James R. Kearney Corp.

In the Matter Of JAMES R. KEARNEY CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1145, A. F. L. and KEARNEY EMPLOYEES BENEFIT ASSOCIATION, PARTY TO THE CONTRACT Case No. 14-C-1001.-Decided January 7, 1949 DECISION AND ORDER On April 15, 1947, Trial Examiner Maurice M. Miller issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto.' The Trial Examiner further found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent and the Association filed exceptions to the Intermediate Report, and the Re- spondent also filed a supporting brief z The Board 3 has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except insofar as they are inconsistent with this Decision and Order. The Trial Examiner found, and we agree, that the Respondent vio- lated Section 8 (1) and (2) of the Act with respect to the Association. 2The provisions of Section 8 (1) and (2) of the Act, which the Trial Examiner found were violated, are continued in Section 8 (a) (1) and (2) of the Act, as amended by the Labor Management Relations Act, 1947. 2 Because the record and the exceptions and brief , in our opinion , adequately present the issues and the positions of the parties, the Respondent 's request for oral argument is hereby denied. 8 Pursuant to the provisions of Section 3 (b) of the Act, as amended , the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members [Chairman Herzog and Members Murdock and Gray]. 81 N. L. R. B., No. 8. 26 JAMES R. KEARNEY CORPORATION 27 We rely particularly on the continuing financial support contributed by the Respondent to the Association virtually since its formation.4 We further rely on the adoption by the Respondent of the "Kearney Plan" concerning wages in 1944, and the pay-period change in 1946, in order to discourage its employees from persisting in their considera- tion of outside affiliation; 5 the participation of supervisors in the ad- ministration of the Association; 6 and the various events that occurred in connection with the formation of the Association. Here, we refer to the speech given by the Respondent's president, implying a threat of reprisal for joining or assisting an outside union and suggesting the formation of an unaffiliated labor organization; the participation of Department Head Larkin in the formation of the Association; and Plant Superintendent Friedrich's permission to the employees to meet on company property for that purpose. The Respondent concedes that the Association has been a labor or- ganization since 1943, when the parties first entered into an agreement. The Respondent contends, however, that the Association was not a labor organization before that time. Like the Trial Examiner, we find no merit in this contention. The Association was formed in response to Kearney, Sr.'s, speech about the need for a labor organization; it was authorized by its original bylaws to deal with the Respondent concerning working conditions; 7 and even before the 1943 agreement it considered and discussed at its meetings various questions involving conditions of employment, all as set forth in the Intermediate Report. 4 This support, which was first extended many years before any grant of recognition by the Respondent , consisted of the gift of the Respondent's share of the profits of certain vending machines installed and operated by third parties in the plant .. See Matter of The Carpenter Steel Company, 76 N. L. R. B. 670, where we found a violation of Section 8 (1) and (2) of the Act, based in part upon similar conduct by the employer. Accord: Matter of Lane Lifeboat & Davit Corporation, 60 N. L R. B. 473; Matter of G4lflllan Bros., Inc., 53 N. L R B. 574 , enf'd in this respect 148 F. (2d) 990 (C. A. 9). Compare Matter of The Fairfield Engineering Company, 74 N. L. R. B. 827 , 829, where we reached a contrary conclusion upon noting that the labor organization was lawfully formed and recognized before the employer permitted it to install and operate vending machines and retain the profits. We expressly found that the employer did not have . .. any other purpose in agreeing to this arrangement than to effect a practical solution of the problem with which [ it was] then faced as the result of the request of the employees for water coolers. Matter of Harvey Chalmers & Son, Inc., 75 N. L. R. B. 435; Matter of Sifers Candy Co., 75 N. L. R. B. 296, enf'd 171 F. (2d) 63 (C. A. 10), Nov. 29, 1948. See, also, the Fairfield Engineering case cited above , where the Board held that acts of assistance which might otherwise be innocent assumed unlawful significance when timed to discourage rival organizational activity. 6 The Respondent contends that its department heads are not supervisors . On the facts appearing in the record , we agree with the Trial Examiner that this contention lacks merit. Matter of Dayton, Price & Company, Ltd., 73 N. L. R. B. 149; Matter of Union Underwear Company, Inc., 63 N. L. it. B. 92. 7 The definition of the term "labor organization" in Section 2 (5) of the Act includes an organization whose "purpose" is to deal with an employer concerning working conditions. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In finding a violation of Section 8 (1) and (2) of the Act, however, we do not rely on the following subsidiary findings of the Trial Examiner : (1) the anti-union "comments" of certain supervisors and the "admonition" of Superintendent Friedrich, because these statements were not inherently coercive, as the Trial Examiner con- ceded, and because they did not become unlawful because of the "con- text" in which they were made, as the Trial Examiner erroneously found. (2) The Respondent's failure to require "any proof of . . . majority" before recognizing the Association in 1943 because uncontradicted testimony by the Respondent's attorney, whom the Trial Examiner specifically credited in all other respects, shows that the Respondent had previously requested and received evidence of the Association's majority. (3) The fact that the 1937 petition was prepared on company property by a non-supervisory office employee, as there is no evidence that the Respondent knew of this activity. On the facts of this case, moreover, we do not agree with the Trial Examiner's conclusion that the Respondent's conduct amounted to domination of the Association, within the meaning of our Carpenter Steel decision.' We shall accordingly order the Respondent to cease and desist from interfering with or supporting the Association, and from recognizing the Association unless and until it is certified. But we shall dismiss the allegation of domination, and shall not order the Respondent to disestablish the Association.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, James R. Kearney Corporation, St. Louis, Missouri, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interfering with the administration of, or contributing finan- cial or other support to, Kearney Employees Benefit Association, or interfering with the formation or administration of, or contributing financial or other support to, any other labor organization of its employees; (b) Recognizing or in any other manner dealing with Kearney Employees Benefit Association, or any successor thereto, as the col- lective bargaining representative of any of its employees, unless and until such organization shall have been certified as such representative by the Board; Matter of The Carpenter Steel Company, 76 N. L. R. B. 670. Matter of Hershey Metal Products Company, 76 N. L. R. B. 695. JAMES R. KEARNEY CORPORATION 29 (c) Giving effect to its agreement of December 11, 1943, with Kearney Employees Benefit Association, or to any extension, renewal, modification, or supplement thereof, or to any other agreement with this labor organization or any successor thereto, unless and until such labor organization shall have been certified by the Board as the col- lective bargaining representative of the employees involved; provided, however, that nothing herein shall be construed to require the Re- spondent to vary any substantive provisions of such agreement, or to prejudice the assertion by employees of any rights that they may have thereunder; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Brotherhood of Electrical Workers, Local 1145, affiliated with the American Federa- tion of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activi- ties except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guar- anteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold recognition from Kearney Employees Benefit Association as to the collective bargaining representative of any of its employees, unless and until this organization shall have been certified as such representative by the Board; (b) Post at its plant in St. Louis, Missouri, copies of the notice attached hereto marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Fourteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 10 In the event this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words, "A Decision and Order ," the words, "A Decree of the United States Court of Appeals Enforcing." 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8 (1) of the Act other than by the foregoing unfair labor practices, and that the Respondent dominated the formation or administration of Kearney Employees Benefit Association in violation of Section 8 (1) and (2) of the Act. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL WITHDRAW AND WITHHOLD all recognition from KEAR- NEY EMPLOYEES BENEFIT ASSOCIATION as the collective bargaining representative of any of our employees , unless and until such organization shall have been certified as such representative by the National Labor Relations Board. WE WILL NOT recognize or in any manner deal with KEARNEY EMPLOYEES BENEFIT ASSOCIATION , or any successor thereto, as the collective bargaining representative of any of our employees, unless and until such organization shall have been certified as such representative by the Board. WE WILL NOT give effect to any agreement with KEARNEY EMPLOYEES BENEFIT ASSOCIATION , or any successor thereto, unless and until such organization shall have been certified by the Board as the collective bargaining representative of the employees involved ; provided, Iwwever, that nothing in the Decision and Order requires us to vary any substantive provisions of any such agreement or to prejudice the assertion by any employee of rights acquired thereunder; WE WILL NOT interfere with the administration of or contribute financial or other support to KEARNEY EMPLOYEES BENEFIT Asso- cIATION, or interfere with the formation or administration of or contribute financial or other support to any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1145, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bargaining or other JAMES R . KEARNEY CORPORATION 31 mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1145, A. F. L., or any other labor organization. JAMES R. KEARNEY CORPORATION, Employer. By ------------------------------------ (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Harry G . Carlson, for the Board. Mr. John C. Vogel, of St. Louis, Mo., for the respondent. Mr. Gail Gibson, of Brentwood, Mo., for the Electrical Workers. Mr. Fred J. Hoffnieister, of St. Louis, Mo., for the Association. STATEMENT OF THE CASE Upon an amended charge duly filed by the International Brotherhood of Electrical Workers, Local 1145, affiliated with the American Federation of Labor, herein designated as the Electrical Workers, the National Labor Relations Board, herein called the Board , by its Regional Director for the Fourteenth Region (St. Louis, Missouri ), issued its complaint dated July 16, 1946, against the James R. Kearney Corporation of St. Louis, Missouri, herein called the respondent, alleg- ing that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce , within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies of the complaint, accompanied by the amended charge and notice of hearing, were duly served upon the respondent , the Electrical Workers and the Kearney Employees Benefit Association, herein designated as the Association. With respect to the unfair labor practices , the complaint alleged, in sub- stancd, that the respondent : ( 1) in or about June of 1937, initiated, sponsored and assisted in the formation of the Association , and has, at all times thereafter, dominated and interfered with its administration and contributed to its support; and (2 ) from June 1937 to the date of the complaint , has (a ) urged and per- suaded employees to join and remain members of the Association , (b) warned employees not to join or remain members of an outside labor organization, (c) threatened employees with reprisals if they joined or assisted an outside union, (d) permitted and encouraged solicitation of members by the Association on Company premises during working hours , (e) granted individual wage increases and general automatic wage increases to employees at times when the Electrical Workers were engaged in organizational activity among the employees , and (f) credited such wage increases to the Association, in order to induce employees to 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD adhere to it and refuse to join or assist the Electrical Workers. The complaint went on to allege that the respondent, by the foregoing acts, had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the statute. The answer of the respondent, dated July 25, 1946, admitted certain allegations of the complaint with respect to its business operations, but denied the commis- sion of any unfair labor practice. A further answer, of substantial similar tenor, was also filed on behalf of the Association. Pursuant to notice, a hearing was held between October 14 and October 18, 1945, both dates inclusive, at St. Louis, Missouri, before Maurice M. Miller, the Trial Examiner duly designated by the Chief Trial Examiner. The Board, the respondent and the Association were represented at the hearing by counsel, and the Electrical Workers by a representative. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence pertinent to the issues was afforded all the parties. At the con- clusion of the case for the Board, oral argument upon the record was presented on behalf of the Electrical Workers, whose representative thereupon left the hearing. Before his departure, however, the representative stated expressly for the record that the union which filed the charge had no objection to the further conduct of the hearing without his active participation. At the close of the testimony, counsel for the Board, the respondent and the Association argued orally upon the record. Thereafter, counsel for the Board moved to conform the pleadings to the proof with respect to formal matters. There was no objection, and the motion was granted. Counsel for the respondent and the Association then moved to dismiss the proceeding in its entirety. The motion was taken under advisement by the undersigned ; it will be disposed of by the findings of fact, conclusions of law, and recommendations embodied in this report. A brief has been received from counsel for the respondent. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, James R. Kearney Corporation, is a Missouri corporation having its principal office and place of business at St. Louis, Missouri, where it is engaged in the manufacture of overhead and underground utilities equipment. The company presently employs approximately 200 persons. During the calendar year of 1945, it purchased raw materials valued in excess of $1,000,000, of which approximately 75 percent was purchased and shipped to the St. Louis plant from points outside the State of Missouri During the same period, the re- spondent manufactured and sold finished products valued in excess of $1,000,- 000 of which approximately 75 percent was sold and shipped from the St. Louis plant to points outside the State of Missouri. The answer of the respondent admits, and the undersigned finds, that the firm is engaged in commerce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED The International Brotherhood of Electrical Workers, Local 1145, affiliated with the American Federation of Labor, and Kearney Employees Benefit Asso- ciation, unaffiliated, are labor organizations admitting to membership employees of the respondent. JAMES R. KEARNEY CORPORATION III. THE UNFAIR LABOR PRACTICES A. The general course of the unfair labor practices 1. The formation of the Association 33 The respondent corporation , according to the testimony of its superintendent, was established in July of 1926. So far as the record shows , the employees of the respondent made no attempt to achieve self organization in the decade of development and expansion which followed . Early in June of 1937 , on a date which does not appear in the record several representatives of the Congress of Industrial Organizations appeared before the respondent 's plant and distributed handbills to the employees There is no indication in the record , however, that their activity in this connection created any significant response.' Within a few days thereafter , according to the credited testimony of wit- nesses for the respondent and the Board , James R. Kearney , Sr., then the president of the respondent, called the employees to a meeting in the factory, in the middle of the morning , and addressed them on the subject of employee organization. A reconciliation of the available testimony indicates that Kear- ney, in the course of his talk, spoke briefly about the growth and development of the company, and recapitulated for the employees the benefits which the re- spondent had already undertaken to provide-its vacation policy, the annual Christmas party, and the bonuses which its employees traditionally received upon that festive occasion . Mr. Kearney , according to the credited testimony of witnesses for the Board , then referred to the concept of employee organiza- tion, and gave it as his opinion that the employees of the respondent, at some time or another , would have to consider their desires in that connection. He indicated that the employees would have full freedom of action, and that they would be free, in fact, to choose representation by an "outside" union or to form an organization of their own. Several witnesses for the Board, al- though they could not recall the specific language used by Mr. Kearney, testi- fied credibly that he had implied by his remarks that the choice of an "outside" organization by the employees might create a situation in which "perhaps" he could not be as "generous" as he had been "in the past" with respect to the benefits previously enumerated. Immediately after this address, which ap- pears to have been of relatively short duration, the employees returned to their work. The meeting in question appears to have stimulated extensive discussion among the employees with respect to the possibility of forming an independent organiza- tion. George F. Rode, a rank-and-file employee, conferred with Tom Lloyd, a fellow worker then employed in the office of the respondent , in this connection. The latter, according to Rode, arranged for the preparation of a petition to be I The witnesses, with one exception , could recall no details about the message embodied in the handbill , or the circumstances of the distribution John Neikirk , a former employee, and president of the Association in 1938 and 1939 , testified that Plant Superintendent Friedrich advised him before lie left the plant on the date in question to refuse any hand- bill that might be offered him, but stated that lie had in fact accepted a handbill from one of the men engaged in the distribution and had returned it, unread , to the other individual similarly engaged at the time Friedrich denied that he had advised the employees not to accept a handbill The testimony of Neikirk , in the opinion of the undersigned, was substantially colored by interest , set forth elsewhere in this report In the absence of specific corroboration , therefore , the undersigned will make no finding that the incident to which reference is made occurred in the manner which he described 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by all the employees and subsequently brought to Rode a document which appeared to have been typed in the respondent's office, for the purpose of enabling the employees to indicate their desires with respect to the formation of an in- dependent organization? The employees of the respondent were thereupon advised, by word of mouth, that the petition would be available for signature in the alley at the rear of the plant, during the luncheon hour . Roy Larkin, one of the respondent's department heads, testified without contradiction that the petition was discussed by employees in his presence, and that he questioned several of them about their opinion of the proposal to form a "union." According to Rode, whose testimony in this connection was substantially corroborated by other witnesses for the Board , almost all of the employees as- sembled in the alley to sign the document in question a Shortly thereafter, a notice was posted on the bulletin board at the plant, advising the employees of a meeting to be held in the factory on June 22, 1937, to complete the formation of the organization which had been foreshadowed by the execution of the petition already mentioned 4 The meeting was held at 4: 30 p. in., immediately after the end of the working day. Officers were elected, plans for a picnic were discussed, and arrangements were made for a poll of the em- ployees-to determine the amount of monthly dues . In addition, according to the minutes of the meeting, a suggestion was made, and approved , that Judge Fred J. Hoffmeister, a local attorney, be named as counsel for the organization. The minutes of the meeting contain no indication of the purpose for which it was intended that counsel be retained. One month later, on July 23, the Association held its second meeting. Accord- ing to the minutes, the purpose of the meeting was to have Judge Hoffmeister, counsel for the Association, answer "any question that might arise" with re- spect to the organization . When called upon, according to the minutes, the attorney gave "a very interesting talk" on the subject of collective bargaining.° On September 3, Rode, who had been elected president of the Association, presented a set of "By-Laws" for the consideration of the membership ° The document, as read, was formally adopted by a vote of the members present. Under its terms, the membership of the Association was divided into 11 departments, including the office and engineering personnel. Any employee of the respondent was to be eligible for membership, "in the department most nearly corresponding to the class of work done by him," provided he was "of good moral character" and was able to exhibit "a high standard of workmanship" in the class of work to which he was assigned for a period of at least 2 months. a The document in question was not available at the hearing , and Rode could not recall the language employed therein He testified , however, that Lloyd came down from the office and presented the document to him with a paragraph already typed at the top of the page. 3 Larkin, the present Secretary of the Association , testified that he signed the petition and became a member of the "original" organization. All of the respondent 's department heads, according to Larkin , presently maintain membership in the Association. " Rode testified that lie had requested and received the permission of Superintendent Friedrich to hold the meeting in the plant after working hours This was denied by Friedrich Upon the entire record and his observation of the witnesses , the undersigned credits Rode. 6 The minutes of the meeting contain no indication of the place at which it was held. So far as the record shows , however , the initial meeting, already noted, appears to have been the only meeting of the Association held upon the property of the respondent. 6 The minutes of the Association contain no indication of the authority by which the "By-Laws" had been prepared, or the person who prepared them. JAMES R. KEARNEY CORPORATION 35 However, the document contained a specific provision intended to operate as a limitation upon the right to membership, which read as follows : No person having the authority to hire or discharge employees and no person occupying an official position with the employer, shall be eligible for mem- bership.' In addition, it established an initiation fee of 50 cents, and dues of 25 cents per month. Detailed discussion of the Association's organizational structure does not appear to be essential for the purposes of the present case. It is sufficient to note that the "By-Laws" of the organization contained elaborate provisions with respect to the rights and responsibilities of the members, and that they established an Executive Committee to administer the affairs of the Association, the mem- bers of which were to be chosen from each of the various departments previously mentioned. The powers and responsibility of the Executive Committee were outlined in considerable detail. They included a specific provision which read as follows : The Executive Committee shall have the right to appoint an attorney or attorneys, in fact or in law, to act on its behalf, and on behalf of the Associa- tion, in legal proceedings or for the purpose of dealing with the employer on matters concerning working conditions of the employees. Provision is made for the selection of officers, including a president, vice-president, secretary and treasurer, together with such additional officers and standing committees or special committees as may be appointed by the president with the consent of the Executive Committee. The document, in addition, contained specific provisions, comparable in their wealth of detail to those already noted, with respect to the powers and responsibility of the elected officers. Article VI of the "By-Laws" dealt at length with the procedure to be followed in connection with the adjustment of matters in dispute between the members of the Association and the management. It read as follows : SEC. 1. Any matter of dispute or dissatisfaction between a member or members of this Association and the management, which is not satisfactorily adjusted after reasonable efforts by the employee or the Executive Com- mittee member of his Department may be referred through said Executive Committee member to the Executive Committee. SEC. 2. The Executive Committee shall consider such matter promptly at a regular or special meeting. SEC. 3. The Executive Committee may also consider matters of dispute referred to it by the management. SEC. 4. After due, consideration of such matter, the Executive Committee through one or more of its members in person or through its duly appointed attorney, not a member of this Association, may negotiate the matter with the management, or its representative. If the matter cannot be satisfactorily adjusted in this manner, it may be referred to an arbitration committee of three (3) persons, the Committee being empowered to appoint one arbitrator, the Company one, and the third to be appointed by these two. ° It should be noted, at this point, that the clause in question, literally applied, would not and did not operate to exclude from membership in the Association all persons in the respondent's employ who occupied the position of a supervisor, within the meaning of the definition utilized by the Board 829595-50-vol 81-4 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The further provisions of the "By-Laws" related to the payment of sick and disability benefits, the order of business at meetings of the Association, and the procedure to be followed in connection with amendments. 2. The early history of the Association Some time before the organization of the Association, on a date which does not appear in the record, the American Legion had secured permission from the respondent to install a mechanical canteen upon the respondent's premises, for the convenience of the employees. According to the credited testimony of Super- intendent Friedrich, who described the arrangement pursuant to which the ma- chine was installed, it was understood by the parties that the profits derived from its operation were to be divided between the company which serviced the machine and the American Legion, which intended to use its share of the pro- ceeds for a charitable object. On a date within the same period of time, which again does not appear in the record, and in any event before the organization of the Association, the company also permitted the installation of a Coca-Cola ma- chine upon the premises. At the time of its installation all of the profits derived from the operation of this machine were retained by the Coca-Cola distributor. Shortly after the formation of the Association, however, the respondent was advised by the company which serviced the canteen that the American Legion was no longer interested in the division of profits derived from its operation. An opportunity to share this income was thereupon offered to the respondent. At or about the same time, the Coca-Cola distributor, apparently as the result of competitive pressure, offered to the respondent a similar share of the profits de- rived from the operation of the Coca-Cola machine. In both cases, according to Superintendent Friedrich, the respondent refused the offer ; and he suggested to the companies which serviced the machines that the Association be given the opportunity to share the income derived from their operation. The record indi- cates that both offers were promptly accepted by the Association, which has continued to derive a substantial portion of its income, up to the present date, from the operation of these machines.' Throughout the early years of its existence, with the exception of the meetings already noted, the Association appears to have concerned itself primarily with periodic affairs of a social nature, problems of internal organization, and the payment of sick and disability benefits.' The minutes indicate, however, that proposals for the improvement of facilities in the respondent's parking lot were discussed in March of 1938 and May of 1940.80 In October of 1938, also, a motion was made that the subject of weekly pay instead of semi-monthly pay should be discussed with Mr. Kearney." Again, at the regular meeting in August of 1941, the members engaged in a lengthy discussion, according to the minutes, as to the system employed by Superintendent Friedrich in selecting men for overtime work. 8 Although figures with respect to the financial status of the Association are not available for the entire period of its existence, the records for the period from the defeat of Japan to the date of the hearing indicate that canteen and Coca-Cola income accounted for ap- proximately 13 33% of its total regular income during the period in question. 9 A change in the management of the respondent, which occurred in the period under discussion , should be noted at this point. In February 1940, James R. Kearney , Sr. was elected Chairman of the Board and treasurer of the respondent . James R Kearney, Jr., who had been Executive Vice-President prior to February , 1940, was elevated to the post of President. 