The Gray Envelope Manufacturing Co., Inc.

In the Matter of THE GRAY ENVELOPE MANUFACTURING COMPANY, INC. and LOCAL 447, PAPER WORKERS AND DISTRIBUTING TRADES, INTER- NATIONAL PRINTING PRESSMEN'S AND ASSISTANTS' UNION, A. F. OF L. Case No. C-2264.-Decided November 18, 1942 Jurisdiction : envelope manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: charges of, dismissed-anti-union activ- ities of supervisory and other employees in plant during working hours found not attributable to employer ; injudicious statement made to union committee by management representatives at bargaining conference suggesting postpone- ment of organizational activities because of its precarious financial condition, found under circumstances not to constitute interference. Company-Dominated Union: charges of, dismissed-organization formed by non- supervisory employees without knowledge of employer, and refused recogni- tion by employer, held not dominated. Practice and Procedure : complaint dismissed. DECISION AND ORDER On July 17; 1942, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in and was not engaging in the unfair labor practices alleged in the complaint and recommending that the complaint herein be dis- missed, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, on August 17, 1942, the Union filed exceptions to the Intermediate Report. The Board has considered the rulings of the Trial Examiner at the hearing and finds that, no prejudicial error was committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of, oral argument was held before the Board at Washington, D. C., on September 10, 1942. The respondent and the Union were represented by counsel and participated in the hearing. The Board has considered the Intermediate Report, the Union's exceptions, and the'entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the' Trial Exam- iner, with the additions noted below : 1. The Trial Examiner has found that the respondent did not inter- fere with, restrain, or coerce its employees in the exercise of the rights 45 N. L. R. B., No. 98. 653 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD guaranteed in Section 7 of the Act. While the evidence as to the activities of Robinson, Harris, Larsen, and Smart in connection with the meeting of employees held in the respondent's plant on February ..211194 , 1, creates some doubt as to the respondent's coxhplete'.neutrality, the, record shows that the respondent's managing officers,' Burns and Magee, immediately upon learning of the activities of these employees, reprimanded Robinson and Harris, instructed them to 'discontinue such activities, and admonished Larsen-and Smart against engaging in discussions of unions or of organizational activities among the, em- ployees. Thereafter, supervisory employees were on .two occasions given similar instructions not to interfere with union, activities. Sim- ilarly, while there, is evidence that Burns and Magee, during their meetings with Bennett and the union committee, referred to the re- - spondent's precarious financial position and requested that the Union stop or postpone 'its' organizational activities among the; respond'ent's employees, the respondent on Mardi 1, 1941, wrote Bennett that it was entirely willing to bargain collectively,-with any designated represent- ative of its employees; and in April 1941, during the strike called by the Union, the respondent distributed among its employees a* state- ment informing them, in part, that it was the respondent's policy to permit its employees full freedom of organization for the purposes of collective bargaining. Furthermore, the respondent settled the strike by negotiating and entering into a 1-year contract with the Union, which included a maintenance-of-membership clause covering em- ployees in the respondent's shipping department. Upon the record as a whole, wet find, as did,the. Trial, Examiner, that,the respondent did not interfere with, restrain, or coerce its employees -in the exercise of . the rights guaranteed in Section 7 of the Act. 2. The,Trial Examiner has found that the respondent did not inter- fere with or; ,dominate the formation or• administration of the Asso- ciation and did,not contribute support to it. Here; again, we agree.- While ,there is evidence- that employees engaged in furthering the formation ' of the Association were absent from the plant during- working hours; at times without deduction from their,rpay, the record shows, as the Trial Examiner,has found, that ,the respondent had no, reason to know and in fact did•not know, of tine "activity and absence of the employees in-question. There is no showing of, aily,direct.con- •nection between the meeting held in the respondent's plant`on February 21, 1941, and the subsequent formation of the Association, and, no rep- resentative of management.engaged in any similar conduct following the issuance of Burns' and Magee's reprimands and instructions after the meeting. Te agree with the Trial Examiner's finding that the re- spondent is not responsible for the activities of,Howard Zeller in pro- ,r. THE' GRAY E_.NVELOPE- MANUFACTURING COMPANY, -INC. 655 moting-tlie formation of the 'Association. In addition, as the Trial Examiner has found, the respondent' on' March 8, 1941,-and' thereafter' refused to recognize the Association unless it was first certified by the Board to be the duly designated bargaining representative. We do not believe that the record :is'a whole sustains the allegations in the complaint that the respondent interfered with, dominated, and sup-' ported-the Association.' We find, as did the Trial' Examiner,; that the -respondent did not donliiiate or interfere' with the formation or • ad- ministration of the Association and, that it, did not contribute_ support 'to the Association.' ,ORDER Upon the entire record in the ease, and pursuant to Section 10 (d) of the National' Labor- Relations Act,-the'National Labor'Relations Board hereby orders that the complaint issued herein-against the re- spondent, The Gray EnLVelope' Manufiictui'ing'Conpany,'Ind , Brook- lvn New`York,-156,'a nd it hereby is, dismissed. MR. W.1. M. LEISEIISON took no part in the consideration of the above Decision and-Order. ' ' INTERMEDIATE REPORT • - - Ali George Tai itz for the 13oard McLanahan, Met ritt, I ngralani , and Ch in,,: y, by _iii Ilene g Clef ton.• Jr , of'New York, N Y, for the respondent. - - Frank ficheener 'aud.Robert Bennett , of New York, N, Y., for the Union. Hovaid Zeller, of Brooklyn , N. Y.; for the ,Association. STATEMENT OF TIIE-CASE Upon a charge duly filed on March 15, 1941, by Local447, Paper Workers and Distributing Trades, International Printing Pressmen's and Assistants' Union, A- F.- of L, herein called the 'Union, the National Labor Relations'Board,' herein called the Board, by the Regional Director'for the'Second Region `(New York, New York), issued its complaint, dated Api•il'29, 1942, against The Gray 'Envelope Manufacturing Company, 'Inc , herein called the' respondent, alleging that the respondent'had engaged in 'and vas engaging iii' unfair labor practices affecting commerce within the'ineaning of Secticin 8 (1) and (2) and Section 2 (6) :ind (7)- of-the National Label- Relations Act.'49'Stat. 449, herein called the Act.' 