Westinghouse Electric & Manufacturing Co.

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY- and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA,. C. I. O. Case No. C-2505.-Decided March 16, 1943, Jurisdiction : radio equipment manufacturing industry. Unfair Labor Practices In General: activities of individuals held binding upon respondent when their duties were such that employees regarded them as representatives of man- agement ; respondent not chargeable for activities of other individuals where the evidence was insufficient to show that they' occupied supervisory posi- tions at the time they engaged in activities or that employees had just cause to believe that they were acting in behalf of management. Company-Dominated Union: assistance in formation by supervisory employees who took a leading and material part in organization and maintenance;, solici- tationof membership, circulation of petitions for election of officers, and collection of initiation fees and dues on company time and property ; instruc- tions of neutrality found insufficient when given after "inside" union was established and when not given to men of lesser supervisory authority than officially designated assistant foremen ; notice of neutrality, insufficient when posted four months after instructions to officially designated supervisor and after the filing of charges by "outside" union. Remedial Orders : dominated-organization ordered disestablished. DECISION AND ORDER On January 13, 1943, the Trial Examiner issued his 'Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging,in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- firmative action as set forth in the copy of the Intermediate Report annexed hereto.. Thereafter, the respondent filed exceptions to the Intermediate Report and a, brief in support of its exceptions. Oral argument, in which the respondent and the Union participated, was held before the Board on February 16, 1943. The Board has consid- ered the rulings of the Trial Examiner' at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations made by the Trial Examiner, with the exceptions and qualifications noted below : 48 N. L. R. B., No. 16. 72 WESTINGHOUSE ELECTRIC &, MANUFACTURING COMPANY - 73 1. The Trial Examiner found that respondent is chargeable for the activities of Norman Stahl and William J. Klein., We agree and so find. We base our finding as to Stahl not only upon his position' in the assembly department but also upon the fact that for 2 months im- mediately prior thereto Stahl was an interviewer in the industrial re- lations department, a position, which at least the employees, who were formerly interviewed by Stahl and subsequently hired, couldreason- ably regard as analogous to a personnel manager. 2. The Trial Examiner found that respondent is chargeable for the activities of Coombe and Mackert. We do not agree. We are not satisfied from the evidence that Coombe and Mackert occupied, super- visory positions at the time when they engaged in extensive ,pro-Asso- ciation and anti-union activities, or that the employees had just cause to believe that they were acting on behalf of management during that period.. 3. The Trial Examiner rejected respondent's defense of neutrality. We concur with his conclusion. Upon becoming aware of the fact that the Association was being organized, respondent had the duty of instructing all those who might reasonably be regarded by the em- ployees as representing management, to observe strict neutrality and to inform the employees, generally, of its neutral position. This, re- spondent failed to do. It is evident that Wollam called a meeting of certain supervisors on or about June.10, 1942, immediately, after learn- ing of Association activities. At this meeting he warned against per- mitting organizational activities on company time and property and instructed the men to "maintain an absolute neutral attitude on the whole matter." Neither Stahl nor Klein were required to attend this meeting. 'Wollam did not order the supervisors to convey his instruc- tions to persons of lower rank; nor were such instructions, in fact, transmitted to Klein and Stahl or to the employees, generally. Not until October 6, approximately 4 months later, and only after the Association was firmly established, as well as after.the filing of charges by the Union of unfair labor practices and the demand by the Union that respondent notify the employees of its alleged neutral position, was a notice posted, by respondent to that effect. Under these cir- cumstances we do not feel that the unenforced instructions issued by Wollam to certain supervisors that they observe strict neutrality, or the posting of the October notice, served to neutralize the coercive' effects of the anti-union statements and pro-Association activities of Stahl and Klein or to dispel the belief of the employees that they were acting for the management.' _ 1 H J Hein. Co. v N. L. R B, 110 F. (2d) 843, 847 (C C A. 6), aff'd 311 U. S 514; Solvay Process Co. v. N. L R. B., 117 F. (2d) 83 (C C A 5), cert denied, 313 U S 696; N. L. R. B v. Chicago Apparatus Co, 116 F. (2d) 753 (C C. A. 7). 74 DECISIONS OF NATIONAL,LABOR RELATION'S BOARD ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations 'Board hereby orders that the respondent, Westinghouse Electric & Manufacturing Company, Sunbury, Pennsylvania, and its officers,. agents, successors, and assigns, shall: 1. Cease and desist from : (a) Dominating or interfering with the administration of" The Defense Workers Protective Association of Sunbury, Pa., or with the formation or administration of any other labor organization of its employees, and from contributing support to said labor organizations or to any other labor organizations of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of-their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) If it has not yet recognized The Defense Workers Protective Association of Sunbury, Pa., as the representative of its employees for the purpose of dealing with its concerning grievances, labor dis- putes,.wages, rates of pay, hours of employment, or other conditions of employment, refrain from recognizing said The Defense Workers Protective Association of Sunbury, Pa., as such representative for said purpose; or it. there has been such recognition, withdraw all recognition from The Defense Workers Protective Association of Sunbury, Pa., as such representative ; and in either event disestablish The Defense Workers Protective Association of Sunbury, Pa., as such representative; (b) Post immediately in conspicuous places throughout its plant in Sunbury, Pennsylvania, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to, cease and desist in paragraphs 1 (a) and (b) of This Order; (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; . • (c) Notify the Regional Director for the Fourth Region in writing within ten (10). days from the date 'of this Order what steps the respondent has taken to comply herewith. AND, IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent permitted and acquiesced in an assault and,battery WESTINGHOUSE ELECTRIC' & MANUFACTURING COMPANY, 75 upon union employees or upon-Jack Emens, a union organizer, be dismissed. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Geoffrey J. Cunniff, for the Board. Mr. William E. Miller and Mr. Robert D. Blaster, of Pittsburgh, Pa.,.for the respondent. Mr. T. J. Purdy, of Sunbury, Pa., for the Association. STATEMENT OF THE CASE Upon a second amended charge filed on October 23, 1942, by United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations,, herein called the Union, the National Labor Relations Board, herein called the'Boaid, by the Regional Director for the Fourth Region (Phila- delphia, Pennsylvania), issued its complaint dated November 18, 1942, against Westinghouse Electric & Manufacturing 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) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act Copies of the complaint and notice of hearing were duly served upon the respondent, the Union, and The Defense Workers Protective Association of Sunbury, Pa., herein called the Association, a labor organization alleged in the complaint to be dominated by the respondent.' - With respect to the unfair labor practices, the complaint alleged in substance: (1) that from May 1942, the respondent caused to be formed, interfered with, and dominated the formation and administration of the Association, and con- tributed support to it; (2) that thereby and in other specified ways, including threats, interrogations, disparaging statements, and acquiescence in assaults 'upon Union employees and a Union organizer, the respondent interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter the respondent filed an answer admit- ting certain allegations of the complaint, but denying the alleged unfair labor practices. Pursuant to notice, a hearing was held on December'l5, 16, and 17, 1942,2 at Sunbury, Pennsylvania, before Samuel H Jalfee, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. At the beginning of the hearing the Association filed a motion to intervene. Without objection the motion was allowed, and the Association permitted to intervene to the extent of its interests. The Board, the respondent, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. ' The complaint originally described this organization as "Sunbury Defense Workers Association ," and the complaint and notice of hearing weie , seived upon it under the name of "Defense Workers Protective Association." At-the hearing referred to below, the name was, by stipulation of the parties, corrected as above, and it was further stipulated that the name be so amended in 'the 'pleadings and other papers in the case. 2The, hearing had been continued by the Regional Director at the request of the re- spondent. 1 76 DECISIONS, OF, NATIONAL LABOR RELATIONS BOARD .During the hearing, counsel for the Board moved to dismiss specified portions of the complaint There was-no objection and the motions were allowed' At .the close of the hearing, counsel for the Board moved to conform the pleadings to the proof as to such matters as inaccuracies in names, places, and dates. There was no objection and the motion' was allowed At the end of the Board's case, and again at the close of the hearing, counsel for the respondent moved to dismiss the complaint. The motion was denied when. first presented, and ruling reserved when it was thereafter renewed. The motion' is now denied except to the extent, hereinafter indicated. Opportunity was afforded all parties at the conclusion of the hearing to argue orally before and to file briefs with the undersigned. No arguments were made and no briefs filed. Upon the entire record in the case,' and from his observation of the witnesses, the undersigned makes the following: FINDINCS OF PACT I THE BUSINESS OF THE RESPONDENT 5 Westinghouse Electric & Manufacturing Company is a Pennsylvania corpora- tion with several subsidiaries and a number of distributors, dealers, and ware- houses throughout the United States During the year 1941 it did a total business of $369,094,124 71. It operates a plant at Sunbury, Pennsylvania, which is engaged in the manufacture of radio equipment and apparatus. The Sunbury plant commenced production in March 1942. From that time to the date of the hearing herein, over 50 percent of the raw materials used at the Sunbury plant for manufacturing purposes was shipped and transported into the State of Pennsylvania from other States of the United States, and over 50 percent of its finished products were shipped and transported in interstate commerce from the Sunbury plant to, into, and through other States of the United States. The respondent is engaged in interstate commerce within the meaning of the Act. Substantially 100 percent of the production of the Sunbury plant is devoted to the war effort. H. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America is a labor'organization affiliated with the Congress of Industrial Organizations, admitting to membership employees, of the respondent. The Defense Workers Protective Association of Sunbury, Pa, is an unaffiliated labor organization admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The sequence of events About March 1, 1942 6 the respondent opened its plant at Sunbury. About the middle or the latter part of May, organizers of the Union came to Sunbury for 8 The portions so stricken were as follows : Paragraph 5 (c) -that the respondent dis- criminatorily transferred Raymond Jones from the Sunbury plant to its Baltimore plant; paragraph 5 (h)-that it permitted Union buttons to be torn from the apparel of employees ; paragraph 5 (i)-that it refused to adjust a grievance of David Reed, an employee, because Reed was wearing a Union button ; and paragraph 6 (g)-that it accorded the Association the right to present grievances in person while demanding that the Union do so by mail. a On January 2, 1943 , the undersigned entered an Order Correcting Errata in Tran- script of Testimony. 6 The findings under this head are based upon a ' stipulation of the parties at the hearing and the respondent 's answer. ° Since all dates appearing hereinafter were during the year 1942, the year will not be repeated. r WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 77 the purpose of attempting to organize employees in the plant. On the night of May 28 or 29 five employees met at the American Legion Hall in Sunbury and discussed the matter. These five men were William J. Klein, Norman W. Stahl, William J. Mackert, Ellis Fasold, and Franklin Rhoades. Klein was an "instruc- tor" in the sheet metal department. Stahl who up to May 18 had been an "inter- viewer" in the industrial relations department, was employed in the assembly department' The remaining three men were "wiremen" in the assembly de- partment, one of them, Mackert, becoming a group leader on August 10. They decided that in order to keep out the Union they would form the Association s The same day, or the next, they engaged T. J. Purdy, a Sunbury attorney and counsel for the Association in this proceeding, to assist in its formation. It was decided to incorporate the proposed organization. On June 1 an organiza- tion agreement was drafted by Purdy and signed by the five employees named; they also signed an application to register the name of the Association as a non- profit corporation. On June 8 the Sunbury Daily Item, the local newspaper, published a story that employees of the plant had formed the Association ; this story named the five men as incorporators and as constituting the Association's executive committee. `. Gerald Z. Wollam, works manager of the Sunbury plant' testified that this story in the newspaper was the first information, he had about the proposed Association. On June 9, the next day, Purdy wrote to Wollam on behalf of the Association that the employees were organizing a union and applying for a charter. Wollam replied on June 10 stating, among other things, that no agree- ment could be entered into with the Association until it had been certified by the National Labor Relations Board. On June 11 the Association was, legally incorporated. The five organizers had proceeded in the meantime with their organizational efforts. Immediately after they engaged Purdy they caused application blanks for membership in the Association to be printed and, together with other em- ployees whose aid they enlisted, they distributed them. among the employees in the plant, obtained signatures thereto, and collected from each of the signers an initiation fee of one dollar for which they issued receipts 1° From June 1 to about the middle of the month more than 100 employees signed up Many if not most of the signatures were obtained in the plant during working hours. Thus, Klein so solicited Francis J. Maloney and the latter, at his request, solicited six or seven others in the machine shop, obtained their signatures, and turned over the blanks so signed,to Klein, all during working hours. Other of the organ- izers similarly solicited other employees in the plant during working hours, ob- tained their signatures, collected initiation fees, and issued receipts. Several new employees were hired by the company at this time and they were immedi- ately solicited to join the Association. Thus, the same day that employees George H. Springer and Martin G. Conrad began to work for the respondent, Stahl approached them, solicited their' membership, and received from them signed applications and the initiation fees. This was done in the plant during working hours.11 ' The nature of Stahl's work and his relationship to the employees is discussed herein- - after. 8 The findings as to what occurred at this meeting are based upon the testimony of Klein. None of the other four men took the witness stand o Wollam is the highest ranking official of the respondent at this plant. to Later, monthly dues were collected, largely in the plant. a The findings as to the time, place, and manner of these activities are based primarily upon the testimony of several 'employees who were so solicited. This testimony was almost entirely uncontradicted, and much of it conceded by Klein. 78 - ' DECISIONS OF NATIONAL LABOR RELATIONS, BOARD Beginning with approximately June 12, the five incorporators-executive com- mittee members , assisted substantially by several , employees whom they asked for aid, distributed "nominating petitions" asking an expression of opinion "as to the proper persons for the various offices to be elected in the general election of the Association on June 24th, 1942..." Many if not most of the petitions were circulated in the plant during working hours" - The five-man temporary executive committee had, in the meantime, been increased by two, the five original members having added, on June. 11, Frank Coombe, who was in charge of the tool crib, and another employee named A. Hullehan. On June 17 the enlarged committee met in Attorney Purdy's office, and listed on the election ballot as nominees for each office the two persons receiving the highest number of votes therefor., These nominees were as fol- lows : for president-Klein and Coombe ; for vice president-Stahl and Mackert ; for secretary-Robert Seward and William Gass'; for treasurer-Fasold and ,Emery Hatrick. There were also nominees for positions on the executive committee. On the night of June 24 the elections were duly held at a meeting held in the local Y. M. C. A. Klein was, elected president, Stahl vice president, Seward secretary, and Fasold treasurer. These persons were ex officio members of the executive committee; in addition five other persons were elected to the committee, two of whom were Rhoades, one of the original group of five men, and Hullehan, a member of the enlarged temporary executive committee." In the meantime, the fact that the Association was apparently engaging in or- ganizational work in the plant came to the attention of Works Manager Wollam. Between June 10 and June 15 one-of the plant policemen handed an Association application card to John C. Mansfield, captain of the plant police and, according to Mansfield's testimony, told him that "they" were "forming an association in the plant." Mansfield immediately conveyed the information to Wollam and showed him the application. Wollam testified that Mansfield then asked him what he (Mansfield) should instruct the officers under him. He testified that -he replied, "that we had nothing to do with that and he, as a member of management, had nothing to do with the [application] form." "I explained to him" added Wollam, "what the company policy was regarding neutrality in organization and that we dared not tolerate solicitation of membership on company property during working hours." Later the same day, Wollam called a'meeting in his office, of about 12 or 15, persons whom he described in his testimony as "all the supervisors having any responsibility in the plant." These persons consisted of the head of the indus- trial relations department, the head of the plant police, the head of the pay-rolt department, a man in charge of time study, and perhaps two or three others not directly connected with production. The production "supervisors having -any- responsibility in the plant" who were present consisted of three foremen and 12 Klein testified that be could not deny that some of them were passed around during working hours . He also testified that he could not recall any difference In the manner of distubution as between the applications and the nominating blanks, but that they were both distributed "Very near the same way . . . 13 Subsequently , on July 1 , Stahl resigned as vice president on the ground that since he had been employed by the respondent as an interviewer in the industrial relations department , and as such had been engaged in the process of hiring men, he should with- draw Klein testified without contradiction, however, and the undersigned finds, that Stahl nevertheless remained as a member of the - executive committee and functioned with the officers Still later, about October 1, Stahl resigned from the Association , and was designated an assistant foreman later the same month Upon Stahl's resignation as vice president, Mackert apparently took his place in that position Employee Conrad testified that Klein stated at a meeting of the Association on July 1 that Stahl was withdrawing to the person receiving "the next highest number of votes"-Mackert. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 79 three assistant foremen No one below the grade of assistant foreman was present. Wollam told this group that Captain Mansfield had brought him the Association application blank ; that "apparently the organization work had started in the plant"; that it was "against company rules and company policy to have any organization work in the plant during working hours and that'it should not be tolerated by any of the supervisors" '. . that they had to "maintain an absolute neutral attitude on the whole matter" and not to "advise the people concerning it." la But though foreman and assistant foremen were so instructed, it is clear that men of lesser rank, such as instructors, group leaders, and others, were not. Nor, until many weeks later, were the employees as a whole informed by the respondent of the "policy" indicated at the meeting in Wollam's office.15 Indeed, it was not until October 6, long after the Association was established and had very substantially increased its membership," that any such information was conveyed to the employees generally. On that date, and only after the Union had requested the respondent to post such a statement, did the respondent post such a notice upon its bulletin boards. This October 6 notice recited that the management "has maintained in the past, and will continue to maintain, a neutral attitude toward all labor, organizing activities. Consistent with this statement of Com- pany policy and under the.terms of the National Labor Relations Act, organizing activities on Company property during working hours are not permitted." The notice was signed by Wollam." But Association activities on the job had been permitted prior to the posting of the notice, and they continued thereafter, despite the notice. As has been seen, activities of this kind were extensively engaged in beginning about June 1, at the time the Association was in process of formation. It did not abate thereafter. Many of those who were leaders in the formation of the Association, and other persons, continued to solicit for it on the job, and in connection therewith made numerous anti-Union and pro-Association statements and otherwise indicated an anti-Union and pro-Association attitude. In addition, dues continued to be col- lected in the plant during working hours, principally by Mackert. Examples of incidents which took place both before and after the posting of the October 6 notice will now be given. About August 1, William Trawitz, described by employee Frederick A. Miller as a group leader in the "prepare-for-test" department, told a group of four employees in that department, including Miller, that it would be a "good thing" if they joined the Association in order to keep the Union out ; that if the Union was kept out the respondent would stay permanently in Sunbury, but that other- wise it would close its plant and move back to Baltimore."' _ " The findings as to who was present and what, was said at this meeting are based upon the testimony of Wollam and Mansfield. 11 There was one exception : Mansfield did instruct the officers under him on the subject. In,addition , some employees testified in substance that they understood that solicitation during working hqurs was against company rules i There is , however, no evidence that they were told that supervisors were "not to advise" the employees concerning unions and otherwise maintain "neutrality in organization." iS Klein testified that at the time of the hearing the Association had a membership of approximately 500. This was a majority of the employees. "Late in June, or in July , Klein had asked Wollam for the use of the bulletin board on behalf of ,the Association . Wollam replied in substance that under the Act the Asso- ciation was not entitled to use the bulletin board until after it had been certified by the Board 18 The finding as to the conversation is based upon Miller's undenied testimony . Whether Trawitz was in fact a group leader at this time is discussed hereinafter. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Frank Coombe spoke similarly on the job to other employees. On August 20 he indicated to George H. Springer that Springer might lose his job for having joined the Union the night before. In September he indicated the same to William A. Mock, who had also joined the Uniona° On August 14, Francis J. Maloney, who had a short time before joined the Union, was discharged by Wollam. The Union accordingly' filed a charge that Maloney had been discharged in violation of the,Act. This controversy was thereafter settled, as a result of which Maloney was reinstated on September 28 with full back pay. On the morning of Maloney's return to work, a day or two thereafter, Klein caused to be distributed in various portions of the plant during working hours printed leaflets derogatory to the Union and to Maloney as a member." One day in October, after the posting of the neutrality notice on October 6,' employee Frederick A Miller handed some Union applications to Organizer Jack Emens in front of the plant during the noon.hour. Frank Coombe'saw him, do this. That afternoon Coombe called Miller from his work and told Miller in substance that Miller did not care if he lost his job Organizational work on behalf of the Union had proceeded in the meantime, and there was some solicitation on behalf of the Union in the plant, some of it during working hours It is clear, however, that by this time the Association had been well established In contrast with the treatment of the Association in connection with'such activities, those who joined or solicited for the Union even outside the plant were warned of discharge. The next day after the notice was posted on October 6, Norman Stahl, who had resigned from the Association but a few days before and who was shortly officially designated as assistant fore- man,21 called employee Springer over to him and said, "I hear the bad news about you . . . I hear you are talking C. I. 0." Springer said, "That is right." Stahl replied, "I warned you before about that." As a matter of fact no such warning had been given, and Springer denied receiving one. Springer then added, "I don't think I can afford being out of a job, it means a whole lot to me right now." Stahl responded, "Well, I don't know. I will give you a certain length of time to think it over." 22 ' It is alleged in'the complaint that on or about July 31 the respondent per- mitted and acquiesced in an aggravated assault and battery upon Jack Emens, a Union organizer, for the purpose of discouraging membership in the Union 10 These findings are based upon the undenled testimony of Springer and Mock respec- tively Coombe did not testify 20 Klein admitted at the hearing that he handed several of the leaflets to an employee named Moeller "I thought they here pretty good," testified Klein, "and be [Moeller) should hand them around a little " When asked where be expected Moeller to distiibute them, Klein testified "In the plant or show them to the boys " The leaflets bore the printed signature "A MEMBER Sunbury Defense Workers Association, Sunbury, Pa." Klein insisted that he did not know who drafted the leaflets, or the identity of the member referred to, and that lie could not remember from whom he had obtained them From the evasive and contradictory nature of Klein's testimony on this subject and his demeanor while testifying as to the source of the leaflets , it is clear that Klein was aware of where the leaflets of iginated, who had drafted them, and how, they were distiibuted '21 His status before that time, as found hereinafter , was such that employees would reasonably believe thathe was acting for management. 