Spitz Mrs. L. Russo Miss S. Plisken Miss M. Abenante Miss C. Eisenhauer Miss C. Ilecito Miss S. Bucci Miss J. Girimonte Miss M. lannella Miss I. Novak Miss N. Bianco Miss M. Brentano Mrs. J. Calligani Miss M. Crolius R. Girolano Miss A. Capelli Mrs. A. Malfi Miss J. Genova Miss I: Depaolo Miss P. Becker Miss J. Ciro Miss V. Esposito Miss M. Silvis Miss A. Sergio Mrs. F. Colacino Miss E. Troucchio T. Markiewicz Miss F. Finamore Miss M. DeCarlo Miss H. Trinkunas Miss V. Ruggiero Miss J. Cascio Miss D. Carlino Miss E. Femiano Miss M. Benvenuto Miss E. Cassano Mrs. J: Deldman Miss T. Giommetti C. Cocchiola G. Carollo G. Giovanniello Mrs. M. Cerullo A. Ambrosino Mrs. T. Raffia A. Sgambati S. Fonte F. Travaglini P. Angelo A. Pondillo L. Luciano S. Scigliano T. Furno Mrs. S.• Campos Miss L. Caliguri Miss R. Caputo Miss A. Berardi R. Riccio Miss P. Paopoli Miss V. Bastone Miss M. Troiano Miss T. Aloi Mrs. R . Castellano Miss M. Luchetti Miss A. Pavone Miss D. Keogh Miss C. Carone Miss M. Lezzo E. A. LABORATORIES, INC. Group IV-Continued Miss L. Cardone Miss J. Jardula Mrs. K. Casella Mrs. A. Locano Miss L. Pagano Miss J. Froda Miss M. Pugliese Miss F. Guinta Miss J. Maniscalco S. Marine Miss I. Cangero D. D'Erecita Miss R. Auciello Miss J. Licari Miss D. Vicario Miss R. Episcope hiss C. Vitrano P. Lobosco Miss T. DeRosa Mrs. R, Misiano Mrs. A. Palladino Miss M. Macerino Miss G. Samatora Miss A. Mormle Mrs. M. DeSenna Miss M. Sekura Miss M. Russo Miss T. Tazzetta Miss J. Laurenzano Miss F. Meehan Mrs. G. Brecht S. Occhiuto M. Bianeardi D. Lagana D. Astore Miss C. Blau A. Francone J. Guadagno A. Bubello A. DeRose Miss S. Castigilone 635 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. Leonardi J. Stillitano R. Grella J. La Porta N. Iannuzzi R. Mathiew D. Candreva Dominic Pascucci A. Ruggiero J. Bolino Mrs. J. Barrett F. Ruggiero C. Gioia A. Santoro Miss P. Liotta Miss E. Imbriano Miss E. Grande Miss M. Giglio Mrs. M. Mattia Miss F. Stasi Mrs. R. Tartonello G. May E. Maiorano Mrs. G. Grolla Miss E. Curcio Miss C. Savillo Miss M. Minella Miss E. Venice F. Arpino Miss Y. Granieri Miss N. Pepe Mrs. J. Grandinette A. Ruggiero Mrs. F. Castellano A. Calabro Miss J. Ariani Mrs. A. Oglesbee Mrs. A. Buscemi Miss M. Cinque N. Bacchi Miss E. Martello Group IV-Continued Miss R. Dima Miss J. Volta Mrs. R . Rossini Miss S. Adams Miss A. Costa J. Lubrano A. Devito T. Cato Miss J. Guinta Miss A. Jennewein Miss M. Maggio F. Guidice J. Esposito Gaspar Russo F. Scaccio A. Triano Miss M. Bottari A. Aldorasi A. Mula S. Iacono L. Ruggiero Miss L. Rallo Miss T. Grella Miss L. Rosati Miss E. Rosenzweig Miss M. Curcio E. Villolla J. Mascia Miss A. Pepe Miss G. Franzose Miss M. Caliguiri Miss L. Solimine Miss P. Lombardo Mrs. T. Bria E. Wiehle Miss R. Auciello Miss L. Novellino Miss A. Fiorentino Miss T. Durso Mrs. R. Scuderi J. Pavone E. A. LABORATORIES, INC. 637 Group IV-Continued Miss F. Bonfandio Miss A. Palmeri Miss R. Sonna Miss M. Pick T. Young L. Napolitano S. Grillo Miss M. Scandale Miss M. Cirrisi Miss V. Lent Miss R. Scala Miss C. O'Neill Miss H. Ruggiero Miss R. Marchione Miss C. Softy Miss T. Pascucci Mrs. G. Helgerson Miss Al. Aloi Miss A. Cicarelli Pat Melise Mrs. G. Hilbert WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join Or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL WORKERS OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. E. A. LABORATORIES, INC., Employer. Dated ------------------------ By ---------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. TABLE OF CONTENTS Page Statement of the Case---------------------------------------------- 640 Findings of Fact--------------------------------------------------- 642 I. The business of the respondent-------------------------------- 642 II. The organizations involved----------------------------------- 642 TII. The unfair labor practices------------------------------------ 642 A. The background-------------------------------------- 642 1. Summary of events----------------------------- 642 2. Background events----------------------------- 643 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Findings of Fact-Continued III. The unfair labor practices-Continued page B. The 1944 strike______________________________________ 646 1. Preliminary statement__________________________ 646 2. The Board's theory of the strike_________________ 647 3. The respondent's theory of the strike------------- 647 4. The charges of unfair labor practices between Au- gust 5 and September 22, 1944_________________ 647 a. The restrictions upon union stewards and committeemen________________________ 648 b. The unilateral elimination of rest periods_-_ 650 c. The respondent's attitude in dealing with the shop committee____________________ 651 d. Other alleged unfair labor practices and vi- olations of the contract---------------- 653 5. Conclusions with respect to events preceding the September 1944 strike________________________ 653 6. The strike_____________________________________ 654 7. Conclusions as to the causes of the 1944 strike---- 656 8. Events during the strike________________________ 658 a. The respondent's refusal to arbitrate------- 658 b. The respondent's invitations to the em- ployees to return to work; the cancelation of the contract________________________ 658 c. The meeting at the War Production Board__ 659 d. Proceedings before the Regional War Labor Board; the respondent's October 24 tele- grams-------------------------------- 659 e. The October 25 request for reinstatement; the respondent's October 31 letter to the employees----------------------------- 660 f. The November meeting in the warehouse--- 661 g. The hearing before the National War Labor Board, and the "Last Call to Dinner"__ 661 h. Auferio's agreement to reinstate the strikers; and his subsequent refusal to reinstate on November 11__________________________ 662 i. Other events in November________________ 663 j. The meeting at the union hall ------------- 664 C. The return to work; the refusals to reinstate individual employees; events thereafter_________________________ 664 1. The refusal of individual applications for reinstate- ment--------------------------------------- 664 2. Conclusions as to the reinstatement policy of the respondent---------------------------------- 665 3. Events following the employees' return to work ---_ 666 a. The refusal to negotiate in January 1945____ 666 b. Surveillance of union meetings and employees' union activity ------------------------- 666 c. The respondent's formation of the Associa- tion---------------------------------- 666 d. The cuts in piece work rates in early 1945 --- 667 E. A. LABORATORIES, INC. 639 Findings of Fact-Continued III. The unfair labor practices-Continued Page D. The appropriate bargaining unit and the Union's status as majority representative------------------------------ 668 E. Conclusions as to the unfair labor practices during the 1944 strike--------------------------------------------- 668 1. Interference, restraint and coercion; domination and support of the Association_____________________ 668 2. As to the applicability of the no-strike clause; the refusals to recognize the Union_________________ 669 3. The mass refusals to reinstate------------------- 670 4. That the employees were not in fact discharged____ 672 5. The waiver------------------------------------ 673 F. Further events in 1945; the settlement agreement; the 1945 strike--------------------------------------------- 674 1. The settlement agreement----------------------- 674 2. Events between April 5 and August 28, 1945 ------- 675 a. Auferio resumes his interference------------ 675 b. The resignation of Labor Relations Director Carlson------------------------------- 677 c. Auferio resumes the handling of labor rela- tions; the repudiation of the April 5 agree- ment--------------------------------- 677 d. The union elections; Auferio's attacks on the new union officers---------------------- 678 e. The refusals to negotiate prior to the strike_- 678 f. Other events between July 18 and August 25_ _ 678 g. The meeting between Auferio and Kerrigan; Auferio's attempt to persuade the Inter- national to withdraw from the plant ------ 679 h. Auferio's attempt to induce the shop com- mittee to abandon the Union and to form a company union______________________ 680 i. Auferio's attempt to induce the tool and die workers and the pivot girls to abandon the Union-------------------------------- 680 3. The 1945 strike________________________________ 680 4. Conclusions as to above events__________________ 681 a. The effect of the settlement agreement of April 5 ------------------------------- 681 b. As to the refusal to bargain--------------- 683 5. Events during the strike ________________________ 685 a. The meeting with the tool and die employees; abandonment of the strike______________ 685 b. The refusals to reinstate__________________ 685 c. Conclusions as to the refusals to reinstate___ 686 6. Interference, restraint and coercion _______________ 688 7. The applicability of the War Labor Disputes Act-- 688 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Findings of Fact-Continued III. The unfair labor practices-Continued Page G. The discharges_______________________________________ 689 1. The discriminatory discharges___________________ 689 a. Bria, Scaccio, Tartamella, Barbieri, Stanco and Aldorasi --------------------------- 689 b. Mary LaManna_________________________ 691 c. Yola Granieri____________________________ 692 d. General conclusions______________________ 693 2. The alleged discriminatory discharges ------------ 693 a. Marie Traynor__________________________ 693 b. Frank Pravata --------------------------- 693 IV. The effect of the unfair labor practices upon commerce ------------ 694 V. The remedy------------------------------------------------- 694 1. Offers of reinstatement and reimbursement for lost wages__ 694 2. Disestablishment of the Association_____________________ 695 3. Collective bargaining__________________________________ 695 4. General cease and desist order__________________________ 696 5. Misconduct of several strikers__________________________ 696 6. Recommendations as to dismissal of certain allegations of the complaint-------------------------------------- 696 Conclusions of Law________________________________________________ 697 Recommendations_________________________________________________ 698 Appendix A ------------------------------------------------------ 700 INTERMEDIATE REPORT Mr. Daniel Baker, for the Board. Olvaney, Eisner and Donnelly , by Mr. Merwin Lewis and Mr. Robert Welch,, of New York City, for the respondent. Witt and Cammer and Maurice Sugar, by Mr. Harold Cammer, of New York City, for the Union. STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., and by Local 844 thereof, herein respectively called the International Union and the Local Union, and collectively referred to as the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Second Region (New York, New York), issued its complaint dated June 7, 1946, against E. A. Laboratories, Inc., Brooklyn, New York, herein called the respondent, alleging 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 National Labor Relations Act, 49 Stat. 449, herein called the Act.' With respect to the unfair labor practices, the complaint, as amended from time to time during the course of the hearing, alleged, in substance, that the ' Charges of unfair labor practices filed by Foreman's Association of America, originally consolidated with the charges herein involved and noticed for hearing in the original com- plaint, were severed by the Board at the request of the respondent. The instant complaint therefore involves only, and the instant hearing proceeded upon , the charges of the Union referred to above. E. A. LABORATORIES, INC . 641 respondent : ( 1) From about January 1941 to date vilified the Union , inter- rogated employees concerning , and warned them against assisting or joining, the Union ; surveilled union meetings ; compelled attendance at meetings in the plant where the respondent vilified the Union ; falsely accused union leaders in 1945 of attempted extortion ; assigned union leaders disagreeable work; instigated assaults upon union officials ; and solicited employees to abandon concerted activities ; ( 2) by various unfair labor practices in addition to those related above caused a strike on September 22, 1944, subsequently prolonged by further unfair labor practices ; ( 3) refused to reinstate certain named employees upon the abandonment of the strike ; (4) refused to bargain collec- tively during the course of the strike ; and unilaterally decreased the rate of pay of employees ; ( 5) formed a company-dominated union known as the Asso- ciation; ( 6) after a settlement agreement on April 5 , 1945, again refused to bargain collectively on and after June 9, 1945; and by reason of said unlawful refusal caused a further strike on August 28 , 1945; ( 7) during the course of the latter strike refused to reinstate certain named employees upon application ; and (8 ) discriminatorily discharged a number of named employees. Prior to the hearing the respondent filed with the Regional Director a number of motions , among them the following : ( 1) a motion to preclude the reception of evidence in support of certain allegations of unfair labor practices antedating April 5, 1945 , on the ground that such charges were barred by reason of the settlement agreement executed on the said date; and ( 2) a motion for bill of particulars . These motions were referred for disposition to the undersigned Hearing Examiner , Charles W . Schneider , duly designated by the Chief Hearing Examiner , and were disposed of as follows : The motion to preclude evidence was denied and the motion for bill of particulars granted in part and denied in part. Pursuant to notice , a hearing was held at New York, New York, on various dates between August 12 and November 7, 1946. The Board , the respondent, and the Union were represented by counsel and participated in the hearing. All parties were afforded full opportunity to be heard , to examine and cross- examine witnesses , and to introduce evidence bearing upon the issues . During the course of the hearing the respondent filed its answer admitting certain allegations of the complaint , but denying the commission of unfair labor practices, and additionally raising certain affirmative defenses discussed hereinafter. Various amendments to the pleadings , some over objection , some without ob- jection, were allowed from time to time during the hearing . A motion by counsel for the Board made near the close of the hearing to strike certain averments from the respondent 's answer was denied . A motion made at the close of the evidence to conform the pleadings to the proof was granted without objection. Ruling was reserved upon a motion by counsel for the respondent to dismiss the complaint . As indicated by the findings and recommendations hereinafter, the motion is granted in part and denied in part. All parties were afforded opportunity to argue the issues orally and to submit briefs and proposed findings. Briefs have been received from the respondent and the Board. Following the close of the hearing the parties entered into stipulations for correction of the record and for the admission of an additional exhibit by the respondent. These stipulations are hereby approved and ordered to be made part of the record herein. Upon the entire record, and upon my observation of the witnesses , I make the following : 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT E. A. Laboratories, Inc., is a New York corporation, having its principal office and plant in Brooklyn, New York, where it is engaged in the manufacture, sale and distribution of automotive, aircraft and marine accessories, and related products. During the course of its operations the respondent purchases annually brass, steel, aluminum and other materials valued in excess of $1,000,000, of which approximately 75 percent is transported to the Brooklyn plant from States other than New York. The respondent manufactures annually at the same plant products valued in excess. of $1,000,000, of which approximately 90 percent is transported to States other than New York. It is not disputed that the respondent is engaged in commerce. II. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., and Local 844 thereof, are labor organizations affiliated with the Congress of Industrial Organizations, and admitting to mem- bership employees of the respondent. E. A. Laboratories Employees' Association is a labor organization which admitted to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The background 1. Summary of events A brief statement of the principal occurrences will be helpful in understanding the numerous issues raised and the relationship of the events, many of which are separated by substantial intervals of time. On September 22, 1944, the respondent's employees were covered by a collec- tive bargaining contract between the Union and the respondent expiring 90 days after the termination of the war with Germany. This contract contained an arbitration clause and a no-strike clause. On September 22, 1944, the respondent's employees went on strike. The contention of the Board is that the strike was caused by the respondent's unfair labor practices. The respondent, on the other hand, contends that the strike was caused by the desire of the Union to prejudice the criminal prosecution of three union officials who had been arrested for at- tempting to extort money from the respondent, who were at that time under indictment and who were subsequently tried and convicted. The respondent further contends that the strike constituted a breach of the contract, which was thereby canceled ; that it immediately discharged all the employees ; and that the Union thus lost its representative status. During the course of the strike the National War Labor Board ordered the dispute terminated and the employees to be returned to work. When the employees attempted to comply, the respondent, while willing to reinstate most of them, imposed two conditions: (1) that the employees must return without recognition of the Union, but with the right to select a new representative sometime thereafter; and (2) that the respondent would not in any event reinstate a large number of union leaders, on the ground that they were responsible for the strike. Most of the employees refused reinstatement upon such conditions. E. A. LABORATORIES, INC. 643 The dispute then dragged on until April 1945 when a settlement was arrived at providing for the termination of the controversy and the return to work of all employees who desired it, the reinstatement of the contract, and recognition of the Union. In August 1945 the contract expired. During the intervening period, according to the theory of the Board, the respondent continued to engage in unfair labor practices. In July and August it declined to negotiate with the Union for renewal of the contract, according to the Board because it was determined not to deal with the Unioa even though conceding that it represented a majority of the employees; according to the respondent because of a bona fide doubt as to the Union's majority status. The employees thereupon went on strike and, accord- ing to the Board, were discharged or refused reinstatement, which the respondent denies. The respondent is here charged with unfair labor practices consisting of inter- ference, discrimination, and refusal to bargain prior to and during the 1944 and 1945 strikes, and during the intervening period. In addition the Board contends that a number of individual employees were discharged because of their union activities. The respondent denies these charges. It contends, in sum, that the 1944 strike was for a purpose not protected by the Act; and that the 1945 strike was to compel recognition while there was bona-fide doubt as to the Union's majority. In both instances the respondent denies that it discriminatorily dis- charged or unlawfully refused reinstatement to any employee. In addition the respondent contends that the 1944 strike was in violation of the no-strike clause in the bargaining contract and that it had a right to, and did, discharge the employees for engaging in it. Finally, the respondent's position is that the agreement of April 1945 constituted a complete settlement of most of the issues then outstanding and bars any action by the Board based thereon. While other issues of varying degrees of importance are raised by the evi- dence, the above constitute, in the main, the principal issues. 2. Background events The Board asserts that the events with which we are immediately concerned climaxed a program of opposition and hostility to the Union, on the part of J. M. Auferlo, the respondent's president, dating back to the Union's original entry into the plant. There is considerable testimony by Board witnesses as to hostile conduct and expressions of Auferio. This testimony is largely uncontra- dicted. Although the respondent contends that up to 1944, when three union officials who were subsequently convicted of extortion were elected to union office, relations were peaceful and the respondent's attitude toward the Union liberal and progressive, the evidence, much of it undenied, indicates that, on the contrary, relations between Auferio and the Union were rarely harmonious and usually bellicose. The result was an atmosphere of mutual distrust and antagonism which undoubtedly was a considerable factor in producing the events of 1944 and 1945 which are the immediate subject of investigation here. Whoever was at fault, that a condition of hostility existed from the day of the Union's entrance into the plant, is too plain to be seriously controverted. The Union was probably not without fault, but for much of this hostility, Auferio must have been directly responsible. Indicative of his attitude toward 817818-49-vol. 80----42 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union and his interference with its existence in the plant are the following incidents? In early part of 1941, after the respondent's employees had designated the Union as their bargaining representative, the Union requested recognition and the negotiation of a contract. Auferio's reply to the demand was that he would not have a union in the plant. He then assembled the employees at a meeting in the plant, addressed them as his "children," and reproached them for joining the Union, which he attacked as being "no good." He also summoned the Union's officers to the front of the room before the other employees, upbraided them, and referred to them as "hijackers" and "racketeers." The employees then either struck for recognition or were locked out by Auferio. Subsequent negoti- ations, however, resulted in the Union 's securing a contract in April 1941. During the negotiations Auferio characterized the Union as a "bunch of racketeers."' Although contractual relations were maintained throughout the war period, Auferio's attitude toward the Union appears to have remained substantially unchanged down to the present time. In the summer of 1941, several months after the first contract had been signed, Auferio called another meeting of the employees in the plant, accused the Union of attempting to influence the employees against him, characterized its officers as "hijackers" and "racketeers," and accused it of restricting production. The Union Grievance Committee held weekly meetings with representatives of management for the negotiation of grievances. On numerous occasions dur- ing these meetings, and at other times, Auferio referred to the Union and its officials as racketeers; said that the Union was corrupt; that it lived off the backs of the workers; that it was communistic and should be driven from the land ; that he had no use for it and was dealing with it only because he had to, and that when the opportunity arose he would throw it out of the plant; that labor must be held down ; and opined that what the country needed was a strong man like Mussolini. On a number of occasions Auferio also threatened union officials with violence. Thus, during an arbitration proceedings in 1943 he offered to take Alfred Olerio, an international representative of the Union, outside and beat him up. At other times during grievance committee meetings he threatened to have Olerio thrown out of the plant. During a strike in 1945, more fully discussed here- inafter, Auferio invited Olerio to a pistol duel saying, "We will go down the street and shoot it out man to man." On another occasion during the same strike Auferio threatened Olerio's family with violence if Olerio did not leave the respondent alone. Around the same time he made the statement that he would kill Olerio if the latter ever tried to enter his plant. Auferio's attitude toward Olerio had not always been thus, however. Shortly after Olerio was first assigned by the International to servicing the local, about mid-1942, Auferio called Olerio to his office, and told him that the Union officers were racketeers and were making "money" demands on him. When Olerio asked 2 Wherever herein there is a finding that Auferio engaged in certain conduct the finding is based upon testimony of employees or other witnesses which was not refuted, although Auferio was available to deny it In fact, he attended the hearing on several occasions. 3 William Walzer and Benjamin G. Edelman, respectively the respondent's counsel and vice-president, testified that they had stated to the Union representatives prior to the strike that they would recognize the Union upon proof of its majority. While this may have been the attitude of Walzer and Edelman at the time, it was obviously not that of Auferio, and it was the latter who made the respondent 's policy. E. A. LABORATORIES, INC. 645 Auferio to give him the names of the union officials, promising to have them ex- pelled from the Union, Auferio declined. Auferio then went on to say that Olerio appeared to be honest, that he liked him ; and asked whether he would become Auferio's labor relations counselor for $5000. Olerio characterized this action of Auferio's as "definitely" an attempt to bribe him. After this incident Auferio's attitude toward Olerio changed, and the threats previously described occurred. During 1943, shortly after the election of one Al Ocuto as president of the Union, Auferio offered Foreman Collelo $1000 if Collelo would arrange to have Ocuto beaten up in order to "get rid" of him.4 The evidence of Auferio's hostility toward the Union and its officials is not confined to threats. During the Union's tenure in the plant every one of its committeemen, stewards and members of its Executive Board who were employees of the respondent, save two, were discharged. In March 1943 the discharge of a union vice president by Auferio precipitated a work stoppage. When the Army Air Forces, for whom the respondent was manufacturing parts, intervened, Edelman, the respondent's vice president, agreed to reinstatement. The union representatives pointed out that Auferio had discharged every one of the union's presidents, accused him of continually fomenting trouble in order to drive the Union out of the plant and said that the problem would not be solved so long as Auferio remained in charge of the respondent's labor relations. As a result of these discussions agreement was reached that Auferio would no longer handle the respondent's labor relations and that the function of dealing with the union representatives would be taken over by Edelman. Later in the year four other officials of the Union, including its president, were discharged ; but upon submission of the issues to arbitration, three of the four were ordered reinstated by the arbitrators. Despite his agreement to withdraw from labor relations, Auferio continued, however, to attend the weekly grievance meetings, participated in the discussions, and retained veto authority over the settlement of grievances. During this period he also instructed at least two foremen to give the union stewards and com- mitteemen the most disagreeable jobs on the floor. In November 1943 Auferio circulated a letter among the employees in which he stated that a "good number" of the employees had complained to management that the union dues of $1.50 per month and $3.00 initiation fee were too high. The letter further urged the employees to express their preference on the back of the letter as to whether they wanted dues and initiation fees reduced to $1.00 and $2.00 respectively. There is no evidence that any employees complained to the respondent about the union dues or fees. When the Union protested to Auferio that this action constituted interference in its internal affairs, Auferio replied that he had "every right to interfere" in anything in which his employees were involved. Protests were also lodged by the Union's counsel. Nevertheless, the Union ultimately agreed to submit the issue to the employees at an election in the plant. In the election the employees voted against reducing the dues.' 4 The finding as to Auferio ' s offer to Collelo is based on the latter 's undenied testimony. While Collelo was not an impressive witness, his testimony as to this event, readily refut- able by Auferlo were it untrue , stands uncontradicted. 