International Union, United Automobile, Aircraft & Agricultural Implement Workers of America

In the Matter Of INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO) ; LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO) and THE NORTH ELECTRIC MANUI'ACTURING COMPANY In the Matter of TIIE NORTH ELECTRIC MANUFACTURING COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA (CIO) Cases Nos. 8-CB-7, 8-CA-d3, and 8-CA-30, respectively. Decided June 13, 1949 DECISION AND ORDER On November 30, 1948, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that each of the Respondents had engaged and was engaging in certain unfair labor practices, and recommending that each of them cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Company and the Unions filed exceptions to the Intermediate Report and supporting briefs.' The Board has reviewed the rulings of 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications noted below.2 i The Company's and the Unions' requests for oral argument are denied, because the record and briefs adequately present the issues and positions of the parties 2 we do not adopt that portion of the Intermediate Report which characterizes the picketing as "mass picketing." We find nevertheless that the picketing, insofar as it physi- cally prevented employees from entering and leaving the Company 's premises as described in the Intermediate Report, violated Section 8 (b) (1) (A). Nor do we agree with the Trial Examiner that the "destruction of plant property" by the Unions violated the Act merely because it "had the effect of keeping employees from going to work. . . ( Em- phasis supplied ) But we do find that the destruction of plant property in this case violated the Act because it was calculated to, and did, constitute a threat to employees that they too would have to risk physical violence if they attempted to enter the struck plant. 84 N. L.R B,No 23. 136 THE NORTH ELECTRIC MANUFACTURING COMPANY ORDER 1,37 Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : I. The Respondent, the North Electric Manufacturing Company, Galion and Mt. Gilead, Ohio, and its officers, agents, successors, and assigns shall : 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Inter- national Union, United Automobile, Aircraft, and Agricultural Im- plement Workers of America, or Local 951, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, each affiliated with the Congress of Industrial Organiza- tions, 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 mutual aid or protection, and to refrain from any or all 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 amended Act. - 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its plants in Galion and Mt. Gilead, Ohio, copies of the notice attached hereto marked "Appendix A." 3 Copies of said notice, to be supplied by the Regional Director for the Eighth Region, shall, after being duly signed by the Company, be posted by the Company ,immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter, in conspicuous places,. in- cluding all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Company to insure that such notices are not altered, defaced, or covered by any other material; (b) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. II. The Respondents, International Union, United Automobile, Aircraft & Agricultural Implement Workers of America (CIO), and Local 951, International Union, United Automobile, Aircraft & Agri- cultural Implement Workers of America (CIO), and their agents, shall: S In the event that this Order is enforced by a 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." 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from restraining or coercing employees of The North Electric Manufacturing Company at the plants at Galion and Mt. Gilead, Ohio, in the exercise of their-rights guaranteed in Section 7 of the Act, including the right to refrain from self-organization and concerted activities, and from joining or assisting International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (CIO), or Local 951, International Union, United Automo- bile, Aircraft and Agricultural Implement Workers of America (CIO). 2.' Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at the business offices and meeting halls of each of the Unions in or near Galion and Mt. Gilead, Ohio, where notices or communications to members are customarily posted, copies of the notice attached hereto, marked "Appendix B." 4 Copies of the said notice, to be furnished by the Regional Director for the Eighth Region, after being duly signed by each of the Unions, shall be posted by the said Unions immediately upon receipt thereof, and maintained for a period of sixty (60) consecutive days thereafter. Reasonable steps shall be taken by each of the Unions to insure that said notices are not altered, defaced, or covered by any other material; (b) Furnish the Regional Director for the Eighth Region signed copies of the notice, to be delivered by him to the Company for post- ing, the Company willing, on the lulletin boards of the Company in its Galion and Mt. Gilead, Ohio, plants where notices to employees are customarily posted, such notices to be maintained by the Company for a period of sixty (60) consecutive days thereafter; (c) Notify the Regional Director for the Eighth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Unions have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- 'missed insofar as it alleges that the Company bargained with Inde- pendent Workers Union in violation of the Act. MEMBER Gray took no part in the consideration of the above Deci- sion and Order. 