Leach Relay Co., Inc.

In the Matter of LEACH RELAY COMPANY, INC. and INTERNATIONAL- ASSOCIATION OF MACHINISTS, LODGE 311, AFL Case No. C-OP,80.Decided November 05, 1942 Jurisdiction : electrical devices manufacturing industry. Unfair Labor Practices Company-Dominated Union: participation by representatives of management in formation : first step in organization taken by the supervisory bench foremen,. leading to the circulation by them on company time and property of a docu- ment entitled "we, the undersigned, are in favor of a shop union" ; appoint- ment of a committee by the bench foremen to engage an attorney for the purpose of forming an "inside" union ; arrangement by them for the selection of a committee of employees to proceed further ; conduct of a ballot to, determine the type of representation desired on company time and property by the committee of employees, and posting of a notice prior thereto by the Company for the purpose of inducing the employees to vote for an "inside" or company union-participation of management representatives in admin- istration as members-assistance : by posting of notices of union meetings and a sample membership card on its bulletin boards ; by allowing solicitation of membership and collection of dues on company time and property ; and by providing plant as a meeting place after working hours. Remedial Orders : dominated union disestablished; invalid contract abrogated. DECISION AND ORDER On July 28, 1942, 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 and recommending that it cease and desist therefrom 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 brief in support thereof. 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 exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except in the respects noted below. 45 N. L. R. B., No. 112. 744 LEACH RELAY COMPANYg INC. 745 1. The Trial Examiner has found that , on the night of about March 10, a group of•bench foremen held a meeting at the home of Everett Case. He found further , on the basis of an inference , that at that meeting they dicussed the circulation on the following day of a docu- ment, stating "we, the undersigned , are in favor of a shop union." Although we find that such a meeting was not held, there is uncontra- dicted testimony to support an inference that the bench foremen in- itiated the idea of circulating the document . In this connection, Neiheisel testified that "it was suggested by several of the older fellows that it might be a good idea to start a,shop union or association,, and .we went around, papers were passed." Accordingly, we find, that the bench foremen had discussed and arranged for the distribution of the document as the first step in establishing the Association. 2. The Trial Examiner has found that, just prior to March 20, the respondent posted on its bulletin board a notice drafted by its counsel. He found'further that the election at the plant, wherein the choice of the employees for an inside union, an outside union, or no union at, all was determined, was held about March 16. We find, however, in accordance with the respondent's contention in its brief , that the election took place on March 20 and that the notice was posted prior thereto. The content and purpose of the notice are consequently ma- terial. The notice places undue emphasis on the company union as one of the choices available to the employees and clearly indicates a preference by the respondent for such an organization. The notice refers several times to the fact that the choice of the employees 'lies between "your own controlled organization" and "an outside union," implying, without-doubt, that the employees would have no control in the latter form of organization. That this is 'so is made strikingly apparent 'by the presence in the notice of a special paragraph devoted to a discussion of the company union, `in which assurance is given to the employees that there is.nothing illegal about - a company union 'controlled and run by fellow -workers whom they know and have elected. There is no counterbalancing assurance in favor of an out- side union . Under the circumstances , we find that the purpose of the notice was to induce the employees to vote for an inside or company union. 3. The Trial Examiner has found that employee Jones, who did some soliciting for the Association and who told Robert Mc Allis, an employee, that he [Mc Allis] could be -discharged if he did not join the Association, was in charge of the respondent 's stockroom. Upon consideration of all the evidence , we find that Jones was not in charge of the respondent's stockroom but that he worked there as an ordinary employee and that one Fosdick occupied the position attributed by the Trial ' Examiner to Jones. We consequently do not find that re- 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponsibility for his activities is to be attributed to the respondent by virtue of Jones' position. 4. The record clearly establishes, although the Trial Examiner has failed so to find, that the Association had as members Christensen and Case, employees identified with management. Christensen, the night shop superintendent, joined the Association about 1 week prior to the date of the hearing. He testified that he thought he had managerial authority 1 and was ineligible but was advised to the contrary by an officer or member of the Association. Case was pro- moted from bench foreman to assistant shop superintendent about 2 months before the hearing, and has been a member of the Associa- tion since its inception. Accordingly, we find that Christensen and Case were management representatives who participated in the affairs of the Association as members, thereby furnishing insurance against the Association's genuine independence and interfering with any real collective bargaining between the Association and the respondent. 