Commonwealth Plastic Co.

National Labor Relations Board - Board DecisionsAug 26, 1941

34 N.L.R.B. 1129 (N.L.R.B. 1941)

In the Matter of COMMONWEALTH PLASTIC COMPANY and INTERNA- TIONAL UNION, PLAYTHING AND NOVELTY WORKERS OF AMERICA (CIO) Case No. C-1779.-Decided August M, 1941 Jurisdiction : plastic products manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: questioning employees concerning union activities and identity of union leaders ; expressing preference for one type of labor organization over another ; advising employee to rejoin labor or- ganization recognized by the respondent. Company-Dominated Union: charges of, dismissed. Discrimination: charges of, dismissed. Remedial Orders : employer ordered to cease and desist from engaging in unfair labor practices. Mr. Benjamin E. Gordon, for the Board. SaIny d Salny, by Mr. Samuel M. Salny, of Fitchburg, Mass., for the respondent. Mr. Sam Sandberg, of Clinton, Mass., and Grant d Anzoff, by Mr. Sidney S. Grant, of Boston, Mass., for the Union. Dyer câ‚¬ Comerford, by Mr. Richard Comerford, of Leominster, Mass., for the Council. , Miss Fannie M. Boyls, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a third amended charge duly filed on July 1,,1940, by Inter- national Union, Plaything and Novelty Workers of America (CIO), herein called the Union, the, National Labor Relations Board, herein called the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued its complaint dated July 1, 1940, against Commonwealth Plastic Company, Leominster, Massachu- setts, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, ,$4 N. I. R. B., No. 11$. 1129 1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the Act. Copies of the complaint and the third amended charge accompanied by notices of hearing were duly served upon the respondent, the Union, and Workers Council of Common- wealth Plastic Company, herein generally called the Council, a labor organization alleged in the complaint to be dominated by the re- spondent. _ Upon a fourth amended charge duly filed on August 6, 1940, by the Union, the Board by the Acting Regional Director for the First Region issued its Amendment to Complaint, dated August 7, 1940, additionally alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (3) and Section 2 (6) and (7) of the Act. Service of the Amendment to Complaint, notice of hearing, and a copy of the fourth amended charge was acknowledged by the re- spondent in a stipulation filed at the opening of the hearing on August 8, 1940, which stipulation was at the same time joined in orally by counsel for the Council and a representative of the Union. With respect to the unfair labor practices, the complaint, as amended, alleges in substance: (1) that from about April 1, 1940, the respondent engaged in threats, questionings, and other statements to discourage membership in the Union; (2) that on or about April 22, 1940, the respondent dominated, interfered with the formation and at all times since with the administration of the Council and contributed finan- cial and other support thereto by (a) instigating and participating in its formation; (b) suggesting its desirability; ,(c) assisting it in securing memberships and permitting the conduct of Council business on company time and property; (d) making known its opposition to the Union; (e) on or about May 10, 1940, granting recognition to the Council as the collective bargaining agent of its employees exclusive I of clerical and supervisory employees; (f) on or about May 11, 1940, entering into a written contract with the Council concerning wages, hours, and working conditions; and (3) that on or about June 24, 1940, the respondent laid off or discharged Clarence Girouard and refused and refuses to reinstate him because of his union membership and activity. On July 30, 1940, the respondent filed an answer admitting certain allegations with respect-to its business and admitting that the Council is a labor organization, but denying the alleged unfair labor practices. At the opening of the hearing, it was stipulated that the new matter added by the Amendment to Complaint be deemed generally denied by the respondent. On July 12, 1940, the respondent filed a motion for specifications with respect to certain allegations in the complaint. Pursuant to notice, a hearing was held on August 8, 9, 12, 13, 14, 15, 16, 19, 20, and 21, 1940, at Leominster, Massachusetts, before Samuel COMMONWEALTH PLASTER COMPANY 1131 l' H. Jaffee, the Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing the Council filed a motion to intervene which was allowed as to the 'allegation of violation of Section 8 (2) of the Act. The Board, the respondent, and the Coun- cil were represented by counsel and the Union by a representative; all participated in the hearing." Full opportunity to be heard, to examine and cross-examine witnesses, and to hitroduce evidence bear- ing on the issues was afforded all the parties. At the beginning of the hearing, the respondent's motion for specifications was denied, and in lieu of granting such specifications the phrase "and by other acts and conduct" was stricken from the-complaint as amended. At the conclusion of the Board's case, counsel for the Board moved to add a paragraph to the complaint as amended alleging certain formal mat- ter. The motion was allowed. Counsel for the respondent moved to restrict the effect of certain evidence and to dismiss certain portions of the complaint as amended. These motions were denied. At the conclusion of the hearing, counsel for the Board moved to amend the pleadings to conform to the proof. There was no objection and the motion was allowed. Counsel for the respondent moved to dismiss the complaint. Ruling on this motion was reserved and later denied in the Trial Examiner's Intermediate Report except to the extent therein indicated. At the conclusion of the hearing, the parties were afforded opportunity to argue orally before the Trial Examiner and were advised that they might file briefs with the Trial Examiner. No arguments were made. The respondent thereafter filed with the Trial Examiner a brief and supplemental brief. The Board has reviewed the rulings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On January 4, 1941, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in unfair labor practices within the meaning of Section 8 (1) of the Act and recommended that the respondent cease and desist from engaging in such unfair labor practices. He found further that the respondent had not en- gaged in unfair labor practices within the meaning of Section 8 (2) and (3) of the Act and recommended that the complaint be dismissed in so far as it so alleged. Thereafter the respondent and the Union filed exceptions to the Intermediate Report and briefs.' Pursuant to notice a hearing was held before the Board on March 6, 1941, in Washington, D. C., for the purpose of oral argument. The respond- ent and the Union appeared by counsel and participated in the argument. 