Intertown Corp.Download PDFNational Labor Relations Board - Board DecisionsJul 21, 195090 N.L.R.B. 1145 (N.L.R.B. 1950) Copy Citation In the Matter Of INTERTOWN CORPORATION (MICHIGAN) and RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, CIO Case No. 7-CA-158.-Decided Juily 21,1950 DECISION AND ORDER On December 23, 1949, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- arnediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended dismissal of those allegations of the com- plaint. Thereafter, both the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board 1 has reviewed the rulings of the Trial Examiner at the h4aring and finds that no prejudicial error was committed.2 The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this proceeding to a three -member panel ( Chairman Herzog and Members Houston and Murdock]. 2 The Respondent contends that the Trial Examiner should have passed initially upon the question of jurisdiction in an Intermediate Report confined to that issue . The cases eited by the Respondent in support of this contention, however, hold only that a Trial Examiner may dismiss a case on jurisdictional grounds alone ; they do not hold that where jurisdiction is contested , the Trial Examiner is required ,to rule on it first, or that he Cannot hear the merits , reserving his determination of jurisdictional questions. We therefore find no merit in this contention. As to the Respondent ' s exception to the Trial Examiner ' s refusal to permit litigation of the Union 's compliance status , we have consistently held that compliance with Section 9 (f), (g), and (h) of the Act is not a litigable issue . Ray Smith Transport Company, 89 NLRB No. 134. Nor do we find error , as contended by the Respondent , in the Trial Examiner 's rulings as to evidence relating to alleged violations of Section 8 (b) (1) (A ) and 8 ( b) (4) (B) by the charging union . Such evidence was received in the form of testimonial offer of proof. No violation of Section 8 (b) (4) (B ) is established as the offer of proof in this respect relates solely to action at the scene of the primary dispute. Cf . The Pure Oil Company, 54 NLRB 315 . Our disposition of the offer of proof relative to violation of Section 8 (b) (1) (A) is set forth in the section of this Decision entitled "The Remedy." 90 NLRB No. 151. 1145 P 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We find, as did the Trial Examiner, that the operations of the Respondent, which is engaged primarily in the operation of an office building, affect commerce, and that the policies of the Act will be effectuated by the exercise of our jurisdiction.3 The basis for this finding is set forth in considerable detail in the Intermediate Report. We note especially, in this connection, the fact that D. F. Broderick, president of the Respondent, controls the two insurance company tenants, whose activities clearly affect commerce within the meaning of the Act,4 and which, in turn, control the Respondent, and that those companies have their home offices in this building. 2. It is clear that from the time it learned of organizational activ- ity among its employees, the Respondent embarked upon a campaign to thwart the Union's efforts and to create an atmosphere in which free expression of the employees' desires would not be possible. Especially significant in this connection were : The Respondent's dis- criminatory discharge of Marion Burger,5 Pauline Novinskey, and Hazel Fekete in violation of Section 8 (a) (3) of the Act, and its granting of wage increases, giving gifts to employees, promising fur- ther benefits; and on numerous occasions interrogating 7 its employ- ees about their union sympathies, in violation of Section 8 (a) (1) of the Act. The Respondent also refused to bargain with the Union after it had been designated by a majority of the employees in an appropriate unit. The Trial Examiner found that such refusal dated from October 1, 1948, when the Respondent received the first union letter. In this letter the Union claims to represent a majority of the employees, sug- gests an election to be held by the State Board, and requests a meeting with the Respondent, but does not clearly request recognition or bar- gaining. In view of our decision in The Solomon Company," it might 3 In his description of the use of space in the Respondent 's building , the Trial Exam- iner inadvertently stated the amount of space occupied by doctors and dentists to be 53,058 square feet ; the correct figure is 55,058 square feet . Similarly , the amount of space occupied by optical companies is 1,841 and not 1,481, square feet. The Trial Examiner also inadvertently stated that 65.8 percent of Dearborn National Insurance Company prem- iums in 1948 were on insureds in Michigan ; the correct figure is 56 . 8 percent. These typographical . errors do not. affect the Trial Examiner ' s conclusions or our agreement with them. 4 Tri-State Casualty Insurance Company, 83 NLRB 828. We do not pass upon whether the various enterprises located in the Respondent 's build- ing, which the Trial Examiner indicates are within the scope of our jurisdiction , are so in fact. 5In discussing the discharge of Burger , the Trial Examiner states that Bonin, the Re- spondent 's superintendent , was aware that Polish women do not get along well with women of other nationalities . This was merely a reference to a statement to this effect made by Bonin himself at the hearing. 6 Macon Textiles, Inc., 80 NLRB 1525 ; Hudson Hosiery Company, 72 NLRB 1434. 7 See particularly , in connection with the Respondent ' s use of the open ballot : Ken- tucky Utilities Company, Inc., 83 NLRB 981; Stocker Manufacturing Company, 86 NLRB 666. 84 NLRB 226. INTERTOWN CORPORATION (MICHIGAN) 1147 appear that this letter did not constitute a sufficiently unambiguous request for bargaining. However, as the Respondent construed the letter as a request that it meet with the Union as the bargaining repre- sentative, we shall, although the matter is not free from doubt, adopt the Trial Examiner's finding of a refusal to bargain on October 1, 1948. In any event, it is clear that the Union's second letter, received by the Respondent on October 23, 1948, made an unequivocal request for bargaining, and that on and after that date, the Respondent continued its refusal to bargain with the Union in violation of Section 8 (a) (5) of the Act. We therefore find, as did the Trial Examiner, that the Respondent's threats, promises of benefit, interrogations, discharges, and refusal to bargain, in violation of Section 8 (a) (1), (3), and (5) of the Act, caused the strike of October 25, 1948, and that the strike was con- sequently an unfair labor practice strike. The Respondent contends that as the Union, in its October 22 letter, set an October 26 deadline for the Respondent's consent to a State Board election, it was required to await the expiration of that period before striking. We find no merit in' this contention. The immediate cause of the strike appears to have been the Respondent's unfair labor practices on October 24, and the Respondent's campaign to destroy the Union cancelled any obligation the Union might otherwise have had to await the expiration of its deadline. We reject also the Respondent's further contention that the strike was illegal because the Union did not comply with the strike vote formalities of the.Michigan statute. The courts have consistently held that the provisions of State statutes inconsistent with the Act are not controlling upon us,9 and indeed the very statute invoked by the Respondent has been recently invalidated by the Supreme Court.10 3. We agree with the finding of the Trial Examiner that the Re- spondent discriminatorily denied reinstatement to the nine striking employees who applied on December 8, 1948. 4. As set forth in the Intermediate Report, picketing of the Re- spondent's building ended about December 25, 1948. On October 29, 1948, the Union had filed with the Board a charge alleging violations of Section 8 (a) (1), (3), and (5) by the Respondent; and, on January 25, March 7, and May 31, 1949, it filed amended charges. On April 27, 1949, the Union wrote to the Respondent requesting reinstatement for all the striking employees, including the 9 who had already made, application and about 27 others. The Respondent made 0 Hill v. Florida, 325 U. S. 538. Cf. Dalton Telephone Company, 82 NLRB 1001; Ep- pinger & Russell Co., 56 NLRB 1259. 10 Autom obile Workers Union v. O'Brien, 339 U. S. 454. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no reply to this request. The Trial Examiner found that as to this latter group, there was serious doubt that they still retained their employee status, and, therefore, that there was no unfair labor prac- tice committed by the Respondent in failing to reinstate them. For the reasons set forth below, we do not agree. On November 3,1948, a few days after the strike began, and while the Respondent's building was still being picketed, the Respondent sent a notice to each striker, which was headed "Termination," and with which was enclosed the employee's withholding tax receipt. By regu- lation,1' these receipts are not to be sent before either the end of the calendar year or the termination of employment. Furthermore, the Respondent testified that it considered the strikers who applied for reinstatement on December 9 as new applicants for employment. It appears.from this that the Respondent intended its November 3 letter to sever its employment relationship with the strikers. It cannot therefore be said that these termination notices were mere "tactical maneuvers" 12 designed to coerce the employees into returning to work. We therefore find that on November 3, 1948, the Respondent discrimi- natorily discharged its employees-who had gone out on an unfair labor practice strike. The above finding of discriminatory discharges establishes the right to reinstatement of these striking employees. Even absent such a finding, however, we would order their reinstatement, as we do not agree with the Trial Examiner's finding that the strikers had lost their employee status prior to the request for their reinstatement on April 27, 1949. This finding is apparently based upon an assumption that the removal of the picket line, on or about December 25, 1948, indicated abandonment of the strike. It does not follow, however, from the fact thatpicketing had been discontinued, that the strike had been abandoned, and there is no clear evidence that the strikers in- tended, when they stopped picketing, to abandon the strike. On the contrary, it would appear, from the charges and amended charges which were filed during the period in question, that the Union was seeking to remedy the unfair labor practices which had caused the strike through Board procedures rather than by a picket line. Therefore, whether we regard the strikers as having been discrimi- natorily discharged, or as continuing unfair labor practice strikers, we find in any event they had retained their right to reinstatement upon application, and, consequently, that the Respondent's refusal to rein- state them on April 27, 1949, was violative of Section 8 (a) (3) and (1) -of the Act. 26 U. S. C. 1625 (a). 3z Cf. Rockwood Stove Work8, 63 NLRB 1297. INTERTOWN CORPORATION (MICHIGAN) 1149 The Remedy Having found, contrary to the Trial Examiner, that the Respond- ent discriminatorily denied reinstatement to those strikers whose first application was made on April 27, 194:9, we find it necessary to order their reinstatement with back pay. We have also found that these strikers were discriminatorily discharged on November 3, 1948, while they were on strike. , Under these circumstances, we shall require the Respondent to make these strikers whole for their losses in earnings from April 27, 1949,13 the date on which, by applying for reinstate- ment, they expressed their desire to return to work and to terminate their status as unfair labor practice strikers, to the date of the Respondent's offer of reinstatement. We agree with the Trial Examiner's findings with respect to the three discriminatory discharges and the discriminatory refusal to reinstate the nine strikers who applied in December .1948, and shall therefore require the Respondent to reinstate all these individuals with back pay from. the dates of their discharge, and their application for reinstatement, respectively, to the date of the Respondent's offer of reinstatement. Since the issuance of the Trial Examiner's Intermediate Report, however, the Board has adopted a method of computing back pay different from that prescribed by the Trial Examiner.- Consistent with the new policy we shall order that the loss of pay be computed on the basis of each sepa.rat calendar quarter or portion thereof during the period from the Respondent's discriminatory actions to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the first day of Janu- ary, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which the employee would normally have earned for each quarter or portion thereof, his net earnings,15 if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liabil- ity for any other quarter. 11 hi'assey Gin and Machine Works, Inc., 78 NLRB 189; Kallaher and Mee; Inc., 87 NLRB 410; Alside, Inc., 88 NLRB 460. In accordance with our usual practice, the period from the date of the Intermediate Report to the date of the order herein will be excluded in computing the amount of back pay to which the strikers who first applied for reinstatement on April 27, 1949, are entitled, as the Trial Examiner did not recommend their reinstatement or an award of back pay to them. 14 F. W. Woolworth Company, 90 NLRB 289. 11 Crossett Lumber Company, 8 NLRB 440; Republic . Steel Corporation v. N. L. R. B. 311 U. S. 7. 1150 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due.- The Respondent contends that the strikers are not entitled to re- instatement because of their conduct during the strike. The Trial Examiner found that the conduct alleged in support of this conten- tion was too minor to warrant the denial of reinstatement . We agree with this characterization except as to the conduct of Arthur Carl Stearns. Stearns warned Sanders , a nonstriking employee , that un- less he stayed out of the Respondent 's building , he would find his "head split open and in a gutter ... You have already been spotted ,out . . . They'll bring in a strong arm gang. . . ." Because of these threats, Sanders obtained police protection . Stearns also called em- ployee Crowe and warned him that if he did not cooperate with the strikers his body would be found in an alley. We believe that Stearns' conduct exceeded permissible bounds, and shall therefore not order either reinstatement or back pay for him.17 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby orders that the Respondent, Intertown Corporation (Michigan), De- troit, Michigan, its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in Retail, Wholesale and Depart- ment Store Union, CIO, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its ern- ployees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employ- ment; (b) Refusing to bargain collectively with Retail, Wholesale and Department Store Union, CIO, as the exclusive representative of its employees in the appropriate unit ; (c) 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 Retail, Wholesale and Depart- ment Store Union, CIO, or any. other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected 16 F. W. Woolworth Company, 90 NLRB 289. IT CP. Porto Rico Container Corporation, 89 NLRB 1570. INTERTOWN CORPORATION (MICHIGAN) 1151 by an agreement requiring membership in a labor organization, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva King, Mary Muraszewski, Albina Klenczar, Katherine Radzienta, Clarence Bulley, and Stephanie Stomber, immediate and full rein- statement to their former or substantially equivalent positions, with" out prejudice to their seniority or other rights and privileges, and make them whole, in the manner set forth in the section entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discriminatory refusal to reinstate them on Decem- ber 8, 1948; (b) Offer to Marion Burger, Pauline Novinskey, and Hazel Fekete immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole, in the manner set forth in the section entitled "The Remedy," for any loss of pay they may have suffered by reason of the Respondent's discriminatory discharge of them on October 1, 1948; (c) Offer to the employees named in Appendix A, attached hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by making payment to them in the manner provided in the section entitled "The Remedy", above ; (d) Upon request, make available to the Board or its agents, for examination and copying, all payroll record, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order; (e) Upon request, bargain collectively with Retail, Wholesale and Department Store Union, CIO, as the exclusive representative of its employees in the appropriate -unit, and, if agreement is reached, embody such understanding in a written, signed agreement; (f) Post immediately in its building in Detroit, Michigan, copies of the notice attached hereto marked Appendix B.18 Copies of said notice, to be furnished by the Regional Director for the Seventh Region (Detroit, Michigan), shall, after being duly signed by the 18 In the event that this Order is enforced by a. decree of a United States Court of Appeals, there shall be inserted before the words, "A Decision and Order ," the words, "Decree of the United States Court of Appeals Enforcing." 1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material; (g) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this. Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent discriminated in regard to the hire and tenure of employment of Helen Olech, be, and it hereby is, dismissed. APPENDIX A Harry Bell Margaret Braun Ceola Daniels Irene Derkatz Florence Glowacki Antonina Godlewski Gabriel Gory Frances Kubinski Sadie Lichtenberg Ethel Mangrum Mary Jane McClelland Cecil R. McDonald William McRae Eileen Collidge Pardue Bernice Preskop W. H. Roesler Margie Roody Irene Anna Schulti Mary Smith Helen Regina Stefanek Leo Williams Fannie May Wilson Verla M. Wolff Mary Zaluke Madeleine M. Ziarnik APPENDIX B 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 NOT in, any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, C . I. 0., or any other labor organ- ization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and INTERTOWN CORPORATION (MICHIGAN) 1153 privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. Margaret Baxter Shirley Baxter, Harry Bell Margaret Braun Clarence Bulley Marion Burger Ceola Daniels Irene Derkatz Hazel Fekete Florence Glowacki Antonina Godlewski Gabriel Gory Eva King Albina Klenczar Frances Kubinski Sadie Lichtenberg Ethel Mangrum Mary Jane McClelland Madeleine M. Cecil R. McDonald William McRae Mary Muraszewski Pauline Novinskey Eileen Collidge Pardue Bernice Preskop Katherine Radzienta W. H. Roesler Margie Roody Irene Anna Schulti Mary Smith Helen Regina Stefanek Stephanie Stomber Leo Williams Fannie May Wilson Verla M. Wolff Mary Zaluke Mary Zelepis Ziarnik WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all our employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment, and, if an understanding is reached, embody such under- standing in a written signed agreement. The bargaining unit is : All employees working in the building of the undersigned, located at 10 Witherell Street, Detroit, Michigan, except guards, professional, office, and clerical employees, and supervisors. All our employees are free to become or remain members of the above-named union or any other labor organization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act. 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 activ- ity on behalf of such labor organization. INTERTOWN CORPORATION (MICHIGAN), Employer. By ------------------------------------------- Dated-------------------- (Representative ) ( Title) 903347-51-vol. 90-74 1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Jerome H. Brooks, for the General Counsel. 