The Yoder Co.

In the Matter of THE YODER COMPANY-and UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 735 (CIO) Case No. C-8393.-Decided February 15, 1943 Jurisdiction : special machinery manufacturing industry. Unfair Labor Practices Intel fereiice, Restraint, and Coci cion: notices, post cards, and posters issued to employees, stressing loyalty to company and purporting to advise them of their statutory rights just before the holding of a consent election; questioning and reprimanding an employee concerning his intended vote; posting anti-union sign! Coynpanif-Dominated Union: finding made as to admittedly dominated organiza- tion, which company disestablished after about 8 years ; charges of, dismissed as to alleged succes§or organizatioli, where circumstances failed to establish that employees believed second organization was formed as substitute for original dominated organization rather than in revolt against such domination. Discitiiiinetion: charges of, dismissed. Remedial Orders: cease and desist dominating and interfering with disestab- lished organization ; cease giving effect to contract therewith ; and refrain from recognizing such organization should it attempt to resume functioning- mail to each employee, individual notice of compliance with the Act. Practice and Procedure: inconclusive consent election set aside. DECISION AND ORDER On October 30, 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 affecting commerce, and recommending that it cease and desist-. there- from and take certain affirmative action; as set forth in the copy of the Intermediate Report annexed hereto. Thereafter, the respondent and the Independent filed exceptions to the Intermediate Report and sup- porting briefs. The Board has considered the rulings made by the Trial Examiner at and subsequent to the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. Pursuant to notice, a hearing for the purpose of oral argument was held before the Board in Washington, D. C., on January 19, 1943. The respondent and the Independent appeared and participated in the hearing. 47NLRB,No75. 557 558 DECISION'S' OF NATIONAL LABOR RELATIONKS BOARD 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 rcommendations made by the Trial Ex- aminer, with the following exceptions and additions : 1. The Trial Examiner has -found that the respondent dominated and interfered with the administration of the Association from July 5, 1935, the effective date of the Act,, to'March 21, 1942, the date of the Association's disestablishment. The record shows in addition, and we find, that the respondent contributed financial and other support to the Association during this period. To effectuate the policies of the Act, ,we shall order the respondent not only to cease and desist from engag- ing in these.unfair labor practices, but also to cease and desist from giving effect to its contract of April 1, 1940, with the Association, or to any extension, modification, supplement, or renewal thereof, and to refrain from recognizing the Association as the collective bargaining representative of any of its employees in the event that the Associa- tion resumes or attempts to resume functioning as such. 2. The Trial Examiner has found that the Independent is a domi- nated labor organization, since it is the successor of the Association and since the respondent, by failing "to dispel the identity of" the Associa- tion and the Independent and by "its forceful campaign against the Union and in favor of the Independent," led its employees to believe that "the Independent had evolved from the Association" and that, "the Independent was to serve as a substitute for the Association." We are not convinced that the record establishes these facts. The record shows that there was no real activity on the part of the Association after October 21, 1941, and only slight activity on its part during the months immediately preceding. Discussion of the formation of the Inde- pendent did not begin until December 1941, some 2 months after the Association had become dormant, and the discussions were participated in and the Independent was thereafter organized on February 1, 1942, by Garwood, an employee who had not been active in.the Association since May 1938, and by other non-supervisory employees who had never been "active in the Association. The activities of these employees in organizing the Independent were found by the Trial Examiner and are shown by the record not to have been generated by the respondent. There is evidence, and we find, that the organizers of the Independent told employees whom they solicited for membership that the Inde- pendent had no relation to or connection with the Association. In the charges filed by the Union in December 1941 and in February and April 1942, in the representation petition filed by it in March'1942, and in the negotiations leading up to the consent election of April 2, 1942, the Union made no allegation that the Independent was the successor of the Association. The post cards and posters addressed by the respond- THEE YODER , COMPANY 559 ent to its employees during the period between March 25, 19,42, and the consent election of April 2, 1942, did not, in our opinion, constitute support by the respondent of the Independent as opposed to the Union, and there is no other evidence of assistance to or interference with the Independent by the respondent. It therefore appears that the Independent, unlike the unaffiliated organization disestablished in the Westinghouse case,' was not or- ganized by employees identified with a predecessor dominated organi- zation, and that there was no continuity between the Association, which engaged in its last activity in October 1941, and the Independ- ent, which was organized in February 19-12. In the present proceed- ing, the record shows that the respondent did not favor the Inde- pendent by displaying hostility tp the Union; that there was no participation by supervisory employees in the formation or adminis- tration of -the Independent; that there was no identity, either in personnel'or in structure, between the Association and the Independ- ent; that the respondent's employees understood that the Independent was being organized in protest against, rather than as a result of, the respondent's domination of the Association;, and'-that the Union itself did not, until the filing of its amended charge' on July 29, 1942, .allege that the Independent was the successor of the Association. We are of the opinion and we find that the record does not establish that the Independent was dominated and supported by the respond- ent.2 The complaint will therefore be dismissed, insofar as it alleges that the respondent dominated and interfered with the formation ,and administration of the Independent and contributed support to it. 3. The Trial Examiner has found that the respondent, by publish- ing its letter of March 7, 1942, to the Union and byissuing the post cards and posters on and after March 25, 1942, interfered with, re- strained and coerced its employees in the exercise of the rights guar- anteed by the Act. The respondent's letter of March 7, 1942, was written in reply to a letter front the Union to the respondent, and a copy of it was posted by the respondent on its bulletin board- be- cause the Union had previously distributed among the respondent's employees handbills reproducing its' letter to the respondent and accusing the respondent of "sabotaging defense production" and of having "Nazi-minded" and "gangster-like" officials and foremen. Under the circumstances, we do not believe that the respondent, by posting a copy of its letter of, March 7, 1942, interfered with the 'Westinghouse Electric and Manufacturing Company v . N. L R. B, 112 P. ( 2d) 657 (C. C. A. 2 ), aff'd 312 U. S 660, modifying and enforcing, 18 N L R B 300 2 Matter of Providence Gas Company and Local No. 12133, District 50, United Mine Workers of America (C. I. 0.), 41 N. L. R B 1121. Cf. Matter of Cherry Raver Boom cf Lumber Company and United Construction Workers 0iganizuag Committee ( C I. 0 ), 44 N L R. B 273. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statutory rights of its employees, and the finding of the Trial Exam- iner to the contrary is hereby reversed. With respect to the post cards and posters issued by the respondent to its employees on and after March 25, 1942, we have found, above that the respondent did not thereby support the Independent to the consequent disadvantage of the Union. The post cards and posters did, however, stress the desirability of "loyalty" to the respondent, on the part of its employees and the, disadvantages of union organization. .Moreover, they were issued just prior to the consent election of April -2, 1942, and w-,,ere openly and avowedly concerned with the considera- tions to be given weight by the respondent's employees, when they cast their ballots in'+the election. We have hitherto held that the right of employees under the .At to seldct their bargaining repre- sentatives without employer interference imports the - correlative duty on the part of employers ' to maintain a "hands-off" policy in elections conducted to ascertain bargaining representatives, and that an employer's participation in a pre-election campaign is an inter- ference with the employees' right to bargain collectively through representatives "of their own choosing." 3 We agree with the Trial Examiner and we find that the respondent, by issuing 'the post cards ,and posters on and after March 25; 1942, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We, shall therefore direct the respondent to mail remedial notices to each of its employees, individually' We shall also set aside the election of April 2, 1942, since it was incon- clusive, but without prejudice to further proceedings under the Union's pending petition for investigation and certification of repre- sentatives. ORDER Upon the basis of the foregoing findings of fact and 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, The Yoder Company, Cleveland, Ohio, and, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of Yoder Company Employees Association or the formation or administration of any other labor organization of its employees, and from con- tributing financial or other support to Yoder Company Employees Association or to any other labor organization of its employees; 3 See, Matter of Sunbeam Electric Manufacturing Co. and United Electrical, Radio cE Machine Thor! ers of Anmeiica, affiliated with the 0. 1. 0 , 41 N. L. R. B. 469, and cases therein cited Cf N. L. B B. V. A'mertican Manufacturing Company, 11 L. R. R. 681 (C. C. A. 5). 