22 The finding as to the conversation between Stahl and Springer is based upon the latter's undenied testimony. Stahl did not testify. Springer further testified that he then regarded Stahl as an assistant foreman That he was in fact such , is further sup- ported by the testimony of Maloney that on his reinstatement , Foreman Carter and Stahl handed him his identification badge and pass, and that Stahl warned him not to talk about the Union in the plant, or allow anyone else to do so; Maloney testified that Stahl was then assistant foreman. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 81 and encouraging membership in the Association . At the time of the hearing, Emens was a member of the armed forces of the United States and did not testify. The testimony of employee Martin J. Conrad, a member of the Union, tends to indicate that immediately before working hours on that day Klein had all argu- ment with Emens on the sidewalk in front of the main plant gate while Emens was distributing Union literature ; that immediately thereafter Klein went into the plant, and that immediately after Klein did so, Preston Tolbert, an employee, together with another employee and Frank Coombe, came out of the plant and assaulted Emens on the sidewalk and in the street in front of the plant. Tolbert's testimony on the other hand, if believed , would support a finding that Emens himself began the fight after Emens had made a derogatory statement concern- ing Tolbert's race (Tolbert was colored), and that Coombe joined in the fight a few moments thereafter. Klein admitted the argument with Emens but denied inciting the other participants or that he had any knowledge of the matter until some minutes after the fight was over Some of the testimony introduced in support of Tolbert's version of the affair is suspicious, that of Malone, a guard at the gate, being indeed highly incredible. Nevertheless, the evidence as a whole fails to support the allegation of the complaint that the respondent "permitted" or "acquiesced" in the assault, or that it should be held responsible therefor. B. Concluding findings It has been found hereinabove, that certain men, such as Stahl, Klein, Coombe, and others, played a leading or material part-in bringing the Association into being, in maintaining it thereafter, and in related anti-Union conduct. Obviously, if the respondent is chargeable for this conduct of these men, the allegation that the respondent violated the Act as to the Association must be sustained. It is now well established that responsibility of an employer for such activities does not necessarily require their authorization or instigation, or the application of any of the usual rules of respondeat supercor.?z It is sufficient if they reasonably seem to be representatives of management in 1the eyes of the non-supervisory employees in the commission of such acts 24 It is necessary, therefore, to consider the positions of Stahl,,-Klein, Coombe, and others in the plant, and their relation- ship to the employees as a whole. Certain more general observations should first be noted. - Group leaders are eligible for membership not only in the Association, but in the Union as well, and the Union concedes that there are group leaders among its membership. It is well settled, however, that eligibility for membership in a labor organization, or membership therein, does not permit employees for whose 23 In International Association of Machinists v N L, R B , 311 U S 72 , the Supreme Court said "The employer . . . may be held to have assisted the foimation of a union even though the acts of the so-called agents were not expressly authorized or might not be attributable to him on strict application of the rules of respondeat superior. We are dealing here, not with private rights . . . nor with technical concepts pertinent to an employer's legal responsibility to third peisons for acts of his servants , but with a clear legislative policy to fiee the collective bargaining piocess from all taint ' of an employer's compulsion , domination , or influence The existence of that interference must be deter- mined by careful scrutiny of all the factors , often subtle, which restrain the employee's choice and for which the employer may fairly be said to be responsible Thus, where the employees would have just cause to believe that solicitors professedly for a labor organization were acting for or on behalf of the management , the Board would be justified in concluding that they did not have the complete and unhampered freedom of choice which the Act contemplates " - See also N. L R B v Link -Belt Co , 311 U S 584. 14 Ibid , and see H J Heinz Co v. N. L R B , 311 U S. 514, 520-21. ,82 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD conduct an employer is otherwise chargeable to interfere with; restrain, or-coerce non•supervisory employees in union activities.25 - So far' as the instructions concerning neutrality given by Wollam in his office about the middle of June are concerned, it is to be noted that (1) there were given after the Association had already been established; (2) they were not given to men of lesser supervisory authority than officials designated assistant foremen ; and (3) they were not made known to the employees at large until many weeks thereafter. Under these circumstances, and particularly where there- had been an absence of neutrality in the past, and the instructions were and continued to be violated, this is no defense.28 The Sunbury plant consists of approximately 10 buildings. Wollam testified that production takes place in all except two. There are about eight production de- partments, ,which contain by far most of the employees in the plant. The number of employees has steadily increased since production began in March. At the time of the hearing there were well over 500.27 During most of the time involved in the incidents which have been related, there were under Wollam as works manager, three persons designated as foremen, and three as assistant foremen., One or more of the foremen were in charge of several departments. And since there were but three assistant foremen; the same was also true of them. This tends,to support an inference that there was some intermediate point of supervision between the assistant foremen and the rank and file. - Plainly, the fact that a person has been vested by the employer with authority over other employees is a significant (though not the only) circumstance in determining whether the employees would reasonably regard his actions as those of the employer. By vesting an employee with authority over his fellows, the employer, in greater or less degree according to the authority conferred, lends his dwn prestige to the employee's actions in the eyes of the employees as a whole and strongly suggests that his power stands- behind such actions. We now consider whether, in what ithey did as found herein, Stahl, Klein, Coombe, and others, would reasonably be regarded by the employees as acting for management. Norman Stahl was first engaged on March 19 as' an interviewer in the in- dustrial relations department, and remained as such to May 18 