'Copies of the 'complaint, accoiiipanied•by notice of hearing *ere duly served upon-the re-' spondent, the Union; and the Gray Envelope Employees' Association, herein-called the-Association. -'fn respect to the'u nf<nr labor practices, the complaint alleged in substance that (1) from on or about February 1..1941, the respondent interfered with the ein- ployees' right to self-organization by (a) vilifying, disparaging, and expressing disapproval of-the Union: (b) interrogating;its•employces-concernniig`tile ir union affiliation; ' ('c)' urging, persuading,'- threatening,--arid wariifng-'-its•'employees to refrain' from.assisting'on: becoming- membeis•of'or remaining-inembers'of the Union. and (d) urging, persuading, threatening, and wainiiig its ennpluyees--to: 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assist, become members of, or remain members of an independent labor organi- zation ; and (2) the respondent on or about March 3, 1941, initiated and sponsored the Association, and since that date has assisted, dominated, contributed support to and interfered with the administration of said Association in violation of Section-8 (2) of the Act. In its answer to the complaint filed June 22, 1942, the respondent admitted the allegations concerning the nature of its business, denied that it had committed any unfair labor practices and affirmatively averred that it had at all times maintained strict neutrality with respect to union membership or non-membership and had refrained from entering into a contract with the. Association in the absence of a certification from the Board. Pursuant to notice, the undersigned, Webster Powell, the Trial Examiner duly designated by the Chief Trial Examiner, conducted a hearing from June 22 to 24, 1942, inclusive, at New York, New York, at which time and place all parties were afforded a full opportunity` to participate in the hearing and to examine and cross-examine witnesses and to introduce evidence bearing on the issues. The Board, the Union, and the respondent were represented by counsel ; the Associa- tion was represented by its president. All parties participated in the hearing. During the hearing, counsel for the respondent moved to dismiss- each of the allegations of the complaint. Without objection from counsel for the Board, the undersigned dismissed the allegation that the respondent had interrogated its employees concerning their union affiliations. The undersigned reserved ruling on the motions to dismiss the other allegations of the complaint. These motions are disposed of in the recommendations herein contained. At the close of the hearing, a motion by counsel for the Board to conform the pleadings to the proof in minor particulars such as names and dates was granted. At the conclusion of the hearing, counsel for the Board and the respondent availed themselves of an opportunity to argue orally before the undersigned. Such argument was incorporated in the record. Although the parties were advised of their right to file briefs, no briefs were filed. On the record thus made and from his observation of the witnesses, the under- signed makes, in addition to the above, the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Gray Envelope Manufacturing Company, Inc., is a New York corporation with its principal office and place of business in Brooklyn, New York. It Is engaged in the manufacture and sale of envelopes. During the 18 months pre- ceding the hearing,.the respondent used in excess of 1,800,000 pounds of paper, of which approximately 50 percent was shipped to the respondent's plant from points outside the State of New York. The paper thus used represented ap- proximately 80 to 90 percent in value of all materials used by the respondent in its business. During the same period, the respondent sold finished products valued at approximately $1,250,000, of which approximately 25 percent was sold and shipped by the respondent to points outside the State of New York. The respondent agrees that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED Local 447, Paper Workers and Distributing Trades, International Printing Pressmen's and Assistants' Union is a labor organization affiliated with the American Federation of Labor admitting to membership employees of the re- spondent. THE GRAY ENVELOPE MANUFACTURING COMPANY INC. 657 Gray Envelope Employees' Association is an unaffiliated labor organization admitting,'to membership employees of the respondent. III. THE ALLEGED UNFAIR LABOR PRAC7 ICES A. Background The Union began its organizational efforts among the respondent's employees in August or September 1939: Sometime in September of that year, Robert Bennett, representative organizer of the Union, interviewed F. Burns, at that time general manager and treasurer of the respondent, concerning a collective bargaining agreement' In this interview the Union claimed that the majority of the employees in'the printing and shipping departments were members. Dur- ing the interview Burns informed Bennett that the respondent was in a precari- ous financial position, that its stock was owned by employees of the West Vir- ginia Pulp and Paper Company and that if the employees of the respondent were organized, the owners of the stock would liquidate the respondent's business. At that time the respondent owed approximately $150,000 to the West Virginia Pulp and Paper Company for paper stocks purchased in the course of its opera- tions. After some discussion Bennett agreed not to press his request for a contract and thereafter temporarily discontinued the Union's organizational efforts at the respondent's plant. In May 1940, Bennett met with several of the former members of the Union to discuss the situation in the respondent's plant and it was agreed that the campaign to enlist membership among the respondent's employees, which had been suspended, would be resumed. However, except for monthly meetings participated in by a few of the employees, no further activity was engaged in until February, 1941. During the first half of February a number of employees in the printing department resumed active membership in the Union. B. Alleged domination. and interference with the formation and administration of the Association; alleged interference, restraint and coercion On February 20, 1941, Bennett and Hyman Wolpin and Anthony Lawrence, members of the union negotiating committee and employees in the printing department, met with Burns and Thomas A. Magee, then the respondent' s sales manager and a member of the board of directors.' Miss Harris, Burns' secre- tary, was in the room sitting at a desk in back of the conferees during this conference, but took no part in the.meeting. Bennett informed Burns that the Union had a majority in the printing department and wished to negotiate a contract. Burns stated that the company was still in bad financial condition and that before taking any action he would have to consult with the Messrs. Luke of the West Virginia Pulp and Paper Company, who owned stock of the respondent. Burns also questioned the appropriateness of a collective bar- gaining unit consisting only of printing department employees, and stated in substance that in his opinion all the production employees should be included in one unit inasmuch as the manufacturing process was highly integrated, and that he would bargain with the Union if it had a majority of the production 1 At first the employees were organized in a Federal Union directly affiliated with the A. F. of L. In September 1939 these employees were transferred to Local 447, which admits to membership other employees in the New York City area working for concerns similar to the respondent. 