11r. John T. Higgins , of Detroit , Mich ., for the Respondent. Messrs. William McClow and Leonard R . Levin, of Detroit, Mich ., for the Union. STATEMENT OF THE CASE Upon a third amended charge filed on May 31, 1949, by Retail, Wholesale and Department Store Union, C. I. 0., herein called the Union, the General Counsel for the National Labor Relations Board, herein respectively called General Counsel and the Board, by the Regional Director for the Seventh Region (Detroit, Michi- gan), issued his complaint dated June 15, 1949, against Intertown Corporation (Michigan), hereinafter called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor. practices affecting commerce within the meaning of Section 8 •(a) (1), (3), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint, with copies of the third amended charge attached, to- gether with notice of hearing, were duly served on the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that from about September 1, 1948, to the date of the complaint, the Respondent, by its officers, agents, and employees, interfered with, restrained, and coerced its employees in the exercise of their 'right to form, join, and assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities and other mutual aid. and protection, particularly by granting a unilateral wage increase, making gifts to employees, questioning employees abort union membership, activities, and sentiments, threatening em- ployees with loss of employment and other injurious consequences, encouraging its employees to establish an "independent" union and discontinue their interest in the Union, and informing certain employees that it did not intend to rehire any- one who was on the Union's picket line during a strike then being held ; refused to recognize and bargain with the Union, although the latter represented a majority of the Respondent's employees in an appropriate unit ; discharged Marion Burger and Pauline Novinskey on October 1, 1948, discharged Hazel Fekete on October 2, 1948, and discharged Helen Olech on October 8, 1948, and thereafter refused to reinstate them, because they joined and assisted the Union and engaged in con- certed activities for the purposes of collective bargaining and other mutual aid and protection ; that on about December 8, 1948, the Respondent denied a re- quest for reinstatement of 10 employees who had, among others, gone out on an unfair labor practice strike, and that on April 27, 1949, the Union requested the reinstatement of the same 10 employees and 26 others who had engaged in the same strike, but that the Respondent refused and continued to refuse to reinstate them because said employees had joined and assisted the Union and engaged in other concerted activities for the purposes of collective bargaining and other mutual aid and protection, The Respondent in its answer, duly filed on July 1, 1949, admits having given certain employees a wage increase but denies that it was for the cause alleged ; admits having made certain gifts to employees, but denies that they were for the cause alleged; and denies other acts claimed to be violations of Section 8 (a) INTERTOWN CORPORATION (MICHIGAN) 1155 (1) of the Act ;' admits the discharge of the aforesaid four employees but denies that it was for the cause alleged ; admits that it refused to recognize and meet with the Union for the purposes of collective bargaining , but denies the appro- priateness of the alleged unit and denies that the Union was the representative of a majority of the employees ; in effect, denies the alleged cause of the strike, admits the applications for -`reemployment" by some employees individually and admits receipt of the Union ' s request for reinstatement of "a number of former employees"; it also admits , in effect,2 the refusal to reinstate said em- ployees. both those who made individual request therefor and those named in the Union 's request for reinstatement "because," the answer reads , "(1) all of said employees had failed to report to work, after respondent had agreed to an election requested by the Union and the employees to determine the question of union representation; and that respondent had to employ replacements and could not discharge replacements to create jobs for such former employees, and (2) said Union had never established the right to act as bargaining representa- tive of said former employees, while they were employees of respondent." Pursuant to notice, a hearing was held in Detroit, Michigan , between July 19 and August 13, both inclusive, 1949, before the undersigned duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by representatives. All participated in the hearing and were afforded opportunity to be heard, to examine and cross-examine wit- nesses , and to introduce evidence pertaining to the issues. At the opening of the hearing the Respondent made a motion to dismiss the complaint on the ground that it was not subject to the Board's jurisdiction but in the alternative , if the Board could take jurisdiction , it should not do so.as a matter of policy in this case (1) because of the essentially local character of the Respondent's business and (2) because the Union "though purporting to seek equity under the `Labor Management Relations Act, 1947' has itself violated said Act, and does not come into equity with clean hands, in that said Union in its attempt to organize respondent 's employees in October , 1948, committed unfair labor practices , in violation of Sections 8 (b) (1) (A), and 8 (b) (4) of said Act....' The undersigned ruled that evidence on the facts concerning commerce should be taken first , independently of the unfair labor practice evi- dence, but ruled that evidence of violations of the Union would not then be taken, nor would any evidence of a violation of Section 8 (b) (4) be taken in the absence of a charge.' After the evidence on commerce was completed, the undersigned announced that he would reserve ruling thereon and rule on it in this Report . Because of the findings herein made , the Respondent ' s motion to dismiss the complaint is hereby denied. At the opening of the hearing, counsel for the General Counsel, hereinafter called G. C. counsel, moved to amend the complaint by adding two additional alleged violations of Section 8 (a) (1) : That the Respondent on about November 1 The answer sets up explanations of the Respondent ' s conduct and recites matters of evidence relied on by it which it is unnecessary to detail. The answer first makes a flat denial of the allegations of the complaint ( which alleges it personal request for reinstatement by 10 employees and a refusal by the Respondent to reinstate them ) ; the answer then by evidentiary pleading admits that it informed such employees that replacements would not be discharged [to make positions for them, pre- sumably] and that such employees would be notified if the Respondent decided to reemploy them. 2 The undersigned stated that evidence of acts constituting a violation of Section 8 (b) (1). (A) would be admissible, if at all, only as part of the Respondent's defense to the unfair labor practices. 1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '3, 1948, notified its employees then on strike that their employment was termi- nated, and that the Respondent negotiated directly with its employees concern- ing their union representative to the exclusion of the Union at a time when the Union was the exclusive representative of the Respondent's employees! The .motion was granted. On August 1, 1949, during the hearing, Respondent asked and was granted leave to file an amended motion to dismiss. The amended motion added as grounds for dismissal (I) that as to relief sought "to compel the Respondent to reemploy, with back pay, former employees who instigated and engaged in a strike on October 25, 1948, and subsequent days" the strike was illegal under Michigan's law, and (2) that the complaint was issued in violation of Section 10 (b) of the Act. As to the first ground, the undersigned ruled that that would be considered as part of the Respondent's defense to the unfair labor practice allegations of the complaint. The motion was denied as to the second ground 6 On the last day of the hearing, the Respondent moved, and was granted. per- mission, to amend its answer to reply to those portions of the complaint which had been added by amendment, and to add one paragraph substantially the same as that setting forth the first added ground in the amended motion to dismiss, and a second paragraph raising the' equitable doctrine of "clean hands" as a defense to the entire complaint. A motion by G. C. counsel to strike the amend- ment was denied. , At the end of the hearing G. C. counsel moved to amend the complaint to con- form to the proof as to names and dates and insubstantial variances. The motion was granted. The undersigned reserved ruling on the offer of General Counsel's exhibit number 124, a subpoena upon one Bernice Prezkop, pending receipt of proof of service, and granted a limited time after the close of the hearing to tender sucl4( proof. Such proof was received, upon stipulation, within the time fixed, and General Counsel's exhibits number 124 (the subpoena) and 125 (the affidavit of service) are now received in evidence. , The parties also agreed on the record to the taking of a deposition of one Dr. Dyer and, upon request, the undersigned ruled that if such deposition were received by him on stipulation before the date for filing of briefs, including any and all extensions of time, it would be received as part of the record. A depo- sition of said Dr. Dyer and a deposition of his assistant, Irene Maine, were sent to the undersigned within the time fixed for filing of briefs. Although leave to take the deposition of Maine had not been applied for in advance, her deposi- tion related to the same subject matter as that of Dr. Dyer, and as the deposi- tion was taken in the presence of the Respondent's counsel and the G. C. counsel, without objection, at the same time as the deposition of Dr. Dyer, and was covered 4 The language of this amendment was further amended by motion granted later in the hearing. The changes were not substantial. 5 The original charge was filed on October 29, 1948 , and a copy of it was served on the Respondent and received by it on November 3, 1948 . The first amended charge , filed on January 25, 1949, was served on the Respondent and received by it on January 27, 1949. The amended charge added a list of the names of certain employees allegedly refused rein- statement on December 8, 1948. The second amended charge filed on March 7, 1949, and received by the Respondent on March 8 , 1949, added one name to the list of names just 'mentioned. The third amended charge, filed on May 31, 1949, and received by the Re- spondent on June 1, 1949 , added the names of other employees who had participated in the strike and who had not been reinstated following a request by the Union for their reinstatement made on April 27, 1949. In the Respondent 's brief it accepts the ruling of the Trial Examiner as correct. INTERTOWN CORPORATION (MICHIGAN) 1157 .by the same stipulation as that of Dr. Dyer, the undersigned will receive it as part of the record along with that of Dr. Dyer. To eliminate any question that the hearing, which was closed subject to the right to submit such evidence, is in fact closed, it is now formally closed. At the close of the hearing, on request of the parties, a date was fixed for the filing of briefs and for proposed findings of fact and conclusions of law. A brief has been received from' G. C. counsel and a brief and proposed findings of fact and conclusions of law have been received from the Respondent. The Respondent's proposals are ruled upon as follows : The Respondent's proposed findings of fact are coirimingled to some extent with argument, and all the proposed conclusions of law are in argumentative form and are inseparable from the rest of the Respondent's brief. The latter cannot therefore be separately ruled upon. Of the-proposed findings of fact, I have rejected those which I found to be argumentative, those which are irrelevant, those which are not supported by the record in whole or part, those with typo- graphical errors changing the facts as shown in the record, and those which create an improper inference. In accepting others it is not my intention to do so to the prejudice of any findings specifically made herein under the heading "Findings of Fact." Those which I have accepted are accepted to the extent that they are consistent with the findings made in the succeeding section of this Report. Rejected : I (heading) ; 1.2; 1.3; 1.5; 1.10 (2) ; 1.12; 1.14 (2) (c) ; 1.14 (2) (e) ; 1.14 (3), (b), (c), (d), (f), (g), (h) ; 1.14 (4) ; 1.14 (8) ; 1.15; 1.15 (1) (a), (c) 1.15 (3) (a), (b), (c) ; 1.15 (4) (1). II (heading) ; 2.1; 2.2 (1), (3), (4), (5) ; 2.2 (7) ; 2.3;.2.4; 2.6; 2.6 (1) ; 2.6 (2) (d), (e) ; 2.6 (3) (a); 2.6 (4), (a), (b), (c), (d), (e), (f), (g), (h), (i) ; 2.6 (6) (a). III including all subparagraphs. IV, (4). V (heading). V1, 6. Accepted: All others. Upon the entire record and from his observation of the witnesses, the under- signed makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Michigan corporation, having its office and principal place of business in a 34-story office building in Detroit, Michigan, known as the David Broderick Tower, the title to which it holds, and which it manages and operates. It is engaged in the business of owning and operating real estate, operating as a real estate broker, and making loans and investments. The Re- spondent denies that it is engaged in commerce within the meaning of the Act. The General Counsel contends that the Respondent is engaged in commerce within the meaning of the Act: (1) Because many of the tenants of the Respond- ent are engaged in interstate commerce; (2) because the Respondent engages in certain interstate activities or in transactions with others who are engaged in interstate commerce; and (3) because the Respondent is one of a number of related enterprises under the control of David F. Broderick, some of which-enter- prises are engaged in interstate commerce. 1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The business of the tenants in the David Broderick Tower Among the tenants in the David Broderick Tower, hereinafter called the build- ing, which is owned and operated by the Respondent as the principal part of its business, are retail stores, occupying about 20,970 square feet, slightly more than 15 percent, of the total of about 137,961 square feet of rentable area ; insurance companies,' occupying about 21,039 square feet, also a little more than 15 percent of the total ; bus companies, occupying 2,200 square feet ; radio station, 4,101 square feet ; sales agencies , 4,722 square feet ; advertising companies , 1,065 square feet; doctors and dentists, 53,058 square feet; optical companies, 1,481 square feet ; dental laboratories, 1,734 square feet, and a miscellany of others. Of these, some are clearly engaged in business activities affecting commerce among the several States. An Awrey Bakeries retail store is located on the ground floor, and the 31st floor is used by the Booth Radio Stations , Inc., for broadcasting of programs over Station WJLB and WJLB-FM, and for sales and administration of programs. Both companies have been found by the Board to be engaged in commerce within the meaning of the Act.' Meyer Jewelry Company, occupying space in the basement, on the first floor, including a balcony ; 8 and on the, second floor, is engaged in the retail sale of jewelry, electrical appliances, radios, television, and it also has an optical depart- ment. During the year 1948,.the value of goods purchased by that company was approximately $750,000, of which about 75 percent by conservative estimate was shipped to it from points outside the State of Michigan' Its sales were mostly local. .The Fine Arts Optical Company, manufacturing eye glasses in the building, purchased approximately $30,000 worth of goods in the operation of its business in 1948, all of which came from outside the State of Michigan. Its sales are all local. Among the sales agencies are agents of manufacturers whose plants are located outside the State of Michigan and an exporter. In the operation of the building the Respondent operates a freight elevator to the fifth floor, which carries substantial quantities of goods for Meyer Jewelry Company and other tenants. A strike involving the elevator operators employed by the Respondent in the latter part of 1948 to some extent affected the facilities for moving shipments of goods to tenants into the building . It is impossible to tell to what extent the strike may have deterred prospective customers from coming into the building. B. The interstate activities of the Respondent In connection with the ownership and operation of the building in 1948, the Respondent paid, on a mortgage indebtedness to Equitable Life Assurance Society of the United States, interest in, the amount of $57,308.68. It also placed fire and extended coverage insurance on the building in the total amount of $1,550,000 6 Among the tenant insurance companies doing an interstate business are the Sun Life Insurance Company of Canada, branch office ; Equitable Life Insurance Company of Iowa, branch office ; Massachusetts Indemnity Insurance Company, branch office ; the State Life Insurance Co., general soliciting agent ; Dearborn National Insurance Company and Casualty Company, home office and-Detroit branch office. 7 Awrey Bakeries, Inc., 44 NLRB 801 ; Booth Radio Stations, Inc., 79 NLRB 964. 8 The balcony space is not included in the Respondent's figures on total area allotted to retail stores. 9 See King Brooks, Inc., 84 NLRB 652 ; P . B. Afagrane Store, Inc ., 84 NLRB 345. INTERTOWN CORPORATION ( MICHIGAN) 1159 with various insurance companies, some of which have their home offices in States other than Michigan. In the maintenance and construction work on the building the Respondent in 1948 purchased. materials and supplies costing $26,737.46, of which $1,175.78 represented goods coming directly from points outside the State of Michigan. Of the $26,737.46, $6,193.27 was charged to the construction account 10 The building is only one of the Respondent's interests. Through a subsidiary corporate set-up the Respondent controls and supervises the operation of invest- ment property, both in and outside the State of Michigan. The Respondent owns the controlling interest in Geoda Corporation (Michigan), hereinafter called Geoda." In 1948 the latter acquired all the stock of Marble Arcade, Inc., herein- after called Marble Arcade, a Florida corporation, owner of a 10-story office building in Lakeland, Florida. Funds for the purchase of that stock by Geoda, to the extent of approximately $100,000 of the $169,000 purchase price were fur- nished by the Respondent. In 1948, officers of the Respondent made visits to Florida in connection with this transfer and the Respondent received a fee of $7,774.26 as a result of its service in connection therewith. Since the acquisition of Marble Arcade by Geoda, the former purchased an apartment building in Miami Beach, Florida, with funds furnished by Geoda. Title to Geoda Farms, a 14-acre estate, near Detroit, was held by Geoda during 1948, but at the end of that year it was transferred by it to Marble Arcade. This estate is rented as a private residence, at a very modest rental," to D. F. Broderick, whose name heads the list of directors of the Respondent, Geoda, and Marble Arcade, and who is president of the Respondent and Geoda. The directors of the Respondent and Geoda are identical and, with the ex- ception of one of the four vice presidents of each, the officers of the two cor- porations are the same. Two of the three directors " of Marble Arcade are directors and officers of the Respondent and Geoda. Six of the seven officers " of Marble Arcade are officers of the Respondent and Geoda, and four are directors of the Respondent and Geoda. All six of the common officers are located in Detroit. The committees which run Marble Arcade when the board of directors are not in session are composed of directors located in Detroit. During 1948 Geoda made purchases of linens. and keys for the apartment house in Miami Beach. Geoda has no property, rental, or otherwise, where it conducts its business, and it has no employees except officers and directors. Irene Jacobs, treasurer of each of the three corporations, received her salary entirely from the Re- spondent. The bookkeeping of all three corporations is done in the Respondent's office. No record is kept of the time the treasurer spends on work for the several corporations. 10 In many instances of goods delivered by the seller to the Respondent, the seller had acquired the goods by shipment from points outside the State of Michigan and resold them to the Respondent in the same form. 11 The name Geoda is derived from Georgia and David, grandchildren of D. F. Broderick, whose interest in the Respondent will be more fully explained hereinafter. 12 The property has been appraised on a reproduction basis in excess of $500,000 and on a current-basis of about $350,000. The rent is $2,400 per year. Geoda in 1943 paid expenses of more than $10,000 for maintenance. Taxes for 1948 were $1,233.35 ; insurance, $1,244.33. 73 The third director of Marble Arcade, Inc., is the on-the-grounds manager of the Lake- land, Florida, building, C. A. Patrie. 14 The seventh officer who is not an officer of the Respondent and Geoda is the same Fatrie. 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD .D. F. Broderick, president and director of the Respondent and Geoda, director of Marble Arcade, and member of all the committees (executive. investment, personnel, and salary) . of each, received no salary from Geoda or Marble Arcade in 1948 but did receive a substantial salary from the Respondent. A. R. Jurisch, secretary of all three, received no salary from any of them but from other corpora- tions in the building related by common directors and officers. During 1948, in the operation of its business, the Respondent expended various sums of money for travel, telegraph, and telephone between Michigan and other States. Of $2,843.50 expended for travel of its officers in the transaction of its business in 1948, approximately 75 percent was expended for travel to points located outside the State of Michigan. During 1948 the Respondent loaned various sums of money to, and held notes receivable of, various corporations doing business in States other than Michigan, including Geoda and Broderick Corporation (New York). Those of Geoda it held in various sums, the largest being one in the principal sum of $182,154.62. It also held the note of Underwriters Acceptance Corporation (Delaware) in the sum of $85,681.37. The latter apparently does business in States other than Michigan, as it receives a percentage of premiums as a commission on insurance for an account of Dearborn National 'Insurance Company and Dearborn Na- tional Casualty Company in Indiana. C. The Respondent's relationship to other corporations engaged in interstate commerce 1. The corporate pyramid The Respondent is one of a large group of apparently closed corporations in a pyramid dominated by David F. Broderick; hereinafter called Broderick. At the top of the pyramid is Underwriters Acceptance Corporation (Delaware), a Delaware corporation, herein called UAC, incorporated in 1935 by Broderick under the name Intertown Corporation (Delaware)," as a holding company to hold his stock in various corporations then in existence or thereafter organ- ized. At the time of the hearing, the stock in UAC was divided almost entirely among Broderick and various of his relatives. The only exceptions are Brod- erick's personal secretary, who now is an officer and director of a number of corporations in the pyramid, and the David and Georgia Broderick Foundation. Each has a relatively small interest. The controlling interest is held by Brod- erick and his wife. In addition to his own shares, Broderick is trustee of the shares of his daughter, his grandchildren, and his sister. UAC owns the con- trolling interest (all except directors' qualifying shares) in Dearborn National Insurance Company, a Michigan corporation, herein called DNIC, whose re- lationship with the Respondent will be hereinafter described. DNIC owns the controlling interest in Dearborn National Casualty Company, a Michigan corpora- tion, herein called DNCC, which, in turn, owns the controlling, interest in the Respondent. The Respondent, in addition to owning the controlling interest in Geoda, also owns the controlling interest in Dearborn Coach Company, a Michigan corporation, herein called Dearborn Coach, which in turn owns all the stock of Lincoln Park Coach Company, and the controlling interest in Broderick Corp- oration (Michigan). The latter corporation owns the, capital stock of three 1s The name was later changed to D. F. Broderick, Inc. (Delaware) before it was again changed to its present name on August 18, 1944. INTERTOWN CORPORATION (MICHIGAN) 1161 corporations, the Broderick Corporation of Illinois, of Indiana, and of New York. In addition to the foregoing, there are a number of other corporations, some of which are nonoperating, which need not now be mentioned. With minor exceptions, Broderick heads the list of directors and officers of all the foregoing corporations. In the list.of officers of the various corporations, introduced in evidence by the Respondent, A. W. Roehm is listed as president of Broderick Corporation of Illinois, Indiana. and Michigan, but although Brod- erick's name heads the list of directors of these corporations, it also heads the list of officers (ahead of the president) with the title of chairman. He is, not an officer of Marble Arcade, Inc., but he heads the list of directors and all the committees. He is not listed as an officer or director of Lincoln Park Coach Company, but this company is owned by Dearborn Coach of which he is director and president. 