when he was transferred to the assembly department. As an interviewer (he was apparently the only regular one until his transfer), he interviewed applicants for employ- ment. During the two months he held this position he interviewed a large -number of persons whom the respondent employed. Many of those solicited to join the Association by Stahl and others, or to whom pro-Association or anti- Union statements were made, had originally -been interviewed by Stahl and then hired. Stahl's transfer to the assembly department changed him from a salaried employee to an hourly-paid employee. On October 19, he was officially designated an assistant foreman in the assembly department and, as such, was again placed on salary. The respondent's personnel card covering Stahl's employment does not list him as having exercised supervisory authority during the period from May 18, 25 N. L R B. V. Pacific Gas & Electric Co, 118 F. (2d) 780, 787-88 (C. C. A. 9). See also N. L . R. B..v. Christian Board of Publication , 113 F. (2d) 678 (C. C. A. 8), and Matter of Decatur Iron d Steel Company, etc , 29 N L R B 1044 20 Humble Oil & Refining Co. v. N. L. R. B.`, 113 F. (2d) 85, 92 (C. C. A. 5) ; N L. R.,B. v. Whittier Mills Co., 111 F. (2d) 474 (C. C.• A. 5) ; Swift &,Co. v. N. L. R. B., 106 F. (2d) 87, 99 (C C. A 10). 21 Wollam testified that the exact number was a military secret. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 83 when he was transferred to the assembly department, to October 19, when he was designated assistant foreman. Yet there is abundant uncontradicted and credible evidence that he did exercise such authority during this period, and that employees regarded him as a foreman, assistant foreman, or "boss." Thus, employee Samuel L Bilger, who was hired on June 1, and put to work in the assembly department, testified that Stahl was his boss, that Stahl gave him jobs to do. Employee George H Springer, employed in the same department, regarded Stahl as an assistant foreman during this period. On June 10, when Springer was hired and put to work, Stahl went to Springer's group leader, Red Dougherty and, as Springer testified, told Dougherty that he needed "a new man on panels" and "I want this fellow," referring to Springer. Springer accordingly went to work on the panels. Employee Marlin G. Conrad also testified that he regarded Stahl as a foreman or boss. • Conrad had been hired on June 15, and he and -several other new men were taken to the assembly department, where Stahl assigned them to their work s Stahl did not testify at the hearing, nor did anyone else contradict the testi- mony of these employees, or testify that other employees did not regard Stahl as a foreman, assistant foreman, or boss Indeed, that Stahl regarded himself as having supervisory authority during -this period, is indicated in the uncontra- dicted testimony of Conrad that immediately after Stahl, on June 15, solicited his membership in the Association, Stahl handed several Association application cards to an employee named William Levan and told the latter to distribute them since he (Stahl) did not dare to. Stahl's resignation as vice president of the Association 'on July 1, is significant in this connection. It is also indicated in Stahl's thinly-veiled threat, to Springer on October 7, to discharge him allegedly' for "talking C..I 0." As stated hereinabove, Stahl's personnel card does not show that Stahl acted as supervisor from May 18 to October 19. Counsel for the respondent apparently rely heavily upon this circumstance, and upon similar circumstances in the cases of other persons whose status is in dispute,- and concerning whom some dis- cussion is to follow: But it is not Stahl's official title at a particular time or during 'a particular period which is decisive, but what he was in fact, especially in the minds of the employees as a whole That`the personnel cards of Stahl and others do not accurately reflect the situation in this respect is, aside from, the testimony of various employees to the contrary, supported by the fact that the number of employees in the plant rapidly expanded, and that additional supervisors were undoubtedly needed from time to time, since it is fairly obvious that the three foremen and the three assistant foremen could not, by themselves, adequately supervise the numerous employees tinder them, spread over several departments as they were ' Stahl's official designation as an assistant foreman on the personnel card on October 19 was merely formal, though belated, recognition of a fact. which had existed for several months, a type of circumstance which applies to others in addition to Stahl The respondent is chargeable for his activities as found hereinabove William J Klein was"hired by the respondent on April 16 as an "instructor" in the sheet metal department where he was still employed, under that title, at the time of the hearing. As such. he instructs,the men in the department, includ- ing the group leaders, as to their work. He also supervises the setting up of the work and inspects it to see that it is done properly. The number of employees in the department has gradually increased from 5 to 26. In addition, as Klein 28 The testimony of-l3ilger, Springer, and Conrad, indicated above, is accepted by the tindersiened as true. As already found, it was Stahl who solicited these men to join the Association. 621247-43-vol. 48--7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified, "there was men sent for a day or two to do odd jobs when their depart- ment would become slack and their foreman asked me to take care of them to try to put them on something so that they wouldn't be sent home." Klein. is paid $1.151/2 cents per hour, much more than the rest of the men in the department including the group leaders themselves. While a portion of his time is spent at manual labor, most of it is spent otherwise. Klein testified that his boss was Carter, who "has general authority over" five departments including the sheet metal shop. When asked who was in charge of the sheet metal shop when Carter was not there, Klein answered that "Just now, it is Mr. Mesarocco, assistant foreman." He added that in May "the supervisor and the instructor had charge of that." Klein was then asked : "That was you, wasn't it?" He answered : "Yes, sir." Through the month of June, if not later, there were no group leaders in the department, the number of em- ployees therein at that time being about 10. Later, as production increased, ad- ditional employees were added, and group leaders were taken on. Until this happened, Klein was the only employee in the department who did not continu- ously engage in manual labor. Mesarocco was not made assistant foreman in the department until about a month before the hearing, according to Klein's own testimony. Unlike the other men in the department, including the group leaders, who must secure permission from the foreman to go into other departments, Klein has access to the entire plant 26 In this respect, he is on a footing with assist- ant foremen and persons of higher authority, who need not secure advance permission. While this is because Klein's work takes him to other departments, it is nevertheless a material circumstance in the determination of the question