2 In May 1941 Burns became president of the respondent. 8 At the time of the hearing Magee was also vice president. 493508-43-vol. 45--42 658 . 'bECISIO\TS OF .NATIONAL-(LABOR RELATIONS BOARD employees Burns also told Burnett that he should first -organize the rest of the envelope companies and then organize the respondent 's employees Burns further told the union committee that Bennett in organizing the printing de- partment bird not lived up to his earlier agreement not'to organize the employees and that if the I respondent gave a wage increase to the employees in the printing department it would have to give one to,the rest of the employees , and, there- fore, because of the respondent 's financial condition , it would be unable to grant , any wage increase to the printing department employees . In connection ,with his statement concerning , the inability of the respondent to. pay wage in- 'creases-to all its employees at that time , B erns alluded to the Champion' En- '•velope Company where the Union had succeeded first in organizing. and securing a contract for the employees in one department and then another until the entire plant was organized and the Union secured a closed -shop agreement --Burns also frankly told Bennett during the discuss,())) that he hoped the Union -:`would leave him alone" so that lie could inaugurate a plan he had conceived whereby the employees might be.able to purchase the.stock of the respondent then owned by' the Messrs Luke , and become part owners of the business.' About ,12 :.30 p. in on February 21,,a meeting attended , by a majority' of the - respondentls.' employees was held in the stockroom • immediately , adjacent to the office of Plant Superintendent Larsen The office, was separated from the .stockroom by a glass partition ' The meeting which lasted about half an hour was called by Robert S. Robinson , pay-roll clerk,' at the request of several em- ployees who were disturbed by the organizing campaign that had been started by the Union.' Before calling the meeting, Robinson spoke to Harris , Burns' secretary, about ,the plan to call a meeting and she exjtressed approval Wolpin and' another employee in.,the printing -department named Batewell were both notified about this meeting by 'their foreman, Smart.' Robinson opened the meeting by stating that he had called the employees together without securing the respondent's permission and that he was afraid he might lose his job, or be otherwise disciplined , for taking such a step. According to the undisputed testi- mony of Batewell , Robnson , went on to say that there were "10 idiots" in the printing department who were jeopardizing the jobs of 125 employees by attempt- ing to deal with an outside union , and that he would hate to meet the organizers in a dark alley ' Robinson then proceeded to infoi iu the employees of the pre- carious financial position in' which he respondent found itself and stated that the creditors of the respondent would have nothing to lose by closing down, the business iii, view of the fact that machinery and other assets could be Liquidated by the creditors so as ,to bring about a full settlement of their claims. Rolirhson further told the employees present that he was not thinking entirely, of himself but was thinking of the jobs of the "120-odd people " iii the respondent 's employ. 4 The findings are based on Bennett' s undisputed testnnonc - ' - a' 5 As pay-roil clerk, Robinson checked the 'time cards of each employee against the em- ployee s own st a tement of the number of hours marked and made adjustments at the end ,it each week where there appeaied a dlsciep.unc} between the time worked as indicated on the face of'the time cards and the actual time claimed by the employee Robinson Worked under Irving, who was ofhce'manager and assistant treasu rer He-was paid $28 a T'eek rhe-undeisigned finds from ,the,toregoing that Robrnson 's duties are not of a supervisory natui0 nol'is there any 'yidence that any of the, employees regarded either Robinson or I lai, is , who spoke at the iiieetung , as, ,1 1 epresentative of the eniploycc' The emploNees who approached Robinson veie Judv Bufti, Mrs Feeley, and a gill rianied Aiac cio, all ion-snpsri isol y c iniploy ees , t i findini-i' ,based upon the ,undisputed testunon} of Wolpin and Batewell Smart 'did not testitc ' IIon-enei , Robuisoii ileliie[3 chat lie hail reque,ted Sinai t `to ,tell , anyone about the meeting and testified that he had. notified a number of the employees that a meeting was to be held ,n THE: GRAY..EN.VELOPE MANUFACTURING COaVMPANY^: INC. 659 .Robinson went'on to state that they could save.theniselves the dues they ''would .have to pay to an outside union by going directly to those in authority and having -their grievances taken care of in that manner.. .Robinson then requested any, employee who had a grievance. to state it. 'No . one spoke up .. Harris then told the employees they should get together and "try to settle the matter."-' Sometime during the meeting Judy Buffa stated that she felt sure the eiiiployees other: than • those connected with the Union could accomplish anything they wanted by dealing strictly among themselves - Miss Bewig, an employee in the folding department, .also-stated that if the Union organized the employees -they would "all'be walking -with newspapers" under their arms. Apparently by this remark, Bewig.meant that the employees would lose their jobs if the'Union organized the plant Fol- lowing these remarks of Harris, Buffa, and Bewig, Robinson stated that it would not be so bad if the^Union had responsible leadership in the plant, but that the person in whose hands the welfare of all the employees, would 'be'entrusted, if the Union succeeded in obtaining a majority, Was, not qualified for such respon- sibility, due -to,his inability to manage his own financial-affairs ". Wolpin and ' Batewell' understood that Robinson was referring to Lawrence whom 'Bennett had appointed union- steward in the printhig Department prior to -February 20; -they knew; that Lawrence'owed 