2. Interrelation of the pyramid corporations The two insurance companies, DNIC and DNCC, occupy the same space in the building on the 30th floor with additional space on the 26th, 27th, 28th, 32d, and 33rd floors, and they operate very much as a unit, in the States of Michigan, Ohio, and Indiana. Their rent in the building is equally divided and is later adjusted on a net premium basis. They have the same directors, officers, and generally the same employees. Their employee payroll is also divided equally between them and adjusted at the end of the year on a net premium basis. They operate as "companion" companies in regard to the issuance of "comprehensive coverage" on automobile risks. Letterheads relating to such joint business bear the name "Dearborn National Insurance Companies." Purchasers of insurance carried by the two companies, placed through the common agents of the two in Michigan, Ohio, and Indiana, are largely the same. Annually they publish a joint report to the public. A picture of the building, under which are the words "Head Office," appears on the joint DNIC-DNCC stationery. The Respondent owns all the office furniture and all the equipment (not classed as expendable) used by the two insurance companies in their offices in Detroit, Lansing, and Grand Rapids, Michigan, in Cleveland, and Columbus, Ohio, and Indianapolis, Indiana." The insurance companies make no payment for the use thereof. The Respondent likewise owns two automobiles and a truck. One of the automobiles is used by an adjuster for the two insurance companies. In- surance, operating, and maintenance costs on this car are paid by DNIC," but the latter pays nothing specifically for use of the car. The other car is used by Broderick personally and is garaged at Geoda Farms when he is there. It .has been used by Seidler in business of one of the corporations with which he is connected. The truck may be used by any of the pyramid corporations, but it is garaged at Geoda Farms when it is not in Detroit. T. E. Seidler and Broderick testified that Geoda Farms was purchased with the idea in mind of having that property serve as the home office of DNIC-DNCO. 10 The depreciated value of the furniture and equipment being used by DNIC-DNCC at the end of 1948 was approximately $9,000.76, divided as follows : That in the home office in Detroit '$5,240.76. That in the branch office in Detroit $1,236.40. That in the Grand Rapids, Michigan , office $460.30. That in the Lansing , Michigan , office $ 670.40. That in the Cleveland , Ohio , branch office $ 650.28. That in the Columbus , Ohio , branch $ 430.15. That in the Indianapolis, Indiana, office $312.50. 17 The original cost _ of insurance - on all cars is borne by UAC and 'is later prorated. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But the purchase was made by Geoda, after decision of the directors of the insurance companies and Geoda, and the stock of Geoda was bought by the Respondent rather than by the two insurance companies. A special corporation, Utilities Service Corporation, the stock of which is owned by UAC, acts as a central purchasing agency for various corporations in the pyramid, including the Respondent, DNIC, DNCC, and Dearborn Coach. The same order form may be used by any of the corporations. There is a stock- room on the 26th floor of the building for DNIC and DNCC in which are kept supplies of those companies and certain supplies of other corporations in the pyramid, including a few for the Respondent. The rent for the space occupied by the stockroom is allocated to Broderick Corporation (Michigan), DNIC, DNCC, and the Respondent, but the space is leased by the Respondent to itself. In the home office of DNIC and DNCC on the 30th floor of the building and of Dearborn Coach on the 26th floor there are switchboards with tie lines by which it is possible to communicate with each other. The Respondent, although on a separate telephone number, and although it does not have a switchboard, may, by use of push buttons, connect with the DNIC-DNCC switchboard without using an outside line. The Respondent also has a tie line to Broderick Corporation (Michigan), an insurance agency which occupies space in the same office area with the Respondent. By means of four key cabinets it is possible for any one of the pyramid corporations in the building to reach any other in the building if the line is not otherwise in use. UAC carries a group insurance policy covering employees of DNIC, DNCC, Broderick Corporation (Michigan), the Respondent, and to a very limited extent of Dearborn Coach, which already had an employee insurance plan when it was acquired by the Respondent. The office employees of the pyramid corporations are paid semimonthly on the. same day. The vacation plans for office employees are the same. During a strike of the building's service employees in the latter part of 1948, employees of DNIC-DNCC, among others, assisted in operating the elevators. Each of the pyramid corporations has a personnel and salary committee which passes on employment and salary adjustment matters. Broderick and his secretary, Jurisch, are on each. During a strike of Dearborn Coach employees in 1949, the chief negotiator for Dearborn Coach was Carl Pratt, who is vice president of Dearborn Coach as well as of the Respondent. The printed lease form used by the Respondent for leases of space in the build- ing contains a provision permitting the lessor (Respondent) to procure certain kinds of insurance for the lessee's and lessor's benefit and to charge the amount of the premium to the tenant as part of the rent. Pursuant to such provision, the Respondent refers the tenants to A. W. Roehm, Broderick's son-in-law and president of Broderick Corporation (Michigan), for insurance service; and Broderick Corporation (Michigan), insurance brokers, customarily place such insurance with DNIC and DNCC. The Respondent and Broderick Corporation (Michigan), are in space reached by the public through the office entrance to room number 308 of the building. The names of both are on the entrance door as well as on the windows on the Woodward Avenue side of the office. In addition to receiving free use of office furniture and equipment and an automobile belonging to the Respondent, DNIC and DNCC have been given by the Respondent a rental rate for the space occupied by them which is below the prevailing rate for comparable space in the building. There is no formal lease between the Respondent and DNIC-DNCC. The Respondent writes letters to itself, purporting to lease various spaces to itself. Such space is then allocated INTER'TOWN CORPORATION ( MICHIGAN) 1163 by the general auditor to DNIC-DNCC as They need it. Pratt testified, "We make these agreements [for lease by Respondent to itself ] primarily to keep track of the space and it has been our policy for quite some time to not confine or compel the insurance companies to be obligated on a fixed obligations [sic], so we let them have space from time to time , that is vacant , as they need it, shift them around from space to space , and this is our method of keeping track of them ." On the building directory in the lobby, the Respondent 's name is listed as on the 30th floor, the office of DNIC-DNCC . The same directory lists the "office of building" as room number 308 , the Respondent ' s office. Registered mail ad- dressed to the Respondent is delivered to the 30th floor and is receipted for by an employee of DNIC. The Respondent explained this by testimony that Jurisch, secretary of the Respondent , formerly had an office on the 30th floor. Jurisch ad- mitted that she was also Broderick 's private secretary . She moved from the 30th floor to the 32d floor in about October or November 1948 . She and Broderick were in room 3214 but moved to the space in room 3210-12 in about May 1949 after construction work therein was finished. The Respondent , Broderick Corporation ( Michigan ), DNIC-DNCC, Geoda, and Marble Arcade, have identically the same members on their respective executive committees ( the committee empowered to act when the directors are not in session ) : Broderick , Higgins ( Respondent 's counsel ), A. R. Jurisch (Broderick 's personal secretary as well as corporation officer and director), and C. R. Pratt ( manager of the building as well as officer and director of many of the pyramid corporations ). Broderick ; Pratt, and B. Jasper (vice president in charge of operations of.Dearborn Coach ) constitute the executive committee of Dearborn Coach. Similarly there are interlocking directors in all the pyramid corporations and there are many common officers. T. E. Seidler , whose office is in the space occupied by DNIC -DNCC, is general auditor of each of the pyramid corporations , although as to a few he holds the title of treasurer . Although he renders services to all, he has, since July 1948, received his salary entirely from Dearborn Coach, and no proration of his salary is made to the other corporations . In prior years , however, he has received his salary in whole or part from DNIC. Other officers likewise act for a number of the pyramid corporations but are on the payroll of only one or two. In 1947 Broderick received a salary only from the Respondent and Dearborn Coach despite his office of president of most of the pyramid corporations. In 1948 Broderick and his wife received compensation from the Respondent, Dear- born Coach , Broderick Corporation (Michigan ). and DNIC. Jurisch is secretary of the 16 corporations in the pyramid , including Respond- ent, and also is assistant treasurer of 11 . of the 16. She renders services to all, but she receives her salary from DNIC and Dearborn Coach alone . Pratt, vice president of the Respondent , is also vice president of all the pyramid corporations except Marble Arcade , Lincoln Park Coach , and Utilities Service Corporation , of which he is president . He is also treasurer of the 4 bus com- panies. His 1948 salary as officer, however , was paid entirely by the Respondent and Dearborn Coach. Irene Jacobs is treasurer and assistant secretary of 7 of the 16 corporations, including the Respondent , and also is assistant secretary and assistant treasurer of another . She renders services to all those of which she is an officer but receives her salary entirely from the , Respondent. Although salaries of officers are not prorated, certain expenses , such as for rent, travel , and entertainment may be charged first to one of the corporations and then at the end of the'year they are prorated by Seidler, on the basis of an 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD estimate, to the corporations involved. Assets of one corporation are, when the directors see fit, exchanged between various corporations in the pyramid.. 3. The interstate commerce activities of the pyramid corporations The activities of the Respondent and its subsidiaries, Geoda and Marble Arcade, have already been described. DNIC-DNCC are engaged in the fire and casualty insurance business in three States. Their home office is in the building in Detroit, but they have branch offices in various cities in Michigan, Ohio, and Indiana. In 194S DNIC sold fire, extended coverage, tornado-windstorm, sprinkler leakage, riot-civil cony- motion, motor vehicle, inland marine, vandalism, and use and occupation in- surance. Total net premiums in 1948 were $1,111,210.65 of which 65.8 percent represented premiums on policies issued to insureds in the State of Michigan, 22.3 percent, insureds in Ohio, and 20.9 percent, insureds in Indiana. Total 1948 net premiums written by DNCC were $1,287,684.86, of which 58.5 percent represented premiums on policies issued to Michigan insureds, 27 percent, Ohio insureds, and 14.5 percent, Indiana insureds. DNIC in 1946 entered into a treaty reinsurance arrangement with Eagle Fire Insurance Company, Newark, New Jersey, the South Carolina Insurance Company, Columbia, South Caro- lina, and the United States Branch of the Switzerland General Insurance Com- pany, Ltd., Zurich, Switzerland. DNCC maintains a reinsurance contract with Employers Reinsurance Corporation of Kansas City, Missouri. DNIC and DNCC 1 are without question conducting a business which affects commerce within the meaning of the Act.18 - The common stock of Dearborn Coach is owned, 92,800 shares by DNCC, and 224,000 shares by Respondent. All its preferred stock is owned by DNCC. Dearborn Coach owns the stock of Lincoln Park Coach Company. Broderick owned all the stock of Intertown Lines System Corporation, which in turn owns all the stock of Northwestern Coach Lines Corporation. The 4 last-named corporations operate a public transportation system in Wayne County, Michigan. Physically they operate very much as a unit.. The office space and office staff for all are the same. Employees are used interchangeably. The management is the same. On the buses owned by Dearborn Coach and used by it and the other companies, following the name Dearborn Coach, appear the words "Inter- town Lines System." 39 All the buses are operated intrastate, servicing about 150 square miles in Wayne County, but that Dearborn Coach's operations affect interstate commerce is apparent from the following facts : Its purchases of gaso- line and lubricants from Standard Oil Company of Indiana for 1948 totaled `approximately $277,355, all of which was processed outside the State of Mich- igan and transported to tank farms in the Detroit area from which the Standard Oil Company delivers it, among others, to Dearborn Coach. The latter rents the tires for use on its buses from the Goodyear Tire and Rubber Company, which provides 2 employees at the Dearborn Coach garage to service them. Dearborn Coach owns a terminal building in Wayne, Michigan, called the Wayne Waiting Room. This terminal is used not only by Dearborn Coach but also by intrastate and interstate Greyhound buses. Dearborn Coach services the Ford Motor Company's Rouge Plant, going both directly into and along side 18 See Tri-State Casualty Insurance Company, 83 NLRB 828. 11 Jasper , vice president in charge of operations and a director of each of the four coo- porations did not know the function of Intertown Lines System and did not know why Lincoln Park Coaches were marked with the name of Dearborn Coach. INTERTOWN CORPORATION (MICHIGAN) 1165 the premises, the General Motors Company's Cadillac plant, the Chrysler Cor- poration's DeSoto Plant, and the Gar Wood plant. It also carries as passengers mail men with their mail bags under a contract with the United States Govern- ment for between $5,000 and $10,000 annually 20 In another case, Dearborn Coach stipulated that it was engaged in commerce within the meaning of the Act. Broderick Corporation (Michigan), owning the Broderick Corporations (Illi- nois), (Indiana), and (New York), uses a name-plate sticker on the insurance policies that it procures which names the cities of Chicago, Detroit, London, San Francisco, and Bloomington, presumably to represent that it does business there. Although the subsidiaries are rather inactive and although Broderick Corpora- tion (New York) gave up its New York office, it is maintaining two or three large assureds as a nucleus around which to begin future operations. Roehm and an- other Broderick Corporation employee periodically visit New York to maintain relationship with a New York account. The Respondent argues that its operations are local and that, on precedent, the Board should not assume jurisdiction over a company that operates an office building even if it could. The Respondent relies principally on Midland Building Company, 78 NLRB 1243, and Central Tower, Inc., 84 NLRB 357. Assuming, with- out deciding, that those cases would be controlling in the instant case if the basis of jurisdiction here were limited to the Respondent's operation of the building,' I find that there is a marked distinction in the instant case from those cited because of the Respondent's operations through, and in coordination with, related corporations. It is impossible to view the facts established in this case without seeing the real situation behind the corporate veil. It is quite obvious that Broderick has built up a corporate structure for his convenience in making investments and carrying on the activities, of his various enterprises. Every- thing is coordinated to those ends. Although Broderick and other adverse wit- nesses called by the General Counsel sought to deprecate his omnipotence, all facts and rational deductions point to Broderick as the complete master of the activities of the corporations in the pyramid; He is in a position to determine which corporations shall own the stock of any other and, within legal limits, which corporations shall hold legal title to certain assets. It was Broderick personally who made the contract for the purchase of the building here involved. In that contract he reserved the right "to assign this agreement to a corporation controlled by him." The various corporations have dealt among themselves in a variety of ways which can only indicate a common interest. They lend money to each other, they transfer assets to one another in simulated sales of stock which are designed to result in a contributed surplus, they make advances for expenses and later, in some instances, prorate them, and they lend or lease per- sonal property to each other. The Respondent's very existence in this far-flung, multicorporation enterprise might, alone, suffice to justify the assumption of jurisdiction by the Board.R2 But the Respondent is even more closely connected to interstate operations than through its kinship (by virtue of Broderick's domi- nation and control) to the other corporations. The Respondent, through its 20 Local bus companies have heretofore been found to be engaged in commerce within the meaning of the Act in Rosedale Passenger Lines, Inc., 85 NLRB 527 ; Gate City Transit Lines, Inc., 81 NLRB 79 ; El Paso-Ysleta Bus Company, Inc., 79 NLRB 1068 ; Amarillo Bus Company, 78 NLRB 1103. 2' See also Corrigan Properties, Inc., 87 NLRB 252. A2 The Board has frequently assumed jurisdiction on the basis of totality of operations. Tanner-Brice Co., 82 NLRB 477: Block and Kuhl Deportment Store, 83 NLRB 418; Goar's Service and Supply, 85 NLRB 219. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsidiaries, Geoda and Marble Arcade, carries on, in Florida, operations of a similar character to those conducted in Detroit. That is not to say that the operations of a subsidiary corporation are necessarily to be regarded as the operations of the parent corporation, but here there is more than mere ownership of stock to tie the Respondent to its subsidiaries Geoda and Marble Arcade. Through common directors and officers their interests and operations are inter- twined. No closer relation existed between parent and subsidiary in other cases in which the Board has assumed jurisdiction.23 But the Respondent not only is a parent corporation ; it also is a subsidiary corporation. It is owned immediately and mediately by DNGC and DNIC, respectively. And it is apparent that those insurance companies make use of the Respondent to their own ends. The. fact that, although the Respondent owns all furniture and office equipment, the insurance companies make use thereof without cost is just one -indication that the Respondent is used by the insurance companies as a repository for their physical assets. In the same line is the Respondent's Ford automobile used by the insurance adjuster. The Re- spondent's pick-up truck and Lincoln automobile apparently are in a class by themselves, as the former is made available to any of the corporations while the latter is, to all intents Broderick's personal V r. More than one fact suggests that the building, itself, is an asset designed primarily for the use of the insur- ance companies. A picture of the building on stationery leads the public to believe that it belongs to the insurance companies. Alone of the tenants, the insurance companies have no formal lease. They use space which the Respondent allocates to itself, move about in the building to any vacant space as suits their convenience, and are charged less than the current rate of rent. Because of their control of the Respondent, the insurance companies could, if they desired, pay no rent at all, just as they pay nothing for furniture and equipment. The fact that they pay any rent may be deduced to be for bookkeeping purposes or as a contribution to maintenance. It is noteworthy that the rent charged DNIC- DNCC of $2 per square foot is exactly the same as the Respondent charges itself and Broderick Corporation (Michigan) for the space occupied by them on the 3rd floor. The history of some of the corporations bears out the inference that the Re- spondent is a repository of physical assets of the insurance interests of Brod- erick. The Respondent's answer states : "The several D. F. Broderick, Inc., (Michigan), (New York), (Illinois), (California), etc., operated as agents and managers, under contract with Home Insurance of New York and its affiliates writing insurance on automobiles. . . . The agency and management contract between the several D. F. Broderick, Inc., (New York), (Illinois), (California), (Michigan), etc., companies terminated on December 31, 1941,- and all business thereunder was completed and wound up on June 30, 1942. After said business was wound up and completed, D. F. Broderick Inc. (New York), D. F. Brod- erick Inc. (Illinois), D. F. Broderick Inc. (California) and other D. F. Brod- erick Inc., (State) companies except D. F. Broderick Inc. (Michigan) and D. F. Broderick Inc. (Delaware) were dissolved.... The remaining insurance busi- ness of D. F. Broderick Inc. (Michigan) . . . was organized into Broderick Corporation (Michigan) on the 29th day of June 1944, and the other assets of D. F. Broderick Inc. (Michigan) . . . were merged with Intertown Corporation 11(Michigan) . . . [Respondent herein] on the 30th day of August 1944. . . . = Atlanta Brick and Tile Company, 83 NLRB 1154 ; King Trend.le Broadcasting Cor- poration, 74 NLRB 926. INTERTOWN CORPORATION (MICHIGAN) 1167 It is to be noted that the agreement for the purchase of the building was consummated on June 13, 1944; that the closing date was "as of" July 1, 1944; that Broderick Corporation (Michigan) was organized on June 29, 1944, and that assets other than the insurance business of the D. F. Broderick Corporation (Michigan) were merged with the Respondent on August 30, 1944, at a time that must have approximated the date of the Respondent's acquisition of title to the building. The present Utilities Service Corporation, which now acts as a purchasing. agent for the pyramid corporations, was formerly known as Jefferson Adjust- ment Bureau, Inc. It continued the franchise of the latter but changed the name when its functions changed. Under its former name it acted as adjusters and investigators for DNIC-DNCC. It was from Jefferson Adjustment Bureau, Inc. that the Respondent acquired the Ford coupe that is now still used by au adjuster for the insurance companies. According to Broderick's testimony, more than one such car was "bought" from Jefferson Adjustment Bureau, Inc. at that time. Except for the legal fiction of a separate corporation for holding title to the building the case would be quite similar to that of the Tri-State Casualty In- surance Company, 83 NLRB 828. Whatever the legal reasons for the large number of corporations, through their community of interest, property, and management, they cohere as one enterprise. Where the total operations of such a combination affect commerce within the meaning of the Act, the Board can and does assume jurisdiction2' I find that the operations of the Respondent, for all the reasons heretofore stated, affect commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, C. I. 0., is a labor organi- zation admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events 1. Organization of the Union The Respondent's nonoffice employees began to organize about September 20, 1948. Application -cards for the Union were procured by employees Ar- thur Stearns, Clarence Bulley, and Walter Roessler. They gave cards to employees of various classifications, and by September 30,25 approximately 29 or 30 application cards had been executed. On that date, the Union wrote to the Respondent, addressing it by the name of the building, claiming to represent e majority of the latter's employees, stating that the Union was informing the Michigan State Labor Mediation Board of its claim, that the Union desired to have an election conducted by that agency, and that the Union was prepared 25N. L. R. B. v. Federal Engineering Co., 153 F. 2d 233 (C. A. 6), enf'g 60 NLRB 592 (a corporation owned the physical properties, while a partnership ran the business) ; St. Joseph's Lead Company and Lead Belt Water Company, 66 NLRB 561 (a mining and smelting company and a water distributing company) ; Bulletin Company, 85 NLRB 568 (Homemakers Center operated a restaurant with display booths, while Bulletin Company published a newspaper). 