10 No specific action was taken in this connection. "The motion failed to carry a majority vote, but is significant nevertheless , because of its connection with later efforts directed to the same objective. JAMES R. KEARNEY CORPORATION • 37 As the result of this discussion it was agreed to call a special meeting, and to invite Superintendent Friedrich to explain his policy and practice in this con- nection. The meeting was held on August 10, and was marked by a turnout of almost "100 percent" on the part of the members. Superintendent Friedrich appeared and answered questions, after which a motion was made by R. P. John- son, a department head, to permit the superintendent to pick whatever men he chose for overtime work, "whenever he saw fit." By a vote of 127 to 12, the motion carried. In July of 1942, at a special meeting called to consider an increase in the monthly dues, the suggestion was again made that the respondent be asked to provide pay days every week, or "every other Friday." The membership agreed that the suggestion should be investigated. The Association held no meeting in August, however, and there is no indication in the minutes as to the ultimate disposition of the suggestion. In September of 1942, for reasons which do not appear in the record, Ray Cotteril, a regular production worker, explained and distributed copies of a docu- ment identified as "the paper distributed by an Independent Assoc. for Union[s] such as ours." A discussion by the members of the Association as to whether it should "accept" the paper was terminated by the decision to conduct a secret vote on the question at the following meeting. The minutes of the October meet- ing were not available at the hearing, however, and the record contains no indi- cation of the final decision on this matter.12 3. The execution of the first agreement between the Association and the respondent For some time prior to the organization of the Association, and throughout the period of its existence to date, the respondent has followed the practice of announcing and distributing a bonus to employees at its annual Christmas party. In the period from 1937 to 1940, the annual Christmas bonus was fixed at 2 weeks' pay for every employee of the respondent. In 1941, however, as the result of profitable operation, officials of the respondent announced a bonus payable in November computed on the basis of the company's October profits, and a further bonus of 2 weeks' pay for every employee, payable in December. In addition, throughout the period from 1939 to date, with the single exception of 1942, officials of the respondent have utilized the occasion of the Christmas party to announce a blanket increase for all of its employees, effective on Janu- ary 1st of the coming year. In conformity with this practice the respondent also announced, at the 1941 Christmas party, already noted, a pay increase for all employees, effective in January of 1942. In 1942, according to the credited testimony of counsel for the respondent, the officials of the company desired to announce a wage increase similar to that which had been announced in previous years. However, as the result of passage of the Economic Stabilization Act, effective October 2, 1942, the respondent was 12 According to the .testimony of Neikirk, Superintendent Friedrich suggested on one occasion during the early history of the Association that an employee who had transferred from the office to the plant should be asked to join the organization On another occasion, according to Neikirk, Friedrich inquired as to whether the dues of the members were all "paid up" and suggested that one employee, who was delinquent, should be asked to pay up "or else." Friedrich denied the statements attributed to him The testimony of Neikirk In this connection stands without corroboration in the record; the undersigned does not consider it sufficient to warrant a finding that Friedrich made the statements cited. 38 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD advised by counsel that its right to announce the projected increase might be subject to question by the National War Labor Board, and it was determined some time prior to the annual Christmas party that announcement of the annual wage increase would be deferred until the approval of that agency had been secured. An announcement to this effect was made at the Christmas party. The annual bonus checks were distributed at the same time. It was discovered, how- ever, that the checks prepared for the production and maintenance employees constituted a bonus equivalent to 1 week's pay, while those prepared for the office employees amounted to a bonus equivalent to 2 weeks' pay. The distinc- tion between the office employees and other employees, indicated by this arrange- ment, created considerable excitement and resentment among the production em- ployees of the respondent. A number of complaints were made to Superintendent Friedrich and other officials of the respondent, and James R. Kearney, Sr., after investigation, was impelled to announce on the following day that the bonus checks of the production employees had been limited to 1 week's pay as the result of an error in the accounting department. A further bonus of 1 week's pay was accordingly distributed to all production employees within a few days thereafter. In the wake of prevalent dissatisfaction with the manner in which the Christ- mas bonus had been handled, several employees suggested that the incident indicated the necessity of "legalizing" the relationship between the respondent and its employees by a collective bargaining contract. The desire of the em- ployees in this connection, accordingly, was communicated informally to the counsel for the Association. On the 24th of December the latter dispatched a letter to the Association and the respondent, suggesting that the employees were "entitled" to have their rights defined by contract. Thereafter, on December 28, 1942, John C. Vogel, counsel for the respondent, was called upon by the company to discuss the suggestion embodied in the letter from the counsel for the Association. Early in the following month, on the 4th of January, 1943, Vogel communicated with the latter and suggested that he prepare a proposed agreement for sub- mission to the respondent. Shortly thereafter, on a date which does not appear in the record , the counsel for the Association submitted to Vogel several copies of a contract previously drafted by him for an independent union at the St. Louis plant of the Pomona Pump Company, and suggested to Vogel that the respondent consider the appli- cation of this agreement to the plant involved in the instant case. In the meantime, at the regular meeting of the Association on January 8, 1943, the letter from its counsel, already noted, was read to the membership, which went on record by a formal vote in favor of a contract with the company. The officers of the Association were ordered to instruct the attorney to meet with Vogel, and to "discuss" the matter with him. The question of a raise in pay was also discussed; and the officers of the Association were instructed to con- sult with James R. Kearney, Jr., the president of the respondent, in that con- nection 13 At this meeting also, according to the minutes, the membership voted Is On January 11, 1943, the respondent submitted an application for permission to raise the wages of its production employees to the local office of the Wages and Hours Division, as required by statute and executive order . The Association , according to Vogel, was not invited to join in the application because it was not, at the time, a "certified" or "recognized" labor organization On March 3 , 1943, the respondent received permission from the War Labor Board to establish the minimum and maximum wage rates requested in its application. JAMES R. KEARNEY CORPORATION 39 to discard the previous system of departmental representatives, to divide the factory into four divisions, and to elect one representative for each division" The current status of the negotiations for a contract was the subject of fre- quent discussion at Association meetings throughout the spring and early sum- mer of 1943. It was reported in April that James R. Kearney, Jr., had the sample contract-submitted previously by the counsel for the Association-under advisement; and in June of 1943, as the result of a discussion at the regular meeting of the Association, a committee was appointed under the leadership of R. P. Johnson to investigate the status of the negotiations and to expedite the execution of an agreement. The course of the subsequent negotiations is not detailed in the record. It is indicated, however, that Vogel, acting on behalf of the respondent, submitted the draft of a proposed agreement to the Association and its counsel on November 11, 1943. The draft was discussed at length in the course of the regular Association meeting on the following day." On the 3rd of December, Vogel and the counsel for the Association agreed upon the final draft of a contract. Shortly thereafter, on December 10, 1943, it was approved by a vote of 24 to 2, at the regular December meeting of the Association. On the following day, December 11, 1943, the agreement was formally executed by James R. Kearney, Jr., for the respondent, and President Elder for the Association 16 The contract of the parties, which became effective on the date of execution, provided that it was to remain effective for a year, and thereafter until super- seded by another agreement, subject to the right of either party to terminate, modify or amend the contract at its expiration date or at any time thereafter, upon the presentation of written notice 15 days in advance. The respondent agreed to recognize the Association as the sole collective bargaining agency for all of the production and maintenance employees at its plant in St. Louis, Mis- souri, except for "employees in a supervisory or executive capacity."" With respect to employees covered by the agreement who were already members of the Association, or who had signified their intention to have the Association bar- gain on their behalf, the contract provided for conventional "maintenance of mem- bership" throughout the period of the agreement, subject to a 15-day "escape" period. With respect to future employees, however, the agreement pro- vided that, as a condition of their employment, such employees should become members and remain members in good standing of the Association for the duration of the contract. 14 Although the representatives to be elected in this fashion were never designated in the minutes by a specific title, the suggestion appears to represent the origin of the shop steward system , subsequently adopted by the Association A formal change in the "By- Laws" of the Association , to provide for the election of representatives in the manner suggested, was voted at the regular meeting in March of 1943. 16 According to the minutes , President Elder suggested the necessity of an agreement, on the ground that it was "evident" that "other unions" were making attempts to organize the employees of the respondent . There is no evidence in the record to indicate that this was in fact the case. 16 Counsel for the respondent testified that he requested proof of majority status from the Association on the occasion when he submitted the company's counterproposal to the counsel for the Association . The undersigned credits this testimony . The record is clear, however, that no proof of majority was submitted before the execution of the contract. The only list of Association members which was ever given to the respondent was a list supplied 1 month after the agreement was signed , as noted below, to provide the basis for preparation of a seniority list. 17 Although the original "By-Laws" of the Association permitted the office employees to affiliate, there is no indication that any of them had maintained affiliation with the or- ganization after its formative period . As noted, office employees were not covered by the agreement under discussion. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The agreement contained provisions for the selection of shop committeemen or stewards by the Association, as the representatives of the employees, and went on to provide that all aspects of the relationship between the company and the Association should be handled by such committeemen or stewards, or by the officers of the Association, and representatives designated by the respondent. Disputes or controversy between the parties, based upon individual employee grievances, were to be submitted by aggrieved employees to a shop steward. Under the grievance procedure established by the contract, the steward was directed in the original instance to take the matter up with the "foreman" of the department involved. If the matter was not adjusted satisfactorily, the president of the Association and the steward were authorized to take it up with the factory superintendent. In the event of a failure to achieve agreement at this level, the dispute was to be made the subject of discussion between the entire shop committee and the executive officers of the company ; and ultimately, if agreement on the matter in dispute could not be achieved by the parties, pro- vision was made for referral of the entire problem to arbitration.18 The agree- ment in this respect concluded with a saving clause, which reads as follows : Nothing herein shall prevent any employee having a grievance to present same to any of his superiors without following the procedure above set forth. [sic] The other provisions of the agreement, with respect to such matters as seniority, the status of employees in military service, wages , vacations and general con- ditions of employment , are not directly material herein." 4. The subsequent relationship between the Association and the respondent In the spring of 1944, according to Vogel, the stewards of the Association pre- sented a number of complaints with respect to the wage classifications of in- dividual employees, and the general pay scale of the respondent. At the sug- gestion of Vogel, who met with the stewards regularly, several meetings were held, at which a number of specific grievances were discussed and adjusted. Thereafter, in the early summer of 1944, Vogel agreed to begin negotiations in connection with a plan suggested by the stewards for the equalization of pay upon the basis of seniority, and periodic wage increases. In the meantime, during the latter part of July, organizational activity on be- half of the Electrical Workers was initiated among the employees of the re- spondent. Several informal meetings, sponsored by interested employees, were addressed by an International Representative of the organization. Early in August, immediately after the regular meeting of the Association, the Inter- national Representative addressed a special meeting of that organization. The record indicates that a number of employees became interested in the Electrical 11 In cases where the controversy did not involve an individual grievance but involved differences of opinion as to the interpretation of the agreement , the contract provided for discussion between the entire shop committee and the executive officers of the respondent in the original instance , and then for reference to arbitration in the event of their inability to agree. 19 One month after the execution of the agreement , on January 11, 1944 , the respondent received from the Association a list of members in good standing, furnished to facilitate compliance by the respondent with those provisions of the agreement which related to seniority. The list was utilized by the respondent, according to E W Schmidt, assistant treasurer, in connection with the preparation of a seniority list which was posted shortly thereafter. JAMES R. KEARNEY CORPORATION 41 Workers as a result of the discussion on this occasion.