'ropsFder^abletmoney and'ewas at-that time in financial difficulties When Robinson thus 'referred to Lawrence, Howard Zeller, an employee and later president of the Association," who had come late to ,the meeting, went to Larsen who was tlien in the shipping room, directly in back of his office and about 50 feet from the meeting, and told him that the meeting was getting personal and that he should stop it. Larsen replied that he had - nothing to do with- the meeting 10 However, ,Batewell 'testified without contra- (diction and the, undersigned finds ,that shortly thereafter'Larsen went lip to someone and told him to "break it up." "Thereupon the meeting ended. Zeller was paid for- the time spent'at the meeting and the record does not reveal that -any, of, the employees who'attended the meeting lost any time for the lialf hour ,spent at the meeting Harold Burns, assistant foreman of the` printing' deliart- ment, attended the meeting Sometime during the meeting Robinson saw Larsen sitting in his office. The undersigned finds that Larsen at'all times was aware that the meeting was taking place. .About all hour after the meeting, June Wilson circulated a petition among the employees in the 'various departments, the heading of which,"accordirig' to Zeller'sn•testimony whieh-;the undersigned-credits real;till, substalice,*, "We don't wanf any- part of any union " There is no showing that any officer or supervisory employee saw the 'petition either while it 'iuas being circulated or -tliereifter Magee flatly denied any knowledge of the petition: Several•witressestestified, and, the undersigned finds, that, it was c•iistoniaiy• ill' 'th'e' resprinde'it's plait for, the employees to -circulate papers for various 'purposes, such as obtaining pledges'to give, money for wedding presents, and that such solicitations were never disapproved by supervisor; employees.' In view of this fact 'and' froni his ':observation oft-Magee-on' the witness' stand, the rndersigned credits Magee's .statement tliat•he had no knowledge of the petition. About 2: 30 or•'3 p in on.-February 21, Robinson and Harris were summoned lto Bu'rns' office. 'Burns and Magee, who had returned from lunch aftertlie`abovve- described meeting ended ancf had been'nformed'of the meeting by'Larsen; repri- 8 These findings ai e based upon the undisputed testimony of Robinson _. e • .- •' - "According to Robinson's undisputed testimony, which is credited, nothing was said about the formation 'of the.As,sociation at this meeting, and Rohnison did not hear about the Asso- ciation until some time later Robinson wus never a meinbe, of'the Association . 10 These findings are based upon the undisputed testuiionv of /,ellei. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manded Robinson for calling the meeting. Burns asked Harris and Robinson if they had obtained permission to hold the meeting from anybody . Robinson replied that they had not. Burns then said, according to Robinson , whose testi-- mony on this point is undisputed , "In the future mind your own business and keep entirely out of the affairs of the company. In the event there is a union in this company , you will not, be a member probably and it in no way will affect you just in case some day you should lose your job by the closing of the company ... Naturally enough, I appreciate your attempts, but at the same time you are probably doing lots more harm than good and in the future I will appreciate it if you will do nothing of the kind and keep still about the whole thing ." Burns further said during this conversation that any union in the plant would probably concern only the factory employees. Sometime between 4 : 30 and 5 o'clock in the afternoon of February 21, Robin- son, seeking to make amends for his attack on Lawrence , requested Lawrence, Wolpin, Tschirhart and Baker, all employees in the printing department, to come to the stockroom. Harris was also present . Robinson apologized to Lawrence for the remarks he had made earlier in the afternoon. Lawrence refused to accept the apology. Thereupon both Harris and Robinson offered to , see Burns on behalf of Lawrence or any of the other union men, if any of them desired to see Burns. Harris stated that she felt that employees who had grievances against the company could secure satisfaction by going individually to see Burns, without involving an outside union. Lawrence said he could not see Burns with- out first consulting with his fellow union employees and the union men left the meeting with the understanding that they would come back to Robinson and Harris after they had made their decision . Robinson and Harris waited three- quarters of an hour for the men to ' return but they failed to do so. Thereupon Robinson and Harris left the building. Robinson held this conference without securing permission from any of the respondent 's officers or supervisory employees. On or about February 24, Bennett who had heard about the meeting of Febru- ary 21, accompanied by Wolpin and Lawrence, called upon Burns and Magee to protest against the holding of this meeting . During the conversation, Burns, who was not at the plant during the meeting of February 21 and who had not consented to the holding of the meeting, assured Bennett that there would be no recurrence of this incident. Bennett then requested that Burns hold another meeting at which Robinson would make a public apology to Lawrence for the remarks that he had made about the latter and about the union organizer at the meeting of February 21. Burns pointed out that Robinson had already apologized to Lawrence but stated that if Bennett insisted he would call such a meeting. Lawrence then said that he did not wish any such public apology to be made and the matter was dropped. On February 24, shortly after the above conference, Magee and Burns spoke to Larsen and Smart and told them in substance not to engage in any discussion with any employee with regard to unions or organizational activities. On or about February 25 Bennett and President Fishko of the Union, together with Lawrence, Wolpin and two other employees had dinner with Burns and Magee. According to the uncontradicted testimony of, Magee, Burns spoke at some length about the financial condition of the company and asked the union representatives to delay the organization of the respondent's employees "temporarily until it was in a stronger position financially." At that time the respondent still owed about $1,000,000 on its debt. Fishko Ignored Burns' request and asked Burns if he was ready to negotiate. Burns and Magee then told the union representatives they would advise them and left the restaurant . Sometime between February 24 and March 1 Bennett, Wolpin, and Lawrence again met with Magee and Burns in an effort to negotiate THE GRAY ENVELOPE MANUFACTURING COMPANY, INC. 661 a contract. Burns again questioned whether a unit consisting of the printing department was appropriate and suggested that Bennett wait until he secured the majority of the