25 All dates used in this section refer to the year 1948 unless otherwise shown. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to meet and discuss the matter with.-the Respondent. At this time, Pratt manager of the building, was in Florida on business. He had been there most of the summer and had been there continuously from August on, but he was being kept informed of labor conditions by Irene Jacobs, Respondent's treasurer and assistant secretary and by Robert Bonin, building superintend- ent. The Union's letter came to the attention of Bonin on October 1. Bonin ate lunch in the basement with some of the servicemen that day and, com- . menting on the Union's letter, he said, according to Stearn's undenied and credited testimony, "Ain't this nice. Won't we have fun out of this?" He also said, according to Stearns, that the CIO were a bunch of Communists and that anyone who would join the CIO was "nuts." On that same day,. an elevator operator was discharged, and that evening three cleaning women were discharged. The employees inferred that the dis- charges were made because bf union activities. Three of these four discharges will be related hereinafter. Pratt returned from Florida by train, arriving in Detroit on Sunday,. October 3. 2. Wage increases and gifts In mid-August 1948, Bonin had written to Pratt in Florida that the night cleaning force was dissatisfied with wages and he asked advice, and Jacobs had written that "the elevator situation has come to a head." On September 17, Jacobs, and on September 28, Bonin, wrote Pratt indicating that wages were still a problem. Jacobs wrote that no harm would be done in waiting another month. Bonin, in his letter of the 28th, recommended a general increase. On Pratt's return, he saw the Union's letter, referred it to Higgins, conferred with Jacobs and Bonin, and decided to give general wage increases. Neither Pratt nor anyone else for the Respondent replied to the Union's letter. ' Within a week after his return, Pratt gave pay raises to the day force, including car- penters, painters, electricians, etc., of about $20 per month. About October 8, -1948, he called all the cleaning women together in a meeting and announced that he was giving them a raise of 10 cents an hour. According to Pratt, he told the cleaning women that the Respondent was not too well satisfied with the cleaning, that with the increase he expected better results, and that, based on the good results hoped for, the Respondent was going to give each cleaning woman a Thanksgiving turkey. Albina Klenczar quoted Pratt as saying, among other things, that the building was much cleaner than during the war time and that they should not quarrel with their forelady but mind her. This is not neces- sarily inconsistent with Pratt's testimony of what he said about the quality of the work and I credit both. He also discussed shortening the weekly hours from 36 to 34. The increases of all employees were made effective retroactively to October 1. On the afternoon of Monday, October 11, Pratt instructed Victoria Armour, the elevator starter, to notify the elevator girls that there would be a banquet at the Fort Shelby Hotel the evening' of the following day and that they should all try to be there. Armour did so. A couple of the girls said they could not be there. Armour returned to Pratt and reported this. Pratt told her to tell these girls that Broderick was leaving for Florida and that he wished them all to attend26 26 One of the girls, Eva King, testified Armour told her, "Mr. Broderick said that if I didn't attend, he would take it that I didn't want my job." Shirley and Margaret Baxter testified to substantially the same effect. Pratt and Broderick denied having told Armour INTERTOWN CORPORATION (MICHIGAN) 1169 At the Fort Shelby Hotel the next evening, October 12, Pratt presided at one end of the.table and Broderick at the other end. Cocktails and food were served, and Pratt addressed the elevator girls to say that they were to receive a 10 cents an hour increase in wages; that the Respondent was going to set up a plan whereby they would be reimbursed twice a year for their shoes; that he had learned they were not paying good attention to their work and that he hoped they would live up to the rules and regulations for elevator operators. He told them the cost of their new winter uniforms which had been recently delivered and said he expected them to keep the uniforms neat. The girls suggested that Pratt ought to make arrangements to have their hair dressed, too. Pratt said that there was a very high class beauty parlor "on our floor" and that he might be able to work out a deal to have their hair serviced once or twice a year or as often as it seemed necessary. Broderick passed out boxes, each containing three pairs of nylon hose. A couple of the girls testified that Broderick offered them jobs in Florida. Broderick testified, and I find, that, in banter with a few of the girls near him who were talking of his spending so much time in Florida, he said that maybe they would like work there. I find that this was not a serious offer. 3. Questioning about union, activity, membership, and representation a. Unsystematic questioning The testimony of witnesses as to dates was, in general, very unreliable, and I have sought to establish dates by relative events. Frances Harkiewicz, fore- lady of the cleaning women, testified that she first learned of union activity on October 8, after the 10-cent raise had been announced, when Ethel Mangrum, one of the cleaning women, told her that the raise came too late, that "we signed to the Union." Mangrum was one of those who at first refused to sign a card. She did sign a card on October 21 but appears not to have been very favorable to the Union. When the strike started on October 25, she walked the picket line for 4 days and quit. On November 17, while the strike was still in progress, she re- turned to work for the Respondent. As she had not joined the Union until October 21, it is improbable that she would have spoken on October 8 in the first person plural in making the statement quoted by Harkiewicz. Harkiewicz testi- fied that about mid-September she would find women off their floors "ganging up on me" and that she reported to Bonin that something was wrong. I infer that this occurred during the period when women were talking about the Union and getting application cards signed. Harkiewicz' testimony was a mixture of truth, half truth, exaggerations, and fabrications. Because her testimony was not trust- worthy and because reliable evidence indicates otherwise, I find that October 8 was not the date on which Harkiewicz first learned of union activity. Pauline Novinskey testified that on the night that she turned in her union application card, which was on September 27 or 28, Harkiewicz came to where she was working in the building and asked if she had signed a union card. Novinskey answered that she had, and Harkiewicz replied, "It is a free country, I guess ; you can do as you please." I credit this testimony and find that by September 30, Harkiewicz knew of the union organizational activity. According to Marion Burger's credited testimony a union meeting was held on Friday, to make such a statement and Armour denied that she made it. I believe and find that Armour may have said something which was misconstrued or, in retrospect, reconstructed with a different meaning by King and the Baxter sisters and that they were not threatened with diucharge. 903847-51-vol. 90 7 5 I 1170 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD September 30, and she as well as other cleaning women attended it before coming to work. At work that evening, Harkiewicz asked Burger if she knew there had been a meeting. Burger answered negatively and Harkiewicz said there had been a meeting that night and asked if Burger had been to it. Burger answered, "No, I am not lying." Harkiewicz then said, according to Burger, "I don't know why you should be .. . If we find out the guilty one [it] will be just too bad." Burger also testified that Harkiewicz said if the cleaning women went to any more meetings they would be fired. At about the same time, although it might have been later, Harkiewicz questioned other cleaning women. She asked Sadie Lichtenberg if she was going to join the Union. Lichtenberg replied in the nega- tive, 'and Harkiewicz, according to Lichtenberg's not specifically denied testi- mony, commented, "You're better off." Mary luraszewski testified credibly that on about October 3, Harkiewicz asked her if she belonged to the Union. Appar- ently, Muraszewski did not answer until Harkiewicz repeated the question. Muraszewski answered that she did, and Harkiewicz stated, according to Muras- zewski's testimony not specifically denied by Harkiewicz, "When I find out all the women [who] belonged to the Union, the whole bunch of them are going to go." Around October 13, Harkiewicz asked Katherine Radzienta, according to the latter's undenied and credited testimony, if she bad been to a meeting. Radzienta denied that she bad. Radzienta testified that Harkiewicz then said if she went to a meeting she would be fired. On an unfixed date after September 25, Harkiewicz asked Ceola Daniels at work in the building if she got "one of those cards" that the girls were passing out, referring to the application cards. When Daniels falsely denied that she had, Harkiewicz said, according to Daniels' testi- mony, "Don't you fool with them because you will get yourself in a lot of trouble." During the first week of October, Jacobs separately called a couple of elevator girls to the building's office for the purpose of inspecting their new winter uniforms which had just been issued. Of Mary Smith, assistant elevator starter, Jacobs asked if she knew anything about the Union. Of Eva King, Jacobs asked if she had joined the Union. When King said she had not, Jacobs asked if any of the other. girls had, King replied in the negative. Jacobs said, according to King, "You know, the head of the Union are all Communists, Eva." b. Systematic questioning When Pratt returned from Florida, he communicated with Higgins to discuss the union situation. By arrangements made by the Michigan State Labor Me- diation Board, representatives of the Union and of the Respondent were to appear before a state conciliator to discuss arrangements for a consent election on October 14. On October 13, the day following the dinner given by the Respond- ent for the elevator girls and the day preceding the date set for conference at the State Labor Mediation Board, Pratt had the employees called in singly or in small groups to his private office. First he called the maintenance men, later the elevator girls, and finally the cleaning women. As they appeared, he would INTERTOWN CORPORATION ( MICHIGAN) 1171 present to them several sheets of memorandum paper which had been made up with two columns of ruled lines preceded by the following : TO DAVID BRODERICK TOWER OPERATING AND MAINTE- NANCE EMPLOYEES FROM DAVID BRODERICK TOWER MANAGEMENT SUBJECT I/O (MICH.)-XF OPERATIONS-PERSONNEL We are in receipt of a letter from the Greater Detroit Joint Board Retail, Wholesale and Department Store Union , CIO, an exact copy of which is quoted below : [The Union 's letter of September 30 is quoted] In view of the fact that this Union claims to represent the majority of our employees and has asked to meet with us as your representative, will you please be so kind as to indicate by affixing your signature in the space provided below whether or not this Union is authorized to represent you. We desire this information for our guidance in any discussion we may have with the Union concerning your wages , hours and working conditions. The Greater Detroit Joint Board, The Greater Detroit Joint Board Retail, Wholesale, and Department Retail , Wholesale and Department Store Union , CIO IS NOT author- Store . Union, CIO IS authorized to ized to represent me. represent, me., The maintenance men, the first group called, were kept in the outer office until Broderick came out of Pratt's private office. Then , with Higgins present, at least for a while , Pratt first had the three painters in and requested them to sign one way or the other. One of them, James Crowe , testified that before he signed his name Pratt asked if he approved of the Union. Each of the painters signed in the left -hand corner . Next he called in.the two carpenters . After a prelim- inary statement , Pratt told them that the CIO was more of a janitor's union and that the A. F. of L. was more for mechanics. He told them they should investigate and know what they were joining; that this Union was Communistic. One.carpenter signed the left-hand column; the other refused to sign under either column . Next came the building engineer , classed as supervisory. He signed the left-hand column. As others followed , they either signed the left- hand column or refused to sign at all. Those few that failed or refused to sign were called back the next morning and again were asked to sign. The elevator girls were called one by one that afternoon . When Pratt talked to Assistant Starter Mary Smith, he said , as quoted by himself , "Of course , Mary, you are a supervisory employee ; you are not eligible for Union membership . . . If you want to belong . to a Union , primarily you would have to go back to an elevator operator ." Mary Zelepis , another elevator girl, testified that when she asked more time to think it over, Pratt asked if she liked her job and that when she answered that she did , he said, "By that I think you know which way to sign." 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the cleaning women arrived at 6 p . in., they, too , were conducted to the office and one by one were taken into Pratt's office by Harkiewicz , who translated into Polish what Pratt said to those who did not speak English well , and they were asked to sign the list. Harkiewiez showed Albina Klenczar , the last of the cleaning, women called, that the others were signing against the Union and asked if she belonged to the Union. Klenczar asked time to think it over , but Pratt said it had to be done that day and he could not give her any more time. She also asked that all the women be together in the room but Pratt refused that request, too . Pratt asked her if she liked her job. After she answered that in some ways she did and some ways she did not, Pratt asked her if she was going to sign. She said, "No" and was taken to work. Mary Muraszewski was another who refused to sign. Pratt asked Harkiewiez if Murazewski was a good worker. Harkiewiez said she was , and Pratt, according to Muraszewski 's undeni .ed testi- mony, said if she were not, he would fire her for not signing ., By the morning of October 14, there were on this paper , which for convenience will be called the "open ballot," 34 signatures including supervisory employees , all in the left- hand column. The next day, McClow (whose appearance is shown on page 1 hereof), for the Union, and Higgens for the Respondent , were at the State Labor Mediation Board in separate rooms. Higgins told a conciliator that he did not wish a joint meeting, and exhibited the open ballot as evidence that the Union was not entitled to an election. As the Respondent refused to consent to an election and as the State Board conducted consent elections only, the Union was not asked to give proof of its representation. 4. Events preceding the strike On October 21 at a union meeting the employees present voted to authorize a strike if the Respondent failed to consent to an election. On Friday, October 22, the Union wrote to the Respondent accusing it of unfair labor practices and threatening. that unless the . Respondent agreed to a consent election or met with the Union to negotiate a contract by Tuesday, October 26, the employees would strike for recognition. The Union sent a copy of this letter to the State labor mediation board. On Monday, October 25, late in the afternoon, Pratt sent for the day main- tenance force of 11 men and 1 woman. Higgins was present. According to Pratt's version, he "told them the. Company had no desire to influence them one way or the other" ; that there was "an orderly way to go about it," and it would be disastrous to have a strike in the building because sick people were coming to visit doctors and dentists and it would be unfair to tenants and the public if there was a strike. "I told them that this particular Union I wished they would investigate thoroughly, I had some knowledge, and reports that they were to the left, and that, `if you consider a 'Union of this kind, due to the fact that you have 25, some 25 cleaning women, then the cleaning women primarily would outvote the rest of the employees,' " would have the majority control. He told them that in the United Artists' Building (which he formerly managed) "most of the tradesmen" were in the A. F. of L. and "told them there were three or four different types of Union that they could think about joining. One of them was the A. F. of L., a craftsman's union . . . I said it is possible to have an independent Union, if you want." A few other preliminary remarks by Pratt were testified to by some of the employees, but in general they con- firmed Pratt's testimony, albeit with a variation in the form of language used. Arthur Stearns, for example, testified that Pratt had first read the letter from INTERTOWN CORPORATION (MICHIGAN) 1173 the Union. He quoted Pratt as saying that he did not know the man who signed the letter from Adam, that he did not know why this group of employees should pick out this type of union, and that he asked why they did ,not' have their own little independent union or the A. F. of L. I find the testimony consistent to this point and credit Pratt's and Stearns' testimony. After his preliminary remarks, according to Pratt, he told them that he and Higgins were going to leave the room and let them discuss the situation and to call him when they were ready, "and if they wanted us as a company, to consent to an election, . . . by the State Mediation Board for recog- nition of this particular Union, if that was the consensus of opinion of the employees, that we would arrange for this election with the Mediation Board on the following day." The witnesses differed on whether or not the last quoted statement was made, the majority of them denying or saying they had no recol- lection that any such assurance of an election was given. Resolution of the conflict will be made later herein. Pratt and Higgins left the room. In the outer office, Higgins dictated another open ballot form, which recited the Union's claim, in its letter of October 22, to represent 95 percent of the employees, the employees' signing of the open ballot of October 13 in opposition to the Union, and continued, "In order to definitely determine the accuracy of the claims of the Union above referred to and put an end to the controversy between said Union and the employees of the David Broderick Tower, the undersigned employees have designated again whether or not they desire to be represented by said Union. This document submitted to the Michigan State Labor Mediation Board shall constitute a request by that Board to refuse to entertain further claims of said union if a majority of the undersigned do not desire to be represented by said union, and if a majority does desire to be represented by said union, then this docu- ment shall constitute a request to the employer to consent to an election ." There followed lines for signatures against or for the Union. After a discussion among themselves in which they decided that they wanted to remain with the Union and to have a secret ballot, the group of maintenance employees called Pratt back in. He asked if they had made up their minds, and they told him they wanted a secret ballot. Pratt turned to Higgins who had come into the room and, according to Stearns, asked if Higgins had one of those ballots in his brief case. Higgins got out a sample ballot and handed it to Pratt, who held it up and asked if they would put A. F. of L. or something else on the ballot. Higgins started to leave the room, and Pratt said that Higgins had a paper "out there." The employees filed out. Clarence Bulley, a carpenter, followed Higgins to the outer office and watched as Jacobs handed the new open ballot form to Higgins. Bulley looked at it and said that was not what the employees were asking for, that this one was the same as the one of October 13, and that the employees wanted a secret ballot. Higgins asked Bulley, according to the latter, "How would you make that ballot, put the A. F. of L. on it?" Bulley said that they had already selected the Union and it should just be yes or no. The group then left. Before quitting time, Pratt had the elevator girls brought, in a group, to his private office and made similar statements to them, suggesting the A. F. of L. or an independent union. He made no further attempt to use the open ballot, but otherwise went through the same procedure., The meeting of the elevator girls with Pratt ended at about 5 p. m. and the union employees went directly to the union hall and reported events at a meeting which was being held that evening. McClow inferred , correctly, that 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pratt intended to call the cleaning women in that night for the same kind of program, and he therefore recommended that the cleaning women not go to work that evening. As a result, the cleaning women were all instructed not to report for work that night and they did not report. The employees present voted at that meeting to strike. The strike started, and the next morning a picket line was formed. 