Wapakoneta Machine Co.

In the Matter Of WAPAKONETA MACHINE Co. a'nd INTERNATIONAL UNION, UNITED AUTOMOBILE , AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO) and THE MACHINE KNIFE MAKERS PRO- TECTIVE ASSOCIATION OF WAPAKONETA, OHIO Case No. C-0386.-Decided January 30, 194 Jurisdiction : machine knives and plates manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coeieion. statements indicating opposition to affiliated union and preference for independent union ; threats that in' case of decrease in production, "outside" union members would lose employment. Company-Dominated Union: participation of respondent's president and super- visory employees in formation and preservation of "inside" organzation by : suggesting its establishment ; indicating preference for unaffiliated union ; permitting solicitation in plant; upon dissatisfaction of members, urging them to continue activity ; granting recognition and bargaining contract to organization. Remedial Orders : cease and desist unfair labor practices; dominated organ- ization disestablished, and contract therewith, abrogated. DECISION AND ORDER On October 22, 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 cer- tain 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 of'the exceptions. The Machine Knife Makers Protective Association filed a brief. The Board has considered the'rulings of the Trial Examiner at the hear-, ing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and reco5nmendations of the Trial Examiner. , ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 47N.L It. B., No 16. 91 .92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board hereby orders that the respondent , Wapakoneta Machine Co.,. its officers , agents, successors and assigns , shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis-' tration of The Machine Knife Makers Protective Association of Wapakoneta, Ohio, or with the formation and administration of any other labor organization of its employees , and from contributing support thereto; (b) Recognizing The Machine Knife Makers Protective Associa- tion of Wapakoneta , Ohio, as the representative of any of its em- ployees for the purpose of dealing with the respondent concerning grievances, labor disputes , wages, rates of pay, hours of employment, or other conditions of employment; (c) Giving effect to its contract of April 21, 1942, with The Machine Knife Makers Protective Association of Wapakoneta, Ohio, or any modification , extension , or renewal thereof; (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of the rights 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from and completely disestablish The Machine Knife Makers Protective Association of Wapakoneta, Ohio, as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances , labor disputes; rates of pay, wages , hours of employment, or other ' conditions of employment; (b) Post immediately in conspicuous places in its plant at Wapa- koneta, Ohio, and maintain for a period of at least sixty (60) con- secutive days from the date of posting, notices to its employees stat- ing: (1 ) that the respondent will not engage in the conduct from which it is herein ordered to cease and desist; and (2 ) that the respondent will take the affirmative action set forth in paragraph 2 (a) hereof; (c), Notify the Regional Director for the Eighth Region : in writ- ing; within ten (10 ) days from the date of this Order, what steps the respondent has taken to comply herewith. MR. WILLIAM M. LEISERSOiv , dissenting : I agree with the finding of the Trial Examiner that the statements and conduct of the respondent's representatives constitute unfair labor practices within the meaning of Sections 8 (1) of the National. WAPAKONETA MACHINE CO. _ 93 Labor Relations Act, but I consider the evidence insufficient to sup- port the finding of the Trial Examiner that the respondent domi- nated and interfered with the formation and administration of The Machine Knife Makers Protective Association in derogation of Sec- tion 8 (2) of the Act. I would consequently dismiss the 8 (2) allegation but would nevertheless find that the respondent's attempts to revive the Association constitute interference with self=organiza- .tion in violation of Section 8 (1). INTERMEDIATE REPORT Mr. John W. Coddaire, Ji., and Mr. George H. O'Brien, for the Board. Landis, Ferguson, Bieser & Greer, by'Mr. Irvin, G. Bieser, of Dayton, Ohio, for the' respondent. Mr. Lowell Goerlich, of Toledo, Ohio, and Mr. Howard Seren, of Lima, Ohio, for the United. Hirsch & Hirsch, by Mr. R. L. Hirsch and Mr. L. C. Hirsch, of St. Marys, Ohio, for the Association. STATEMENT OF THE CASE Upon a charge duly filed by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations,' herein at times called the United, the National Labor Relations Board,, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint, dated September 5, 1942, against Wapakoneta Machine Co., Wapakoneta, Ohio, herein called the respond- ent, 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 notice of hearing, were duly served upon the respondent, the United, and The Machine Knife Makers Protective Association of Wapakoneta, Ohio, herein called the Association, named in the complaint as a party and alleged in the complaint to be dominated by the respondent. In respect to the unfair labor practices, the complaint alleged in substance that the respondent: .(I) in or about February 1942 and at all times since, has interfered with, restrained, and coerced its employees in the exercise of their rights to self-organization in that it advised one of its employees, through a named foreman, that if it could ascertain who started the United the respondent would discharge such employee, and similarly advised one of its employees not -to join the United because when things "got slow" employees who had joined would be laid off; (2) on or about March 3, 1942, and at all times since, by certain 1 The charge was filed by an international representative of this organization who denominated it "United Automobile Workers, (CIO)" in the signed charge. Upon a motion of counsel for the United an amendment to the charge was allowed at the hearing, over the objection of the respondent, whereby the full name of the organization was affixed to the charge. 