4 Matter of The Letz Manufacturing Company and Federal"Labor Union No. 22226, affiliated with the American Federation of Labor, 32 N. L. R. B. 563. THEE YODER COMPANY 561 (b) Giving effect to its contract of April 1, 1940, with Yoder Com- pany, Employees Association, or to any modification, extension, sup- plement, or renewal thereof ; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through-rep. resentatives of their own choosing, and to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a)_ Refrain from recognizing Yoder Company Employees Asso- ciation 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, if the Association resumes or attempts to resume function- ing as such representative; (b) Post immediately in conspicuous places throughout its plant at Cleveland, Ohio, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees, a copy'of which shall also be mailed to each of its employees individ- ually, stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 (a), (b), and '(c) of this Order; and (2) that the respondent will take the ,affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Eighth Region,in writ- ing, within ten (10) clays from the date of this Order, what steps the respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint, insofar as it al- leges that the respondent dominated, interfered .with, and contributed support to Independent Welfare Association, Inc., and that the re- spondent discriminated in regard to the hire and tenure of employ- ment of Frank' Holpuch, Henry Sabbatis, and Louis Wood, be, -and - it hereby is, dismissed. AND IT IS HEREBY FURTI-TER ORDERED that the election of April 2, 1942, among the respondent's employees, be,- and it hereby is, set aside, without prejudice to further proceedings under the Union's pending petition for investigation and certification of representatives. INTERMEDIATE REPORT Mr. RIchavd C Sw(rulc, and Mr. Colonel C. Sawyer, for the Board Mr. Harry B. Smoyer anti Mr. Eugene B. Schwar tz, of Cleveland, Ohio, for the respondent. Mr. M Alfred Roe)nisch, of Cleveland, Ohio, for the Independent. Mr. Joseph Hres, of Cleveland, Ohio, for the Union: 513023-43-vo1 47-36 562 DECiSIONS OF 'NATIONAL LABOR RELATIONS BOARD STATEMENT OF THE CASE On an amended charge duly filed on July 29, 1942, by the United Electrical, Radio & Machine Workers of America, Local #735 (CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint dated August 3, 1942, against The Yoder Company, 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), (2) and (3), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly- served upon the respondent, the Union, the Yoder Company Employees Association, herein called the Association, and the Independent Welfare Associa- tion, Ine, herein called the Independent.' With respect to the unfair labor practices, the complaint, as amended at the hearing alleged in numbered paragraphs and lettered subparagraphs referred to by the same numbers and letters hereinafter as follows 6. Respondent . ,. . from on or about the eighth day of December 1941, prior thereto, and at all times subsequent to said date has interfered with, restrained, and coerced its employees in, the exercise of the rights guaranteed in Section 7 of the Act,, in that: (a) On or about December 8, 1941 one of its supervisors, Bill Buchin told an employee, Julni J. Haller, who was distributing membership cards in the Union, that such activity was the only means whereby Haller could keep a job and thereupon Buchin physically assaulted Haller. (b) On or about March 18, 1942, Louis Morgan, • Respondent's personnel manager, inquired as to the union sympathies of Frank Holpuch before hiring him, and asked him whether a company union would be satisfactory to him if he wei e employed 'at Respondent's plant. (c) On or about March 28, 1942, one of its supervisors, Jessie Kephart, violently abused the said Frank Holpuch with profane language.4 (d) On or about April 4, 1942 one of its supervisors, Earl Biederman, transferred the said Frank Holpuch from his usual employment to sweeping floors, moving machinery and replacing stock. (e) On or about March 28; 1942 one of its supervisors, Carl Yoder, stated to a group of employees in the plant that if the Union got in the plant it wouldn't be the same old Yoder Company, that the employees would lose many privileges such as their present method of overtime pay and smoking. (f) On or about April 13, 1942 Louis Morgan, Respondent's personnel man- ager,, refused to pay to Louis Wood, an_ active Union proponent, upon his discharge by Respondent, his vacation money, and advised said Louis Wood that he would not be permitted to remove his personal tools from the plant unless and until said Wood accepted his final payment as offered. (g) On or about March 7, 1942, following a request for bargaining by the Union, Respondent replied to the Union by letter and published its reply IIn its complaint the Board referred to the Association as the Y. C. E. A. and to the Independent as the Association. i Since separate motions were made concerning each particular allegation of the complaint, these allegations ale set forth verbatim for the sake of clarity. B Incorrectly referred to in the complaint prior to amendment as "Bill Dudeson." 4 Befoie it was amended at the healing on motion of counsel for the Board this allegation read as follows • "On or about Dial eh 28, 1942 one of its supervisors, Jessie Kephart, violently abused the said Frank FIolpuch with profane language and otherwise and sent him home at 11 : 30 in the morning." THE ^ Y ODDER ' COMPANY 563 among the empioyees of the plant, charging the Union with making uniformly mendacious and misleading statements. (h) On or about April 1, 1942, the-day before an election was to be held in Respondent's plant by the National Labor Relations Board, one of its supervisors, John Miller, asked one of its employees, Henry Sabbatis, whether he belonged to the CIO, and on the following day asked Sabbatis which union he had voted for. Upon Sabbatis advising Miller that he had voted for the CIO, the said John Miller severely' reprimanded Sabbatis. (i,) Through February and March 1942 Respondent permitted solicitation of membership in and collection of dues for the Association (Independent) in its plant during working hours, in violation of company regulations against employees moving about the plant, whereas 'such' privilege of solicitation. was denied the Union. (j) On or about March 30, 1942 and.again on or about April 3, 1942 one of its supervisors, John Miller, placed a box and placard at the bulletin board in the plant bearing the legend "CIO members-throw your buttons in here for defense." (k) During the month of March 1942, prior to the election above referred to, it published, posted and otherwise made available to its employees letters, handbills, postcards and posters for the purpose of persuading its employees to vote against the Union in said election. (1) On April 2, 1942, M Lubahn, one of its authorized observers at said election, was in possession of a list of employees furnished by the Respond- ent, in addition to the authorized list, upon which the said Lubahn was check- ing the names of voters who appeared' to cast. ballots. 8. Respondent . . . from on or about April 10, 1934, and at all times sub- sequent to that date, during the life of the Y. C. E A. (Association) has fos- tered, encouraged, dominated, and interfered with the formation and admin- istration of said Y. C E. A. (Association), in that: (a) It advised its organizers how to form the Y. C. E. A. (b) It suppled, all stationery, supplies and clerical help necessary for the administration,of the Y. C. E. A. (c) It permitted the Y. C.\ E. A., Committee Meetings to be held in its offices during working hours. (d) Its officers, and supervisors regularly , attended said Committee Meetings. (e) Copies of the minutes of those meetings were furnished to its officers and supervisors. 11 (f) It permitted all elections of Y. C. E A. officers and committeemen to be held in the plant during working hours. (g) It participated in and advised concerning amendment to the Consti- tution of,the Y. C. E. A. (h) It defrayed all expenses of the Y C. E. A. 9i Respondent .. . from, on or about February 1,. 1942, and at all times subsequent to that date, has fostered, encouraged, dominated, and interfered with the formation and administration of the Association (Independent),' in that: (a) On or about February 1, 1942, three of its supervisors, Pat McGee, James Lucas, and Charles Waters attended and were actide in the Associa- tion's (Independent's) first organizational meeting. 4 1 5 The complaint further alleged in paragraph 5 that the Independent was a successor organization to the Association. See footnote 1, supra. 564 _ DE,CISTONS OF NATIONAL LABOR RELATIONS BOARD (b) ,It permitted certain of its,,agents who were charter members and/or officers of the Y. C. E. A. to continue in service as organizers and/or officers of the Association (Independent). (c) From late January 1942, and subsequent to that time, it has per- mitted to be circulated among its employees in its plant during working hours, petitions and membership cards of the Association (Independent), in violation of its rules against employees moving about the plant. (d) From on or about February 1, 1942, and subsequent thereto, it per- mitted active organizers of the Association (Independent) time off during working hours for the purpose of handling affairs of the Association (Independent). (e) During they month of March 1942 it engaged in a campaign both by mail and by posted bulletin, among its employees for the purpose of soliciting votes in favor of the' Association (Independent) and against the Union in the above-mentioned election. 12. Respondent discharged the following named employees on or about the dates set forth after their names : Louis Wood, April 13, 1942. Henry Sabbatis, April 14, 1942. Frank Holpuch, April 14, 1942. 13. Respondent discharged the employees ... because they were members of and active on behalf 'of the said Union . . ., and because Respondent wished to encourage membership in and allegiance to the said Association (Independent). On August 27, 1942, the respondent filed an answer admitting the allegations with respect to its business. The respondent also admitted certain of the other allegations, as hereinafter set forth, but denied all the unfair labor practices. At the hearing the Independent filed its answer denying that its formation and administration had been interfered with and dominated by the respondent, and further denying that it was the successor of the Association. Pursuant to notice, a hearing was held at Cleveland, Ohio, from September 14 to 17, 1942, before the undersigned, Webster Powell, the Trial Examiner duly designated by the Acting Chief Trial Examiner. The Board, the respondent and the Independent were represented by counsel and the Union by its representative. Full opportunity to be heard, to examine and. cross-examine, witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case, counsel for the Board moved to dismiss the complaint for lack of evidence as to paragraphs 6 (e), (f) and (1) and 9 (a). He likewise moved to dismiss for lack of evidence paragraph 12 insofar as it referred to Louis Wood. These motions were granted by the undersigned Upon the conclusion of the Board's case, counsel for the Independent moved to dismiss the complaint ° as to the Independent in its entirety, including the allegation' that the Inde- pendent was a successor organization to the Association. This motion was denied. Counsel for the respondent mo, ed to dismiss the complaint in its en- tirety and in particular moved to dismiss paragraphs 6 (c), (d), (h), (i), and (1), and 9 (b), (c), and (d), of the, complaint and further moved to dismiss the complaint as to Henry Sabbatis and Frank Holpuch In the alternative counsel for the respondent also moved to strike the words "and collection of dues" from paragraph 6 (i) of the complaint. The motions to dismiss para- graphs 9 (b),' (c), and (d) of the, complaint were granted. The motion to strike the words "and collection of dues" from paragraph 6 (i) of the complaint THEE YODEIR COMPANY 565 was also granted.6 Ruling was -reserved -by the, undersigned, with respect to the motions to dismiss'the complaint as to, paragraph 6 (c), (d), (h), (i), and (j), and as to Sabbatis and Holpuch. These motions are denied. At the close of the hearing the undersigned granted a motion by counsel for the Board, in which counsel for the respondent, and counsel for the Independent joined, to conform the pleadings to the proof as to spelling, names, dates, and other formal matters. At the conclusion of the hearing, counsel for the respond- ent moved to dismiss the complaint in its entirety and renewed his motion directed to the portions of the complaint not already dismissed ; and counsel for the Independent moved to dismiss the complaint insofar as it applied to the Inde- pendent. Ruling upon these motions was reserved ; these motions are hereby denied except as hereinafter set forth. At the conclusion of the hearing all parties waived the opportunity to argue orally before the undersigned. All. parties were advised that they might file briefs with the undersigned. Briefs have been submitted by the Board, the respondent, and the Independent. Upon the record thus made and from his observation of the witnesses, the under- signed makes, in addition to the above, the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Yoder Company is an Ohio corporation, having its only plant and offices in Cleveland, Ohio. The respondent builds and distributes special machinery and is now engaged almost entirely in national defense work. Its annual pur- chases of principal raw materials average approximately $150,000 in value, prac- tically all of which comes from the State of Ohio. The total annual value of its finished products averages approximately $1,250,000, about 75 percent of which is shipped to points outside the State of Ohio. Ninety-five percent of the finished product is made to special order. The respondent is also engaged in furnishing engineering, designing and other advice concerning plant equipment and arrangement of plant facilities' It admits in its answer that it is engaged in commerce within the meaning of theAct. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, Local #735 (CIO), is a labor organization admitting to membership employees of the respondent.' The Yoder Company Employees Association was an unaffiliated labor organiza- tion admitting to membership employees of the respondent. Independent' Welfare Association, Inc., is an unaffiliated labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Domination and interference with the administration of the Association The Association was organized in April 1934 with the approval and assistance of the respondent after employees-interested in forming an inside organization asked C M. Yoder, president of the respondent, and H O. Yoder, secretary- e Counsel for the Board joined in the alternative motion respecting paragraph 6 (1) of the complaint, and' conceded that the evidence adduced was insufficient to substantiate paragraph 9 (b) and ( c) of the complaint. 'These findings are based upon a stipulation entered into by the parties and read into the record. I 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD treasurer of the-respondent, how to initiate such an organization.' Thereafter, the respondent supplied the Association with all the stationery, office supplies, and clerical help necessary for its administration It permitted the monthly meetings of the Committee of Employee Representatives of the Association herein called the 'Committee, to meet -in its `offices in the plant during working hours. Upon occasion and at the request of the Association, officers and supervisors of the respondent attended meetings of the Committee. Copies of the minutes of some of these meetings were furnished to the respondent. The respondent per- mittled the annual elections of Association officers and committeemen to be held in the plant during working hours. Upon the request of the Association rep- resentatives of the respondent participated in and advised with the Committee concerning amendments to the constitution- of the Association. Employees suf- fered no deductions in pay for time spent at committee meetings or while voting. Nor did the respondent charge the Association for the use of its facilities ° The Association did not collect dues, and held no general membership meetings, the only participation by the entire membership being in the election of officers and representatives 10 According to its constitution, the business of the Association was conducted through 'a- Committee- of Employee Representatives chosen from the various departments in the plant" I The Association continued in existence from its'inception until March 21, 1942, when it was disestablished under circumstances herein set forth During this entire period the Association continued to receive the support of the respondent. Richard Edwards, chairman of the Association from April 1935 to the date of its disestablishment, except for a period of one year, testified and the undersigned: finds that there was no change in the form of the Association from the time it began until the time it dissolved. The undersigned finds that the respondent dominated/and interfered with the administration of the Association from July 5, 1935, the effective date of the Act, to March 21, 1942, the date of its disestablishment, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act 32 8 In a conference on April 10, 1934, Earl Biederman, at that time an automobile mechanic and truck driver acting,as spokesman, for, the,,einployees interested in forming an inside union, explained to the Yoder brothers that an outside labor organization was organizing the employees ; that several employees, including himself, were opposed to an outside organization, whose officers could dictate to them ; and that they had been wondering what could be done "to preserve the family relationship between the Company officials and the Company employees 9 These findings are based on admissions by the respondent in its answer to the allega- tions of the complaint, and are amply corroborated by the minutes of the Association. "The minutes further reveal that in May 1934, the respondent entered into a collective bargaining dgreem nt with the members of the Association through their elected representa- tives. On'April 1, 1940, a new agreement, was entered into between the respondent and members of the Association. The agreement was to run for one year and thereafter from year to year unless a written notice to the contrary was given by either party within 30 days of the expiration date of the contract. This agreement remained in existence until'the Association was dissolved. "In view of the admissions in the respondent's answer it is unnecessary to go into the details of how the Committee functioned. The aid admittedly given the Association by the' - respondent is sufficient to establish that the Association was company dominated within the meaning of Section 8 (2) of the Act. - ' 12 Insofar, as this-report has dealt with events occurring prior to the'effective date of the Act, it has considered them not as constituting separate unfair labor practices, but rather with regard to their bearing upon the issues raised by the complaint.' Cf., N. L. R. B. v., Pennsylvania Greyhound 'Lines, Inc, 303 U. S 261. - THE YODEiR. COMPANY x-'567, B Domination and interference with the formation and advollistretion of the Independent-interference, restraint, and coercion In November 1941, the Union began an intensive campaign to organize the respondent's, plant. A Dumber of employees joined the Union Among those active in its behalf were John J. Haller and Ignatius John Kolk, usually referred to in the plant as Percy Kolk, About December 8, 1941, Haller was talking to Mazzeo, an employee known'as "Mussolini," about the union card which Mazzeo had signed, and on which he had forgotten to put the date, when Hill Buchin, a supervisory employee, asked Haller, how the organizing for the Union was going. Haller replied that- it- was going pretty well and that he had signed up eight employees that day:' Buchin then replied, "that is the only way you will be able to keep a position.". Haller then remarked, "that 'is the only way . . . it will stop you fellows from running and tattling " Buchin thereupon hit Waller, in the jaw. This' conversation took place at the plant during working hours 13 On December 10, 1941, while the Union was in the midst of its organizational ,campaign , the respondent posted on its bulletin boards the following 'general notice-to *its employees : Many of our Employees have asked concerning the attitude of the Manage- merit concerning their industrial relationship to the Company. The attitude of the Management is the same now as it always has been,` namely. No one is asked as a condition precedent to employment, regarding his religion, politics, or labor affiliations. "Is the work or skill of the' employee satisfactory"-is the only criterion, and this is the only question that will ever be raised. The Law of our Land states that workmen may join together to bargain with their Employer. This we have always recognized. The Law also states that a workman may, as an individual, bargain with his Employer, and this we have continuously recognized. In addition to the above, we wish to state that it never has been necessary, nor will it ever be in the future, for any workman of our Company to join any organization or pay dues to any outside organization for the privilege of working for The Yoder Company. If it is his deliberate choice to do so, he has that privilege. As in the'past, it is the present policy of The Yoder Company to be pleased' at any and all times to discuss with any individual or group of employees, any problems that may be related to their connection with the Company. IN ORDER THAT THERE SHALL BE NO MISUNDERSTANDING AS TO THE POSITION' OF THIS COMPANY, WE WISH TO NOTIFY OUR EMPLOYEES THAT WE INTEND TO 'e Buchin admitted in substance the above testimony of Haller. He testified that he hit Haller when the latter called him a "squealer ." The respondent contends , however, that Buchin is not a supervisorg employee Buchin testified that lie was the tool supervisor, at the plant and that it was his duty to promote efficiency in pioduction by re-tooling and otherwise-seeing to it that the proper tools were available for particular jobs. He worked directly under Edward D. Hoobler, superintendent of Plant 1. Prior to his discussion with Haller about the Union , Buchin discovered that Haller did not have in his possession either, a micrometer or a scale, tools which the employees were supposed to own personally Buchin reported this fact to IIoobler According to the undisputed testimony of Haller, Buchin had a repairman who acted as his assistant. On occasion Buclnn also instructed employegs in the operation of their machines From the foregoing the undersigned finds, that Buc'hiri is an - employee for whose activities the respondent is responsible . While the undersigned does not find this incident to be a violation of Section 8 (1) of the Act,as alleged in the complaint , the undersigned does find that at the time of this incident the respondeni had knowledge, that the Union was organizing its employees. r 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LIVE UP TO THE SPIRIT, AS WELL AS THE LETTER, OF THE NATIONAL LABOR RELA- TIONS ACT. UNDER TIIE ACT EACH EMPLOYEE IS FREE TO JOIN, OR REFRAIN FROM JOINING ANY LABOR ORGANIZATION. THIS COMPANY WILL NOT DO ANYTHING TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR INDIVIDUAL JUDGMENT IN THIS REGARD. AND ASSURES ALL EMPLOYEES THAT THEIR RIGHT TO WORK HERE 'WILL NEVER BE DEPENDENT UPON MEMBERSHIP OR NON-MEMBERSHIP IN ANY ORGANIZATION. About the middle of December 1941, while the Union was conducting its organ izational activities, Harry Reamer, a tool maker, asked Virgil Garwood, another non-supervisory employee, if he would'like to help form an independent union. Garwood replied that he would be interested in such an organization provided it had nothing to do with the old association. To this condition, Reamer agreed" There followed a series of informal discussions among Reamer, Garwood, and other employees pertaining to the formation of an independent union." These discussions took place at Reamer's home, in the bowling alley where the, respond- ent's employees regularly bowled, and at various other places outside the respondent's plant. _ Following these discussions, the employees interested in a union to combat the CIO perfected their plans. There is no evidence that any of these employees dis- cussed the matter with officers or supervisory employees of the respondent. Gar, wood testified and the undersigned finds that whenever he solicited membership on behalf of the Independent he assured the employees that the Independent had no relationship to the Association. Between January 29, and February 1, 1942, Garwood and another employee distributed