5. The events following the beginning of the strike On Sunday, October 31, Harkiewicz telephoned Ceola Daniels, one of the cleaning women, and told her that if she wanted her job back she had better stay out of the picket line because she was picking the women she would take back. During the strike the State labor mediation board sought twice to arrange meetings between the Union and the Respondent, but Pratt informed it that the Respondent was getting along all right and indicated that there was no reason to meet with the Union. On the third attempt, that board asked the Respondent to come as a courtesy to it. Sometime in December a meeting was arranged and the Respondent agreed to appear under protest. This meeting was attended by McClow and one or two others for the Union, by Higgins for the Respondent, and by Dr. Rex Cranson for the State labor mediation board. At this meeting the Union stated that it wanted an election. Higgins said that the Respondent on the night before the strike had offered to give the employees a State labor media- tion board election, but that they had jumped the gun and went on strike, and he indicated that the Respondent was getting along satisfactorily and saw no reason for an election. On about December 8, the Union sent those on the picket line into the building by ones and twos to ask for their jobs back. About nine employees so applied ZT Pratt told them all substantially the same thing-that they were not needed but that he would call them if he wanted them. None of these employees was ever reinstated. Of those who went on strike, three abandoned the strike and were taken back in November. One carpenter, Michael Cooper, who did not continue on the picket line after mid-November, and who indicated to Pratt that he was not too sympathetic toward union activities, was recalled on January 3, 1949. One cleaning woman, Anna Machiniak, was reemployed on December 27, if the Respondent's records are correct, or January 3, 1949, if Machiniak's memory is correct. She telephoned Harkiewicz to ask for her job. Harkiewicz hesitated until Machiniak explained that "I was no longer in the line." 28 No other strikers were recalled. At the time of the application of these employees for reinstate- ment their jobs were not all filled. Pratt told these employees that he would get 2T Mary Zelepis , Margaret and Shirley Baxter, Eva King, Mary Muraszewski , Albina Klenczar, Katherine Radzienta , Clarence Bulley, and Stephanie Stomber. Radzienta applied again on January 18, 1949 , and talked to Bonin. Bonin told her he had seen her in the picket line and was afraid to take her back . During January 1949, the Respondent was running a "want ad" for night cleaning women. 28 An exhibit prepared from the Respondent ' s records indicates that a cleaning woman who was in the Respondent 's employ at the time of the strike , Mary Zaluki , was reem- ployed on January 11 , 1949. Zaluki 's name was not among those on a "list of employees terminated" which the Respondent furnished , although all those who went on strike are shown on the list as having terminated their employ on October 25 or 26. Zaluki's name is on a list which the Union prepared , before the strike, of application signers, but her application card was not among those offered in evidence and she did not testify. The record does not disclose , therefore, when or why her employment was terminated , although presumably it was or she would not have been reemployed .. I am not counting her as either a striker or as a union applicant. INTERTOWN CORPORATION (MICHIGAN) 1175 in touch with them if he needed them. He did not do so. But in January 1949 the Respondent was advertising for an elevator operator, janitresses, and a man for general utility work. I find it unnecessary to determine whether or not the position of each striker was unfilled at the time of his application for reinstate- ment because I find that the strike was an unfair labor practice strike, caused by the Respondent's refusal to bargain and its other unfair labor practices. The refusal to reinstate those strikers who applied for reinstatement within a reason- able time after the discontinuance of the picket line was therefore a discrimina- tion against them because of their union membership and activity in violation of Section 8 (a) (3) of the Act. The picket line ended sometime in December 1948. On April 27, 1949, the Union wrote the Respondent saying that the strike had been terminated "some time ago," that the Respondent had failed to reemploy members who had partici- pated in strike action, and enclosing a list of names of employees with, a request for their reinstatement. This produced'no result. A serious question is`raised as to whether the strikers for whom reinstatement was requested by the Union for the first time on April 27, 1949,29 had retained their employee status. There was no evidence from which it might be inferred that the strike was still current in April 1949, some 4 months after the end of the picket line. No evidence was ad- duced to show that any of the employees who did not make personal application had been discouraged therefrom by the Respondent's refusal to reinstate the nine who had unsuccessfully applied for reinstatement, although some of them testified as witnesses. In this respect this case differs from the case of E. A. Laboratories, Inc 30 I therefore find that no unfair labor practice was shown to have been committed by the Respondent by failing to reinstate those strikers listed in the Union's letter who had not previously made personal application for reinstatement 31 B. The refusal to bargain 1.,The appropriate unit The complaint alleges that all employees of the Respondent working in the building, except guards, supervisors, professional, and office and clerical em- ployees as defined in the Act, constitute a unit appropriate for purposes of col- lective bargaining. The answer denies this. No evidence was offered by the Respondent to show wherein the unit was inappropriate or what unit would be more appropriate. All employees in the unit alleged to be appropriate service the building, all work in the building under the same manager, Pratt, and the unit is one -common in building maintenance cases 32 I find that the alleged unit is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The Respondent contended that the assistant 'elevator starter was a super- visory employee and should be eliminated. The starter was conceded by both Respondent and General Counsel to be a supervisor. At the Fort Shelby Hotel dinner for the elevator girls on October 12, 1948, Pratt told them that the ele- vator starter, Victoria Armour, had authority to hire and fire. He did not tell 21The Union had not included the names of these employees in any charge before the third amended charge of May 31, 1949. 30 86 NLRB 711. 81 The list included the names of all who had not been reinstated as well as of some that had been. 22 Bailey Department Stores, Inc ., 85 NLRB 312 ; Courier-Post Company , 71 NLRB 1188 ; Southern California Edison Company , Ltd., 56 NLRB 1172 ; The Texas Co., 21 NLRB 110. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD them that the assistant starter had such authority. The Respondent's contention that the assistant starter was a supervisor was based on the fact that she sub- stituted for the starter when the latter was sick, on vacation, and during her relief periods in the building. She also operated an elevator to relieve an elevator operator during two half-hour periods. Although she was expected to report infractions of rules by operators,. she apparently had no authority effectively to recommend discipline, and the only time when she made a recommendation, as far as the evidence shows, Jacobs rejected it. The starter's principal occu- pation is giving the electric signals to regulate the 'operations of the elevator cars by the operators and giving information to the public in the lobby.. Elevator starters are not necessarily supervisory employees excluded from the unit " I would not presume authority of an elevator starter to hire and fire or other- wise have supervisory authority where it was not expressly given, as here. The fact that the assistant starter acts as a substitute in the starter's physical opera- tions • is not in itself sufficient, in my opinion, to give rise to the presumption that the. substitute thereby acquires the same authority to hire and fire that the starter has. Authority may be given by an employer because he places confidence in the person, and he might not be willing to give it to anyone in the position of an elevator starter. The Respondent furnished lists of employ- ees for use in evidence and noted thereon, by the word "supervisory," that the forelady of the cleaning women, the engineer, and the elevator starter were super- visors, but although the assistant starter is shown as a salaried employee rather than hourly wage employee, there is no. notation that she is "supervisory." On all the evidence, I conclude that the assistant starter is not a supervisor and should be included in the unit. There was testimony by one of two night watchmen that he spent about half of his time operating an elevator during the night. I find that he, as well as the other night watchman, is in the class of guards to be excluded from the unit under the terms of the Act. These two cases require no restatement of the unit heretofore found appropriate. 2. The Union's majority in the' appropriate unit On October 1, 1948, the Respondent had 44 maintenance -and service employ- ees in the appropriate unit, according to payroll information furnished by it. There was offered in evidence a total of 36 union application cards. Of the 36, 27 bear dates before October 1, 1948. In addition to the 27 cards, there was evidence that one card bearing date of October 8 was a replacement because the first one, signed before October 1, was lost and that another card signed before October 1 which was lost was not replaced by a new card.34 There was also evidence indicating that an undated card (bearing neither handwritten date nor postmark) was in fact signed before October 1, and that there may have been other cards which inferentially were lost. It would be unnecessary, however, to count beyond the 27, as that was enough to give the Union a clear majority. The 27 includes cards of two of the women discharged on October 1, Marion Burger and Dorothy Gallagher. Although that of Burger, discharged about 6 p. m. that night should be counted, that of Gallagher, who was discharged sometime dur- ing the day of October 1 and whose discharge is not included in the complaint, 33 The J. L. Hudson Company, 56 NLRB 406; The Texas Co., 21 NLRB 110. 34 The first was that of Pauline Novinskey whose first card never reached the Union. The second was that of Hazel Fekete whose card was lost after it was received by the Union. Both should be counted. This increases the Union 's majority to 29. INTERTOWN CORPORATION (MICHIGAN) 1177 may be eliminated on the ground that it was not clearly shown that she was employed at the time of the receipt of the Union's letter. There still would re- main a minimum of 26 cards dated before October 1, which were offered in evi- dence. Counting the 2 lost cards there were 28. This was more than enough to give the Union a majority. I find that on October 1, 1948, and at all times material thereafter, the Union was, has been, and is, the exclusive representative of all the Respondent's em- ployees in the unit above found appropriate, for the purposes of collective bar- gaining within the meaning of Section 9 (a) of the Act. 3. Conclusions on the refusal to bargain and on intereference, restraint, and coercion As previously related, the Respondent made no reply to the letter of Septem- ber 30, in which the Union claimed to represent the employees. It refused to bold a joint conference at the State labor mediation board on October 14 and until December 1948 no representative of the Respondent saw or talked with a representative of the Union. Even then it was as a courtesy only to the State labor mediation board. From the time of the receipt of the Union's letter on October 1, all the evidence indicates a plan of opposition to the Union. Bonin's sarcastic comment about having fun and condemning the Union as communistic, while not prohibited speech, forecast the Respondent's opposition. Even if (contrary to the findings herein) the discharge of three cleaning women on the night of the very day of the receipt of the Union's letter of September 30 was not discriminatory, the timing thereof was calculated to create the impres- sion in the minds of the employees that it was. It is interesting to note the change in Harkiewicz' attitude with reference to the Union between the time of what was, as far as the evidence shows, the first conversation that she had about the Union, that with Novinskey, when her attitude was one of uncompre- hending indifference and the time of the conversation with Burger when she threatened that it would be "just too bad" when she found the "guilty one." It seems not improbable that Harkiewicz, who reported to Bonin every day, had in the interim reported her discovery to someone above her in management, and had learned of management's opposition to the Union. Harkiewicz testified that about mid-September she would find her women "ganging up" on her, would find them off their floors talking to other women, and noted that they used the back stairs to avoid her. Harkiewicz testified with reference to this that She told Bonin that the women probably were not satisfied with their wages. It may be mere coincidence that the day after Harkiewicz questioned Novinskey about her union membership, Bonin recommended, in his memorandum to .Pratt, an increase in wages to 72 cents an hour with a 30-hour week for the cleaning women. But it is improbably that Harkiewicz, who gave evidence of reporting even trivial incidents to Bonin, did not report her knowledge of union activities. Her testimony, which placed her knowledge of union organ- ization as after the wage increase, is too inconsistent with the credible evidence to be accepted. The questioning of employees by Harkiewicz and Jacobs was per se interference and coercion, repeatedly condemned by the Board.' ' The solicitation of signa- tures of the employees on an open ballot likewise was per se in violation of the s' Standard-Coosa-Thatcher Co., 85 NLRB 1358,. and cases there cited. 1178` DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act.36 All of this was inconsistent with a good faith intent to question the Union's right of representation. The meetings conducted by Pratt with the service crew and elevator operators on October 25 had for their purpose the attempt to cause some or all of the em- ployees to abandon the Union in favor of an independent union or of the A. F. of L. An offer to a group of the employees to consent to an election to be conducted by the State labor mediation board, even if clearly and unconditionally made, would not be the equivalent of a proper notice thereof to the Union. On the contrary, if would be further evidence of the Respondent's efforts to deal directly with its employees to the exclusion of the Union. But I find that the so-called offer of an election was conditioned on enough employees declaring, themselves to satisfy Pratt that he was not successful in his efforts to turn them to an inde- pendent union or to the A. F. of L. The very fact that, after this so-called offer was made, Pratt called in the elevator operators to attempt to influence them proves that the Respondent had not yet yielded to the Union 's demand for an election. From Pratt's and Higgins' remarks to the first group of employees on October 25, it is apparent that the Respondent approved the idea of a secret ballot only if it would mean voting the Union out in favor of some other union or no union ; hence the meetings on that clay. On.all the evidence I find that the meetings of October 25 were not consistent with a good faith intent to question the Union's majority representation. I do not find that any expression of views, arguments or opinions by Pratt about the Union in these meetings was violative of the Act. But insofar as the meetings were designed to learn the employees' attitudes and sympathies, they were violative of Section 8 (a) (1) of the Act and further support a finding of 8 (a) (5) of the Act. The record shows that the Respondent had in mind that when Pratt returned from Florida some wage adjustments would be made. But the Respondent ap- peared to be postponing the date as long as possible . The hurried increases to all employees during the first part of October immediately after the Union's claim to recognition, especially when combined with the Respondent's ignoring of the Union, were timed and designed to undermine the Union. It is also to be noted that the increase of 10 cents an hour to the cleaning women was much more than Bonin had recommended to Pratt in his memorandum of September 28. At that time the rate was 70 cents an hour and he had recommended 72 cents. The 10- cent increase made the rate 80 cents. Both the dinner for the elevator operators with gifts of nylon hose and the promise of Thanksgiving turkeys to the cleaning women were so out of the usual course for the Respondent as to be inconsistent with routine increases and donations and as to characterize the whole program of increases and promised benefits as one to lure the employees away from the Union. I find therefore that the giving of the increases and making of gifts and promised benefits at the time and in the manner in which they were given was a violation of Section 8 (a) (1) of the Act and further supports a finding of Sec- tion 8 (a) (5) of the Act. In the light of all this evidence, I find that the Respondent's refusal to recognize or bargain with the Union dates from'October 1, 1948.'7 When Pratt told Mary Smith, the assistant elevator starter, that if she wanted to belong to the Union she would have to go back to being an elevator operator, he was probably doing so under. a double mistake of law ( I) that she was a supervisor and (2) that supervisors cannot be members of a union. A mistake ° Kentucky Utilities Co., Inc., 81 NLRB 1006; Stocker Manufacturing Company, 86 NLRB 666. 31 See Joy Silk Mills, Inc., 85 NLRB 1263. INTERTOWN CORPORATION (MICHIGAN) 1179 of law does not, however, excuse what is otherwise a coercive statement a8 There- fore, this statement likewise is found to violate Section 8 (a) (1) of the Act. C. The discharges 1. The group discharge a. The hiring and early employment of Novinskey, Burger, and Feteke Pauline Novinskey was employed by the Respondent on November 21, 1946, Marion Burger on October 8, 1947, and Hazel Fekete on July 8, 1948. Novinskey had, before her employment by the Respondent, worked as a charwoman at the Washington Boulevard Building for 2 years. When Novinskey started there, Harkiewicz was also a charwoman there but later became forelady. Harkiewiez recommended Novinskey to Bonin. After Bonin had hired Burger as a cleaning woman, Harkiewicz put her with Noviuskey to acquaint her with the rooms and routine. A month later, against Harkiewicz' wishes, Bonin promoted Burger to the position of assistant fore- lady at a wage of 75 cents an hour, 5 cents more than the rate for cleaning women. This was the only time that Bonin could remember when there had been an assistant forelady. All hourly paid building service employees were hired by the Respondent on a 30-day trial basis. If they were found satisfactory they were given a 5-cent automatic increase. According to Burger's undenied and credited testimony, Harkiewicz in July 1948 commented on the fact that Fekete was a very good worker. The fact that she was retained at the end of that 30-day period con- lirms Burger's testimony that her work was satisfactory at that time. b. Burger's demotion As assistant forelady, Burger trained the new employees, helped get the equipment ready each night a half hour early, helped Harkiewicz with her duties, and acted as forelady when Harkiewicz was absent. She continued as assistant forelady until August 31, 1948. On that day Bonin made out a notice of demotion for Burger in which he stated, "Due to the fact that it has been forcably [sic] brought to my attention it is necessary for me to relieve you of your duties as assistant forelady because you are not suited for the work." Harkiewicz gave this to Burger that night and, according to the latter's credited testimony, when she asked what it was about, Harkiewicz replied, "I'm sorry, I don't know anything about it." The testimony of Bonin and Harkiewicz as to the reason for the demotion is confusing. According to Bonin, it was his idea in 1947 to have an assistant forelady, but when he told Harkiewicz to pick one out Harkiewicz failed to do so. When Bonin asked why, she answered that she could not make up her mind that any of the women then employed were capable. Thereafter, when Burger was employed, Bonin thought she would make a good assistant forelady and, without Harkiewicz' concurrence promoted her after her 30-day trial period. Bonin testified that in the several conferences he had with Harkiewicz she never did seem to be too well pleased with Burger as an assistant. "She possibly didn't like the way she combed her hair, I don't know. But I know that she did say she wasn't much good on several occasions." Some of the criticism of Burger which Bonin testified to he placed as after her demotion and was not such as would have been cause for her 88 American Needlecrafts, Inc., 59 NLRB 1384; Standard- Coosa-Thatcher Co., supra. 