5 Vice-President Edelman testified that the question arose during contract negotiations in 1943 when Auferio proposed inclusion of a check -off clause . It is to be noted, however, that Auferio 's letter was not circulated until after the contract had been signed. In any event, however the issue arose, there is no dispute as to the above facts. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During this period of time, from 1943 to 1944, Auferio told members of the grievance committee that he would not tolerate a union in the plant after the war and that the committee members, whom he described as parasites, would be the first to be discharged. He repeated these sentiments on a number of other occasions. Auferio also attempted to persuade employees to abandon the Union. Thus, during the latter part of 1943 or the early part of 1944 he called employee Mary LeManna to the office and asked her to get out of the Union and be put on his "staff." When LeManna declined to withdraw from the Union, Auferlo asked her whether she had a "boy friend" who was a union steward, or whether she was unable to "stay away from the racketeers and thugs." In sum, from the time of the Union's entrance into the plant in 1941 up to the summer of 1944, Auferio's attitude toward the Union appears to have been one of open opposition and hostility, coupled with the frank avowal that he would not tolerate it after the end of the war. The effect of this attitude on the employees is evident in the following test!- money of employee Louise Solimine : Q. (By Mr. Lawis.) When you said, Miss Solimine, that the Company would not recognize the Union, were you talking about 1945? A. Well, I guess it was all the way through. He never would recognize the union. Q. He never would recognize the union from the beginning, from the very beginning. Is that what you understood? A. That is right. Ever since they organized! It is found that the following conduct of Auferio, above described, was coercive in nature and interfered with, restrained and coerced the respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act : Auferio's threats to rid the plant of the Union at the first opportunity ; his threats of physical violence to Olerio and Olerio's family ; his attempt to induce Collelo to have Ocuto beaten up ; his instructions to foremen to give the most disagreeable tasks to union stewards and committeemen ; his threats to discharge or otherwise eliminate the union's leaders ; his attempt to induce LeManna to abandon the Union ; and his interference in internal union affairs. It is against this background that the events hereinafter described occurred and must be evaluated. B. The 1944 strike 1. Preliminary statement On August 5, 1944, three officials of the local union, all employees of the re- spondent, were arrested and charged with attempting to extort money from the respondent as a price for the maintenance of stable labor relations and un- interrupted production in the plant. The names of these employees, and their positions in the local union, were: Joseph Rizzo, president, Jerry Festa, vice president, and Rocco Laurenzano, committeeman. On September 18, 1944, the trio was indicted, and on October 20, 1944, they were found guilty as charged after trial in the New York courts before Judge Samuel Liebowitz. Solimine is here using the word "recognize " In a colloquial and not a literal sense. Other undenied evidence as to expressions of hostility to the Union by Auferlo and vilifi- cation by him of its representatives , not specifically referred to here because of its cumu- lative nature, is to be found in the testimony of the following witnesses : Graziose , Lenhart, Castellano , Rosati , Buscemi, Zomehick , and Pravata. E. A. LABORATORIES, INC. 647 During the period between the arrests and the conviction, on September 22, 1944, the respondent's employees went on strike. 2. The Board's theory of the strike The Board alleges that the strike was a spontaneous action by the employees and caused by the respondent's unfair labor practices. Among these alleged practices are those found in Section A, above. In addition, the Board alleges, and introduced a large amount of evidence in support of the allegation, that the respondent seized upon the arrests of the three union officials as a pretext for driving the Union from the plant immediately, rather than awaiting the end of the war; and that to that end the respondent committed other unfair labor practices designed to eliminate the Union from the shop. These alleged addi- tional acts consisted of refusals to negotiate grievances, disruption of the grievance procedure, prohibition of the discussion of grievances during work- ing hours, various unilateral violations of the existing contract, such as discon- tinuance of payments to union stewards and committeemen for time spent in adjusting grievances, causing foremen to engage in production work, dis- charging and disciplining employees without notice to the Union, abolishing rest periods and cutting wage scales. In consequence of the accumulation of these unfair labor practices, the Board contends, the September 22, 1944, strike occurred. 3. The respondent's theory of the strike Contrary to the Board's theory, the respondent contends, and introduced evi- dence in support of its assertion, that the strike was called for the purpose of aiding the three arrested union officials in their pending trial for extortion ; and that such a strike is for an illegal purpose and outside the protection of the Act. The respondent further denies the commission of unfair labor practices during the period between the arrest of the three union officials and the date of the strike. As to the unfair labor practices prior to the arrests, whose occur- rence is apparently not seriously controverted, the respondent urges that they were too remote to constitute a cause of the strike. 4. The charges of unfair labor practices between August 5 and September 22, 1944 The Board presented a large number of witnesses , consisting of union officials, rank and file employees , and several former supervisors to establish the occur- rence of the disputed unfair labor practices during the period after the arrests and before the strike. The respondent produced a smaller number in refutation of the charges.' Some of the testimony of Board witnesses is undenied. Of the remainder much is in sharp conflict . Witnesses on both sides exhibited a tendency to magnify the shortcomings of the other side and to minimize their own, a trait, with some exceptions, somewhat more evident on the whole in the case of union witnesses against whom the respondent is alleged to have dis- criminated. This tendency has been taken into account in arriving at findings herein. We turn now to a discussion of the specific charges. * In all , the Board called some 70 witnesses , over a third of whom testified with respect to the asserted contract violations and unfair labor practices by the respondent in the August 5 to September 22 period . The respondent called some 13 witnesses , including a former union official , in refutation o-f this testimony. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. The restrictions upon union stewards and committeemen Prior to late August 1944, union stewards and committeemen were permitted to leave their work in order to discuss grievances with employees, other commit- teemen, or foremen or other supervisors.' The contract between the respondent and the Union provided that stewards and committeemen were to be allowed to adjust grievances during working hours, up to 30 minutes for each grievance. The Board contends that in August 1944, after the arrest of the three union officials, stewards and committeemen were forbidden to discuss grievances during working hours, forbidden to leave their floors without a special pass from the supervisors, and forbidden to use the telephones. Thus Andrew Cervelli, a general foreman during August 1944, testified that about 3 weeks after the arrests, Plant Superintendent Nimz, at a meeting of foremen, instructed them that thereafter they were not to permit union stewards or committeemen to use the plant phones, to discuss grievances with employees during working hours, or to leave the floor or their jobs without a pass from Nimz ; and that the foremen were not to discuss grievances with stewards or committeemen, but were to refer them to Nimz for disposition. On the following day, according to Cervelli, he was given a written memorandum incorporating these instructions, which he immediately put into effect. Seven stewards, com- mitteemen, or other union officials testified that such intructions were relayed to them by foremen or through other means and the privileges withdrawn! The respondent denies that any such instructions were ever issued. It contends that this charge, along with others discussed hereinafter, was fabri- cated by the Union in order to provide a color of justification for the strike which thereafter occurred. Of the some 65 foremen employed by the respondent in August 1944, 4, Mascia, Foti, Defeo, and Carfero; ° testified that they had not received any instructions prohibiting the discussion of grievances during working hours. Mascia, Foti, and Defeo, called as witnesses for the respondent, also testified that they never at any time received any instructions from Nimz restricting the activities or movements of union officials, and did not restrict them. This latter testimony is contrary to the admitted fact that in April 1944, an instruction was issued re- quiring union stewards and committeemen to secure permission from foremen in order to go from floor to floor. Carfero, called as a witness by the Board, testified that while he did not receive orders to prohibit the processing of grievances during working hours, he was ordered by Nimz to prohibit union officials from going from floor to floor, and from using the telephone without permission, which instructions he put into effect. Benjamin Edelman, the re- spondent's vice president, testified that to his knowledge no instructions of any kind restricting the movements of stewards and committeemen in the processing of grievances were issued other than that of April 1944, referred to above. In 8 Each department had a steward ; each floor of the plant had a committeeman. The committeeman represented the local union in the administration of the contract and in weekly grievance meetings with management. Stewards were the Union's first line in the grievance machinery ; committeemen the second. The processing of grievances often required communication between committeemen and stewards, committeemen and super- visors, and between committeemen. ° Russo, Lombardo, Newman, Barieri, Graziose, Stanco, LaPorta. 10 Carfero left the employ of the respondent about November 1944. The others are still employed E. A. LABORATORIES, INC. 649 addition , Mario Attanesi , who, upon the arrest of the three union officials , became acting president of the local union, but who abandoned the Union in 1945 and was made an assistant foreman, testified that this charge against the respondent was fabricated at a meeting of union officials prior to the 1944 strike. In resolving the issue, it is to be noted that some of the Board's testimony is undenied. Thus, it is not controverted that Foreman Piano told Barbieri, union committeeman, sometime after the arrests, that Superintendent Nimz had issued new instructions respecting plant rules, and that these rules provided that stew- ards and committeemen were not to leave their machines or discuss grievances during working hours, and were not to use the telephones. It is likewise un- denied that several days thereafter Auferio, upon encountering Barbieri away from his machine, told him that he was not to take up grievances during working time and that such discussions had to be left until after working hours. It is also undisputed that Foreman Sessa told Steward LaPorta, at about the same time, that he had been ordered to discontinue the discussion of grievances with union stewards and committeemen. Similarly uncontroverted is the testimony of Paul Newman, International representative of the Union, that during a grievance meeting during August, at which Committeeman Luciano objected to the re- strictions, Auferio threatened to eject Luciano forcibly from the building if he resisted them. In the absence of denial this testimony, inherently plausible, is credited. In addition, Superintendent Nimz did not testify in refutation of the charge that he issued the instruction." Michael Stango, assistant plant superintendent at the time in question, who was a witness for the respondent with respect to other matters, and who undoubtedly had knowledge of the true facts, also did not testify with respect to this charge. Thus, whether or not the instructions were issued by Nimz to the knowledge of Edelman, Mascia, Defeo, and Foti, other foremen informed stewards and com- mitteemen that such orders had been issued, and then put them into effect with the knowledge and approval of Auferio.' On this state of facts it is improbable that the testimony of Foreman Cervelli, and the assertions of Foremen Piano and Sessa were fabrications . Upon these considerations, and my observation of Cervelli, I credit his testimony. It is therefore found that after the arrest of the three union officials in August 1944, the respondent unilaterally and in violation of the bargaining contract restricted the union representatives in the exercise of privileges theretofore permitted and also restricted them in the processing of grievances, contrary to the contrac- tual provisions and the prior custom " "While Nimz was not in the employ of the respondent at the time of hearing , there is no suggestion that he was unavailable as a witness 12 Vice-President Edelman denied that the restrictions were ever presented to him as a grievance , an assertion in turn denied by Barbieri and International Representative New- man, who testified that Edelman ' s reply to their complaint was that if Auferio had ordered it he could do nothing about it . Whether the grievance was presented to Edelman it is unnecessary to determine It is undenied that it was presented to Auferio. 13 In arriving at the conclusions herein , the testimony of Attanesi , where denied by other witnesses , has, after consideration , been rejected . As has been indicated heretofore, Attanesi testified that the unfair labor practices which the Board contends precipitated the 1944 strike were fabricated for the purpose of building up a case against the respondent. Early in 1945 , Attanesi , in a detailed and sworn statement , declared that the events heiein discussed did occur , as the witnesses for the Board testified In his testimony, however, he repudiated that statement completely as almost wholly falsehood , with the explanation that he had had no compunctions about signing it because he did not swear to it The cred- 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. The unilateral elimination of rest periods Since 1942 the respondent had allowed its employees in most departments 2 daily rest periods of 10 minutes each , one at 10 a. in . and one at 2 p. in. Shortly after the arrests of the union officials , according to the testimony of Foreman Carfero, Plant Superintendent Nimz, in the presence of Assistant Superintendent Stango, issued orders to foremen to abolish the rest periods. Stango , although testifying as a witness for the respondent , did not deny Carfero's testimony. Ninlz did not testify . Shortly thereafter , according to numerous em- ployee witnesses , rest periods were abolished in most departments throughout the plant, without notice to or consultation with the Union . Among the departments in which , according to these witnesses , the rest periods were discontinued, were the following : machine shop , Gunsight N-67, spray department, B-3 Department, and automatic screw machine department. In the machine shop , according to numerous employee witnesses , Connie Carbonero, assistant forelady, upon discontinuing the rest periods, began at the same time to maintain a record of the time spent by her employees in the rest rooms ; and in the power press department, where there were no regular rest periods, employees were informed by Foreman Sessa that they were now required, before going to the rest room, to report to the timekeeper, who made a record of the time so spent. Neither Carbonero nor Sessa testified in refuta- tion of this testimony. The respondent contends that the employee witnesss innocently but mistak- enly confused the time of the abolition of rest periods. It denied that the rest periods were eliminated prior to the 1944 strike. Vice-President Edelman, Fore- man Mascia and Cresi, and Forelady Hilbert testified to this effect. There is some conflict in their testimony, however. Thus, Edelman testified that the rest periods were not resumed after the termination of the strike in late 1944 except in Mascia's department (motor department second floor), where they were dis- continued about February or March 1945. Hilbert, however, testified that they were not abolished in her department (horn department fifth floor) until June or July 1945. The testimony of Mascia was that rest periods were continued in his department until about July 1945. The large majority of the employees who testified as to the abolition of the rest periods in 1944 were not reinstated by the respondent after the 1944 strike until April or May 1945. Consequently they were not working in the plant at the time when, according to Edelman, the change was made. The abolition must, therefore, have occurred either prior to the 1944 strike or after mid-April 1945. As between the large number of witnesses who testified that it occurred in 1944, and the much smaller number who testified that it was 1945, it is more likely that the latter, rather than the former, were mistaken. able evidence , however , is that the statement was subscribed and sworn to at the time it was signed. Attanesi testified that he had lied as to the circumstances of the 1944 strike on numerous occasions . Thus, he said he falsified the facts of the dispute to the National War Labor Board when it was attempting to ascertain them in order to terminate the strike (discussed hereinafter ), and also lied to the union attorney when the latter was investi- gating the case for possible referral to the N. L. it. B. He insisted on the witness stand that while he would and did lie on behalf of the Union , he would not tell falsehoods that would advantage the respondent or himself . His testimony contains numerous conflicts, contradictions and implausible assertions . My appraisal , based upon observation , is that Attanesi 's concept of the truth is whatever advances his immediate interest . I am unable to credit any portion of his denied testimony. E. A. LABORATORIES, INC. 651 Other factors, too, suggest the correctness of the testimony of the Board witnesses. Thus, Assistant Forelady Carbonero, who was connected by these witnesses to the incident, did not return to work for the respondent after the 1944 strike terminated. Foreman Carfero likewise ceased working for the respondent in November 1944. In addition, Carfero's testimony that Superin- tendent Nimz ordered the rest periods discontinued in 1944 was not denied, either by Nimz or by Assistant Superintendent Stango. Upon the basis of all these factors, the undersigned concludes that the testimony of the Board witnesses must be credited. It is therefore found that after the arrests of the three union officials, the respondent unilaterally and without notice to or consultation with the Union abolished the employees' rest periods. c. The respondent's attitude in dealing with the shop committee The Board contends that following the arrests the respondent refused to process certain grievances, and adopted a dilatory, arbitrary and intransigent policy with respect to others; in sum that it did not negotiate in good faith for the settlement of grievances. This is denied by the respondent." In view of Auferio's expressed determination to drive the Union from the plant, it would indeed be strange if he did not attempt to take advantage of the arrests of the three officials to further that aim. As a matter of fact, during the following year, at a meeting between representatives of the respondent and the International Union, held on August 5, 1945, Auferio in effect admitted that he had done so.16 During the 2-month period preceding the September strike, it is undenied that Auferio repeated the instructions previously given to several foremen to give the most disagreeable jobs to the union stewards and committeemen. These in- structions were observed despite complaints by stewards and committeemen 1e During the same period of time Auferio, in the course of grievance meetings, referred to the committeemen and other union officials as racketeers and "shake- down artists" and reiterated his determination to drive the Union from the plant. Considerable evidence was introduced by both the Board and the respondent as to the events at these grievance meetings, and the disposition of the various grievances presented. The picture drawn by the Board witnesses is one of com- plete refusal on the part of the respondent to negotiate any dispute in good faith, indeed of refusal to negotiate at all on some. The respondent's version is one- of extraordinary and careful consideration by it of every grievance filed by the Union, although, it asserts, many were palpably without merit and were filed merely for the purposes of harassment. Neither of these extreme positions, in my opinion, represents the truth. 14 Some evidence was introduced by the Board to the effect that grievance meetings were not regularly held after the arrests. On August 26th a special meeting was arranged at the request of International Representative Newman in order to discuss outstanding griev- ances. `while this suggests that meetings had not been regularly held theretofore, and is at least significant indication that there was unrest and dissatisfaction over outstanding issues between the parties, there is no apparent basis for concluding that the respondent refused to meet with the committee except on September 21-the circumstances of which refusal are discussed hereinafter. 11 This incident is more fully discussed hereinafter at p 679 16 The testimony of Foremen Cervelli and Collelo to this effect, readily refutable if it were untrue, Is not denied. In addition Foreman Carfero testified that Cervelli and Collelo had reported to him their receipt of these instructions. Carfero and Cervelli particularly Impressed me as honest and credible witnesses, 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Without discussing each incident in detail, the facts disclosed by this evidence, much of it contradicted, can best be summed up as follows : There is no sub- stantial evidence that the respondent declined to meet with the grievance com- mittee up to September 21. Grievances were discussed ; some were allowed, some disallowed. Auferio, however, now apparently openly took over full control of the disposition of all disputes, and the respondent 's attitude toward the Union became much more brusque and uncompromising. The degree of Auferio's con- trol may be judged from undenied statements attributed to Edelman during these meetings, in reply to Union protests and requests for more liberal treatment, to the effect that Auferio was establishing the policies in the plant, that he was powerless to do anything, and was required to secure Auferio's approval on any decisions. Illustrative of the attitude of the respondents and its disposition of grievances during this period was its failure to provide seniority lists requested by the Union on August 19, which the respondent was required by the contract to fur- nish the Union. Although these lists could have been easily provided, they were never supplied. On another occasion employee Grillo was discharged assertedly for an absence of 3 days without notice. Grillo was ill and the respondent was aware of the fact. Indeed, he had left the plant on a sick pass after notify- ing the respondent of the reason. In addition the penalty provided by the con- tract for unauthorized absence was loss of seniority. Nevertheless, the Union's grievance filed on Grillo's behalf was, rejected by the respondent. During August the respondent transferred a number of girls to men's jobs on arbor presses, on which the applicable wage scale was the higher male rate of pay. But the respondent continued to pay the girls the lower female rates. A grievance filed by the Union on August 17 requesting that the girls he paid the male rate was rejected by the respondent on the ground that it was a female job. When the Union persisted in its position, the respondent ultimately conceded that the grievance had merit and Edelman promised to "make the necessary adjustment." Instead of rectifying the rate of pay, the respondent's adjustment consisted of removing the women from the job. They were never paid the differential to which they were entitled. The respondent's disposition of these grievances is hardly consistent with its assertion, and Edelman's testimony, to the effect that during this period the respondent took extraordinary pains in dealing with the Union in order to avoid difficulty in what Edelman described as a "tense situation " In sum, it is found that although the respondent did not refuse to meet with the Union during the period after the arrests, and did not decline to receive grievances, it adopted a much stiffer and more uncompromising and at times arbitrary attitude in dealing with the committee.17 17 In its answer and by its testimony the respondent asserts that the greviances submitted after the arrests were petty and unfounded, and were filed for the purpose of obtaining revenge against the respondent for the arrests of the union officials and to induce the respondent to cease prosecuting them. It is no doubt true, as the undersigned finds herein, that unfounded grievances were filed during this period. In the tense atmosphere following the arrests incidents were magnified by both sides beyond their meaning But meritorious grievances were also arbitrarily rejected by the respondent. It may also be noted that in 1945 the grievances which were filed in August and September 1944 were submitted to arbitration. Some were withdrawn during the course of the arbitration. On most of the remainder the arbitrator's award substantially sustained the position of the Union. Auferio then for a period of time refused to comply with the award. I find no evidence from which it can be inferred that the Union was using unwarranted pressure on the respondent on behalf of the arrested officials. E. A. LABORATORIES, INC. d. Other alleged unfair labor practices and violations of the contract 653 The Board alleged that the respondent took other unilateral action during August and September 1944, in violation of specific provisions of the contract. These were (1) that foremen were put on production work; (2) that the re- spondent did not pay the committeemen the full 2 hours weekly provided by the contract to compensate them for time devoted to the weekly grievance meetings ; and (3) that the respondent cut piece work rates unilaterally. While the Board introduced a substantial amount of evidence to sustain its position with regard to these matters, I am not persuaded that the respondent committed unfair labor practices in such respects. Thus, with regard to production work by foremen, the record establishes that this issue was one of long standing between the parties and arose more or less periodically. It appears that during August and September the employees, un- doubtedly honestly, became convinced that foremen were doing more than the amount of production work allowable under the contract namely, emergency work, testing and adjustment of machinery, training and demonstration, and filling in when an employee was ill or otherwise absent. While the testimony of some of the respondent's witnesses would leave the impression that the foremen did no production work of any consequence-a clearly untenable position-I am not convinced that the amount of such work engaged in subsequent to the arrests exceeded that permitted by the contract. With respect to the second contention, the contract provided for 2 hours' pay to committeemen for the weekly grievance discussions with management. By mutual agreement this meeting time had been reduced either in 1943 or 1944 to 1 hour, the committee devoting the other hour to the preparation of grievances in the union office in preparation for the meeting. Although the issue is not with- out some doubt, I am impelled to conclude that the charge results from the con- fusion of other occurrences unnecessary to relate here, and has therefore not been established. With regard to the alleged cuts in piece rates8 the practice was for foremen to establish temporary rates when jobs were changed, until the permanent rate could be established by the time study department. Without discussing the evi- dence in detail, I am of the opinion, despite denial by the respondent' s witnesses, that cuts occurred, but that they were nothing more than ordinary and routine changes in the operation of the department and not violations of the contract. 