1 The Council's participation was limited to the issue raised by the allegation of violation of Section 8 (2) of the Act. 1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has considered the exceptions and briefs, and in so far as the exceptions are inconsistent with the findings, conclusions, and order below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Commonwealth Plastic Company is a corporation organized De- cember 5, 1933, under the laws of the Commonwealth of Massa- chusetts with an office and plant at Leominster, Massachusetts. It is engaged in the manufacture, sale, and distribution of various plastic products, principally buttons, buckles, plastic jewelry, and automobile and radio supplies. During the year 1939 the respondent purchased raw materials costing approximately $375,000, of which 85 per cent were purchased from places outside the Commonwealth of Massachusetts and shipped to the respondent at its plant in Leo- minster, Massachusetts. During the same period, the respondent's sales amounted to approximately $750,000, about 90 per cent of the finished products being sold and shipped by the respondent to desti- nations outside the Commonwealth of Massachusetts. The respond- ent admits that it is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED International Union, Plaything and Novelty Workers of America is a labor organization, affiliated with the Congress of Industrial Organizations, herein called the C. I. 0., admitting to membership employees of the respondent. Workers Council of Commonwealth Plastic Company is an un- affiliated labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The alleged domination of and interference with the Council 1. Concerted activities At the request of a large group of employees of the molding department,2 Foreman' Joseph shortly after Christmas in 1939, ar- ranged a meeting between these employees and Superintendent Lubars, at which they presented demands for wage increases and z The respondent 's plant is divided into about eight departments , the largest of which are the polking and molding departments. COMMONWEALTH PLASTER COMPANY 1133 better working conditions. Lubars informed the molders that the respondent's plant would be moved in about a month and that all of their complaints would be taken care of at that time. Regarding the demand for an increase in wages, Lubars stated that, although he could not make a definite statement concerning the amount of in- creases, the respondent would grant some increases. He promised to call the molders together again in a short while and discuss this matter further with thiem. This was the first time, in so far as the. record discloses, that any of the respondent's employees had acted concertedly in making demands upon the respondent. By April 1, 1940, the employees, having received no wage increases, commenced discussing the formation of a_labor organization. At about this time one of the molders, Daley, visited the home of one Perlstein, a friend of his not employed by the respondent but who had been instrumental in obtaining a job for Daley through Super- intendent Lubars. Daley informed Perlstein of the employees' talk about forming a labor organization, and Perlstein suggested that Lubars ought to know about it. Perlstein thereupon invited Lubars to his home. There Daley told Lubars that most of the men with whom he worked were thinking of forming a union "of their own" and stated that if a majority of the employees on his shift joined a union, he would also join. Lubars asked who the leaders of the movement were. Daley replied that he would not tell. Thereupon Lubars stated that he would have Harry Levine, president of the respondent, discharge Daley if the latter did -not give the informa- tion. This threat, Daley conceded, was considered a joke by every- one present. Daley still refused to divulge this information, adding that if he wanted to belong to a union he would do so. Lubars then stated that he had no objection and that Daley could do as he pleased.' Daley was not discharged or otherwise discriminated against. 2. The formation of the Council About the middle of April the respondent commenced moving its operations from its old location on Spruce Street in Leominster to another building on Adams Street. At about that time the three shifts of molders held separate meetings at the old plant, at which wage increases and the desirability of organizing were discussed. The first of these meetings was held by the shift which ended its work at 3 p. m. and was apparently called by one of the molders, Melanson. The shift consisted of about 27 men. Melanson sug- gested to the men that they form some kind of a labor organization, The testimony of Daley and Lubars, the only witnesses who testified concerning this conversation at Perlstein 's home, is in substantial accord. 1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such as a workers' council similar to one which was in existence at the New England Novelty Company nearby .4 None of the employees present knew much about a worker's council but most of them were apparently in favor of forming, some kind of labor organization. At the suggestion of one of the employees, Superintendent Lubars was invited to the meeting. When he arrived, one of the molders advised him that the employees were interested in forming a union, "a sort of a workers' council or something like that," and asked him to tell the molders what he knew about a workers' council. Lubars replied that he had little knowledge of such an organization except that it was based upon employee representation in various depart- ments. He referred to-the council at the New England Novelty Company and suggested that by forming such an organization the employees might obtain wage increases. During the meeting one of the molders showed Lubars a C. I. O. pamphlet which had been dis- tributed in the city. Lubars reminded the employees of the sit-down strikes which had been called in the automobile industry in Michigan and warned them that most of the molders were married men and that strikes would result in hardships for them as well as for the respondent. One of the molders then said that it was not so much a union that the men wanted as higher wages. Lubars replied that if the employees asked the respondent for a reasonable increase, he felt certain that the request would be granted. He added that it was entirely up to the workers what they wanted to do. He con- cluded by suggesting -to the employees that if they were interested in forming a workers' council they might consult one Landry, presi- dent of the council at the New England Novelty Company, and that they might likewise see one Buckley, a local manufacturer who had been instrumental in forming workers' councils at several other plants, including the one at the New England Novelty Company.5 The other two shifts of molders held meetings shortly after the Melanson shift meeting. The meeting of the shift ending at 7 a. m. was called by an employee, Salvatore. At this meeting the employees discussed means of obtaining wage increases and there was some dis- cussion of forming a labor organization or inviting the C. I. O. to or- ganize the molders. The employees took no action, however, other than to prepare and sign a petition requesting the respondent to grant wage increases. The petition was retained by Salvatore for the pur- pose of obtaining the signatures of three or four employees who had not attended the meeting and was never presented to the respondent. * The New England Novelty Company was owned and operated by Louis and Harry Levine, who own all of the stock in the respondent corporation. There had been a workers' council in existence at the New England Novelty Company since September 1937. 