` A significant number, so far as the record shows, signed applications for membership in that organization within the period of several days immediately after the meeting.21 On the 17th of August, the officials of the respondent and the Association reached agreement upon a plan for the equalization of pay and periodic wage increases. The agreement, which had been foreshadowed by a statement of Lovell Duncan, Jr., a shop steward, at the August meeting of the Association, came as the climax to a series of meetings on the 14th, 15th and 17th of the month. Although the agreement represented a substantial modification of the provision with respect to wages embodied in the contract between the respondent and the Association, the copy which appears in the record bears all the indicia of a unilateral announcement on the part of the respondent, and contains no evidence on its face that it was ever initialed or signed by a representative of the employees.22 20 Johnson , the Receiving Department head, admitted , however, that he had expressed the opinion to "two or three" employees after the meeting, that he did not feel affiliation with an "outside" organization would accomplish anything more for the employees. Neikirk, who held no position in the Association at the time, testified that A J. Stroth- kamp , a department head, had expressed his disapproval of the Electrical Workers at the meeting, immediately after the remarks of the International Representative . Hazel Sexton, an employee who had been particularly active on behalf of the Electrical Workers, stated at the hearing that Lou Luesca, a woman employee in her department, had quoted a threat by Superintendent Friedrich to fire "anyone that messes with the union " shortly after the meeting ; according to Sexton , on one occasion Luesca made the quoted statement in the presence of Friedrich-who did not deny the threat. Helen Harris , a former employee testified that Raymond Parks , a department head, had stated in a tavern after the meeting that he did not think the Electrical Workers would do any good at "Kearney's." Superintendent Friedrich denied that he had ever overheard Luesca quote a threat by him to discharge supporters of the Electrical Workers and further denied that he had ever made the statement attributed to him. The testimony of Sexton in this connection stands without corroboration in the record ; the undersigned does not consider it sufficient to warrant a finding that Friedrich acquiesced in the quoted activity of employee Luesca. The available testimony with respect to the activity of Johnson, Strothkamp and Parks, however, has not been denied ; it is credited by the undersigned. 21 It is perhaps significant in this connection that the minutes of the Association for July of 1944 contain the first suggestion with respect to a plan of cooperation with the company to cure the problem created by Association members who were delinquent in their dues. R. P. Johnson, already noted , suggested that the "office" be given the names of all Association members who remained delinquent in the payment of their dues after ap- propriate notice. Sometime in the month of August, on a date which does not appear in the record, Vogel , as counsel for the respondent , was asked to clarify the rights of the Association with respect to enforcement of the union security clause in its contract with the company. The record indicates that the stewards were fully advised of their right to insist upon the termination of delinquent members, under the terms of the union security clause , but that forbearance was requested in this connection because of the national emergency and the existing manpower shortage The minutes of the Association for September 1944, although somewhat ineptly expressed, indicate that this suggestion was accepted by the organization. 22 Under the agreement , which is not directly material here, 11 women employees of the respondent were to receive a wage increase of 50 per hour, effective in the pay period immediately following the completion of 6 months in the service of the respondent. Five employees, who had previously been denied a merit increase , were to receive increases intended to equalize their pay with that of other employees who had the same degree of seniority . It was agreed that new employees would receive an increase of 50 per hour at the end of 6 months pith the respondent All employees, in addition, were to receive an increase of 5¢ per hour each year during the first 5 years of their service with the company and 4¢ per hour each year thereafter for 8 years , or until they reached the maximum of their wage classification. The company reserved the right to refuse increases 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The regular Association picnic was held on the 19th of August, 1944. Ellen Neikirk, whose husband was active at the time in soliciting membership appli- cations for the Electrical Workers, testified that Superintendent Friedrich stopped her at the picnic and advised her to tell "Jack," her husband, to "get back on the right track." Mrs. Neikirk stated that she understood the remark as a reference to the activity of her husband on behalf of the Electrical Workers. Hazel Sexton, also, testified that she had declared her support of the Electrical Workers at the picnic in the presence of Friedrich, and that he had advised her to change her mind. Friedrich denied both of the statement§ attributed to him. Under the circumstances indicated by the record, it is possible that Friedrich made the statements cited. The testimony in this connection, however, was offered by witnesses obviously motivated by interest, and stands without specific corrobora- tion by others. The undersigned finds the evidence insufficient to warrant a finding that Friedrich made the comments attributed to him by Ellen Neikirk and Hazel Sexton. On September 1, 1944, at the regular meeting of the Association, the agreement already mentioned, identified as the "Kearney Plan," was presented to the mem- bership by Lovell Duncan, and was adopted by standing vote ' Thereafter, on the 12th of September, in accordance with the terms of the "Kearney Plan," the respondent presented to the WLB a formal request for permission to change the job description of assemblers "A" and "B" in such a way as to permit the re- classification of persons employed in the latter capacity who had worked 5 years or more for the respondent. On October 24th, however, the respondent was advised that the War Labor Board had no jurisdiction over such a change in the job description . Within a week, according to Vogel, he met the representa- tives of the Association and completed arrangements for the reclassification of those employees whose wages would be affected by the terms of the "Kearney Plan." 24 to individual employees, but agreed that any employee who did not receive the specified increase would be entitled to an explanation as to why such increase was not received. Inasmuch as the range already established for "Class B" assemblers did not permit the respondent to grant the full amount of the automatic increases required by the plan to persons employed within that classification, the respondent agreed to promote "Class B" assemblers to "Class A" after 5 years of continuous service in the lower classification. The respondent also agreed to petition the War Labor Board for permission to effect the immediate promotion to a higher classification of all assemblers who had had 5 years or more of experience in the lower classification already noted. "International Representative Gibson of the Electrical Workers had previously been invited to address the membership, in a fashion similar to that which had marked the August meeting of the Association . Immediately after the adoption of the "Kearney Plan" however, a motion was made and passed that Gibson be denied permission to address the meeting. The record contains no indication of further organizational activity by the Electrical Workers. 24 In the meantime, on October 19, 1944, as a result of a contract cancellation by the Navy, the respondents were forced to lay off 29 employees for whom work was no longer available Among the employees dismissed was Hazel Sexton. Her activity on behalf of the Electrical Workers appears to have been known to Superintendent Friedrich, who admitted at the hearing that he knew a large number of the employees who had applied for membership in the organization Sexton admitted , however, that the lay-off had been effected in strict compliance with the seniority rule established by the agreement between the respondent and the Association ; and the record fails to indicate any basis for a con- clusion that it was discriminatory . It appears , however, that a number of those laid off were subsequently recalled , and that Sexton, although eligible for recall on the basis of seniority, received no recall letter E. W. Schmidt, Assistant Treasurer, testified that no letter was sent to her, because she was not a member of the Association in good standing. The record supports his testimony in this regard. The undersigned considers it worthy of note, however, that the respondent, in the midst of the war, chose to observe the letter JAMES R. KEARNEY CORPORATION 43 On November 14, 1944, the respondent applied to the War Labor Board for per- mission to alter the range established by its earlier order for machinists, in order to effect an adjustment consistent with the terms of the "Kearney Plan" ; the request was denied by the Regional Board, however, on December 8, 1944. In the meantime, again in November of the year in question, the respondent had submitted a further request for permission to distribute a Christmas bonus of 2 weeks' pay plus an extra bonus, comparable to that distributed in 1941. On the 9th of December, upon appeal from an adverse decision of the Regional Board, the respondent received permission to make the bonus payment requested. The minutes of the Association, for 1945, show little which is directly relevant in connection with this proceeding. 26 In January, by appropriate motion, the dues were raised to $1.00 per month. Provision was made for the suspension of members 3 months in arrears ; payment of a new initiation fee and all back dues was required of such individuals in order to retain their membership. Persons failing to comply with this requirement were to be reported to the factory superintendent for "immediate dismissal" by the company. In March, the ques- tion of the respondent's pay period practice was again discussed, and a motion was adopted to seek arrangements for weekly or bi-weekly pay. And in Novem- ber 1945, it was indicated at the regular meeting that the officers of the Associa- tion intended to seek the addition of several amendments to the existing agree- ment with the respondent26 In November 1945, also, several additional problems with respect to wages, hours and working conditions appear to have occupied the attention of the Association, among them the rate of pay for watchmen and janitors, the opera- tion of the "Kearney Plan" insofar as this involved the promotion of assemblers with 5 years of service for the respondent, the continued interest of the Association in weekly pay, and pay for legal holidays. Most significantly, how- ever, the minutes indicate that the shop stewards of the Association planned to contact each department head, to determine if it was their desire to be put on the monthly pay roll and to be classed as "department foremen" instead of "work- ing foremen." n The minutes of the December meeting indicate that the chief steward of the organization, apparently after consultation with officials of the respondent, reported on the matter as follows : F. Doxey explained that each person who was at the plant five years was classed as a working foreman, therefore, it was not possible to make each one a Department Foreman. of the contract in connection with the recall of employees, despite its earlier suggestion that the Association should forswear insistence on the membership maintenance clause of the agreement in cases which might require discharge. Certainly the treatment of Sexton would seem to indicate a disposition on the part of the respondent to respect its obligation when insistence on the letter of the contract would serve to remove a threat to the Association, even though it might not choose to be so meticulous under other circum- stances. The question of discriminatory treatment with respect to Sexton, however, was not specifically alleged in the complaint and has not been fully litigated. The under- signed, therefore, makes no finding in this connection. ss The officers of the Association, as in previous years, had been elected at the regular meeting in December 1944. Bert Henry, a production employee, had been elected presi- dent of the Association. George Grattendick, a department head, was elected as vice- president. Roy Larkin, who had seen considerable service as an officer of the Association, was reelected to the position of Secretary. In September of 1945, according to the minutes of the Association, Grattendick succeeded Henry as president. ' The nature of the amendments to be offered does not appear in the minutes. $' The notation to this effect in the minutes appears to represent the first indication that the individuals designated as department heads by the respondent were dissatisfied in any way with respect to their relationship with other employees. 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It was agreed at the meeting that the matter would be "worked out" in con- sultation with the counsel for the Association. The membership also discussed the desire of the employees for a weekly pay- roll period, as noted in connection with earlier iueetiugs Doxey, according to the minutes, explained that it would cost the respondent about $3,000 to pay the em- ployees every week, and requested the Association not to disturb the existing arrangements of the respondent in this connection . There was further discus- sion at the meeting with respect to the "Kearney Plan," initiated by Vester Sullivan, a departineut head I ioxey, in reply, explained that the problems which had arisen in connection with the operation of the plan would be "straightened out" in the contract which was about to be negotiated . In this connection the employees voted their approval of a proposal to seek regular pay for six legal holidays, and pay at the regular overtime rate for work performed on such occasions 28 On January 16, 1946, apparently as the result of the earlier discussion between representatives of the Association and the respondent, the officials of the latter received a communication which read as follows : We, the undersigned now classed as working foreman , feel that we should be reclassed as Department Heads and be given compensation as such. Unless the Corporation approves of this change we no longer wish the re- sponsibility of being in charge of our respective Departments. The document was signed by all 15 of the respondent 's department heads, together with H. M. Maloney, not identified in the record, and Frank Doxey, already mentioned in this report 29 On a date which does not appear in the record, offi- cials of the respondent , the department heads, and the stewards of the Associa- tion discussed the problem ; it was agreed that all of the individuals recognized 28 At this point, the undersigned wishes to note in passing that Neikirk, the former president of the Association, had been discharged by the respondent 2 days after V-J day in 1945. Neikirk testified that the attitude of Superintendent Friedrich with respect to him had changed after he had indicated his interest in the Electrical Workers-in 1944- and that he was reprimanded for every petty dereliction or error up to the time of his separation from employment . The respondent, in turn, produced extensive testimony tending to show that Neikirk had, in fact, received a wage increase after his interest in the Electrical Workers was known, that he had been absent from work thereafter without excuse, that he had been intoxicated on the job, and that he had attempted to aid a fellow worker in the perpetration of a fraud connected with the rationing of gasoline. The Board did not allege that Neikirk had been terminated in violation of the Act, and the course of conduct described in the testimony is relevant therefore, only with respect to Its general bearing on the question of interference, restraint and coercion with respect to the rights of the employees . Upon the entire record, the undersigned finds no basis for a conclusion that the respondent's treatment of Neikirk constituted interference , restraint, or coercion within the meaning of the Act. David