5. Conclusions with respect to events preceding the September 1944 strike The foregoing findings establish, in sum, that prior to August 1944 Auferio's attitude toward the Union was one of open hostility and opposition, coupled with candid avowal that he was only awaiting the end of the war for an opportunity to drive it from the plant. It has been found heretofore that the respondent's actions in the period prior to August 1944 in a number of respects constituted unfair labor practices. Fol- lowing the arrests of the three union officials the respondent made unilateral changes in the procedure for handling grievances, restricted the movements of the union stewards and committeemen ; unilaterally eliminated rest periods ; directed foremen to give the most disagreeable jobs to union officials, adopted 31 Not to be confused with other cuts in piece rates which occurred in January 1945, and which are discussed hereinafter. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a stiffer and more uncompromising attitude in dealing with the union grievance committee ; and vilified the union. It seems evident from the circumstances themselves, as well as from his admission , referred to heretofore, that Auferio attempted to take advantage of the arrests in order to reduce the effectiveness of the Union. As has been related, some of these actions were in violation of specific pro- visions of the bargaining contract between the Union and the respondent. It is therefore found that by the acts related in the preceding paragraph the respond- ent further interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, discriminated against union officials, and refused to bargain with the Union. 6. The strike The strike occurred on September 22, 1944. The Board contends that it occurred spontaneously as a result of the unfair labor practices and the breaches of contract heretofore set out ; the respondent that it was called to prejudice the prosecution of the three arrested officials. Following the arrest of the three officials the affairs of the Local Union were taken over by the International Union and it was placed in administration. Other officers were named temporarily to take the place of the arrested officials, who, however, continued to retain their office, pending the disposition of the charges against them. The Union retained lawyers to defend them and, evidently because they were without employment and apparent resources, agreed to make them a weekly contribution pending trial. Shortly after the arrests the Union inquired of the respondent as to the status of the three men. The respondent replied that they had been discharged . The Union then requested their reinstatement, which was denied. The Union did not request arbitration of the matter at that time, although under the terms of the contract it could have done so. September 21, 1944, the day before the strike , was a regularly scheduled grievance meeting day. During that day a meeting of the union's shop commit- tee was held in the union office. Two of the three arrested men were in the office at that time. During this meeting Committeeman Barbieri called Vice- President Edelman, and asked that the grievance meeting be held at the union office with the three men sitting in. Edelman expressed his willingness to meet the committee at the plant, but refused to meet at the union office, and refused under any circumstances to meet with the committee if the three men were on it. No grievance meeting was held on that day. Later in the afternoon the shop stewards were summoned to a meeting in the union office. On the following morning at 9 a. m. the employees walked out of the plant. As to the above facts, there is no dispute. There is, however, considerable dis- pute as to what took place in the union hail during the above two meetings. The respondent's position, denied by witnesses for the Board, is that the demand that the respondent meet with the arrested men was intended to prejudice their prosecution and that the strike was called by the union officers in pursuance of that purpose. There is no direct evidence to support the respondent's position save that of Attanesi to the following effect: that Rizzo, one of the arrested men, persuaded the committee that it would be difficult for the respondent to sustain its position in court if it met with the trio after having them arrested ; that when E. A. LABORATORIES, INC. 655 Edelman refused to meet with them, the various grievances heretofore referred to were then conjured up in order to "louse up the case" ; that the stewards were then called in, falsely informed that the respondent was refusing to meet with the committee, and instructed to convey this information to the employees and to order them on strike on the following morning. According to Attanesi the true facts were concealed from the stewards, who in good faith carried out their instructions." Attanesi's account was specifically denied by witnesses for the Board, com- mitteemen, stewards, and International Representative Newman. Some por- tions of Attanesi's recital bear an air of plausibility for the reason that part of it is consistent with other facts which will be related hereinafter, and for the additional reason that witnesses for the Board, when first examined , were less than frank in their testimony as to the events of that afternoon-of which more hereafter. Attanesi, however, is so unreliable a witness that no part of his denied testimony can be accepted. In addition some portions of his account are patently false , and others contradictory." On the other hand, I am equally unable to accept the assertions of union of- ficials to the effect that the strike was wholly spontaneous and originated with the employees. The first testimony of the union officials failed to reveal that anything signifi- cant occurred at the union office after Barbieri's phone conversation with Edel- man, leaving the impression that nothing of any consequence occurred. In fact they at first denied that any strike talk occurred at the meeting. However, In- ternational Representative Newman, when recalled by the respondent during the presentation of its case for further cross-examination, admitted that fol- lowing Edelman's refusal to meet at the union office, a stormy session ensued and that there were strong demands among the committee for an immediate strike. It is my opinion, from Newman's ultimate testimony and other established facts, that what actually happened following the phone conversation with Edel- man is as follows : The committee, after strenuous argument, finally determined to call the employees on strike. Newman argued against such action, but in a raucous and heated session, when it became apparent that the committee was going to vote to strike despite his opposition, Newman, in order to avoid any apparent implication of International approval of the action, left the meeting. Thereafter a strike was voted, the stewards were called in, were informed that the respondent was refusing to meet with the committee; told that it had been using the arrests of the three men as a means of eliminating the Union from "The only other direct evidence supporting Attanesi 's testimony is testimony of Nicholas Crisel, a production worker at the time of the strike. Crisci abandoned the strike, returned to work and was made a foreman. He testified that when the walk-out began, Steward Graziose told him that he "had to pitch in and help out so we could get [the arrested officials] out of whatever trouble they were in." Apart from the question as to the actual cause of the strike, Crisci's testimony is implausible for the reason that his relations with the Union and Graziose were at that time unfriendly . It is unlikely that Graziose either could , or would, have made such a remark to Crisci if the respondent's theory and Attanesi's testimony are correct that the cause of the strike was carefully concealed from the employees and the stewards. 20 Thus, for example, the long list of "false" grievances which he testified were fabricated In order to "louse up the case," included even the grievances which it Is conceded the respondent and the Union were disputing during August and September. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the plant , by reducing the effectiveness of the grievance procedure , by unilateral action, and by declining to give satisfactory dispositions of grievances ; and that the only alternative was to strike . On the following morning, the employees, following the direction of the stewards , went on strike. 7. Conclusions as to the causes of the 1944 strike In my opinion , the strike was not, as the union officials asserted , the spon- taneous action of the employees . It was called by the officers of the Local Union. The arrest of the three officials and the respondent 's refusal to meet with them were undoubtedly factors in producing the strike . In view of the juxtaposition of events , to conclude otherwise would, in my opinion, be unrealistic. But though the arrests and the refusal to negotiate with the men may have been one of the precipitating factors, this does not mean that they constituted the full or only cause of the strike. A strike may be the result of a combination of factors , but it is always a con- sequence of a set of conditions without which it would not occur. Sometimes these conditions may be the sole and only cause. At other times the strike may be precipitated by elements wholly unrelated to the underlying circumstances. But it is the set of conditions which make it possible for a strike to occur which are the real causes of the strike . The precipitating factor is nothing more than the fuse which puts the cause into operation . Thus, a strike which has its causes in unfair labor practices is an unfair labor practice strike even though it may have been precipitated by other factors not themselves an unfair labor practice . Republic Steel Corporation v. N. L. R . B., 107 F . ( 2d) 472 ( C. C A. 3). And, as the Board stated in the recent case of Brown Radio Service and Lab- oratory, 70 N. L. R. B. 476. The real causes of a strike are to be found "in the whole sequence of events" preceding it, and this motivation is to be determined " in the light of the cumulative effect of [the employer's ] prior tainted labor practices." See also Great Southern Trucking Co. v. N. L. R. B., 127 F. (2d) 180, 186 (C. C. A. 4), cert. den . 317 U. S. 652. The instant strike unquestionably had its causes in antecedent unfair labor practices . What happened on September 21 and 22 was merely the culmination of a long series of prior unfair labor practices . The respondent had never ac- cepted the Union. It had made its opposition and hostility evident on numerous occasions , through discharges and other discriminatory treatment of union of- ficials, interference in internal union affairs , disparagement and vilification of the Union and its leaders , contract violations , attempts to induce employees to abandon the Union , and the other unfair labor practices hitherto related. The testimony of the employee witnesses reflects their general conviction that Auferio was unalterably opposed to their union and determined not to live with it-a conviction which Auferio's actions had made plausible . In this atmosphere the arrests of the three union officials and the respondent ' s refusal to meet with them as the employees ' representative undoubtedly appeared to the employees as merely a device designed to smash the Union. The employees resented the arrests, believed the men to be innocent , wanted them reinstated and wanted the respondent to meet with them as their representatives . The belief in the men's innocence was not unreasonable . The union 's officers had been systemat- ically discharged by Auferio in the past; and only a few months before Auferio had openly expressed his determination to get rid of every one of the members E. A. LABORATORIES, INC. 657 of the committee. To the employees it undoubtedly appeared that he was now making good his threat. To say that this hostility and the atmosphere of dis- trust, antagonism, and suspicion engendered by it had nothing to do with the September strike is as unreasonable as to say that the arrests had nothing to do with it. When Edelman refused to meet with the men on September 21, they were as yet unconvicted of any offense. Auferio's prior actions toward the Union at least made dubious the validity of his charges against them 21 Viewed from the standpoint of the members of the union committee they had the choice of letting Auferio hang them separately or together ; from the standpoint of the employees it was that of choosing their own representatives or having them chosen by the respondent. It would no doubt have been the wiser action to await the outcome of the trial. But to expect a full and constant measure of resigned forbearance from the employees while, as they believed-and had reasonable cause to believe-their union was being unfairly attacked, is to demand of them more restraint than they had ever received from the respondent. Thus, without any consideration of events after August 5, 1944, it seems evi- dent to me that the unfair labor practices prior to that time were a substantial factor in producing the decision to strike on September 22. When to those events are added the unfair practices which occurred subsequent to August 5, the conclusion appears even more compelling. If there be doubt as to the relative weight of the various factors in producing the strike, the conclusion would nevertheless be the same. The unfair labor practices were of sufficient stature to have, as the Union claimed they did, pre- cipitated the strike. It cannot be said decisively that they played no part in it. The confusion, if any exists, is of the respondent's making. What the Third Cir- cuit Court of Appeals said in the case of N. L. R. B. v. Stackpole Carbon Co., 105 F. (2d) 167, 176, is applicable here: ... one of the reasons [for the strike] viz; the interference by the re- spondent with the right of its employees to self-organization . . . was a tort, a "subtraction," to employ the language of the Circuit Court of Appeals for the Second Circuit in the case of N. L. R. B. v. Remington Rand Inc., [94 F. (2d) 862, 872, cert. den. 304 U. S. 576] and as stated in the opinion in [that] case . . . "it rested upon the tort feasor to disentangle the consequences for which it was chargeable from those from which it was immune." In short, the burden rested upon the respondent to show that the strike would have taken place even if it had not interfered with the right of its employees to self-organization in contravention of the provisions of the Act. This the respondent has not done and this we believe it cannot do. Had the unfair labor practices not occurred, there may have been no strike, for the reason that there would have been no occasion for the employees to suspect the respondent's motives, or to strike to secure compliance with the contract and the respondent's statutory obligations. It is therefore found that the strike of September 22, 1944, was caused by the respondent's unfair labor practices heretofore found. However, even if it be conceded that the respondent's theory as to the strike is correct, there is no basis for finding that the employees were motivated by an 21 Charges which, incidentally, he raised again in the following year against International officials of the Union ; whom, however, he refused to identify when the International and the shop committee proffered their cooperation in rooting them out. This incident is further discussed hereinafter. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD illegal purpose. The respondent does not claim that the motives which it at- tributed to the arrested officials was communicated to the employees . Indeed, its assertion is that the committee sedulously concealed the true facts from the employees and the stewards . Thus, whatever view is taken , the employees and the stewards were acting upon motives which, if substantiated by the facts, were concededly justifiable ground for the strike . That their view of the facts may have been , as the respondent asserts, mistaken , does not make their motives illegal. Furthermore , whatever may have been the belief of the committee as to what the strike would induce the respondent to do, there is no basis for concluding that these beliefs made the strike illegal. I am persuaded that in voting to strike, the committeemen did so in the good faith belief that the arrested men were innocent Their apparent determination , indicated by the events described in the following section , to establish this point by the arbitration procedure provided in the con- tract, and to engage in concerted activity to compel resort to that procedure (how- ever unwise the decision may have been ) does not reflect upon the legitimacy of their motives or the legality of their purpose. In sum, I am unable to find anything illegal in the motives or the purpose of the committeemen , stewards or employees in the calling of the strike. 8. Events during the strike a. The respondent 's refusal to arbitrate Following the strike a picket line was established around the respondent's plant and maintained until about the middle of December. On September 25, union officials and representatives of the respondent met separately with a Federal Conciliator . Although it also asked for the redress of the grievances heretofore described , the Union offered to terminate the strike if the respondent would reinstate the arrested officials and recognize them as part of the committee . The respondent rejected this proposal , but offered to reinstate the men if they were acquitted . The Union then offered to return to work if the respondent would arbitrate the issue . The contract provided for arbitration as the terminal point in disputes . However, when Edelman conveyed this proposal to the district attorney the latter declared that he would not permit it for the reason that it would prejudice the State 's prosecution and divulge testimony given before the grand jury. The respondent then refused to arbitrate. b. The respondent 's invitations to the employees to return to work ; the cancelation of the contract Friday , September 29 was a regular pay day. A copy of a communication addressed to "All employees" ( italics added ) was given to all the strikers , except certain union officials, in their pay envelopes . In this communication the respondent accused the arrested officials of calling the strike to secure their reinstatement with full back pay; denied that there were any outstanding grievances which the respondent had iefused to arbitrate ; denied that it desired to break the Union, and stated that as a matter of fact it would be a "privilege and a pleasure " to bargain with a committee which had the employees ' and the respondent 's interests in mind . The letter further stated that the strike was a breach of contract and constituted a cancelation of it but that the respondent would nevertheless "consider re-employing anyone of you who wishes to come E. A. LABORATORIES, INC. 659 back and a job will be available to you." The letter concluded with a promise to pay the employees higher wages at the first opportunity.' This invitation not being accepted by the employees, the respondent issued a similar communication about 2 weeks thereafter in which it stated that the employees were "apparently . . . still confused as to the real issue," and urged them to return to work. At later period, when this statement also was ignored, the respondent sent further communications of similar import to individual employees in the form of telegrams on October 24, and letters on October 31 and November 8. Around September 29 at a meeting with union representatives in the office of Attorney Walzer, the latter told the Union that the respondent considered that the Union had breached the contract and that the respondent was no longer under a duty to bargain with it; and that the employees were discharged but that they could return to work on a selective basis. c. The meeting at the War Production Board On October 3, a meeting of the parties was held under the auspices of the War Production Board. Arbitration was again suggested for settlement of the question whether the arrested officials should sit on the committee-and again rejected by the respondent. Attorney Walzer, for the respondent, stated that the respondent considered the strikers discharged, but he indicated that it was willing to take all of them back save union officials. The Union then proposed that the respondent recognize the committee without the three arrested officials on it. This proposal the respondent rejected, with the statement that it was too late because the contract was terminated ; but that the employees other than the union officials could return without loss of any rights under the contract (includ- ing seniority rights) but that they would have to return without representation and choose a bargaining representative thereafter. This proposal of the Union thus appears to have constituted an abandonment of its original position and an offer to return to work under the conditions exist- ing at the time the strike was called. d. Proceedings before the Regional War Labor Board; the respondent's October 21, telegrams On October 12, following the meeting with the War Production Board, the U. S. Conciliation Service certified the case to the Regional War Labor Board as a dispute involving "numerous grievances," and on the same day that Board ordered the strike terminated, a course which, as has been seen, the Union had apparently already proposed and the respondent rejected. On October 20 the three arrested officials were convicted. On October 23 and 24 the parties appeared before a panel of the Regional War Labor Board in response to a rule to show cause why the stoppage should "There is conflict in the testimony as to whether this invitation was given to union officials. The respondent contends that it was not and that the officials were discharged. The testimony of Vice-President Edelman and Walzer, the respondent's attorney, is con- flicting on the point of discharge as of this date. Some officials may, as the Board contended and Committeeman Barbieri testified, have received the communication. However, I deem it more probable that the respondent took advantage of the opportunity to discharge the union officials, although some may, in the confusion, have been extended invitations by mis- take . As is indicated hereinafter, however, the respondent's actions and statements during the strike with respect to who was discharged were not always consistent. See Sections B, 8, f, g, i , j, and C', 1, infra. 817319-49-vol. 80-43 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not be terminated and the plant resume operations. The respondent indicated at this meeting that it would reinstate the employees, so far as production per- mitted, but only on a selective basis, and reserving the right to discipline the strike leaders. The Union proposed that the employees be reinstated, the status quo restored as of the time of the strike, and that any outstanding issues be resolved by negotiation through the grievance machinery provided in the con- tract by normal War Labor procedures. The reinstatement and recognition of the three arrested officials was no longer an issue. That demand had been abandoned by the Union. This proposal of the Union the respondent rejected, its position being that the employer-employee re- lationship had been severed, the contract terminated, the Union had lost its status as bargaining representative and that the respondent would not continue to negotiate with it. Walzer stated, however, that the respondent was willing to negotiate with a representative selected by such of the employees as it chose to reinstate-but after they had been returned to work. Thus, in sum, the respondent's position was that it would no longer recognize the Union as the bargaining representative, and that it should have a com- pletely free hand in determining whether, and on what terms and conditions, and pursuant to what procedure, employees should be reinstated. The Union's position, in sum, was that the employees be permitted to return to work under the conditions existent at the time the strike occurred, and that any disputes, or questions of discipline for strike action, be resolved through the procedure provided by the contract or established by the War Labor Board." No agreement was reached on October 24 but the Regional Board indicated the likelihood that a directive order would issue directing the employees to return to work and the respondent to reopen the plant. Apparently in anticipa- tion of such action the respondent sent the following telegrams after the closing of the hearing on October 24 to some 125 employees : Report to work Wednesday October 25. Former CIO members now working in plant. e. The October 25 request for reinstatement; the respondent's October 31 letter to the employees On the same day the Regional War Labor Board issued an order directing the employees to return to work and the respondent to reinstate them, or to place them on a preferential list, in accordance with seniority, with the question of disciplinary measures for participation in the work stoppage to be submitted to an arbitrator appointed by the Regional Board. xa Walzer's statement that those employees who were selected for reinstatement could choose a bargaining agent thereafter and that the respondent would recognize and deal with it (an assertion subsequently reiterated by the respondent in communications to employees) was no doubt made in good faith. That Auferio would have permitted it to be carried out, however, is dubious at best-as his prior and subsequent conduct with respect to commitments suggests. As is more fully described hereinafter, many of the employees returned to work without the Union in December and January. When they attempted to maintain their affiliation with the Union and attended a union meeting, they were subjected to surveillance, compelled to attend a meeting in the plant at which Auferio vilified the Union and its leadership, interrogated them as to their attendance at the union meeting, and exhorted them to abandon it. Upon threat of discharge if they did not, they were also solicited by supervisors to join a company union which the respondent established in January 1945. E. A. LABORATORIES, INC. 661 On the following morning, October 25, the employees presented themselves at the plant, pursuant to the directive, for the purpose of returning to work. They were denied entrance although they made their purpose known." On October 31 Auferio addressed letters to individual employees exhorting them to return to work. This letter reiterated the prior assertions that the employees had been "misguided by dishonest labor leaders," denied that the respondent did not like labor unions and averred that on the contrary it pre- ferred to deal with them ; but indicated that the present Union was radical and communistic and a menace both to the country and to employment possibilities at the plant. It further asserted the respondent's determination to eliminate "loafers and dishonest labor leaders," and promised that when the employees returned to work they could select a bargaining agent. f. The November meeting in the warehouse About November 1, evidently in response to an invitation from the respondent, about 200 strikers assembled in the respondent's warehouse where they were addressed by Auferio and Foreman Ocuto, a former president of the Union, who told them that they had been sold out by the Union. Auferio characterized the Union as a "bunch of racketeers" living luxuriously at the expense of the em- ployees, and exhorted them to return to work. The employees asked whether they could return with the C. I. O. Auferio replied that they could form a company union led by Foreman Ocuto. When the employees replied that they preferred the C. I. 0., Auferio stated that he would no longer tolerate the C. I. O. in the plant. At that point, the employees being unwilling to abandon the Union, the meeting apparently broke up. Later in the day, however, the union committee met with Auferlo, who told them that the contract had terminated and that there was no longer a Union in the plant. He further said, however, that he would take back all the strikers but 22 (the union officials), and that after employment had been stabilized the employees could organize a company union, but that they would have to return without the C. I. 0., which he described as "a bunch of crooks." This proposal was not accepted by the Union. g. The hearing before the National War Labor Board, and the "Last Call to Dinner" On November 1, the National War Labor Board directed the respondent to show cause why it had not complied with the directive order of the Regional Board. A public hearing on this rule was held on November 8 and 9, 1944, in Washington, D. C. On the day that the hearing began the respondent sent the employees another letter, signed by Auferio, and entitled the "Last Call to Dinner." In that letter it was stated that: We want every good employee, such as you, to return to work and a job will be found for you immediately. 