5 Lubars testified that Buckley 's name was first suggested by one of the molders. How- ever , there is other evidence to the contrary and we find, as did the Trial Examiner, that Buckley's name was first suggested by Lubars. COMMONWEALTH PLASTER COMPANY - 1135 About a week later, after the molders had moved to the new plant, Salvatore called another meeting of the molders on his shift and asked them what they thought about forming a workers' council. About half of the employees present expressed themselves to the effect that they did not care what kind of a labor organization, if any, was formed, so long as they received wage increases. Thereafter Salvatore became active in attempting to promote a workers' council. After the last meeting of the molders on Salvatore's shift, Salvatore went during working hours to see Buckley, the businessman whose name had been mentioned by Lubars in his address to the Melanson shift meeting. Salvatore himself knew Buckley by sight and was ac- quainted with his reputation for assisting in the formation of workers' councils at other plants." Buckley advised Salvatore to obtain repre- sentatives from other departments of the plant and return with such representatives to his office for a further consultation. Salvatore ap- pointed these representatives, about eight in number, and on the fol- lowing day, when his shift ended, accompanied them to Buckley's office. Salvatore was then working on the 7 a. in. to 3 p. m. shift. Although the workday for some of the representatives did not end until 5 p. in., it does not appear that any of them left his work to see Buckley with- out punching out on the time clock. Buckley told the representatives what he knew about the functioning of workers' councils at other plants, suggested to them that they conduct a ballot at the plant to ascertain whether the employees desired a workers' council or some other form of organization, and told them that he would be glad to address a meeting of all the employees at some place away from the respondent's plant. On the next day, about April 26, Salvatore, with the assistance of several of the representatives, conducted an election among all em- ployees at the plant to determine whether they wanted a workers' council or an "outside" union. Although most of the ballots were dis- tributed during working hours, the evidence does not show that this fact was known to any of the foremen, except possibly Catalucci, fore- man of the polking department. In that department, where one of the representatives, Pauline Davidson, distributed about 75 ballots, this activity could hardly have escaped the attention of Catalucci, who apparently -was present in the department and in a position to observe the employees while the ballots were being distributed. Although 6 Buckley in his capacity as an employer of labor in a plant then operated by him, and in his capacity as personnel manager at two other large plants in Leominster , had become acquainted with or was known to a large proportion of the workers in Leominster , includ- ing a large number of the respondent 's employees . At one of these plants he had worked with and become well acquainted with the respondent ' s assistant superintendent , Cormier. Buckley was an officer of the local Chamber of Commerce and other local and State organ- izations whose functions , in part, involved labor relations . His services in connection with the formation of councils at various plants were rendered without any compensation to him. 1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Catalucci denied that he knew that the ballots were being distributed, we find, as did the Trial Examiner, that the ballots were distributed in such a manner that their distribution could not have escaped his attention and that he did know of their distribution. The actual voting and the counting of the ballots took place at the plant outside working hours. The vote was approximately 148 in favor of a workers' council and 17 or 18 in favor of an "outside" union. At that time the respondent employed about 200 workers, exclusive of supervisory and office employees. Thereafter Salvatore arranged for a meeting of all the employees at Eagles Hall in Leominster for the afternoon of Sunday, April 28, and invited Buckley to speak. -Normally one shift of molders worked on Sunday afternoon. Assistant Superintendent Cormier obtained permission from Louis Levine, the respondent's treasurer, to shut down the plant on the afternoon of April 28, permitting the molders to attend the meeting. Cormier testified that he had been requested by Contois, a council representative, to shut down the plant in order that the employees might attend a meeting of the proposed workers' council as well as a meeting of the C. I. O. Although the evidence does not show that a C. I. O. meeting was in fact held on that after- noon, both Louis and Harry Levine testified that they believed that two union meetings were to be held. We find, as did the Trial Ex- aminer, that Cormier and the Levines actually did believe that two meetings were to be held. The employees were not paid for the time during which they were absent from their work. About 125 employees attended the Eagles Hall meeting. Sal- vatore, who had intended to preside, did not appear promptly, and another employee, Arthur Thomas, was requested by some of the employees to, and did, preside at the meeting. Although most of its activity took place after April 28, the Union had not been entirely inactive. Sandberg, the union organizer, had distributed some C. I. O. literature, and there was a substantial amount of C. I. O. talk about the plant by that time. One of the employees invited Sandberg to attend the meeting at Eagles Hall, and when the meeting was called to order, he arose and requested permission to speak. An informal vote was taken on whether permission should be accorded, and the vote was in the affirmative. Buckley then spoke for about 15 minutes, explaining how workers' councils operated in other plants,- and Sandberg spoke for about an hour in favor of affiliation with the C. I. O. The meeting was disorderly and the employees did not reach any decision regarding the type of organization they desired. They did, however, select from among their number a small group of employees who were to arrange for a subsequent meeting at which the subject of organizing would be further discussed. This group arranged a COMMONWEALTH PLASTER COMPANY 1137 further meeting for May 4 and appointed two employees to speak in favor of a council and two others to speak in favor of the C. I. O. At the May 4 meeting, which was attended by about 125 employees, debates were had upon the merits of the two types of labor organiza- tion, and thereafter a vote was taken to ascertain which type a ma- jority of the employees preferred. Sandberg had instructed the C. I. O. adherents not to participate in any vote, and consequently some of the employees present did not vote. However, a majority of those voting expressed their preference for a council. Although no name for the organization was apparently ever formally adopted, it was generally known as Workers Council of Commonwealth Plastic Company, herein called the Council. Salvatore attended the May 4 meeting, but did not thereafter par- ticipate in any Council activities. He joined the Union on May 7. 