notices at the respondent's plant, announcing that there would be a meeting "IN THE INTEREST OF AN INDEPENDENT UNION from the CIO," on February 1, 1942. The meeting, which was held at Geyer Hall located about 1 mile from the plant began at 10 a, m. Harry Reamer acted as chairman. Those present agreed to name the organization the "Independent Welfaie Association." Temporary officers were elected ; membership dues were set at $1 per month ; and it was voted that Reamer go to Columbus, Ohio, to secure a charter for the Independent. On February '2, pursuant to these instructions, Reamer obtained a charter, and on February 15, 1942, the Independent held its second meeting at which new temporary officers were elected 16 in place of those elected February 1.because some of the employees elected on February 1, were not able to attend meetings regularly. At this Ineet- 1' Reamer testified, and the undersigned finds, that his principal interest in an independent organization was his antagonism to the CIO and his desire to keep that organization out of the plant. This antagonism was based on past experience. Garwood testified, in sub- stance, that he was interested in forming the Independent because he wished a strong union in the plant that would secure benefits for employees and at the same time keep an outside union from gaining a foothold , and because he was of the opinion that the Association was illegal and would soon be unable to represent the employees . The first reason was un- doubtedly more decisive in determining Garwood's position , inasmuch as Garwood was still-a member of the Association and understood its weakness He had been a committee- man in 1938 and at that time the Association had been unable to secure for him a wage increase to which he felt entitled. Garwood failed of re-election after one year as com- mitteeman, and therewith ceased his activities in the Association. Some time in 1939, Garwood attempted to form another organization among the respondent 's employees, but met with no response and soon gave up the attempt 16 Other employees active in the Independent's formation were Fred Ackerman and Fred Baker,'both non-supervisory employees , There is no evidence that either of these men had' ever been connected with the Association Likewise, Reamer was a new employee who' had no connection with the Association IU Harry Reamer, president ; Fied - Baker, vice president ; Virgil Garwood, secretary ; Leonard Rob , treasurer. THEW YODEIR, COMPANY 569 -ing Attorney Anthony Balogh, who was Reamer's landlord, explained the Act. Provision was also made at this meeting to have application cards printed.17 On February 16, 1942,_ the Board informed the respondent, by letter that the Union had filed a charge 18 against it alleging that the respondent was engaging in unfair labor practices in violation of Section 8 (2) of the Act by forming an organization known as Employees Welfare Association. This obviously referred to the Independent, and the undersigned so finds. Two days later the respondent replied to the above letter, denying the above charge, and further stating in part: Officially, we (I refer to the Management of The Yoder Company) know absolutely nothing about the movements among our employees who are said to be organizing. Unofficially, and by way of rumor, we have heard disconnected remarks from some of the employees, that there is such a movement on the way. We have felt that this could be no more a matter that concerns us, than' the rumors and disconnected reports that the complainants,, the C.' I. O , are undertaking to organize our employees. . so far nothing has happened that under the interpretation of the Law would make its disregard the . . . Association . . . ` As stated by the writer to Mr. Kleiler, it may be that in the hearing of the charges against that organization that it may be declared illegal, but such declaration cannot come from our Company. 'On March 2, 1942, the Union wrote the respondent, claiming that the Union represented a majority of the employees and requesting a bargaining confer- ence for the purpose of negotiating a contract. The Union distributed copies of this letter in handbill form on or about March 2, 1942. On March 5, 1942, the Independent wrote the respondent advising it that the Independent repre- sented the majority of its "hourly rated employees, exclusive of supervisory employees," and requesting recognition of the Independent as the sole and ex- clusive bargaining agent for the above employees. The Independent also agreed to submit its authorization cards and other pertinent data in support of its claim that it represented the majority of the hourly rated employees. On March 7, 1942, the respondent replied to the Union's letter of March 2, as follows : We acknowledge receiving' your favor of March 2nd, in which you state that your_Union represents a majority of our employees and you request a conference. This Special Delivery communication is not the first we have received from you. We have before us numerous communications signed by you, which you placed in our autos and passed out on our street. These releases from you have been so uniformly mendacious and misleading that 'you -have put us in the mental attitude of doubting your statement relative to repre- senting a majority of our employees. We are now, and always have been, ready and willing to meet with and negotiate with our employees either collectively or individually, but because 14 On March 1, another meeting of the Independent took place , at which M Alfred Roemisch , attorney for the Independefit, gave those present information concerning the organization of an independent union, and also furnished them with information about the Union. Roemisch was then retained as attorney for the Independent I "Case No . VIII-C-1247. This charge was withdrawn March 9, 1942. .,570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the reasonable doubt above referred to, we must refuse to meet with you until there is proof of such. authority claimed under,the rules of the NLRB.39 In its answer the respondent admitted that it published the above reply to the Union by posting on the bulletin board a handbill consisting of the 'letter together with a brief notice above the letter as follows : "To the Yoder employees :- The UE-CIO distributed a handbill to you, you have a right to know our answer:" This was in reply to the union handbill containing a copy of the Union's request for the bargaining conference. The respondent made no reply/to the Independent's letter of March 5. On ,March 7; the Independent challenged the Union to an election by issuing a leaflet in which among other things it charged that the CIO was communistically in- spired and its members were "termites." On March 9, 1942, the Union filed a .petition for investigation and certification of representation with respect to employees of the respondent 20 On March 16 a conference was held at the Regional Office of the Board at which the respondent, the Independent, the Association, and the Union were all represented.2' The meeting was called for the•purpose of discussing a consent election. At this meeting both the Union and the Inde- pendent refused to go on the ballot so long as the Association was still in existence. The Board representatives then stated that it would not be possible to hold a consent election unless the Association, disbanded and the respondent agreed to its disestablishment. Hunter and Masters insisted that the Association be placed on the ballot. Edwards speaking on behalf of the Association agreed that he would take the matter up with other members, of the Committee not present at the conference. On March 21 a second meeting was attended by representa- tives of all parties.' - At this meeting a consent election' was, arranged for April'2, 1942, following the signing of a letter by representatives of the Association, announcing -that the Association was disbanding and would no longer attempt to represent the employees of the respondent for purposes of collective bargaining "One of the communications referred to in this letter of the respondent 's as a leaflet -issued sometime in February entitled; "U. S 'GOVPRNMENT AND UE-CIO WILL AMERICANIZE ,YODER MACHINE" The handbill stated in substance that the Government and the UE-CIO would stop "the fifth column activity of sabotaging defense production through the acts of provocation such as the Nazi-minded officials at Yoder have been doing " The handbill further asserted that the management was not interested in the defense program but was interested in its profits at the expense of its employees and the United States Government. The handbill further stated : It is to the interest of every worker to join the U.-CIO so that lie can play an active part in solving the problems that must, be settled Only the man who R orks under these vicious gangster-like foremen is in'a position to avail himself of a grievance procedure that will either straighten out the Nazi element in the shop or entirely remove it . . . 20 Case No VIII-R-744. The respondent is incorrectly referred to in the petition as 'Yoder Machine Company " Reamer, Garwood, and Rob represented the, Independent; Shepard and Fiering repre- sented the Union ; Harvey O. Yoder represented the respondent ; Hugh E Sperry, Regional Director, and Hudson represented the Board ; Richard Edwards, president of the Association,, and Al Hunter and Jim Masters, committeemen, represented the Association. During the course of the meeting Hunter and Masters stated that they were not only Committeemen for,the Association, but were also members of the Union 22 Rudy Pogascnik and Kolk were present at this meeting as representatives of the Union. Masters and Hunter were not present ; otherwise, the same representatives attended this meeting as had attended the meeting of March 16. THEE YODER COMPANY 571 Respondent agreed to post a notice disestablishing the Association and pursuant to this agreement the following notice was posted between March 21 and 24, 1942: 0 To ALL EMPLOYEES OF TFLE YOOEWCOMPANY This is to notify employees of this company's recognition of their rights under the National Labor Relations Act. This company recognizes the rights of employees to organize and bargain collectively through representatives of their own choosing, to form, join, or assist labor organizations, and to engage in concerted activity for their mutual aid or protection. In order to correct any contrary impression which any employee may have, the company desires to notify you that : (1) It will not interfere with,;restrain, or coerce employees in their exercise of the above-stated rights (2) It will not foster, dominate, or contribute financial or other support to any labor organization. In this connection you are advised that recogni- tion has been withdrawn from Yoder Company Employees Association and this organization has been disestablished as the bargaining representative of any of our employees. (3) It will not in any manner discriminate against any employee because of his membership or activity in behalf of any labor organization. (4) It will bargain collectively in good faith with representatives desig- nated or selected by a majority of the employees in a unit appropriate for such purposes when and- if such representatives have demonstrated their majority in an election supervised by the National Labor Relations Board The company desires to comply with the spirit as well as the letter of the National Labor Relations Act and any act or statement heretofore made, if any, or any threats or promises which may have been made, if any, which gave a contrary impression are hereby repudiated, and. denounced by the company. Supervisory employees of the company are hereby notified that they are not to express any opinion one way or another with regard to employees' organizational activity. This notice is to remain posted until further notice and is not to be removed, defaced, or covered over by other objects during such posting. On March 25, 1942, the respondent mailed the first of a "job appreciation" .series of five postcards to each of its employees. In general the cards constituted an attempt to instill in employees enthusiasm for their jobs and loyalty to The ,Yoder Company. Two of the cards emphasized that "LOYALTY BEGETS.LOYALTY." The last of these cards was mailed on March 30. Thereafter the respondent ,issued a poster to all employees entitled,. "Talkin' to myself in a Voting Booth" This was mailed out on March • 29, 1942, and was received by the respondent's employees the following morning. It was also posted on the bulletin board. This poster began by stating that the election was secret inasmuch as the organization representatives would be watching each other like "Hawks," not "Hogs"; that .there had been a lot of name calling during the campaigning which probably would not have'occurred if everybody really knew everybody else; that H. O. Yoder was not "such a bad scout" when you got to know him; and reminded the employees that the respondent had treated them well during the recent depres- 'sion'. The third paragraph in this poster reads as follows: I• almost said "YES" in the first space, just because it was first. Yeh, I ALMOST said "YES," ... but I didn't. 