94 DECISIONS OF NATIONAL LABOR RE'LATIONS BOARD specified acts," has fostered, encouraged , dominated and interfered with the formation and administration of the Association and furnished it financial and other support. On September 16, 1942, the respondent filed an answer in which it denied that it had engaged in the alleged unfair labor practices. On or about September 18, 1942, the Association also filed an answer in which it denied that the respondent "had anything to do with organization of this Association, or dominated it, or furnished financial aid or other sort of support to it," denied that the respondent recognized it "without requiring any proof of membership," and alleged that it furnished 'the respondent proof of majority and the respondent thereafter entered a collective bargaining contract with it; it also denied for lack of knowledge that the respondent gave support to the Association in the other ways alleged in the complaint. Pursuant to notice, a hearing was held at Wapakoneta, Ohio, on September 21 and 22, 1942, before William B . Barton, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board, the respondent, the United, and the Association were represented by counsel . 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 close of the hearing the respondent and the Association made motions, denied without prejudice earlier in the hearing, to dismiss the complaint Ruling was reserved on these motions. The motions are hereby denied. At the close of the Board's case and at the close of the hearing, motions were made that the pleadings be amended to conform to the proof with respect to dates and spelling a The motions were granted. At, the close of the hearing the parties were given opportunity to argue orally before the undersigned. Only the Association availed itself of this privilege. The respondent and the Association have filed briefs with the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS- OF FACT 1. THE BUSINESS OF THE RESPONDENT The' Wapakoneta Machine Co, an Ohio corporation, has its office and plant at Wapakoneta, Ohio. The respondent engages in the manufacture and sale 'of machine knives and hardened wearing plates. It uses steel, coal, coke, power, and mill supplies at its plant All of the coal and coke and 60 percent of the steel so used are purchased outside the, State of Ohio. The respondent in 1941 'The respondent's alleged acts specified in this portion of the complaint consisted -of excusing its employees from work on or about March 3, 1942, for the purpose of leaving the property to sign Association membership applications ; recognizing the Association on or about March 18, 1942, without icgmring proof of majority; encouraging and per- mitting the circulation of a petition in the plant on of about March 21 , 1942, during working hours on behalf of the Association attempting to revive the Association on or about April 13, 1942, with the knowledge that it was not then functioning ; recognizing the Association on or about April 1, 1942, as the bargaining agent of its employees, knowing that the Association did not represent a majouty ; entering into a signed contract with the Association on or about April 21, 1942 ; stating through the respondent's presi- dent to one of the employees , on or about April 13, 1942, "that an independent would not cost as much as an outside union and that independents worked all right in some places and that he would like to see the Association work" in the respondent's plant "Counsel for the Board made such motions as to the complaint both at the close 'of the Board's case and at the close of the hearing Counsel for the respondent and the Association , respectively , made such motions as to their answers at the close of the hearing. ' WAPAKONETA MACHINE CO. 95 shipped to points outside the State of Ohio products representing more than 50 percent of the sales made by it.` II. THE ORGANIZATIONS INVOLVED International Union, United Automobile, Aircraft & Agricultural Implement Workers of America is a labor organization affiliated with the Congress of Industrial Organizations. It admits to membership employees in the respondent's plant The Machine Knife Makers Protective Association of Wapakoneta, Ohio is an unaffiliated labor organization. It admits to membership employees in the respondent's plant. " III. THE UNFAIR LABOR PRACTICES C A. Interference with, domination, and support of the Association ' About the middle of February 1942,6 Ed Hamlinger, an employee of the respond- ent, spoke to Abraham Coil, another employee, about the advisability of having a C I. O. union. Coil indicated to Hamlinger that he was opposed to having a C. I. O. union, but favored some kind of an unaffiliated union, and believed "the boys could have one of their own." Coil soon thereafter similarly expressed him- self to Ernie Gross and Elbert Smallwood, also employees of the respondent, as favoring the formation of an unaffiliated labor organization. Late in February the United began organizing the respondent's employees It appears that Coil and Smallwood were displeased by certain reports which they heard during the United's campaign,° and Smallwood on March 2 told Coil it was "time . . . to start." At the close of work on March 3, Coil told Smallwood that he would likely call at the latter's house that evening with a man from St. Marys, Ohio. Meanwhile Coil, on two occasions, had asked Calyin C. Elsass, the respondent's assistant shop superintendent, what the attitude of the respondent would be toward an employee who might start an unaffiliated labor organizztion. Elsass told Coil he would look up the question in a book on Labor Law and telephone Coil about the matter. Russell Woolf, an