Simmons Co.

National Labor Relations Board - Board Decisions

Dec 29, 1943

54 N.L.R.B. 130 (N.L.R.B. 1943)

In the Matter of SIMliroNs COMPANY, A CORPORATION and
ADOLPH J. ZURGA
Case No. 2-C-4886.Decided December 29, 1943
DECISION
AND
ORDER
On September 13, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
ana recommending that it cease and desist from the unfair labor
practices found and take certain affirmative action, as set out in the
copy of the Intermediate Report attached hereto. Thereafter, the
respondent filed exceptions to the Intermediate Report and a support-
ing brief; Adolph J. Zurga, upon leave granted by the Board, filed
an answering brief. Oral argument in which the respondent, Zurga,
and Simmons Elizabeth Employees' Union, Inc., an unaffiliated labor
organization, herein called the Union,' participated, was-bad before
the Board at Washington, D. C., on October 28, 1943. The Board
has considered the rulings of the Trial Examiner at the hearing and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the respondent's brief and exceptions, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions, additions, and
qualifications noted below :
1. The Trial Examiner found, as part of the background, that the
respondent assisted the Union in various ways. We concur in these
findings, but we do not agree, on the basis of the record, that the
respondent's assistance to the Union included the granting of per-
mission to the Union to use its bulletin boards and the payment to
employees, on one occasion, for time spent at a meeting of the
Union. The Trial Examiner's findings in these respects are hereby
reversed.
'At the oral argument, the Union, although not theretofore a party to the proceeding,
requested and was permitted to intervene as amicus curiae.
54 N. L. R. B., No. 24.
130
SIMMONS COMPANY 131
2. We agree with the Trial Examiner that Zurga was discharged
because of his union and other concerted activities.
For several years prior to January 23, 1942, Zurga was the most
active champion of the demands of the Union and the most vigorous
opponent of the positions of the respondent. Zurga's militancy in
behalf of the Union manifested itself in his criticism of those union
leaders who, he thought, were not acting in the best interests of the
members, and in his acceptance and effective handling of many offices
in the Union .2 When Zurga's leadership in the Union terminated,
he lost little time in engaging in further union activities. He became
chairman of the Simmons Organizing Committee and was outstand-
ingly active in a vigorous C. I. O. organizational campaign conducted
at the respondent's plant from the early part of March until the
consent election of May 12, 1942. After the C. I. O. had lost the
consent election to the Union, Zurga, though less prominent in the
C. I. O.'s behalf, maintained his interest therein and told the re-
spondent's employees that the C. I. O. was coming back to the plant.
He also continued his efforts in advancing the welfare of the respond-
ent's employees through self-organization and collective bargaining.
Thus, on August 30 and September 15 he attended meetings of the
Union, raised strenuous opposition to the terms of a proposed contract
between the Union and the respondent, and objected to the methods
being used by the Negotiating Committee to effect ratification of the
document. ' His efforts resulted in the elimination of the swing shift
provision from the contract and in a vote by the membership post-
poning action on the contract until.a general membership meeting
could be convened on September 20 for that purpose. No such meet-
ing was held. Nevertheless the contract was signed; and Zurga's
union activity was thereupon interrupted by his abrupt discharge
on September 24.
The respondent was well aware of Zurga's union and concerted
activity. Zurga met frequently with the respondent while serving on
various committees of the Union, and the respondent admitted that he
was "quite active" and "very efficient" as a member of the Union's Board
of Trustees and as chairman of its Grievance Committee. The
respondent admittedly knew of Zurga's very active part in the vigorous
2 Particularly noteworthy in this respect are ( 1) the incident in March 1941 in which
Zurga , then a member of the Guevance Committee, charged that committee with "negli-
gence" in the performance of its duties and upbraided , the chairman for not supporting
him in pressing a 6 months old grievance before the respondent, and (2 ) the occasion on
May 27, 19 41, in which he charged the president of the Union with "poor leadership and
negligence" and requested his resignation . The first incident eventuated in the resignation
of-the Grievance Committee and the appointment of a new Grievance Committee with
Zurga as chairman ; while the second incident resulted in the president ' s resignation and
in Zurga s election as vice president of the Union and chairman of its first Negotiating
Committee.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. I. 0. organizational campaign. As found by the Trial Examiner,
the respondent also knew of the role'he played in effecting the resigna-
tion in 1941 of the Union's Grievance Committee and of the Union's
president; was apprised of the fact that the refusal of the Union to
ratify the proposed 1942 contract, when it was first presented, was due to
Zurga's opposition; 3 and was aware of his intention to renew his
organizational efforts on behalf of the C. I. 0. following the May 12
election 4
It is clear that Zurga's activity in the Union, the organization
favored by the respondent to represent the greatest proportion of its
employees, and his activity in behalf of the C. I. 0. were opposed by
the respondent : the former, because it interfered with the Union's
tractability; and the latter, because it menaced the Union's very exist-
ence. Thus, in July 1941, Zurga's activity evoked concededly un-
founded charges 5 against him by the respondent. At that time, Ham-
ilton made apparent the respondent's resentment towards Zurga, by
stating to him in the presence of the Grievance Committee, of which he
was the chairman, "I don't have anything on you this time . . . but
if ever I do, I will get you no matter how long it takes." The respond-
ent resented the time spent by Zurga on grievances. This is implicit
in Work Manager Chaffe's statement that he had "checked the records
of previous delegates or trustees and compared the record," and that
ever since Zurga had become chairman of the Grievance Committee "the
amount of hours put in for trustees' work went up high." This antip-
a we agree with the Trial Examiner that, in view of the frequent meetings between the
Board of Trustees , as well as the Grievance Committee of the Union , and the respondent,
"realistic appraisal of human conduct warrants the finding that the changes and the rea-
sons therefor were discussed by the committee and the trustees with the respondent "
Moreover , we regard as material in this respect the testimony of Gilroy , manager of the
respondent 's Atlantic Division , that "in meetings with the trustees they don't always tell
you what is going on but you sense they might be having trouble " In addition , the exist-
ence of a close relationship between the Union and the respondent is implicit in Division
Superintendent Coyle 's reference to the' Grievance Committee on the day of Zurga's dis-
charge , as "our Grievance Committee " ; in the respondent 's ready release on the same day
to employee Souza , chairman of the Grievance Committee , of the future production sched-
ule, although Hamilton , assistant superintendent of the plant , testified that the various
departmental superintendents had only an idea of production in their respective depart-
ments, and in Personnel Manager wiltse's admission to Zurga in June 1942 , in answer to
the latter 's charge that the respondent had discriminated against him by not selecting
him for vocational school , that his name had been considered several times and the Union
had opposed sending him to school.
4 Like the Trial Examiner , we are of the opinion that such an inference is warranted by
the record Thus, it is established by the ciedible testimony of Zurga that , during his
conversation with Wiltse in June 1942 , ielative to his being sent to vocational school,
Wiltse asked him whether he had settled down , explained further that he had reference to
the "trouble" with the C. I 0 , and inquired whether Zurga thought that the C I O. "will
come back in here " In addition , in view of the close collaboration between the Union
and the respondent , it is reasonable to conclude , as we do, that the respondent was in-
formed of the fact that members of the Union Negotiating Committee had impugned Zurga's
motives in opposing the contract at the August 30 and September 15 meetings of the Union
and had charged him with favoring the C L.0. and with seeking to weaken and divide the
Union so that he could eventually get the C. I 0 into the plant
5 He was charged with the use of abusive language and unauthorized roaming about a
department.
SIMMONS COMPANY 133
athy toward Zurga continued apace after the C. I. O.'s loss of the
consent election in May 1942. It was revealed most significantly in the
initial by-passing of Zurga on the matter of sending him to vocational
school; in Superintendent Frank Adam's warning on August 24 to
Zurga, who was then newly assigned to his department, that "things
[were] different" in his department from what they were "on the other
side" in the mattress department, that there must be "no trouble," and
that Zurga would have to behave himself; in Foreman Willig's state-
ment to employee Marcel during the latter's conversation with Zurga
on September 5 that "You are not allowed to talk to this fellow
[Zurga]"; 6 in Foreman Tucker's remarks to Zurga on September 21,
on the occasion of the latter's transfer to the cross-stitch department,
that "things [were] a lot different" from what they had been, and that
Tucker "wasn't going to stand for any monkey shines" ; and in the
action of Tucker on September 22 in ordering Zurga to go home when
one of his machines broke down, thereby ignoring the practice of
allowing an employee to continue with one machine while the other
was being repaired.7
Significantly, Zurga's "discharge' on • September 24, 1942, occurred
shortly after his renewed activity in the Union had resulted in further
interference with the Union's tractability, and had caused certain
members of the Union Negotiating Committee to charge openly that
Zurga was motivated by a desire to bring the C. I. O. into the plant.