'It would have been the easy thing to do. I understand the position 'on this election's ballot was determined by 572 DECISIONS OF NATIONAL', LABOR RELATIONS BOARD tossing a coin . . . Well, "act in Baste, repent at leisure." :. The easiest way would be to put down as in the first space that happened to come to hand. a The fourth paragraph told the story of the Dutch boy who stuck his fist in the dike and was hailed as a hero because he decided what was the right thing to do. The paragraph is filled with references to the "right," =3 ending as follows:, Sometimes, the right way is the hard way, and the hard way, the right way. The Dutch boy DID know that the dike would hold as long as he held his fist there .. . The fifth paragraph contains a prophecy that the respondent will meet the,prob- lems arising out of the war situation successfully and will treat its employees well and states at the end of the paragraph : I KNow no situation will arise with them whereby anybody at all can point a finger at them and say "you have been profiteering " They were one of the first companies to get behind the armament program, and are now engaged 100% in war contracts. That makes me proud to be working here . . . The poster continues as follows : SAY, in which pocket did I put those papers when I wrote the "pros and cons" of this situation? Those fellows tellin''me how to vote are "pros" all- right. Maybe a little "con man" in 'em, too, for all I know . . . Come to think about it, what Do I know about 'em? Not much but what I read in the papers, and THEY, don't seem to think much df them, callin' the Union men "radicals and reds," but they in turn, come right back and call all the news- paper fellows liars and sabotagers, and - - it just gets me all het up and undecided in my mind . . . That's why I put all the arguments "for" on one piece of paper, and "against" on another. Personally I suspect I'm a professional "agin'er." I remember the old adage "When in doubt take the side of safety" so, when in doubt, I usually say "no." Then I don't wake up some day and find that I've bought a new house and lot, when I thought all I was doin' was to have them come and fix the furnace H-U-U-U-M-M-M-M, here,are,my notes. "The Yoder Plant will'be operated as a plant where anyone can continue to work as long as he applies himself' to his job and there is work to do." . . . Guess they said that in.a letter they sent to me. Gosh, Almighty ! here's the very letter. Yes, here Harvey said, not to let anybody "blitzkrieg" me into signing up or doing anything hasty. Well, here's somethin',-"No individual or organization can secure for you any right or privilege which you cannot secure for yourself." Well, if that's true, why pay out' money in dues? I, don't mind payin' out money if I get somethin' in return.' How much did they say those dues were? Any special assessments?' Who decided how much those dues would be, anyway? . . . Could it be one of those "come-on" games? Low rates now and sock you, later? .. . SAY, this "promising" business makes me tired. All they. have to do' when they'play that game is to see who can raise the other fellow, fastest. There's "no limit" to that game Guess, "Old fiiends are the best," after all. Yoders' 13 Board's counsel contended that the repeated use of the word "rights" in this poster was for the express purpose of calling the employees' attention to the square on the right hand side of the sample ballot which was then posted on the bulletin board. This square was the one In which employees desiring to be represented by the4ndependent were supposed to vote. This contention is discussed hereinafter. THE YONDER COMPANY . 573 did emphasize that I vote Fair enough. They didn't tell me low to' vote. But they did think that I would regret it later if I didn't vote at all. They said that the history of similar elections show that later on a lot of the work- men are sorry because a radical minority controlled the election when a lot of the .undecided fellows let the election be decided by their "not voting." When you don't vote, it is a vote for the other side . . . WHA-A-A-T? Have I been in this stuffy old voting booth for an hour? I cou'd have cast a dozen'votes for - - - - - in that time. My only regret is that I can't vote a hundred times. ONLY ONCE ! ... but I know it will be right. "Be sure you're right, then go ahead" say I, as I mark my ballot the right and honorable way. On March 30, i942, the respondent mailed. out another poster to all of its em- ployees entitled, "THE' YODER COMPANY SPEAKS." In the first paragraph of this poster, the respondent refers to the Bill of Rights and states that given the facts by the company the company is confident that the employees will decide the Board election wisely and justly. The poster then proceeds to advise the em- ployees as to their rights in the election as follows : YOUR RIGHTS IN TIIE YODER'COMPANY ELECTION ! You are, of course, free to join, belong to, pay clues and assessments, and follow the leadership and discipline of any labor union. If any union , leaders say to ,you, or lead you to believe, that you will get certain things , if and when any particular union wins the election , it does not necessarily follow that you will get these things . As the result of the election , any union can only secure the right to be the sole bargaining agent of our production employees. You have the right to vote the way you feel will be the best for you and your family, for that which will promote the best, the most friendly and directly interested of relationships THE YODER COMPANY'S POSITION AND PROMISES TO YOU ! You are protected in your job by your ability to'do work, with due con- sideration for your length of service. Your opportunity for advancement is based upon merit. It is our policy to pay wages as high as those prevailing in this locality for our industry. Our airs is to provide as steady work as possible, considering the nature of the business. Our record in this speaks for itself. + Every Yoder employee has always had the right to present any question, directly to the management, and have it carefully considered and determined. Any Yoder employee can work as long as he applies himself to his job and there is work to do. We have always given "the measure heaped up" in our dealings with you, to the utmost of our physical and.financial abilities. So, let your conscience be your-guide and VOTE. No individual or organization can secure for a Yoder employee any rights or privileges which you cannot secure for yourself The Yoder Company will not become a party to any arrangement or agree- inent whereby you will be compelled to pay for the right to work for this company. ' We are now at war. Many of you have sons or brothers in the service. You know that a 100% of our work is on war materials. You know bow badly this material is needed Therefore, The Yoder Company stands firmly for the proposition that every employee shall be protected in his effort to N 574 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD produce that which is necessary to save our country, irrespective of member- ship or non-membership in any labor organization. THINGS To CONSIDER WHEN VOTING IN THE YODER COMPANY ELECTION Suppose you had started this business? At the present time, all of us have the right to advance and profit fairly as fruit of our individual initiative. Any acts designed to destroy this great American privilege, should be discouraged. You should support the situation in which a spirit of friendliness, kindli- ness and cooperation promotes better working conditions for you and a higher living standard for your family. You should vote for the system under which you are'protected in your job" by your ability to do your work,'with due consideration for your length of service and your, advancement based on merit. You should consider the practical consequences of your vote, with 'respect to your job in future years. This is a time when it pays to look into the future. What you get depends upon what the company earns and not upon any demands. What The Yoder Company can do, in the matter of wages, in the future will depend, as it has in the past, on competition and the prices at which we are able to sell our product. You should consider the character of the leadership Is it unselfish, law- abiding'and thoroughly-American? * * * * * * DETAILS OF THE METHODS TO 'BE USED IN THE YODER COMPANY ELECTION This election will be by secret ballot-the same as in any political election. No one can know, by any means, how you vote BE SURE To VOTE! The decision vitally affects each and every one of you The election will be deter- mined by a majority of those voting at the election. Your neglect to vote gives someone else the right to decide who will represent you A failure to vote is equal to a vote in favor of the side you oppose. You can vote as you choose, regardless of any previous commitments you may have made at any time to the employer, to a union, or to anyone else If d majority decides in this election that a union shall be the exclusive bargaining representative, then that decision will bind all of the' Yoder pro- duction employees. A toss of a coin decided the position of the contestants on the ballot, so the relative positions have no particular significance Whether they are on the left, right or in the middle means nothing of consequence. STOP and reason things out. This is-a serious decision for you to make. LOOK into the future ! Your family's welfare and your own happiness is at stake THINE- of the friendly relationship existing between you and The Yoder Company VOTE ! Let your conscience be your VOTE I A neglect to vote VOTE guide. is equal to a vote in favor of the tide you oppose, so THE YO'DEH COMPANY 575- On the morning of March 31, 1942, Field Examiner Hudson visited the respond- ent's plant and noticed the two posters, hereinabove set forth, posted on the bulletin board. Thereafter, on the 'afternoon of March 31, a conference was held which was attended by representatives of the Union, the Independent, acid the respondent. At- the beginning of the conference Sperry expressed his opinion that the election should be called off because of the posters. Both the repre- sentatives of the Independent 2' and of 'the Union objected to the posters and at first were of the opinion that no election should be held at that time. Later in the afternoon Sperry pointed out that it would take considerable time to litigate the question of whether or not the respondent's issuance of the posters was a violation of the Act during which the employees would be without any- bargaining