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, Leach Relay Company, Inc., Los Angeles, California, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of Relay Employees Association or with the formation or administration of any other labor organization of its employees, and from contribut- ing financial or other support to Relay Employees Association or any other labor organization of its employees; (b) Recognizing Relay Employees Association as the representa- tive of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to the contract of May 14, 1942, with Relay Employees Association or to any modifications, extensions, supple- ments, or renewals thereof, or to any superseding contract with it which may now be in, force; (d) 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 representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. ' The respondent stipulated at the hearing that Christensen had such authority. LEACH RELAY COMPANY, INC. 747 2. Take• the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Relay Employees Association as the representative of. any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rate's of pay, hours of employment, or other conditions of employment, and completely disestablish Relay Employees Associa- tion as such representative ; (b) Post immediately in conspicuous places throughout its plant in Los Angeles, California, 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); (b), (c), and (d) of this Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; and (3) that the contract with Relay Employees Association, dated May 14, 1942, and any modifications, supplements, extensions, -or renewals thereof,,and any superseding contracts,, are invalid under the National Labor Relations Act, without prejudice, however, to the assertion by the employees of any legal rights acquired thereunder; (c) Notify the Regional Director for the Twenty-first Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. DIR. WM . M. LEISERSON took no part in the consideration of the aboVe`,Decision and-.Order. INTERMEDIATE REPORT Mr Maurice J. Nwcosou and Mr. Stanley D. Metzger, for the Board. Mr. Frederick I. Richman, of Los Angeles, California, for the respondent Mr. W. Fenimore Cooper, of Los Angeles, California, for the Association. STATEMENT OF THE CASE Upon a first amended charge duly filed on June 4, 1942, by International Asso- ciation of Machinists , Lodge 311, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Twenty-first Region (Los Angeles, California ), issued its complaint dated June 6, 1942, against Leach Relay Company, Inc., Los Angeles, California, herein - called' the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notices of hearing were duly served upon, the respondent, the Union, and Relay Employees Association, herein called the Association, a labor organization alleged in the complaint to be dominated by the respondent. 748 DECISIONS , OF' NATIONAL LABOR. RELATIONS BOARD i With, respect to the unfair labor practices, the-complaint alleged that since about March 1, 1942, the respondent promoted, sponsored, and interfered with the formation and administration of the Association and contributed support to it, and by such acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act. No answer to the complaint was filed. ,Pursuant to notice, a hearing was held in Los Angeles, California, on June 18, 19, and 22, 1942,,before Samuel H. Jaffee, the undersigned, the Trial Exam- iner duly designated by the Chief Trial Examiner. The Association was per- mitted at the beginning of the hearing to intervene.' The Board, the respondent, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the begin- ning of the hearing counsel for the respondent and for the Association moved to dismiss the complaint, asserting it had not been authorized by the 'Board. The motion was denied. At the conclusion of the hearing opportunity was afforded all parties to argue orally before and to file briefs with the undersigned. No arguments were made. Counsel for the Board, for the respondent, and for the Association have filed briefs. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes, the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Leach Relay Company. Inc., was incorporated in the State of California in August 1941, doing business before that date as an unincorporated company. Its main office and place of business is in Los Angeles, California, where it is engaged in the manufacture and sale of electrical relays, an electrical device used principally in airplanes and tanks. Its-entire - production is devoted to war purposes. During the year 1941 the respondent purchased raw materials consisting of steel, copper, brass, aluminum, ceramics, and silver valued at approximately $500,000. Approximately 30 percent of these raw materials were shipped to the respondent from places outside the State of California. During the year 1941 the respondent produced electrical relays valued at ap- proximately $900,000. Approximately 00 percent of these electrical relays were shipped by the respondent to places outside the State of California. These, figures include the entire year 1941 Since the incorporation of the respondent, and especially since Pearl Harbor, its business has continued to increase The respondent stipulated at the hearing that its business operations affect com- merce within the meaning of the Act.' II. THE ORGANIZATIONS INVOLVED International' Association of Machinists, Lodge 311, is a labor organization affiliated with the American Federation of Labor, admitting to membership 'employees of the respondent. Relay Employees Association, a corporation, is an unaffiliated labor organization admitting to membership employees of the .respondent. I On June 22 