3. Salvatore's testimony As stated above, Salvatore was very active in attempting to pro- mote a workers' council. He testified that practically all steps taken by him in the promotional activities were at the request of Assistant Superintendent Cormier. His story, briefly stated, is as follows : On the day when he Balled the first meeting of molders on his shift, he was approached by Foreman Joseph, under whom he worked, and told by Joseph that Cormier intended to request him, Salvatore, to get the employees together for a meeting in connection with wage increases. Although Cormier did not talk to Salvatore in regard to such a meeting, Salvatore, at Joseph's- request, held the meeting immediately after working hours. About a week later Cormier ap- proached Salvatore, telling the latter that they were friends and that he, Cormier, wanted Salvatore to do him a favor, for which he would be well paid. Cormier then requested Salvatore to hold a meeting of employees on his shift and ask them what they thought of a workers' council. Cormier further requested Salvatore not to mention Cormier's name to the employees. Salvatore called the meet- ing as requested. He reported the results of this meeting to Cormier, who then instructed him to see Buckley, explaining that Buckley was expecting someone from the respondent's plant and that Sal- vatore should tell Buckley who he was and Buckley "would under- stand." Thereafter, following the instructions of Cormier, Salvatore interviewed Buckley, selected representatives, took them to see Buck- ley, conducted the ballot at the plant, arranged for the April 28 meeting at Eagles Hall, and invited Buckley to speak at that meeting. Salvatore attempted to persuade Cormier to postpone the date of the meeting in order that he, Salvatore, might have more time in 1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which to notify 'all employees of the meeting. Cormier refused to postpone the meeting, and this fact, in addition to the disorder at the meeting, made Salvatore disgusted with the "trash" and caused him to withdraw from further participation in attempts to promote the Council. ' Joseph, Cormier, Buckley, and the Levines denied all testimony of Salvatore which tended to establish any connection between the formation of the Council and the respondent. The Trial Examiner believed these denials and refused to credit Salvatore's testimony in so far as it implicated the respondent and its officials and supervisory employees in a course of action designed to establish a workers' council, and we accept the Trial Examiner's findings in this respect. As the Trial Examiner has pointed out, Salvatore's testimony was in many respects vague and confused and in some respects evasive. Salvatore admitted that his memory was not very good and that he had attempted to memorize his story. Aside from the manner in which Salvatore testified, there are improbabilities in his story which cause us, as they did the Trial Examiner, to discredit his testimony. For example, although he had not been requested to avoid mention of Cormier's' name, he did not mention to the molders at the first shift meeting that Cormier wanted him to call the meeting. Furthermore, although Salvatore testified that Cormier told him that they were friends at the time Cormier is alleged to have requested Salvatore to call the second meeting, the record shows that Cormier and Salvatore were not, in fact, friends. In November 1939 Cormier had demoted Salvatore from a position as foreman to the position of an ordinary employee. Salvatore 'at that time became angry and threatened to "get even" with Cormier.' Thereafter their relations were unfriendly. There are also other improbabilities in Salvatore's story. Thus, according to Salvatore he was to be well paid for his assignment; he did the job; the job was successful. Nevertheless, there is no -evidence that he was paid or that he ever asked for his remuneration. Salvatore's testimony that Cormier's refusal to postpone the date of the first Eagles Hall meeting, in addition to the disorder at the meeting, made him disgusted with the "trash" and caused him to withdraw from further participation in attempts to promote the Council does not appear credible. The Trial Examiner's explanation of Salvatore's conduct, with which we agree, is that Salvatore became disgruntled because the leadership which he had assumed in the Council movement was lost 7 Although Salvatore denied that he told Cormier that he would "get even" with him, he admitted that at the time of his demotion he was angry and there were "words" between himself and Cormier On this point we credit, as did the Trial Examiner, the testimony of Cormier that Salvatore threatened to "get even" with him. COMMONWEALTH PLASTER COMPANY 1139 with the start of the April 28 meeting., He therefore shifted his affiliation to the C. I. O. and attempted to destroy the Council. 4. The respondent's recognition of the Council and negotiations with it Within a few days after the May 4 Eagles Hall meeting, leaders in the Council movement obtained the signatures of a majority of the employees upon a petition prepared by Buckley, signifying their desire to be represented by the Council. In the meantime, however, Sandberg had been active in soliciting members for the Union. On May 6 he wrote a letter to the respond- ent claiming to represent a majority of the employees and request- ing the respondent to set a date for a collective bargaining conference. On the following day, at a conference by a Field Examiner for the Board, aid Sandberg, with the-respondent's attorney, Salny, relative to charges which the Union had filed on April 29, Salny brought up for discussion the letter which Sandberg had sent to the respondent on the preceding day. Salny asked Sandberg whether he was pre- pared to support his claim that the Union represented a majority of the respondent's employees. Sandberg said that he was. Salny then suggested that Sandberg's claim be proved by having the re- spondent's pay roll brought in for an immediate check by the Field Examiner against the Union's membership cards. He said that if the Examiner found that a majority of the respondent's employees were members of the Union, the respondent would immediately recog- nize the Union and start bargaining with it. He added, however, that another group of employees at the plant were in the process of organizing and that whichever organization first presented proof that it represented a majority would be recognized by the respondent. Sandberg stated that he would decline Salny's suggestion that the Examiner check the Union's membership claims unless the respond- ent posted a notice stating that it would cease and desist from engag- ing in unfair labor practices. After some discussion it was agreed that, subject to confirmation by the respondent's officers, the respond- ent would post a notice advising its employees of their rights under Section 7 of the Act and that the respondent was neutral in the matter; and that the Union would withdraw its charges, not make Salvatore had been demoted in November because he could not as foreman properly handle his men. I-Ie lost his leadership in the Council movement because there, too, he was not constitutionally a leader. Thomas , who presided at the April 28 meeting , testi- fied without contradiction that he told Salvatore that he did not "think much of him" for arranging the meeting and inviting Buckley, then "not having the guts to show up; that Salvatore said that he was afraid to come to the meeting ; that Thomas then asked what Salvatore Â« as afraid of; and that Salvatore replied that he did not have the nerve to get up on the rostrum and open the meeting in front of all the employees . This testi- mony casts further doubt on Salvatore 's testimony that Cormier chose him to get the Council started. 