representative. Finally, the representatives of the Union and of the Independent, after conferring together, agreed to go forward with the election ,and informed the representatives of the respondent and the Board that 'they wished to hold the election On March 31 subsequent to the conference' of that date Sperry sent the following letter to all parties : 2 As you are aware, this office learned today, for the first time, of the recent leaflets, notices, bulletins, and postal cards put out by the company in what appeared to be a campaign designed to influence employees, in their -choice of bargaining representatives in the election *which has been scheduled for April 2, 1942 Accordingly, and because of our concern with respect to such matters, a conference was held in this office in which the company was represented by Mr. Harvey O. Yoder, the United Electrical, Radio & Machine Workers of,America, Local 735, C. I. 0., was represented by Mr. Henry Fiering and Air Paul Shepard, and the Independent Welfare Association was represented by Messrs Milton Roemisch, attorney, Harry Riemer, president, Virgil Gar- wood, secretary, and Leonard Rob, treasurer. At the conclusion of such conference, the undersigned advised all parties that this office will go forward with the election as scheduled with the definite understanding that such proceeding is without prejudice to the right of any party to object to the holding of the election, the conduct of the election, or the election report based on any acts or incidents or any con- duct or activity heretofore engaged in by The Yoder Company or its repre- sentative, and with the further understanding that the company will not disseminate or post or' cause to be circularized any more literature, cards, ,letters, bulletins, or other material,between now and the conclusion of the election, and all present bulletins or notices which the company has published or caused to be distributed and which were the subject of our discussion of today will be immediately removed from the bulletin boards and any other places throughout the plant. This understanding was concurred in and agreed to by Mr. Harvey 0 Yoder on behalf of the company and- by the representatives of the two labor organizations concerned. Z+ The representatives of the Independent maintained during this conference and at the hearing that the posters were just as inimical to the Independent as to the Union , and were designed to favor a vote for "neither" organization , 26 Accordm ,_ to the Independent 's representatives , Sperry did not make known his position w,,th respect to the election until after the conference had broken up It was stipulated that if called , Reamer, Garwood, and Rob wwould'testify that there was a gentleman' s agreement between the Union and the Independent that if the "neither" vote was not too great neither side would>oblect to the election However, none of the Board's representatives was a party to this agreement and the consent election proceeded without any objection being made to the conditions laid down in the Regional Dii ector's letter for the holding of the election 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry Sabbatis, one of the employees alleged to have been discriminatorily discharged, testified that on April 1, 1942, John Miller, night shift foreman, asked him who his vote was for ; that he replied that he was going to vote for the, CIO ; and that Miller then said, "it's a hell of a thing after the Yoder Company gives you a break, you turn around and double-cross them." At the time of this conversation Sabbatis was wearing a CIO button. This conversation took place on the floor of the assembly department. A little later Sabbatis saw Miller near the bulletin board and Miller asked him if he had ( torn down a little box which was then lying on the floor by the bulletin board. On, a sign above the box was written, "CIO men drop your buttons in here for national defense." Sabbatis denied that he had torn it down. Miller then tacked the box- back ,on the bulletin board. Sabbatis,then asked Miller.`if he had put the box up and Miller replied in the affirmative. Miller denied that he asked Sabbatis who he was going to vote for or that he had any conversation with Sabbatis about the election or about the sign and box. He further testified that about a week before the election he received instructions from Superintendent Hoobler not to interfere with the election. According to Miller, on April 3, the day after the election, he noticed a printed sign with a box below it on the bulletin board about 4: 30 in the afternoon and that this sign stated, in substance, "CIO members, throw in your buttons for National Defense." Miller denied that he had put 'the sign and box up The statements and acts attributed to Miller by Sabbatis are consistent with the anti-union election campaign conducted by the respondent. In the light of the fact That the campaign was designed to influence the election, April 1, the date fixed by Sabbatis as the date that the sign and box were on the bulletin board seems more plausible than April 3, the date set by' Miller Furthermore, Sabbatis was a frank and straightforward witness. The under- signed credits Sabbatis' version of the above incidents. On April 2, 1942, a consent election was held under the auspices of the Board. The following day the Union wrote a letter to Sperry objecting to the conduct of the election, claiming among other things that "the management mailed out to every employee considerable false propaganda concerning our union and in- fluenced their employee's to vote for `neither union' or the Independent Welfare Association." On April 4, 1942 Regional Director Sperry wrote the respondent in substance advising it that in view of the fact that the Union had filed charges that the respondent had violated Section 8 (1) and' (2) of the Act and had objected to the' conduct of, the election, no election report would be issued until an investigation of the charges and objections had been made. CONCLUDING FINDINGS AS TO THE INDEPENDENT The broad question at issue is whether or not the Independent was formed and continued to exist under conditions' allowing employees that complete and unfettered freedom of choice and, action which the Act contemplates In November 1941, the Union began its organizational campaign In the middle of December, employees ' began to discuss the formation of an inside union to combat the Union and to form a strong organization for the purpose of obtaining- economic concessions from the employer. In addition, Garwood, the only em- ployee active in the drive for an inside union who had ever been active in the Association, was antagonistic to the Association, which was still in existence, ,because it'had failed to secure a wage increase for him in 1933. Garwood also felt that it was a weak organization and that it was just a question of time before the Association was declared illegal. On December 16, 1941, the respondent took See N. L n' B.'V. Linlc-Belt Co, 311 U S 584. THE YODER, COMPANY 577 cognizance of the union activities in the plant and posted a general notice on its bulletin board, purporting to advise employees of their rights under the Act and of its neutral position in the matter. This notice must be read from the' point of view of employees then working for the respondent in order to discover its real meaning - While the notice clearly states employees are free to join or not to join any labor organization, the notice further assures employees that it is not, nor will it ever be, necessary for an employee to "join any organization or pay dues to any outside organization for the privilege of working for The Yoder Company 0, 27 This was a slight but inescapable hint to employees that their employer was especiafiy opposed to the outside union'then campaigning in their midst. Al-' though there is no-evidence that this notice provided the original impetus for an inside organization, it is reasonable to suppose and the undersigned finds that this notice did inform employees that as between an inside and an outside organ- ization the respondent preferred the former in keeping with its previous policy of fostering and aiding the Association. - In the meantime the respondent took no steps to withdraw recognition from the Association with which it had a contract or to put its employees on notice that it had no connection with the new inside organization which on February 1, 1942, was formally established as the Independent. To the contrary, on February 18, the respondent replying to a charge that it was dominating the Independent admitted that it had heard rumors about the formation of the Independent but denied the charge of domination and interference and also denied that the Asso- ciation was company-dominated. In the same letter, however, the' respondent admitted that the Association might be declared illegal but stated that such a declaration could not come from "our Company." During the first week in March 1942, both the Union and the Independent in the.ordei named claimed to represent a majority of the employees. The Union requested a bargaining conference. The Independent requested recognition. The respondent made no reply to the Independent's letter. However, it not only replied to the Union's letter, but also made its reply available to all its employees. In this letter the respondent pointed out that it could not meet with the Union until the Union had proven its majority because the union com- munications, which union representatives had been handing out, were "uni- formly mendacious and misleading." xs Clearly, the plantwide distribution of the respondent's letter containing the above language satisfied any doubts any employee may have had of the meaning of the notice of December 16, 1941, and convinced employees that the respondent was hostile to the Union, and the undersigned so finds. Between March 21 and 24, 1942, after the Association had agreed to dissolve, the respondent posted the usual notice in conformity with the Board's practice in cases of disestablishment, notifying its,employees that, it had withdrawn rec- ognition from the Association, that the Association had been disestablished as the bargaining representative of any of its employees, and that it would bargain collectively in good faith with any organization selected by a majority of its employees in an appropriate unit. Between March 25 and 30, 1942, after April 2 had been chosen as the date for a consent election between the Union and the Independent, the respondent 27 Emphasis supplied . It is significant in this connection that the Association did not require the payment of dues Y8 Apparently the respondent made public its reply because of the publicity the Union gave its letter to the respondent and other statements concerning the respondent Such statements by the Union do not excuse the respondent's conduct, which the undersigned finds constitutes interference ii ith the employees ' right to self-organization. 