employee, testified Elsass told him that Elsass, after talking to Coil, had communicated with Carl D Fischer, Jr, the respondent's president.' concerning the hatter of starting an "independent union" and that, although President Fischer was at first opposed to the idea, he and Emil J. Fischer, the respondent's secretary-treasurer, later went to Elsass' home, where they told Elsass "to get some of the boys together" and get the "independent union" started. Elsass did not expressly deny that he made the remarks to Woolf ae detailed'above, but testified that on this occasion, after in- terrogation by Woolf, all he told Woolf was that if Woolf wished to partici- pate in forming an "independent union" the respondent could do nothing whatever about the matter. President Fischer did not specifically deny that he had talked to Elsass at that time about starting the Association. He tesified, however, that he did not know the Association was being organized until its committee later came to see him." Secretary-Treasurer Fischer, although called by the re- 4 The respondent admits that it is engaged in commerce within the meaning of the Act 6 All dates mentioned in the Report refer to the year 1942 °Apparently Coil and Smallwood were displeased about that time by a rumor of a strike, by a report that the United had obtamcd 50 members. and by a report of one employee that he had been threatened with loss of his job unless he joined the United T Unless otherwise indicated, the use of the name "Fischer" m this Report has reference to President Carl D Fischer, Jr. 8 The first call of any representatives of the Association on Fischer was on March 5, as detailed below. 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent as, a witness; was not interrogated on this subject. Woolf impressed the undersigned as a forthright and credible witness. It is clear, as.revealed by the facts set forth below, that during April, when the continued existence of the Association appeared doubtful, President Fischer- and Secretary-Treasurer Fischer took steps to revive it.' The undersigned finds that Elsass, on March 3, made the remarks set forth above as testified by Woolf. The undersigned also finds that President Fischer and Secretary-Treasurer Fischer, shortly before the inception of the Association, told Elsass "to get some of the boys, together" and get the "independent union" started - - Late in the day on March 3, and before Woolf's conversation with- Elsass on that date, Elsass had telephoned from Wapakoneta, Ohio, to Coil, who was in St. Marys, Ohio.° He told Coil that, as a result of examining the book on Labor Law, he was of the opinion the respondent could take no position either for or against a union and that the respondent would "not hold anything against" Coil if he participated in forming such an organization. Coil at the same time asked Elsass to telephone Smallwood that Coil and another person would be at Smallwood's house that evening. Elsass did so.10 Before Elsass' conversation with Woolf on March 3, Smallwood had' tele- phoned Woolf and asked Woolf to attend a meeting at Smallwood's house that evening. It was after this telephone call that the conversation between Elsass and Woolf, as mentioned above, took place on that date. Woolf and his wife were fearful regarding what the respondent's attitude might be toward the forma- tion of an, "independent union." Woolf's wife, accordingly, telephoned •Elsass, who was a good friend of Woolf to come to the Woolf home, ostensibly in order to assist Woolf with "the lifting of some timbers" in his basement, but really in order to ask Elsass the respondent's attitude toward those who might help or- ganize an "independent union." Woolf further testified-about his conversation with Elsass on that date that Elsass stated he had asked Smallwood to com- municate with Woolf relative to the meeting to be held at Sma.llwood's house for the purpose of organizing an "independent union " Smallwood indicated by his testimony that it was on his own initiative that he had telephoned Woolf and the other employees who attended the meeting that evening Smallwood s inter- est as a witness was not identified with the Board, and in another portion of his testimony, after being confronted with a written statement signed by him prior to the hearing," he changed certain, statements he had made as a witness. Elsass admitted to Woolf at the latter's home on March 3 that he knew when he was asked by Mis Woolf to come to the Woolf home that it was not for the purpose of helping to lift timbers.12 Under the circumstances, the undersigned finds that when Elsass talked with Woolf on March 3 Elsass knew the purpose of the meeting to be held at Smallwood's house that evening and that he sug- gested to Smallwood that Smallwood communicate with Woolf relative to that meeting. On the evening of March 3, Coil made the proposed visit to Smallwood's home and brought with him one Fritz from St. Marys. Otto Rickert, an employee of the respondent, besides Smallwood, Woolf, Coil, and Fritz, were present at this meeting. Fritz, who was apparently an employee at the Board Box Com- pany in St. Marys, Ohio, explained to the others the nature of a labor organi- zation at that company. Smallwood, Coil, Rickert, and Woolf decided to form ° Coil lived in St. Marys. 11 Coil indicated by his testimony that be asked Elsass to convey this message in order to save him the ten-cent telephone toll charge from St. Marys to Wapakoneta. 