Lowery, a production employee, testified, however, that on one occasion-while talking to Neikirk about the organizational activity of the Electrical Workers-he was admonished by Superintendent Friedrich not to listen to anything that Neikirk had to say. Friedrich denied that he made the statement The undersigned credits Lowery. Upon the record, also, the undersigned infers and finds that the admonition of Friedrich was based upon his knowledge of Neikirk's interest in the Electrical Workers, and was calcu- lated to discourage Lowery's interest in that organization 29 The respondent argued that Doxey was a "leadman" or department head, equivalent in status to the other department heads who signed the letter There is evidence to support this contention . Other credible evidence, however, indicates that Doxey exercised some of the prerogatives of a supervisor in his capacity as an "inspector ," but did not possess the degree of authority which distinguished the department heads from other employees. Upon the entire record, the undersigned concludes and finds that Doxey was not a supervisory employee . Cf. Matter of United States Gypsum Company, 72 N. L. it. B. 1233. JAMES R. KEARNEY CORPORATION 45 as department heads would be given premium pay in the amount of 5¢ per hour, in recognition of the additional responsibility which they carried in that capacity.30 The calendar year of 1946, up to the date of the hearing, appears to have been marked by considerable activity on the part of the Association. Early in Feb- ruary, according to Vogel, the stewards seriously urged upon the respondent the desirability of a weekly pay period, instead of the semimonthly period then in use. Again, on the Sth of February, James R. Kearney, Sr., and Grattendick, as president of the Association, executed an agreement to modify the job clas- sifications and maximum rates previously established by War Labor Board directive and recognized by the agreement between the respondent and the Association." At the regular meeting of the Association in March, the membership again expressed the desire to have pay days every week or "every other Friday"; it was decided by majority vote that the matter would be put up for "arbitration" with the respondent 32 In April, however, the stewards reported that they had approached officials of the respondent about the matter, and that the suggestion of the Association had been flatly rejected as too expensive. The minutes of the meeting in this connection, after summarizing the report of the stewards, continued as follows : This was discussed with the members present and left open for suggestions and Geo. Grattandick [sic] offered to contact the Lawyer, but he then decided to drop the matter."' At the close of the meeting, a motion was made to have a special meeting of the Association for the purposes of deciding if another union was desired by the employees. Within a week, on April 12, 1946, Shop Stewards Louis Dean and Harold Wiehage, together with Secretary Larkin, met with officials of the respondent to discuss the pay-period problem. Mr. Kearney, Sr., according to the minutes, explained that the respondent would be able to begin payment every other Friday within 3 weeks, and that weekly pay periods would be instituted as soon as new machinery required for the purpose became available . The agreement was 80 One of the department heads, Louis Dean , was a shop steward at the time. Although he testified on direct examination as a witness for the respondent that he was primarily engaged in regular production work, together with the others in his department, he ad- mitted on cross-examination that the department heads had asked for premium pay because of their special status and responsibility. 81 The undersigned notes in this connection that the agreement contained specific pro- visions with respect to the maximum wage rates of the maintenance man and the inspector, identified in the record as Doxey ; each of them was to be compensated on the basis of the "Kearney Plan," plus a premium of 50 per hour. The caft that Doxey did not receive a premium pay award on January 16 , 1946, when the respondent agreed to a 5l differential for department heads, and received special treatment in the agreement now under dis- cussion, is one of the factors which the undersigned considered in reaching the conclusion, noted above, that Doxey is not a supervisor. 32 At the meeting , for reasons which do not appear in the record , it was moved and as to whether the latter intended to call a special meeting to vote on the question of the respondent, to take minutes of all that transpired and to have all statements signed. 33 Lowery testified in this connection that he questioned Grattendick on one occasion as to whether the latter intended to call a special meeting to vote on the question of whether this dispute should be submitted to arbitration ; and that Grattendick replied that he would not "stick his neck out," because he did not want to "get in Dutch" with Superintendent Friedrich. Grattendick denied that he had made such a statement. Upon his observation of the witnesses, and particularly in the light of the statement embodied in the minutes of the Association, the undersigned credits the testimony of Lowery. 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequently embodied in a letter to the Association, executed by James It. Kear- ney, Sr. on April 15, 1946. The special meeting already mentioned was held on the evening of that date. In accordance with the original plan, a vote was taken to determine the desires of the membership with respect to union affiliation. According to the minutes, 108 voted for the Association and 18 against it. Accordingly : It was decided at the special meeting to stay with The Kearney Em- ployees Benefit Association for the present, to determine what would be most to our advantage, because of the lack of investigation as to which of the other bargaining agents would be most desirable. Several additional matters, however, were the subject of discussion at the meet- ing. A motion was made and passed that the respondent be urged to adopt the plan of the Association for six paid holidays per year. It was also determined that the respondent should be presented with a proposal for amendment of the "Kearney Plan," in a manner which would permit employees to reach the max- imum salary for a given classification within 10 years rather than 14 years, as before. In the alternative, the respondent was to be asked to consider a. blanket increase for all of the employees on an hourly basis, independently of the regular anniversary raise already noted. Lastly, it was suggested that some sort of recognition or award be given employees who presented ideas for im- provement in the construction of Kearney products, and that inquiry be made as to the chances for advancement of an employee who had become a "lead man" in his particular department. On the following day, the four shop stewards of the Association, including Louis Dean and William McAllister, department heads, together with Secretary Larkin, called upon the officials of the respondent and discussed with them the matters which had been presented for consideration at the special meeting of the Association. There is no clear indication in the record as to the result, if any, of this discussion. On May 10, 1946, apparently as the result of several conferences between rep- resentatives of the Association and the respondent-and after a meeting of the Association at which the matter had been discussed-the parties agreed upon an amendment to the contract of December 11, 1943, which provided for six paid holidays per year, for which the employees were to be compensated at their regular straight-time hourly rates of pay. At the regular meeting of the Association in June, according to the minutes, the "By-Laws" of the Association were read and "accepted" by the unanimous vote of the members present. The reason for this action does not appear in the minutes. Upon the entire record, however, it appears that the entry was intended as a reference to revision of the original "By-Laws" of the organization.36 Z4 The undersigned considers it significant , however, that Secretary Larkin, at the con- clusion of the meeting, voluntarily dictated to Miss Ponier, the secretary of Mr. Kearney, Sr., a summary of the discussion at the special meeting of the Association held on the pre- vious night , rather than a statement of the events which had transpired at the meeting be- tween Mr. Kearney , Sr., and the stewards. The original of the statement was signed by each of the stewards and was given by Secretary Larkin to James R. Kearney, Sr. The carbon copies , five in number, were distributed among the representatives of the Associa- tion. ss The "By-Laws," as revised , are substantially identical with the original "By-Laws" of the Association. Section I of the original document, which divided the membership into 11 departments, is omitted from the document as revised . In conformity with this departure from the original draft, the several references to departmental organization which appeared in the original "By-Laws" were deleted in the process of revision. The JAMES R. KEARNEY CORPORATION 47 Shortly after the regular meeting, on June 10, 1946, representatives of the respondent and the Association reached agreement upon the wage adjustment which had been foreshadowed by the earlier requests of the Association for an alteration in the terms of the "Kearney Plan." Although the respondent refused to reduce the operative period of the plan from 14 years to 10, the alternative already noted was accepted by the parties, who agreed upon a general increase of 10¢ per hour in the maximum and minimum rates established by WLB directive for all production employees. The last alteration in the agreement negotiated by the parties was an under- standing with respect to certain problems which might arise in connection with holiday pay, executed shortly after the regular meeting of the Association, on July 12, 1946, by James R. Kearney, Sr. for the respondent and Grattendick and Larkin for the Association. The record contains no further significant indication of the relationship between the Association and the respondent. B. Conclusions 1. The contentions of counsel Counsel for the Board contends, in substance, that the respondent encouraged and interfered with the formation of the Association by the speech of James R. Kearney, Sr. already noted in this report, by acquiescing in the preparation of an organizational petition on company time and property, and by its willingness to permit organizational activity on behalf of the Association upon the factory premises. In addition, it is argued, the respondent continued to interfere with the administration of the Association, and contributed financial support to the organization, by permitting its department heads to maintain their active mem- bership in the Association and to hold office therein, by providing hectographed copies of the Association "By-Laws" upon request, and by permitting the Asso- ciation to share the profits derived from vending machines upon the premises of the company. Counsel makes the contention that the Association-although it made no genuine effort to deal with officials of the respondent on matters involving wages, hours, or working conditions within the period from 1937 to 1942-was organized particularly to forestall the possible affiliation of the employees with an "outside" organization, and therefore falls within the ambit of the statutory bar. In this connection, counsel contends that even if the Association effectively emancipated itself by the execution of its contract with the respondent, and re- mained thereafter free from employer domination, interference or support, the document, as revised, provides for the election of an Executive Committee of 4 members, "who shall be shop stewards," instead of a committee composed of 11 departmental representatives as provided in the original draft. The undersigned considers it significant, however, that the authority of the Executive Committee to appoint an attorney to act on behalf of the Association , in legal proceedings or for the purpose of dealing with the respondent on matters concerning the working conditions of employees, was retained without change in the document as revised. In addition, the provisions of Article VI with respect to the procedure to be followed for the adjustment of any matters in dispute between a member of the Association and the manage- ment, set forth in detail elsewhere in this report , were incorporated in the "By-Laws" as amended without a single significant change. Section I of the article in question, the only section which was altered, now refers to the parties involved in the initial stage of the adjustment procedure as "the employees " and "the executive committee member," and makes no reference to the status of the latter as a departmental representative. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct of the respondent would still be subject to proscription under Section. 8 (2) of the Act-because of the domination, interference and support which characterized the earlier relationship between the company and the Association. It is argued, however, that this is not the case, and that the Association was in fact subjected to domination , interference and support by the respondent even after execution of the agreement . These contentions, if accepted , would seem to furnish ample justification for an order directed to the respondent , calling upon it to withdraw recognition from the Association and to disestablish it as the representative of the employees. The respondent, however, contends that the evidence adduced in this con- nection fails to establish that the Association was subjected to any domination or interference in connection with its formation and administration , or that it ever received financial support, within the meaning of the Act , from the company. It is argued that the evidence relied upon by counsel for the Board to support a finding of domination , interference and support is so indefinite, trifling, and inherently ridiculous as to be unworthy of acceptance as a basis for the sug- gested conclusions of law. In addition , it is argued that even if the evidence in this connection were sufficient to warrant the finding urged by counsel for the Board, it also indicates that the Association functioned exclusively as a benefit society from 1937 to 1942, and therefore that the conduct ascribed to the re- spondent and its representatives cannot be considered to constitute a violation of the Act, since the Association was not a labor organization at the time. It is the contention of the respondent , in this connection , that the Association transformed itself into a labor organization in 1943 by virtue of the agreement which it forced the respondent to execute , and that the organization , through- out the period of contract negotiation and at all times thereafter , was free of employer domination , interference and support. As part of the evidence in support of this contention the respondent cites the fact that the Association, ever since the execution of its agreement , has been alert to protect the interest of its members and has secured substantial concessions from the employer on their behalf. Counsel for the respondent , accordingly, argues that the conduct of the respondent provides no basis for the order of disestablishment sought by counsel for the Board. 