113024-4d-vol 47-3T - - I 578 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD mailed out-"a job appreciation series" of 5 cards to each employee which was designed to promote enthusiasm for his job and loyalty to his employer. About March 29 and 30, just before the election, the respondent climaxed its campaign against the Union by ,mailing out two large, elaborately printed and carefully written posters to each of its employees entitled respectively "Talkin' to.myself. in a Voting Booth" and "THE YODER COMPANY SPEAKS." The first of these posters was obviously calculated to make each prospective employee voter stop and think about the coming election and to impress upon each employee the necessity for voting the "right" way and for "old friends," and that the "Union men"- were "radicals and,reds." The Independent contends, that this poster is as much anti-Independent as anti'Union.' It is true that there 'are passages in' this poster which when isolated from the entire context might be interpreted as a suggestion that employees vote for "neither" organization. But the only rea-, sonable interpretation of the poster as a whole with its continuous harping on the "right" way to vote and its admonition not to vote in the "first space" is that the respondent was primarily interested in telling its employees to vote for the Independent whose name appeared in the right-hand square in the' ballot, and in no case to vote for the Union, the square on the left side of the ballot, or the first space.' The "old-friends" were not the outsiders or ""Union men," and it follows that the phrase "radicals and reds" was meant to designate the Union. The respondent mailed out its second large poster to all employees the following day. The employee is asked in this poster to consider the character of "the leader- ship" and as to whether it is "unselfish, law-abiding and thoroughly American." This refers again to the employer's lack of faith in the Union, as stressed in the respondent's letter of March 7, and in the first poster wherein the opprobrium . "radicals and reds" was directed at the Union., In urging its employees to.vote for the "most friendly" of relationships, again the respondent lays stress on the outside or unfriendly aspect of the Union and favors "old friends" or the Independen00 Foreliian•Miller's questioning of Sabbatis as to how he was going to vote, his reprimand of Sabbatis, and his placing of a box and anti-Union sign on the re- spondent's bulletin board immediately before the election were also d'rected- toward persuading the employees to reject the Union at the polls. The respondent contends in its brief that the post cards and posters favored neither the Union nor the Independent and were merely "a frank and open state- ment" of the respondent's opinions, lacking any coercive effect. The undersigned is convinced and finds, however, that these statements were a subtle and successful attempt on the respondent's part to influence its employees in the coming election. ze The lower half of the ballot reads from left to right as follows : Mark an X in the square below if you desire to be represented by Mark an X in the square below if you desire to be represented by UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, NEITHER LOCAL 735 (C.I.O.) Mark an X In the square below if you desire to be represented by THE INDEPENDENT WELFARE ASSOCIATION 80 The respondent's campaign cannot be said to have requested a "neither" vote when viewed in the light of the election results 169 votes were cast for the Independent, 160 for the Union and only 9 for "neither." } THEE Y'ODEiR COMPANY- 579, and were part of a campaign which began in December 1941 to steer'its employees away from the Union and into an organization made up solely of its own employees. Although approximately 3 months had elapsed between the first stages of organizational activity on behalf of the Independent in mid-December of 1941,' and the respondent'•s disestablishment of the Association between March, 21,and_ March24, 1942, by-its published notice, no step was taken by it to impress upon its employees the dissociation of these two "inside" unions. On the contrary, in the interim the respondent, by the December 16 and March 7 notices, above described, had registered its antipathy to the Union and had thus fostered the growth of the Independent. That the respondent had knowledge of the existence of the Independent is shown by its letter dated February 18, 1942, addressed to the Board. From October 1941, the month in which its last meeting took place,- until its dissolution by the respondent, the Association lay dormant. This inertia, the'respondent's failure to dispel the identity of the two "inside" unions with one another during this period, and the respondent's expressed hostility to the Union, created a set of circumstances for which the respondent was responsible, which gave its employees reasonable grounds to believe that the Independent had evolved from the Association" Despite its protest of neutrality, the respondent,' immediately following its disestablishment of the Association, and shortly before) the crucial election for a bargaining representative, by its forceful campaign against the Union and in favor of the Independent, established conclusively in the minds of its employees that the Independent was to serve as a substitute for the Association. Certain of the circumstances were created by the respondent' and others were seized by it and woven into the fabric of successorship. It is found by the undersigned that the Independent is the successor to the Association, and. that the latter's taint of legality is consequently communicated to the former.' It is also found, irrespective of the Independent's successorship to the Asso- ciation, that during the Independent's formative period between mid-December 1941 and the election of April 2, 1942, the respondent's employees, by reason of the above unfair labor practices, were not accorded the full freedom of choice of a representative to which they were entitled.' The respondent, by the above-described course of conduct, dominated and inter- fered with the formation and administration of the Independent, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned also finds that the respondent, by the notice posted on the bulletin board on December 16, 1941, the publication of its letter to the Union of March 7, 1942, the mailing of the post-cards and the'posters, the posting of the posters, Miller's,questioning and reprimand of Sabbatis, and his posting on two occasions of the anti-union signs all above described,, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of theAct. ei Garwood's disclaimer to the employees whom he solicited of any connection between the Association and the Independent was merely the expression of one officer in the Associa- tion and cannot be accepted as any guarantee to the respondent's employees that in fact they were allowed that unfettered freedom of choice which the Act contemplates. Westinghouse Electric d Mfg. Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2) ( aff'd per , 3.1 curiam 312 U.' S 600, enf'g as mod . Matter of Westinghouse Electric d Mfg. Co, and United Electrical Radio & Machine Workers of America, etc., 18 N. L. R. B. 300). 83 See Valley Mould and Iron Corporation v. National Labor Relations Board, 116 F. (2d) 760 (C. C. A. 7). - 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD. C. Other alleged interference , restraint,' and coercion The complaint alleged that through February and March, 1942, the respondent. permitted the members of the Independent to solicit for membership in the plant during working hours in violation of company regulations against employees moving about the plant, whereas such a privilege of solicitation was denied the, Union. It was established through various witnesses that a rule prohibiting, employees from moving freely from one plant to another was in existence during this period 34 Kolk testified without contradiction that on numerous occasions he had seen both Reamer and Garwood, who worked in plant No. 2, talking separately to employees in plant No 1. Kolk was working in both plant No. 1 and No. 2 during February and March 1942, inasmuch as he was doing maintenance work. Kolk admitted that he did not hear what Reamer and Garwood were talking about. Edward Hoobler, superintendent of plant No. 1, testified without contra- diction that there was supposed to be no talking among employees-in the plant during working hours, except when talking was absolutely necessary regarding the work, and that on at least two or three occasions he had reprimanded Haller, Kolk and Garwood for talking while away from their places of work to other employees. He further testified that on none of these occasions did he hear the conversation or know what the men were talking about. Hoobler's conduct toward the inen was the same on all occasions, regardless of whether they belonged to, the Union or to the Independent The evidence further reveals that Reamer and Garwood, as well as Kolk, were employees who, during the period in question, were entitled to go from one plant to another in the course of their duties. In view of the foregoing the undersigned finds that the evidence does not substan- tiate the allegation that the respondent permitted solicitation of membership in its plant by the Independent during working hours in February and March,' 1942,. while denying such permission to the Union, and will recommend that the com- plaint be dismissed as to said allegation.35 D. The discharges 'The complaint alleged that Frank Holpuch and Henry Sabbatis were dis- charged on April 14, 1942, because of their membership and activities in the Union and because the respondent wished to discourage membership in the Union and encourage membership in the Independent. In its answer the re- sl'ondent alleged that both men were discharged for cause. 8t The respondent operated two plants during 1941 and 1942 known as plant No 1 and plant No 2: In conformity with requirements of the Cleveland Ordnance Department, employees engaged in work in plant No 1 were required to wear a certain colored 'button so that they could be spotted if they were in plant No. 2 for any reason ; likewise, employees in p ant No 2 wore a different colored button so they could be readily spotted in plant No. 1. Employees doing maintenance work were permitted to work in either plant. 333 In addition to the above, the undersigned also finds that several other allegations of the complaint setting forth violations of Section 8 (1) of the Act are not supported by the evidence . The evidence adduced concerning these alleged unfair labor practices is set forth in Section III D, infra . These allegations are in substance as follows : On or about March 18, 1042, L W. Morgan ,' personnel manager, questioned Frank Holpuch about his union sym- pathies and whether he would be satisfied with a company union ; on or about March 28, 1942, Jesse Kephait, a supervisor , violently abused Frank Holpuch with profane language; and on or about April 4, 1942, Earl Biederman , a supervisor, transferred Frank Holpuch to an inferior position . As noted in Section III A, supra, the undersigned does not find that Buchm 's statement to Haller or his assault upon Haller was a violation of Section 8 (1) of the Act as the-Board alleged. Consequently, the undersigned will likewise recom- mend that the complaint be dismissed with respect to all of these allegations. THEW YODEIR COMPANY ^ 581 Frank Holpuch, first worked for the respondent from August 27 to September 2, 1941 . He then quit his job. He again sought work at the respondent's ,plant on March 18, 1942, and worked there until April 14, 1942, the date of -his discharge. When Holpuch applied for work he was interviewed by L. W. Morgan, per- sonnel manager. He testified that Morgan asked him if he had belonged to any organization at the Republic Steel Company, where he had previously worked, l 'and that when he replied that he had belonged to a union'at Republic, but no longer belonged-to it, Morgan said to him , "Well, we have a lot (of union trouble here. We have a company' union, how would you like a company union?" Holpuch replied that he would like a company union if it was not just like the one they had at the plant when he had previously worked there. He further testified that after he had made this reply Morgan then stated to him they were going to give him' a "break" and would pay him a nickel an hour more than any other man on the same job. Morgan denied that he asked Holpuch what labor organization he belonged to or that he cffered him more pay than other men doing similar work.36 From his observation of the witnesses and in view of the fact that Holpuch's testimony was not plausible in respect to certain incidents, -the undersigned credits Morgan's denial of the above conversation 3' Holpuch did not join the Union nor did he engage in any union activities while employed by the respondent. One day, however, after he had been work- ing there about two weeks he picked up a sheet of paper which was'lying on the bench in the plant. This sheet of paper contained a song about the Inde- pendent which had been circulated by the Union. He showed this paper to Charles Waters, another employee. Following this incident, according to Holpuch, he did not get along with Jesse Kephart, his foreman. He testified that Kephart called him "the dirtiest names out" 'and told him 'he was not worth a nickel and that' he ought to be with Hitler. Kephart, who was foreman of the labor gang, testified that Holpuch was employed in the labor gang in part in moving machinery and driving a truck and for the most part at sweeping the floor, and that as his period of employ- ment progressed Holpuch became, less efficient at his work, so that he had to show him how to perform his duties Kephart stated that he had an argument with Holpuch on one occasion when the latter informed him that he should be getting a dollar an hour. Kephart told him he was not worth 10 cents an hour. 