1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD further charges based on any conduct or activity which had thereto- fore occurred, and nor use the posting of the notice for "propaganda purposes." Since Salny was leaving town immediately after the conference, it was arranged that Salny and Sandberg should meet again at the end of the week after Salny had conferred with the respondent's officials. Within a day or two thereafter, however, there occurred an inci- dent which led Salny reasonably to believe that the tentative agree- ment as to the posting,of the notice had already been used by the Union for propaganda purposes. This incident involved employee Marion Witgenstein, a member of the Union, who told several co-workers that she had understood from Sandberg that the respond- ent was to post a notice stating among other things, that there could be no workers' council in the plant .9 Asa result Salny refused to deal further with Sandberg. On May 10 Council representatives met with the Levines and Salny, claimed as members a majority cAf the respondent's employees, and requested recognition. Salny suggested that they furnish proof of their claim of majority but declined to inspect the application forms which Davidson, one of the Council representatives, offered to show him. During the discussion which followed, Salny asked whether the Council had employed an attorney. Davidson replied that she had consulted Attorney Richard Comerford a few days previously. Salny then suggested that since Comerford had already been consulted, he did not feel that he should talk to the representa- tives further in the absence of their counsel, especially since there appeared to be some question .in their minds as to whether he was "kidding" them concerning the procedure to be followed. Council representatives thereupon decided to, and did, obtain the services of Comerford. ' After Comerford arrived at the conference, arrange- ments were made with an official of a local bank to compare signa- tures on applications for membership against the employees' endorsements on their pay checks. The comparison showed that the Council in fact had as members a majority of the respondent's employees. At the request of Council representatives the respondent then gave to the Council a letter stating that it recognized the s This is the testimony of Louis Levine and an employee , Davidson. Witgenstein's statement created a heated difference of opinion in the polking department . Several of the employees , accompanied by Witgenstein , went to see Louis Levine about the dispute. Levine told them that he knew nothing about the posting of the notice . Salny had not at that time informed him of the proposed notice. Witgenstein testified that the state- ment which she made to employees of the polking department , and about which they complained to Levine , was merely to the effect that the employees could vote for or join any union they wished . As the Trial Examiner has pointed out, it is not likely that if witgenstein had made such a statement that there would have been serious disagreement between herself and the other employees . The testimony of Louis Levine and Davidson seems the more reasonable and we credit it, as did the Trial Examiner. COMMONWEALTH PLASTER COMPANY 1141 Council as the exclusive representative of the respondent's employees and that wage increases which might be agreed upon would be effective as of May 13, although a contract embodying the wage increases might not be signed until later. A copy of this letter was posted in the plant on either May 10 or the following day. Thereafter, representatives of the, Council and the respondent and their respective attorneys met on a number of occasions and nego- tiated a contract which was approved by the Council membership and signed by the parties on June 10, 1940. Under the terms of the contract the employees obtained wage increases and other substantial gains. 5. The respondent's treatment of the two labor organizations Late in April 1940, Cormier showed to Harry Levine a C. I. 0. cir- cular which he had found in the molding department, and Levine admonished him against giving advice to any of the employees about labor organizations, adding that a "long story" might be made of any- thing which Cormier might say. Harry Levine gave similar advice to Foreman Catalucci early in May when the latter showed him a C. I. 0. circular. About May 1, the respondent consulted its attorney, Samuel Salny, advising him that it expected labor difficulty in the plant and wanted to be prepared to meet it. Apparently on Salny's advice, Louis Levine instructed Superintendent Lubars that he should not interfere in any way with union activities among the employees and that he should con- vey the same instructions to the foremen. Lubars accordingly called a meeting of the molding-department foremen on May 4 and instructed them accordingly. The only foremen concerning whom there is any testimony regarding whether these instructions were followed are Catalucci, in the polking department, and Joseph, in the molding department. Employee Clarence Girouard showed Catalucci a C. I. 0. circular and asked what he thought about it. Catalucci read it and replied that one could do what he wanted to about it 10 Employee Marion Witgen- stein inquired of Catalucci whether an employee could be discharged for explaining the purposes of the C. I. 0. She testified that Catalucci replied that an employee could not be discharged, and added that the shop was getting along nicely the way it was and did not need the C. I. 0., but that everyone had a right to his own opinion. Catalucci testified that he said that any person had a right to his own opinion and that because one person thought one way and another person thought differently, there was no reason why anyone should be dis- "o This is the uncontroverted testimony of Catalucci. 451269-42-vol. 34-73 1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charged and that no one would be discharged for such reason. The Trial Examiner, after considering this testimony in the light of the circumstances under which it was given and the demeanor of the wit- nesses, credited the version of Catalucci as being substantially in accord with the facts. We agree with the Trial Examiner and find accordingly. ' Witgenstein further testified that, following her conversation with Catalucci, she was admonished several times by the latter for talking to other girls during working hours in connection with her activities on behalf of the C. I. 0., whereas Council adherents, notably Pauline Davidson, were permitted to engage in similar activity on behalf of the Council, without interference. The evidence shows, however,. that Catalucci admonished Davidson as well for such activities. We find, as did the Trial Examiner , that the extent of Council activities in the plant was somewhat greater than the Union's, but that the difference was not substantial,,nor can it be found that it reflects partiality on the part of Catalucci. Foreman Joseph was not meticulous in following the advice which he had received." On May 20, he gave to a Board Field Examiner an affidavit in which, inter alia, appears the following : Mr. Salvatore has a position with some labor organization. I tried, in what I thought was a smooth way, to get information as to what was going on. He was in the CIO I knew. I wanted the information for my own curiosity. He told me what he knew about it. I asked him how much money he expected to get; what better working conditions he expected to come about; how he was to get a complimentary vacation-as a gift from the company. Salvatore and I practically grew up together-I have known him for years and I expected that he would confide in me-to expose the inside stuff in the CIO ...12 I reported what Mr. Salvatore told me about the CIO and organization to Mr. Cormier. He made no comment-he just listened. He was my boss and our relations are businesslike-and I was trying to personalize the relationship-to break up the monotony of work. We have considered the above quotation from the affidavit and Joseph's evasive testimony with reference to it. We find that, while u Joseph testified that he received no instructions concerning union activity from anyone. However, we agree with the finding of the Trial Examiner that the instructions were given to him. 