11 See footnote 26 infra. , 1' This finding is based upon the uncontradicted testimony of Woolf. WAPAKONETA MACHINE CO. ' 1 97 such an organization among the respondent's employees. They prepared a docu- ment which recited the following : We the undersigned employees of the Wapakoneta Machine Co. wish to become members of an independent association. These four employees signed' this document at Smallwood's home that night, and then obtained the signature of another employee at his home.. They then proceeded to the plant in order to obtain signatures of employees on the night shift. Coil, Woolf, and Fritz remained outside with the paper which had been prepared at Smallwood's house, as Smallwood and Rickert went inside the plant and spoke to some of the employees ' Four to eight employees, vafter Smallwood or Rickert had spoken to them, left their work and went outside, where they signed the paper mentioned above " Not long after Smallwood and Rickert 'had,entered 'the plant, W. S Coil," foreman of the night shift, tele- phoned Elsass about Smallwood and Rickert being in the plant, Foreman Coil asking Elsass if any permission had been given them to enter the plant Elsass replied in the negative and stated that he would come to the' plant and explain matters to them so that there would be no ill feelings About that time Fore- man Coil met Smallwood at the plant and said, "Do you' know you are not allowed 'in here?" ' Smallwood and Rickert then went outside the plant. After the telephone call from Foreman Coil, Elsass drove his car from his home to a point a short distance from the plant From there he walked to the plant and got into the automobile of Abraham Coil, where Fritz was also 'seated. Smallwood, Rickert, Coil, and Woolf carne -"up to the car" where Elsass was. Elsass informed them that Foreman Coil was under verbal instructions to order them out of the plant," but that on the following day solicitation of the respondent's employees for membership in the Association could take place without interference by the respondent." This group to whom Elsass spoke then left, the plant. Elsass drove Small- wood ahd Woolf' to Smallwood's house" and the three spent ten to fifteen 'min- utes inside. Smallwood and- Woolf discussed what employees were likely to affiliate with the Association. Woolf testified regarding Elsass' participation in this conversation, "He (Elsass) said that he didn't know about the fellow that lives back here; he meant Mel Kentner, he says, `,The one who gives him the most money is the one he would sign up with'" Elsass denied that he made this remark or that he discussed any-names whatever. He testified that 13 Five employees signed this paper before it was taken to the plant that night. The, testimony names four employees who went outside the plant and signed the paper on this occasion Apparently the remaining four signed , it at the same time 14 This employee should he distinguished from Ahra " am Coil , mentioned above. in Apparently the respondent as• a 'defense plant had been cautioned by agents of the Federal Bureau of Investigation , as a means against sabotage , not to allow 'entrance into the plant without peimission by an}one except empiovees actually on the rob On or about March 5, l'142, the respondent posted a notice in the plant stating that such a rule would he enforced in line with the Goiernment request Elsass stated that the existence of this rule was the reason the'employees mentioned above were ordered out of the plant on the evening of March 3. "The finding that Elsass stated that on the following day solicitation of the respond- ent's employees for membeiship in the Association cw"ld take place without the respond- ent's interference is based on Woolf's testimony Elsass denied making such a statement ; Smallwood testified that Elsass told them generally that solicitation in the plant was not permissible ; neither Coil nor Richert , i'itnesses for the Association ; was questioned about this remark." All four of these employees were day workers and had access to the plant during the day without violating the rule excluding from the'plant all persons not actually on the job . Under the circumstances , the uiidersigned credits Woolf's testimony on this subject. 11 Woolf's car was parked at Smallwood's house. 51-024-41-vol. 47-7 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he could not remember what he did say, but that general conditions "relative to the union" were discussed .18 Under the circumstances , the undersigned cred- its Woolf's testimony, as set forth above, about Elsass' participation in the conversation at Smallwood's home. On March 4, 1942, some of those in favor of the Association passed out to various employees slips of paper which contained the following recital: I, the undersigned employee of the Wapakoneta Machine, Company wish to become a member of the Independent Association. Woolf distributed at least two of these slips in the plant during working hours on March 4; Arthur Katter and John B DeLawder were the recipients thereof, and the latter signed his in the plant soon after he received it. By March 5, the Association had obtained signatures of 27 employees to such slips. It also had a total of 13 signatures on the document which had been prepared and circulated on the evening of March 3 as detailed above. On the morning of March 5, Smallwood and Rickert called at the office of President Fischer and presented to him the documents described above containing the signatures of 40 employees. Smallwood told Fischer that this group wanted to be mem- bers of "an independent association." He stated that rather than have the United and some one who was three or four hundred miles away dictate to them, they were capable of doing their own thinking. He further stated that the group would proceed to organize. Fischer replied that the matter was "new" to him, but he, would take it up with the Board of Directors and the respondent would abide by the law. About the time.of the events detailed above, Andrew W. Schumann, fore- man of the respondent's machine department with supervision over approxi- mutely 16 employees, held a conversation in the plant during working hours with Woolf, who worked in various parts of the plant and over whom Schumann had supervision a great deal of the' time. Schumann told Woolf on this occa- sion , "Russell, don't join that C I 0. When work gets slack, why them are the fellows they will let go." 19 Arthur Katter, an employee under Schumann's