'He denied that he used abusive or profane language toward Holpuch. There is no evidence that Kephart believed that Holpuch was in any way connected with the Union or opposed to the Independent or that the song incident was brought to his attention. Assuming, arguendo, that Kephart used abusive, language to- ward Holpuch, there is no evidence that this was because of the latter' s union membership or activities. Saturday, March 28, 1942, Kephart sent Holpuch out to burn some trash. He stayed away from his work about 20 minutes. While he was at the incinerator, Superintendent Hoobler noticed Holpuch standing there and complained to Kephart, whereupon Kephart went out and brought Holpuch back to his work. Thereafter Holpuch was transferred to the department of Foreman Biederman, where he worked for a week or 10 days at the same type of work, sweeping the floors and general labor work, that he had performed for 80 On his application for employment , Holpuch was asked to list organizations to which he belonged "( other than labor )". The word "None" appears after this'question. 87 It is particularly incredible that Morgan should have ' offered Holpuch, an employee who had previously worked for only 6 days for the respondent, 5 cents more an hour than the rate paid older and regular employees for the same work. 582 DECISIONS OF -NATIONAL "L'ABO'R' RELATIONS BOARD Kephart 98 On several' occasions Biederman reprimanded Holpuch for loafing on the job and failing to make the department look neat. Holpuch complained that there was too much work to do. Shortly thereafter, Biederman informed Hoobler that he would be unable to keep Holpuch because the latter could not handle the work. Hoobler agreed that Holpuch should be discharged. Bieder- man then informed Holpuch that he would have to discharge him becauses• he ,was unable to do the work. On Holpuch's employment record there appears the following entry opposite the date April 14, 1942: "not adaptable to our type of ,work." The undersigned is of the opinion and finds that Holpuch was not dis- charged because of his union activities or in order to assist the Independent. Henry Sabbatis was employed on September 15, 1941, and first worked on the day shift in the assembly department stockroom under Foreman Biederman. . Some time in October, Sabbatis requested,and was given an opportunity to work -on the assembly floor. After about 2 weeks, he was shifted to the stockroom on the night shift at the request of Foreman Miller, who needed a stock clerk. Shortly before his discharge on April 14, 1642, he was again transferred to the day shift in the stockroom working under Foreman Biederman. Sabbatis was a member of the Union during his entire period of employment. On,April 1, 1942, he was wearing his union button on the occasion of his conversa- tion with Foreman Miller, at which time the latter asked him how he was going to vote in the election and Sabbatis, replied be was going to vote for the C. I. 0., whereupon Miller accused Sabbatis of "double crossing" the company. Otherwise Sabbatis was not particularly active in the Union. Biederman and Miller both complained to Sabbatis on numerous occasions about his work. Biederman complained to Sabbatis that he was talking too much to other employees and that he was absenting himself from the stockroom more than he should in order to do the work outside the stockroom which was necessary for . him to do. On the first night that he worked for Miller, the latter found Sabbatis, ,asleep in the stockroom, and again on a later occasion Miller found him asleep when he was supposed to be on duty. Biederman finally reported to Hoobler that he had given Sabbatis various opportunities to settle down and do the work of which he was convinced Sabbatis was capable, but that Sabbatis would not apply himself to his work. Biederman then requested Hoobler's permission to discharge Sabbatis. Sabbatis was discharged by Biederman and not by Miller, whom the undersigned has found made anti-union remarks to Sabbatis. Sabbatis admitted that he had been caught sleeping on two occasions while working under Miller and had been late returning from lunch on several occasions while working under Biederman. Under these circumstances, the undersigned is convinced and finds that Sabbatis was discharged for cause. Inasmuch as the undersigned has found the respondent did,not discriminate in respect to the hire and tenure of employment of Frank Holpiich and Henry Sab- batis the undersigned will recommend that the complaint be dismissed as to these employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above occurring in con- nection with the operations of the respondent described in Section I above, have a sa There is no evidence to substantiate the allegation that on or about April 4, 1942, Biederman transferred Holpuch from his usual employment to sweeping floors, moving machinery and replacing stock because of his union membership or activity, or that Bieder- man knew about the song incident, the only activity engaged in by Holpuch connected , in any way with the Union.. Furthermore, the work performed by Holpuch after his transfer was no different from that which he had previously done. THE YODEiR COMPANY 583 close, intimate, and substantial relation 'to trade, traffic, and commerce ainorig 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 un- 'dersigned, will recommend that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. The undersigned has found that the respondent dominated and interfered with the administration of the Association. Because of its previous disestablishment at the request of the Board, the undersigned will not recommend that any further notice of disestablishment be posted. The undersigned has also found that the respondent dominated and interfered with the formation and administration of the Independent. The undersigned further finds that the effects and consequences of the respondent's domination and interference with the Independent constitute a continuing obstacle to the free exercise by its employees of the right to self- organization and to bargain collectively through representatives of their own choosing. The Independent was created and it has been utilized by the respond- ent as an instrumentality to defeat the rights of its employees under the Act. For these reasons the Independent is incapable'of serving the respondent's employees as a genuine collective bargaining agency. Accordingly, the undersigned will recommend that the respondent disestablish and withold all recognition from the independent as the representative of.any of its employees for the purposes of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment." Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, Local #735 (CIO) and Independent Welfare Association, Inc., are labor organizations, and the Yoder Company Employees Association was a labor organization, within the ,meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the administration of the Yoder Com- pany Employees Association the respondent has engaged,in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act., 3. By dominating and interfering with the formation and administration of Independent Welfare Association, Inc, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 4. 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. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 6. The respondent has not engaged in unfair labor practices within the meaning of Section 8743) of the Act. 7. The respondent has not violated Section 8 (1) of the Act by (a) abusing Frank Holpuch with violent language; (b) transferring him to an inferior posi- tion ; (c) questioning him concerning his union sympathies and whether he would be satisfied with a company union; (d) stating to Haller that soliciation of J9 See N. L. R. B. v. Newport News Shipbuilding and Dry'Dock Company, 308 U. S. 241. ,584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership for the -Union was the only means -by which he could retain his, employment and assaulting him; and (e) permitting the Independent to solicit for membership in the plant through February and March, 1942, and denying this privilege to the Union. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, The Yoder Company, its officers, agents, successors and assigns , shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of the Yoder Company Employees Association , or with the formation and administration of Independent Welfare Association , Inc., or with the formation or administration of any other labor organization of its employees ; (b) 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 bar- gaining, 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 effec- tuate the policies of the Act: (a) Withhold all recognition from Independent Welfare Association , Inc., 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 Inde- pendent Welfare Association , Inc , as such representative ; (b) Post immediately in conspicuous places throughout its plant in Cleveland, Ohio, and maintain for a period of at least sixty ( 60) consecutive clays from the date of posting, notices to its employees stating: '( 1) that the respondent will not engage in the conduct from which it has been recommended that it cease and desist in Paragraph 1 (a) and (b ) of these recommendations ; ( 2) that it will take the affirmative action set forth in Paragraph 2 (a) of these recommenda- tions; and (3) that the respondent 's employees are free to become or remain members of United Electrical , Radio & Machine Workers of America, Local #735 (CIO) ; (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 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 It is further recommended that the complaint be dismissed.as tro Frank Hol- puch, Henry Sabbatis and Louis Wood. It is further recommended that the complaint be dismissed insofar as it alleges that the respondent has violated Section 8 (1) of the Act by (a), abusing Frank Holpuch with violent language; (b) transferring him to an inferior position; (c) questioning him concerning his union sympathies and whether lie would be satisfied with a company union; (d) stating to Haller that solicitation of mem- bership for the Union was the only manner in which he could retain his employ- ment and assaulting him; and (e) permitting the Independent to solicit for mein- l I r THEE YODER COMPANY , 585 bership in the plant through February and March, 1942, and denying this privilege to the Union. 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, 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 pro- ceeding (including rulings upon all motions or objections) as it relies upon, to- gether 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. WEBSTER POWELL, Trial Ewaminer. Dated : October 30, 1942. 1 1