as to how the employees would reasonably regard him. Klein has no' power to hire, but neither do the assistant foremen have that power, and it is conceded that the latter are part of management. Nor does he have the power to discharge ; the assistant foremen, as well, have no such power, though they make recommendations in this respect. Employees Corson and Miller testified that they were under the impression .that Klein was foreman of the sheet metal shop. Klein denied that he was. Klein was evasive and contradictory in his testimony, as the record itself makes readily apparent. Wollam testified that he did not consider instructors part of management or the supervisory force. He conceded that persons whom manage- ment regards as supervisors, and those whom employees so regard, are not always the same. He agreed that there was more uncertainty on the part of employees as to just. who was a supervisor, when the employees were newly hired. And he testified that it was "obvious" that this would be more so in the case of a rapidly expanding industry where the employees increased in large numbers in a short period of time. All this, as has been found, applied to the respondent's plant at Sunbury. Finally, no employee took the stand to testify that Klein was not regarded as a supervisor. The undersigned finds that on all the evidence the respondent is chargeable for the activities of William J. Klein, the president of the Association, as found herein. Frank Coombe was hired by the respondent on May 4 and placed in charge of the tool crib. The tool crib is the only one in the plant, and it services all its production departments. At the outset, Coombe had no assistants, but shortly after he began an assistant was assigned to him. By the end of July there 29 This finding is based on Klein's testimony , though Wollam contradicted him on the point. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 85 were two or three men assisting him. By the time of the hearing the work had grown, as Wollam testified, to be a "six-man Job " As the plant expanded, the number of tools in the crib increased correspondingly. In addition to being in charge of the assistants (or "attendants") in the tool crib, Coombe is respon- sible for the records of and the requisitioning of tools therefor. Up to November 2, Coombe was listed on his personnel card as a "Tool crib attdt [attendadt]," though, as has been seen, there were assistants under him. Arid, up to November 2, he still retained that official designation on the card although the card itself shows that beginning with September 7 he was paid an additional five cents per hour for "Ex. Supr. [extra supervision]". On Novem- ber 2 his designation was changed to "Tool room keeper." He had in fact always been the "keeper." That Coombe was in fact regarded by employees as having supervisory authority is indicated in the uncontradicted testimony, for instance, of employees Springer and Miller, who testified in substance that he was regarded or called an assistant foreman, or group leader, or supervisor in charge of tie crib. No employee testified to the contrary. Coombe's designation as "keeper" on Novem- ber 2 was but,the formal confirmation, of a fact which had existed for some' time 30 Moreover, the activities of Coombe in connection with the formation of the Association and thereafter, naturally tended to impress in the minds of the employees generally that in what he did for the Association and against the Union he was acting for management. Coombe actively associated himself with such men as Klein, Stahl, and others on behalf of the Association, men whose status and activities were such, as found hereinabove, that the respondent is chargeable for what they did. This, association, especially with Klein, in the plant during the Association's formative period, was particularly extensive. And the testimony is uncontradicted that on numerous, occasions. spread over many weeks thereafter, Coombe was seen to confer with Klein, Mackert, Thomas Nicholas (a group leader at least from September 7); and Pluckert, head of the respondent's industrial relations department, or some of them, in the-plant daring working hours and under such circumstances that employees would rea- sonably be led to believe that they were conferring on Association matters. This latter finding is based upon the sum of several circumstances: (1) the large number of these conferences tended to support the impression that they were unrelated to the work; (2) many of them were held away from the tool crib, thus supporting the impression that they were unrelated to Coombe's work; (3) on several occasions they were followed by Coombe's threats to employees of discharge because of their Union membership m This last circumstance is of especial significance, even aside from its timing, for not only does it tend to sup- port the finding that Coombe was in fact possessed of supervisory authority, but that he and the employees so regarded the situation ; in making such threats, moreover, Coombe enlisted the prestige of the respondent against the Union and in favor of the Association. ' 'Finally, since men found herein to be possessed of substantial supervisory au- thority and whose activities were such as to bind the respondent were aware of the nature of Coombe's activities as herein found, the respondent in turn is, also 80 As 'Indicating that,respondent.s,personnel cards were not timely, in this respect, note also'.the similar ,situation with respect to Stahl, as found hereinabove. As- to Coombe, (it may be added that Wollam testified that he became a group leader on September 7 over three attendants. "Note Coombe's statements to employees Springer and Mock, page 6, sups a. 86 DECISIONS OF. NATIONAL LABOR RELATION'S BOARD chargeable with such knowledge, and responsible for Coombe's conduct, and this is true even on common law principles of agency both by virtue of the fact that they had enlisted his-aid, and that they thereafter did not disaffirm it. Group leaders are in immediate charge of groups of men varying in number from 5 or 6 to as many as approximately 26 In the smallest groups he spends as much as 60 percent of his time doing the same kind of work as the other men in the group. In the larger groups he spends as little as five percent or less on - such work. Group leaders assign the work to the men in the group, check on materials, tools, and specifications, and distribute them. , He is initially re- sponsible for the quality -and quantity of the work done by- the, group-as a whole. He confers often 'with the foreman or assistant foreman in charge of the depart- ment as to such matters. If workers in the group do not do their work properly it is his duty to inform the foreman. While he has no power of transfer from one group to another, he may and does recommend that men be transferred out of his group, or that men be added to his group, and he has the power himself to transfer men from one job within, the group to another Since this latter power, especially, may result in an increase or a decrease in pay to,a particular employee, it is important to the latter to keep in the good graces of the group leader. The employees turn in their time to the group leader, who reports it weekly to the timekeeper and payroll department. The group leader is paid 6 cents per hour more than the other group members. This additional payment is listed on the personnel cards of the group leaders as having been made as "extra" for "supervision."'