'a At this point the affidavit reads as follows : "Incidentally , Mr. Cormier told me that 'Crap' (nickname for Mr Salvatore) was going to be busy doing something for him and to try and get along without him for a short time. This was 4 weeks ago-on the day shift. I didn 't know what Crap was being given freedom of action for." The effect of this statement is considerably weakened by the fact that Cormier often asked Joseph for Salvatore 's assistance , using the latter In connection with certain repair work on the machines , during part of which time Salvatore would be away from Joseph. COMMONWEALTH PLASTER COMPANY 1143 Joseph may have been suffering from curiosity and a desire to secure his superior's approval by passing along the information received, his attitude did not indicate any favoritism between the contending labor organizations . Moreover, Joseph's statement referred to incidents which occurred about May 13 when, as stated above, the Council had already obtained a majority of the employees as members and had been recognized as exclusive bargaining agent by the respondent. 6. Structure and operation of the Council The Council has no constitution or bylaws. Although it had a bylaws committee, which met in June and considered a form of bylaws which had been furnished by Buckley, no further action was taken by the committee. The Council has a chairman, a secretary, and a treasurer. Davidson, one of the most active Council adherents, testified that all officers were elected. Other evidence, however, does not bear out this testimony. Eva Caponi, secretary, testified that she was appointed by David Press, the Council chairman, and that Dorothy Ricker obtained her position as treasurer in the same way. She further testified that she did not know how Press became chairman, whether by election or otherwise. Caponi attended only two meetings of the Council and kept very meager records. Her minutes make no mention of any elec- tions or appointments to office. We agree with the Trial Examiner that neither the secretary nor the treasurer of the Council was elected to her office, and that Press apparently did not obtain his position as chairman through any formal election by the membership. This informal set-up of the Council, however, is in no way conclusive of its lack of independence. All employees of the respondent, except supervisory and clerical employees, are eligible for membership in the Council. Mem-. bership does not entail the payment of dues. Minor expenses, such as for meeting places, have been met by collections made at Council meetings. As has been stated above, the Council obtained the services of an attorney, Richard Comerford,13 in connection with its negotiations with the respondent. Comerford during May and June had many conferences with Council representatives and with the respondent's officials and its attorney. He also represented the Council at the hearing. He had not prior to the hearing received any compensation for his services from the Council, nor had he made any charge for such services. The only explanation in the record for this circum- 13 During the time that several of the employees consulted' Buckley he told them that lie was not an attorney and could not advise them as to the legal aspects concerning the formation of a council . He suggested the names of several attorneys in Leominster whom they might consult Among these names was Comerford's. 1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stance was the testimony of Davidson. She testified that shortly be- fore the hearing the Council voted to employ Comerford to represent it at the hearing, and that Comerford volunteered his services with the understanding that the Council was to pay him "if and when [it] wanted to." Comerford was a friend of Davidson, and she had con- sulted him about May 2 for advice in regard to the Council, paying him the sum of $2 out of her own money. She was never reimbursed by the Council for this expenditure. There is no evidence that the respondent was in any way instrumental in obtaining the services of Comerford, and his seeming indifference to compensation does not war- rant an inference that he was acting for the respondent. 7. Conclusions As the Trial Examiner has pointed out, there are certain circum- stances which give rise to some suspicion concerning the respondent's role in the formation of the Council. There was such an organization in existence for over 2 years at the New England Novelty Company, a Levine corporation, and Buckley had assisted in its formation; Buck- ley and Cormier had worked together for another Company and were well acquainted ; Harry Levine testified to a preference for the Coun- cil; Lubars had engaged in interference at the meeting of the molders called by Melanson and at Perlstein's home; the Council had no con- stitution and bylaws or dues, and the manner in which its officers were selected is shrouded in doubt. 'However, none of these circum- stances affords sufficient basis for a finding that the respondent domi- nated or interfered with the formation or administration of the Council. As has been stated, about Christmas in 1939 the employees had for the first time acted concertedly in making demands upon the respond- ent concerning their wages and working conditions; they were prom- ised wage increases after the plant moved to its new location in "about a month"; several months elapsed and the promised increases did not materialize; about the first of April 1940 there was some discussion of organizing, which originated spontaneously among the employees without any interference from the respondent; the first suggestion con- cerning a workers' council as a possible form of organization came, not from the respondent, but from Melanson or some other non-super- visory employee ; the employees formed the Council only after hearing addresses by Buckley and Sandberg concerning the merits of a council as well as of an affiliated organization, and after debating among them- selves the relative merits of the two types of organization; and the respondent's treatment of the competing labor organizations indicated, COMMONWEALTH PLASTER COMPANY 1145 we believe, impartiality between them.'4 We do not believe that the election which was held in the plant about April 26, in view of the circumstances under which it was conducted, had any coercive effect upon the employees, or that the respondent violated the Act by failing to object to its conduct.15 While we think it clear that Lubars' remarks at Perlstein's home and at the Melanson shift meeting of molders were types of interference proscribed by the Act, we nevertheless are con- vinced that the potency of the desire on the part of a majority of the employees for an independent labor organization such as the Council transcended the effect of Lubars' remarks.16 We find, as did the Trial Examiner, that the respondent has not dominated or interfered with the formation