The respondent's contention at the hearing before the Trial Examiner
that it discharged Zurga for several reasons including that of spreading
false rumors is not supported by the evidence. It is clear, and we
find, as did the Trial Examiner, that only the rumor incident was con-
sidered by the respondent at the time of the discharge." Moreover, in
our view of the case, we find it unnecessary to resolve the conflict in the
testimony as to whether or not Zurga was spreading or circulating
false rumors prior to his discharge. It is our opinion , and we find,
8 This incident occurred 6 days after Zurga had announced his opposition to the ratifica-
tion of the proposed contract between the Umon^and the respondent.
Indeed, Tucker was subsequently ordered by Division Superintendent Coyle to return
Zurga to work on one machine , after the latter had complained to Coyle.
8 In making this finding, we have considered the matters set forth in the Intermediate
Report, the testimony of Division Superintendent Coyle that the rumor incident was the
sole cause of the discharge, and Personnel Manager Wiltse's testimony that only after the
discharge did he learn of the down time incidents relied upon by the respondent to support
one of its asserted reasons for the discharge
Even assuming arquendo that the other reasons were considered by the respondent, we
are convinced , and we find , that they are patently lacking in merit Their insignificance
stems first from the respondent 's failure to make those reasons known to Zurga at the
time of his discharge ; secondly, from the fact that , although Hamilton testified that after
each of the incidents upon which these asserted reasons are founded the respondent decided
not to discharge him but to give him another chance , it is nevertheless true that the re-
spondent was curiously secretive above having given Zurga another chance , and at no time
was Zurga admonished or told that he was being given another chance ; and thirdly, from
the respondent 's position at the hearing that none of these reasons standing along caused
the discha, ge.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, even assuming the occurrence of the rumor incident, as urged by
the respondent, it did not constitute the basis for discharging him and
thereafter refusing to reinstate him. That this is so, is made strikingly
apparent by Hamilton's testimony that "We don't just discharge
employees for passing a rumor from one employee to another .. .
when someone causes a disturbance in the entire department and there
happen to be other incidents in connection with the rumor then it is
time to think the situation over in its entirety." Indeed, by its partial,
superficial, and inadequate investigation of the rumor incident, the
respondent demonstrated that it was concerned only with the mere
formality of establishing a record rather than with an attempt to deter-
mine whether Zurga had been guilty of circulating false rumors.
In the light of all the facts, we are convinced, and we find, that the
rumor incident was seized upon by the respondent as a convenient pre-
text for the discharge, and that the respondent was in fact motivated
by its determination to rid itself of an employee who had trenched
upon its favorable relations with the union in disregard of its desires,
and whose persistent efforts might have resulted in the replacement
of the tractable Union by the C. 1. 0.
We find, upon the entire record, that, by discharging Zurga, the
respondent has discriminated against him in regard to hire and tenure
of employment, thereby discouraging membership in the C. I.O. and
interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
ORDER-
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Simmons Company, a cor-
poration, Elizabeth, New Jersey, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers' of
America, affiliated with the Congress of Industrial Organizations, or
in any other labor organization of its employees, by discharging or
refusing to reinstate any of its employees, or by discriminating in
any other manner in regard to their hire or tenure of employment
or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties, for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
SIMMONS COMPANY 135
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Adolph J. Zurga immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority and other rights and privileges;
(b) Make whole adolph J. Zurga for any loss of pay he has
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 from the date of his discharge
to the date of the respondent's offer of reinstatement, less his net
earnings during said period; .
(c) Post immediately in conspicuous places in the respondent's
plant at Elizabeth, New Jersey, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs 1
(a) and (b) of this Order; (2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a) and (b) of this Order;
and (3) that the respondent's employees are free to become and remain
members of United Furniture Workers of America, affiliated with the
Congress of Industrial Organizations, or of any other labor organi-
zation, and that the respondent will not discriminate against any
employee because of his membership or activity in that or in any other
labor organization;
(d) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. John J. Cuneo, for the Board.
Mr. Raymond E. Hackett, of Stamford, Conn., and Mr. Jerry F. Hanak, of
Kenosha, Wis., for the respondent.
Mr. Harry Weinstock, by Mr. Reuben Turetsky, ' of counsel, ' of New York,
N. Y., for Adolph J. Zurga.
STATEMENT OF THE CASE
Upon a charge duly filed on September 28, 1942, by Adolph J. Zurga, the
National Labor Relations Board, herein called the Board, by the Regional Di-
rector for the Second Region (New York City), issued its complaint dated June
9, 1943, against Simmons Company, a corporation, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
'Although this name is spelled Turretsky in the record, and no correction was made
therein, the Trial Examiner as informed by counsel at the hearing that the correct
spelling of his name was Turetsky , and his name is so spelled in the brief filed by him on
behalf of Zurga.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Section 8 (1). and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint, accompanied by notices of hearing
thereon, were duly served upon the respondent and Adolph J. Zurga.
With respect to the unfair labor practices, the complaint alleged, in sub-
stance, that the respondent: (1) from on or about March 1941, to the date
of the complaint, urged, persuaded, threatened, and warned its employees to
refrain from membership in and activity on behalf of United Furniture Work-
ers of America, C. I. 0., herein called, the C. I. 0.,,and' to refrain from engaging
in concerted activities for the purpose of collective bargaining or other mutual
aid and protection; and (2) on September 24, 1942, discharged and thereafter
refused to reinstate Adolph J. Zurga because he joined and assisted the C. I..0.,
"and/or engaged in other concerted activities for the purpose of collective bar-
gaining or other mutual aid and protection, and/or because on or about August
30, 1942, indicated his opposition to the activities of Simmons Elizabeth Em-
ployees' Union, Inc.," herein called the Union In its answer dated June 14,
1943, the respondent admitted the allegations of the complaint as to the nature
of its business but denied that it had engaged in any unfair labor practice.
Pursuant to notice, a hearing was held from June 28 through July 2 and from
July 6 through July 10, 1943, before the undersigned, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent, and the
complainant were represented by counsel and participated in the hearing. All
parties were afforded full opportunity to be'hetird,•to examine a1ii cross.examine
witnesses, and to introduce evidence bearing on the issues At the close of the
hearing, a motion by the Board to conform the complaint to the proof as to
dates, spellings, and similar formal matters was granted without objection. The
parties, upon request of the undersigned, argued orally before him. They were
also given an opportunity to file briefs with him and the respondent and the
charging party each filed one.
Upon the record thus made and from his observation of the witnesses, the-
undersigned makes the following: -
I
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation having an executive office in New
York City. It has a plant at Elizabeth , New Jersey , which is the only plant in-
volved in this proceeding . It is engaged there in the manufacture , sale, and dis-
tribution of mattresses,,springs, = sleeping . surfaces , - gas. engines , parachutes , shells,
and related products . Between 80 and 85 percent of its products are manufac-
tured for the United States Government . During the period from about June 1,
1942, to June 1, 1943 , the respondent, in the conduct of the business at its Eliza-
beth plant , purchased raw materials valued at more than $1,000,000. Approx-
imately 75 percent of these materials came from points outside of the State of
New Jersey . During this same period , the respondent manufactured more than
$1,000,000 worth of finished products at its Elizabeth plant. Approximately 75
percent of these products were shipped to places outside of the State of New
Jersey . The respondent concedes that it is engaged in commerce within the
meaning of the Act at its Elizabeth plant It presently employs about 1200
persons there.
II. THE ORGANIZATIONS INVOLVED
Simmons Co-operative Union, unaffiliated, was a labor organization within the
meaning of the Act and admitted to membership employees of the respondent.
SIMMONS COMPANY 137 ,
Simmons Elizabeth Employees' Union, Inc., unaffiliated, and United Furniture
Workers of America, affiliated with the Congress of Industrial Organizations,
are labor organizations within the meaning of the Act and admit to membership
employees of the respondent.
M. THE UNFAIR LABOR PRACTICES
A. Background
The Union was organized at the respondent's plant sometime in June 1937.
Although the respondent claims that it favors no labor organization, it has
assisted the Union in various ways. For example, it has permitted the Union to
use its bulletin boards for the posting of various notices. Furthermore, its fore-
men have given employees notices of meetings of the Union. The collection of
dues on behalf of the Union, in the plant, during working hours, has been per-
mitted. Employees have been allowed time off to attend the Union's meetings
and have been paid for the time so spent on one occasion. Further, the respond-
ent has permitted the Union to participate in the selection of some employees who
were to be sent by it to a training school. As z1hown hereinafter, the respondent
has allowed the Union to distribute its literature in the respondent's plant,
but has refused that privilege to the C. I. O.