-' The group leaders are reasonably regarded- by the employees as acting on behalf of management. William J. Mackert was a group leader by August 10, if not before. While such, he was particularly active in collecting dues for the Association in the plant during working hours. According to the respondent's personnel record, William R. Trawitz became a group-leader on October 5 About August 1, as found hereinabove, he had made a pro-Association and anti-Union statement to several employees Despite the inadequacy of the respondent's records, already indicated, the undersigned is not satisfied that Trawitz was in fact a group leader, or acting as one, in August, notwithstanding the testimony of Miller, one of the employees involved. The statement may have been made later than the date Miller gave in' his testimony, but it would be merely speculative to con- clude that Miller was wrong by more than 2 months Thus, while the respondent is properly chargeable for âIackert's activities, it is not to be held responsible for the statement by Trawitz. As indicated in the discussion of Coombe, however, it does not follow that the respondent is chargeable for the activities of supervisory employees only. In the process of forming the Association, and thereafter, such men as Stahl, Klein, and group leaders worked with or availed themselves of the services of certain non-supervisory employees in circulating Association application blanks, nomi- nating petitions, in collecting initiation fees and dues, and in similar and related activities. The respondent is responsible for their conduct as well. The undersigned finds that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support thereto. By such conduct, and by the anti-Union statements and threats herein- above found, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. "Klein testified in substance that he considered the group leaders in charge. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 87' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent' described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to ]abor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain af[irmatiN e action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the respondent dominated and interfered with the forma- tion and administration of the Association and contributed support to it. Accord- ingly, if the respondent has not yet recognized the Association as the representa- tive of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, it is hereinafter recommended that the respondent refrain from recognizing the Association for said purpose ; if, on the other hand, such recogni- tion has been accorded, it is hereinafter recommended that the respondent with- draw all recognition from the Association as such representative; in either event, it is recommended hereinafter that the respondent disestablish, the Association as such representative. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONQXSIONS OF LAW 1 United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, and The Defense Workers Protective Asso- ciation of Sunbury, Pa., are labor organizations, within the meaning of Section 2 (5) of'the Act - ' 2 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfairiabor practices, within the meaning of Section 8 (1) of the Act. - I 3. By dominating and interfering with the formation and administration of The Defense Workers Protective Association of Sunbury, Pa, and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act 4 The aforesaid unfair labor practices are` unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5 The respondent has not permitted and acquiesced in an assault and battery upon Union employees or upon Jack Emens, a Union organizer. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that the respondent, Westinghouse Electric & Manu- facturing Company, Sunbury, Pennsylvania, and its officers, agents, successors, and assigns, shall : I 88 DECISIONS OF. NATIONAL LABOR RELATION'S BOARD i 1. Cease and desist from : (a) Dominating or interfering with the administration of The Defense Workers Protective Association of Sunbury, Pa., or with the formation or administration of any other labor organization of its employees , and from contributing support to said labor organizations or to any other labor organizations of its employees ; (b) In any other manner interfering with, restraining , or coercing its employees in the exercise of their right to self -organization , to form, join, or assist labor organizations , to bargain collectively through representatives of their own choos- ing,,and, to engage in concerted activities for the ,purpose of collective bargaining or other mutual aid or protection, as guaranteed'in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds , will effectuate the policies of the Act : (a) It has not yet recognized The Defense Workers Protective Association of Sunbury, Pa., as the representative of its employees - for the purpose of dealing with it concerning grievances, labor disputes , wages, rates of pay, hours of em- ployment, or other conditions of employment , refrain from recognizing said The Defense Workers Protective Association of Sunbury , Pa., as such representative for said purpose ; or if there has been such recognition, 'withdraw all recognition from ' The Defense Workers Protective Association of Sunbury, Pa., as such representative ; and in either event disestablish The Defense Workers Protective Association of Sunbury, Pa., as such representative ; (b)' Post immediately in conspicuous places throughout its plant in Sunbury, Pennsylvania , and maintain for a period of'at least sixty ( 60) consecutive days from the date of posting, notices to its employees stating: ( 1) that'the respondent will not engage in the conduct from which it is recommended that it cease and desist in paragraphs 1 (a) and, ( b) ; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of these recommendations; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of 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 date of 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 recommended that the complaint be dismissed insofar as it alleges that the respondent permitted and acquiesced in an assault and battery upon Union employees or upon Jack Emens,, a union organizer. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 2-as amended , effective October 28, 1942-any party may within fifteen (15) days from the date of the entry . of the - order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Shoreham Building, Wash- ington, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other 'part of the record or proceeding ( including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. As further provided in said Section 33, should any party desire permission to argue orally before the Board , request therefor must be made in writing to the Board within ten ( 10) days from the date of the order transferring the case to the Board. SAMUEL H . JAFFEE, Trial Examiner. Dated January 13, 1943.