production employees before requesting that the respondent bargain collectively with the Union. Bennett replied that he expected to sign a contract with the printing department first and, then organize the rest of the employees. Burns asked Bennett if the question of the appropriate unit could not be submitted to the Board. Bennett replied that it was not necessary." On March 1, the respondent wrote a letter to Bennett, sending a copy to the Regional Director of the Board for the Second Region, stating'in part: So that no misunderstanding may arise between us as to one of the matters discussed in our recent conferences, I advise you that this Company is en- tirely willing to engage in collective bargaining with any representative the employees of the Company may select, in a unit appropriate for such bargaining. The letter then proceeded to give some of the respondent's reasons for believing that a company-wide unit was more desirable than one restricted to the em- ployees of any one department. On March 3 Bennett and the union representatives, after receiving the above letter, again asked Burns to enter into negotiations for a contract. Burns refused, saying that he would negotiate with the Union only if it represented a majority of the production employees, and requested Bennett to hold off the strike until the Board could determine the appropriate bargaining unit. How- ever, Bennett refused Burns' request 'and the Union called a strike of the employees in the printing department, which lasted until April 21, 194112 Immediately after the strike commenced, Magee repeated the instructions he had previously given to Larsen and Smart not to discuss union organization or the strike with any of the employees, and gave similar instructions to Ollis, foreman of the cutting department. Again on April 22, 1941, when the striking employees returned to work, Burns told Smart he was not to show any dis- crimination against the men who were returning to work. During the early part of the strike the respondent issued a statement which it distributed among its employees explaining its financial situation, and its wage and salary policy and concluding as follows : So that there may be no misunderstanding we state that the policy of the Company has been and is to permit its employees full freedom of organiza- tion for purposes of collective bargaining. No dispute can arise between the Company and its employees over that question. However, about a week after the strike commenced, according to the undisputed testimony of Bennett, Magee told Bennett that he was "upsetting everything," that the Union should "get out of the picture . . ., and send the men back to work." For a month or more prior to the strike Zeller, an adjuster in'the folding de- partment," Stanley Lapes, a floorman, and William Griffith, an employee in the 11 These findings are based on the undisputed testimony of Magee. 11 Negotiations between the Union and company representatives finally resulted in a strike settlement providing for a union maintenance shop for the printing department. The agree- ment further provided among other things that the Union would seek a determination of the appropriate unit from the Board as soon as possible. 11 Out of a total of approximately 40 employees in the folding department, over which Superintendent Larsen had direct supervision, 6 were adjusters and the rest were machine operators. The latter were all women and the adjusters all men. Of the 6 adjusters, 4 including Zeller were paid by the hour , while 2 of the adjusters, who had been longest in 662 . DECISIONS OF NATIONAL LABOR ..RELATIONS BOARD shipping department , talked among themselves about the possibility of starting an organization of the employees." The Board . contends that Zeller was a minor supervisor and as such his acts are attributable to the respondent . The, re- spondent claims that adjusters are merely mechanics who keep the machines in the folding department in good running condition and repair them when necessary This'coiitentioi is in accord with the credible evidence and the undersigned finds that Zeller was not a supervisory employee Between February 21 and March 3,, Zeller spoke to a number of other employees besides Lapes and Griffith about forming an association of their own . Sometime during February 1941 , while the Union was, conducting its organizatipnal, efforts among the pri ating..departmei t - employees, Griffith showed Zeller a copy of a model constitution and bylaws in an article in the August 19371 issue of aImagazine entitled "Factory Management and Maintenance"' This magazine, according to Zeller, , whose testimony is undis- puted, was taken by Griffith from the scrap heap in the back of the respondent's plant. Zeller further testified that it was customary among employees to pick up the old magazines which the Company discarded from time to time and read them. -Magee testified, and the undersigned finds, that it was the respondent's, practice to throw out magazines that were, anywhere from a year to a year and a' half old. Although the magazine in question was 4 years old at the time that Griffith picked' it out of the scrap heap, there is no evidence that Griffith obtained the magazine from the 'respondent Nor does the foregoing warrant a finding that the 'respondent"suppliedlGriffithl.'with,Ai e above copy Manage- ment and Maintenance," as the Board contends Shortly before March 3, 1941, Griffith'. wife obtained a reprint of the above article from a publishing house which Griffith showed Zeller. Oil March 3, Griffith, Lapes, and Zeller discussed, the strike situation and' in the wordy of Zeller decided that the Union "had gone out on strike and left us out in the cold." These three men then decided to call a 'meeting -of,the employees and by word of mouth notified the employees whiff were working, of the nieeting The meeting was held after the close of the dity shift in an unoccupied portion of the sixth floor of the Bush Terminal Building, at'.approximately 5:45 p. in. on` March 3-and was attended by about 78 employees The meeting lasted about 30 minutes. Zeller read to those attending the meeting a constitution which Griffith, Lapes and himself had prepared from the repn rut of the article in "Factory Management and Maintenance.';'s The constitution was adopted unanimously Zeller, who was on the,night shift on March 3, punched his time card before the meeting. No deductions were made from,his pay for the time spent at the the respondent's employ , were paid by the week According to Zeller,' his duties were to "change machines from one size I envelope] to another and keep-them running" Magee testified that adjusters "do not actually exercise any supervision They tare responsible forputting^the job on . the machines-and'seeing •thiit= they are run pioperly' .