B. Interference, restraint and coercton•
About-April 10, 1941, the Board of Trustees of the Union, which was composed
of departmental respresentatives of the respondent's employees, met with rep-
resentatives of the respondent to discuss a new contract. Norman Thomas Gil-
roy, then manager of the respondent's Atlantic division and the highest official
at its Elizabeth plant, said, according to Zurga's testimony, that he "did not see
where" the Union was serious in presenting its wage demand for a 10 percent
general increase Zurga, whose discharge is hereinafter discussed and who was
one of the Union's trustees, said that if the Union "did not get anything, it might
be a good idea to get an outside organization." Gilroy replied that he saw no
reason why the respondent should have any "trouble" with any outside organ-
ization, since it had been' having good labor relations with its employees for a
period of years. He said, further, that they were "one happy family" and that
the respondent would do everything it could to "keep it so." 2
During the second or third week of March 1942, while a C. I. 0 organizational
campaign hereinafter referred to, was in progress, Peter Albert Willig, the fore-
man in the border room of the mattress division at the respondent's Elizabeth
plant,' asked Zurga if he thought the C. I. O. had a chance to get into the plant.
Zurga replied in the affirmative. Willig then said that he did not see why there
was a desire to make any change since he thought that the independent union
was "doing pretty good." `
The respondent had a rule prohibiting any union activity on company time or
property, except for the holding of conferences with management. In the contract
2 Gilroy testified that he -did not remember making these statements, although he ad-
mitted that he might have done so. Zurga was a vei y frank witness, he appeared to be
unusually honest, and the undersigned was especially impressed with his trustworthiness.
The undersigned credits Zurga upon whose testimony these findings are based
? According to the testimony of Gilroy, the work of the foremen in general was entirely
supervisory and they were considered "a part of management" The undersigned finds
that Willig was a supervisory employee for whose conduct the respondent is responsible.
" Willig did not deny that he had this conversation with Zurga. He merely testified that
he did not recall any special conversation with Zurga about the C. I O. The undersigned
credits Zurga , on whose testimony these findings are based.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of July 1, 1942, between the Union and the respondent, the Union agreed to abide
by this rule, and the employer agreed to discourage, without discrimination,
organizing activity of any kind on its time or property by any group or organiza-
tion, including the Union. Gilroy testified that this section of the contract was
directed at the International Association of Machinists at the Elizabeth plant,
since there was considerable friction between the Union and the I. A. M on the
matter of jurisdictional rights He also testified that the respondent's policy
was to discourage union activity at all times on the company property.
One morning, about a week prior to a consent election conducted by the Board
on May 12, 1942, Zurga had been distributing C. I. O. literature in the plant before
he went to work. After Zurga had begun his work,` Foreman Willig went to see
him at his machine and told him that an order had been received that no more of
"these" pamphlets were to be distributed. Zurga asked Willig if the rule against
distribution of literature applied generally or only to Zurga. Willig asked what
he meant and Zurga called Willig's attention to the fact that pamphlets of the
Union were at that very moment being distributed a short distance from them by
Ernest Williams' Willig said he knew nothing about Williams. Zurga saw
Williams continue to distribute the Union's literature outside of the latter's own
department for about an hour after Zurga had been warned by Willig.' At ap-
proximately the same time that Willig spoke to Zurga, Salvatore Scurese, then a
foreman in the respondent's coil spring department, came to the conveyor belt at
which John L. Grondin and -Edward Forster, both members of the Simmons
Organizing Committee, and others were working., Grondin testified that Scurese
said, "If you fellows are caught giving out any more CIO pamphlets, you will find
yourselves outside looking in," while Forster testified that Scurese said, "You
fellows better watch your step, or you are going to find yourselves on the outside
looking in." Grondin also testified that during the pre-election campaign he saw
literature of the Union distributed in the plant, and that he had never heard that
any objection had been made to such distribution. This testimony was undenied.
The undersigned has found that the respondent , through supervisory em-
ployees, told some of its employees that it saw no reason why it should have
"trouble" with an outside union, that they were "one happy family" and that
the respondent would do all it could to "keep it so,", and that it told another
employee that it saw no reason why there was a desire to make any change in
collective bargaining representatives since the independent union was "doing
pretty good ." It has also been found that the respondent had a general rule
against union activities at its plant even on the employees ' own time ; that it
had, through some of its foremen, refused to permit the C. I. O. to distribute
union literature on company premises while permitting such distribution by the
Union; and that it had warned employees that they would be discharged if they
were caught distributing any more C . I. O. pamphlets . The undersigned , there-
fore, finds that by these statements and threats , by the adoption of a general
rule against union activity on its property , and by the discriminatory enforce-
ment of a rule against the distribution of union literature on its premises," the
respondent has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
6 Zurga was the chairman of the Simmons Organizing Committee, which was conducting
the pre-election campaign for the C I 0
" Zurga was , later that morning, given one of these pamphlets by Williams.
7 Willig did not deny that he told Zurga to stop distributing literature . He merely testi-
fied that he did not recall doing so. The undersigned credits Zurga on whose testimony
these findings are based.
" Matter of Tabsn-Picker & Co . and International Ladies' Garment Workers' Union ( Ameri-
can Federation of Labor ), 50 N. L. R; B. 928 , and Matter of United Steel Fabricators, Inc.
(Wooster, Ohio ) and International Association of Machinists ( A. F. L.) and Independent
Metal Workers Union, 50 N . L. R._B. 752.
SIMMONS COMPANY
C. The discharge of Zurga
1. Zurga's union activities
139
About the middle of 1938, at a general membership meeting of the Union
called to discuss a new contract with the respondent, Zurga pointed out that
the previous contract had not been signed and that the vacation promised in
that agreement had not been granted. He recommended that the Union demand
a signed contract and charged that the Board of Trustees were "yes men." As
a result of these remarks, Zurga was made a member of a committee to confer
with the respondent concerning vacations.
In January 1939, Zurga became a member of the Union's Board of Trustees
and retained that position until January 23, 1942. While he was a member of
that Board, he became its spokesman, the most active champion of the demands
of the Union, and the most vigorous opponent of the positions of the respondent.'
In March 1941, Zurga was appointed to the Union's Grievance Committee. He
soon discovered a long standing grievance9 which had been previously discussed
with the management on several occasions, without avail. At a meeting be-
tween the Grievance Committee and Walter Edward Hamilton, who was then
known as a conciliator for the respondent, this grievance was brought up for
discussion. Hamilton said he could do nothing about it because it was too old.
Zurga then took up the discussion with Hamilton and a "stormy session" ensued
between them. None of the members of the committee supported Zurga. The
next day, at the request of Zurga, a meeting of the Board of Trustees was held.
Zurga charged the Grievance Committee with "negligence" in the performance
of its duties and complained particularly that the chairman did not support
him. The committee thereupon resigned and a new one, of which Zurga was
made chairman, was appointed. Soon thereafter the new committee obtained
a favorable settlement of the grievance which resulted in the payment to the
employee of about $200. Zurga continued' to be chairman of this committee
until January 23, 1942. During the period of his chairmanship he presented
about 100 grievances to the respondent, approximately half of which were at
least 6 months old. Ultimately Zurga, at the respondent's suggestion, became
a one-man Grievance Committee and toward the end of his service on the com-
'mittee spent all of his time adjusting grievances. On various occasions,, while
Zurga was chairman of the Grievance Committee, Hamilton and William H.
Chaffe 1° complained to Zurga that he was spending too much time on grievances.
Chaffe once said that he had "checked the records of previous delegates or trus-
tees, and compared the record," and that, ever since Zurga had become chairman
of the Grievance Committee, "the amount of hours put in for trustees' work
went up high." At one time, Hamilton told Zurga that he did not believe Zurga
should be paid time and a half for overtime work on grievances. To this sug-
gestion Zurga replied that, as long as there were grievances, they would have
to be taken care of.
About May 22 or 23, 1941, at a general meeting of the Union, Zurga read the
respondent's counterproposal to a demand of the Union for a wage increase, and
informed the members of the respondent's refusal to take seriously the Union's
demand for a 10 percent raise. He told them that if they expected their negoti-
0 This grievance concerned a failure of the respondent to pay an employee the established
rate of pay for her operation and was 6 months old.
10 From May 1, 1941, until August 15, 1941, Hamilton was the respondent's Assistant
Plant Superintendent and also handled labor relations Since May 1, 1941, Chaffe, as
Works Manager for the respondent at its Elizabeth plant, has held the second highest
managerial position, and has been in full control of production there.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ators to get anything for them from management they would have to give the
negotiators "a big stick." Further, he submitted for discussion the question
whether a strike vote should be taken. It was decided to take such a vote, and
it was taken on May 20, under the auspices of the Labor Relations Committee
of the Mayor of Elizabeth. Ninety percent of those voting favored a strike,
and -the respondent was thereafter notified of the result by letter from the
secretary of the Union.
The strike never materialized, and on June 2 the Union and the respondent
resumed negotiations at which Zurga presented the Union's proposals and was
the principal spokesman for the Union.