1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demotion. His testimony of what led up to Burger's demotion was somewhat vague and confused. While Harkiewicz was away on her vacation [which I fix as the 2 weeks preceding August 10, 1945] Burger acted as forelady. "During that period," testified Bonin, "I could not place my finger exactly on anything that was wrong, but I felt something was wrong because of the number of complaints that were being registered with the Building Office [relating to] the quality of the cleaning or absence of cleaning. Of course, there were, always have been, quite a few complaints. They seemed to increase during this period to' a small extent. Subsequent to Mrs. Harkiewicz' return from her vacation there were a lot of small matters that turned up at that time, petty thievery, and offices that had never been entered, the waste paper baskets that weren't even emptied and the ash trays still full of cigarette butts, indicating that no one had even entered the offices. At that time we felt it must be due to poor supervision." As the latter incidents occurred after Harkiewicz' return from her vacation, according to Bonin, the poor supervision, if such was the cause, would seem to be primarily Harkiewicz' fault. There was evidence that the labor turnover was very high in the summer of 1948. According to employment records, 15 janitresses (cleaning women) quit between June 1 and September 30. Bonin testified that he had to hire S cleaning women to get 4. Also, absences of cleaning women were frequent. The shortage of cleaning women in the summer would be the first explanation that an administrator would think of as a cause for the complaints of inadequate cleaning. In a memorandum from Jacobs to Pratt on September 7, while Pratt was in Florida, she reported that 6 new night janitresses had been hired that day to bring the total to 26 and that Bonin had said this number would be trimmed down to 24 or 25. Em- ployment records disclose that 2 of the women hired on September 7 quit by September 11. At the end of September, the night cleaning force consisted of 21 night cleaning women. On cross-examination Bonin admitted that the Re- spondent was short handed while Pratt was in Florida and that when a woman was absent Harkiewicz would tell the women to hurry their work to do the work of absent women. Bonin's attempt to blame Burger for the tenants' complaints and his ignoring the shortage of labor makes it appear that his testimony was biased, that he was consciously framing his testimony to be most favorable to the Respondent's interests. Other portions of his testimony likewise lead me to this evaluation of his testimony. His bias led him into inaccuracies and contradictions. I find his explanation of Burger's demotion unconvincing. Burder testified that during Harkiewicz' vacation she heard no complaints from tenants and that Bonin did not speak to her about any. She testified that during that time she asked Bonin for a raise in pas' and that Bonin had replied that if he gave her one he would have to give one to all the cleaning women. She asked him if he did not think they were all entitled to one and he answered that he thought they were and he would see what he could do. She asked Bonin if he could not let her have Harkiewicz' salary while the latter was on vacation , but Bonin refused. Harkiewicz testified that when she returned from her vacation some of the cleaning women would tell her that Burger spent most of her time on the 30th floor with Novinskey and that they could not get good service from her, that she would not come right away when they rang the bell for her to get soap. Burger testified that she was not told of any complaints from cleaning women. Harkiewicz further testified that cleaning woman, Mary Zaluki, told her that INTERTOWN CORPORATION (MICHIGAN) 1181 she saw Burger going through Bonin's desk and that "Burger was showing my check to the women," that she took Burger to Bonin's office and that Bonin questioned Burger about it and she did not deny it-she just laughed about it. Harkiewicz explained that by "showing her check" she meant that Burger "went from floor to floor and was telling the women I made so much money." 3° She further testified that she told Bonin the next day to discharge Burger but that Bonin had said he would not do so but that he was going to demote her: Oddly enough, Bonin, who was asked the reason for Burger's demotion, men- tione(l no such incident and did not tell about the conversation related by. Harkiewicz. Burger was not asked about this by Respondent's counsel when she was on the stand, and Mary Zaluki, the cleaning woman named by Harkie- wicz as the source of her information, was not called as a witness. As I have found Harkiewicz an untrustworthy witness, I do not credit her uncorroborated story. From all the testimony, I conclude that there were a few tale bearers among the cleaning women who would report things to Harkiewicz and that, as in most cases of tale telling, the stories became more distorted each time they were told. Harkiewicz, herself, had a tendency to exaggerate and to testify to some- thing as habitual which there is every reason to believe was based on a single report to her. Furthermore, she seemed to take a malicious pleasure in so word- ing her testimony about Burger as to vilify her. For example, Harkewicz, after casting suspicion upon Burger's honesty, was asked to enumerate all the things Burger was supposed to have taken. After naming a number of things i_ which will be more fully covered later herein) mostly based on hearsay, Harkie- wicz testified, "She went through a woman's purse. She told me herself she' had done it." It turned out on further cross-examination that the purse be- longed to a cleaning woman who had been seriously hurt, that Harkiewicz had given the purse to Burger and had taken the woman to a doctor, presumably in the building, that they had sent the woman home in a cab, and that when Harkie- wicz afterwards vocally expressed her concern over whether the woman had had enough money, Burger, according to Harkiewicz, said, "I looked in her -purse, opened up her purse and she had a lot of money." I would conclude that Burger thought in advance of what Harkiewicz thought of too late-the injured woman's ability to pay for her transportation. I ain fully convinced that Bonin was aware of Harkiewicz' distaste for an assistant. He had to appoint one in the first place over Harkiewicz' own wish and he testified that no assistant forelady' was ap- pointed after Burger was demoted, although in his- opinion one was needed; because Harkiewicz was unable to recommend anyone for the job. He was also aware of the fact that Polish women did not always get on well with women of.. other nationalities. Harkiewicz gave evidence of being extremely jealous of her authority and of looking upon an assistant as an encroachment upon that authority. Bonin, an intelligent man, undoubtedly realized that many of Harkie- wicz' tales about Burger were petty incidents exaggerated by Harkiewicz. Al- though it is possible that Bonin demoted Burger because he felt that Harkiewicz never would get along with an assistant forelady, I am not at all convinced that the real reason was revealed in any form. A scrap of evidence here and a scrap there give rise to the suspicion that Burger may, during Harkiewicz' vacation, have talked about a union as a means of getting a raise,-but the evidence is too insubstantial to make a finding. thereof. ^ After this explanation, Respondent's counsel asked, "You mean she got your check out of Mr. Bonin's desk?" Harkiewicz answered, "Yes, and was showing it." Her vacil- lating. testimony did not inspire confidence in its accuracy. 1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Union activity of Burger , Novinskey , and Fekete Burger signed an application card for the Union on September 25, 1948, and she asked a number of employees to join. She gave union application cards to seven cleaning women,• including Novinskey. Burger testified that she went down the back stairs from the 9th floor where she was working to the 6th floor to give a card to Ceole Daniels, one of the cleaning women. As Daniels' appli- cation card was dated September 25, 1948, that, presumably, was the date of the incident. Harkiewicz was aware of the fact that the women, and specifically Burger, would use the back stairs to see one another and to avoid her, She testified, "Sometimes I would go to a certain floor and I couldn't find my women. They would be working on the 9th and I would find them on the 6th floor." She identifies Burger as one of those she discovered doing that. Iarkiewicz' sus- picions were aroused by this, as she reported to Bonin that there was something wrong. She testified that a couple of days later she observed a similar instance of women being off their floors,90 that she spoke to the women about it and that was the last they did it in the halls, that after that they would do their talking around the time clock. As previously found, Harkiewicz began to question the cleaning women about their union membership and activities at about this time. The conversation she had with Burger about the meeting of September 30, in which she threatened discharge to those who went to meetings has been previously related. Novinskey received her application card from Burger and signed it about September 27 or 28. She testified that she was told at the union hall by other members to turn the cards in to the night watchman to be picked up later by someone else and that she turned her card in to a night watchman with a first name of Norman. The only night watchman of that name is Norman Walls. He did not sign a union application card, although the other night watchmen did. The Union never received this card that Novinskey signed. Walls was called as a witness by the Respondent to testify about other subject matter but did not 40I believe this was another instance of Harkiewicz exaggeration or fabrication and was brought about by the suggestion of counsel in the following manner : Q. Well, how long after the first time you saw that grouping did you see another grouping of that type? A. In the dressing room. They would hear me coming with the keys, or something, everybody would say , "Here she comes ." I heard that quite a few times. Q. Did you observe them on any other occasions , except the one you mentioned, being gathered together in the building somewhere other than the dressing room? A. Yes , they were on their work . They are supposed to be working on a certain floor ; they would be on another floor. Q. What I am trying to get now , the second time you observed them while they were supposed to be working on their stations or floors? A. That's right. ' Q. Was there a second time that you saw them grouping together like that? A. Yes. Q. Well, how long after the first time was it? A. Maybe a couple of days later they would do the same thing. Q. Did you talk to them again about it? A. No, I talked to Mr. Bonin. I told him that probably they are not satisfied with the wages. Q. Did you talk to the women again after you saw them the second time going away from their stations and gathering in groups? A. Yes, I talked with them in the dressing room where everybody was in the dress- ing room. Harkiewicz' testimony was filled with such shifting answers. INTERTOWN CORPORATION. (MICHIGAN) 1183 explain about Novinskey's card.91 When Novinskey learned that the Union had not received her card she signed another one. As previously related, on the night that Novinskey turned her first card in to Walls, Harkiewicz asked her if she had signed a card, and Novinskey replied that she had. Fekete was asked to sign a union application card about September 20 by one of the elevator girls, who gave her two extra cards at the time and asked her to pass them on to cleaning women. Fekete signed one card and gave it back to the elevator girl and gave the other two to other cleaning women. Several other cleaning women asked Fekete for application cards, having heard that she had them. Fekete's card was not offered in evidence, although she testified that she saw it in McClow's custody when she paid. her union dues on October 8. d. The discharje of Burger, Novinskey, and Fekete On October 1, 1948, Fekete did. not come to work. Burger and Novinskey with the rest of the women had to wait in the dressing, room for Harkiewicz, who was not there at starting time as she usually was. When Harkiewicz did come, she called Burger and Novinskey, saying that Bonin wanted to see them in the engine room. There, Bonin told Burger and Novinskey that their work was un- satisfactory and that he was letting them go and he handed them their checks. Novinskey asked Bonin if it had taken him 2 years to let her know about her work. He told Novinskey that there had been a lot of complaints about her work. Novinskey asked why she had not been notified. Bonin did not answer. In testifying, Bonin could not remember these remarks of Novinskey, but he tes- tified that she told him, she knew why he was firing her, that he asked why, and that she just answered, "That is all right, you know," 4: and that she left the room, saying that she would be back. Bonin testified that just before discharging these two women he had made a speech to all the women. Olech testified that Bonin warned the cleaning women, just after he had discharged Burger and Novinskey, that more would be discharged if there were any more reports of unsatisfactory work. It is apparent that the discharge, in the presence of the other women, was intended to inspire fear. When Fekete arrived for.work on Saturday; October 2, her time card was not in its customary place. When she reached the basement, Harkiewicz met her and said, according to Fekete's credited testimony, "You don't work here no more." Harkiewicz took her to the office on the third floor, and took an envelope contain- ing two checks from it. One was her check for the pay period ending September 30, and the other was for the day before when she did not work. As Harkiewicz took Fekete to her locker, Fekete asked why she was discharged and if it was because she had not come to work the night before. Harkiewicz replied that that was not the reason and that if she had come the night before she would have been given her checks then. Fekete asked the reason for her discharge and Harkiewicz said because Fekete's work was unsatisfactory. When Fekete dis- puted that, according to her testimony, Harkiewicz said, "Don't argue with me ; argue with the boss." Fekete told Harkiewicz that she had been her boss, and Harkiewicz said, "Well, maybe it is the face we don't like." Fekete said that her face had nothing to do with her work and that maybe -the reason for her 41 G. C. counsel asked Walls if any cards had been passed to him . Walls answered, "Well, there might have been some passed .out, but if they asked me to hand them to someone-" He never finished nor was asked to finish this answer. ' 49 The reporter 's punctuation tends to change the meaning of this quotation . The em- phasis was on the word "you." 1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharge was that she had argued with a woman named Martha. Then as related by Fekete, Harkiewicz said, "When you work around here, you have to keep your mouth shut." The allusion to an argument with Martha, whom I identify as Martha Cebulski, was explained by Fekete as follows : Fekete had heard from an elevator girl that Cebulski had shown a union application card to Harkiewicz. Fekete told Burger and Burger spoke to Cebulski. Cebulski then came to Fekete and asked who had told her that. Cebulski, called as a witness by the Respondent, was not specifically asked about this, but on cross-examination she identified Burger and Fekete as leaders, and testified that Burger started the union move- ment while Harkiewicz was on her vacation" Cebulski did not join the Union. She-testified she would have "if the Company would have got a Union." e. Reasons given for Burger's discharge; conclusions Bonin testified on direct examination that he thought Burger would quit when he demoted her, but that he thought then that she would be given a chance, "but we didn't have too much experience as to capabilities of Marian Burger in relation to cleaning offices, in relation to being a janitress steady. Understand that she did clean offices during her term as an assistant supervisor. However, they were of short duration . . . But when Marian was demoted to janitress, why, we found that she actually wasn't a very good one at all. That was one of the contributing factors to her discharge, or possibly the main one." On cross- examination Bonin admitted, when shown by the records that Burger had been hired as a janitress and had served as such for the 1-month trial period before her promotion, that his memory had failed him. Bonin's memory failed him again when he testified : "Well, as I recall it, the decisions accumulated. The actual decision possibly to discharge the women who weren't doing a good job accumu- lated from the time Mr. Pratt returned and we had a subsequent conversation to- gether up until the time of the actual act of discharging three cleaning women. What I mean to say, the decision wasn't made in a minute. It was an accrual of ,opinions and facts over a period of time." Of course, Pratt did pot return until after the three women were discharged. If Bonin talked to Pratt about it in advance it must have been by long distance telephone. On redirect examination, Bonin was asked to fix a time after Pratt's return when he discussed his authority to discharge. Bonin answered, "Well, I believe it was possibly 3 or 4 days after his return. The discussion was in generalities, as near as I can remember. I might have mentioned some names through reports, written reports from Frances' notes about Marian Burger, possibly, and Pauline Novinskey, but I hate to swear to it. It is a little bit too hazy." No such reports or notes of Harkiewicz, if they existed, were offered in evidence, to clarify matters. The only other criticism that Bonin testified to concerning Burger was stated by him in response to a question about Burger's demotion. Concerning the high labor turnover, he testified that just before Burger's discharge "it was brought to my attention by Mrs. Harkiewicz, but I couldn't say how she got her information, that part of this turnover, unusual turnover, was due to her [Burger]. She talked too much." Nothing was said to Burger about this, apparently ; it was not one of the reasons.stated by Bonin to Burger at the time of her discharge ; and it was not included on the Respondent's personnel records as a reason for 43 If Cebulski so reported to Harkiewicz in August ,* this might account for Burger's demotion . Harkiewicz associated the group conversations with the period following, her vacation in her own testimony. INTERTOWN CORPORATION (MICHIGAN) 1185 Burger's discharge. The payroll notice as originally typed stated merely, "Dismissal. Employee's work was not satisfactory." The Respondent's answer enumerated several grounds for Burger's discharge in narrative form: (1) Insubordination; (2) Burger asserted resistance to the authority of her superior forelady continuing to the time of her vacation from July 28 to August 9; (3) upon her return from her vacation the forelady reported to management that Burger, during the forelady's absence., had attempted to promote discord among the crew of cleaning women and against the forelady, that management investigated " and found that Burger had stimulated resistance to the authority of the forelady and insubordination among the cleaning crew, and that Burger was demoted to janitress, (4). that subsequent to the demotion of Burger, a tenant reported the disappearance of miniature bottles of whiskey from his office, that shortly after this report, Burger was reported as having exhibited that kind of bottles in the cleaning crew's rest room and claiming that a tenant had given her the whiskey, and that in order to avoid having the matter reported to the prosecuting attorney's office, management decided to and did discharge Burger. In view of the fact that the only ground given on the original personnel record was that Burger's work was not satisfactory, a reason not specifically stated in the answer, the enumerations in the answer, appear as afterthoughts to bolster the Respondent's case. There was no evidence that even approached a proof of insubordination by Burger. And if, as the answer states, her resistance to authority continued until the time of I3arkiewicz' vacation, it may be wondered why the Respondent so long tolerated it. Harkiewicz testified to differences of opinion she had with Burger on the qualification of employees but nothing that could be called insubordination. There was no substantial evidence that Burger was promoting discord among the cleaning women and against the forelady, and Burger denounced any such accusation as false. The only clues to any activities of Burger during Harkiewicz' vacation that might have promoted discord are Burger's testimony of her conversation with Bonin concerning a raise in pay, Cebulski's testimony that Burger started the union talk during Harkiewicz' vacation, and Harkiewicz' testimony, "the women were telling me different things 'what was going on when I was on my vacation," such as that Burger would spend most of her time on the 30th floor with Novinskey and that when the women would ring for Burger they would not get good service. But the last even if true would not substantiate a charge of promoting discord among the women and against the forelady. Although not mentioned in personnel records, Respondent's answer, or Bonin's testimony, Harkiewicz testified of Burger on, direct examination for the Re- spondent that."on a certain floor that they would work, we would always have the complaint that she-on the floors that I would put her, well, I usually would get a complaint something would be missing." On cross-examination, I3arkiewicz testified that from sometime in January 1948 things would be missing from the place where Burger worked ; that she took magazines, cut recipes from magazines, took candy and cookies, tried clothes on, went through Bonin's desk, and went through a woman's purse. The last two have already been related. Later Harkiewicz volunteered, "I get these complaints now, too, '* Compare Bonin's testimony of Harkiewicz' report that he did not know where Harkiewicz got her information. 