24 The respondent contended at the instant hearing that this action of the employees did not constitute a request for reinstatement, but was merely a strike demonstration. How- ever, on November 8, 1944, barely 2 weeks after the event, the respondent, in a petition (sworn to by Auferio) to the National War Labor Board for review of the Directive Order of the Regional Board, averred that on October 25 the employees had presented themselves at the plant and "demanded reinstatement pursuant to the terms of the [Regional Board's] order." In view of this averment, and the overwhelming testimony of employees to the contrary, the respondent' s present assertion and the testimony in support of it, must be rejected. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Additionally the letter urged the employees to attend a meeting in the plant on the following Saturday morning, November 11R6 At the bottom of the letter were boxes for employees to sign their names, and in which they were asked to indicate "yes" or "no" as to whether they would report for work on Monday morning, November 13. In sum, the purport of this letter was that, unless the answer was in the affirmative, there would be no further "calls to dinner" ; that is, no further employment with the respondent. The respondent's position in the hearing before the National War Labor Board was in essence the same as its prior positions; namely, that the contract had been terminated by violation of the no-strike clause ; the employees had all been discharged ; and the employer-employee relationship consequently sev- ered; and that the Union therefore was no longer a bargaining representative; but that the respondent was willing to rehire the employees on a selective basis excluding some 25 strike leaders, whom it wished to discipline because of their responsibility for the strike but whose identity it said it could probably not establish before a court.R" The Union at the hearing disclaimed responsibility for the strike and asked that the strikers be reinstated and the question of individual discipline be determined in accordance with the grievance procedure in the contract. With respect to its contention that the employees had been discharged, the respondent conceded that no notice of discharge had been given them. How- ever, it asserted that the letter of September 29 (previously described) con- stituted such notice. That contention, however, is contrary to the testimony of Attorney Walzer, who testified that the respondent did not decide upon discharging the employees until October 3. The parties were unable to reach agreement at this hearing. After its close the War Labor Board issued a Directive Order substantially affirming the Re- gional Board. h. Auferio's agreement to reinstate the strikers and his subsequent refusal to reinstate on November 11 On November 10, 1944, Auferio, International Representative Newman, and a large number of employees were present in the court of Judge Liebowitz at a pre-sentencing hearing for the three convicted union officials. Judge Liebowitz appealed to Newman to get the employees back to work and to terminate the strike. Newman replied that they had attempted to return to work but that Auferlo would not permit them to do so, an assertion which Auferio denied. Judge Liebowitz thereupon asked Auferio whether he would put the employees back to work if they reported at the plant the next day. Auferio replied that he would. 25 This meeting was apparently not held-probably because of other occurrences on November 11, which are related hereinafter. 25 That is, before an arbitrator, which was the prospect which faced the respondent under the terms of the Regional Board's directive order. It is to be noted that in the hearings before the War Labor Board panels, both Regional and National, the respondent's language underwent a change. From refusing to reinstate union officials, its theory became one of disciplining strike leaders. I am persuaded that the change is merely one of semantics and not of result, and designed to fit the respondent's conduct into language patterns compatible with decisions of the National War Labor Board and the National Labor Relations Board. E. A. LABORATORIES, INC. 663 The testimony of Newman, undenied as to this incident, and corroborated in its essential particulars by numerous employee witnesses, is as follows : A. Judge Liebowitz, within open hearing of the court, asked me if I, as a good, conscientious American, and as a respectable labor leader, would not take it upon myself to lead these people back to the plant so that they may go back to work. I informed Judge Liebowitz that we had done so once before and that we were only too anxious and glad to repeat it again. Thereupon, he called J. M. Auferio. J. M. Auferio was sitting in the first row. He arose and Judge Liebowitz addressed himself to Mr. Auferio. He said: "Mr. Auferio, if these people come to your plant tomorrow morning, ready to go to work, would you let them go into the plant and go back to work?" Auferio definitely said he would. Q. What were the words that he used? A. He said, "I will open my plant tomorrow morning and these people can come back to work." He said something to the effect that he was a good American and that he would comply with Judge Liebowitz's request. I thereupon turned to Judge Liebowitz and I told him that there is no agency so far that has been able to make this man take these people back into the plant, and I assured Judge Liebowitz that if God was sitting at his right hand and also made that re- quest of him, of Auferio, that that plant would not be open tomorrow morning. "Judge Liebowitz said to me. "We will find out about that...:' On the following morning at the regular starting hour, the employees, accom- panied by Newman, appeared at the plant gates, carrying their lunch boxes, and prepared to resume work. They were denied entrance by the guard. Newman explained that the employees were there to go to work. The guard replied that there was no one in the plant and that he had received no orders to admit them and therefore could not do so. From the plant the employees went to the union office where Newman tele- phoned Auferio, related what had occurred at the plant gates, reminded Auferio of the agreement he had made on the previous day, and requested a meeting. Auferio refused, and referred to Newman as a "loud mouth" and a "skunk." Newman replied in kind and the conversation terminated. 1. Other events in November Several days thereafter the respondent again indicated that it would rein- state the strikers on terms similar to those it had previously proposed-with complete freedom to discharge some 35 to 40 employees whom it did not identify. A short time after that an attempt by International Representative Olerio to secure a meeting for adjustment of the controversy met the response from Auferio that Olerio would receive bodily harm if he attempted to enter the plant. On November 4 the Union forwarded to the Regional War Labor Board its statement as to some 23 grievances which it claimed to have outstanding and unsettled at the time of the strike ; among them being the issues discussed in Section B , 4, above. On November 15, the respondent, in a letter to the Regional Board, denied that there were any unsettled grievances outstanding at the time of the strike, save the question of the status of the arrested officials, asserted 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that several of the grievances had never been presented to the respondent, that the remainder had been disposed of, and, finally that since the Union had breached its contract the respondent would not "honor, acknowledge, or arbitrate" any controversy pending at the time of the strike. On November 29, however, the War Labor Board, in a Supplemental Directive Order, held the contract to be still in effect and directed the respondent and the Union to dispose of any outstanding grievances through the grievance procedure provided in the contract and to report upon compliance within 7 days. The respondent did not comply. J. The meeting at the union hall Around the early part of December, Louis Ruggerio, one of the union mem- bers, telephoned Auferio, told him that a group of employees were congregated at the union office, and asked Auferio to come there and talk to them. Auferio agreed. Word of this impending meeting spread among the employees, so that by the time Auferio arrived a large group was present. Auferio opened the discussion with the statement that the union hall was "contaminated" and "in- fested" and that he was there only because of Ruggerio's invitation, whom he regarded as his friend. Auferio then said that he understood that they wished to return to work and stated that he was willing to have them back with a company union. One of the employees in the group 27 pointed out that they already had a union and asked Auferio whether he contemplated reinstating all the em- ployees. Auferio replied that he would take back only such people as he wanted, and that there were some 65 whom he would not reinstate. With reference to the union question he stated that the C. I. O. was composed of "crooks" and "racket- eers" and that he would never permit it in the shop. He further promised to make a monthly contribution to a company union equal to the amount it collected in dues. C. The return to work; the refusals to reinstate individual employees; events thereafter 1. The refusal of individual applications for reinstatement Following this meeting the Union abandoned its effort to secure compliance with the directives of the War Labor Board and the reinstatement of the union officials, and it advised the employees to seek reinstatement individually. Most did so, and many of these were reinstated. The union officials, officers, committeemen, and stewards, upon the assumption that such action was futile, made no individual applications for reinstatement at this time. The respondent had originally indicated that only the union officials would not be reinstated, a decision which it later revised to include those responsible for calling the strike. The respondent never definitely indicated who it deemed within the latter definition. In November it stated that the number involved was 35 to 40; in early December Auferio gave it as 65. On the other hand, Edel- man testified that in December the list of those whom the respondent deemed to be responsible was narrowed down to about 14. However, many union members whom the respondent could not conceivably have deemed within either of its 27 Elsie Lenhart, who, when she requested reinstatement individually several weeks later, was denied it by Superintendent Helius with the explanation that Auferio did not want employees in the plant who talked back to him. E. A. LABORATORIES, INC. 665 definitions, and who were not on Edelman's final list, but who had become con- spicuous during the strike by reason of active picketing or other militant activity, were refused reinstatement. The only apparent reason for such refusals was the militancy of these employees, the respondent having introduced no evidence to explain the refusals. Thus, it is undenied that upon application at the respondent's employment office, employment officials consulted lists of names before indicating whether employees would be rehired. Several women were refused employment with the explanation that their names were on the "black" list. Some who had been active were also told, after reference to the lists, that there was nothing for them, although new employees were being hired at the time; or that they had been picketing and were not wanted; 28 or simply that they were not wanted ; or in substance, that they had been too militant as union members 29 Others, such as employees Bria and Pravata, whom the respondent, with promises of favorable treatment, had unsuccessfully solicited during the strike to influence other employees to abandon it, were also refused reinstatement upon application 80 Others were reinstated upon condition that they have nothing further to do with the Union, or agree not to go on strike again, under penalty of discharge. 2. Conclusions as to the reinstatement policy of the respondent It is concluded from the foregoing that, whatever its original intention, the respondent's policy with respect to reinstatement ultimately became one of penalizing certain employees whose participation in the strike was conspicuous. The respondent originally asserted its intention to confine penalties to the union officials. Later the policy was revised to encompass those responsible for calling the strike. The policy actually executed was considerably broader than both. Thus, employee Pravata was named by Edelman as one of the group of responsible leaders and officials it was decided to exclude. Pravata, however, although active in the strike after it had occurred, was not an official of the Union and had no part in calling the strike. On the other hand officership in the Union was not the criterion used either. During the strike Auferio attempted to persuade Stewards LaPorta and Graziose 28 Others, however, who had picketed were reinstated 20 Assistant Superintendent Stango denied that he had refused reinstatement to anyone in 1944 and testified that he had nothing to do with hiring. Only one employee, Traynor, testified that Stango had done so. Although Stango's testimony was contradicted by Edel- man, who testified that Stango determined who should be hired, Traynor' s testimony has not been relied upon in making the above findings. The testimony upon which the findings are made is undenied. 80 Thus, during the month of October, Auferio attempted to induce Pravata to get the strikers to meet in the respondent's warehouse without the knowledge of the Union , promis- ing Pravata that if he did so he would not "have to worry about anything else." Pravata's name was thereafter included on Edelman's list of 14 who would not be reinstated, although he held no official position in the Union and had no part in calling the strike During the strike Foreman Ocuto had solicited Bria to return, saying, "Terry you are a smart girl. You'll get a good job out of it and you can bring some other girls. You have a lot of influence " When Bria demurred to going back without the Union, Ocuto told her not to be a fool, that "things" would "be better" for her without the Union. Bria refused. When she applied for reinstatement in December she was told that there was no work fox her, although the respondent was advertising for help and new employees were being hired. Ocuto also repeatedly solicited employee Josephine Albanese at her home, saying that if she returned other employees would follow her. Albanese refused to return without the Union. When she applied in December she was told that her name was on the blacklist. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to abandon it and return to work. Auferio further told LaPorta that if he didn't return then he would not get his job back and that the Union was not going to be in the plant anymore. LaPorta and Graziose refused. Thereafter they were placed on the list of persons the respondent assertedly decided not to reinstate because of responsibility for calling the strike. It is thus apparent that LaPorta and Graziose were excluded from reinstatement not because of their responsibility, direct or implied, in calling the strike, but because of their activity during it. As has been seen, many other employees not within either definition of the respondent's asserted policy were denied reinstatement. Some were frankly told their union activity was the reason. The conclusion drawn is that the policy of exclusion adopted by the respondent was not, as it asserted, one of the discipline of union officials or leaders for their real or supposed role in calling the strike-but rather a policy of penalizing active union leaders or members because of their prominence in the Union or because of conspicuous activity after the strike occurred. a' 3. Events following the employees' return to work a. The refusal to negotiate in January 1945 During January 1945, International Representative Olerio attempted on a number of occasions to secure a meeting with the respondent. His communi- cations were not acknowledged by the respondent. b. Surveillance of union meetings and employees ' union activity During January 1945 a number of employees who had been reinstated by the respondent attended a union meeting. Auferio, accompanied by several super- visors and detectives, surveilled this meeting and noted those attending. On the following day these employees, about 50 in number , were ordered by their foremen to assemble at a room in the plant, where they were addressed by Auferio and Plant Superintendent Helius Helius told them that the reason they were called to the meeting was that they had attended the union meeting the night before; and he further said that they were being "led astray" by the union leaders. He asked why they had gone to the union meeting, and stated, in substance, that the respondent would not tolerate any further outside union activity in the plant. Auferio also inquired of the employees why they had gone to the union meeting. He stated that he had called back only those employees whom he regarded as "loyal" workers and that the remainder he did not want. He threatened them with discharge unless they disassociated themselves from the Union, which he declared was composed of "criminals and crooks." He then told them that if they had any complaints to bring them directly to him, but that they could form a company union if they wished. c. The respondent's formation of the Association It will be recalled that during the November 1 meeting in the warehouse and at the December meeting at the union office, Auferio proposed the formation of a company union, led by Foreman Ocuto. ss In this connection note Auferio's statement, referred to in Section 3, b, hereinafter, that he had taken back only the "loyal" employees and that the remainder be did not want, n Helius succeeded Nimz as superintendent around late November 1944, E. A. LABORATORIES, INC. 667 About January 15 the respondent formed such a union known as the "E. A. Laboratories Employees' Association." The officers of this organization were designated by Superintendent Helius. Upon the orders of Helius, and under the immediate direction of Ocuto and other foremen, Association literature provided by Helius was then distributed among the employees, during working hours, over a period of about a week, and employees solicited to sign application cards designating the Association as their bargaining agent. The Association's literature averred that the organ- ization was "already existent, completely organized and [had] the wholehearted support of over 80%Jo of the employees." Although, according to the testimony of M. Camuso, vice president and treas- urer of the Association, Hellas had instructed him (Camuso) not to force em- ployees to join. Foreman Ocuto threatened employees with discharge who indicated reluctance to sign the applications. About a week after the distribution Helius and the officers of the Association held a meeting at which its progress was discussed. Sometime thereafter Helius directed the officers to discontinue their efforts, for what reason does not appear. No other meetings of the -organization have been held, and it has engaged in no apparent further activity. Although a few weeks after the above events, Attorney Walzer, in a letter to the Board, flatly denied the Union's charge that the respondent was attempt- ing to establish a company union, the respondent's answer admits that the respondent "attempted to promote the Association," but averred that it ceased to do so. d. The cuts in piece work rates in early 1945 During December 1944, as a further inducement to the employees to return to work without the Union, the respondent raised its hourly rates about 10 cents per hour. This increase was made unilaterally and without approval of the War Labor Board, which approval was required under the provisions of the Wage Stabilization Act then in force. Since piece rates were set so as to permit employees to earn 20 percent in excess of the hourly rate, the piece rates were consequently also increased. In January 1945 Department of Labor in- spectors, upon investigation, discovered the hourly rate violations, which the respondent was subsequently directed to discontinue. Thereafter, without prior notice to the employees, the respondent unilaterally reduced its hourly rates. This action thus resulted in a reduction of piece rates as well. These unilateral reductions aroused resentment and protests among the employees, and along with other difficulties, precipitated a work stoppage on March 20, 1945, and the discharge of a large number of employees because of their protests." The Board contended that the unilateral reduction in piece rates constituted a refusal to bargain with the Union. Collaterally the Board contended that the reduction in piece rates had no connection with the reduction in hourly rates. However, while it is true that the order to discontinue the violations apparently referred only to the hourly rates, continuance of the increased piece rates would have left them substantially greater than the 20 percent differential permitted above the hourly rate. Thus the piece rates had also to be reduced ; otherwise they too would have been in violation of stabilization requirements. as Some months afterward, after the Union had got back into the plant, these discharges were arbitrated and the employees ordered to be reinstated, an award with which Auferio, for a period of time refused to comply. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The purpose of the respondent in increasing the wage rates is clear : to induce- the employees to return to work without recognition of the Union. The reason it was adopted in violation of Wage Stabilization provisions is also clear: ap- proval required the filing of a Form 10 application with the War Labor Board, and the respondent knew that such an application would not be approved without the joinder of the Union . It therefore ignored the stabilization law Illegal though the respondent 's motive and conduct in the establishment of the increased rates may have been, their continuance would have constituted further violation of the law . I am of the opinion that it would not be sound public policy to find a violation of the Act in the discontinuance of an illegal practice . The establishment of the illegal rates is not alleged as an unfair- labor practice . Dismissal will theittore be recommended as to the instant allega- tion of the complaint. D. The appropriate bargaining unit and the status of the Union as majority representative It is conceded that the following employees of the respondent constitute an appropriate bargaining unit : All employees employed at the Brooklyn plant, exclusive of clerical, book- keeping and other office employees , employees in the cost and accounting department , employees in the time study department , employees in the personnel department , employees in the engineering , experimental, and model makers departments ; employees in the Sales Department , draftsmen, timekeepers , watchmen and guards , two office cleaning employees , inspectors and testers on all defense items, administrative and executive officers, super- intendents ( including building maintenance superintendent ) and assistant superintendents , general foremen , ( including service department foreman) department foreladies , and all other supervisory employees with authority to promote , hire, discharge , discipline, or otherwise effect changes in the status of employees or effectively recommend such action. This is the usual production and maintenance bargaining unit. It is also the unit established by the bargaining contract of November 7, 1943. This contract was by its terms effective for the duration of the war with Germany and for 90 days thereafter. It is found that at all times material in these proceedings, the above -described unit constituted a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 ( b) of the Act. It is undisputed , and it is found , that on August 5 and September 22, 1944, the Union was, within the meaning of Section 9 (a) of the Act , the duly designated collective bargaining representative of the respondent 's employees in the above- described appropriate unit. D. Conclusions as to the unfair labor practices during the 1944 strike 1. Interference , restraint , and coercion ; domination and support of the Association It is found that by the following conduct, heretofore described , the respondent interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act : The attempts of President Auferio and Foreman Ocuto at the November 1st warehouse meeting to induce employees to abandon the Union and to form a company union under the leadership of E. A. LABORATORIES, INC. 669 Ocuto, a supervisor ; Auferio's repetition of this action at the meeting in the Union Office at which he offered financial assistance if the employees would form such an organization ; Auferlo's coercive statements at the warehouse meeting, subsequently reiterated at the meeting with the union committee on the same afternoon, and at the meeting in the union office, to the effect that he would no longer tolerate the Union in the plant ; Auferio's and Ocuto's promises to em- ployees to give them favored treatment if they would abandon the strike or the Union, or induce others to abandon them ; the respondent's refusal to reinstate individual employees because of their union or strike activity unconnected with responsibility for calling the strike; conditioning the reinstatement of employees upon the abandonment of further union or concerted activity, under penalty of discharge for non-compliance with the condition; surveilling the union meeting; Helius' and Auferio's interrogation of employees at the January 1945 meeting in the plant as to their union activity, and the threats to discharge them unless they abandoned their association with the Union; and Ocuto's threats to dis- charge employees unless they designated the Association as their bargaining agent. It is further found that by its initiation, promotion, establishment, and main- tenance of E. A. Laboratories Employees' Association, the respondent dominated and interfered with the formation and administration of a labor organization and contributed financial and other support thereto; thereby also interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. As to the applicability of the no-strike clause ; the refusals to recognize the Union As has been found, the strike of September 22, 1944, was caused by the re- spondent's unfair labor practices. It was therefore an unfair labor practice strike. As has been noted, the contract contained a no-strike clause. The re- spondent's principal defense was that the strike was called for an illegal purpose, was therefore in violation of the no-strike clause ; that the contract was there- fore terminable and was terminated by the respondent; that the employees were discharged ; and that, the employment relationship having been severed, the Union was no longer a bargaining representative and the respondent relieved of any obligation to deal with it. Were the respondent's assumptions correct, the American News Co. case (55 N. L. R. B. 1302) ; the Sands Mfg. Co. case (306 U. S. 332), and the Scullin Steel Co. case (65 N. L. R. B. 1294)' would be applicable and would sustain the respondent's position. Those cases are inapposite here, however. As has been found, although the arrests of the union officials and the respond- ent's refusal to meet with the committee while they were a part of it, were con- tributing and precipitating factors, the respondent's unfair labor practices and contract violations were causes of the strike. Having thus assisted in bringing about the strike, the respondent cannot transfer responsibility for it wholly to the Union. The strike was no doubt unwise. But its wisdom is not the consid- eration here. The issue is the respondent's responsibility for it. Where the employer is himself responsible for a strike by reason of unfair labor practices he may not rely upon a no-strike clause in a bargaining contract as excusing his own culpability. Any other result would provide anti-union employers with a 34 Reversed as to other issues, 161 F. (2d) 143 (C. C. A. 8). 