the Association filed a motion to intervene which the undersigned allowed as of the beginning of the hearing. LEACH' RELAY COMPANY, INC. III ' THE UNFAIR LARCR' PRACTICES, A. The chronology of events Prior to March 1942, the respondent's employees were unorganized. In January or February, both the A F. of L and the C I. O. began organizational efforts among the respondent's employees outside its plant. During the first week in March,.the female employees of the respondent were giving wage in- creases of 10 cents per hour, placing their earnings on a parity with those of male employees This caused dissatisfaction among the male employees and some of them indicated as much to certain of the respondent's bench foremen. About March 10,' several bench foremen, including Thomas Staeger and Dale' Neiheisel, and Harold Fox, chief inspector in charge of the inspection depart- ment, informed the respondent's general manager, E. K. Neale, or its secretary- treasurer, Henry C. Croft, or both, of this dissatisfaction. The record does not otherwise show what the conversation between them was. That night, however, a group of bench foremen held a meeting at the home of Everett Case, then a bench foreman.' At this meeting the activity of the A F of L. and the C I O. among the respondent's employees was discussed, as was the dissatisfaction arising out of the fact that the female employees were receiving as much as the male employees The following day, about March 11, certain bench foremen distributed 'through- out the shop a paper which read: "We, the undersigned, are in favor of a shop union." Among those who helped in the distribution of this document were Bench Foremen Dale Neiheisel and J. G. Mills, and Egon Christensen, night super- intendent. This paper was distributed throughout the shop during working hours and many signatures were, obtained thereto. In connection with- the distribution of this document, counsel for the respondent in his brief states : "Whose idea this was or how it circulated, was not brought out in the evidence, but it was not the company's idea because it knew. nothing of it." The evidence is to the contrary. The facts hereinafter recited, plus the fact that this document was circulated the day following the meeting of the bench foremen at Case's home, make it evident and the undersigned finds, that the bench foremen had arranged, at Case's home, for the distribution of this paper .4 Moreover, Neale and Croft and others of managerial and supervisory authority knew of the dis- tribution and made no effort to- stop it or in any other way to indicate any disap- proval thereof. Indeed, the record clearly shows that Neale, Croft, and other persons of managerial and supervisory authority were aware not 'only of the distribution of this document, but of the subsequent ones hereinafter referred, to. The shop itself consists&of but one room, approximately 75 by 100 feet, and is immediately adjacent to the offices of the company on the same floor, a door separating the two. "You just go through one door and you are in the shop," indicated Croft in his testimony Croft testified that he and Neale were in and- out of the shop "maybe a hundred times a day." Counsel for the respondent, in his brief, referred to the shop itself as "a large, open room where everything ' Hereafter, when the year is not given, reference is to 1942. In April, 1942, Case was made assistant to the shop superintendent. Neiheisel testified that "it was suggested by several of the ... older fellows [the bench: foremen, other foremen, and other key personnel] that it might be a good idea to start a shop union or association, and we went around, papers were passed ; I don't know at the time who passed them out, . . . and they wanted to get a general idea of what the people in the shop, what their reaction would be, whether they were interested in an outside union or an inside union. And, we got enough signatures and then somebody-" Q. (by Board attorney) : "Did you solicit that paper?"' A. "No, I didn't solicit it. I don't know tvho' solicited that paper." 750 DECISIONS . OF NATIONAL LABOR - RELATIONS BOARD could be seen at one glance." And Walter Hente, the shop superintendent, was stationed in this room. No attempt was made to conceal the distribution of this paper or of any of the others hereinafter referred to Following-the distribution • of the document about March 11 and the obtaining of signatures thereto, a meeting of bench foremen and other key personnel , includ- ing the respondent's purchasing agent, met in the drafting room ' of the plant the same clay after working hours. These men, who made up a group known as the "Foremen's Club," had met in this room prior to this date from time to time. On this day, the evidence makes clear, they met for the purpose of proceeding with the formation of an inside union "Most of us," testified Case, "were in favor of an inside organization " Bench Foremen Case and Neiheisel, and Chief In- spector Fox were thereupon appointed a committee to engage an attorney and find out how to form such a, union. - "The,idea was to get the thing' under way," testi- fied Neiheisel. He continued : Well, somebody has to be a starter, or leader, or something, to get anything under way." Neiheisel then testified as follows : Q. (By Trial Examiner) The question is, what did you mean when you testified that the idea was to get the thing under why? What thing are you talking about? What thing did you have in mind? A. The Association, in other words. Q. (By respondent's attorney) When you wanted to get it under way, was after you had these expressions of opinion from the employees? A. We already had the idea of what they wanted. In other words, we had a list of names that was in favor of starting an association for the shop, and in order to keep