2. The status of the department heads Closely related to the factual issues of domination , interference and support, alleged to be material herein, is the disputed question of the respondent 's liability for the activity of its department heads in connection with the administration of the Association. These activities , noted elsewhere in this report, pervade the entire history of the Association . If responsibility for them is to be imputed to the respondent, there would seem to be substantial justification , independently of any other consideration, for a finding that the respondent had interfered with the rights of its employees in a manner proscribed by the Act. Upon the entire record, the undersigned is satisfied that the department heads must be considered, for the purposes of the instant case , as representatives of the respondent. The record shows that the respondent employs approximately 200 workers and carries on its operations in 15 departments , under the general supervision of a plant superintendent with direct responsibility for 12 departments and an assistant plant superintendent with direct responsibility , for the remainder. Although the available data with respect to the distribution of employees among JAMES R. KEARNEY CORPORATION 49 the various departments cannot be considered definitive as to the distribution of such employees throughout the period with which we are concerned, it may, in the opinion of the undersigned, be considered a representative illustration of their relative distribution. At the time for which figures are available , the Fuse Link Department, with 46 employees, was the largest in the plant. Four addi- tional departments contained 10 or more employees. A staff of 5 or more, but less than 10, was maintained in 3 departments, while 5 were staffed by a lesser number 36 For the purposes of the instant case it may be taken as datum that effective supervision at the lowest level cannot be maintained when 1 or 2 representatives of management are responsible for the work of 200 employees . In the average industrial establishment the lowest level of supervision exercises delegated au- thority over a much smaller number of workers, and this was in fact the case in connection with the operations of the respondent. Each of the departments to which reference has been made is under the supervision of a single individual, designated as the department head, responsible directly to the plant superin- tendent or his assistant . Witnesses for the respondent and the Board referred to these individuals, at times, as "lead men" and working foremen. The designa- tion is immaterial. The testimony of Roy Larkin, department head in the Fuse Link Department, establishes beyond peradventure of doubt that he possessed at all times material herein, and continues to possess , substantial authority to issue orders, to check the quality of the work done in his department, to transfer employees within the department according to the requirements of the respondent, and to make effective recommendations with respect to the transfer, discipline, and discharge of production workers in the department for which lie is responsible.37 Larkin testified, credibly, that every other department head, so far as he knew, possessed similar authority; 33 and the respondent clearly recognized the special responsibility of the department heads, as a group, when it agreed, in 1946, to their demand for premium pay. It may be true, as the 36 Comparable figures for the Receiving and Shipping departments do not appear in the record , although R. P Johnson , Receiving Department head, testified that there were three in his department at the present time , exclusive of his own assignment . The record indicates that he was in charge of a larger crew during the war. While it is true that the assignment of a regular department head in some of the smaller departments may appear, upon superficial analysis , to be unnecessary or inappropriate , the record establishes that Superintendent Friedrich and the assistant plant superintendent spend an insignificant portion of their average working day in routine supervision of the departments for which they are responsible . Superintendent Friedrich , on the basis of his testimony , is primarily occupied with matters of over-all production planning and the flow of work. The record contains no testimony with respect to the duties of the Assistant Plant Superintendent. There is no indication that he spends any greater proportion of his time than Superintend- ent Friedrich in routine supervision. 37 According to Larkin's credited testimony, he spends very little time in laying out or inspecting the work, and is occupied for most of the day in general supervision of the de- partment The testimony of Superintendent Friedrich to the contrary is rejected 33 It P. Johnson, Receiving Department head, spends a large proportion of his time in handling material , as do the other employees in the department ; he testified , however, that he directs the work of the others, changes their assignments when required, and did on one occasion effectively recommend an employee for transfer Johnson testified, and the undersigned finds, that he regarded his position as equivalent to that of Larkin and other department heads Grattendick, who testified for the respondent, stated that lie does assembly work, just like the other employees in his department, but admitted that he directs the work of the others on the basis of shipping orders received from Superintendent Friedrich. Neither Grattendick nor Johnson denied the statements of Larkin as to the scope of the authority exercised by department heads. 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent contends, that much of the work required of the employees was rela- tively simple and subject to routine treatment. It may also be true that, as a result, department heads are rarely called upon to exercise their authority. Nevertheless, it is clear, and the undersigned finds, that they were and are the recognized agents of the respondent for the transmission of instructions to its regular production employees-and are, in fact, immediately responsible for the degree of effective supervision required to assure the proper execution of the duties assigned to such non -supervisory personnel. Throughout the period of time with which we are here concerned they have acted and continue to act as spokesmen for the respondent in all of the varied matters which relate to the normal routine of the respondent's work.39 By virtue of the responsibility in- herent in their function they occupy a strategic position with respect to the employees responsible to them. The record establishes that they are regarded by the employees as representatives of management . In the opinion of the under- signed, they may be properly so described .40 It follows, therefore, and the under- signed finds, that the respondent must be held accountable for their activity in the formation and administration of the Association. 3. The relationship between the respondent and the Association Although counsel for the respondent contends that any conclusions as to domination, interference, and support, in connection with the formation and administration of the Association, must necessarily rest upon evidence so trifling and uncertain as to be unworthy of acceptance by the Board, the undersigned finds no merit in this connection. The record indicates that James R. Kearney, Sr., prior to 1937, frequently addressed the employees on matters of mutual interest. It is significant, however, that the first and only occasion on which he spoke to them about their right to self-organization occurred immediately after an attempt by the CIO to initiate an organizational campaign among the employees. In the course of his remarks, Kearney suggested to the employees that they were free to consider the possibility of self-organization in a union without "outside" affiliation, although there is not the slightest indication in the record that such an idea had been the subject of prior discussion among them. His remarks in this connection were coupled with a reference to the benefits already enjoyed by the employees and a substantial indication that the policy of the respondent with respect to these employee benefits would be subject to reconsideration if the employees chose to affiliate with an "outside" union." These remarks, when considered in the light of the circumstances under 39 The undersigned notes again , in this connection , that the current agreement between the respondent and the Association provides for the discussion of any grievance with the "foremen" of the department involved, as the first step in the contractual grievance pro- cedure. Upon the entire record, it is clear that the individuals designated in this report as department heads are the "foremen " referred to in the contract f0 Cf. Matter of Dayton, Price and Company, Ltd., et al, 73 N L R. B. 149. 41 Counsel for the respondent argued at the hearing that any attempt by Mr. Kearney, Sr., to convey the impression described by witnesses for the Board would have been so ridiculous as to render incredible the testimony that such an attempt was made. The undersigned is unable to accept the contention that the threat to which reference is made, whether implied or express, was so ridiculous as to warrant the conclusion that a reason- able business man would never have advanced the suggestion. The record as a whole contains substantial indication that Mr. Kearney, Sr , however well-intentioned as an official of the respondent , was impatient of restraint and yielded with reluctance to external pressure for concessions to the employees . Upon the entire record, the undersigned is satisfied that the remarks of Mr Kearney , Sr, upon the occasion in question , were calcu- lated to convey the impression that the demonstrated liberality of the respondent might be reconsidered if the employees sought representation by an affiliated union. JAMES R. KEARNEY CORPORATION 51 which they were made, constituted a clear indication to the employees that they would be well advised to eschew affiliation with an "outside" union and to con- sider the possibility of an organization of their own.1 The undersigned so finds. By the indication noted, the president of the respondent provided the essential incentive for the formation of the Association. The suggestion embodied in his speech was accepted within 2 hours thereafter. Although there is no indi- cation that supervisory employees of the respondent advised any action to implement the suggestion, it is significant that Rode, who appears to have been the moving spirit in this connection, consulted with an office employee- and that the petition which served to initiate the Association was brought to Rode under circumstances which clearly warrant the inference that it had been prepared in the office of the respondent during working hours. The petition was freely discussed among the employees during the hours which intervened between the address of Mr. Kearney, Sr. and the respondent's luncheon period. According to the record, which has not been contradicted in this respect, the respondent's department heads were aware of and participated in this dis- cussion 93 There is no indication of any attempt to halt discussion of the in- cipient organization on company time. Thereafter, the initial meeting of the Association, conducted for the purpose of electing officers and perfecting the structure of the organization, was announced by a notice on the respondent's bulletin board, and was held upon the respondent's property with the knowledge and acquiescence of Superintendent Friedrich. The close relationship between the respondent and the Association throughout the period from 1937 to 1942 is also clearly revealed by the record. The respond- ent's department heads were active members of the Association, and several of them served it in an official capacity for a substantial portion of the period in question 44 Shortly after the formation of the Association, and throughout the period under review, it was permitted to derive a portion of its income from vend- 42 The respondent contends that it had a right, under applicable precedents, to call a meeting of the employees, to discuss the prospects of employee organization, and to point out that the workers were free to choose between several alternatives in that connection. A full discussion of the respondent's privilege is deferred to a subsequent section of this report. At this point, therefore, the undersigned notes only that the speech as a whole formed an integral part of the course of conduct designated herein as interference with the formation of the Association. 93 The testimony of Larkin in this connection has been noted elsewhere in this report. R. P. Johnson, presently employed as a department head in the shipping department, also testified that he participated in the discussion, with other employees of the respondent. The record, however, contains no clear indication as to the number of departments in June of 1937 or the identity of the individuals then employed as department heads-except in isolated instances. The undersigned, therefore, makes no finding that the admitted participation of Johnson in the discussion constituted participation by a supervisor. The respondent contends that the activity of its supervisors in connection with the formation and administration of the Association is immaterial, in any event, because the record establishes that the Electrical Workers, in their turn, admitted department heads to membership. The undersigned finds no merit in this contention The record contains no indication that department heads, as such, were solicited to join the Electrical Workers. Respondent relies upon the participation of Doxey in the organizational campaign of the "outside" union to indicate the interest of the Electrical Workers in the solicitation of department heads; the undersigned, however, has already found, upon the entire record, that Doxey was not a department head. 44 According to the minutes of the Association, Roy Larkin served it as Vice-President in 1940, and R. P. Johnson as Secretary in 1941. In 1942, Larkin was elected Secretary and Johnson served as Treasurer. 829595-50-vol. 81-5 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing machines upon the premises of the respondent ; indeed, it was admitted by Superintendent Friedrich that the companies which serviced the vending machines had offered a share of the proceeds to the Association as the result of his suggestion.' In 1:;38, on a date which does not appear on the record, President Neikirk of the Association requested and received 25 copies of the Association "By-Laws," hectographed by the respondent without cost to the organization. Counsel for the respondent argues that this element of assistance was insubstantial. The incident is cited, however, not as an indication that the respondent relieved the Association of a substantial financial burden, but to establish the dependence of the Association upon the respondent, even in matters which might be considered "trifling" under normal circumstances. The import of the incident, in other words, is based upon the manner in which it illuminates the close relationship between the respondent and the Association ; the rule of de mintlnis, therefore, has no significance here. Counsel for the Respondent contends that the foregoing facts, even if estab- lished by the record, do not establish a violation of the Act, since the organization allegedly tainted by domination, interference and support was not a labor organ- ization during the period under review. This contention is without merit. Although it may be true, as counsel contends, that the Association throughout the period from 1937 to 1942 was primarily concerned with "benefits and beer," the record clearly shows that it was suggested by the president of the respondent as a counterpoise to any attempt on the part of the employees to achieve self- organization in an affiliated union 46 Several witnesses testified credibly, and without equivocation, that when they signed the petition already noted, in the lane behind the respondent's plant, they understood their action as an indication of their willingness to join an organization designed to forestall the choice of an "outside" union as their bargaining representative . It is significant in this connection that Rode, the principal advocate of the Association, admittedly had the petition signed in the alley because of his desire to make it "legal." This admission constitutes a clear indication that Rode a nd the other sponsors of the Association intended to form a labor organization; the precaution would have been unnecessary in connection with the formation of it benefit society. At the second meeting of the Association, when called upon to discuss "any question" that might arise with respect to the organization, the attorney who had been retained by the newly elected officers gave a talk on "collective bargaining." And the "By-Laws," when adopted, contained specific authorization for the employ- ment of an attorney to act on behalf of the Association in dealing with the 95 Counsel for the respondent suggests that the income winch the Association derived in this matter cannot be considered "financial support" because of the small amount involved Although detailed figures for the period under review have not been made available, those for a later period, in which the dues of the Association were substantially higher, indicate that canteen and Coca-Cola income then supplied more than 13% of the Association s regular monthly receipts In view of the fact that the monthly dues of the organization were substantially lower in the period from 1937 to 1942 , and even taking into account the implication of witnesses foi the respondent that the number of employees was substantially less than the present complement during this period, the undersigned infers and finds that the proportion of Coca-Cola and canteen income to the total regular income of the Association during the period in question equaled or exceeded the proportion which was derived in the period from our victory in the war to the date of the hearing The undersigned does not consider this proportion insubstantial. See, in this connection , Matter of Gilfillan Bros . Inc, 53 N. L. R B 574 enf'd as modified 148 F. (2d) 990 ( C. C A. 9 ) , Matter of Curtiss-Wright Corporation , 39 N. L R. B. 992. 