On May 27, 1941, at a meeting of the Union's Board of Trustees, Zurga charged
George E. Casler, president of the Union, with "poor leadership and negi-gence"
and requested that he resign. He did so. At this meeting, Zurga NA as elected
vice president of the Union and chairman of its first Negotiating Cormnittee.11
On January 23, 1942, the Union's Board of Trustees, including Zurga, resigned
from all offices held by them in the Union because the members of the Union
would not support their demand for an increase in dues with which to carry out
the Union's expanded program.
Early in February 1942, Zurga, on behalf of himself and several members of
the "former" Board of Trustees, telephoned the C. I. O. headquarters.12 As a
result of this telephone conversation a meeting was held, the Simmons Organiz-
ing Committee, of which Zurga was made chairman, was created, and a vigorous.
C. I. O. organizational campaign, in which Zurga took the most active part, was
carried on at the respondent's plant from the early part of March 1942 until the
consent election was held May 12, 1942.13 He distributed many C. I. O. pam-
phlets 14 both outside and inside the respondent's plant, some of which he dis-
tributed during working hours ; he assisted in the holding of C. I O. meetings
outside the plant; throughout the campaign he wore C. I O. buttons conspicu-
ously displayed on his work clothes; he solicited about 100 of the respondent's
employees on behalf of the C. I. O. and obtained about 50 signatures to its
application cards, one of which he also signed.16 Some of the soliciting and
signing was done on the respondent's property, but none of it was done on
company time.
Zurga ceased to be prominent in,union activities from the time of the holding
of the election on May 12, 1942, until about August 30, 1942, though during
that period he told employees of the respondent that the C. I. O. was coming
back to the plant.'6 On that day, at a general membership meeting, Charles
Holste, a member of the Union's Negotiating. Committee, read and commended
"Prior to this time the Board of Trustees had been the Union's bargaining agency.
-Zurga in 1941 was also chairman of the Union's Grievance and Safety, Health, and Sanita-
tion Committees and a member of its two-man Organizational Committee.
12 In 1939, Zurga, on behalf of the respondent's employees, had investigated the possibil-
ity of a C I 0 organizational campaign at the respondent's plant, but the undertaking
"fizzled out." Zurga also tallied to the C. I 0. representatives in 1940 and 1941 about
organizing the' respondent's plant. There is no evidence that the respondent knew' of
these organizational efforts of Zurga.
"The Union won this election • 641 voted for the Union, 230 for the C. I 0 , 76 for the
American Federation of Labor, and 3 for no union
14 Names of members of the Simmons Organizing Committee,, including Zurga' s, appeared
on many of the pamphlets
15 The signing "was contingent upon whether or not the Local would be established," and
no dues were paid.
16 This finding is based in part upon the testimony of Helen Schindler Levy, one of the
respondent's employees, who, in answer to the question whether Zurga had not said he
would "get the C. I 0 in," replied, "Yes, I heard him say that the C. I. 0 was going to
come back in again, but he didn't say it directly to me "
SIMMONS COMPANY 141
the new contract which had been agreed upon by the Union and the respondent,
and told the members that they should have enough confidence in the committee
to back it and accept the contract. A motion to accept the contract was made.
At that point Zurga took the floor. He objected to the proposed wage scale and
to the seniority and swing-shift provisions, the latter of which would have
eliminated overtime. He also took issue with Holste as to his statement that
the contract contained the Little Steel formula. Holste challenged Zurga's state-
ments and said that he knew that Zurga still favored the C. I. 0., that he did
not have his "feelings for the people in the plant," and that all he "was worrying
about was to disrupt them as much as possible" so that he could eventually get
the C. I. O. back into the plant. Zurga moved that the contract should be
renegotiated with management and that thereafter there should be another full
membership meeting to consider ratification of the contract. He supported his
motion by the point that there had previously been no general membership meet-
ings to consider the contract, as had formerly been the practice, and that, there-
fore, the members should not be expected to ratify the contract at that time.
Though no one else spoke in favor of Zurga's motion, all of the members except
the negotiators supported it.
On September 15, a meeting was held at the Union headquarters for em-
ployees in the shell department. They were told that, though the committee
could not get a better wage rate, the management had agreed to eliminate the
swing shift from the proposed contract. Again, Zurga opposed the ratification
of the contract on the ground that the meeting had been confined to the employees
in the shell department. He moved that a general membership meeting be held
the following Sunday, so that all members of the Union could have a voice in
the ratification or rejection of the contract. Jesse Souza, a member of the
Union's Negotiating Committee, said that the only reason Zurga wanted a
meeting of the full membership was to show the weakness of the Union and to
have it divided so that he "could get the CIO in again." Holste added that
Zurga seemed to be doing all the talking and that he could understand Zurga's
purpose. When Zurga asked him what he meant, Holste replied, "You know ;
you are still working for the CIO, and you are trying to get them to take over."
When Zurga's motion for a general meeting was put to a vote, all of those
present except the, negotiators voted for it. Notwithstanding this vote, the
contract was signed soon thereafter by representatives of the Union without
the holding of any further meeting.
The respondent knew that Zurga had been active on behalf of the C. I. O.
in 1942 Gilroy testified that he knew that the C. I. O. was carrying on a
campaign during March, April, and May, 1942, through an organizing committee;
that he knew the men who were identified with the campaign, and that he
saw Zurga in front of the plant handing out C. I O. circulars Virgil J Wiltse,
the respondent's personnel manager,'' testified that he knew Zurga's name was
on C I. 0 circulars which were passed out during this campaign, and that
he saw Zurga outside the plant assisting in the setting up of a public address
system in connection with the organizing activities. It has already been noted
that Zurga wore C I. O. buttons on his work clothes during the campaign.
It was known to several of the respondent's employees, including some members
of the Union's Negotiating Committee, that, even after the May 1942 election,
Zurga still indicated his intention of organizing the plant for the C. I. O.
Upon the basis of the foregoing facts and upon the entire record, the under-
17 Wiltse, since August 1, 1941, has been the respondent's personnel manager and has
handled labor relations . He has authority to hire generally and can discharge clerical
employees in the personnel office.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed is convinced and finds that the respondent knew of Zurga's intention
to renew his organizational efforts on behalf of the C. I. 0. following the May
12, 1942 election.
That the respondent knew of Zurga's connection with, and activities on behalf
of, the Union as a member , trustee, and member and chairman of the Grievance
Committee , cannot be questioned , in view of his frequent contact with officials'
of the respondent Hamilton admitted in his testimony that he recognized that
Zurga was "quite active" and "very efficient ." as a member of the Union 's Board
of Trustees and chairman of its Grievance Committee . While there is no direct
evidence that the respondent knew of the role which Zurga played in connection
with the resignation of the Union 's Grievance Committee and of its president
in 1941, it had frequent conferences with the Committee , as well as with the
Board of Trustees , one of whose members was always the Union's president,
and realistic appraisal of human conduct warrants the inference that the
changes in the presidency and in the membership of the Grievance Committee
and the reasons therefor were discussed by the Committee and the Trustees
with the respondent . It is equally true that , although there is no direct evidence
establishing that the respondent knew that the refusal of the Union to ratify
the proposed 1942 contract , when it was first presented , was due to Zurga's
strenuous opposition , again the inference is warranted that this situation was
discussed by members of the Negotiating Committee with officials of the respond-
ent during the course of the renegotiation of the contract , and that they were
informed of Zurga 's activities at the August and September , 1942, Union meetings.
Therefore , the undersigned finds, upon the basis of the foregoing facts and
upon the entire record, that the respondent knew that Zurga was responsible
for the resignation of the respondent ' s president and Grievance Committee
in 1941 and that it likewise knew of Zurga's effective opposition to the 1942
contract.
2. Threat of discharge and discriminatory treatment of Zurga
About the end of July 1941, Fred Lindsley, shift superintendent in the shell
department , who was in full charge of operations during his shift, asked Zurga
why he was roaming around Lindsley 's department. According to Lindsley,
Zurga thereupon used abusive language to him as well as to Robert B. Post,
superintendent of the mattress division . As a result, a complaint was made
against Zurga and a conference was held between the Union's Grievance Com-
mittee and Hamilton , representing the respondent . Zurga had contended that
his duties as chairman of the Grievance Committee took him into the various
departments in the plant , and that he was there investigating a complaint.
After discussing the complaint against Zurga, the respondent was satisfied
that neither Lindsley nor Post could substantiate the charge against him and
it was thereupon dismissed . Furthermore , Works Manager Chaffe conceded
in his testimony that he had agreed with the- Committee at that meeting that
Zurga was absolutely within his rights in going into other departments "on
legitimate complaints ." At the close of'the meeting , Hamilton said to Zurga,
according to the latter's testimony , "I don't have anything on you this time . . .
but if I ever do, I will get you no matter how long it takes." Zurga replied,
"Walter, any time you get something on me, I will be in the shop ." Hamilton
denied the statement . attributed to him by Zurga. He testified , however, that
what he probably said at the time was, "0 . K. boys, you win this one. I will
get you on the next one." His explanation for this statement was that, after
he became labor relations representative of the respondent , it was "quite
customary" for him to use this expression as "a closing gesture" in discussing
SIMMONS COMPANY 143
a grievance or complaint with the committee since, as he put it, in the handling
of labor today it is a matter of "give and take." According to him, the statement
was intended to apply, not to the individual involved in the grievance or com-
plaint, but, rather, to the matter in dispute. Edward Forster, who was also
a member of the Union's Grievance Committee at the time and who was present
(luring this conference, corroborated Zurga's testimony as to this occurrence.