the outside union out, I suppose . Q. (By respondent's attorney) Then it was after that that you had this meeting and decided to get the thing under way? A. That is right Fox testified that it was decided "to go about finding some means of giving the men in the shop the opportunity of drawing up an inside union, drawing up a charter for the inside union, or finding out exactly what they would have to do for them." He added that the committee was appointed "to find out a means- to find the proper manner in which an inside union could be formed." Case significantly testified that those present "felt that it would be better to have an inside union," because they "felt the management would prefer it The following day, about March 12, Case and •Neiheisel visited Attorney W. Fenimore Cooper, counsel for the Association in this proceeding, whom Fox had recommended for assistance in setting up the inside union. Case and Neiheisel .told Cooper of the wish to form an inside union and that the employees wanted such a union.' When Cooper discovered, as a result of his conversation with Case and Neiheisel, that the indication of the employees' desire had been ob- tained from the distribution by certain bench foremen about March 11 of the document hereinabove referred to, he told Case and Neiheisel that the, "lead "The quotations concerning Case appear in an affidavit Case had given to the Board attorney on May 20. While Case at the hearing disputed the accuracy of certain portions of the affidavit, he agreed that the portions above quoted were accurate. 6 Neiheisel testified : "I just went down [to see Cooper] to get a little advice on the setup. In other words , none of us knew attorneys down there, and we had no legal knowledge. The whole thing Case and I went down there for was to see about what procedure you would go through to draw up a charter, or what legal matters We knew you would have to go through some procedure to start something." Neiheisel added : "I wasn't down there to cut out paper dolls." • LEACH RELAY COMPANY, INC. 751 mens7 should not handle the organization of the inside union any further. Ii connection with Cooper's advice, Neiheisel testified as follows: Q. (By Trial Examiner) What did you understand him to mean by that? A. In other words, the way I understood it was this: for us to let the employees take it over theirselves. In other words, let them select their own committees and carry on. In other words, for us not to'have anything to do with it thereafter. Q. Weren't you an employee? A. Yes, I am an employee. Q. Why should you keep bands off, do you know? A. Well, the whole thing is that I am just a No. 1 man around there. That is the only reason, and I am an older man, and it looked like-in oth`er'words,'I didn't want to show, swing anything one way or the other . . I figured I had been around there a long time and I didn't want to sway anybody one way or the other, and I didn't want to have anything to do with any sort of union activities outside or inside. And I still am in favor of that right now. As a matter of fact, the bench foremen had already decided, once the inside union was formed, to turn the organization over to the employees as a whole. In the affidavit previously referred to, Case stated, "We had already decided we would turn the organization over to the employees as soon as we could." Commenting upon this portion of the affidavit, Case testified at the hearing: "In case the people in the shop wanted to organize a union of their own, which we had found out pretty well that they would rather have their own organiza- tion, we wanted to turn it all over to them." Case and Neiheisel asked Cooper if we could make an outline of suggestions for an inside union which they could use. Cooper did so, and a day or two later sent 10 or 12 copies by messenger to Case and Neiheisel at the plant. This outline, which is in evidence, was a 12-point detailed program for the formation of an inside union. Following the receipt of the outline, about March 16, a poll of the employees on both the day and night shifts was taken during working hours by the bench foremen for the purpose of selecting a committee of five persons to represent the employees. The purpose for which the committee was to represent them was considerably disputed in the testimony. While the immediate purpose of the selection of this committee may have been to take the ballot, hereinafter referred to, a consideration of all the testimony on the subject leads the undersigned to conclude and find that the main purpose was that the committee was to represent the employees in the further steps necessary in forming an inside union." ' Bench foremen are also referred to as "lead men," "ace men," or "No. 1 men " Egon Christensen, shop superintendent on the night shift, Bench Foreman Case, and James Green, vice-president and director of the Association, testified in substance that the employees were told to select a committee to find out whether a majority of the em- ployees wanted an inside union or an outside union.' This testimony was contradicted by Harold Fox, chief inspector in charge of the inspection department, and by employees Merlin Ward and Huber Johnson Fox testified that the employees were asked to vote for "candidates who would take care of their interests, find out the proper manner of going about things, going about getting a charter for their company union," and that nothing was said at that time "about an election in the shop to determine the feeling." The candi- dates, he testified, were to "get in touch with Mr. Cooper and take on from there the form- ing of a company union." Case's testimony on the point is weakened by the fact that in the affidavit he had given to Board Counsel he stated that "all the bench foremen, includ- ing myself, gave pieces of paper, which the Company supplies us with in the shop, to all employees, telling them that it was for them to indicate the name of an employee who [sic] help form an inside union." 