903847-51-vol. 90 76 1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that candy is missing . It doesn't mean anything ." Harkiewicz named Ethel Mangrum, Martha Cebulski, and Helen Haranczak as the source of her knowl- edge about things that Burger had taken. The first two were witnesses for the Respondent but neither gave testimony thereon except Cebulski as to the item mentioned in the answer, which will be related below. On cross-examination of Harkiewicz it was brought out that a cleaning woman named Anna Bochenek was discharged by Bonin after Burger had "jumped her" for taking newspapers from the newsstand in the lobby without paying. This occurred in June 1948 according to an exhibit showing the date of Bochenek's discharge. This incident would scarcely portray Burger as one of a larcenous disposition. The incident which the Respondent relied upon in its answer-the taking by Burger of miniature whiskey bottles, was related as follows: Harkiewicz testified that during the vacation of Katherine Radzienta, which was fixed as the period beginning August 30 and ending on Labor Day, September 6, she assigned Burger to take Radzieuta's floors, including the office of a Dr. Cyril Dyer on the 16th floor, and that on a Thursday during that period (which would have.to be September 2) Burger came down to the restroom about 15 minutes before quitting time when only Burger, Cebulski, and she were present ; that Burger took two minature bottles of whiskey from her apron pocket, showed them, and remarked that a doctor had given them to her. Cebulski had already given the same testimony although not in such great detail. Harkiewicz testi- fied that about September 13 or 14 Jacobs asked her, "Frances, do you know if any of the woman [sic] have ever displayed miniature whiskey bottles?" Harkiewicz testified she then told Jacobs that Marion Burger had a couple of them. Jacobs testified that early in September, Dr. Dyer's office reported that minia- ture bottles of whiskey disappeared and that later she got a report from him that a third had disappeared, that later in the month, while she was talking with Harkiewicz the latter told her that Burger had displayed a couple of miniature whiskey bottles and had said that Dr. Dyer had given them to her. Several inconsistencies between the testimony of Jacobs and Harkiewicz, and in the latter's own testimony, as well as the testimony of Dr. Dyer and his as- sistant, lead to the conclusion that the whole story, with the exception of the fact that Dr. Dyer missed two miniature bottles of liquor which he had in his office and made a report thereof to the building office, is an outright fabrication. Jacobs put Radzienta's vacation as extending from September 5 to 12. Harkie- wicz was pretty sure it was from August 30 to September 6, both inclusive, be- cause she said Radzienta had especially asked for that time which included a holiday. If Radzienta's vacation started on August 30, she would have had the benefit of an extra day with Labor Day coming on September 6. It would have been of no extra-benefit to her-if Labor Day came within the regular week of Radzienta's vacation as Jacobs fixed it. So it is more likely that Harkiewicz' memory was correct. Harkiewicz put her conversation with Jacobs as about a week after the bottles were allegedly displayed by Burger. Jacobs put it close to the end of the month. It would be difficult to explain why Burger was not immediately discharged if she was identified in inid-September as a thief. Har- kiewicz got herself into difficulty in testifying when she was trying to explain how Burger and Cebulski were in the restroom 15 minutes ahead of the other cleaning women on the night Burger was supposed to have displayed the bottles. She first testified that Burger got to the dressing room early because Burger was her assistant and had to help her put things away, and that -after Burger INTERTOWN CORPORATION (MICHIGAN) 1187 was demoted to cleaning woman she no longer got down early. After she was shown that Burger was demoted as of September 1, she changed her testimony and said that even after Burger was demoted she "still was coming down in the basement." No reference to the bottle theft was made on Burger's personnel card at the time of her discharge. Two such cards are typed. The one which was retained by Jacobs contained a penned inscription adding the alleged theft. Jacobs gave no satisfactory reason why the notation was not typed on at the time the card was originally prepared, and she testified that she could not swear that the ,penned inscription was added before November 1. Furthermore, the bottle in- cident was not reported to the Michigan Unemployment Compensation Commis- sion in the Respondent's first report on October 9, 1948. It was mentioned in a later report dated December 7, 1948. The testimony of Dr. Cyril Dyer and his assistant, Irene Maine, discloses that Maine brought Dyer about five miniature bottles of liquor when she returned from her vacation the day after Labor Day; that about a week or 10 days later Dr. Dyer opened the drawer of his desk and noticed that a bottle of Southern Comfort was missing. He called attention to this and Maine reported the loss to the building office. Dr. Dyer missed another one of the bottles a few days later. Maine testified that she did not report this second loss to the office as far as she could remember. Burger denied having taken such bottles or even having seen them. As the two bottles were not missing from Dr. Dyer's office at the same time, it is extremely improbable that, had Burger been the thief, she would have pulled two of them out of her apron pocket at the same time to show to Harkiewicz and Cebulski. As Burger was not, after Labor Day 1948, an assist- ant forelady, she would not have reached the rest room so far in advance of the other women. And if Harkiewicz' memory of the time of Radzienta's vacation is correct (and certainly the forelady would be more likely than Jacobs to remember that) Radzienta was already back from her vacation before any such bottles were even present in Dr. Dyer's office ; so Burger would not have had access thereto at that time. If Burger had taken such bottles without permis- sion, it is extremely improbable that she would have exhibited them to Harkiewicz at all. One who takes by stealth, does not, as a rule, disclose the booty to one who might later learn the facts and punish him. As no accusation of Burger was made by the Respondent at the time of Burger's discharge, or in fact even to the Unemployment Compensation Commission in the first report of discharge, I am convinced that the idea of blaming Burger for the loss of the bottles was conceived some time after Burger's discharge. Cebulski was a biased witness who bore Burger a grudge for an incident that occurred during the strike.95 Both she and Markiewicz showed their animosity for Burger in their testimony. Be- cause of this, because both gave testimony that was not credible, on all the evi- dence and my observation of the witnesses I discredit the testimony of Cebulski and Harkiewicz that Burger exhibited miniature bottles of whiskey to them or told them that they had been given to her. Furthermore, I discredit all testi- mony that any report that Burger had shown such bottles was made by Har- kiewicz to Jacobs before Burger's discharge. u When Cebulski . was going to work one day during the strike, she testified , Burger pushed her up against the building and berated her for working instead of joining the strikers. Cebulski testified that Burger raised a paper as though to strike her. However, she made her way into the building alone with no apparent harm. Police were stationed in front of the building most of the time during the strike. 1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering the shifting grounds of the Respondent's defense together with all the evidence, including that hereinafter related, I conclude that the Re- spondent discharged Burger because of her union membership and activity, and not for any legitimate reason. f. Reasons given for Novvnskey's discharge; conclusions The Respondent's answer alleged that Novinskey "was discharged for un- excused absenteeism, and for insubordination to the forelady of cleaning women, while tenants complained of work done" by her. Harkiewicz testified that the cleaning women were frequently absent without advance notice, that no one had ever been discharged< for that reason, and that Novinskey was not discharged for such reason although she was absent quite a bit. Harkiewicz did not testify to any act of insubordination. She testified that she had a personal reason for Novinskey's discharge that the Respondent did not know about- that she had discovered about 6 months or a year after Novinskey was hired that she was spreading false rumors about her. As Bonin was the one who discharged Novinskey, as he had no knowledge of this reason, and as Harkiewicz, by her own testimony, must have known of such act by Novinskey, if such there was, at least a year before Novinskey's discharge, I conclude that this had nothing to do with the real reason for Novinskey's discharge. The only cause for discharge upon which Bonin and Harkiewicz agreed was a complaint from the switchboard operator of the Dearborn National Insurance Company that she had found near her desk orange peel and the seeds of two oranges. Harkiewicz testified that the switchboard operator claimed to have left the peel on the floor for several weeks to see when the cleaning woman would pick it up, that she had told Bonin that Novinskey would not pick it up, but that Novinskey picked it up "after I told her." Harkiewicz described the refuse as two seeds from an orange and the peeling spread out on the floor. Bonin testified that the two seeds were stuck in the switchboard plugs as though they had been delib- erately put there by someone and that the cleaning woman would not have been expected to do anything about them if she had not put them there herself. Later Bonin testified that, when he went to investigate, the seeds were no longer there but the operator pointed to a fairly fresh piece of orange peel on the floor. Although Bonin placed this in late August or early September, Harkiewicz' testi- mony placed the complaint as before her vacation and therefore in July 1948. Novinskey admitted that the switchboard operator had complained about her place being dirty and that Harkiewicz had once told her about the orange peel complaint a few months before her discharge, but she testified that the switch- board operator was the only one who ever complained. Harkiewicz, in her testimony, appeared to be attempting to expand trivia. On direct examination by Respondent's counsel; Harkiewicz testified that orange peels would be under the desk for weeks and would not be swept, that the complaint was made to the office and that she got a note on it. This would appear to be the complaint Bonin investigated when he learned of the seeds in the switchboard plugs and a fairly fresh piece of orange peel under the desk. Further, on direct examination, Harkiewicz testified that the switchboard would not be dusted, the floor would be dirty, and there would always be something spilled on the switchboard-"It looked purposely to me." On cross-examination, Harkiewicz testified that the spots on the switchboard were from "some kind of water." Bonin testified to only one complaint having been received from the switchboard operator although he testified that Harkiewicz told him of other instances. As Harkiewicz testified INTERTOWN CORPORATION (MICHIGAN) 1189 that she got her information on the switchboard operator's complaint from the office, it is difficult to understand how Harkiewicz got any complaint to report to Bonin about. The switchboard operator was not a witness. Harkiewicz also testified that someone named Klein on the 30th floor, before her vacation and therefore in July, told her that the floor was not swept the way it should be. As already stated, Novinskey was absent frequently. There was no attempt to prove that any complaints occurred at a time when Novinskey was at work. That a floor was not swept as it should be at a time when there was a shortage of clean- ing women and when they were being rushed with their work is understandable. On direct examination, Harkiewicz testified that the complaint from the switch- board girl and Klein were the only complaints she could remember, but then testified that complaints came in after her vacation and that she spoke to Novin- skey about them. She gave no specifications on such complaints. The Respondent's inability to specify any complaint of Novinskey's work after July leaves the discharge of Novinskey on October 1 as unsatisfactorily ex- explained. I find that the reasons given by the Respondent for her discharge were not the real reasons, that in fact Novinskey was discharged because of her union membership and activity. g. Reasons given for Fekete's discharge; conclusions The Respondent's answer states that Fekete was discharged for unsatis- factory work and her unwillingness to cooperate with the forelady in improv- ing the unsatisfactory character of her work. Bonin and Harkiewicz, however, added a reason or two not given in the answer. Bonin testified that Harkiewicz told him Fekete was working on another job and that Fekete smoked on the job after Harkiewicz had objected. Bonin testified that he did not recall spe- cifically what was unsatisfactory about Fekete's work, but he assumed it must have been unsatisfactory because he otherwise might have overlooked her smok- ing. Harkiewicz testified that Fekete was tired and could not perform the work she wanted her to, that Fekete had another job-taking in washing and working in a market on a picking machine. Harkiewicz testified that she heard about this from another cleaning woman about a week before Fekete's discharge. Harkiewicz also testified that a Dr. Kiprie complained, that she took Fekete to Kiprie's office and showed her how to do the work but that Fekete did not do any better. She further testified that she caught Fekete smoking in a Dr. Shire's office in August, that she spoke to Fekete and told her to smoke in the halls or rest rooms rather than the offices. She did not testify that Fekete violated these instructions, although she testified that Radzienta told her Fekete continually smoked. On cross-examination, Harkiewicz testified that the Kiprie complaint was in September but before she had caught Fekete smoking in Dr. Shire's office. As she had already placed the smoking incident in August, the inconsistency is apparent. Harkiewicz did not deny that she told Burger, as the latter had testified, that Fekete was a very good worker. Fekete testified that she did what Harkiewicz told her to do and that Harkiewicz never told her to do anything over again. She denied that Harkiewicz ever spoke to her about her work, volunteered that Harkiewicz had once told her that she had forgotten to lock the doors, and that she had asked for, and Harkiewicz had given her, extra work when other women were absent. Harkiewicz did not deny this. On cross- examination, Harkiewicz testified that the two reasons for Fekete's discharge were, first, she was tired because of her other job, and, second, her, smoking. A request for extra work would not be likely to come from a tired woman. After 1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harkiewicz had been led to the admission, on cross-examination, that Fekete's job in the market was only on Saturdays, she shifted her emphasis to her con- tention that Fekete took in washing. But on direct examination she had testi- fied that she learned of Fekete's other jobs only a week before Fekete was dis- charged. No evidence was offered as to how long Fekete had had such other jobs. If she had had them any length of time, Harkiewicz would have noticed Fekete's fatigue, if any, during her trial period. She was apparently a satis- factory worker or she would not have been retained beyond the 30-day period. If Harkiewicz was told a week before Fekete's discharge that Fekete had out- side work, she apparently had not thought before then that Fekete was too tired to be retained. I conclude that Harkiewicz thought up the fatigue excuse after Fekete was discharged. That Fekete was an habitual smoker may be conceded. But that was known shortly after Fekete was hired. If that had been thought to be a ground for discharge, Fekete would have been discharged before the end of her trial period or, at the latest, when Harkiewicz caught Fekete smoking in an office. If either of the reasons given by Harkiewicz was a true one, the cause for discharge would have been known long enough in advance so that Harkiewicz could have warned Fekete that she would be discharged if the fault were not corrected and long enough to have at least given advance notice that she would be released at the end of the week. Failure to give any such notice leads to the inference that the decision to discharge Fekete as well as the others was made on October 1, the day of the receipt of the Union's letter. On all the evidence and from my observation of the witnesses, I find that the rea- sons given by the Respondent for Fekete's discharge were not true reasons ; that in fact Fekete was discharged because of her union membership and activity. As her discharge was intended to take effect on October 1, I find that that was the date of her discharge rather than October 2 when she was notified. h. Additional evidence as to reasons for the discharge of Burger, Novinskey, and Fekete; general conclusions As previously stated, an elevator operator was discharged on October 1." Gabriel Gory, a night watchman, testified to the following : On October 2, when he reported for work, Bonin told him that because of the lack of an elevator operator, he was to skip his first two rounds as a watchman and run an elevator that evening. He did so. That night between 8: 30 and 9:30 o'clock, he saw Harkiewicz in the lobby and asked her, "Where's the elevator operator?" She replied, according to Gory, "Didn't you hear, they were organizers." Gory asked what she meant and she told him that they were organizing a union, that she was a supervisor and could not join, that she had worked at many places and had had experience with them, that the leaders spent most of their time drinking and chasing around, that as far as the work is concerned the Union "would not benefit you." She gave him this example, Gory testified : "If a union woman cleans an office, I can go in there afterwards and run my finger over a molding and say, `Look, this place is dirty. You'll have to clean it over again,"' and "they'll get disgusted and finally we can actually fire them for unsatisfactory service." He also quoted Harkiewicz as saying they were short of cleaning women and that they were organizers. Harkiewicz testified that he did not recall a conversation with Gory; then she added, "I never talked to him. I used to be afraid of him." b Her discharge was not complained of as discriminatory in the complaint and I draw no inferences respecting the others from her discharge. INTERTOWN CORPORATION (MICHIGAN) 1191 Harkiewicz did not give the appearance of one who would be afraid of anyone, much less one of Gory 's slight physique . Although I feel that , in view of the lapse of time , Gory may not have remembered the conversation precisely, Gory impressed me as a sincere and honest witness and I find that the conversation in substance took place as he related it. Mary Muraszewski testified that on a night after the discharge of Burger, Harkiewicz assigned her extra floors to clean and that Harkiewicz had said it was "because I sent those three women home ." Muraszewski asked why and commented that they were good women . Harkiewicz said , according to Muras- zewski, "They were too smart ." Muraszewski asked why and whether it was because of the Union. Then , according to Muraszewski , Harkiewicz said, "The whole bunch of you aren ' t worth anything ," got angry and left. There was no attempt by the Respondent to show what precipitated the decision to discharge Burger, Novinskey , and Fekete on October 1. But Harkiewicz vol unteered a statement which might throw some light on this . After relating the grouping of the cleaning women in mid -September and her discovery that they were holding conversations which they apparently did not wish Harkiewicz to overhear , after relating that she had reported this to Bonin and told him that something was wrong and that the cleaning women were probably not satisfied with their wages , and after testifying that she had spoken to the women about not grouping up and that thereafter they had not done so but they had done their talking around the time clock , Harkiewicz volunteered , " I recommended her [Novinskey 's] discharge . Then may be my crew would get scared and start to perform their work right if we discharged these three women.". As previously pointed out , when Jacobs wrote her report to Pratt on September 7, she noted that 6 new night janitresses had been hired that day, bringing the total to 26 , and that Bonin stated the number would be trimmed down to 24 or 25. Before the hiring of these women , the Respondent had admittedly been short-handed. Before October 1 , the Respondent had lost several of the cleaning staff, and on September 30 had 21 night cleaning women 47 The dis- charge of Burger, Novinskey , and Fekete reduced the number to 18. Considering the difficulty which Bonin admitted he had in procuring cleaning women, and considering the fact that , when they had 20 cleaning women , they were short- handed, and further considering the fact that 24 or 25 was apparently the optimum number , it is inconceivable that the Respondent would reduce its staff below even the minimum number it had been struggling along on (luring the summer, especially by dropping experienced employees who had been satisfactory enough to retain at the time when the faults relied upon for their discharge were supposed to have been noted, unless something occurred just before the discharge to cause the Respondent , suddenly to make such a decision . But the only event which could explain such a sudden decision was the Respondent's receipt of the Union 's letter of September 30, claiming to represent a majority of the employees . Harkiewicz was no doubt expressing her understanding of the effect of the 3 discharges when she testified that maybe her crew would get scared and start to perform their work right , but evidence other than her testimony convinces me that, by "performing their work right," Harkiewicz meant refraining from union activity. ' 47 The employment of Myrtle Faulkner, shown on the Respondent ' s payroll for the week of September 30, was terminated on September 23. I am not counting Stephanie. Stomber, the day maid , or Walter Roessler, a janitor , because they do not come within the description "night cleaning women " as used by Jacobs. 