The undersigned finds that Hamilton made the statement attributed to him by
Zurga substantially as testified to by him.'B
Early in 1942, the respondent decided to send some of its employees to a
vocational school in connection with its conversion to war work. All employees
were furnished with questionnaires. Zurga filled out one of them and stated
therein that he had had experience with punch and drill presses prior to his
employment with the respondent In May, all of the cross-stitch operators were
interviewed by the respondent to determine their aptitude and the desirability of
sending them to school. Zurga, who had had over 3 years experience as such
an operator, but who, for i few weeks had been a tick supplier, was not inter-
viewed. Though Wiltse admitted that Zurga had more formal education, more
seniority, and more experience than some others who bad previously been chosen
to go to school, Zurga was not selected until June, after he had told Chaffe that
he thought he was being discriminated against.. Chaffe sent Zurga to see
Wiltse. Wiltse told Zurga that, at conferences between representatives of the
Union and of the respondent, Zurga's name had been coiwidered several times
and that the Union opposed sending Zurga to school. Wiltse also asked Zurga
if he had settled down. When Zurga inquired what he meant, Wiltse replied,
"Well, you know the trouble we have been through." Zurga asked Wiltse what
he meant by "trouble" and he said, "You know; the CIO". Although Zurga had
already been definitely selected by Cbaffe to go to school, Wiltse told Zurga to
see the Union committee which had been set up to interview potential trainees.
Zurga asked who was running the program, the Union or the respondent.
Wiltse made no direct reply, but said, "You go on over and see the committee,
and if they want to let you go to school, let them take the credit for it.iY9 Zurga
was enrolled in the school soon thereafter.
When Zurga first attended the school, Primmer, instructor in charge of the
machine shop, told him that there was to be no organizing in the school, and
later told Zurga that he knew about his activities in the C. I. O. at the re-
spondent's plant, and that he would not tolerate that in his school. About the
end of July, Primmer gave Zurga a job requiring the use of a chuck wrench.
Since Zurga could find none, he asked Primmer if he had one. Primmer told
Zurga to find one. Again being unsuccessful in his search for a wrench, Zurga
asked Primmer if he would get one for him Primmer then told Zurga to
make one. Zurga replied that he had never made a chuck wrench, but that, if
Primmer would tell him how to do it, he would try to make one. Primmer
then grabbed Zurga by the arm and started to walk him toward the door.
Zurga told Primmer to let go of him and added that, if Primmer had anything
to say to him, he should say it, but that he should not manhandle him. There-
upon, Primmer said, "You are suspended ; I don't want you around here." Later,
at a conference between Zurga, Martin Corcoran, director of the school, and
>B Both Zurga and Forester, impressed the undersigned as being convincing and credible
Witnesses On the other hand, Hamilton 's testimony contained self-contradictions and the
undersigned does not credit him
19 These findings are based on the testimony of Ziirga . Though Wiltse denied that he
made some of the statements , in view of inconsistencies and self -contradictions in his
testimony , the undersigned was not impressed with these denials and therefore credits
Zurga's testimony as to this incident.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodin, another official of the school , Corcoran asked Zurga if he had at-
tempted to organize the school for the CIO , and, upon Zurga's denial , told him
that Primmer had sent him home because he was attempting to organize the
trainees . Zurga explained that there would be no point to organizing the
students as they would go to various plants after finishing their studies, and
Corcoran agreed with him. During this conference , Zurga gave his version of
the incident between him and Primmer , and Corcoran said that , if those were
the facts, Primmer had perhaps acted "a little hasty," but that for the sake
of discipline Zurga could not return to Primmer ' s class. After a telephone
conversation between Woodin and Wiltse , who was in charge of the training
program, Zurga was suspended for 1 week and thereafter went to another
school?'
On the afternoon of August 24, 1942, prior to completing his course, Zurga
returned from the school in response to a telegram from the respondent and
reported to Frank Adams, shift superintendent of its shell department. Later
that afternoon he went to Adams' office at the latter's request. Adams told
Zurga that, since he had never worked for him before, he wanted Zurga to
understand that things were different in his department than they were "on
the other side," in the mattress department. Asked by Zurga what he meant,
Adams replied that the "stuff" that was going on across the street was not
going to be permitted in his department and that, if Zurga expected to get
along, there must beano trouble, since Adams would not stand for it. He said
that if Zurga intended to stay he would have to behave himself.21
About September 5, 1942, toward quitting time, John Marcel, an inspector in
the shell department, who had no work to do at that time, came over to Zurga's
machine and began to talk with him After he had talked to him about 2 or
3 minutes, Foreman Willig told Marcel, "You are not allowed to talk to this
fellow. Get over by your machine," Marcel asked Willig, "Since when can't
I talk to anybody around here?" Willig replied, "There is no talking. Go on
over to your machine." zz Marcel thereupon went to consult his trustee, Her-
bert Haskell. He and the trustee had a conference with Adams, Lindsley, and
Willig. At the conclusion of the conference, Haskell told Zurga that Marcel
was wrong and that there was to be no talking on the job. Willig admitted that
it was a custom for men to go from one machine to another and have conver-
sations and that talking was permissible, but that too much time should not
be spent at it. Further , Zurga testified that he never knew of any rule con-
cerning talking in the shell department and that most of the operators and
inspectors used to talk to each other "when they had a lull in the production:"
Gilroy testified that, although the respondent tried to "discourage unnecessary
conversation," not related to work, there was no "cut and dried rule" against
talking to a fellow-employee on the "next machine" or an inspector "alongside"
him. Zurga was subsequently transferred to the cross -stitch department,'
where he was employed under Foreman Lawrence Tucker. On September 21,
1942, Foreman Tucker told Zurga to stay at his machine and to "watch out"
20 No one from the school testified
21 These findings are based on the testimony of Zurga. Though Adams testified that he
did not remember making some of these statements , his testimony was self-contradictory in
part and the undersigned credits Zuiga.
22 These findings are based upon the testimony of Zurga Except for the fact that Willig
testified that the conversation between Zurga and Marcel took about 10 minutes , rather
than 2 or 3 minutes as testified to by Zurga, Willig generally corroborated Zurga 's testimony
on this point The undersigned credits Zurga.
23 There was no contention that his transfer was discriminatory and the evidence
warrants no such finding.
SIMMONS COMPANY 145
because things were different than they had been and that he "wasn't going
to stand- for any ' monkey shines ." When asked by Zurga what he meant,
Tucker replied, "You know what I mean. I heard you saying around here
before now , either you do or else." Zurga asked , him to explain this statement
but was put off by Tucker with the remark , "You know what I mean."' The
following day one of Zurga's two machines broke down . Zurga attempted to
get a mechanic to repair the machine and on being informed that the mechanic
was busy and did not know how long it would take to repair his machine, Zurga
reported the situation to Tucker. Tucker thereupon told Zurga that he would
not pay him for his down time .' Zurga asked Tucker why he was not going
to pay him for his down time and Tucker replied, "Well , go ahead home; that
is all there is . . . You go ahead home. I am not going to pay you any down
time." Zurga remonstrated with Tucker, arguing that there were people on
the job with less seniority and that he felt he should be allowed to continue
working. When Tucker refused to altar his decision , Zurga reported at the
office of Superintendent Michael James Coyle , Sr., in charge of the mattress
department . Zurga related what had transpired between him and Tucker,
following which Coyle telephoned to someone in the plant . After this telephone
conversation was concluded , Coyle informed Zurga that a needle in the machine
had been in backwards ," that the machine was all right and that Zurga could
go back to work . When he returned to his department he found a mechanic
still working on the machine which had broken down, and this machine was
not in running condition until the following day 27 Zurga was paid for his
down time on this occasion . Zurga's discharge followed 2 days later.
It is evident , from all the facts set forth above that the respondent favored
the Union as the labor organization to represent the bulk of its employees;
that Zurga was the leader of the C. I. O. pre-election organizational campaign
' These findings are based on the testimony of Zurga. According to Tucker's testimony,
he said that he told Zurga, "We are working here, you and I, and we just want us to get
to understand one another. . If you are going to work for me, we will just hit the
ball together," and that Zurga replied, "I guess that's all right ; I guess we understand one
another that much." In view of inconsistencies in Tucker's testimony, the undersigned was
not impressed with this explanation and therefore credits Zurga's testimony
2E Down time is the period of inactivity of a machine during working hours, which re-
sults without fault of the operator. Under the terms of the contract between the Union
and the respondent, in general, any down time in excess of 20 consecutive minutes was
paid for by the respondent at the regular average rate of pay for the period of 12 weeks
immediately preceding.