- They are mechanics " ' The testimony is undisputed that adjusters make no recommendations regard-' ing the work of the operators in the folding dept tmenl and have no authority to hire or discharge 'Adjusters sometimes give instructions to new operators with respect to the operation of the machine Adjustois are eligible to membership both in the-Union and in the Association. "At the'time of the hearing Griffith and Lapes were no longer employed by the respond- ent and wei e not available as witnesses 15 Article 1, Section 1 of the constitution reads The employees of the Gray Manufacturing Coinpanv hereby jour this association and adopt this constitution in order to promote their general welfare, to cooperate with the' company , and to bargain collectively with the 'management as•to wages, hours and working. conditions -Article III , Section 1 , provides that All full time employees (except those who are identified with management or'are in super- visory positions ) may become members THE GRAY ENVELOPE MANUFACTURING COMPANY' INC. 6633 meeting -Lapes and Griffith who were on the day shift, did not punch out, until after the meeting and were paid for the time spent at the meeting There is no evidence that any supervisory einployees'attended this meeting-or'the subse- quently described meetings of March 5 and 7, or that the respondent.knew that these meetings were taking.place. On March 5, 1941, Griffith went to the printing establishment of George- Elsner during working hours and ordered pledge cards for the Ass'ociatioiu.. Later, on the same day, Griffith called for the pledge cards. His time card for' March 5 shows, and the undersigned finds, that Griffith did not punch out on'this occasion and that he'was pald for full time on-that day. The trip to.the printers and back to the- respondent's pliiiit-'.took' at.• least-' 3/r' of an'-hour. 'However, there -is no evidence that the respondent knew of Griffith's absence from the plant, on March 5 during working hours, nor can the respondent be charged with knowledge, of,this absence in view of Griffith's duties and the loose method of time*keeping employed by the respondent, as hereinafter set forth. , On March 5, the Associa-' tion held its second meeting at which 90 percent of the pledge cards in the: Association were signed.. This meeting likewise took place at the same location as 'the meeting of'March 3, between 5:30 and 6 p m.,,at-the, time when most of' the employees on the day shift were finished with their work. The is no evidence that any of the'employees who attended this meeting were paid by the responde'n't. for the time so spent. ' On March 7, employees who had signed pledge cards in the Association, again met shortly before 6 p III at the same location at the two prior meetings and elected an executive committee." The meeting lasted abort half all hour All `the, employees elected to the executive committee except Harriet Doyle attended this` meeting. Zeller, Dingle, Lapes, and Griffith worked on the day shift on March 7 and were paid for the time spent at the meeting. Arrangements for the meetings of March 3, 5, and 7 were made between Griffith and the'superintendent of the building. There is no evidence that the respondent had any, knowledge of these arrangements. The respondent occupied the fifth floor of the same building, and as occasion required, rented bay space oil other floors for storage purposes. There is no evidence that the respondent was renting any. space on the sixth floor during the week ending March 8, 1941, or that the meet- ings of the 'Association were held on property occupied or used by the respondent, as the Board contends. On the afternoon of Saturday, March 8, the Association's executive committee met on the street outside the plant and elected ofHcers.17 Later, on the same, afternoon representatives of the Association informed Burns that they were forming an association, that the employees wanted more money, 'and requested Burns to bargain with the Association Burns refused, stating that he, already, had "a union on his neck" and that he would not recognize the Association unless., it was certified by the Board. The respondent had not to the date of the hearing, recognized the Association as. the bargaining representative of any,, of its employees and has never had a contract with the Association At this meeting with the Association's representatives Burns stated that: As far as this, company is concerned management has no objection to its employees joining an outside union, forming a union of their own, or joining id Floward Zeller, Stanley Lapes, William Griffith, Harriet Doyle, Frank Schupin, and F D'ngle 17 Howard Zeller, pre'sident'; William Griffith, vice president;, Annie Moore, secretary ; Harriet Doyle , treasurer ; and Stanley Lapes, chairman. 11 Counsel for the Board and the iespondent stipulated that, if called as a witness, Burns, who was in California at the time of the hearing, would so testify. 664 DEiCISIONS OF NATIONAL LABOR RELATIONS BOARD ' no union whatever.- This is a matter solely for the employees to decide for themselves without any suggestions, assistance or interference on my part or on the part of any official or supervisory employee of the company. On March 10 Zeller, Lapes and Griffith went to the Regional offices of the Board in New York City and obtained a petition for investigation and certifica- tion. The trip was made during working hours and the three men were paid for their time while engaged on Association business. However, as found on the' occasion of Griffith's visits to secure the printing of the Association's cards, there is no evidence that the respondent knew of these employees' absence from the plant during working hours, nor can the respondent be charged with knowl- edge of their absence in view of their respective duties and the loose method of time keeping employed by the respondent as hereinafter pointed out. On the same day the petition was signed in the presence of a notary and mailed to the Board's office. Thereafter Zeller, accompanied by one or more officers of the Association or members of its executive committee, made several trips to New York attempting to discover what disposition had been made by the Board of the Association's petition. Zeller testified and the undersigned finds that on all of the trips after March 10, he, and the other individuals accompanying him, punched out on their time cards before leaving the plant. The respondent contends that it Is not responsible for the failure of Zeller, Lapes and Griffith to punch out on March 10, nor for the failure of these men and Dingle to punch out on various occasions during the week ending March 8. In support of this contention a number of witnesses, including Magee, testi- fied and the undersigned finds, that it was customary for the respondent to rely on an employee's word as to the amount of time he worked during each day, and the time cards themselves state that each employee is his "own time- keeper." This statement Is further supported by Robinson's testimony as to the method employed in checking the time cards and adjusting the employee's time. -The respondent further contended