752 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD Christensen , shop superintendent of the night shift, assisted materially in the distribution of this -ballot. He testified: I figured the fastest and most expedient way to do it [take the ballot] would be to tell each bench or the people on the bench that they were to elect or select one person from that bench, and all the people that were elected' from the different benches went over in a corner , and from that- I told that group, "pick from amongst yourselves , one person; or from the shop as a whole to represent you on this union stuff." According to Christensen's testimony, 18 to 20 person's were then selected on the night shift and they in turn agreed on employee William Hunt as the representa- tive from the night shift on the committee. It is significant , in this connection, to note Christensen's testimony that "quite a few" employees asked him what he thought about inside and outside unions, mentioning the A. F. of L. and the C. I. O. in the latter category . He testified and the undersigned finds, that he told five or six of the employees that "the shop union would be the lesser of three evils , although I didn't care for any of them " As a result of the balloting , a committee of five was chosen consisting of employees James Green , • William Hunt, Lyle Bunce , Ruby Fulmer, and Doris Savage. , Following the selection of the committee , Case presented to Green the 12-point outline which Case had received from Attorney Cooper. Within the next two or three days, this committee conducted a ballot in the plant, asking the employees to indicate on slips of paper whether they preferred an' inside union, an outside union, or no union .9 The balloting was conducted at- the work benches during working hours .10 The result of the balloting was 177 for an inside union, 02 for an' outside union, 23 for no union but for an inside union if there had to be a union in the plant.11 The ballot box which was used in: the balloting' was company property. About' this time, just prior to March 20, the respondent posted on its bulletin boards a notice drafted by its counsel, Attorney Richman This notice, which remained posted for at least two weeks and was seen by the employees, was as follows : "Employees" "Considerable confusion has arisen in your minds relative to the labor situation at this plant. "A. F. L. and C. I. O. have passed out sheets ( orange and pink) among you containing statements which do not entirely set forth the facts. "This statement is.prepared by the company's attorney and posted for the purpose of setting forth the true facts. "THE NATIONAL LABOR RELATIONS ACT (Wagner Act) provides that EMPLOYEES SHALL HAVE THE RIGHT TO ORGANIZE AND BARGAIN WITH THE • MANAGEMENT OR NOT AS THEY' SEE FIT WITHOUT ANY INTERFERENCE FROM THE MANAGEMENT. "The employees can do so either as individuals , or through an organiza- tion. THIS ORGANIZATION MAY BE COMPOSED AND CONTROLLED ENTIRELY WITHIN THE EMPLOYEES OWN RANKS OR MAY BE 9 Attorney Cooper had suggested that such a ballot be taken in view of the fact that the first ballot had been taken by the bench foremen, and apparently also because of the. language of the first ballot about March 11. 10 Case testified that it was conducted "towards the end of the day, lapping over after quitting time." 11 Apparently the employees had 'been told that if they wanted no union, they need not vote. At this time there were 353 shop employees. LEACH RELAY COMPANY, INC. 753. CONTROLLED BY AN OUTSIDE LABOR ORGANIZATION. (A. F. L, C: I. O. or any of a dozen other outside controlling interests.) "There is nothing illegal with a union composed among yourselves and' controlled and run by your fellow workers whom you know and have- elected. "The labor policy of this Company is as follows: "1. WE WILL CONTINUE THE SAME TREATMENT TOWARDS YOU: AS'HERETOFORE. "2. WE WILL NEGOTIATE WITII ANY GROUP, WHICH REPRE- SENTS YOU BE IT YOUR OWN, CONTROLLED ASSOCIATION OR AN OUTSIDE UNION. - "3. WE WILL MAKE NO ATTEMPT TO INFLUENCE YOU IN ANY- MANNER IN YOUR ACTS AS TO WHETHER YOU WANT TO REMAIN AS INDIVIDUALS, YOUR OWN CONTROLLED ORGANIZATION OR AN- "OUTSIDE CONTROLLED UNION. "4. IF YOU DECIDE TO FORM YOUR OWN CONTROLLED GROUP, WE WILL WANT PROOF THAT THAT GROUP REPRESENTS A MA- JORITY OF YOU OR IF AN OUTSIDE GROUP ATTEMPTS TO REPRE- SENT YOU WE WILL WANT PROOF THAT IT REPRESENTS A MAJORITY OF YOU. "The matter is in your hands. Your choice is as follows : "1. Individuals ( no union). "2. Your own controlled, organization. "3. An outside union "Make up your own minds. The company has not and will not endeavor to-make them up for you . This is still the United States and you are still free to act for yourselves without interference or coercion from anyone. "We have a job to be done in this Man's War. Let's do it right: LEACH RELAY CO., By (Signed ) HARRY C. CROFT Harry C. Croft, Secretary- Treasurer' About April 7, a notice was posted by the Committee on the respondent's bulletin boards stating that "A Mammoth Meeting" of the employees would be held in the plant on April 11 "to start the Company Union Rolling" ; that "our attorney" would be present-"the attorney that your fellow employees hired to represent us is forming the union. He will explain the charter & by-laws so we will know what has been going on in the past two weeks by your repre- sentatives in forming this union." The notice concluded as follows, "Your- election and instatement of officers will take place for the ensuing year . .. ." About the same time a sample membership card of the Association was also posted on the bulletin boards i3 Beginning about this time and continuing for some time thereafter, mem- bership in the Association was openly solicited on company time and property by various members of the committee of five, especially by Green and Bunce. Dues were also collected openly on company time and property by Doris Savage. It is a fair inference, and the undersigned finds that all this was- done with the knowledge not only of the bench foremen but of higher officials of the respondent, including,Neale and Croft, hereinabove mentioned. In at 12 Italics and capitals as in original. 