46 See Matter of Tampa Electric Company, 56 N. L. R. B. 122Q. JAMES R. KEARNEY CORPORATION 53 respondent on matters concerning the working conditions of employees. In addition, the procedure established by the "By-Laws" for the adjustment of disputes between members of the Association and the management, although completely inappropriate when considered in connection with the operation of a benefit society, is obviously consistent with the aims and objectives of an Associa- tion designed to function as a labor organization. Although it is true, as counsel for the respondent contends, that the Associa- tion was largely inactive during the period under review, in matters related to wages, hours and working conditions, the minutes of the Association do estab- lish that on several occasions matters with which a labor organization might be legitimately concerned were the subject of discussion by the membership. Spe- cific reference is made in this connection to the discussion with respect to the improvement of the parking lot, the change to a weekly pay period, the suggested "acceptance" of a publication devoted to the interest of independent unions, and the meeting in August of 1941 at which the respondent's factory superin- tendent discussed his policy with respect to the assignment of overtime work. Secretary Larkin, one of the Association officers, testified that he regarded it as a labor organization before the execution of the contract. Upon the entire record, and particularly in the light of the facts recited above, the undersigned finds no merit in the contention of the respondent that the Association, during the period from 1937 to 1942. was not a labor organization within the meaning of the Act. It follows, and the undersigned finds, that the domination, inter- ference and support which characterized the relationship between the respondent and the Association throughout the period under review constitutes a course of conduct violative of the Act. Even if it be assumed, for the purpose of argument, that the contention of the respondent with respect to the early history of the Association as a benefit so- ciety correctly conceives the fact, the history of employer domination, interfer- ence and support already noted must be held sufficient to disqualify the Association from acting as the representative of the employees after the execution of the 1943 agreement. The respondent argues, in effect, that the transformation of the Association from a benefit society to a labor organization occurred contemporaneously with the negotiation and execution of the agreement, that no affiliated union was active among the employees at the time when the organization was recognized as their representative, that the recognition accorded by the respondent was not accompanied by conduct proscribed by the Act, and that the transformation of the organization from a benefit society to a labor organization represented, in effect, a "clear and open cleavage" which served to purge the Association of its prior relationship with the respondent and enabled it to function thereafter as the freely chosen representative of the employees. The argument of the respondent, although well articulated and worthy of con- sideration, misconceives the nature of the problem with which we are here concerned. Upon the respondent's view of the facts, accepted as true for pur- poses of the present discussion, the question presented for decision cannot be said to involve an organization subjected to challenge as the "successor" of an association clearly dominated, interfered with and supported by an employer within the meaning of the Act. In conventional cases involving such a "suc- cessor" organization, it is true, the Board has held that the organization carried no taint of illegality if the evidence established that its illegal predecessor had been dissolved or disestablished, and if the new organization had been formed thereafter, under circumstances which established its character as a truly in- 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dependent association. It is in such cases, therefore, that the conclusions of the Board depend upon the ability of the parties to establish a so-called "clear and open cleavage" between the organization found to be illegal and the organization subjected to challenge as a successor. In the instant case, however, the re- spondent actually argues that the Association, an organization to which the Act did not apply, became a labor organization under circumstances which would negative the conclusion that it had been subjected to domination, interference or support during the period of its transformation and thereafter. The argu- ment that the metamorphosis established a "line of fracture" between the earlier function of the Association and its subsequent course of conduct is completely inappropriate, therefore, and misconceives the significance of the cases in which the concept was applied. Even if the contention of the respondent with respect to the earlier character of the Association is accepted as true, the most appropriate approach to the problem posed by the transformation is that suggested by counsel for the Board, which seeks to analogize the instant case to those in which an organization formed before the passage of the Act was challenged as illegal after the adoption of the statute.47 In all such cases it is well established that evidence of domina- tion and interference with the formation of the organization, together with evidence of support before the passage of the Act, may properly be considered and given weight in determining whether the organization falls within the bar of the statute thereafter. Similar reasoning is appropriate here, and even if it be conceded, for the purpose of argument, that the conduct of the respondent in connection with the formation and development of the Association may not have been illegal per se at the time, it may nevertheless be evidence worthy of consideration in determining whether the Association is capable of acting as a representative of the employees at any later date. Upon the entire record, then, and regardless of the view adopted with re- spect to the history of the organization, the undersigned finds that the relation- ship between the respondent and the Association in its formative period and early years, particularly in view of the activity of department heads in the formation and administration of the latter, was such as to bar the possibility that the organization might become, at any later date, an uninhibited representative of the respondent's employees, short of complete disestablishment and reformation- of which there is no evidence here. The record also establishes, however, contrary to the contention of the re- spondent, that the domination, interference and support which preceded the ne- gotiation and execution of the contract continued thereafter without substantial change. Alhough it may be true, as the respondent contends, that the idea of a contract with the respondent was initiated by the employees, and that it arose independently of an organizational activity by an affiliated union, a preponder- ance of the evidence establishes that the respondent accepted the Association as the representative of its employees without requiring any proof of its status as a majority representative before the execution of the contract's In effect, as counsel for the Board contends, the rights of the Association with respect to 47 Matter of Edward G. Budd Manufacturing Company, 41 N L. R. B. 872 , 884, enforced 138 F. ( 2d) 86 (C. C. A. 3) and cases therein cited ; N. L R B. V. Southern Bell Telephone and Telegraph Company, 319 U. S. 50 48 Although Johnson, the head of the contract committee, testified consistently with the testimony of Vogel, that an inquiry had been made as to the Association's majority status, he could not recall the date. In any event, no proof of majority was supplied. JAMES R. KEARNEY CORPORATION 55 recognition were assumed to be already established. Thereafter, and throughout the period of operation under the 1943 contract, the department heads who had previously been active in the Association continued to serve it as officers and to maintain their active participation in its afairs.45 The financial support derived by the organization from the canteen and Coca-Cola machines continued without interruption. Although it is true that the Association carried a number of grievances with respect to rates of pay to the officials of the respondent and secured the agreement of the respondent with respect to substantial adjustments in this connection, other elements in the relationship, notably the acquiescence of the Association in the request that it abandon its right to insist on maintenance of membership, the declared unwillingness of President Grattendick to press the demands of the Association for a change in the pay period practices of the re- spondent, and the occasion on which the secretary of the Association provided James R. Kearney, Sr., with a summary of the events which had occurred at a special meeting of the organization, constitute substantial evidence of the degree to which the Association remained subject to the effective control of the respondent. Counsel for the respondent argued strenuously that the Association throughout the period in which it has been active as a labor organization, functioned ef- fectively in the interest of the employees and won substantial concessions from the respondent on their behalf. The undersigned does not consider the record persuasive in this connection. Although it is true that the respondent's em- ployees, as a group, received substantial pay increases under the "Kearney Plan" and other adjustments in the respondent's rates of pay, the undersigned notes that almost every concession cited by the respondent, from the time a contract was suggested by the counsel of the Association, was granted only after prolonged delay ; and that the concessions themselves, in almost every instance, were finally granted as the result of external pressure-such as the organizational activity of the Electrical Workers in 1944, and the exigencies of the wartime manpower shortage. On two significant occasions, in the summer of '1944 and the spring of 1946, the respondent agreed to changes which it had previously refused to con- sider only because of indications that the employees were considering an "out- side" affiliation. Upon the entire record, the undersigned infers and finds that the concessions to which counsel refers were offered primarily to persuade the employees that such "outside" affiliation was not essential for the promotion of their interests ; they cannot be considered, in the light of all the circumstances, as the fruits of bargaining contemplated by the Act. In addition, and in any event, it is clear as a matter of law that the available evidence with respect to the effective activity of the Association cannot serve to negate a finding that the relationship between it and the Respondent repre- sented a violation of the Act, when other evidence of probative value establishes that the employer had in fact dominated, interfered with, and supported the organization in question.B° The undersigned so finds. 49 In addition to the service of Grattendick as the present head of the organization and that of Larkin as its present Secretary , R. P. Johnson , Louis Dean , Roy Clyne, and Wesley Vilda , all department heads , have held official positions with the Association. Vilda, the head of a department with 15 employees , is the current Vice-President of the organization GIN. L. R. B. v. Link-Belt Co, 311 U . S. 584 ; N. L. R. B . v. Southern Bell Telephone and Telegraph Company, 319 U. S. 50. Matter of Neptune Meter Company, 66 N. L. it. B. 292, enf'd with modifications , 158 P. (2d) 448 (C. C. A. 2). 