supervision, testified that he also had a conversation with Schumann about that time at his machine in the plant. He testified Schumann told him, among other things, that whoever started the United would likely "be the first ones to be let off" when times became slack. Schumann did not deny that this con- versation took place or that' he made this remark as testified by Katter, but testified he had no recollection of the matter. The undersigned credits Katter's testimony. . On March 9, 1942, about 27 of the group which had expressed itself as favoring organization of the Association met in a lodge hall in Wapakoneta. The group elected officers, a grievance committee, and an executive committee, herein at times called the negotiating committee. The group adopted, as the name of the Association, "The Machine Knife Makers Protective Association." The'Associa- tion instructed the negotiating committee to prepare demands for presentation to the respondent. The committee did so, and after submission of them to the Association for approval, Russell Koons, Ernest Gross, and Otto Rickert, the mem- bers of the committee, on'March 18 called at the office of President Fischer, told him they represented the Association,, and presented these deinands to him in 18 Smallwood, who was also piesent. did not deny Woolf's testimony about Elsass's par- ticipation in this conversation, but testified that he did not recall any names being men- tioned and that Elsass expressed no opinion as to either the United or the Association, and stated "management and the foremen couldn't take part " ii Schumann did not deny the substantial accuracy of Woolf's testimony on which the finding as to this conversation is based, but testified he was expressing his own opinion "confidentially" to Wolf, who was an old friend of his WAPAKONETA MACHINE CO. 99 writing. m Two days later Fischer had Koons, who was chairman of this com- mittee, called to his office. In line with advice Fischer meanwhile had received from counsel for the respondent, he presented Koons on this occasion with a let- ter addressed to the negotiating committee which stated that no other group had made demands and asked the committee to furnish on behalf of the Association "a written statement of certification together with a list of . . . membership The letter stated that if this was done the respondent understood no other vote was necessary.' After receipt of this letter, Smallwood, who had been elected president of the Association, the members of the negotiating com- mittee, and one or two other officers of the Association went to the attorney for the Association, who, prepared in duplicate a document which recited the fact of the Association's organization, the names of the officers and members of the negotiating committee, and that these officers and committee members were em- powered to act for and on behalf of the Association and members "in all matters of business affecting it." On March 25 and 26, the forty employees who had signed the documents on behalf of the Association early in the month as described above, called at the home of Smallwood and signed their names to the original and duplicate of the document prepared by the attorney for the Association. On March 27, Smallwood as president of the Association and Harold Howard as secretary, appeared before the Association's attorney anti made an affidavit that the matters recited in the document were true and that those who had signed it were members in good standing. On March 28, Koons presented the original of this document to President Fischer After further consultation by Fischer with counsel, the respondent, on. April 1, posted a notice stating that it recognized the Association as the exclusive representative of its production and maintenance employees for purposes of collective balgaining." On April 2, Smallwood, How- ard, and the members of the negotiating committee net with President Fischer, Secretary-Treasurer Fischer, and the respondent's personnel director, Merle Har- rod. President Fischer told the representatives of the Association that there were some of their wage demands which the respondent could not possibly grant. After a discussion of two to three hours' duration, which embraced, among other sub- jects, the meaning of collective bargaining and the rising cost of living, Fischer presented to Smallwood, as a counterproposal to the demands which had been submitted by the Association, a proposed contract between it and the respondent. On April 8, the Association hold a meeting' at which the members present dis- cussed the proposed contract offered by the respondent. They expressed dissatis- faction with the respondent's proposal, voted not to accept it, and voted in favor of some compromise demands. 24 Soon after the meeting some of the employees complained to Koons that under the proposed compromise they were to receive increases of only 5 cents per hours,' saying that they could obtain that much 'The demands requested certain wage increases , a 20 percent bonus to be paid quar- terly, seniority , -payment of wages weekly, and "no unjust discrimination ." See foot- note 25, infra. 21 Fischer, on March 18 , had indicated that a vote conducted by the Board might be necessary , but apparently had decided , after conferring with counsel, that the procedure set forth in the letter of March 20 would suffice. 