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ready device to eliminate labor organizations from their plants. A no-strike clause necessarily imports an undertaking on the part of the employer to adhere to his own commitments accepted as consideration for it, and to refrain from the commission of unfair labor practices. The respondent itself violated the contract by its actions described in Section B, supra. These violations were likewise unfair labor practices. Having thus breached its agreement, the respondent cannot insist that its provisions are nevertheless binding upon the Union. It is therefore found that the respondent may not rely on the strike as ground for cancelation of the contract. Following the strike the respondent treated the contract as canceled, assert- edly discharged its employees for participating in the strike, and declined to recognize the Union as bargaining representative. Since the employees bad the right, protected by the statute, to engage in the strike, and since the Union con- tinued to be the representative of the employees during the strike, these actions of the respondent were, consequently, also unfair labor practices. It is found that the respondent thereby interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and refused to bargain collectively with the Union. 3. The mass refusals to reinstate Following the strike the employees made applications for reinstatement en masse on October 25 and November 11. It is conceded that the strikers had not been replaced on those dates. In connection with these refusals to reinstate the respondent contends that, whatever view is taken as to responsibility for the strike, the requests of October 25 and November 11 were not unconditional requests for reinstatement because they were conditioned upon the reinstatement of all the striking employees. It is clear, and it is found, that during the months of October and November the employees were unwilling, and in fact refused, to return unless all (excluding the arrested officials) were reinstated and the Union accepted by the respondent as their bargaining representative. This the respondent refused to do even though ordered by the War Labor Board. It was unwilling to reinstate any of the employees except upon condition that it be permitted complete freedom to reject whomever it wished, and upon the further condition that the Union would not be recognized as a bargaining representative. All the employees were entitled to reinstatement upon request. The respondent's refusal to reinstate some of them, based, as it was, upon the fact of, or the respondent's conjecture as to, their concerted activity, was therefore discriminatory. The respondent's position, however, is that since it was willing to reinstate some of the employees, and since none were willing to return unless all were reinstated and the Union recognized the request for reinstatement was condi- tional ; and that to hold such a request valid is to give back pay to strikers whose loss of wages is voluntary. In the first place, it is to be noted that the conditions as to reinstatement were imposed by the respondent-not by the Union. In the week after the strike, at the September 29 meeting, the respondent presented the employees with its ultimatum : Those whom it chose to select could return to work-but without the Union ; the remainder were dismissed. The employees' only choice-if choice it can be called-was whether to submit to the illegality or to reject it. The Board, of course, does not award back pay to strikers, since to do so would be to encourage employees to go or remain on strike to compel employers E. A. LABORATORIES, INC. 671 to succumb to their demands where the strike is economic, or to compel cessation of unfair labor practices. At the outset it is important to define the issue presented by the respondent's contention. The situation here is not that where, after striking to compel com- pliance with their demands for economic concessions or the cessation of unfair labor practices, the employees' offer to return provided their original demands are satisfied. Nor is it the situation where strikers have been guilty of misconduct during the strike warranting refusal to reinstate them, and the request for reinstatement is conditioned upon acceptance of all strikers. In the first case the request for reinstatement is conditioned upon the elimination of the condi- tions which produced the stoppage, in the second it is conditioned upon a demand to which the employer is not required to submit. Both are therefore conditional requests. The instant case, however, is quite different. Here the condition of the request, if it can be termed that, was merely that all the employees who were entitled to reinstatement, be reinstated. This in fact is not a condition at all ; it is nothing but a statement of the request. To say therefore, that it is conditional because the employees would not accept reinstatement unless all were reinstated, is to assert that an offer is conditional because the offeror intends not to contract if it is rejected. This issue was presented to the Board in the case of Draper Corporation (52 N. L. R. B. 1477; rev'd on other grounds, 145 F. (2d) 199 (C. C. A. 4) ). There a majority of the Board found that a discriminatory refusal to reinstate 40 of 53 economic strikers where all 53 had abandoned the strike and offered to return to work, constituted a discriminatory refusal to reinstate the whole group; the 13 being unwilling to return unless all were reinstated. The Board there said : To permit the respondent to single out a select number of a group of employees for reinstatement and unlawfully to deny reinstatement to others in the same group, acting in concert with them, is discrimination in its purest form against the entire group, for it denies to each member of the group the very protection the Act seeks to afford. And it deprives them of such collective protection at a time when they require it most namely, at the abandonment of what is to them an unsuccessful strike. The offer to abandon a strike does not cease to be unconditional merely because the offer contemplates a group return ; and the employees making such offer do not continue as strikers for that reason. See also Matter of Rockwood Stove Works, 63 N. L. R. B. 1297; and Matter of Spencer Auto Electric, Inc., 73 N. L. R. B. 1416. The respondent's willingness to reinstate some of the strikers-but not their supposed leaders, does not negative the intent to discriminate. On the contrary it affirms it. The purpose of the policy enunciated in the Draper case is to restore production, to isolate the original factors in the dispute, to limit the area and scope of their effect, and, having isolated them, to adjudicate them through the procedures of the Act. Here the employees offered to terminate the strike, resume production, and leave the settlement of the dispute to the War Labor Board and the N. L. R. B. They were not seeking when they requested reinstatement on October 25 and November 11, to compel the respondent to accede to demands whose refusal produced the strike ; or to induce it to discontinue the unfair 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices which caused it ; or to compel the reinstatement of employees whose services the respondent had right to refuse. The employees were seeking to do what the Act and the policy of refusing back pay to strikers manifestly intended to encourage; the resumption of production, restoration of the status quo, and submission of the original dispute to adjudication. This the respond- ent was unwilling to do. It insisted that the dispute be resolved by compulsion. To permit such a solution, after the Union had capitulated, would undermine the Board's policy of refusing back pay to strikers. Rather than limiting the issues, the area, and the effect of the conflict, they would be broadened instead, and a dispute manageable when confined to its original factors might well become wholly uncontrollable. That, in fact, is about what happened here . Not that the Union was without fault. It could have avoided much of the controversy by submitting the dispute to arbitration or to the Board in the beginning. But it soon recognized its mistake and attempted to rectify it. The respondent then sought to take advantage. In doing so it prolonged for months a controversy that could otherwise have been peacefully settled. In an unfair labor practice strike, an unconditional request for reinstate- ment is one for the restoration of the conditions existent at the time the strike occurred, less such conditions as the employer is not, under the Act, required at the time of the request to establish or maintain. In the instant case, the status quo was employment or placement on a preferential list of all the striking employees, and recognition of the Union as their bargaining representative. At the time of the requests the respondent was obligated under the Act to main- tain those conditions. When the employees agreed to return, the respondent insisted that they subject themselves to further, new, and additional unfair labor practices before it would permit them to submit to the policy of the Board that they resume production and leave the dispute to be adjudicated through the machinery provided by the Act. If there was loss of wages thereafter, it was the respondent's supervening and unlawful condition which was its cause, and not the employees' initial action in going on strike. It is therefore found that the requests for reinstatement on October 25 and November 11, were unconditional requests for reinstatement which the respondent refused to accept ; thereby discriminating against the employees because of their union membership and union and concerted activities,' discouraging membership in the Union, prolonging the strike ; and interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4. That the employees were not in fact discharged However, even if the respondent's contention that the strike was in violation of the no-strike clause is accepted, it should nevertheless be found that, under the particular circumstances presented, the respondent discriminatorily refused to reinstate the employees and bargain with the Union. Even if the respondent was justified in canceling the contract, and in fact did cancel it, such action would not automatically terminate the employer-employee relationship or affect the representative status of the Union 86 95 The names of these employees are contained In Appendix A attached hereto, Group IV. ' The respondent did contend before the National War Labor Board that it was un- necessary to discharge the employees, for the reason that they had automatically dis- charged themselves by going on strike. This assertion is not supportable. A strike is not a severance of the employment relationship . By its very nature it is an affirmance of an Intent to maintain It. E. A. LABORATORIES, INC. 673 Under the circumstances presented the Union could lose its representative status only by (1) withdrawal by the employees of its authority to represent them, or (2) a valid and bona fide severance of the employment relationship. It is conceded that the Union continued to represent all the striking employees. As to the second point the respondent contends that it severed the employment relationship by discharge. Thus, in its letter of September 28, the respondent informed the employees that it would "consider reemploying any one" of them who wished to come back, and promised that a job would be available for them. The respondent insisted to the Union and the War Labor Board that all the employees had been discharged. This insistence, however, is not conclusive; it was a necessary prerequisite to the respondent's other position to the effect that the Union was no longer a bargaining representative. It is evident that the respondent did intend to, and in fact did, discharge most of the union officials and many others whose activity during the strike had made them, for one reason or another, conspicuous. As to the remainder of the employees, however, I am persuaded that, despite the respondent's contention, it had no actual intention of severing their employment relationship, but that the purported discharges were nothing more than a technical maneuver designed to enable it to avoid dealing with the Union. Thus, as has been indicated here- tofore, the respondent's first position was that it would reinstate all employees except the union leaders. It is conceded that no notice of discharge was given to the employees. Consistently throughout October and November the respond- ent sought to Dersuade the employees to abandon the Union and to return to work. The literature the respondent issued consistently referred to the strikers as employees. Thus, the September 29 letter is addressed to "all employees" ; the next one to "our employees" ; that of October 31 to "Dear employee." The November 8 letter referred to the strikers as "Dear employee," "all employees," and "good employees." No changes in employment conditions (except as to rep- resentative status) resulted from the alleged termination of employee status. In fact, according to the testimony of Attorney Walzer, even seniority rights would have been preserved unimpaired. In addition, late in December, the respondent sent letters to many employees who had not returned to work. These letters read as follows: Please report upon receipt of this letter. If you are unable to report to work because you might have a position elsewhere, please notify us so that we may hark our records accordingly and consider you a terminated employee. [Italics added.] Obviously such communications are not sent to discharged employees. It is therefore found that the respondent did not discharge all the employees when they went on strike, and that its assertions that it did so were mere tac- tical maneuvers, to provide a color of right for its refusal to deal with the Union, and to break the strike. Matter of Rockwood Stove Works, 63 N. L. R. B. 1297. The Union consequently retained its representative status throughout 1944. The respondent's refusal to recognize it was therefore a refusal to bargain. 5. The waiver Even if it were found, however, that the respondent was free to consider the contract terminated and to discharge employees for having engaged in the strike, it nevertheless waived its privilege to do so on November 10. The right to inflict penalties for engaging in strikes in violation of contract, is contractual in nature. Like all such rights it may be waived, and, even when invoked, it 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may similarly be rescinded. On November 10 Auferio agreed that if the em- ployees would appear at the plant on the following morning he would reinstate them. In reliance upon this promise the employees reported for work the next morning and were again refused reinstatement. Even if it be assumed that Auferio was under no compulsion to agree to accept them-he nevertheless did. It is therefore found that on November 10, 1944, the respondent waived whatever contractual privileges it may have possessed to refuse reinstatement to any of the employees, and that such privilege was not thereafter enforceable. Matter of Carey Salt Company, 70 N. L. R. B. 92. F. Further events in 1945; the settlement agreements; the 1945 strike 1. The settlement agreement On January 20, 1945, the National War Labor Board followed up its previous Directive Order with a formal decision in which it discussed and rejected the contentions the respondent had raised in defense of its refusals to reinstate the employees, to recognize the contract, and to bargain with the Union. The prior Direction to the respondent to reinstate the employees and the contract and to leave the question of disciplinary action to negotiation and arbitration, was re- iterated. The respondent ignored this Direction, as it had done with the others. Being thus unable to secure compliance, reinstatement and recognition through the War Labor Board, the Union pressed charges of unfair labor practices before the N. L. R. B., and brought other pressures to bear. It filed a suit in the New York courts for specific performance of the contract. The respondent countered with a suit for damages under the War Labor Disputes Act. In addition, the Union instituted action in various governmental bureaus (War Manpower Commission, United States Employment Service, War Production Board, and the Office of Price Administration) to revoke various privileges and services provided the respondent. On January 31, 1945, the Director of Economic Stabilization issued an order canceling all the respondent's government contracts and depriving it of its priorities unless it obeyed the directives of the War Labor Board by Feb- ruary 10. The execution of such an order would, of course, have meant eventual shut- down. This threat succeeded where persuasion had failed. Auferio appealed to the Director of Economic Stabilization who arranged conferences with the War Labor Board. Under the auspices of the Regional Board of that agency compli- ance with the outstanding directives was arranged and a settlement agreement negotiated with the Union. This agreement was ultimately reduced to writing and signed on April 5, 1945. The settlement provided for reinstatement of the contract and reinstatement to their jobs (where possible) of all employees who had not returned to work. In addition an agreement was reached that the respondent would hire a Labor Relations Director, Carl S. Carlson, who would be put in charge of all labor relations, with sole and final authority to decide all matters pertaining to labor relations and collective bargaining, save revisions in wage structure. It was further agreed that Auferio would no longer participate in labor relations mat- ters or in any discussions between the respondent and the Union. In addition, the Union agreed that International Representative Olerio, for whom Auferio apparently had a strong dislike, would not represent the Union in dealing with the respondent. The respondent agreed to withdraw its pending War Labor Disputes action; the Union to withdraw all its pending actions, including the unfair labor practice charges. The Union further agreed to reexamine the 23 pending grievances E. A. LABORATORIES, INC. 675 which it had filed with the War Labor Board in November 1944, with provision for arbitration of those concerning which it could not agree after discussion with Carlson. During the early meetings the Union also insisted upon back pay for the employees who had not been reinstated,-but it later receded from this position. When the Board's Regional office was consulted with respect to the with- drawal of the pending unfair labor practice charges, however, it refused to permit them to be withdrawn. The Union, anxious to reestablish a bargaining relation- ship, then agreed that it would file no further charges with respect to events in 1944, and would "take no further steps with reference to the pending charges until the . .. Board has decided whether or not to proceed upon them." 34 2. Events between April 5 and August 28, 1945 a Auferio resumes his interference Carlson took over as the respondent's Labor Relations Director on May 1, 1945, but remained only until the middle of July 1945. He resigned at that time under circumstances which are related hereinafter. There is no doubt that Carlson dealt honestly and fairly with the Union. At the beginning of his tenure the local union representatives were sometimes diffi- cult to deal with - no doubt because of latent suspicion of the respondent. But relations appear to have improved, and it became not unusual for the union com- mittee to accept Carlson's disposition of grievances and other disputes even though they disagreed with him. In short, based on the stability of relations maintained while Carlson was in charge, it seems fair to infer that had he remained a satisfactory relationship would probably have been established. Others of the respondent's officials did not, however, share Carlson's views. Thus, as Carlson put it, the attitudes of Auferio and Superintendent Helius were not conducive to good labor relations; Auferio dealt with the Union against his will and did not want it in the plant. Immediately after the execution of the April 5th agreement the employees who had not been hitherto reinstated began to return to the plant. As this began, Auferio again instructed Foreman Collelo to give the stewards the worst jobs he had S8 Difficulties were experienced in reinstating some of the employees. The April 5 agreement required that employees be returned to their old jobs wherever possible. Because of changes in operations this could not be done in every case. Nevertheless there were instances where it could have been done by Helius but was not 89 Carlson investigated these complaints, found some of them justified, 31 The respondent asserted at the hearing that it was misled by the Union into believing that only 23 individuals were involved in the charges on file with the Board. While it is apparent from the testimony and from the terms of the agreement that there was some misunderstanding as to the amount of the respondent's potential liability for back pay under the pending charges, it is difficult to see how there could have been any confusion as to the number of employees involved. The respondent had been informed by the Board's Regional Director in January that the Union 's charges involved discrimination as to approximately 300 employees, charges which Walzer a short time later specifically denied in a letter to the Regional Director. 33 Collelo's testimony to this effect is undenied and is therefore credited. 39 Thus, employee Liotta was given a new job at a lower rate of pay, although her old job was in existence and she requested it. Employee Aldorasi was placed on a power press and his frequent requests for a transfer to another job ignored by 13elius until, later in the year , he was elected a committeeman ; at which time Helius offered him three different jobs, all on other floors , and which would have required his resignation as committeeman. Terry Bria, who has been referred to heretofore (p 665 ) and employee Scacclo , were likewise placed on new jobs although their old ones were in existence. 817319-49-voL 80-44 ,676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and directed Helius to correct them. Carlson, however, could not compel Helius to comply with his instructions, and the latter did not always do so. Thus, when Carlson agreed to discontinue the practice of checking the time employees spent in the toilets, Helius ordered it to be continued. Shortly after the employees had returned, the respondent called a meeting in the plant during working hours, at which Auferio told the employees that he had taken the Union back but without Olerio, and that the employees should ignore him (Olerio). Auferio further said that the union's dues and initiation fees were too high and that he was reducing them. On April 18 Auferio sent a letter to the employees suggesting that the Union had agreed in the settlement to reduce dues to $1.00 a month and initiation fees to $2.00. This statement was not true. In checking off union dues and initiation fees in April, Auferio ordered them reduced, in violation of the agreement, from $1.50 and $4.00, respectively, to $1.00 and $2.00. When this was brought to Carlson's attention he counter- manded Auferio's order. Cammer, the union attorney, complained to Attorney Walzer about Auferio's interference. Walzer stated that he could do nothing about it. The Union then took its complaints to the Regional War Labor Board, along with other complaints with respect to delays in reinstatements. The War Labor Board officials told Auferio to cease interfering in the internal affairs of the Union, and again emphasized that under the April agreement Carlson was to be in sole charge of labor relations. Auferio again promised to withdraw. Nevertheless, when the Union posted a notice on its bulletin board in the plant informing the employees as to the amount of the dues, Auferio tore it down. Despite his agreement, Auferio continued to appear, although irregularly, at grievance meetings, preempted discussions, and expressed his opinion with regard to the disposition of issues and the Union's internal affairs. In May, the Union, by letter to Carlson, again complained of these actions. Attorney Cammer also protested to Walzer who suggested that the Union make allowances for Auferio's temperament and "pamper him a little bit." Early in May Carlson and the Union came to an agreement on a question involving the computation of vacation pay. When Carlson, purely as a matter of courtesy, informed Auferio of the agreement, the latter, over Carlson's pro- tests, refused to accept it. The dispute consequently went to arbitration and the question was decided in favor of the Union. Auferio then refused for several weeks to accept the award, and did so only after a work stoppage was threatened and the arbitrator pleaded with him to comply. On July 3, 1945, at 5 p. in. the Union, which was still in administratorship, held a meeting for the nomination of new officers. At 4 o'clock on that afternoon the respondent locked the plant gates and the foremen ordered the employees to a meeting in the plant where they were served champagne, coffee, and sandwiches, and addressed by Auferio. Employees who attempted to leave were prevented from doing so by the plant guards. In his address, Auferio first referred to the union meeting to be held that afternoon, told the employees to be careful whom they selected as officers, and cautioned them not to let the Union dictate to them. He further said that the employees need not attend the union meeting and that he would refuse to deduct any fines imposed by the Union for non-attendance.40 He then declared that the union officers were "racketeers"; and intimated that unidentified persons con- nected with the Union had made attempts to extort money from him He again 11 Union members were subject to a fine for not attending union meetings. E. A. LABORATORIES, INC . 677 stated that union dues were excessive , said that the employees did not need a union, and expressed his determination not to sign another contract at the ex- piration of the present one. When the Union protested this action , Carlson reprimanded Auferlo, who responded , in substance , that since it was his plant he would say what he pleased in it. b. The resignation of Labor Relations Director Carlson At a meeting with a War Labor Board arbitrator over other issues on July 16, the Union again brought up the subject of Auferlo's interference. Carlson replied, in effect , that because of Auferio 's attitude , he was unable to do anything. On July 18, 2 days later , Carlson called in the union committee and announced that he was resigning his position, stating, in substance, that Auferio's continued interference would not permit him to carry on in the job. It is evident that this was the fact . Although not required to, Carlson on several occasions had consulted with Auferio with respect to matters at issue. As Carlson put it, he did this as a matter of courtesy , expecting that Auferio would follow his disposition as a matter of course . Auferio, however, although without authority to interfere , overruled him. The vacation matter, related above, is an example of this. The incident which provoked Carlson's resignation was Auferio 's refusal to reinstate a number of employees who had been discharged in March 1945 . ( See Section C, 3, d, supra.) At Auferio 's insistence , and over Carlson 's protests , this matter went to arbi- tration, resulting in an award adverse to the respondent. Auferio then refused over a period of several weeks to accept the award , but ultimately complied. c. Auferio resumes the handling of labor relations ; the repudiation of the April 5 agreement A grievance meeting was held about July 19, shortly after Carlson's resigna- tion . Auferio appeared at this meeting and announced that he was taking over the handling of labor relations . International Representative Kalmanson pro- tested that this action was in violation of the April agreement . Auferio replied that Carlson was a "nice fellow" but "too weak" to handle the respondent's labor relations . He further said that the April agreement was "all over now" and that he, "and no one else," would henceforth handle the respondent 's labor relations . Following this meeting Auferio called Kalmanson into an adjoining office where , in the presence of Barbieri and Stanco , two of the committeemen, he made the following statements , as related by Kalmanson : I went in there, and Mr. Auferio started to tell me that he didn't think that an outside union, as he referred to us, I guess, belonged in this plant; that it was one big happy family that he had there and the union was con- tinuously taking advantage of his employees , and that the only reason that he has the union in the plant at present was because he was forced to take the union back by the War Labor Board and that he does not intend that the union remain in his plant, and that as soon as he has an opportunity, he will see to it that they won't be in his plant representing the people. Kalmanson then called the Union's counsel, related these events, and said that he thought it hopeless to continue to attempt to deal with Auferio. He was, however , persuaded to continue. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The union elections; Auferio's attacks on the new union officers On July 25, 1945, the union members elected officers, committeemen and stewards. Auferio immediately attacked the legality of the election , in sub- sequent meetings with the committee and on other occasions, saying that the officers were incompetent. He further declared, both orally and in a letter to the Union, that he would not recognize some of them. One of the committee, Aldorasi (who was discharged several weeks later) he characterized as "a child." Barbieri, the union president (similarly discharged later), Auferio charged with having a criminal record and with having been committed to a mental hospital, both untrue assertions. When the election results were posted on the plant bulletin board, Auferio tore them down. e. The refusals to negotiate prior to the strike Germany surrendered unconditionally on May 7, 1945. The bargaining con- tract, by its terms, expired 90 days thereafter. On June 9, 1945, the Union, by letter to the respondent, requested the opening of negotiations for modification and renewal of the existing contract. On June 13 Walzer, the respondent's attorney, suggested that the Union submit its proposals, a suggestion which he reiterated at a meeting on July 8. In the meantime, on June 19, Carlson had also written the Union that negotiations would be arranged as soon as other pending matters were disposed of. On July 19 the Union submitted its proposals and requested an extension of the existing contract pending negotiations Carlson left his position on July 18. During the grievance meeting about July 19, the union committee also asked for an extension pending negotiation. Auferio refused, assigning no reason. Thereafter, between that date and August 17 a number of meetings and con- versations were held between Walzer and Cammer, the union attorney, at which the question of extension and renewal were discussed. It is conceded that at these meetings Walzer declined to negotiate with the Union either for a renewal or extension of the contract. The testimony is in conflict, however, as to reason ascribed by Walzer for his position. In sum, the conflict is whether Walzer at any time questioned the Union's majority ; Cammer's testimony being, in substance, that he did not, but that he based his declination entirely on Auferio's flat refusal to deal any further with the Union. Walzer's testimony in substance, was that he told Cammer that Auferio was questioning the union's majority status, and that he (Walzer) suggested a consent election ; that Cammer agreed to consider it, but did nothing about it. It is unnecessary, for reasons to be related, to resolve this conflict. f. Other events between July 18 and August 25 As has been indicated heretofore, at the grievance meeting of July 19 Auferio refused, without explanation, to extend the existing agreement, which was due to expire August 7. At this meeting Auferio also presented the union com- mittee a draft containing changes in various plant rules. These revisions re- stricted union officials in the conduct of union business, abolished minimum wage guarantees for piece workers, changed rules respecting absenteeism, and permitted the imposition of disciplinary measures for "disturbing and agitating." The committee refused to sign or approve the draft on the ground that the E. A. LABORATORIES, INC. 679 proposals were in violation of the provisions of the contract. The respondent nevertheless enacted the changes, posted them on the bulletin board, and dis- tributed copies among the employees." Following a meeting on August 3, 1945, at which Walzer declined Cammer's request to negotiate a renewal contract or to extend the existing one for 30 days, the Union dispatched telegrams to the U. S. Conciliation Service and the War Labor Board, accusing the respondent of refusal to negotiate and provoca- tion to induce a strike, and requesting intervention. At around the same time Auferio told the Union's International Representative, Kalmanson, that he had no intention of dealing with the Union after the expira- tion date of the contract, a position which Auferio reiterated to Kalmanson after the contract did expire. g. The meeting between Auferio and Kerrigan; Auferio' s attempt to persuade the International to withdraw from the plant On August 5, Charles Kerrigan, Regional Director of the UAW-CIO, met with Auferio at the latter's request. Cammer and Walzer were also present. Auferio opened the discussion by praising Kerrigan. According to the testimony of Kerrigan and Cammer, he then asked Kerrigan to withdraw the local union's charter and to stop all union activity in the plant for a year or two so that Auferio could eliminate the "gangsters and racketeers." He assured Kerrigan that if any other union should attempt to organize the plant, or if, at the end of that time the employees still insisted upon having a union, he would see that they went back to the CIO. He further said, in substance, that the Union had nothing to lose by accepting his proposal, because he was not going to bargain with it in any event. He then asserted that a group of 6 or 7 International Representatives were attempting to "shake him down." Kerrigan promised to put all the facilities of his organization at Auferio's disposal in order to appre- hend the individuals and root them out of the labor movement, and suggested various methods of procedure to that end. At this point Auferio became evasive. He declined to identify any of the individuals but said that he would call Kerrigan the next day. During the discussion Auferlo also said that he had expected to be able to utilize the arrests of the union officials in the previous year to eliminate the Union from the plant, but he had, as he put it, "mistimed it"; the demand for production (by the military authorities) had been too great and he had consequently been unable to do it." When, on several occasions following the above meeting, Cammer and Kerri- gan sought to secure Auferio's assistance in identifying and apprehending the union representatives who were allegedly "shaking him down", Auferio would The provision for abolition of the guaranteed minimum wage for piece workers was not only in violation of the contract , but of the wage and hour law as well. Edelman, the respondent 's vice president , testified that the respondent threatened to pay less than the minimum in order to discourage slowdowns, but did not actually execute the threats. It is clear from the evidence , however , that on at least 4 occasions the respondent paid piece work employees less than the minimum rate and that written grievances filed on their behalf were rejected by Superintendent Helius. 42 The finding in this paragraph is based on the testimony of Cammer , who was gen- erally corroborated by Kerrigan. Walzer testified that he "heard no such statement." Cammer's testimony on the point was positive and detailed . In view of Walzer 's qualified denial it is likely that Cammer's recollection is correct . The remainder of the findings as to the August 5 meeting are not disputed. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not cooperate. Finally, on August 14, Walzer in a telephone conversation with Cammer, told the latter that Auferio was "not interested in pursuing the matter any further." Nevertheless, during the course of the subsequent strike, Auferio issued a letter to the employees in which he asserted that his efforts to secure the coop- eration of the Inteinational Union in order to apprehend the alleged racketeers had met with no response. h. Auferio's attempt to induce the shop committee to abandon the Union and to form a company union On August 9, 4 days after the meeting with Kerrigan, Auferio met with the shop committee and reiterated the "shakedown" charges. Asked to identify the individuals and offered the committee's cooperation in apprehending them, Auferio again refused. He further stated that he would not extend the con- tract, and said, in substance, that he would no longer deal with the Union. He indicated, however, that he would be willing to deal with and give a con- tract to a company union. He then offered the committeemen official positions in such a union comparable to those they presently held, if they would abandon the C. I. O. On August 13 Cammer and Walzer met with a U. S. Conciliator concerning the dispute. On August 14 and 17 Cammer telephoned Walzer and held fur- ther conversations. On all 3 occasions Cammer sought to induce Walzer to negotiate and Walzer declined to do so. During the last two conversations Cammer warned Walzer of the possibility of a strike ^a i. Auferio's attempt to induce the tool and die workers and the pivot girls to abandon the Union The tool and die workers (skilled craftsmen) and pivot girls (minor super- visors) were key workers in the plant. Both groups were represented by the Union and covered by the bargaining contract. Faced with the possibility of a strike in which the respondent could not operate without them, or might even lose them to other employers. Auferio sought to induce both groups to with- draw from the Union. Thus, late in August, he called Sorenson, tool and die department union committeeman to his office. In the presence of Barbaro, the department foreman, Auferio attacked the competence of the other union of- ficers, saying that Sorenson was the only one who had "any sense." He then said that he wanted no further dealings with the Union ; asked Sorenson to have the tool and die employees withdraw from it; and stated that Sorenson could form another union if he wished, but that Auferio preferred withdrawal. Shortly thereafter Auferio called a meeting of the pivot girls and foremen, characterized the Union as a racket, said that it was out of the plant, and as- serted his determination to keep it out. He then asked the employees to form their own separate company union. 3. The 1945 strike On August 22, 1945, the Union held a meeting at which the membership au- thorized the filing of a strike notice under the War Labor Disputes Act. Two days later, on August 24 the respondent, as is hereinafter found, dis- criminatorily discharged the union president, Barbieri, its vice president, Stanco, and Aldorasi, a committeeman. 93 As is the case in the other discussions between Cammer and Walzer concerning recog- nition, the testimony is conflicting as to whether Walzer raised any question of majority. E. A. LABORATORIES, INC. 681 Three days after those discharges the employees held another meeting at which they voted to strike immediately because of the discharges and the re- fusal of the respondent to negotiate. On August 28th they struck. All the em- ployees joined in the strike. On the following day the respondent issued a circular to the employees in which it charged that the union officials had misled the employees as to the cause of the strike; asserted that the real cause was the respondent ' s refusal to deal with the Union because unnamed International Repre- sentatives were attempting to extort money from Auferio ; said that the Inter- national Union would not cooperate in apprehending them ; and exhorted the employees to return to work. The strike continued until mid-October when it was terminated unsuccessfully under circumstances described hereinafter. Several times during the course of the strike the Union without success sought to induce the respondent to negotiate. 4. Conclusions as to the above events a. The effect of the settlement agreement of April 5 It seems evident from the foregoing facts that the respondent did not enter into the settlement agreement with the Union in good faith , and with the intent to accept and deal with it as the bargaining representative of the employees. On the contrary the facts suggest that the respondent was driven by the force of circumstances into making the color of peace with the Union-a peace which it never intended to keep. Auferio 's actions and his statements permit no other conclusion. Thus, he told the shop committee at the first meeting after Carlson had resigned that he had taken the Union back only because he had been forced to. Carlson's testimony , to the effect that Auferio was dealing with the Union against his will, has already been alluded to. No sooner had the April 5 agreement been signed than Auferio told Foreman Collelo to discriminate against the union stewards. Although he was obligated to leave all collective bargaining matters to Carlson and not to interfere with the Union 's internal affairs, the agreement was hardly 2 weeks old before Auferio assembled the employees , falsely represented the basis of the settlement with respect to dues and initiation fees, and proffered his unsolicited advice with respect to matters strictly the employees' affair On his own initiative he changed the amount of the check-off payment. When reprimanded for this interference by the War Labor Board officials he again promised to cease it, a promise promptly repudiated." The Union 's complaints against this interference were fruitless . When Carlson had determined the merits of the vacation pay dispute Auferio overruled his determination When the arbitrator upheld the Union Auferio refused to com- ply. Similarly when Carlson had determined that the employees discharged in March should be reinstated , Auferio again overruled him. When arbitration of 94 Throughout the period of the Union 's presence in the plant , Auferio ' s record of broken promises is quite impressive . It will be remembered that in 1943 , Vice-President Edelman had taken over the handling of labor relations upon the understanding that Auferio would stand aside . That promise was soon repudiated During the 1944 strike Auferio had promised Judge Liebowitz to reinstate the employees , a promise he repudiated on the following day Walzer had stated for the respondent during the 1944 strike that if the employees returned to work they would be free to choose whatever bargaining repre- sentative they wished , a commitment repudiated by Auferio in January 1945. Section C, 0, b, supra. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this issue also resulted in a verdict adverse to the respondent, Auferio again refused to comply." When the Union was nominating officers, Auferio locked the employees in the plant, vilified their leadership and promised not to deduct fines for non-attendance if they did not attend the nomination meeting. This was not only a threat to violate an obligation imposed on the respondent by the contract ; it was intended to break down a union rule designed to insure full participation by all members in the selection of their representatives. When Carlson, unable to acquiesce any longer in Auferio's concept of labor relations, resigned, Auferio openly took over the management of them and bluntly announced that the April 5 agreement was at an end. When the new union officers were certified he attacked them as in- competent and stated his determination not to recognize them. Thereafter, he attempted to induce the International to abandon its organization in the plant ; when that failed he sought to induce the shop committee to withdraw from the Union, promising them comparable jobs in a company union ; when that failed he attempted to get the key tool and die workers and the pivot girls to abandon the Union and to set up a company union. These are scarcely the actions of an employer according to a bargaining repre- sentative the recognition to which it is entitled ; or intent on carrying out his agreements, however personally distasteful. It seems apparent from his conduct that Auferio made the April settlement only because he was compelled to and that he had no real intention of adhering to it. It is therefore found that the respondent did not enter into the settlement agreement of April 5, 1945, in good faith. Beyond that, however, it is found that the respondent violated the terms of the agreement in the substantial respects heretofore recited and finally repudiated it altogether." The respondent contends that the April 5 agreement constitutes a bar to con- sideration of any events preceding it-other than such questions as were specifically reserved by the agreement17 Having failed, however, to carry out the agreement itself, and having deprived the Union of the fruits of its bargain, the respondent can hardly claim that the making of the agreement absolved it from responsibility for its prior conduct'1e In any event, whatever the equities 45 As has been indicated , after some weeks of persuasion and after the threat of a work stoppage in the first instance, Auferio ultimately complied with both awards. 46 The respondent asserted that the Union also violated the April 5 agreement in that Olerlo allegedly advised and interfered with the shop committee behind the scenes. The agreement was that Olerio, like Auferio, was to refrain from participation in any matters having to do with collective bargaining relations between the parties. It was under- stood, however, that Olerio was to handle the remainder of the local Union's affairs while it remained in administration-that is, until officers were elected . The only evidence suggesting that Olerio did not scrupulously adhere to the agreement is some testimony and statements by Attanesi, who, as has heretofore been found, is completely unreliable. Attanesi's testimony was specifically denied by International Representative Kalmanson who replaced Olerio in dealing with the respondent. Kalmanson 's testimony is credited. No reliance can be placed on any assertion by Attanesi. 47 The respondent concedes that the settlement does not bar proceedings as to 23 indi- viduals-principally union officials-specifically named in the agreement. 48 As Union Attorney Cammer put it in his testimony A. . . . The one thing that Walzer had emphasized during our negotiations or discussions was that he had this knight on a white horse, Mr Carlson, who was com- ing in and there was going to be a brand new deal, with J. M. (Auferio] out of the picture. That's what we discussed when I was first introduced to Mr. Carlson. It is what he iterated and reiterated at every meeting we had. It was the one thing he was fliving to us-Carlson-but we never got him. Q. Then it was your intention, when you executed that agreement of April 5, 1945, E. A. LABORATORIES, INC. 683 as between the respondent and the Union, insofar as the agreement purported to compromise unfair labor practices, it invaded the function of the Board, whose authority over such practices is exclusive. (Section 10 (a).) No agreement be- tween private parties can modify the Board's jurisdiction. To hold otherwise would be to permit private persons to usurp governmental functions. In any event, in the instant case the Board specifically refused to approve the agreement or to permit the charges to be withdrawn. The respondent was aware of this posture of the facts when it concluded the agreement. The Board's consistent policy has been that agreements compromising unfair labor practices, even where approved by the Board, are predicated upon the cessation of the practices, and that continuance of them is a repudiation of the agreement. See, for example, Wallace Corporation v. N. L. R. B., 323 U. S 248, N. L. R. B 138. It is therefore found that the April 5 agreement is not a bar to the consider- ation of the unfair labor practices which preceded it. b. As to the refusal to bargain It is conceded that the respondent refused to negotiate with the Union. There is dispute, heretofore recounted, as to whether, as Cammer asserted, the respondent also conceded that the Union represented a majority, or whether, as Walzer testified, he offered to bargain if the Union would establish its ma- jority in an election This conflict it is necessary to determine. Even if Walzer's testimony be accepted, and Cammer's rejected, there is still issue as to whether the refusal was based on a good faith doubt as to the Union's majority. That the Union in fact represented a majority does not seem open to serious question. It undisputedly retained the adherence of the employees during the strike of 1944, despite Auferio's attempts to get them to abandon it. When the last union members returned to work in April 1945 the Union's position was considerably strengthened. During June, July and August 1945, when there were approximately 275 employees in the appropriate unit, 235 of these were paying dues to the Union on the basis of the union shop check-off clause of the contract. There is no evidence of any disaffection or of desire on the part of any employee to change his designation. On the contrary, all the em- ployees within the unit joined in the strike. It is therefore found that at all times material herein the Union represented a majority of the respondent's em- ployees in the appropriate bargaining unit heretofore found, and was their duly designated collective bargaining representative. Nevertheless, since the time was appropriate for a change of representatives had the employees desired it, a refusal to bargain based on the respondent's good faith doubt as to the Union's majority would constitute a complete defense. A good faith doubt, however, must be based on something more than a mere desire to put a union to a contest of strength in the hope that it may somehow lose. Where the Union is admittedly the choice of the employees before the question is raised, there must be some evidence of disaffection brought to the employer's attention before an asserted doubt can be characterized as bona fide. Elections are held to settle questions concerning representation-to resolve real doubts, not feigned ones. Here there is no evidence of any such question, save to give up the claims for back pay for all employees except the 23 named upon the- conditions that you have heretofore stated? A. It was our intention, when we signed that agreement, to buy peace ; that is, to buy the end of Mr. Auferio 's warfare against the union . For that we were willing to pay a price [ the waiver of claims for back pay as to some of the employees dis- criminated against]. We never got what we paid for. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a statement by Auferio to Carlson, referred to hereinafter, and testimony by Walzer to the effect that Auferio had informed him that several employees had reported that they no longer wanted the Union to represent them. Auferio, how- ever, did not testify. His statement to Walzer cannot therefore be accepted to establish the fact. On the other hand, there is abundant evidence that the refusal to bargain was not made in good faith. The whole course of Auferio's conduct reveals that, as Carlson testified and his statements to the shop committee on July 19 attest, he dealt with the Union, after the April settlement, against his will; and did not want it in the shop, as Walzer told Cammer in one of their meetings. The extent of this animosity may be gauged from Auferio's instruction to Colello to assign the stewards disagreeable work ; his interference in the Union' s internal affairs in violation of his specific agreement not to do so ; his vilification of its leadership ; his exhortations to the employees to abandon the Union ; and his refusal to recognize elected representatives whom he did not approve. Auferio's refusal to negotiate was based, not on doubts as to the Union's representative status, but on his unqualified determination not to deal with it under any circumstances. Thus, at the July 3 meeting he expressed his resolu- tion, subsequently twice reiterated to Kalmanson, not to sign another contract with the Union, and again reiterated it at the August 9 meeting at which he stated that he would deal with a company union but not with the C. I. O. Other indications are his assertion at the July 19 meeting that he did not intend to permit the Union to remain in the plant, and his declaration to UAW Regional Director Kerrigan on August 5 to the effect that the International might as well accept his proposal that it withdraw from the plant since he was not going to deal with it any longer anyway. That the suggestion that he doubted the Union's majority was an afterthought is indicated by the fact that the question of an election, if raised at all, was apparently not raised until about a month after the initial request for negotiations, and, sometime in July. In the meantime, \'Walzer had twice told the Union to submit counterproposals and Carlson had stated that negotiations would be arranged. In addition, on all the occasions on which Auferio stated his determination not to deal further with the Union he indicated no doubts as to the Union's representative status. When the respondent issued its communication to the employees of August 28, it raised no question of majority, but simply stated that the reason for the strike was that Auferlo refused to negotiate with the Union because certain unnamed representatives had attempted to extort money from him. If any further indication were needed that doubts as to majority were not factors in the respondent's refusal to deal with the Union it is to be found in the testimony of Labor Relations Director Carlson. Carlson testified that he had no doubt that the Union was the majority representative, and that if there had been any disaffection he would have been aware of it. When Auferio told him, presumably shortly prior to Carlson's resignation, that he would not nego- tiate because the Union was not a majority representative, the assertion came as a complete surprise to him. He pointed out to Auferio that there was no ques- tion as to the fact and urged him to begin negotiations. Auferio merely replied that he had information to the contrary, without indicating what it was. It seems apparent from the above recital, and it is found, that the respondent at no time entertained any honest doubt as to the Union's representative status and that the question, if raised at all, was raised as an afterthought and a pre- text to give some color of legality to the refusal to negotiate. The refusals to bargain during the course of the strike, along with other unfair labor practices E. A. LABORATORIES, INC. 685 occurring during the strike, found hereinafter, also prolonged the strike. It is therefore found that the respondent refused to bargain with the Union as the duly designated representative of its employees, prolonged the strike, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 5. Events during the strike a. The meeting with the tool and die employees; abandonment of the strike Despite Auferio's appeal to the employees in the August 28 letter to return to work, they remained on strike through the month of September. Late in that month the respondent, faced with the prospect of losing the tool and die workers to other employers, attempted to induce them to return. It sent telegrams to those employees stating that the dispute had been settled and that they should return to work at a stated time. When the men appeared they were addressed by Hutchison, the chief engineer. Hutchison asked them to come back, assert- ing that since they were skilled craftsmen they had nothing in common with the other employees. Sorenson, union committeeman for the tool and die workers, replied that they wanted to be represented, and said that they were tired of waiting, and that unless the dispute was settled the tool and die workers were going to seek other employment. He then asked if the respondent was willing to put everyone back to work. Hutchison replied that he would have to take up that question with Auferio, and the meeting ended. Several weeks later, in response to another telegram, the tool and die workers again assembled at the plant. Sorenson was not invited but nevertheless ap- peared at the meeting. Superintendent Helius spoke for the respondent and urged the men to return to work. Sorenson stated that they would return if all the strikers were taken back. This Helius refused, saying that some of the employees were "crooks" and "racketeers" who had attempted to extort money from the respondent, and that the respondent would not recognize the Union. When Sorenson asked their identity, promising to get rid of such individuals, Helius would not reveal it. Helius further declared that he would not take back any of the employees so long as they were represented by the C. I. O. The tool and die workers refused to return under such conditions.49 Sometime after the ahoie meeting the respondent called the tool and die workers, Sorenson excluded, to a third meeting, this time a dinner meeting at the St. George Hotel in Brooklyn. Auferio was present at this meeting. There is no evidence as to what occurred, but it is to be inferred that the men were again urged to return to work. Shortly after that dinner the tool and die workers abandoned the strike and returned to work. The loss of the tool and die men broke the strike. About October 12 at a union meeting the Union voted to abandon the strike and advised the employees to seek reinstatement. b. The refusals to reinstate During the course of the strike Auferio and Helius had warned a number of the striking employees that they would regret having picketed; Auferio further stating that he would cease hiring employees of Italian extraction and replace 49 The above findings are based on the testimony of Sorenson and employee Gibbons. There was some variation in their testimony as to whether some of the above statements were made at the first meeting or the second. Their testimony is in agreement, however, as to the substance of the statements, and is not denied. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them with Negroes. Helius also told a group of pickets that the entire staff was being replaced and that the pickets were "out ... completely." Neverthe- less following the abandonment of the strike many of the union members applied for reinstatement. Some were reinstated. Many others, however, including the most active union members, picketers, and officials, were refused reinstate- ment when they applied. Lists were maintained by Helius and the timekeeper as to the individuals who were acceptable. At the time of these applications the respondent was in need of and was soliciting and hiring new employees. Some of the rejected applicants were frankly told that they were not wanted because they had not been loyal to the respondent ; others were variously refused with statements that they had picketed ; were "union men" ; or were not wanted in the plant. Others were told that the respondent did not want any more "strong arm men," or to "forget about" their jobs ; or that the respondent wanted a "happy family" and not "trouble makers"; or that orders that had been issued not to rehire them. Many were refused reinstatement despite repeated application. Some were simply told that they could not be used ; or that there was no work or that nothing was open for them, although foremen assured them that there were jobs available for them. Others were advised that the respondent would let them know, but it did not. On occasion, when active union members and relatively inactive ones applied together, the latter were immediately accepted and the former rejected. No explanation was offered by the respondent as to the reasons for any of these rejections of qualified employees at a time when the respondent was hiring new and inexperienced workers. Those who were refused reinstatement reported their experience to the union officials and strikers at the Union office and at union meetings. In addition, dur- ing the strike the respondent sent telegrams to a group of employees informing them that unless they returned to work by October 10 they would be considered as having resigned. Consequently a number of strikers and union officials did not apply for reinstatement under the belief that it would be futile to do so. That this conclusion was not unreasonable is evident from the fact that, so far as the evidence discloses, not a single union officer was reinstated. Every officer who applied for reinstatement was refused. Of the 70 persons alleged in the complaint to have been discriminatorily denied reinstatement after the 1945 strike, some 35, among them the most active union adherents, were denied re- instatement upon application under the various circumstances given above. Of the remainder, some testified that they did not apply because they thought it futile; the rest, including many active union adherents and pickets were not reinstated but did not testify. There is no explanation for the failure of the latter group to seek reinstatement. c. Conclusions as to the refusals to reinstate The strike resulted from the respondent's unfair labor practices. The strikers were therefore entitled upon request to be reinstated to their former jobs even though their places had in the meantime been filled by new employees.50 No ex- ° As the Board has observed on prior occasions ; "A refusal . . . to reinstate any striker [ is] illegal if prompted either by the fact that he had been on strike or had been an active leader of the strike, or [if an unfair labor practice striker] by the fact that his job had been filled by a new employee hired after the strike began." Berkshire Snit- tiny Mills, 46 N. L . R. B. 955. E. A. LABORATORIES, INC. 687 planation was offered by the respondent, however, for the refusal to reinstate those who did apply ; there is no evidence that their jobs were unavailable other than what some were told, which has been related above. Therefore, even had the strike been wholly economic in origin, those who applied were entitled to rein- statement. It is evident from the respondent's whole course of conduct toward the Union, as well as from its failure to proffer any explanation for the refusals to restore the applicants, that they were refused reinstatement because of their union and concerted activities, and it is so found. As to the remainder, however, since no application was made,' it cannot be said that they were refused reinstatement, unless, as the Board contends, Helius' statements at the second tool and die meeting constituted a mass refusal to re- instate. It will be recalled that at that meeting Sorenson asked if the respondent would reinstate all the strikers ; that Helius refused to do so ; and that he further said that he would not take back any of the employees so long as they were rep- resented by the C. I. C. However this language be construed, it constituted an unfair labor practice ; at the least it was a threat to refuse to reinstate employees if they insisted upon exercising their statutory rights. In addition, it unlawfully imposed as a condition of reinstatement that the employees submit themselves to further unfair labor practices in addition to those which had caused them to go on strike. Finally it constituted effective notice to all the employees that the respondent, although obligated by the Act to do so, would not restore them to their jobs on the terms and conditions existent at the time they went on strike. As has been indicated heretofore, to permit such action during the course of a strike, tends to spread, rather than to restrict, the issues in dispute, and makes more difficult the problems of resolving the differences. It might be argued, as appears to be the position of counsel for the Board, that the anticipatory re- fusal to reinstate, enunciated to the tool and die workers, was tantamount to a discharge of all the employees, and in any event, relieved the employees of any obligation to request reinstatement. As I understand the Board's decisions. however, absent a request for reinstatement, anticipatory refusals to reinstate, or even threats to discharge, strikers, while unfair labor practices, do not relieve the employees of the obligation to request reinstatement unless the circumstances indicate that the employer's actions constitute an actual discharge. Home Ben- eficial Life Insurance Co., 69 N. I. R. B. 32. Rockwood Stove Works, 63 N. L. R. B. 1297. Sorenson's question to Helius as to whether all strikers would be reinstated if the tool and die men came back, I do not construe as a request for reinstatement of the strikers other than the tool and die men. So far as appears the Union was still on strike, and there is no evidence from which it can be inferred that all the employees would have returned had Helius' answer been in the affirmative. It is apparent from the discussion at that meeting, however, that the tool and die employees were prepared to return to work immediately if the respondent would reinstate all the strikers, and Sorenson' s statements are to be construed as a request on the part of the former to return to work upon such a condition. The refusal of the respondent to accede to that request therefore constituted a denial of reinstatement to the tool and die employees. Draper Corp., supra, Rockwood Stove Works, supra. =There is no explanation for the failure of the Union to make a blanket request f)r reinstatement when it abandoned the strike. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel for the Board contends , in the Board's brief , that the imposition of the illegal condition that the employees would not be reinstated with the Union as their bargaining agent was tantamount to an absolute refusal to reinstate. But that action , while an unfair labor practice , was nevertheless the very con- duct which precipitated the strike. Additionally the Board contends that the respondent 's conduct made it clear that it would have rejected anyone identified prominently in strike activity and that the strikers were therefore not required to make a futile and useless gesture. The difficulty , however, is that some active picketers were reinstated on application , for reasons known only to the respond- ent. It cannot therefore be said that all applications would have been futile. It is therefore found that (1) Helius' statements to the tool and die workers at the second meeting con- stituted threats of discrimination against all the strikers , and discriminatory refusals to reinstate the tool and die workers. (2) The respondent 's solicitation of the tool and die employees to return to work without the other employees constituted an unfair labor practice . I. Spie- wark & Sons, 71 N. L. R. B. 770. (3) The respondent's refusal to reinstate the employees who individually applied for reinstatement , being those named in Appendix A, attached hereto, Group II , was discriminatory. (4) As to the remainder of the employees named in the complaint , whom the respondent is alleged to have refused to reinstate after the 1945 strike, being those named in Appendix A, Group III , the respondent did not refuse to reinstate them. (5) By the above described refusals to reinstate , the respondent discriminated in the hire and tenure and terms and conditions of employment of its employees and discouraged membership in the Union, and by this action and by its threats of discrimination , and by the solicitation to employees to abandon the strike, interfered with, restrained , and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. 6. Interference , restraint and coercion It is further found that the following conduct of the respondent also interfered with , restrained and coerced the employees in the exercise of the rights guar- anteed in Section 7 of the Act : Auferio's instructions to give unpleasant work assignments to union stewards ; his statements that he would no longer deal with or tolerate the Union in the plant ; his interference in the Union 's internal affairs ; compelling employees against their will to attend the July 3 meeting in the plant ; vilifying the Union and its officers ; refusing to recognize union officers after elected ; attempting to induce employees to withdraw from the Union and to form a company union ; unilaterally revising the guaranteed minimum wage provided in the contract , unilaterally changing the dues deduction provided by the con- tract ; Auferio's refusal to abide by the terms of the April 5 agreement ; and the threats of reprisals against pickets ; all of which contributed to cause the strike or to prolong it. 7. The applicability of the War Labor Disputes Act The respondent urges that by striking before 30 days had elapsed from the date of its filing of a strike notice the Union violated Section 8 of the War Labor Disputes Act, Act of June 25, 1943 , 57 Stat. 163, 50 U . S. C. 1501 et seq., E. A. LABORATORIES, INC. 689 and that the employees consequently forfeited their rights to reinstatement under the National Labor Relations Act. The strike notice required by the War Labor Disputes Act was filed by the Union on August 27, and on the following day the employees went on strike. Violations of Section 8 of the War Labor Disputes Act do not, however, result in forfeiture of rights provided by the National Labor Relations Act. Republic Steel Corp., 62 N. L. R. B 1008; Union City Body Co., 69 N. L. R. B. 172; Kala- mazoo Stationery Co., 66 N. L. R. B. 930, 160 F. (2d) 465 (C. C. A. 6). G. Discharges 1. The discriminatory discharges a. Bria, Scaccio, Tartanella, Barbierti, Stanco, and Aldorasi Labor Relations Director Carlson resigned on July 18, 1945, and Auferio im- mediately took over the handling of labor relations. Between July 10 and August 24, a few days prior to the strike, the respondent discharged, among others, the above named six employees, all active union adherents, and the latter three among its principal officers, including the president and vice president. Terry Bria and Frank Seaccio were discharged on July 19. Bria was a mili- tant union member, had picketed in the 1944 strike, been refused reinstatement, and been returned to work but not to her old job after the April 5, 1945, agree- ment. When Bria was reinstated Assistant Foreman Foti told her that he wanted no trouble from her; that things were not like they were before; and that if she "had any thing to say" to come to him and lie would "fix it up." On behalf of the other girls Bria made several complaints to her foreman, Mascia, con- cerning piece rates and working conditions. She was then nominated for the office of union steward, at which time Mascia, asserting that she was a "trouble- maker," declared that he would not have her as a steward in his department. Mascia's sole desire was to be rid of Bria as a steward. Although he testified that her work, good as to quality, was below standard in quantity, he would have retained her but for his opposition to having her as a union steward. Bria was then transferred to another department, that of Foreman Ocuto " While there she was appointed by the employees as their spokesman in a dispute over bonus rates, following which she was again transferred, under protest. Attempts by the Union to secure her return to her old department were unsuc- cessful, Helius responding that there were no openings and that the foreman did not want her back. At the time, however, a new employee was working on Bria's old job. On July 19, at the end of the day, Bria was given her pay by Ocuto who told that he had orders to suspend her, but disclaiming any knowledge as to the reason. When the union steward requested an explanation Helius replied that she was a "trouble maker." Although in its brief the respondent suggests a number of reasons why Bria might have been discharged, it offered no explanation as to why she was separated. The only persuasive inference to be drawn is that Bria's discharge was motivated by her militance and her concerted and union activity, related above. It is so found. 1' Ocuto's anti-union activity during the 1944 strike and his part in the formation of the company-sponsored Association have been referred to heretofore. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scaccio, another employee prominent in union activity was, like Bria, dis- charged by Foreman Ocuto at the end of the day on July 19. When Scaccio asked for an explanation Ocuto answered "go to the Union and they will tell you." The discharge was effected without notice to the Union, although such notifi- cation was required by the bargaining contract. The respondent offered no evidence in explanation for Scaccio's discharge. There were no complaints about his work. Scaccio was one of those refused reinstatement by Helius after the 1944 strike because of his picketing activities. He was restored to work by the April 5 agreement. Nevertheless he was put on a new job at a lower rate of pay, over protests, despite the fact that employees junior in seniority were on his old job. Repeated requests for transfer because of his inability to earn wages com- parable to his former scale were rejected. Scaccio's discharge, like Bria's, coincided with Auferio's resumption of au- thority over labor relations. The discharge was in violation of the contract and the respondent's correlative duty to notify the Union. The timing, the unila- teral character of the respondent's action, the arbitrary refusal to give any explanation, Ocuto's suggestion that Scaccio go to the Union for an explanation, when combined with the failure of the respondent to come forward with any reason for the discharge at the hearing, and the respondent's prior discrimina- tions against Scaccio, and the satisfactory character of his work, impel the con- clusion that lie was discharged because of his union activity and in pursuance of Auferio's renewed offensive against the Union. It is so found. Anthony Tartamella. As has been found heretofore, in July 1945 Auferio attacked the competency of the newly elected union officials, referring to Com- mitteeman Aldorasi, among others, as a "child." (Aldorasi's later discharge is subsequently discussed.) The respondent thereupon ordered Aldorasi to undergo a physical examination by its physician and, upon his refusal, suspended him. This suspension resulted in a short-lived "wildcat" stoppage by the employees in Tartamella's department, in which Tartamella participated. The stoppage was terminated the same afternoon upon the intervention of the Union, and with the agreement that all employees would be reinstated, and that Aldorasi would submit to a physical examination by his own doctor. Two days thereafter, on July 27, Tartamella was discharged by Assistant Plant Superintendent Stango without explanation. Helius and Auferio later told Union President Barbieri that the reason was that Tartamella had provoked the walk-out; Auferio stating that he "had to make an example of someone ," and therefore "picked on Tarta- mella." There were no complaints about his work. No explanation was advanced at the hearing for the discharge. It is apparent from the remarks of Helius and Auferio that the separation was motivated by Tartamella's concerted activity in the work stoppage and that he alone was singled out in order to discourage concerted action by other employees. The discharge was furthermore in viola- tion of the specific agreement with the Union not to inflict reprisals. It is found that Tartamella's discharge was discriminatory. Carey Salt Co., 70 N. L. R. B. 92. Pat Barbieri, Joseph Stanco, and Americo Aldorasi These three employees were, respectively , president, vice president , and com- mitteeinan of the Union. On August 22 the union members had voted to file a strike notice under the War Labor Disputes Act. On the following day Superin- tendent Helius called Barbieri to his office and charged him with attempting to provoke a strike. All three were discharged on August 24 assertedly for the E. A. LABORATORIES, INC. 691 Same reason : absenteeism. The undisputed evidence is that Barbieri and Stanco had never been absent from the plant without permission. Aldorasi, absent for 4 days because of an injury, reported his absence by telephone, but upon his return was nevertheless informed that he was discharged for absences without notification. The respondent offered no explanation for these discharges, although counsel suggested a number of reasons. Grounds no doubt existed upon which Aldorasi's discharge could have been effected non-discriminatorily." But it is plain from the respondent's course of conduct that Auferio was determined to eliminate the Union and its leadership from the plant. It is equally apparent that had the union officials acquiesced to Auferio's proposal on August 9 that they abandon the C. I. O. and form a company union, with themselves as officers, the respondent would have found no dissatisfaction in their services. But, though ground may have existed for all of the discharges, there is no evidence that it was acted upon, and to find so would be pure speculation. On the other hand, the factors indicating that the discharges were discriminatory are so overwhelming that no reasonable inference can be drawn other than that absenteeism was a mere pretext for the separations, and that Barbieri, Stanco, and Aldorasi were discharged because of their leadership in the Union and because of their refusal to cooperate with Auferio in eliminating the Union from the plant. It is so found. b. l-ary LaManiza, financial secretary of the Union during the 1944 strike, although recalled in April 1945 pursuant to the April 5 agreement, did not accept the offer of reinstatement at that time for the reason that she was employed elsewhere. Toward the end of May 1945, however, LaManna applied at the respondent's plant for employment. She filled out an application blank, her application was apparently approved, and Labor Relations Director Carlson told her that he would notify her as to when she should report for work. During the following week LaManna received a notice from the respondent instructing her to report for work. She thereupon gave up her other job and presented herself at the plant on the appointed day. As she sat in the reception room awaiting assignment Auferio passed by, spoke to her, and learned that she was returning to work. Mascia, her former foreman, who also came along while she was waiting, spoke to her, stated that he would like her to work for him and would try to arrange to have her assigned to his department. However, after she had waited in hour and a half the receptionist told LaMantia that Carlson had telephoned and had said that there was no opening for her and that she could not be used LaManna then insisted on seeing Aufeiio. He told her that there was no opening for her, and that she was "no longer a union member" because she had been released. While LaManna had been waiting in the reception room, new employees were being hired. It appears from the foregoing recital that LaManna had already been hired and was discharged before being put to work. The respondent, while it denies discharging her, offered no evidence in explanation of the refusal to put her to work. The persuasive inference is that Auferio, who, as has been related hereto- fore, had previously unsuccessfully solicited her to abandon the Union (see page 7 supra) upon learning that she was being rehired, countermanded Carl- son's action. The evidence refutes the assertion of Auferio that there was no 31 Thus, for example, plant rules required that notices of absences be in writing. These rules ate more particularly discussed in connection with Granieri's discharge, infra. 517319-49-vol 80--45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work for her . The only reasonable conclusion that can be drawn is that she was refused assignment because of her union activity . It is so found 64 c. Yola Granieri was also one of the 1944 strikers not reinstated until after the April 5, 1945, agreement. Just prior to July 19, 1945, Granieri became ill and was consequently absent from work for 3 days. Granieri testified that she reported her illness by tele- phone to a person in the plant office, whom she could not identify , but who assured her that it would be alright. In addition, she notified her steward, Russo. A plant rule enacted on May 16, 1945, required notices in writing to the personnel department of absences for 3 or more days, under penalty of loss of seniority. That Granieri actually called the plant is indicated by the fact (undisputed) that on the second day of her absence her foreman, Ocuto, approached Russo and asked why she did not send him a letter. Russo said that Granieri could not be in for another 2 days, but that if it was necessary, he would have her give written notice. After some discussion Ocuto told Russo that under the cir- cumstances verbal notice would be sufficient and a letter was unnecessary. On the following day, however, when Granieri reported for work, Ocuto dis- charged her for the stated reason that she had failed to give written notice of her absence. When Russo protested that this action was contrary to Ocuto's assurances, Ocuto admitted it but stated that he had orders to discharge her. The respondent offered no evidence in explanation of Granieri's discharge. Carlson apparently did not make the decision to discharge her, since he did not testify with respect to her separation. Consequently the decision was either made by Ocuto, or by one of Ocuto's superiors. In either event, Carlson was apparently bypassed, in violation of the April agreement. Whatever the technical regularity of Granieri's discharge the repudiation of Acuto's assurances was at best highly arbitrary. By assuring Russo that written notice was unnecessary, Granieri was deprived of the opportunity to comply with the requirement. The discharge occurred at the time Auferio was beginning to assert veto power over Carlson's area of authority-one of the conditions which led to Carlson's resignation-and while the respondent, intent on driving the Union from the plant at the expiration of the contract, was refusing to bargain with it. Finally, both the bargaining contract and the plant rule requiring written notices provided that the penalty for unnoticed absences of 3 days was loss of seniority-not discharge 55 In view of the respondent's apparent animosity to the most active 1941 strikers, the arbitrary circumstances of her discharge, and the respondent's general animosity to the Union, it is found that Granieri was discharged because of her union affiliation and activity. 64 Whether LaManna was hired and discharged , or simply refused employment, the result is the same. Refusal to employ because of union affiliation and activity is equally as discriminatory as a discharge for the same reason. Phelps Dodge Corp ., 313 U S 177. 66 While the respondent contended , and there is some testimony by International Repre- sentative Newman in support of this contention , that loss of seniority deprived an em- ployee of status and hence made him amenable to discharge , this construction seems strained . If the contract was intended to permit discharge for the offense it would have been much simpler to state so-rather than to adopt the roundabout and circuitous, method which the respondent suggests . In any event , whatever the proper construction, the only persons discharged in asserted enforcement of the requirement for written notice appear to be Granieri and Aldorasi. E. A. LABORATORIES, INC. d. General conclusions 693 It is found that by discharging Bria, Scaccio, Tartamella, Barbieri, Stanco, Aldorasi, LaMantia, and Granieri,66 for their union membership and union or concerted activity, the respondent discriminated in regard to their hire and tenure and terms and conditions of employment, discouraged membership in the Union, and interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. The alleged discriminatory discharges a. Marie Traynor. The complaint alleges that Traynor, a 1944 striker, was discharged on October 26, 1944. There is no evidence, however, that she was discharged. Traynor's denied testimony is that in December 1944 she applied for reinstatement to Assistant Superintendent Stango, who told her that he would let her know. During most of the period thereafter, however, she did not desire to work because her husband had secured more remunerative employ- ment. For some reason which is not explained she was not recalled in April 1945. It is doubtful that the failure to reinstate Traynor in December 1944, if it occurred, or the failure to recall her thereafter, was discriminatory. She was a probationary employee and her union activity was confined to picketing twice a week over a period of 3 weeks. The failure to recall her in April 1945 was apparently an oversight and seems to have gone unnoticed both by the Union and Traynor herself. There being no persuasive basis for inferring an intent to discriminate against Traynor, it will be recommended that as to her the complaint be dismissed. b. Frank Pravata, an active picketer in the 1944 strike, and up to 1943 a union official, was reinstated in April 1945 to his old job, which was a piece rate operation. After about a month, however, he began to earn less than he had formerly. Pravata attributed this decrease in earnings to faulty materials and to the fact that he was assigned to more small jobs than he had had there- tofore. When he complained of being given too many of these jobs his foreman told him that someone had to do them. Finally, after further complaints to Assistant Superintendent Stango and threats to quit, Pravata resigned his position. The Board's contention is that conditions were made so difficult for Pravata, because of his prominent union activity, that he was compelled to quit. Pravata's union activities had been noticed by Auferio." However, during the early part of 1945, with war contracts being terminated, operations in the plant were in a state of some transition. The condition of which Pravata complained extended over a period of only 2 weeks, hardly sufficient time to negative the possibility that the situation was unique and transitory, or that other employees were not experiencing similar difficulties. Moreover, there is no basis for imputing re- sponsibility to the respondent for defective materials. It is therefore found that the evidence does not warrant a finding that Pravata was discriminatorily assigned less remunerative work. It will be recommended that as to him the complaint be dismissed. 