4 In the event that this Order is enforced by a 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." THE NORTH ELECTRIC MANUFACTURING COMPANY APPENDIX A NOTICE TO ALL EMPLOYEES 139 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 NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization to form labor organizations, tb join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA, OR LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IM- PLEMENT WORKERS OF AMERICA, each affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, 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 mutual aid or protection, or to refrain from any or all such such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the amended Act. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named unions or any other labor organization, except as stated above. THE NORTH ELECTRIC MANUFACTURING COMPANY, Employer. Dated------------------------- By----------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To ALL MEMBERS OF INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO), AND LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO'), AND TO ALL EMPLOYEES OF THE NORTH ELECTRIC MANUFACTURING COMPANY 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 no you that : WE WILL NOT restrain and coerce employees of THE NORTH ELECTRIC MANUFACTURING COMPANY at its Galion and Mt. Gilead, Ohio, plants, in the exercise of their rights guaranteed in Section 7 ,of the Act including the right to refrain from self-organization and concerted activities, and from joining and assisting INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICUL- TURAL IMPLEMENT WORKERS OF AMERICA (CIO), AND LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRT- CULTURAL IMPLEMENT WORKERS OF AMERICA (CIO). INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO), Labor Organization. By ---------------------------------------------- (Representative ) (Title) LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (CIO), Labor Organization. By ----------------------------------------------- (Representative ) (Title) Dated ---------------------- This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. (THE ' NORTf3 ELECTRIC MANUFACTURING COMPANY INTERMEDIATE REPORT 141 Philip Fusco, Esq., for the General Counsel. Messrs. Robert H. Jamison and Fred 0. Burkhalter, of Cleveland , Ohio, for- the Company. Lowell Goerlich, Esq.; of Toledo, Ohio, for the Unions. STATEMENT OF THE CASE Upon a charge duly filed on March 3,1948, by The North Electric Manufacturing Company, Galion , Ohio, herein called the Company, ( Case 8-CB-7), the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the then acting Regional Director for the Eighth Region ( Cleveland, Ohio ), issued his complaint against International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and Local 951 , International Union, United Automobile , Aircraft and Agricultural Implement , Workers of America, each being affiliated with the Congress of Industrial Organizations , and herein jointly called the Respondent Unions, and respectively , International and Local 951, alleging that the said: Unions, and each of them , had engaged in, and are engaging in, unfair labor- practices affecting commerce, within the meaning of Section 8 (b) (1) and. Section 2 ( 6) and (7) of the National Labor Relations Act, as amended , ( Public Law 101, 80th Congress , Chapter 120, First Session ), herein called the Act. Upon two separate amended, charges ( Cases 8-CA-25 and 8-CA-30), duly filed by,the International on August 26, 1948, the General Counsel , by the aforesaid acting Regional Director , issued his complaint against the Respondent Company alleging that at its Galion and Mt. Gilead , Ohio, plants the said Company had engaged in, and is engaging in, unfair labor practices affecting commerce , within the meaning of Section 8 (a) (1) and Section 2 (6) and ( 7) of the Act. On August 31, 1948, the aforesaid acting Regional Director issued an order, pursuant to Section 203.33 (b) of the Board 's Rules and Regulations , consolidating the above numbered cases. On the same day, August 31, 1948, copies of the com- plaint, charges , order of consolidation , and notice of hearing, were duly served upon the Company, the International , and Local 951. With respect to the unfair labor practices , the complaint in Case 8-CB-7, alleged, in substance, that the Unions , on or about August 20, 1947, caused the Company's employees to strike and during the course of that strike, which con- tinued, intermittently, until November 3, 1947, through certain named officers and agents of the said Unions restrained and coerced the Company 's employees in the exercise of the rights guaranteed them in Section 7 of the Act In Cases 8-CA-25 and 8-CA-30, the complaint alleged, in substance, that since July 1947, the Company, through certain named officers, supervisors , and agents (a) has interrogated the employees of its Galion , Ohio, plant concerning the ac- tivities of the Unions and the interest of the employees therein, ( b) has engaged in surveillance of the Unions' meetings, (c) has threatened to close its Galion plant if the Unions successfully organize it, and (d) has encouraged membership in a labor organization known as the Independent Workers Union of The North Electric Manufacturing Company, herein called Independent , and has bargained with that organization despite the knowledge that Local 951 claimed to represent a majority of the employees. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company duly filed an answer in Cases 8-CA-25 and 8-CA-30 admitting certain factual allegations of the complaint with respect to the operations and structure of its business but denying the commission of the alleged unfair labor practices. The Unions duly filed•a joint answer in Case. 8-CB-7, denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held in Galion, Ohio, from October 5 to 12, 1948, both dates inclusive, before Howard Myers, the undersigned Trial Ex- aminer. Each party was represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues was afforded all parties. . Evidence was first taken in support of the complaint in Cases 8-CA-25 and 8-CA-30 and then in support of the complaint in Case 8-CB-7. The undersigned stated on the record that he would consider the record as a whole in making his findings, conclusions, and recommendations and would rely, for that purpose, upon all the relevant and probative evidence appearing in the record offered in connection with either complaint. At the conclusion of the taking of evidence, counsel for the Respondent Unions made various motions to dismiss certain portions of the complaint in Case 8-CB-7. The motions were denied. Counsel for the said Unions then moved to dismiss the said'complaint in its entirety on the ground of lack of proof: Decision'thereon was received. The motion is hereby denied. Counsel for the Respondent Com- pany then made various motions to dismiss certain portions of the complaint in Cases 8-CA-25 and 8-CA-30, some of which were granted and others denied. Counsel then moved on behalf of the Respondent Company, to dismiss the said complaint in its entirety for lack of proof. Decisions thereon was reserved. The motion is hereby denied. The parties waived their rights to argue orally before the undersigned. They were then informed that they might file with the undersigned briefs and/or proposed findings of fact and conclusions of law on or before October 27, 1948. Upon application to the Chief Trial Examiner the time to file briefs and proposed findings of fact and conclusions of law was extended to November 19, 1948. Briefs and proposed conclusions of law have been received from the counsel for the Re- spondent Company which have been duly considered by the undersigned. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The North Electric Manufacturing Company, an Ohio corporation, is engaged in the manufacture, sale, and distribution of telephones, telephone switchboards, and other kindred equipment, supplies, and parts. During 1947, the Company purchased raw materials in excess of $500,000 from points located outside the State of Ohio which materials, representing a substantial percentage of its total 1947 purchases, were shipped from those points to its Galion and Mt. Gilead, Ohio, plants. The Company owns and operates plants located at Galion and Mt. Gilead, Ohio, and prior to January 1, 1948, parts and finished products were exchanged between said plants and their operations were closely integrated. , Since January 1948, however, each plant makes its own purchases and sales. The purchases for each plant from points outside the State of Ohio during 1948, have been substantial THE NORTH ELECTRIC MANUFACTURING COMPANY 143 and the sales from both, plants to customers located outside-the State of, Ohio aggregate in excess of $500,000. The Company concedes that its operation at both the Galion and Mt. Gilead, Ohio, plants are, in'interstate commerce;, within the meaning of'the Act and the undersigned so find's. ' II. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 951, International Union, United Automobile Aircraft and Agricultural Implement Workers of America, each being affiliated with the Congress of Industrial Organizations, and The Independent Workers Union of The North Electric Manufacturing Company of Galion, Ohio, unaffiliated, are labor organizations admitting to membership employees of the Respondent Company. III. THE UNFAIR LABOR PRACTICES A. The background In the Spring of 1947; the International was called' upon by the Company's employees to organize the Galion plant. It was not until the middle of July Of that year, however, that the International commenced an organizational campaign. On July 22, Edward J. Duck, an International representative, and the person designated by the Independent to conduct the campaign, held an open meeting in a public hall in Galion. At the conclusion of the meeting, Duck wrote the Company stating that the majority of the employees had designated the Unions as their collective bargaining representatives and requested the Company to recognize the International, or Local 951, as such representative' No reply was received. On several occasions after July 22, Duck telephoned the Company and asked to speak to either President F. R. McBerty or his son, Vice-President R. K. McBerty, but was unable to talk to either. On or about July 27, Duck called the Company and spoke to Vice-President Lloyd Bender and told him .of his inability to reach either one of the McBertys and was informed by Bender that F. R. McBerty was out of town on vacation. Bender assured Duck that he or some other official would try to reach F. R. McBerty and request authority to deal with Duck. Bender also said that un- doubtedly he would be the person designated by the Company to conduct the negotiations. Not hearing from the Company by August 5, Duck filed, on that day, a peti- tion with the Board for an investigation and certification of representatives. On August 19, representatives of the Unions and representatives of the Company met in the latter's offices with a Field Examiner of the Board. There, the Unions requested, after agreement had been reached with respect to the appropriate unit, that the Company agree to a consent election. At first, the Company declined to agree, but later requested time to further consider the matter. Duck agreed to stave off for 24 hours the strike which the membership of" Local 951 had voted to call, and which ' had the International's approval, to await the Company's decision. I The record is silent as to when Local 915 was chartered and it is also silent with respect to which organization requested recognition. 