21 In view of the fact that operators sometimes inserted their own needles in their
machines, this might indicate some negligence on the part of the operator Zurga testi-
fied, however, that if the needle had in fact been inserted backwards, he would have known
it, as the machine would not have stitched the border. He testified that he knew of no
defective borders and that none were returned to him as defective. Although Tucker first
testified that the needle was twisted or in backwards, he later testified that that was not
the case on September 22. Moreover it would have taken less than a minute to change
a needle, but, according to Zurga's testimony, his machine was not in running condition
until the following day.
27 These findings are based on the testimony of Zurga. Tucker admitted in his testimony
that he told Zurga to go home, but stated that he said, "Zurga, what seems to be the trouble?
Those machines are in good running condition. If you cannot take care of them any
better than that, why don't you put on your hat and coat and go home?" He testified
further that Zurga said that that was all right with him. However, he also testified that,
after this conversation, Zurga went to see Coyle and that Coyle telephoned Tucker to put
Zurga back to work. This admission would seem to be wholly inconsistent with Tucker's
testimony that Zurga had acquiesced in Tucker's order that he go home. Although Coyle
testified that he did not recall talking to Zurga on September 22, Tucker's testimony
would seem to confirm Zurga's statement that he talked with Coyle on that day. The
undersigned therefore credits Zurga.
567900-44-vol. 54-11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at its plant in'1942, that he continued to plan the return of the C. I. O. to the
respondent's plant even after the election ; that he was responsible for the
resignation of one of the Union's presidents and of one of its Grievance Com-
mittees, on the ground that they were not energetically representing the
interests of the employees ; that' he subsequently became a trustee, and the
chairman of the Union's Negotiating and Grievance' Committees, and that he
was the most active member of the Union in pressing the demands of the
Union against the respondent and in opposing the respondent's position ; that,
'less than 60 days before his discharge, he alone successfully spoke against a
proposed contract which the Union's Board of Trustees praised and asked the
members to ratify ; that the respondent knew of these facts, and resented- what
it considered his interference with the former tractable conduct of the Union in
its relations with the respondent ; that the respondent threatened Zurga's dis-
charge; and, that, in several instances, it treated him discriminatorily. Under
such circumstances, the allegations of the complaint as to Zurga's discharge
must be sustained in the absence of a clear showing that his discharge was
not based upon union, or other concerted, activities.
3. The respondent's contentions concerning the discharge of Zurga ,
The respondent at the hearing, as well as in its answer,- contended that
Zurga was discharged for inefficiency, careless and unsatisfactory work, abusive
language addressed to co-workers, and the circulation of false rumors of pending
lay-offs and work stoppage. The only reason for discharge stated in Zurga's
Termination of Service Notice was :
Undesirable
Spreading False Rumors effecting (sic) the Production & Moral (sic) of
the Dept. -
In support of Zurga's discharge on the ground of inefficiency and unsatis-
factory work, the respondent attempted to show that, while he was employed
in the shell department, Zurga's volume of production was low and that a
certain operation in connection with the banding of shells was defective.
Although there was some evidence from the respondent's witnesses, Adams,
Chaffe,' and Willig, to support these claims, no complaint was ever made to
Zurga by the respondent's supervisory officials that any of his shells had been
rejected, and, the day after it had been alleged that he had spoiled 75 to 100
shells on the banding machine, he continued to work on the same machine and
there was no evidence that any of the shells produced on that machine had
been rejected that day.
An attempt was also made by the respondent through Wiltse to establish
that Zurga's visits to the first aid department during the period that he was
working in the shell department were excessive, as evidence of his carelessness
and inefficiency. However, in view of Wiltse's admission that the rules of
the company required employees to report, and to receive first aid treatment
for, all injuries, however slight, this evidence was not impressive Moreover,
there was no showing by the respondent that Zurga's visits to the first aid
department were excessive, compared with those of other employees in the
same department at or about that time.
Further complaints by the respondent of unsatisfactory work were based on
the claim that Zurga had excessive down time and that his conduct at the
vocational school was objectionable. Although it is true that Zurga had had
a great deal of down time even after he ceased holding office in the Union, his
down time was never seriously questioned, except on one occasion. As to this
occasion, after a conference between Zurga and Coyle, Zurga was paid not only
SIMMONS COMPANY 147
for the down time in dispute, but also for the time which was involved in
adjusting the grievance arising out of it.
The respondent asserted that it might justifiably complain of improper be-
havior of Zurga while he was at the school, since, during that. period, he was
in the employ of the respondent and was paid wages. , His behavior there, of
which the respondent complained, consisted of his making suggestions concern-
ing the running of the school, of his failing to do his share of the cleaning, and
of an incident which resulted in his suspension. It is undenied that he made
the suggestions complained of and that they were originally rejected, but soon
after they were made they were adopted. Wiltse testified "that, while he was
visiting Zurga's school, he was told that Zurga would not clean up his machine
and do his share of the sweeping. He admitted, however, that he never spoke
to Zurga about this.
As has been fully set forth (supra, •p. 11), Zurga was suspended for a week
without pay for an incident occurring at the vocational school about the last
of July 1942. However, Gilroy, who held the highest executive position at the
respondent's Elizabeth plant, admitted that Zurga was not discharged because
of his suspension, and Wiltse, the respondent's personnel manager, and Chafe,
its works manager, admitted that he was not discharged because of anything
that occurred at the school.
The contention that Zurga had used abusive language to his coworkers 28 was
based on an incident which occurred sometime in February or March, 1942,
when Zurga is alleged to have called George Kilburg, a mechanic in the cross-
stitch department, a "God damn Nazi " According to Zurga's testimony, one
of his machines was "down" and he requested Kilburg to repair it. When Kil-
burg apparently showed some undue delay in doing so and engaged in con-
versation with someone else, Zurga repeated his request to him to repair his
machine. According to Zurga, Kilburg thereupon replied, "Oh, is that thing
down again? You are deliberately breaking these machines . . I am going
to have you investigated by the FBI." An exchange followed in which Zurga
asserted that he was a native born citizen, while Kilburg was of German
extraction. Kilburg retorted that he was as good a citizen as Zurga or bet-
ter, and repeated the charge that Zurga was deliberately breaking the cross-
stitch machines. Zurga, according to his own testimony, then told Kilburg,
"Look here, you are z no good Nazi, so far as I am concerned." Zurga claimed
that Kilburg then reached behind him where he had his tools and made a
threatening gesture as if to strike Zurga with a wrench.29 Subsequently,.Ham-
ilton, without inquiring of Zurga who started the argument, said to him, "Adolph,,
as far as your personal feelings, outside of your regular line of work is con-
cerned, I wish you would hold that until you get outside of the plant property."
Nothing further was said to Zurga by the respondent about this incident.
Although the respondent contended that Zurga was discharged for an accumula-
tion of reasons, it is significant that the respondent's supervisory officials did
not contend that Zurga was -discharged because of his inefficient and careless
work which, in fact, had never been complained about prior to the hearing; be-
cause of his abusive language to his fellow employees or supervisors ; because
of his conduct at the vocational school, or for any reason other than that stated
in his termination notice, namely, that be was undesirable-spreading false
28 The charge that Zurga had used abusive language to Superintendents Lindsley and
Post has been referred to hitherto. These superintendents were unable to support this
charge
m Kilbuig's memory concerning this incident was very poor and his testimony in general
was vague, evasive, and inconclusive. The undersigned credits Zurga's version of this
incident and these findings are based on his testimony.
a
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rumors affecting production and morale in the plant. It is possible to inter-
pret Zurga's Termination of Service Notice as indicating that the general ob-
jection to him was that he was undesirable, and that the particular objection
to him was that he had spread false rumors. However, the undersigned is
convinced and finds that this was not the interpretation intended by the re-
spondent, especially in the light of Hamilton's testimony. Thus, Hamilton tes-
tified that, after his decision to discharge Zurga, he told Coyle "to discharge
Zurga on the grounds of passing false rumors throughout the department, af-
fecting the morale and production of the departmmt, as an undesirable em-
ployee ; told him to fill that in onto the termination slip." Thereupon, Coyle
instructed Tucker to prepare Zurga's Termination of Service Notice. When
Hamilton received the notice he discovered that the only reason stated therein
for Zurga's discharge was that he was `.undesirable " He thereupon telephoned
Coyle_ and asked him if he was sure that that was the way he would make out
a termination slip. Coyle replied that Zurga was an undesirable employee and
had been spreading false rumors, and that he thought the word "undesirable"
would cover it. Hamilton then told him "it should be clarified" for the employ-
ment record so that anyone who took over Wiltse's duties in the future "would
have some knowledge as to the actual dismissal." At another point in his testi-
mony, he said he told Coyle that in the termination notice there should be "at
least some inkling what his discharge was surrounded by, other than the one word
'undesirable."' Therefore, Hamilton himself added, under the word "unde-
sirable,:" the words "Spreading False Rumors effecting (sic) the Production
& Moral (sic) of the Dept."