that no one exercised any close watch over the time clock or over the employees while they were at work so long as the work was performed satisfactorily. This contention is strengthened by the nature of the duties of Zeller, Griffith, and Lapes, the most active organizers of the Association. Lapes was a floorman ; Zeller an adjuster and Griffith was in the shipping department. Their duties permitted them a great deal of unsupervised freedom of movement within the plant 19 In short the respon- dent's contention that the employees who failed to check out during the week ending March 8 and the week ending March 15, 1941, were trusted employees, not closely supervised, and that the respondent was unaware of the violations of the rules which it concedes took place during these 2 weeks is substantiated by the evidence. It is found that the respondent's payment of regular wages to Zeller, Lapes, Griffith and Dingle on the-occasions above set forth when these employees were engaged on Association business rather than working for the respondent did not constitute assistance within the meaning of the Act. Following the above-described Association meetings and activities of the officers and executive committee members of the Association during the period March 3 to 10, 1941, inclusive, the Association ceased activities pending the outcome of the petition for investigation and certification which it had filed with the Board. On March 15, 1941, the Union filed charges, alleging a violation by the respon- dent of Section 8 (1), (2) and (5). As above stated, on April 21, 1941,-the Union 19 Zeller's duties have already been described in footnote 13, supra. Lapes was a door- man whose duties took him from machine to machine throughout the plant. Zeller testified and the undersigned finds that Griffith was "on and off the floor quite a bit and if there was no paper coming in that day he had it pretty much to himself." THE ' GRAY ENVELOPE MANUFACTURING COMPANY INC. 665 and the respondent entered into an agreement in settlement of the strike then in effect, the agreement to remain in force for one year. Except for periodic visits to the Regional Office of the Board, the Association continued to remain inactive until about the middle of April 1942. Between April 14 and 21 , 1942, Lapes and Zeller urged members of the Union to join the Association . Lapes, whose duties as floorman took him into the printing department, talked to Hyman Wolpin about six times during this period, two or three,times at Wolpin's machine and three or four times in the washroom. The conversations which took place while Wolpin was working lasted from 5 to 15 minutes. Ordinarily, in the course of his duties Lapes never spent more than 2 minutes at any one machine. One of these conversations , between Lapes and Wolpin , which took place in the washroom , lasted about three quarters of an hour. Zeller was also present during all or part of this conversation. Bate- well likewise participated in the conversation for 10 minutes. As Batewell was leaving the washroom Superintendent Larsen entered the room, spoke briefly to Lapes in connection with his work , and left the washroom . Lapes and Zeller continued to talk to Wolpin about the Association for another 20 minutes.ZO There is no evidence that on this occasion Larsen knew that the three men were talking about the Association , nor was there evidence of any rule against talking in the plant during working hours. On the contrary, there was credible testimony both by Board's and by respondent's witnesses that employees talked freely while at work and that the nature of the work of Wolpin and Batewell was such that talking or leaving their places of work for extended periods did not interfere with their work. Also on occasion Zeller could leave his work in the hands of other adjusters without slowing down production and Lapes' duties took him all over the plant. Larsen knew that Wolpin and Batewell had participated in the strike and were -members of the Union . Assuming that Larsen knew that Zeller and Lapes were members of or active in the Association , there is no indication that Larsen knew whether Zeller and Lapes were soliciting Wolpin and Bate-' well on behalf of the Association or whether Wolpin and Batewell were soliciting Zeller and Lapes on behalf of the Union or that they were discussing either organization . On April 21 , 1942, the day that the contract between the Union and the respondent expired, Wolpin and Batewell signed temporary pledge cards in the Association at the request of Lapes. Under these circumstances, the undersigned finds no merit in the Board's contention that the above-described activities of Zeller and Lapes constituted assistance by the respondent to the Association. On May 23, 1942, the respondent granted a wage increase to its hourly paid factory employees, effective June 1. An "Executive Notice" containing a state- ment concerning this increase was posted on or about May 23 on the respondent's bulletin board, which is located near the time clock . The final paragraph of this notice reads as follows : The employees are advised that it is not the intention of the company by this action to deny to any of the employees their rights of collective bar- gaining but because of the unsettled situation with respect to collective bargaining and because of the inevitable delays in clearing up this situation the-management feels that the employees should not be deprived of the benefits involved in this wage adjustment . As and when a collective bar- gaining agent is certified , matters of this kind will be handled through that authority. 20 These findings are based on the undisputed testimony of Wolpin , which was corrobo- rated in part by the testimony of Batewell. '666 . 'DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Gonclustons The Board contends that the impetus for the formation of the Association was furnished by the meeting of February 21 and that thi's'ineeting was sponsored by the respondent, in order to (prevent the Union from organizing ifs 'employees. The meeting of February 21 was held on company time and - property within about 60 feet of the superintendent 's office. The"undersigned has found that the supernn- tendeiitrwas'in his,.officie-part ofi'the,tittic,and wins aware'of the fact that i1=meeting was taking place Furthermore,. the tenor of the meeting was clearly one of oppo- sition by the employees to an .ortside union . Some of the employees were notified of the meeting by Foreman Sniart . Ordinarily, under these circumstances, the respondent's failure to immediately stop the meeting upon learning ;,f'it or take 'public action denoting its disapproval of the meeting would lead to the conclusion that the activities of the employees who called the meeting were attributable to the respondent. However, under the circumstances of this,case, the undersigned-is of the ,oprnion that such a finding would be contrary to the situation which then .prevailed in the respondent's