or administration of the Council or contributed support to it, and shall dismiss the complaint in so far as it so alleges. B. The alleged discrimination against Clarence Girouard Girouard was regularly employed by the respondent as a scrap boy and set-up man in the polking department. Early in June 1940 a decrease in work in the polking department required that Girouard and another scrap boy, Tata, be either laid off or transferred to some other department. Both employees were able workers and their fore- man, Catalucci, after obtaining permission from Superintendent Lubars, transferred them to the molding department, where he in- tended that they should work temporarily pending their transfer back to the polking department. Both employees understood at the time the transfer was made that their new jobs were merely temporary. The transfer of these employees to the molding department brought protests from regular molders who were either in a lay-off status or were working temporarily in the construction gang. Sandberg, on behalf of the Union, wrote the respondent on June 18 protesting the transfer of these two employees to the molding department at a time when regular molders were laid off. Marrini, a Council representa- 14 See Matter of F. S. Elam Shoe Company, Inc . and United Shoe Workers of America of the Committee for Industrial Organizations, 13 N. L. R B. 92; Matter of Aeolian-American Corporation and Amalgamated Piano Workers of America, 8 N. L. R. B 1943; and Cf Matter of The Van Iderstine Company and District # 50 of the United Mine Workers of America, 17 N. L. R B. 771; and Matter of Jefferson Lake Oil Company, Incorporated and Sulphur Workers Local Union No 21195 , 16 N. L R. B. 355; Matter of Mohawk Carpet Mills, Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1265 '--Matter of J. Wiss & Sons Company and United Electrical , Radio and Machine Workers of America, 12 N L R. B. 601; and Cf. Matter of Lancaster Iron Works, Inc. and Amalgamated Association of Iron, Steel and Tin Workers of North America, Local #1035, 20 N L R. B. 738 ; and Matter of Automotive Maintenance Machine Company and Steel Workers Organizing Committee on behalf of Amalgamated Association of Iron, Steel & Tin Workers of North America, 13 N. L. R. B. 338. 16 Cf. Matter of Sprague Specialties Company and United Electrical, Radio and Machine Workers of America, Local No. 249, 20 N. L. R. B. 585; Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175-A, International Brotherhood of Electrical Workers, 12 N. L. R. B 375. 1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive in the molding department, voiced a similar objection. As a result of these protests, Superintendent Lubars, on June 24, summoned Girouard and Tata to his office and informed them that because of the complaints which he had received they could no longer work in the molding department. He thereupon laid off both of them, prom- ising them employment in the polking room as soon as work increased. According to Lubars' uncontradicted testimony, Girouard at that time conceded that the molders' complaints were justified. Girouard was one of the employees most active in promoting the Council. However, on June 22, prior to his lay-off, he had attended a union meeting and joined the Union. The complaint alleges that Girouard was laid off or discharged by the respondent on June 24 and refused reinstatement thereafter because of his union membership and activity. However, it is plain from the evidence set forth above that the reason given to Girouard for his lay-off was the true reason, and we so find. Girouard's case must therefore rest, if at all, on the allegation of discriminatory refusal to reinstate. It is conceded by the respondent that it had knowledge of Girouard's transfer of membership from the Council to the Union. Indeed, Girouard told Lubars at the time of the lay-off that he had joined the C. I. 0., and Lubars replied, according to Girouard, that the latter had a right to do so. Other conduct of the respondent's representa- tives shortly thereafter, however, does not show an indifference on the part of the respondent to Girouard's shift in his union affiliation. On June 26 during the lunch hour, while Girouard was soliciting members for the Union, he was observed by Harry Levine. Later that day, while waiting to interview Louis Levine, Girouard met Harry and the latter asked him whether he did not think that he, Girouard, had been foolish and "pretty smart," why he had done ,'such a thing," and why Girouard had not seen him prior to joining the C. I. O. Harry added, according to Girouard, that if the latter had seen him first he would have been working, but that, due to circum- stances in the plant, Girouard could not be reinstated immediately because such reinstatement would make it appear that the respondent was "scared" of the Union. Girouard testified that he then asked Harry when he could return to work and that Harry replied that Girouard should "wait and suffer" for a few weeks and Harry would then see what could be done with Marrini, the Council representative in the molding department. Harry Levine did not specifically deny Girouard's testimony, and his recollection of the incident was con- cededly not complete. We conclude, as did the Trial Examiner, that Girouard's testimony is substantially true, except that we do not credit his testimony that Harry Levine remarked that if Girouard had seen him first he would have been working. COMMONWEALTH PLASTER COMPANY 1147 Girouard was notified by Lubars that he should report for work on August 3 and it was unquestionably the intent of the respondent to give Girouard employment on the week-end shift starting August 3. However, certain dies failed to arrive that morning, necessitating the curtailment of two names from the list of employees who had been called to work on that day. Since Girouard's name was the last on the list of employees to be recalled, he was one of the two employees who was notified not to report for work. Girouard was notified by Cormier. During the interview with Cormier the latter advised Girouard, in substance, that he should rejoin the Council. It does not appear, however, that Cormier made affiliation with the Council, a condition upon which Girouard might be reinstated. We are con- vinced that the respondent's failure to reinstate Girouard on-August 3 was not because of an intent to discriminate against him because of his union membership. Tata, the other scrap boy who was laid off in the polking department at the time Girouard was laid off, was reinstated to his old position after August 3.11 Tata had greater length of service with the re- spondent than Girouard. However, Girouard was a better worker and was married, whereas Tata was single. It was provided in the contract between the respondent and the Council that all of these factors should be considered in laying off and reinstating employees, and it might reasonably be contended that Girouard was entitled to reinstatement in preference to Tata. However, Foreman Catalucci testified that he considered Girouard "next in line" for employment in the polking department, and his testimony impresses us, as it did the, Trial Examiner, that Catalucci practiced no unlawful discrimi- nation. In the molding department a former employee, Daigle, who at one time had been a regular molder, was employed in preference to Girou- ard. Louis Levine, who had not done the hiring, was of the opinion that he would have chosen Girouard instead of Daigle. Nevertheless, we are of the opinion that in this department also the evidence fails to establish discrimination as to Girouard. We shall therefore dismiss the complaint in so far as it alleges that the respondent discriminated with respect to the hire and tenure of employment of Girouard. C. Interference, restraint, and coercion In certain particulars Lubars, Harry Levine, Cormier, and Joseph engaged in conduct violative of Section 8 (1) of the Act. Lubars' remarks to Daley about April 2 or 3 at Perlstein's home, his statements about April 16 or 17 at the meeting of the shift of molders which had 17 Tata was not a member of the Union. 