22 Of approximately 68 production and maintenance employees, 40, as detailed above, signed documents indicating affiliation with the Association. z3 Elsass gave employees who were members of the Association permission to stay away from work in order to attend this, meeting, with the proviso that they make up the lost time. It was not uncommon for the respondent to allow employees on the night shift, for various purposes, to absent themselves from work and,make up the lost time later. "The precise nature of the compromise demands is not clear from the record and they became unimportant because , under the circumstances detailed below, they were never presented to the respondent Y The demands originally discussed on April 2 called for . a minimum hourly w age of 55 cents after 3 months of service and 60 cents for those doing satisfactory work after I 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of a wage increase without the assistance of a union. Koons decided to quit as chairman of the negotiating committee and as a member of the Association. Ap parently because of resultant inaction by Koons, the representatives of the'Asso- ciation did not meet promptly with the representatives of the respondent to discuss the proposed compromise demands. In any event, on the morning of April 14, Harrod called Koons from work, telling Koons that Fischer wished to talk to him.' President Fischer on this 'occasion, in the presence of Secretary- Treasurer Fischer, asked Koons when there was going to be a meeting and said that the respondent'was ready to bargain. Koons said that he was "through," stating that he had not been well and there had been various criticisms of the committee: President Fischer said to Koons, ". . . you are a good man on that committee. You ought to stay 'on it." Secretary-Treasurer Fischer sug- gested that Koons "see the other boys" and try to "get harmony among them again." ' Koons testified that President Fischer also said on this occasion, "Well, these unions worked all right in other factories. I don't see why they can't work here: I would like to see it work here." Fischer denied having made this state- ment. About 4 p. in. on April 15, however, President Fischer called Smallwood to the plant office, advised Smallwood that Koons had said he was no longer chairman of. the negotiating committee, and asked when the Association would be ready to bargain again. Smallwood, whose interest as a witness was identi- fied with the Association, admitted, when being interrogated by Board counsel, that Fischer on this occasion said something about "getting the boys together again," as the respondent was ready to bargain; also that "independent unions work in other plants, and they should be able to worle' in the respondent's plant. Smallwood further admitted telling Fischer on this occasion that the negotiating committee was not functioning. 20 The fact that Fischer made such statements to Smallwood supports Koons' testimony that Fischer made similar statements to Koons in the conversation on the preceding day. The undersigned finds that President Fischer made the statements attributed to' him by-Koons and Small- wood as stated above About the same time, President Fischer held a conversa- tion in his office with Robert C. Smeltzly, an employee who was a member of the 6 months , an increase of 20 percent in the hourly wages of employees receiving 55 to 64 cents, 15 percent for those receiving 65 to 74 cents, and 10 percent for those receiving not less than 75 cents. These demands also called for a 20 percent bonus on weekly wages, and pay at the rate of time and one-half for work in excess of eight hours on any day Tb- 55-hour, schedule was to be maintained; there was to be seniority and "no discrimination " The proposed contract submitted by the respondent 'on that date pro- vided for a minimum hourly rate of 50 cents for employees who had been with the re- spondent not less than 6 months and for an increase of 5 cents per hour for those receiv- ing not less than 50 cents per hour on January 1. It also provided for pay at the rate of time and one-half for work in excess of forty hours per week. The proposed contract granted seniority. specified that there be no strikes or work stoppages, recognized the shop rules of the respondent as applicable to all employees , and established a method of, handling grievances The counte°r-demands presented on April 20 , as discussed below , varied fiom the respondent's proposed contract in that they required a minimum wage of 55 cents for employees who had been six months in the respondent's employ, an increase of 10 cents in the hourly wage of employees who had been nine months or more with the respondent on April 1, 5 cents extra per hour for employees on the 11-hour shift who worked seven days per week, and a 10 percent bonus weekly to hourly paid employees. The contract discussed below, which was executed on April 21, embodied substantially the wage provisions of the Association's counter-demands, provided for a "90-day trial period" for nee`' employees, who were then automatically to come under the contract, and in other respects followed substantially the provisions of the respondent 's proposed contract of April 2. See footnote 20, supra. "Smallwood at first denied that such statements had been made on this occasion, but changed his testimony when confronted with a statement signed by him prior to the hearing. WAPAKONETA MACHINE CO. 101 Association and who was dissatisfied with his wages. Fischer told, Smetzly on this occasion that the respondent would increase Smeltzly's wages from 40 to 50 cents an hour. He also said he would like to see the "boys go through with this union and" the respondent "would get things settled " 24 During the period between April 8 and 14, Rickert, another member of the Association's negotiating committee, resigned from the committee, and Woolf, who was a member of the grievance committee, tendered to Smallwood his resig- nation from the Association.28 About April 14, after these resignations, Fischer had a conversation with Rickert, asking Rickert to "stay with" the committee. He also asked. Rickert to request Woolf to retain membership in the Association, and thereafter Rickert did so pursuant to this request. After these events Rickert remained a member of the Association's negotiating committee. There was dissatisfaction among the members of the Association with the compromise demands which were the subject of the Association vote on April 8 as described above. The Association representatives never presented these de- mands to the