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 Interference, restraint and coercion By the activity of Mr. James R. Kearney, Sr., in June 1937, the Respondent, in effect, cautioned its employees against becoming or remaining members of an outside labor organization , and suggested to the employees the possibility of economic losses if they joined, assisted or selected an outside labor organization as their bargaining representative." Similarly-insofar as the acquiescence and participation of the Respondent's supervisory personnel in the discussion of an independent organization on company time, the preparation of a petition upon the Respondent's time and property, and the acquiescence of the Respondent's superintendent in the conduct of an emplo3 ee meeting upon the Respondent's property lent the weight of the Respondent's prestige to the organization of the Association-it must be said that the Respondent, in the person of its supervisory employees, urged and persuaded its other employees to join the Association and retain their membership thereafter." The complaint alleges that the Respondent interfered with, restrained, and coerced its employees by granting individual wage increases and giving auto- matic wage increases at a time when the Electrical Workers were attempting to organize the plant. Upon the record, the only occa,,ion to which this allega- tion refers is that which was marked by the adoption of the "Kearney Plan," at the height of the Electrical Workers' organizational campaign in August of 1944. The evidence establishes that a wage adjustment , comparable to the "Kearney Plan," was first suggested at a meeting attended by representatives of the Re- spondent and the Association in May of the year in question, prior to the inception of organizational activity on behalf of the Electrical Workers. It is clear, how- ever-as already noted-that negotiations with respect to the wage adjustment lagged until the period immediately after the regular August meeting of the "Although it may be true , as counsel for the Respondent contends, that an employer is piivileged , under certain circumstances, to address his employees on company time and property with respect to the necessity of self-organization and the several alternatives atailable to them in that connection , his argument fails to consider the effect of Mr. Kearney, Sr 's suggestion that a logs of employee bcnehts might follow affiliation with an "outside" union Such a suggestion is inherently coercive and calculated to restrain employees in the exercise of rights guaranteed by the Act. When transmitted to them under the circumstances revealed by the record it could only serve to transform an other- wise temperate and considered analysis of the choice before them in a covert threat of re- prisal if they chose a course of action which the Respondent did not favor. And since the suggestion of possible loss derived its impact upon the employees from an effective contrast with the exposition of benefits already enlo3ed, the speech as a whole must be considered as an independent instance of interference , restraint and eoercion , proscribed by Section 8 (1) of the Act. 52 Counsel for the Board contended that the 8 ( 1) allegation ,, of the complaint were also supported by evidence that Superintendent Friedrich had acquiesced in membership solici- tation in behalf of the Association by ordinary employees on company time and property, and that he had expressed himself on one or another occasion as to the obligation of the employees to join and maintain membership in that organization . The testimony adduced in this connection is without corroboration It is clear, however, on the other hand, that Superintendent Friedrich interposed no effective obstacle to the open solicitation of the employees by other workers on company time and property in behalf of the Electrical workers, at the height of its organizational campaign in the summer of 1944, although fully aware of developments in this connection In the absence of any evidence as to disparity of treatment, the undersigned concludes that the record does not warrant a specific finding that the Respondent interfered with, coerced or restrained its employees in the manner to which reference was made by counsel for the Board It will therefore be recommended that Paragraph 6, sub -paragraph ( d) of the complaint, which charges that the Respondent permitted and encouraged the solicitation of members by the As- sociation on the Respondent ' s premises during working hours, be dismissed JAMES R. KEARNEY CORPORATION 57 Association at which the employees were addressed by a representative of the Electrical Workers. Thereafter, on August 14, 15, and 17, negotiations for the wage adjustment were completed. It is obvious, and the undersigned finds, that the organizational activity of the Electrical Workers provided the impetus for ultimate agreement upon the "Kearney Plan " The agreement was presented to the employees at the next regular meeting of the Association, in conjunction with a suggestion that the representative of the Electrical Workers, who had been promised a further opportunity to speak, be denied the opportunity which had been promised him. Upon the entire record, the undersigned infers and finds that the timing of the `,Kearney Plan" was calculated to persuade the employees that affiliation with an "outside" union was not essential for their welfare, and that the presentation of the "Kearney Plan," under the circumstances revealed by the record, represented a violation of Section 8 (1) of the Acts' It is also significant in this connection that several of the department heads- Johnson, Strotlikamp and Parks-expressed themselves at the time as opposed to the idea of "outside" affiliation and deprecated the advantage which might be derived from abandonment of the Association. In addition, Superintendent Fried- rich, as found above, admonished an employee, on one occasion, not to pay atten- tion to a known adherent of the Electrical Workers. The statements to which reference is made, although offered merely as expressions of opinion, which might well be considered privileged speech under other circumstances, must be evaluated in the light of the context in which they were made. So considered, it is clear that the statements form part of a course of conduct properly characterized as in- terference with the rights guaranteed in Section 7 of the Act, and the under- signed so finds. 5. Conclusions Upon the entire record, the undersigned finds that by suggesting to its employees the possibility of organization in a "union" of their own, coupled with a covert threat of economic losses if they chose to affiliate with an "outside" union, by its acquiescence in the use of company time and property for activities in connection with its formation, by the suggestion of Superintendent Friedrich that the As- sociation be permitted to share the proceeds of the vending machines upon the Respondent's property, by the active participation of its department heads in administration of the Association throughout the period from 1937 to the date of the hearing, and by the course of conduct set forth in this report, the Respond- ent has dominated and interfered with the formation and administration of the Association and contributed to its support, in violation of Section 8 (2) of the Act. In addition, the undersigned concludes and finds that by its course of conduct in this connection, by suggesting the possibility that employee benefits previously granted might be lost if the employees affiliated with an "outside" union, by the comments of its supervisory employees with respect to the merits of such affil- iation, and by the presentation of a plan for substantial wage adjustments at the height of an organizational campaign by the Electrical Workers-calculated to persuade the employees that affiliation with an "outside" union was not essential to their welfare, the Respondent has interfered with, restrained, and coerced its employees generally, in their exercise of the rights guaranteed by the Act. ca There is no indication, however, that officials of the Respondent expressly credited the wage adjustment to the Association in order to induce its employees to reject the thought of affiliation with the Electrical Workers. The undersigned, accordingly, will recommend that the allegations of the complaint in this connection, in Paragraph 6, sub- paragraph (f) be dismissed. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent engaged in and is engaging in un- fair labor practices affecting commerce, it will be recommended that the Re- spondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent dominated and interfered with the for- mation and administration of the Kearney Employees Benefit Association, and contributed financial and other support thereto. The effects and consequences of such domination, interference and support-and particularly the inclusion of de- partment heads in a bargaining unit of production and maintenance workers- render the Association incapable of serving the employees of the Respondent as a genuine collective bargaining agency. The Respondent's continued recognition of the Kearney Employees Benefit Association as the bargaining representative of its employees, therefore, constitutes and will hereafter constitute a continuing obstacle to the unimpeded exercise by such employees of their right to self-organ- ization and collective bargaining through representatives of their own free choice. It will be recommended, therefore, that the Respondent withdraw all recognition from the Kearney Employees Benefit Association as the representative of any of its employees for the purpose of dealing with the Respondent in respect to griev- ances, labor disputes, rates of pay, hours of employment or other conditions of employment, and completely disestablish the Kearney Employees Benefit Associa- tion as such representative. The agreement between the Respondent and the Association, as amended, also constitutes an essential part of the unfair labor practices found, and represents a means whereby the unfair labor practices in question have been, and would continue to be, perpetuated. It will be recommended, therefore, that the Re- spondent cease and desist from performing or giving effect to the contract afore- said, or any amendment, extension, or renewal thereof, or any other contract, agreement or understanding with the Kearney Employees Benefit Association in respect to grievances, labor disputes, wages, rates of pay, hours of employment and other conditions of employment. Nothing in this Intermediate Report, how- ever, should be construed to require the Respondent to vary or abandon those provisions of the agreement, or any extension, renewal, or modification thereof, which establish wages, hours of employment, rates of pay, seniority or other substantive features of its relationship with the employees themselves which the Respondent may have established in performance thereof, or to prejudice the assertion by employees of any rights they may have under the agreement, as amended. The maintenance of a company-dominated and supported organization repre- sents a ready and effective method of obstructing the self-organization of em- ployees, and preventing free choice on their part of a representative for the purposes of collective bargaining. The lengthy history of the Respondent's domination and interference with respect to the Kearney Employees Benefit As- JAMES R. KEARNEY CORPORATION 59 sociation, marked in particular by the action of the Respondent's president, who initiated the discussion of such an organization among the employees, the ac- tivity of the Respondent's department heads therein-effective leaders of the organization throughout its history-the continued financial support accorded to the organization, and the execution of a closed-shop contract with it in 1943 constitutes a course of conduct which indicates a settled purpose to defeat self- organization and its objects among the employees of the Respondent. Although it is true that responsible agents and officers of the Respondent did not engage in active opposition to the organizational campaign of the Electrical Workers, the conduct of the Respondent and its agents in the course of that campaign constituted a clear indication of the Respondent's preference with respect to the organization of its employees, and served effectively to convince the employees that their interest would best be served by continued adherence to the Associa- tion. Upon the entire record, therefore, the undersigned concludes and finds that the conduct of the Respondent reflects a determination generally to interfere with, restrain and coerce its employees in the exercise of the rights guaranteed by the Act. Because of the Respondent's unlawful conduct and the under- lying attitude of opposition to the purpose of the Act revealed thereby, the un- dersigned is convinced that the unfair labor practices found are closely related to the other unfair labor practices proscribed by the Act, and that a danger of their commission in the future is to be anticipated from the course of the Re- spondent's conduct in the past.°4 The preventive purpose of the Act may be frus- trated unless the order of the Board is co-extensive with the threat. In order therefore to make effective the interdependent guarantees of Section 7, to pre- vent the recurrence of unfair labor practices and thereby to minimize industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, the undersigned will also recommend that the Respondent be ordered to cease and desist from interfering with, restraining or coercing his employees in any other manner, in the exercise of the rights guaranteed them by the Act. Upon the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. The International Brotherhood of Electrical Workers, Local 1145, affiliated with the American Federation of Labor, and the Kearney Employees Benefit As- sociation, unaffiliated, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and administration of the Kearney Employees Benefit Association, and by contributing financial and other support to it, the Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 64 N. L. R. B. v. Empress Publishing Company, 312 U S. 426, 437: May Department Stores Company v. N. L. R. B., 66 S. Ct. 203, 213, 326 U. S. 376. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the Respondent, James R. Kearney Corporation, of St. Louis, Missouri, its officers, agents, suc- cessors and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of the Kearney Em- ployees Benefit Association or with the formation or administration of any other labor organization of their employees, and from contributing financial or other support to the said labor organization, or to any other labor organization of their employees ; (b) Recognizing or in any manner dealing with the Kearney Employees Bene- fit Association, or any successor thereto, as the representative of any of their 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 ; (e) Performing or giving effect to their agreement of December 11, 1h43, with the Kearney Employees Benefit Association or any amendment, extension, or renewal thereof, or any other contract, agreement or understanding with the aforesaid organization in respect to grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment ; provided, however, that nothing herein shall be construed to require the respondent to vary those provisions of the said agreement or any extension, renewal or modification thereof, which establish wages, hours of employment, rates of pay, seniority or other substantive features of the relationship between the respondent and its employees, or to prejudice the assertion by employees of any rights they may have under such an agreement ; (d) In any other manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Electrical Workers, Local 1145, affiliated with the American Federation of Labor, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from the Kearney Employees Bene- fit Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment or other conditions of employment, and completely disestablish the Kearney Employees Benefit Association as such representative ; (b) Post at its plant in St. Louis, Missouri, copies of the notice attached to this Intermediate Report, marked "Appendix A." Copies of the said notice, to be furnished by the Regional Director for the Fourteenth Region, after being duly signed by the Respondent representative, shall be posted by the Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material; (c) File with the Regional Director for the Fourteenth Region on or before ten (10) days from the date of the receipt of this Intermediate Report, a report JAMES R. KEARNEY CORPORATION 61 in writing setting forth in detail the manner and form in which the Respondent has complied with the foregoing recommendations. It is recommended that unless on or before ten (10 ) days from the date of receipt of this Intermediate Report the Respondent notifies the 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 Paragraph 6, sub-paragraphs ( d) and (f) of the complaint be dismissed , for the reasons noted elsewhere in this report. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or coun- sel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such excep- tions 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 ; and any party or counsel for the Board may, within the same period , file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Section 203.39, 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 service of the order transfer- ring the case to the Board. MAURICE M. MILLER, Trial Examiner. Dated April 15, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE HEREBY DISESTABLISH KEARNEY EMPLOYEES BENEFIT ASSOCIATION as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1145, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. JAMES R. KEARNEY CORPORATION, Employer. By ------------------------------------- (Representative ) (Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material.