Hamilton when asked to make a complete statement of the reason or reasons
for Zurga's discharge, replied, "I made my decision on the climaxing incident,
which was on the day of September 24, and the background of the shell` incident,
the Kilburg incident, his down time, had a connection with the actual dis-
charge, but the actual discharge was based on the incident of the 24th. That
was the disturbance that was caused in the tick room" (Emphasis added).
When asked further whether he had testified that he had discharged Zurga for
no incident except the incident which occurred on September 24, he stated that
he had so testified. He further stated that his testimony was that after each
of the incidents which had been suggested by the respondent as a ground for
Zurga's discharge, except the one occurring on September 24, he had decided
not to discharge him but to give him another chance.'°
In view of all the facts, and particularly in view of the admissions of super-
visory employees of the respondent, the undersigned finds that the only reason
relied upon by the respondent for Zurga's discharge,, at the time thereof, was
its contention that he had spread false rumors of impending lay-offs, and had
thus affected production'and the morale of the employees.
The next question to be considered, therefore, is whether Zurga did in fact
circulate false rumors of impending lay-off s among employees of the respondent
and whether the respondent reasonably believed that he had done so when it
decided upon his discharge. -
Zurga testified to the following facts. On September .23, 1942, Josephine
Dunay, trustee for employees of the tick room, which was part of the mattress
department, asked Zurga to interpret the lay-off clause in the contract between
the respondent and the Union. Zurga inquired why she did not go to the
Union's officers to get the information, since he was no longer a trustee. Dunay
replied that she wanted his interpretation, as he was familiar with it and could
Go Hamilton further testified that when , at the request of a field examiner for the Board
who was investigating the case, he prepared a memorandum on Zurga, he "more or less"
dug up every record against Zurga.
SIMMONS COMPANY 149
give her a better one than "those guys." She further told him that' Helen
Schindler Levy, then Helen Schindler, and Nellie Williams had been sent td
work in the tick room, though before they came there had not been enough work
for the girls who were there," and that she was going to see about having them
laid off. Zurga interpreted the clause in question by telling her that, if the
work in a department went below 32 hours a week for each employee, lay-offs of
those having the lowest seniority could be demanded so that those remaining could,
work 32' or more hours. He told her that under the circumstances she could
demand that the girls mentioned by her be laid off. She told Zurga that she was
going to have Coyle, superintendent of the mattress department, of which the tick
room was a part, take care of the matter, and later Zurga saw her talking to Coyle?
Soon thereafter Sophie Stephanie, an employee in the tick room, asked Zurgd
what Dunay was talking to him about. Zurga told her. Later Helen Rotunno,
another-employee in, the tick room, asked Zurga if Dunay was going to have
Levy and Williams laid off. Zurga inquired why she did not ask Dunay:
Rotunno replied that Dunay would not tell her anything, and Zurga agreed that
this was probably so Zurga then told Rotuno of his conversation with Dunay.i
About 3: 45 p. in. on the same day, after finishing her work, Levy stopped at`
Zurga's machine and asked Zurga if he knew that Dunay was going to have her and
Williams laid off." Zurga told Levy what he knew about the matter, whereupon
Levy said that she did not care, as she had a job she could go to. However, she
said she had been called back to work recently and she wanted to know why
the respondent called back employees if they were going to lay them off.
The next morning, September 24, Dunay can-.,e to Zurga and asked him what the
idea was of causing trouble among the girls, and accused him of telling the girls
they were going to be laid off. Zurga asked her what trouble she was talking
about, but she walked away without answering.
The testimony of Dunay and Levy as to these matters differs considerably from
that of Zurga Dunay testified that she did not talk with Zurga on the afternoon'
of September 23, and that, when she spoke to him on the morning of September 24,
she asked him where he learned that the girls were going to be Maid off and he told
her that it had been going on "off and on," and that when he had been hired
for the job on the cross-stitch machine it was to last for only a few weeks. Dunay
replied that that did not mean that the girls would be there only a few weeks and
that she had heard that there was plenty of work. Zurga then told her that she!
knew lie had never been wrong in what he had said and she replied, "Yes and no."
She said that she would see Souza, and Zurga said "Why Souza?" (Souza had
just replaced Chailes Holste as chairman of the grievance committee Levy,
testified that when she talked to Zurga on the afternoon of September 23 she did
not stop at Zurga's machine but that he called to her while she was about 20 feet
away from him and that she did not inquire whether he knew that Dunay was
going to have her and Williams laid off, but that lie asked her if she knew she was
going to be laid off." The undersigned credits Zurga.
"That this was the situation is supported by the testimony of Gilroy to the effect that
in sane departments of tPe respondent's plant its employees had been working less than a
normal number of hours in September 1942
" Neither Stephanie nor Rotunno testified and no explanation was offered for their not
having done so
sa Though Williams attended most of the hearing, she was never called to the witness
stand
31 There were numerous self-contradictions in Dunay 's testimony . Though there were
also some inconsistencies in Levy's testimony , more important , in determining the ac-
curacy of her testimony as far as it was inconsistent with, Zurga's, was her admission of
opposition to Zurga since he had become a supporter of the C I 0 . As to that she said, "I
always liked him until he got implicated with the CIO, and then I just turned against him."
She also said that Zurga had "created a lot of trouble with the CIO throughout the plant,"
and she was not in favor of it.
-150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is undenied that, about an hour after Dunay talked with Zurga, Jesse Souza,
the trustee for the mattress finishing department, came to Zurga and said to him,
".What's this I hear about you spreading rumors among the girls that they are
going to be laid off " To this inquiry Zurga made no reply. Souza then told
Zurga, "Well, you had better stop those rumors." To this Zurga said, "What are
you going to do about it?" '° ahd Souza answered, "Just wait until this afternoon
and see,how I stop you from making these rumors."
On the morning of September 24, while he was on his way up to Hamilton's office,
Coyle noticed Jesse Souza and Adolph Zurga having a heated argument, and' also
observed quite a commotion in the tick room and small groups of girls scattered
throughout the room engaged in conversation In the course of a discussion with
Hamilton concerning production, Coyle mentioned the incident that he had
observed in the tick room and was instructed to ascertain what the trouble was.
He returned to his office to find Dunay waiting for him. Though she told him that
Zurga had caused all of the girls to be upset by telling them*that they were going
to be laid off and that the girls were demanding their releases, both Dunay and
Levy testified that they had begun conversations with other women in the tick
room concerning lay-offs, and Dunay conceded that only Levy named Zurga as the
one who had told her of impending lay-offs. About this time Robert C. Greene,
President of. the Union, and Souza came into Coyle's office with a request for the
respondent's production figures. They were referred to-Hamilton who, upon being
advised of the reason these were wanted, furnished them with the information
which subsequently was communicated to the employees in order to reassure them
about prospective work. As a result of the statements that were made by Coyle,
Souza , and Greene to Hamilton, the latter and Wiltse went into the tick room to
investigate the situation. Hamilton approached Dunay, who informed him and
Wiltse of the conversation between Zurga and Levy and of the matter of the
request by the employees for their releases. At the conclusion of their conversa-
tion, Wiltse asked Dunay and Levy if they were willing to sign statements con-
firming the conversations that they had had with Zurga. They agreed to do so,
and, before Zurga's discharge, made such statements. Coyle went to Hamilton's
office where the situation was discussed, and Coyle asked Hamilton what should
be done about it. Hamilton, who, as far back as July 1941 had threatened Zurga
with discharge, replied, "I have about made up my mind that I will have to let
Mr. Zurga go." Coyle agreed that he was "in full accord."
About 2, o'clock on the afternoon of September 24, Foreman Tucker notified
Zurga to report to Coyle's office. As they approached Coyle's office, Zurga saw
Jesse Souza leave by the door leading to the office.S" When Tucker and Zurga
entered Coyle's office they were asked to wait until David Crocie, Zurga's trustee,
14 Although Zurga's reply to Souza 's admonition to stop the rumors was ambiguous and,
at first impression, might indicate that this was an admission on Zurga's part that he had
spread rumors about lay-offs, Zurga, while admitting that he had made this statement in
reply to Sotza , asserted that he had not been friendly with Souza nor on speaking terms
with him, and that he had his arms full of felt which he was carrying to his machine at
the time of this exchange. The undersigned finds that this statement was due to his
unfriendliness and annoyance with Souza and should not be construed as an evasion or
admission on the part of Zurga Zurga ' s candor in admitting in his direct examination
that he made this statement favorably impressed the undersigned.