respondent. However, after Fischer's conversation with Smallwood on April 15, Smallwood, Rickert, Gross, and Coil met at the home of Smallwood and prepared certain counter-demands for presentation to the respondent. At a meeting on April 19, members of the Association voted approval of these demands.29 Smallwood presented these demands to Fischer on April 20. The next day, respective representatives of the Association and the respondent met and, after some discussion of the counter-demands, executed a written contract between the respondent and the Association by which the respondent recognized the Association as its employees' exclusive representative for purposes of collec- tive bargaining. This contract is still in effect. The Association and the respond- ent have had no further dealings since the execution of this contract. B. Conclusions regarding the Association The respondent's activities with respect to the Association revolve around four individuals, Assistant Superintendent Elsass, Foreman Schumann, Secre-' tary-Treasurer Fischer, and President Fischer. The activities of Elsass took place at the Association's inception. After Coil had inquired of him as to the possibility of having an "independent union," Elsass spoke to President Fischer about the matter, later obtaining both his and Secretary-Treasurer Fischer's approval. He then on March 3 informed Coil that the respondent would "not hold anything against" him if he participated in forming such an organization, conveyed to Smallwood the message of Coil that the latter would be at Small- wood's house that evening, suggested to Smallwood that Smallwood communi- cate with Woolf about the meeting to be held at Smallwood's house, met with Smallwood and Woolf at the former's home after Smallwood and Woolf's Associ- ation activity at the plant that evening, participated in their discussion about unions, and expressed his opinion regarding whether one employee was a likely prospect for Association membership. Elsass-told the Association group on the evening of March 3 to discontinue their activities in the plant, but.he did not place the admonition on the ground that the respondent should not thus assist a labor organization and neither Elsass or any other representatives or officials "President Fischer similarly talked to several other employees about this time regard- ing wage increases A day or two later, however, after conferiing with counsel, he notified these employees that since the respondent was bargaining with the Association, the wage increases he had promised them were rescinded and all increases must be ob- tained through the Association. 28 Apparently these resignations were 'oral. . 21 At the same meeting the Association voted adoption of a constitution and bylaws. t 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the respondent ever took any steps to indicate to the employees that the respondent repudiated these activities on behalf of the Association Moreover, at the time Elsass told these employees on the evening of March 3 to discontinue solicitation of Association memberships in the plant, he also told them that they could engage in solicitation the next day without interference-by the respondent. The next day some such solicitation took place. Elsass' conduct, as described above, took place at the inception of the Association and constituted employer support of that labor organization. President Fischer and Secretary-Treasurer Fischer gave their approval to his conduct. Schumann's remarks about the same time to Woolf and Katter in opposition to the United were detrimental to that labor organization and helpful to the Association. - After the meeting of the Association on April 8, there was dissatisfaction among its members as stated above. Koons, chairman of the negotiating com- mittee, and Woolf, one of the organizers, resigned from the Association Rickert, a member of the negotiating committee and one of the organizers, resigned from the committee. It was a crucial time for the Association and its continued existence was in doubt. President Fischer called Koons to a conference, in- quired as to when bargaining negotiations would resume, urged Koons to remain a member of the negotiating committee, called attention to the fact that organi- zations similar to the, Association had functioned in other plants, stated that such an organization should function in the respondent's plant, and expressed, approval of such organizations. Secretary-Treasurer Fischer on•the same occa- sion asked Koons to undertake to get harmony within the Association again. After Koons assured the Fischers that he was "through " President Fischer took further steps to see that negotiations would continue by talking to Small- wood the next day, reporting to him the fact of the conference with Koons, and asking Smallwood when the Association would be ready to bargain again. President Fischer also spoke to Smallwood about "getting the boys together again," and further stated that "independent unions" had worked in other plants and should work'in the respondent's plant. On this occasion President Fischer knew that the Association's bargaining committee was not functioning Presi- dent Fischer also asked Rickert about that time to retain his position on the Association's bargaining committee and to urge Woolf to remain a member of the Association He also offered Smeltzly a wage increase,•telling Smeltzly on that occasion that he hoped to see "the boys go through with this union and" the respondent "would get things settled." J The events as disclosed above do not present a situation of genuine collective bargaining between an employer and a representative designated by a majority of the employees free from employer interference. Rather, it-shows an employer dealing with an organization which received the employer's encouragement, assistance, and support?° - The undersigned finds that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it, and that it has-thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. 