1' Both the notice and the card were printed; Committeeman Hunt having paid for the' printing. He was subsequently reimbursed by the Association. 493508-43-vol. 45--48 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least one case, Jones, who was in charge of the respondent's stockroom and who (lid some of this soliciting, told Robert McAllis, an employee, that he [Me-Allis] could be discharged if he did not join the Association.14 On, April 9 the Association was formally incorporated under the name of "Relay Employees Association." The incorporators named therein were the five conunittee members referred to hereinabove, and they acted as directors 'of the corporation until their successors were chosen as indicated hereinafter. Pursuant to the notice of the meeting which had been posted on or about April 7, a meeting of employees was held in the plant on Saturday afternoon, April 11, after working hours. Apparently a large majority of the employees were present. The charter and bylaws of the Association were read and approved by a majority of those present. Elections were thereafter held with the result that Hunt was "elected president ; Green, vice-president ; • Harold Metcalf, secretary ; Leroy Jones, treasurer ; and these four, together with employee William Nolan, were elected directors. On April 21, the Association wrote to the respondent stating that it had been designated by a majority of the employees as their sole bargaining agent, and requested the respondent to name representatives to meet' with representatives of the Association to negotiate an employment agreement. The letter stated that the Association had signed cards from over a majority of the employees and would submit them to the respondent for inspection if requested. The same day, the respondent replied by letter designating Neale and Croft as representa- tives of the respondent in the negotiations and demanded proof that the Asso- ciation represented a majority of the employees. The Association thereupon furnished the required proof. On April 24, accordingly, the respondent wrote to the Association that 227 membership cards had been submitted, that they had been checked against the pay roll, and that the respondent was satisfied that the Association represented the necessary majority. The letter also requested the 'Association to submit its proposals in writing for study, after which the respondent's representatives would meet with the representatives of the Association.15 Thereafter, between April 25 and May 14, there were negotiations between the respondent and the Association for a contract. On April 25 the Directors of the Association met in Attorney Cooper's office where they prepared proposals for submission to the respondent. These were sent to the respondent and received by it on April 27. On May 2 the Association demanded that the respondent advise it when the meeting would take place. On May 4 the respond- ent replied that it had completed its investigation of wage rates and labor conditions in other plants, and that the meeting would take place before the ,leek was ended. About May 5, Hunt and Green conferred with Croft and Neale on the proposals. On the afternoon of May 8, representatives of the respondent and of the Association met in Croft's office and discussed them. That night Attorney Richman, counsel for the respondent, redrafted the proposals , sending the revised draft to Green the following day. On May 9 a meeting of Associa- tion members was held in the plant after working hours where Attorney Cooper read the proposed contract. It was voted to accept the contract and to authorize the officers of the Association to try to get two additional provisions. One of these was to the effect that certain working conditions would remain the same, while the other was that wage increases would be granted if the cost of living 14 See infra as to the claim that activity was also carried on in the plant on behalf of the - A.F of L 15 The findings in this and the next paragraph are based mainly on a stipulation of the parties in evidence as Respondent Exhibit 3. LEACH RELAY COMPANY, INC. 755 went up 10 percent. On May 11, Cooper telephoned to Richman and demanded the two additional provisions. The respondent agreed to the first, but not to the second, but agreed further, however, that it "maintenance of membership" provision might be inserted in the contract and this was done. On May 14 the contract was signed and immediately went into effect Under the contract the respondent recognized the Association as the exclusive bargaining agent for the shop employees, including the bench foremen. It was provided that the contract was to remain in effect "for the period of the-dura- tion of the War, and thereafter until thirty (30) days after either party hereto shall give to the other written notice of desire to change or terminate." And, among other things, certain wage increases were granted. B. Concluding findings Following a meeting of several bench foremen with, management officials, Croft and Neale, bench foremen and other supervisors proceeded to form an inside union, in the face of A. F. of L. and C. I. O. activity then going on among the employees. Following a meeting at the home of