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next afternoon at about 1 o'clock, any hour or two short of the 24 hours granted the Company to announce its decision relative to the consent election, employees commenced leaving the plant ostensibly for the purpose of attending a union meeting. Throughout the remainder of the afternoon the balance of the employees left the plant and those employed on the shift that was to start at about 3: 30 were prevented from entering the plant by the pickets. In short, the strike was on. The following day, a strike was called by the employees of the Mt. Gilead plant. B. Cases 8-CA-25 and 8-CA-30 Interference, rdstraint, and coercion As found above, the first open meeting of the Unions was held on July 22, in a public hall in Galion, Ohio. Arthur E. Sherrer, a former employee but during July and August 1947, admittedly a Company supervisor, attended. The following day, according to the testimony of former employee Mary Ann Berger, she had a conversation with Sherrer in which the following ensued : I said, "Sherrer, the fellows are madder than hell at you for going up to that meeting, as a stooge," and he said, "I didn't want to go up there, but they asked me to," and he says, "I told them that the fellows would be mad." And he said, "Bender still wanted me to go, so I figured as long as I was going up there they could pay me for it, and they did." Berger also testified that she immediately told-two other female employees, Ruth Baker and Frances Rush, what Sherrer had told her; that about an hour later Sherrer came to where she, Baker, and Rush were working; that Rush asked Sherrer "if he had been sent up to stooge at the Union meeting" ; and that Sherrer replied that the Company had requested him to attend and it paid him for doing so. Baker's testimony regarding this incident, in the main, substantiates that of Berger's. Rush did not testify. While not specifically denying the testimony of Berger and Baker regarding his conversations with Berger and Rush relative to attending the Unions' meet- ing, Sherrer testified that he told Berger, Rush, and Baker that he attended the meeting because he "had been asked to go." He added, however, that by the words "had been asked to go" he construed the handbills distributed by the Unions a few days before the meeting that all the employees of the Company were invited to the open meeting and therefore he assumed that the invitation was addressed to supervisory as well as nonsupervisory employees. Berger and Baker were forthright and honest witnesses while Sherrer was not. From his demeanor on the witness stand, the undersigned received the inescapable impres- sion- that Sherrer was withholding the true facts, not only regarding details with respect to his conversation with Berger and Rush but also with respect to this conversation, as more fully set forth below, with Bender, with Production Supervisor Else, and with his then 'immediate superior, A. J. McDonough' Under the circumstances, the undersigned finds that Berger's and Baker's testi- mony substantially set forth what was said during Sherrer's separate conversa- tions with Berger and Rush. The Respondent Company admitted that Sherrer attended the aforesaid meet- ing but contended in its brief, and at the hearing, that. as Sherrer testified, he attended because he was led to believe that the circular distributed, on or about July 17, over the signature of Duck and addressed "To All North Electric Em- 2 McDonough is no longer in the employ of the Company. ' THE NORTH ELECTRIC MANUFACTURING COMPANY 145 ployees" was an invitation addressed to both nonsupervisor and supervisory employees. The Company also contended at the hearing, and in its brief, that its officials did not request Sherrer to attend the meeting and therefore the Company can not be charged with violating the Act because of Sherrer's attendance. According to the credible evidence adduced at the hearing, and as epitomized immediately below, both contentions must be resolved against the Company. For several years prior to July 1947, it was Sherrer's usual practice to daily work about an hour or so overtime. During the afternoon of the scheduled meeting, July 22, Sherrer went to Bender's office to ascertain whether Bender was ready to return certain relays which Bender had borrowed from Sherrer's department. After completing his business with Bender, Sherrer turned to Eise, who was in Bender's office prior to Sherrer's arrival there and under whose jurisdiction Sherrer was at that time, and asked Eise whether he might leave the plant that afternoon at the employees' usual quitting time instead of working overtime. After some discussion regarding the Unions' meeting and Sherrer's desire to attend, Eise said to Sherrer, to quote Else's testimony, "Well, why don't you go on? You may find something there that will benefit you. I see no reason why you shouldn't go." Upon reporting for work the following day, Sherrer requested his then imme- diate superior, A. J. McDonough, to mark his time card so as to reflect an hour and a half overtime. Thus, Sherrer was in a position to receive overtime pay for the time spent by him at the meeting. When McDonough upbraided Sherrer for going to the