81 In late February or early March the respondent instructed its foiemen to express no opinions and to maintain an impartial attitude as to union matters. Since the fact of these instructions was never disseminated to the employees and some of the activity in support of the Association took place after the instructions had been given , the instruc- tions did not operate to dissipate' the effects of the respondent's unfair labor practices Moreover, the activities of Elsass , Schumann , and the Fischers as detailed herein, were unfair labor practices by the respondent notwithstanding the respondent 's instructions. See Solvay Process Company, a corporation, v. N. L. R. B, 117 F. (2d) 83 (C. C. A. 5), cert. den. 313 U. S. 596 ; N L. R. B. v. A. S. Abell Co , 97 F. ( 2d) 951 (C. C. A. 4). WAPAKO\ETA MACHINE CO. C. 'Interference, restraint, and coercion 1o3 The statements in opposition to the United made by Schumann and the statements and conduct in favor of the Association by Elsass, President Fischer, ,and Secretary-Treasurer Fischer, have been detailed above. The undersigned finds that by such statements and conduct the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities-of the respondent set for in Section III above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. The undersigned has found that the respondent dominated and interfered with the formation and administration of the Association and contributed sup- port to it. The continued recognition of the Association as the bargaining representative of the employees of the respondent constitutes a continuing obstacle to their free exercise of the right to self-organization and to collective bargaining thiough representatives of their own choosing. Accordingly, the undersigned will recommend that the respondent withdraw all recognition from the Association and disestablish it 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 em- ployment Since the contract of April 21, 1942, between the respondent and the Association embodies recognition of that organization as exclusive bargaining representative of the respondent's employees, and since such contract represents the fruit of the respondent's unfair labor practices, the undersigned will recom- mend that the respondent cease giving effect to it or to any existing contract between it and the Association and to any modification or extension thereof. Nothing in the undersigned's recommendations, however, shall be construed as requiring the respondent to vary its wage, hour, and other substantive features of its relations with the employees themselves, if any, which the respondent has established in the performance, of the contract as 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 Union, United Automobile, Aircraft & Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, and The Machine Knife Makers Protective Association of Wapakoneta, Ohio, are labor organizations, within the meaning of Section 2 (5) of the Act. i 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By dominating and interfering with the formation, and administration of The Machine Knife Makers Protective Association of Wapakoneta, Ohio, and contributing' support thereto,.the respondent has engaged in and is engaging in unfair,labor practices within, the meaning of Section 8 (2) of the Act. 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. I 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 On the basis of the above findings of fact and conclusions of-law, the under- signed recommends that the respondent, Wapakoneta, Machine Co., its officers, agents, successors, and assigns shall: 1 Cease and desist from : (a) In any manner dominating or interfering with the administration of The Machine Knife Makers Protective Association of Wapakoneta, Ohio, or with the formation and administration of any other labor organization of its employees and from contributing support thereto; (b) Recognizing The Machine Knife Makers Protective Association of Wapa- koneta, Ohio, '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 ; (c) Giving effect to its contract of April 21, 1942, with The Machine Knife Makers Protective Association of Wapakoneta, Ohio, or to any; modification, extension, or renewal thereof ; (d) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights 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. , I , 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw 'all recognition from and completely disestablish The Machine Knife Makers Protective Association of Wapakoneta, Ohio, as the representative of any of its employees for the purpose of dealing with the respondent concern- ing grievances, labor disputes, rates,of pay, 'wages, hours of employment, or other conditions of employment; (b) Post immediately in conspicuous places in its plant at Wapakoneta, "Ohio, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to' its employees stating: (1) that the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraph 1 (a), (b), (c), and (d) hereof ; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) hereof ; - (c) Notify the Regional Director for, the, Eighth Region in writing within ten (10) days from the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. - ' It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the WAPAKONETA MACHINE CO. 105 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, effective October 14, 1942, any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32''of 'Article II of Said Rules, and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement,in writing setting forth such exceptions to the Intermediate Report or to ans other part of the record of proceeding (including rulings upon all motions or objections) as he relies upon, together with the original' and four'copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days after the date of the order -transferring the case to the Board. WILLIAM B. BARTON, Trial Examiner. Dated : October 22, 1942. i