one of them, they distrib- uted and obtained, in the plant during working hours, signatures to a, paper in favor of such an organization. They and other key men, including the respondent's purchasing agent, and making up a group known as the Foremen's Club, met in the plant and decided to proceed with the formation of the organ- ization- "because- the management would prefer it." They appointed a committee to- engage,an attorney for-that purpose. They decided'to turn the organization over to the employees as soon as they could. Thereafter they arranged for the selection of a committee of employees to proceed further with the plans. The night shop superintendent assisted in this, both by his help in the mechanics of the selection and by his statement to several employees that "the shop union would be the lesser of three evils, although I didn't care for any of them." Thereafter the Association was assisted by the respondent in various ways. Notice of the April 11 meeting was posted on its bulletin boards, along with a sample membership card in the Association. The meeting of the 11th was held in the plant. Memberships were openly solicited for some time in behalf of the Association and dues collected, on company time and property. Counsel for the respondent and for the Association dispute the alleged supervisory status of the bench foremen. They were rather the "older men," it is argued But the evidence is clear that the term "bench foremen" is that more generally used, although they are also referred to in the testimony as "ace men," "lead men," and "No. 1 men." The fact that they are, in most cases, also the "older men" hardly takes away from their supervisory status. Instead, it rather tends to support it. The evidence, much of it from officials and bench foremen themselves, is that bench foremen pass out the work at the benches, see that the work is done, and done properly ; make recommendations concerning discharges and transfers, which recommendations are generally followed, and, with possibly two or three exceptions, receive a higher rate of pay than the other employees. Employees under them may vary in number from half a dozen up to about sixty, Neiheisel, for example, being over approxi- mately sixty employees. There can be little question but that they are possessed of substantial supervisory authority. And the same is true of men such as Fox in the inspection department. Fox was referred to by Neale in his testi- mony as "chief inspector," and though he had charge of but half a dozen em- ployees, Fox admitted in his testimony that when he has found faulty I 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inspections he has threatened them with discharge. "I have told the boys in there," he testified , "they have got to watch their step or I will get somebody else to take their job." And William Hunt, president of the Association , in testify- ing about the distribution of slips for the selection of the committee of five, said : "I, being a lead man on the benches, had a perfect right to do what I wanted;" The fact that these men are "working foremen " does not detract from their supervisory status. It is a fair inference , and the undersigned finds, that they are regarded by the employees as supervisors and as representatives- of management , and properly so. The respondent is clearly responsible for their conduct in the formation and administration of the Association. More- over, no question is raised as to the supervisory status of such men as, Christensen , night superintendent . His role was not that of a neutral" The respondent points to the notice posted by it just prior to March 20, as- indicating its neutrality . It is sufficient to say that while the respondent therein said one thing , it did another. The facts found make it abundantly evident that it was neutral neither before that date nor thereafter Indeed, with full knowledge of the role played by bench foremen and other supervisors, and' of the assistance furnished to the Association in various ways even after the notice was posted, it did nothing at any time to disavow such conduct. The respondent in fact concedes it made no effort to interfere with any of the Association activity going on in the plant either during working hours or out- side working hours. It urges that similar activity was permitted in the plant on behalf of the A. F. of L . But the evidence shows merely that one employee had some A. F. of L cards and handed them to several employees who came to him and asked for them. Again , it is urged on behalf of the, respondent by its counsel, that equal use of the plant facilities "was available to all labor organizations." "The fact," he states, "that A. F. of L. or C. I. O. did not ask does not mean they were not available." And he adds that the "A. F. of I._ missed a bet in failure to ask." But Neale testified that if the request had been made he would have answered that "it was all right with " him "if' it was all right with the War Department ." But no such limitation was imposed on the activities of those active in the formation or administration of the Asso- ciation, though it is undisputed that much of this activity interfered substantially with production. On the other hand, the undersigned does not believe that certain contentions of counsel for the Board are warranted by the evidence . The first of these has to do with the activities of Myrtle Volz, an organizer for the Union, who testified that she was interfered with by an agent of the respondent in passing out union literature in front of the plant . It is sufficient here to say that the undersigned does not believe that the respondent should be chargeable for the conduct of the alleged agent in connection with the claimed interference. No such finding is therefore made Nor does the