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On all the evidence and on my observation-of the witnesses, I find that Burger, Novinskey, and Fekete were discriminatorily discharged because of their union membership or activity and not because of the reasons advanced by the Respondent. 2. The discharge of Helen Olech Helen Olech was one of the six night cleaning women hired by the Respondent on September 7, 194S. She signed an authorization card for the Union on September 28. It was Burger who gave her the card to sign. Olech was so confused on dates that it is difficult to determine the time of occurrences. Olech testified that Harkiewicz came to the 27th or 28th floor where she was working "the next day after our union meeting" and told Olech that she was a new worker and should be careful what she said and did. Although this was testified to as a separate incident from the one occurring on the night of her discharge, and G. C. counsel's questions sought to fix the date as a day or-two after the discharge of Burger, Novinshey, and Fekete, Olech testified that it occurred on the day after the second union meeting, which was held on a Friday or Saturday, and which, Olech testified was "the date after the woman got fired." The only union meeting conforming to that descrip- tion was the one held on Friday, October 8, the very night that Olech`was discharged.48 I find that such statement, if made.by Harkiewicz, was- made as a part of the conversations between them on the night of October 8 as related herein. On the night of October 8, Olech came to work directly from a union meeting. That evening after she had finished washing the stairs, Olech testified, Harkie- wicz took her down on the elevator to "the floor", apparently, where she had rooms to clean. There, according to her account, the following colloquy ensued : Harkiewicz said, "I thought I told you to be careful what you say and do around here." Olech asked her what she meant by "these warnings" and whether it would have anything to do with the Union. Harkiewicz replied that Olech knew very well what she meant. Olech said, "Phooey, if you were any kind of a forelady, us women wouldn't have to join the Union. I mean, you wouldn't go down to the office and tell them we're dissatisfied with the wages." Harkie- wicz' account went this way: On Friday, October 1,49 Olech washed 3 flights of stairs from the 30th to the 28th floor, Friday being the day for washing stairs, and then rang for Harkiewicz and, when she came, asked for Saturday off. Harkiewicz told her she could not give her Saturday off because of the shortage of help. Harkiewicz took her to the 22nd floor where Olech was supposed to clean and Olech -pointed her finger at Harkiewicz and said, "I will tell you why you are short of help, because you discharged these women, because you are no damn good." Harkiewicz asked what Olech meant and Olech replied, "Well, I will tell you, you get all the credits from the office, you don't go to the office and ask for.us poor women to get any more money." Harkiewicz thereupon discharged Olech. 48 Harkiewicz testified that on the night Olech was. discharged, which Harkiewicz mis- takenly testified was October 1, Olech washed the stairs between the 30th and 28th floors. This conforms to Olech's testimony of the location of the first conversation. Al- though Harkiewicz ' testimony of the conversation between Olech and herself differs in some details from Olech ' s account , the two accounts contain enough points of similarity to indicate that they referred to the same incident. 49 Harkiewicz was obviously mistaken about the date as the records show that Olech was discharged on October 8 as Olech testified. INTERTOWN CORPORATION (MICHIGAN) 1193 It is unlikely that either Olech or Harkiewicz would remember all that was said or the precise words used. The words quoted by Olech appear in part to be out of context and incomplete. Harkiewicz testified on cross-examination that she discharged Olech because she "couldn't afford having a person pointing at my face and argue with me.", If the testimony of both be combined, I believe the conversation between them could be reconstructed very nearly as it actually took place. It seems quite probable, however, that Harkiewicz' warnings to Olech to be careful of what she said and did related to Olech's manner of speaking to Harkiewicz rather than to any veiled reference to union activity. Although the personnel record gave "unsatisfactory work" as the reason for Olech's dis- charge, Harkiewicz made no contention in her testimony that that was the reason. Bonin gave what I regard as careless testimony about Olech. First he testified that Olech was employed subject to a 30-day trial period, during which her work was not satisfactory. Asked to give the facts upon which that conclusion was reached, Bonin answered that whether or not a person is to be discharged is left more to an impression he gets rather than to actual facts. He then testified that Harkiewicz had received complaints of Olech's work, that "to substantiate more or less the supervisor's word" he went through the offices on the floor on which Olech worked, and that there was quite a bit left to be desired as far as her cleaning was concerned. Asked to be specific, he testified that "there was a complaint that the office was not being cleaned well." He was unable to state from whom the complaint was received and displayed a total lack of knowledge of the subject and an effort to make up something to substantiate his reckless assertion that Olech's work was unsatisfactory. The Respondent's answer that Olech was discharged "during 30-day trial period of employment during which her work proved unsatisfactory" is not supported by credible or substantial evidence. Olech's 30-day trial period, begun on September 7, during which she received 65 cents an hour pay was completed on the night of October 6. By the personnel record of her discharge, her pay was shown as 70 cents an hour, the rate paid after the employee had success- fully completed the 30-day trial period. The Respondent's ineffectual attempt to discredit Olech's work tends to confirm the findings herein that a similar attempt was made, though unsuccessfully, in the case of Burger, Novinskey, and Fekete. It also gives rise to the suspicion that the Respondent desired to conceal the real reason for Olech's discharge. However, the discharge of Olech was apparently spontaneous and not planned as it was in the case of the other three, for Olech was permitted, unlike Burger, Novinskey, and Fekete; to start work the night she was discharged. Also, it may be noted, Bonin was responsible for the discharge of the first three, while Bonin was' apparently not even consulted by Harkiewicz "before she discharged Olech. There is no evidence indicating that Harkiewicz suspected Olech of union sympathy before October S. The evidence indicates that Olech was dis- charged either because of what she said or because of the manner in which she spoke to Harkiewicz. Harkiewicz's testimony was- that Olech was dis- charged for arguing and pointing her finger at her. Whether or not Olech's censure of Harkiewicz was deserved, Olech's manner was disrespectful of her superior and this lends support to the latter reason. On all the evidence and from my observation of the witnesses 5' I conclude and find that Olech was 50 Olech's testimony of her conversation with Harkiewicz was given in a rapid and rather derisive tone of voice . Her speech was unrestrained by tact and Harkiewiez might easily have resented it as insolent. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged because of the manner in which she spoke to Harkiewicz, and not because of her union membership or activity. 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 5, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to, and have led to, labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in certain unfair labor practices. It will therefore be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent argues that on the afternoon of October 25 it agreed to a consent election and that, as the Union struck in spite of this and abandoned the orderly processes of the law, the Union was in a position similar to that of a union striking in violation of a contract and that ,hence the strikers were properly discharged after the strike. The Respondent further argues that the strike was in violation of a statute of the State of Michigan which prohibited, with criminal penalties, the calling or instigating of a strike unless there first be conducted_by the State labor mediation board an election by secret ballot, held on the employer's premises ; and that, as this statute was not complied with, the Respondent was justified in not reemploying-the strikers. The first argument I have already rejected as factually not accurate. If the Respondent had in good faith bound itself to a consent election by any state- ment to Stearns or Bulley (even assuming that this would be a proper notifica- tion to the Union), it would not have been necessary for the Respondent to get any further consensus of opinion from the rest of, the employees. The Respond- ent, if it assembled its employees at all, could have told them merely that it had agreed to hold a consent election and that the employees could decide in that election what they wanted. The Respondent's continued divisive efforts in its meeting with the elevator girls, and its intended meeting with the cleaning women, indicated its lack of good faith intent that any proposal made to the day men should be an agreement then consummated. As. to the second argument-that the strike was in violation of statute-it may be stated, that, before the strike was called, an injunction had issued in Wayne County, Michigan, enjoining the enforcement of the penalty provisions of that statute 61 As• a result, the State labor mediation board was not con- ducting any strike votes at the time of the strike in this case, and it was im- possible for the Union to have a statutory strike election. It did all it was able to by conducting its own strike vote. But if, by Michigan law, the insti- gators of the strike were subject to criminal penalties, that law imposes no penalty on strikers as such and does not provide that strikers shall lose their employee status. Furthermore, it has previously been decided that, although a strike is called in violation of a similar law, the strikers are not thereby de- 51 International Union, United Automobile , etc. Workers of America , CIO v. McNally, 325 Mich. 250 , 24 LRRM 2261 ( Mich. Supreme Ct., 6-29-49). The constitutionality of the Michigan statute was attacked , and the lower court held it unconstitutional . This! decision was reversed by the State Supreme Court. INTERTOWN CORPORATION (MICHIGAN) ' 1195 prived of their reinstatement rights .2 The Respondent also offered evidence with the object of proving that certain strikers had engaged in illegal conduct during the strike. I find that such conduct, limited mostly to name calling and minor incidents, was not such, even if the testimony of Respondent's witnesses be credited, as to render the strikers unfit for further employment 63 Therefore, as it has been found that the Respondent has discriminated against certain strik- ers, (Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva King, Mary Muras- zewski, Albina Klenczar, Katherine Radzienta, Clarence Bulley, and Stephanie Stomber), it will be recommended that they be offered immediate and full rein- statement to their former or substantially equivalent positions," without preju- dice to their seniority or other rights and privileges. It will further be recom- mended that the Respondent make each of them whole for any loss of pay suffered by reason of the Respondent's discrimination against him, by payment to him of a sum of money equal to the amount which he normally would have earned as wages during the period from the date of his request for reinstate- ment to the date of the Respondent's offer of reinstatement less his net earn- ings n during said period. As it has been found that the Respondent discriminated in regard to the hire and tenure of employment of Marion Burger, Pauline Novinskey, and Hazel Fekete, it will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions 58 without prejudice to their seniority or other rights and privileges. It will be further recommended that the Respondent make them whole for any loss of pay suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount she normally would have earned as wages during the period from the date of the Respondent's discrimination against them to the date of the Respondent's offer of reinstatement, less her net earnings 5'l during said period. As the right of the foregoing nine strikers and the three discharged women to reinstatement to their former positions is not dependent upon the existence of a vacancy, they should be offered reinstatement even if it means that the Respondent has to discharge employees who were hired after the respective dates of the discrimination against the 12-named employees. As it has been found that on and after October 1, 1948, the Respondent refused to bargain with the Union as the exclusive representative of all the Respondent's employees in the appropriate unit, it will be recommended that upon request, the Respondent shall bargain with the Union as such representative and, if agree- ment is reached, embody such understanding in a written agreement. From the commission of the aforesaid unfair labor practices, especially the discriminatory discharges, and from the entire record in the case I conclude that the commission in the future of acts of interference and of other unfair labor practices may be anticipated from the Respondent's conduct in the past 58 "Hamilton v. Y. L. R. B.' 160 F. 2d 465 (C. A. 6). 63N. L. R. B. V. Reed & Prince Mfg. Co., 118 F. 2d 874 (C. A. 1) ; Kelco Corp., 79 NLRB 759. 64 In accordance with the Board 's consistent interpretation of the term , the expression "former or substantially equivalent position" is intended to mean "former position wherever possible and if such position is no longer in existence then to a substantially equivalent position ." See The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 NLRB 827. 51 Crossett Lumber Company , 8 NLRB 440 , 492-498. 56 See footnote 54, supra. 54 See footnote 55, supra. 18N. L. R. B. v. Express Publishing Company, 312 U. S. 426. 1196 * DECISIONS OF NATIONAL LABOR RELATIONS BO..-MD It 'will therefore be recommended that the Respondent cease and desist from the conduct which has herein been found to be a violation of the Act and from in any other manner infringing upon the rights guaranteed to its employees in Section 7 of the Act. Since it has^been found that the Respondent did not dis- criminate in regard to the hire and tenure of employment of Helen Olech or of any strikers other than the nine specifically named herein, it will be recom- mended that the complaint be dismissed as to them. CONCLUSIONS OF LAW 1. Retail, Wholesale and Department Store Union, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Sec- tion 2 (5) of the Act. 2. By denying reinstatement to the following strikers : Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva King, Mary Muraszewski, Albina Klenczar, Kath- erine Radzienta, Clarence Bul1ey, Stephanie Stomber ; and by discharging and failing and refusing to reinstate Marion Burger, Pauline Novinskey, and Hazel Fekete, the Respondent has discriminated against them in regard to their hire and tenure of employment, thereby discouraging the formation of, and member- ship in, a labor organization, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All employees working in the Respondent's building at 10 Witherell Street, Detroit, Michigan, except guards, supervisors, professional and office and clerical employees as defined in the Act, constitute a unit appropriate for purposes of, collective bargaining within the meaning of Section 9 (b) of the Act. 4. On October 1, 1948, and at all times material thereafter, Retail, Wholesale and Department Store Union, C. 1. 0., was, has been, and now is the exclusive representative of all the Respondent's employees in said appropriate unit, within the meaning of Section 9 (a) of the Act. 5. By refusing on and after October 1, 1948, to recognize and bargain with Retail, Wholesale and Department Store Union, C. I. 0., as the exclusive repre- sentative of all the Respondent's employees in said appropriate unit, the Re- spondent has engaged in an unfair labor practice within. the meaning of Section 8 (a) (5) of the Act. 6. By interrogating its employees concerning their union membership, views, and activities, by threatening them with loss of employment because of their union membership and activities, by giving its employees substantial increases in pay and gifts and promises of future benefits while refusing to recognize the employees' chosen representative, and by seeking to undermine the Union by dealing directly with its employees concerning wages and hours of employ- ment and manner of deciding on a choice of bargaining representative, as well as by the other unfair labor practices herein found, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices by discharging Helen Olech ' or by failing to offer reinstatement to strikers other than those heretofore named. INTERTOWN CORPORATION (MICHIGAN) 1197 RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, I rec- commend that the Respondent, Intertown Corporation (Michigan), Detroit, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease abd' desist from : (a) Discouraging membership in Retail, Wholesale and Department Store Union, 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 discrimi- nating in regard to their hire or tenure of employment, or any term or condition of their employment; (b) Refusing to recognize, or, on request, to bargain collectively with, Retail, Wholesale and Department Store Union, C. I. 0., as the exclusive representative of its employees,in the appropriate unit; (c) In any other manner interfering with, restraining, or coercing its employ- ees in the exercise of the right to self organization, to form labor organizations, to join or assist Retail, Wholesale and Department Store Union, 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 purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which I find will effectuate the policies of the Act : (a) Offer to Mary Zelepis, Margaret Baxter, Shirley Baxter, Eva King,'Mary Muraszewski, Albina Klenczar, Katherine Radzienta, Clarence Bulley, Stephanie Stomber, Marion Burger, Pauline Novinskey, and Hazel Fekete immediate and full reinstatement 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 entitled "The remedy," above; (b) Make whole all the employees named in subparagraph 2 (a) above for any loss of pay they may have suffered by making payment to them in the manner provided in the section entitled "The remedy," above ; (c) Upon request, bargain collectively with Retail, Wholesale and Department Store Union, C. I. 0., as the exclusive representative of its employees in the appro- priate unit, and, if agreement is reached, embody such understanding in a written agreement ; (d) Post immediately in its building in Detroit, Michigan, copies of the notice attached hereto marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the Seventh Region (Detroit, Michigan), shall, after being duly signed by the Respondent, be posted by it immediately upon receipt thereof, and maintained by it for 60 consecutive days thereafter, in con- spicuous 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; (e) Notify the Regional Director for the Seventh Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report of what steps the Respondent has taken to comply herewith. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also recommended that unless on or before 20 days from the date of the receipt of this Intermediate Report the Respondent notifies the 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 al- leges that the Respondent discriminated in regard to the hire and tenure of employment of Helen Olech or of the strikers other than those named in para- graph 2, ( a) of this Section. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board any party may, within twenty ( 20) days from the date of service of the order transferring the case to the Board , pursuant to Section 203.45 of said Rules and Regulations , file with the Board, Washington 25, D. C., an original and six copies of a statement in writing setting forth such excep- tions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections ) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, within the same period , file an original and six copies of a brief in support of the Intermediate Report. 'Immediately upon the filing of such statement of excep- tions and/or briefs , the party filing the same shall serve a copy thereof upon each of the other parties . Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed , and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46 should any party desire permission to argue orally before the Board , request therefor 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations , the findings , conclusions , recommendations , and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings , conclusions, . and order , and all objections thereto shall be deemed waived for all purposes. Dated at Washington , D. C., this 23rd day of December 1949. JAMES R. HEMINGWAY, Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial 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 NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist RETAIL, WHOLESALE AND DEPARTMENT STORE UNION, 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. INTERTOWN CORPORATION (MICHIGAN) 1199 WE WILL OFFER to the employees named below* immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above-named union 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 working in the building of the undersigned, located at 10 Witherell Street, Detroit, Michican, except guards, supervisors, professional, and office and clerical employees as defined in the said Act. *Mary Zelepis , Margaret Baxter, Shirley Baxter, Eva King, Mary Muras- zewski, Albina Klenczar , Katherine Radzienta ,• Clarence Bulley, Stephanie Stomber, Marion Burger, Pauline Novinskey, and Hazel Fekete. All our employees are free to become or remain members of the above-named 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 such labor organization. INTERTOWN CORPORATION (MICHIGAN), 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. Copy with citationCopy as parenthetical citation