31 Two offices, one of which was Coyle's, could be reached through this door Though
Coyle denied that Souza had been in his office at this time, the undersigned credits Zurga
on whose testimony the finding is based. Souza did not testify.
SIMMONS COMPANY 151
arrived .17 As soon as Crocie arrived, Coyle, without asking Zurga for any explana-
tion in connection with the alleged rumors of lay-offs in the tick room, told Zurga,
'•'Adolph, I am going to have to let you go." Zurga asked the reason for his
discharge, and Coyle replied, "Well, you have been spreading false rumors, dis-
rupting my production, and therefore you are an undesirable employee." Zurga
thereupon asked him what the rumors were, and Coyle said, "Well, you told the
girls down in the tick room that they were going to be laid off and they have been
running up here for their releases and disrupting production, and there is nothing
further I can do about it but let you go." Zurga replied, "That's that, I suppose."
Coyle then advised Zurga, "Well, you have been in this game long enough, you
know what to do about it." On further inquiry from Zurga as to what he meant,
Coyle replied, "Why don't you go see our grievance committee?" 33
Coyle admitted that he gave Zurga no opportunity to defend himself against
the charge that he had spread rumors concerning prospective lay-offs, until
after he had told Zurga that he was "going to have to let [him] go." He ad-
mitted that it would have been very easy for him to do so, but that he did
not do so because he thought he already had enough information without dis-
cussing the charge with Zurga, and that, e had given Zurga a chance to defend
himself while he was in his office at the time of his discharge Coyle further
admitted that Crocie had not been informed of the facts relating to Zurga's dis-
charge before he was called into the conference, and that it was then only that
Crocie was informed of the grounds for the discharge. Wiltse admitted that,
although prior to Zurga's discharge he had called Dunay and Levy into his
office and obtained signed statements from them concerning the spreading of
rumors attributed to Zurga, he never talked to Zurga about it but relied entirely
on the statements of Dunay and Levy.
Crocie took no part in the conference and, as Zurga and Crocie left Coyle's
office, the latter apologized to Zurga for not having been able to accomplish any-
thing, asserting that he had known nothing about it until he was called to Coyle's
office. Zurga assured Crocie that it was all right, and that, in view of the fact
that Crocie was a new trustee and not familiar with the grievance procedure,
Zurga would present his grievance on his own behalf He was unsuccessful in
his search for a member of the Grievance Committee that day, and the following
day, September 25, called to see Coyle to ascertain more about the reason for
his discharge and to see if he would reconsider his decision. Coyle told Zurga
that he did not want to discuss it as there was nothing 'he could do about it,
and recommended to Zurga that he consult with Souza, the new chairman of
the Grievance Committee.39 Zurga attempted to contact Souza, without success.
31 While Zurga was a member of the Grievance Committee, the method of handling dis-
charges was to have a meeting between the committee, the employee whose discharge was
in question, and representatives of management, sometimes including the employee's fore-
man. A discussion would thereupon be held as to whether or not the discharge was war-
ranted This finding, which is based upon Zurga's testimony, is substantiated by the`
terms of the contracts which were in effect during his membership on the committee.
38 This finding is based upon Zurga's testimony Although Coyle denied the use of the
word "our" with reference to the grievance committee, the undersigned credits Zurga.
Coyle testified that he told Zurga that if he thought he had been treated unjustly he knew
what procedure to follow. He also testified that he pointed out that Zurga's delegate was
there, and that he could take such steps as were necessary to present his grievance Ac-
cording to Coyle, Zurga thereupon replied, "To hell with the delegate " Zurga denied that
he made this statement. The undersigned credits Zurga
30 Coyle testified that on September 25 Zurga came to his office and told him that he had
come to ascertain the reason for his discharge; that he had been upset the day before, and
had not realized the charges against him ; and that that was one reason why he had said
nothing in his own behalf. Coyle further testified that Zurga said that he was sorry "it"
had happened, that he had a wife, that he had just bought a new house, and that he would
like another chance. Zurga denied that he said he was sorry or asked for another chance.
The undersigned credits Zurga.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that Zurga did not circulate false rumors of lay-offs
among employees of the respondent. The credible testimony shows that he did
not volunteer information concerning lay-offs and that he merely replied to the
requests for information concerning the interpretation of the provision in the
contract, regarding lay-offs, which Dunay had sought from him. This finding is
supported by the admission of Dunay that Levy, who admittedly had "turned
against" Zurga, ° was the only one who had complained that Zurga had, without
solicitation, given her this information concerning lay-offs.
Upon the entire record, the undersigned is convinced and finds that the re-
spondent did not, in good faith, believe that Zurga was spreading or circulating
false rumors regarding prospective lay-offs, but seized upon this ostensible reason
as a pretext for discharging him and thereafter refusing to reinstate him. The
undersigned further finds that Zurga was discharged by the respondent because
of his militancy while active in behalf of the Union, because of his activity on
behalf of the C. I. 0. during its organizational campaign, and the threat that he
might renew a C. I. 0. organizational campaign in the plant, and because of his
subsequent concerted activities in opposition to the Union on or about August 30,
1942 By thus discriminating in regardto the hire and tenure of employment of
Zurga, the respondent has discouraged membership in the C. I. 0.,41 and has
interfered with, restrained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section- I above,
have a close, intimate, and substantial relation to trade, traffic and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent has engaged in a course of conduct
calculated to interfere with, restrain, and coerce its employees in the exercise
of the rights guaranteed them in Section 7 of the Act. It will, therefore, be
recommended that the respondent cease and desist from such action
It has been found, that the respondent discharged Adolph J. Zurga and
thereafter refused to reinstate him because he assisted the C. I 0. and engaged
in concerted activities for the purpose of collective bargaining and other mutual
aid and protection It will, therefore, be recommended that the respondent
offer the said Adolph J. Zurga immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges. It will be further recommended, that the respondent
make the said Adolph J. Zurga whole for any loss of pay he may have suffered
by reason of his discharge by payment to him of a sum equal to the amount
which be would normally have earned as wages from the date of his discharge
40 ,See footnote 34, supra
41 The testimony of Levy that at a conference concerning this case, she told the field
examiner for the Board that, since Zurga had been discharged, a few C. I. 0 supporters
"kept their mouths shut" and that "they" had no trouble with them any more, lends support
to this conclusion.
SIMMONS COMPANY 153
to the date of the offer of reinstatement less his net earnings ,, if any, during
such period.u
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Simmons Co-operative Union, unaffiliated , Was a labor organization and
Simmons Elizabeth Employees ' Union, Inc., unaffiliated , and United Furniture
Workers of America, affiliated with the Congress of Industrial Organizations,
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 rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices , within the meaning of Section 8 (1) of
the Act.
3. By discriminating in regard to the hire and tenure of employment of
Adolph J. Zurga, thereby discouraging membership in the United Furniture
Workers of America, affiliated with the Congress of Industrial Organizations,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, Simmons Company, a corpora-
tion, and its officers, agents , successors , and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers of America,
affiliated with the Congress of Industrial Organizations , or any other labor
organization of its employees by discharging or refusing to reinstate any of
its employees or in any other manner discriminating in regard to their hire
and tenure of employment or any other term or condition of their employment;
(b) In any other manner interfering with , restraining , or coercing its em-
ployees 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to Adolph J. Zurga immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges and make him whole for any loss of pay he may have
suffered, by reason of the respondent's discrimination against him, by payment
to him of a sum equal to that which he normally would have earned as wages
4213y "net earnings" is meant earnings less expenses , such as foi transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere . See Matter of
Crossett `Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L R. B 440. Monies received for
work performed upon Federal , State, county, municipal, or other work -relief projects shall
be considered as earnings See Republic Steel Corporation v. N. L R. B. 311 U. S 7.
1 54 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date of his discharge to the date of the offer of reinstatement , less his
net earnings q3 during said period;
(b) Post immediately in conspicuous places in its plant in Elizabeth, New
Jersey, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating : ( 1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraph 1 (a) and ( b) of these recommendations ; ( 2) that -the
respondent will take the affirmative action set forth in paragraph 2 (a) of these
recommendations , and that its employees are free to remain or become members
of the United Furniture Workers of America, affiliated with the Congress of
Industrial Organizations , or any other labor organization and that the respond-
ent will not discriminate against any employee because of membership or
activity in that or any other labor organization
(c) Notify the Regional Director for the Second Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply herewith.
It is also recommended that unless , on or before ten ( 10) days from the date
of the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring it to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended , effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board , pursuant to Section 32 of Article II
of said Rules and Regulations , file with the Board , Rochambeau Building,
Washington , D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as he
relies upon , together with the original and four copies of a brief in support
thereof. As further provided in said Section 33 , should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten ( 10) days after the date of the order transferring
the case to the Board. .
CARL C. WHEATON
Trial Examiner
Dated September 13, 1943.
4e ,See footnote 42, supra.