68 Constituting Group I , in Appendix A, hereto attached. 67 Thus, during the 1944 strike he had refused Auferlo's request that he assemble strikers in the warehouse without the knowledge of the Union so that Auferlo could address them. In addition, at the meeting in the Union hall In December 1944, Auferio had pointed out Pravata as one of the men he did not want back. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above , occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and have led and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the respondent has engaged in unfair labor practices it will be recommended that it cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. 1. Offers of reinstatement and reimbursement for lost wages It has been found that the respondent discriminated in regard to the hire and tenure and terms of conditions of employment of the employees named in Appen- dix A, Groups I, II, and IV, thereby discouraging membership in the Union. It will therefore be recommended that as to the employees discriminated against in the 1£44 strike, Group IV, the respondent make them whole for any loss of wages from October 25, 1944, to the date of their reinstatement, less their net earnings during that periods" There being doubt as to the exact (late on which many employees in this group were reinstated or offered reinstatement, the actual date can b. ascertained in compliance proceedings if the parties are unable to reach agreement. With respect to the employees named in Group I (individual discharges in 1945) and Group II (those discriminatorily refused reinstatement after the 1945 strike) it will be recommended that the respondent offer them immediate and full reinstatement to their former or substantially equivalent positions (Chase National Bank, 65 N. L. R. B. 827), without prejudice to their seniority or other rights and privileges, dismissing if necessary any employees who have been hired since August 28, 1945, and make said employees whole for any loss of wages suffered by reason of the disciiinination against them, by payment to each of them of a sum of money equal to the amount he would have earned as wages from the date of the discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings during said period. (Crossett Lumber Co., 8 N. L. R. B. 440.) There remains for disposition the cases of the employees named in Group III of Appendix A : those who did not individually seek reinstatement after the 1945 strike. As has been indicated heretofore, some of these persons refrained from applying because they concluded that such action would be futile in view of the rejection of many persons prominent in the Union or active in the strike ; a not unreasonable conclusion under the circumstances. As to others in this group theie is no explanation for their failure to seek reinstatement. These as The respondent contends that it was unable to provide employment for all the strikers during the last quarter of 1944 because of cutbacks in production . This appears to have been the fact The remedy recommended herein allows for such a contingency . The exact amount due any employee-if any-can be ascertained in compliance proceedings. It is also recommended that the Board reserve the right to modify the back pay and reinstate- ment provisious if necessary by reason of any future change in conditions, or if necessary to define or clarify their application to any set of circumstances not now apparent Allis-Chalmers Mfg. Co., 70 N. L. R. B. 348, and cases there cited. E. A. LABORATORIES, INC. 695 latter, however, may also have been convinced of the uselessness of application. Yet they may be desirous of returning to the plant if their fellow strikers are reinstated. The respondent's prior actions make it likely that, if they apply in the future, they will be rejected. Consequently, it will be recommended as to all the persons in Group III, that if they request reinstatement within 7 days after service of this Intermediate Report, the respondent offer them such re- instatement in the same manner as provided above for those named in Groups I and If. Such employees shall be made whole, however, only for such loss of wages as may accrue by reason of a refusal by the respondent to reinstate them within 7 days after application. If no application is made within the said period the respondent shall be under no further obligation to offer them rein- statement. It is found that such a remedy will effectuate the policies of the Act and is necessary for the adequate correction of the effects of the respondent's unfair labor practices. Matter of Helena Rubenstein, Inc., 42 N. L. R. B. 898, 919; Matter of Anneriean Bread Company, 44 N. L. R. B. 970. 2. Disestablishment of the Association It has also been found that the respondent dominated and interfered in the formation and administration of the Association and contributed support to it. As has been indicated, the Association did not function after its organization. It was, however, organized ; it had officers and literature, solicited members and held at least one meeting . It was established, sought memberships, and pur- ported to be a going concern. It has never been disestablished or formally gone out of existence. Because of the respondent's domination, interference and sup- port, the Association is incapable of serving the respondent's employees as an independent bargaining agency. Although presently dormant, it, or a successor to it, may be revived as an instrument to thwart self-organization among the respondent's employees. Consequently until it has been effectively disestablished it constitutes a potential obstacle to the full exercise of rights guaranteed under the Act. It will therefore be recommended that the respondent completely dis- establish and refrain from extending any recognition to the Association as a bargaining respresentative for any of its employees. 3. Collective bargaining Since it has been found that the respondent has refused to bargain collectively with the Union, it will be recommended that the respondent, upon request bar- gain collectively with it. The respondent urges in its brief that an order to bargain should be withheld because the unit has increased substantially in size since the time of the strike. Mere increase in the size of the bargaining unit does not necessarily, however, affect a union's representative status. It is to be assumed that under normal conditions a bargaining .representative will secure some adherence from new employees. While under different circumstances the polices of the Act might be effectuated by withholding an order to bargain, such an order is the only effective method of dissipating the effects of unfair labor practices where, as here, the refusal to accept, accord recognition to, and bargain with the employee repre- sentatives is the very core of the unlawful practices. When the effects of those practices have been dissipated, if the respondent has a good faith doubt as to the Union's representative status there are appropriate means available by which the issue may be raised. The respondent also asserts that no order to bargain may issue because the local union 's charter has been withdrawn by the Inter- 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD national. However, the respondent also refused to bargain with the Interna- tional, which was a party to the contract and which continues to exist. The local will no doubt be reestablished and its charter returned when the Union is rein- stated in the plant. If not, the respondent may petition for modification of the order when it is prepared to comply with it. 4. General cease and desist order It will be seen from the foregoing findings that the various means employed by the respondent to frustrate self-organization among its employees embrace most of the traditional methods of combating employee organization. This conduct has continued over a period of several years, and the commission of other unfair labor practices is consequently to be anticipated. Unless the order is coextensive with the threat, the preventive purposes of the Act will be defeated. In order, therefore, to make effective the interdependent guarantees of Section 7, to pre- vent a recurrence of unfair labor practices, to minimize industrial strife which burdens and obstructs commerce, and to effectuate the policies of the Act, it will be recommended that the respondent be ordered to cease and desist from infring- ing in any manner upon the rights guaranteed in Section 7 of the Act. 5. Misconduct of several strikers Three employees, Amelia Buscemi, Lucy D'Onofrio, and Philomena Liotta, were discriminatorily denied reinstatement about the beginning of October 1945. Subsequently they were convicted in the New York City Court of Special; Sessions for assault upon a forelady committed on the picket line during the course of the 1945 strike. The crime of which they were convicted was simple assault-a misdemeanor. The sentence imposed was a $50.00 fine on each defendant. The respondent contends that the Board should not direct their reinstatement. The assault was not the motivation for the respondent's refusal to reinstate the three employees. It is therefore only necessary to consider whether the Board should exercise its discretion and refrain, despite the dis- crimination from ordering them reinstated. Since the three employees were convicted of assault upon a supervisor, the offense appears to be of sufficient gravity to warrant denial of their reinstatement. It will be so recommended. (Cf. Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472, 479; Berkshire Knitting Mills, 43 N. L. R. B. 9)5, 1003.)"B 6. Recommendations as to dismissal of certain allegations of the complaint It will be recommended that the complaint be dismissed with respect to the allegations that the respondent committed unfair labor practices by (1) unilater- ally discontinuing payment to union officials for time spent during working hours "Counsel for the Board offered to prove, by the testimony - of Buscemi , D'Onofrio, and Liotta, that they had not been guilty of the assault. This testimony was rejected. That ruling, and the above rationale, are based upon the applicable law and Board policy at the time of the hearing, which govern the disposition of this case. That law and policy was that the Board would not, in this type of situation, retry de novo, with possible contradictory result, issues of violation of local law which had been adjudicated by local courts of competent jurisdiction , and that the question whether breaches of the peace constituted sufficient ground for denying reinstatement to strikers was to be determined from the fact of conviction or acquittal, the character of the crime, and the extent of the sentence . Republic Steel Corporation v. N. L. R. B.; Berkshire Knitting Mills, supra. The Labor-Management Relations Act, 1947 , passed June 23, 1947 , however , appears to change the prior law in this respect. ( House of Representatives Conference Report, 80th Congress , Report No . 510, p. 39.) E. A. LABORATORIES, INC . 697 adjusting employee grievances; (2) causing foremen to engage in production work; (3) unilaterally reducing piece rates during August 1944 and early 1945; (4) refusing, upon request by Sorenson, at the meeting of the tool and die employees in October 1945 to reinstate all the striking employees; and (5) by discharging Marie Traynor and Frank Pravata. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAw 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, C. I. 0., and Local 844 thereof, affiliated with the Congress of Industrial Organizations, and E. A. Laboratories Employees' Asso- ciation, are labor organizations within the meaning of Section 2 (5) of the Acct. 2. By discriminating in regard to the hire and tenure and terms and condi- tions of employment of the employees named in Appendix A attached hereto, Groups I, II and IV, thereby discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., and in Local 844, thereof, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 3. The strikes of September 22, 1944 and August 28, 1945, were caused, and subsequently prolonged, by the respondent's unfair labor practices. 4. By dominating and interfering with the formation and administration of E. A. Laboratories Employees' Association, and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 5. All employees of the respondent employed at its Brooklyn plant, exclusive of clerical, bookkeeping and other office employees, employees in the cost and accounting, time study, personnel, engineering, experimental, model makers, and sales departments, draftsmen, timekeepers, watchmen and guards, two office cleaning employees, inspectors and testers on all defense items, admin- istrative and executive officers, superintendents (including building maintenance superintendent) and assistant superintendents, general foremen (including service departments foremen), department foreladies, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 6. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, C. I. 0., and Local 844 thereof, was on August 5, 1944, and at all times thereafter has been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 7. By refusing to bargain collectively with the above-named labor organiza- tion as the exclusive representative of its employees in the appropriate unit the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 8. By interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in, unfair labor practices within the meaning of Section 8 (1) of the Act. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 10. The respondent has not engaged in unfair labor practices by (1) unilat- erally discontinuing payment to union officials for time spent during working hours adjusting employee grievances; (2) causing foremen to engage in pro- duction work; (3) unilaterally reducing piece rates during August 1944 and early 1945; (4) refusing an application for reinstatement of all the strikers in October 1945; and (5) by discharging Marie Traynor and Frank Pravata. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, it is hereby recommended that E. A. Laboratories, Inc., Brooklyn, New York, its officers, agents, successors and assigns, shall : 1. Cease and desist from: (a) Discouraging membership in International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., and in Local 844 thereof, or any other labor organization of its employees by discharging or refusing to reinstate any of its employees, or in any other manner discriminat- ing in regard to their hire and tenure of employment, or any term or condition of employment; (b) Dominating or interfering with the administration of, or contributing financial or other support to, E. A. Laboratories Employees' Association, or any other labor organization of its employees ; (c) Refusing, upon request, to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C. I. 0., and Local 844 thereof, as the representative of its employees in the appropriate unit; (d) In any other manner interfering with, restraining or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America, C. I. 0., or Local 844 thereof, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of col- lective bargaining, or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds neces- sary in order to effectuate the policies of the Act : (a) Unless already reinstated, offer to the employees named in Appendix A, Groups I and II, immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority and other rights and privileges, in the manner set forth in the section entitled "The remedy," above; (b) If applications for reinstatement are made by the employees named in Group III, Appendix A, within 7 days after service of this Intermediate Report, offer to such employees similar reinstatement to that provided in (a) above; (c) Make whole the employees named in Appendix A for any loss of wages in the manner provided in the section entitled "The remedy," above; (d) Completely disestablish and withhold recognition from E. A. Labora- tories Employees' Association as the representative of any of its employees ; E. A. LABORATORIES, INC. 699 (e) Upon request bargain collectively with International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, C . I. 0., and with Local 844 thereof, as the representative of its employees in the appropriate unit, and if agreement is reached embody such understanding in a written agree- ment (f) Post immediately at its plant at Brooklyn , New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice , to be furnished by the Regional Director for the Second Region, after being duly signed by the respondent , shall be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty ( 60) consecutive days thereafter , in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered , defaced, or covered by any other material ; (g) File with the Regional Director for the Second Region on or before ten (10) days from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report the respondent notify said Regional Director in writing that it will comply with the foregoing recommendations , the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent committed unfair labor practices by (1) unilaterally discon- tinuing payment to union officials for time spent during working hours adjusting employee grievances ; ( 2) causing foremen to engage in production work; (3) unilaterally reducing piece rates during August 1944 or early 1945; ( 4) refusing an application for reinstatement of all the strikers in October 1945; and ( 5) dis- charging Marie Traynor and Frank Pravata. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board , pursuant to Section 203.38 of said Rules and Regulations , file with the Board , Rochambeau Building , Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period , file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs , the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director . Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request must be made in writing to the Board within ten ( 10) days from the date of service of the order transferring the case to the Board. CHARLES W. SCHNEIDER, Hearing Examiner. Dated July 14, 1947. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Hearing Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL BARGAIN collectively upon request with the INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. 0., and LOCAL 844 thereof, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All employees employed at the Brooklyn plant exclusive of clerical, book- keeping and other office employees, employees in the cost and accounting, time study, personnel, engineering experimental and model makers, and sales de- partments, draftsmen, timekeepers, watchmen and guards, two office cleaning employees, inspectors and testers on all defense items, administrative and executive officers, superintendents (including building maintenance super- intendent) and assistant superintendents, general foremen (including serv- ice department foremen), department foreladies, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. WE HEREBY DISESTABLISH E. A. LABORATORIES EMPLOYEES' ASSOCIATION as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recog- nize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE WILL OFFER to the following named employees immediate and full re- instatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the dis- crimination : Group I Yola Granieri Americo Aldorasi Frank Scaccio Terry Bria Pat Barbieri Mary LaManna Tony Tartamella Joseph Stanco Group II Elsie Lenhart James Ruggerio Ignazzio Chiappone Frances Pintouri Albert Ruggerio Thomas Nunez Connie Benvenuto Tomaso Mancuso John Porcelli Pauline Lombardo Michael Monte Alfonse Santoro John Gurzillo Joseph Gionta Stella Ambrazatis Catherine Ultimo James Lombardo Angela Indimeo Carmella Vona Joseph LaPorta Gilbert Scandale E. A. LABORATORIES, INC. 701 Group II-Continued Oliver Denicola Patsy Deardo Mary Long Antoinette Basile Julia Barnett Mrs. Frances Rug- Nicholas Cusanelli Teresa Solimine gerio Julia Zomehick Josephine Albanese Egon Sorenson WE WILL also, upon application by them within 7 days, offer to the following named employees full reinstatement to their former or substantially equiva- lent positions without prejudice to any seniority or other rights or privileges previously enjoyed: Group III Mary Quagliari N. Cusanelli D. Villani Anthony Graziose T. Sassano Clara O'Neill Louise Rosati A. Bitterman Mary Chetirtso Louise Solimine Constance Gurzello Alphonse Santuro James DeMattei J. Ariani L. Napolitano Patsy Diorati David Blackburn Rose Baldizzi Ralph Cherico M. Morgan R. Prescito Louis Luciano Mary Bianco J. Licori Joseph Carolla J. Ciro Roberto Costantino D. Ambrosino S. Martino N. Pope P. Auzelo J. Braccia Umberto Dallasanuro R. Grella R. Catastini Gaspar Russo E. Vonnes WE WILL make whole the following named employees for any loss of pay suffered as a result of the discrimination: Group IV S. Greenstein Mrs. M. De Cola E. Sorenson C. Pfaff J. Oliverio A. Leomonda C. Castoro B. Terruso L. Forte C. Wernet Miss L. Lezzo P. Alexxandrelll A. Carruba Mrs. A. Greenman S. Costanzo J. Vasaturo L. Ambrosino J. Russo J. Di Pietro J. Lo Preto P. Oehrke A. D'Ambrosio Mrs. I . Schwartz N. Pojero T. Grieco Mrs. F. Ruggerio V. Zipser M. Grazioso Miss R. Macchio D. Limongelli 1. Nagler Miss C. Fazio J. Laieta C. Pagnozzi Mrs. M. Yovino J. Ruggiero F. Ardolino Mrs. A. Provenzano J. Raccipio N. Viglione J. De Mattei T. Nunez D. Limongelli J. Caroleo P. Barbieri S. Rothschild Mrs. A. Munari J. Stanco T. Caliguri A. Graziose Miss J. Albanese B. Tomaino E. Prusky Miss M. Guadagno P. Colasuono P. Meier J. Fusco M. Kuka J. Stubel Miss C. Frederico F. Martano J. Zelez Miss M. Bianco J. Gurzillo J. De Elia Miss S. Palmeri Miss C. Benvenuto P. Karle D. Lisita 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Group IV-Continued Miss M. Fiore J. Cingari Miss A. Loguerici.o L. Cocchi A. Prudente Miss S. Palmeri Miss Y. Savo S. Martino T. Stango Miss A. Casentino It. Brescia J. Zamparelli Mrs. C. Capobianco Miss L. D'Onofrio Miss J. Beninato Miss R. Chiusano Miss J. Zomchick J. Cassano Miss A. Aloi Miss E. Siema V. Minichiello Miss S. Rubino Miss 0. Savo M. Fasano P. Kessler Miss R. Perkal A. Gabriele Mrs. A. Marelli A. Vetere F. Amatucci N. Crisci Miss N. DiTommasco Miss E. Palo R. Cherico D. Fischetti Mrs. Z. Philp A. Marchiano J. Mannone Mrs. It . Vannata F. Pravata J. Grolz M. Guarno T. Sassano J. Zupancic Miss J. Cinque Mrs. S. Ambrazai.tis J. Lombardo P. Coveli Mrs. E. Lenhart R. Leone Mrs. M . Chetirko Miss G. Michiewlez V. Impellizzeri Miss M. Long A. Tartamella Miss L. Caputo Mrs. M . Credidio T. Mancuso N. Abbondandolo N. Nipitella Miss R. Kavanaugh Miss C. Gurzillo Miss A. Wurtzel J. Scullion F. Carnavale Mrs. A. Indinemao Miss F. LaRosa D. Presutti M. Monte S. DeFigueora N. Cusanelli J. Marino A. D'Alessandro P. Fasanello D. Principe J. Zello M. Mira P. Guidice A. Angelino Mrs. J. Douglas L. Liguri J. Finno F. Robleto C. Mingacci P. DiLorenzo A. Bitterman J. Ursino B. M. Doud A. Zito Miss J. Campo J. Porcelli J. lofrido S. Curcio S. Marrese F. Sorrentino Miss It. Tortorice L. Medaglia Mrs. J. Karloff C. Grella S. Bifalco L. Malinosky Miss J. Bifulco Miss Y. DiLleto 0. Denicola Miss P. Bock J. Di Napoli V. Forto Miss M. Ferrarelli J. Mattia S. Picano Miss M. Morgan Mrs. B. Feirman C. Loguerico A. Del Monico Miss M. Albarella P. Diorato Mrs. J. Langone J. Florio J. Gionta Miss D. Crispe Miss It. DiRienzo L. Ricciardi Mrs. P . Marrazzo Miss A. Bisignoli J. Mami Miss L. Bonfandio Miss S. Spanipinato F. Todisco J. Borelli Miss J. Braun A. Pandolfo Miss S. Spitz Miss J. Esposito H. King Mrs. L. Russo S. Sarro Miss J. Grande Miss S. Plisken A. Bruno Miss J. Fucci Miss M. Abenante Mrs. J. Braccia Miss M. Sorrentino Miss C. Eisenhauer F. Nicolette Mrs. J . Agapito Miss C. Ilecito Miss J. Soldano Miss F. Cappellino Miss S. Bucci R. Castastini Miss R. Baldizzi Miss J. Girimonte E. A. LABORATORIES, INC. 703 Group IV-Continued Miss M. lannella Miss T. Aloi N. lannuzzi Miss I. Novak Mrs. R. Castellano R. Mathiew Miss N. Bianco Miss M . Luchetti D. Candreva Miss M. Brentano Miss A. Pavone Dominic Pascucci Mrs. J . Calligani Miss D. Keogh A. Ruggiero Miss M. Crolius Miss C. Carone J Bolino It. Girolano Miss M. Lezzo Mrs J. Barrett Miss A. Capelli Miss L. Cardone F. Ruggiero Mrs. A. Malfi Miss J. Jardula C Gioia Miss J. Genova Mrs. K . Casella A. Santora Miss I. DePaolo Mrs. A. Locano Miss P. Liotta Miss P. Becker Miss L. Pagano Miss E . Imbriano Miss J. Ciro Miss J. Froda Miss E. Grande Miss V. Esposito Miss M. Pugliese Miss M. Giglio Miss M. Silvis Miss F. Guinta Mrs. M. Mattia Miss A. Sergio Miss J. Maniscalco Miss F. Stasi Mrs. F. Colacino S. Marino Mrs. R . Tartonello, Miss E. Troucchio Miss I. Cangero G. May T. Markiewicz D. D'Erecita E. Maiorano Miss F. Finamore Miss R . Auciello Mrs. G . Grolla Miss M. DeCarlo Miss J. Licari Miss E. Curcio, Miss H. Trinkunas Miss D. Vicario Miss C. Savillo Miss V. Ruggiero Miss R. Episcopo Miss M Minella Miss J. Cascio Miss C. Vitrano Miss E Venice Miss D. Carlino P. Lobosco F. Arpino Miss E. Femiano Miss T. DeRosa Miss Y. Granieri Miss M. Benvenuto Mrs. R . Misiano Miss N. Pepe Miss E. Cassano Mrs. A. Palladino Mrs. J . Grandiuette Mrs. J. Feldman Miss M . Macerino A. Ruggiero Miss T. Giommetti Miss G. Samatora Mrs. F. Castellano C. Cocchiola Miss A. Mormle A. Calabro G. Carollo Mrs. M. DeSenna Miss J. Ariani G. Giovanniello Miss M. Sekura Mrs. A. Oglesbee Mrs. M. Cerullo Miss M. Russo Mrs. A. Buscem! A. Ambrosino Miss T. Tazzetta Miss M. Cinque Mrs. T. Raffa Miss J. Laurenzano N. Bacchi A. Sgambati Miss F. Meehan Miss E. Martello, S. Fonte Mrs. G. Brecht Miss R. Dima F. Travaglini S. Occhiuto Miss J. Volta P. Angelo M. Biancardi Mrs. R . Rossini A. Pondillo D. Lagana Miss S. Adams L. Luciano D. Astore Miss A. Costa S. Scigliano Miss C. Blau J Lubrano T. Furno A Francone A. Devito Mrs. S. Campos J. Guadagno T. Cuto Miss L . Caliguri A. Bubello Miss J . l:uinta Miss R. Caputo A. DeRose Miss A.J euneweiw Miss A. Berardi Miss S. Castiglione Miss M. Maggio R. Riccio V. Leonard! F Gnidice Miss P. Paopoli J. Stillitano J. Esposito Miss V. Bastone R. Grella Gaspar Russo. Miss M. Troiano J. La Porta F. Scaccio 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Group IV-Continued A. Triano Miss L. Solimine Miss H. Ruggiero Miss M. Bottari Miss P. Lombardo Miss C. Softy A. Aldorasi Mrs. T. Bria Mrs. G. Helgerson A. Mula E. Wiehie Miss A. Cicarelli S. Iacono Miss R. Auciello Mrs. G. Hilbert L. Ruggiero Miss L. Novellino Miss A. Palmeri Miss L. Rallo Miss A. Fiorentino Miss M. Pick Miss T. Grella Miss T. Durso L. Napolitano Miss L. Rosati Mrs . R. Scuderi Miss M. Scandale Miss E. Rosenzweig J. Pavone Miss V. Lent Miss M. Curcio Miss F. Bonfandio Miss C. O'Neill E. Villolla Miss R. Sonna Miss R. Marchione J. Mascia T. Young Miss T. Pascucci Miss A. Pepe S. Grillo Miss M. Aloi Miss G . Franzose Miss M. Cirrisi Pat Melise Miss M . Caliguirl Miss R. Scala WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of the right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT, AND AGRICULTURAL IMPLEMENT WORK s OF AMERICA, C. I. 0.: or LOCAL 844 thereof, or any other labor organization, 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. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. E. A. LABORATORIES, INC., Employer. Dated------------------------- By---------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.