1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been called by Melanson, Harry Levine's statements to Girouard on June 26, Cormier's advice to Girouard on August 3 that he rejoin the Council, and Joseph's questioning of Salvatore concerning union ac- tivities, all of which are more fully detailed above, are forms of inter- ference, restraint, and coercion proscribed by the Act. We find that by the foregoing conduct of Lubars, Harry Levine, Cormier, and Joseph, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent described in Section III-C above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in and is engaging in certain unfair labor practices, we shall order the respondent to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Union, Plaything and Novelty Workers of America, affiliated with the Congress of Industrial Organizations, and Workers Council of Commonwealth Plastic Company, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not dominated or interfered with the forma- tion or administration of, or contributed financial or other support to, Workers Council of Commonwealth Plastic Company, within the meaning of Section 8 (2) of the Act. 5. The respondent has not discriminated in regard to the hire or tenure of employment of Clarence Girouard, and has not thereby dis- COMMONWEALTH PLASTER COMPANY 1149 couraged membership in a labor organization , within the meaning of Section 8 ( 3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent , Commonwealth Plastic Company , Leominster , Massachu- setts, and its officers , agents, successors , and assigns , shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self- organization , to form, join , or assist labor organizations , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places throughout its plant in Leominster , Massachusetts , and maintain for a period of at least sixty ( 60) consecutive days from the date of posting , notices to its employees stating that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order ; (b) Notify the Regional Director for the First Region, in writing, within ten ( 10) days from the date of this ' Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) and (3) of the Act. MR. EDWIN S . SMITH, dissenting in part: I dissent from that portion of this decision which discusses the allegation that the respondent engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. As set forth in the decision , upon the first occasion when the likeli- hood of the employees ' organizing was called to the attention of the respondent , it reacted , through its superintendent , Lubars, by asking the employee , Daley, who the leaders were and threatening to dis- charge him if he did not tell. Lubars soon thereafter addressed one shift of the molders in which he made clear to them that he preferred an organization such as the Council to the C. I. O. and suggested that the employees might consult Buckley who had theretofore or- ganized a workers council at another plant owned by the Levines. 1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The employees did so, and, with Buckley's assistance, formed the Council. I would find from the above facts, without regard to Salvatore's story, that the respondent dominated and interfered with the forma- tion of the Council and gave support to it. I would also find that the advice of Harry Levine and Cormier to the employee Girouard that he rejoin the Council, set forth in Section III-B of the decision,, was a further form of support given by the respondent to the Council. Furthermore, I also believe Salvatore's story. It fits into and explains logically the sequence of events leading to the formation of the Council and Salvatore's own prominence in promoting the Council. In this connection I consider as significant a fact not mentioned by the majority. Salvatore borrowed Assistant Superintendent Cor- mier's car to transport some of the representatives to Buckley's office. Cormier's explanation that Salvatore asked his permission for use of the car but did not inform Cormier of the purpose for which Salvatore intended using it, is not credible. Cormier could recall no other occasion upon which Salvatore had asked permission to use the car, and could name only one other employee, a personal friend of his, to whom he had ever loaned his car other than on the respondent's business or Cormier's personal business. Salvatore's explanation that he asked Cormier for permission to use the latter's car in carrying out Cormier's instructions that he take the representatives to see Buckley, is the more reasonable explanation of this incident. Another matter which I consider significant as corroborative of Salvatore's story is the affidavit which Foreman Joseph gave to a Board Field Examiner on May 20, 1940. Why would Joseph have believed that Cormier would be interested in the "inside stuff in the C. I. 0." and why would he have reported to the Field Examiner the fact that Cormier wanted Joseph to get along without Salvatore for a short time while Salvatore was busy doing something for Cormier if Cormier's conduct had not indicated his undue interest in the employees' organizing activities? Joseph's statement that Salvatore was "given-freedom of action" as about the time Salvatore was most active in promoting the Council can be reasonably explained only by accepting Salvatore's story. The majority of the Board has accepted as true all denials and' explanations of the respondent's officials and supervisors where their testimony conflicts with Salvatore's, although it has in some respects refused to credit the testimony of each of such witnesses. Moreover, the reasons assigned by the majority for disbelieving Salvatore are either not supported by the record or, in my opinion, are unsound. Thus, the majority finds that as a result of Cormier's demoting Sal- COMMONWEALTH PLASTER COMPANY 1151 vatore in November 1939, they were unfriendly thereafter; but both Salvatore and Cormier testified that by April 1940, when Council activities commenced, their relations were friendly. The majority finds that although Salvatore testified that he was to be well paid for his assignment, there was no evidence that he was paid. How- ever, according to Salvatore he was to be well paid by being given steady work, and he was given steady work at times when a number of other molders were laid off. The majority also suggests that Salvatore was probably disgruntled because the leadership he as- sumed in the council movement was lost with the start of the April 28 meeting, that he therefore shifted his affiliation to the C. I. 0. and attempted to destroy the Council. However, Salvatore admitted that while soliciting members for the C. I. 0., he expected to become an officer in that organization, and that he was not elected to any office. There is consequently just as good reason to believe that he would feel disgruntled and want to destroy the C. I. 0. as the Council.