plant. Its employees were genuinely alarmed nt the possibility of losing their jobs if the Union were organized in the plant and de- manded it wage increase because of the respondent 's financial condition Follow- ing the • meeting of February 21 , Burns reprima tided both ,Robinson and Harris for calling and participating in the meeting and offered , upon Bennett s request, tb call a meeting to' nnake amends for the remarks of Robinson at the meeting of February,21. Furthermore, there is no evidence establishing any connection be- tween the meeting of February 21-and the formation of the Association 2 weeks later which the evidence shows was precipitated by a strike called by the Union in the printing depai tnient . The,IBoard argues that by implication the 'fact that those who spoke at the meeting of February 21, opposed an outside union indi- cated to the employees attending that meeting that the respondent 'favored, the forniation of an ` inside union," Howe1 or, there is no evidence that the employees who attended this meeting regarded it ns a meeting sponsored by the respondent to bring about the formation of an "iii:ide union." nor is there'any evidence that the respondent in any way sponsored or contributed to this meeting ' Some of the employees in noway connected with the meeting of February 21 had been discuss- ing the formation of an association foi several weeks prior to that meeting The actual formation of the Association occurred without any assistance from or. con- nection with the respondent 's officers or supervisory employees except for the did rendered some of the emphiyees who attended Association meetings and con- ,ducted other Association business without having any deductions made from their pay whileeingaging in' these activities Underthe above ciicumstances, it is found that the meeting of February 21, 1941 , did not constitute assistance to the As within the meaning of the Act." Although the respondennt does not deny that it did on occasions pay employees for time spent on Association business, it contends and the undersigned has found that it was unaware of the fact that Zeller , Lapes, Griffith, and Dingle absented themselves from work on Association business and failed to punch out on various occasions hereinabove set forth Time undersigned has also found that the em- ployees were not closely supervised as to the time they punched in and punched out and that , so long as the work went along satisfactorily, their word was taken as to the number of hours they worked during the day The undersigned has further found that knowledge of the absences from the plant in the midst of the working clay is not chargeable to the respondent and does not constitute assistance within the meaning of the Act. From the foregoing the undersigned finds that the 'formation of the Associa- tion on March 3, 1941 , was precipitated not by the respondent 's assistance THE ,GRAY',ENVELOPE, MANUFACTURING COMPANY, INC. 667 .within the . meaning -of the :Act, but by the combined fear of the employees of a shut-clown of the plant due to financial difficulties and the organization and ,strike of4he printing department..which left.'out'in: the cold" the remaining ,Employees:, 'There remains the question of whether of, Inot-the respondent by' the'remarks .of Magee and Burns during the meetings with Bennett and the union' com- lmittee,,here jnabove'set-forth,' iolated:,Seetiom8,.(1) of the Act.i The'fact-that the respondent was in a precarious financial position when the alleged unfair. .labor practices occurred is not disputed Nor did the Board contend that the ,respondent was not acting in good faith when it asserted that it'did not think .the printing department employees alone 'constituted an appropriate unit The statements of both Burns ahd, Magee to Bennett and -the union committee ,,concerning the, organizational activities of, the Union were- made (luring' col- lective bargaining and contract negotiation conferences and were such state- ments as might be appropriately made by an employer in the admitted finan- cial difficulties of this respondent during the course of b_ rgaining Emphasis is added to this conclusion by reason of Bennett's voluntary abandonment of organizational activities in 1939 because of the respondent's financial condition. I In concluding, tine position of the Union is not strengthened by its refusal, both upon the repeated request of_,the respondent and upon the provision in its contract of April 21, 1941, to take the question of the appropriateness of the unit to the Board, and its failure to seek a renewal of said contract cover- ing the printing department employees, in April 1942 Under the circumstances of this case, while the language used by Magee and Burns may have been injudicious, the undersigned is of the opinion and finds that the remarks of Magee and Burns do not constitute a violation of Section S (1) of the Act. Upon the entire record' it is found that the respondent has not interfered with, initiated, dominated, or controlled the formation or administration of the Association or contributed support to it, and it is further found that the respondent has not interfered with, restrained, or coerced its employees in the exercise of their rights under Section 7 of the Act. Upon the basis of the above findings of fact and upon Ilse entire record in the case, the undersigned makes the following- CONCLUSIONS OF LAW 1 The operations of the respondent occur in-commerce, within the meaning of Section 2 (6) of the Act 2. Local 447, Paper Workers and Distributing Trades, International Print- ing Pressmen's and Assistants' Union, A F of L , is a labor organization, within the meaning of Section 2 (5) of the Act. 3. Gray Envelope Employees' Association is a labor organization within the meaning of Section 2 (5) of the Act. 4 The respondent has not dominated or interfered with the formation or administration of the Association or contributed financial or other support to it, within the meaning of Section 8 (2) of the Act. 5. The respondent has not interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. within the mean- ing of Section 8 (1) of the Act. RECOMMENDATIONS On the basis of the above findings of fact and conclusions of law, the under- signed hereby reconunends that the complaint issued against The Gray Envelope 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manufacturing Company, Inc., Brooklyn , New York, and its officers, agents, successors, and assigns, be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended-any party may within thirty (30) 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 Regula- tions, file with the Board, Shoreham 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 ( includ- ing 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 pro- vided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within twenty (20) days after the date of the order transferring the case to the Board. WEBSTER POWELL Trial Exarniner Dated July 15, 1942.