undersigned feel warranted in finding, as counsel for the Board contends , that the respondent formulated the contract proposals in advance and then "agreed" to them by signing the contract. The evidence does not go far enough to warrant such a finding . No such finding is made. The undersigned finds that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support thereto, and has thereby interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. '" See N. L. R. B. v Link-Belt Company, 311 U. S. 584 ; International Association of Machinists v. N. L R. B., 311 U. S. 72. LEACH RELAY, COMPANY, INC. -IV. THE EFFECT OF THE UNFALI. LABOR PRACTICES UPON COMMERCE 757 The activities of the respondent set forth in Section III above, occurring in connction 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. THE REMEDY Having found that the respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirma- tive action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondent dominated and interefered with the -formation and administration of the Association and contributed support to it. The effects and consequences of the respondent's domination, interference with, and, support of the Association, as well as the continued recognition of the Association as the bargaining representative of its employees, constitute a con- tinuing obstacle to the free exercise by its employees of their right to self- organization and to bargain collectively through representatives of their own choosing. Because of the respondent's illegal conduct, the Association is incapable of serving the respondent's employees as a genuine collective bar- gaining agency. Moreover, continued recognition of the Association would be obstructive of the free exercise by the employees of the rights guaranteed to them by the Act. Accordingly, it will be recommended that the respondent disestablish and withdraw all recognition from the Association as the repre- sentative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. Under the facts found, the contract with the Association constituted and .was a part of the unfair labor practices. It will be recommended that the iespondent cease and desist from giving effect to such contract as well as to any extension, renewal, modification, or supplement thereof, and to any super- seding contract which may now be in force, without prejudice, however, to the assertion by the employees of any legal rights acquired thereunder. Nothing herein shall be taken to require the respondent to vary those wages, hours, seniority, and other such substantive features of their relations with the 'employees themselves which the respondent has established in the performance of the contract or as it has been extended, renewed, modified, supplemented, or superseded. Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. International Association of Machinists, Lodge 311, affiliated with the American Federation of Labor, and Relay Employees Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of Relay Employees Association and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of section 8 (2) Of the Act. D 758 DECISIONS OF NATIONAL' LABOR' RELATIONS BOARD - 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 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, Leach Relay Company, Inc., Los Angeles, California, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the administration of Relay Employees Association or with the formation or administration of any other labor organ- ization of its employees, and from contributing support to said labor organiza, tion or to any other labor organization of its employees ; (b) Recognizing Relay Employees Association as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of em- ployment ; (c) Giving effect to the contract of May 14, 1942, with Relay -Employees- Association or to any modifications, extensions, supplements, or renewals'thereof, or to any superseding contract with it which may now be in force, as more fully detailed in the Section entitled "The remedy" above ; (d) In any other manner interfering with, restraining, or coercing its em- ployees - in the exercise of their 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) Withdrew all recognition from Relay Employees Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish said organization as such 'representative ; (b) Post immediately in conspicuous places throughout its plant in Los Angeles, California, 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 paragraphs 1 •(a), (b), (c), and (d) of these recommenda- tions; (2) that the respondent will take the affirmative action set forth in paragraph, 2, (a) of these, recommendations ; and (3) that the contract with Relay Employees Association, dated May 14, 1942, and any modifications, supplements, extensions, or renewals thereof, and any superseding contracts, are invalid under the National Labor Relations Act, without prejudice, however, to the assertion'by the employees of any legal rights acquired thereunder; (c) Notify the Regional Director for the Twenty-first Region in writing within twenty (20) days from the date of the receipt of this Intermediate Report what steps have been taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report the respondent notifies said Regional LEACH RELAY COMPANY, INC . 759 Director in writing that it will comply with the foregoing recommendations,, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. . 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 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, 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 preceeding (including rulings upon fill motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in 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. SAMUEL H. JAFFEE, Trial Examiner. Dated July 28, 1942.