meeting, Sherrer replied, according to McDonough's credible testimony, which was corroborated by the credited testimony of Carl Alfrey, that he had no alternative but to attend the meeting because Bender had instructed him to do so' It is clear from the credible evidence, as summarized above, and the under- signed finds, that Sherrer assumed that Else's advice to attend the meeting in order to "find something there that" would benefit him, to be instructions to attend. The undersigned further finds that both Bender and Else were desirous of ascertaining the names of the employees attending the meeting and to ascer- tain what transpired there and therefore encouraged Sherrer to attend the meeting in order to obtain such information. These findings are buttressed by the following (1) upon reporting for work the day following the meeting, Sherrer sought to obtain overtime pay for the time spent at the meeting, (2) Sherrer's statements to McDonough that he was entitled to receive compensation for the time spent at the meeting because he attended upon instructions from Bender, and (3) Sherrer's statements to Berger, Baker, and Rush that the Company instructed him to attend the meeting and that it paid him for so doing. The undersigned is also convinced, and finds, that Sherrer would have received the overtime pay which he at first demanded had not Bender been advised to check Sherrer's time card by an unidentified party who called Bender on July 23, and who informed Bender that Sherrer was claiming overtime pay to which he was not entitled. Assuming, arguendo, that Sherrer was not instructed to attend the meeting but did so without the knowledge of the Company's officials, the Respondent Com- pany would nevertheless be chargeable with violating the Act. The Courts and the Board have repeatedly held that a supervisor, in a class such as Sherrer $ The day following his discussion, Sherrer asked McDonough to change the time card to show that he checked out at the usual employees ' quitting time. McDonough did so. 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was, who attends a union meeting of nonsupervisory employees as an unin- vited guest, especially, as here, an initial organizational meeting, per se, violates the Act and the employer is held responsible therefor. In the instant case, moreover, the Company can not properly disclaim responT sibility for Sherrer's attendance and his statements to Berger , Rush, and Baker that he attended at the request of the Company . Bender admitted that several days, after the meeting it came to his attention that the employees believed that Sherrer attended with meeting as a "company stooge" ; Eise admitted that he read in a handbill of the Union the statement that Sherrer attended the meeting as a "stooge"; McDonough admitted ( 1) informing Bender about 2 weeks after ,the meeting, that he had'previousl} told two nonsupervisory employees that Sherrer had said that he attended the meeting at Bender 's request, ( 2) he told Bender that Sherrer said he attended the meeting upon instructions from Bender, and (3 ) the morning following the meeting , "it was all over the shop" that Sherrer had attended the meeting . On this basis, it must be, and it is, found that it was well known among the employees that Sherrer, a responsible super- visor, had attended the July 22 meeting as a "company stooge" and that Sherrer had, in fact, told employees that he attended the meeting at the request of an official of the Company. It is also found that the knowledge that Sherrer had engaged in such conduct came to the attention of the Company and that not- withstanding such knowledge , the Company at no time took any steps to disabuse the minds of the employees of the impression they well might have gained, that Sherrer attended the meeting in order to spy upon the employees and transmit to the Company what transpired at the meeting . It is therefore found that by Sherrer's unrepudiated statements and conduct , the Respondent Company has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. As found above, the strike at the Mt. Gilead plant started on August 21. On September 15, the plant reopened It remained in operation , for reasons un- connected with the strike, for only 2 days and then closed. At some later date, not here important , it again commenced operations. On September 17, Rosie Billeter and Gladys Fensch (nee Fout) went to the plant to receive their respective pay checks for the work performed by each of them on September 15 and 16 There, they met Plant Superintendent Hoy lhodebeck of whom they requested their pay checks. During the conversation which ensued between Billeter, Fensch, and Rhodebeck, the following transpired, according to the nndenied and credible testimony of Billeter : Well, we asked Mr. Rhodebeck if we could possible get our checks, and we asked him if there was any chance of going back to work, and he said "not then," and we told him that we thought we would go over to Westinghouse [Electric Company plant] and get us a job, and he replied that they had the CIO over there, and if we went over and got a job, we would be S. O. L. out of a job at the North (the Respondent Company): Fensch's testimony with respect to the above incident is substantially in accord with that of Billeter The undersigned finds that Rhodebeck made the state- ments attributed to him by Billeter and Fensch The undersigned further finds that Rhodebeck's statements were violative of the Act and by such statements the Respondent Company interfered with, restrained and coerced its employees in,the exercise of the rights guaranteed them in Section 7 of the Act. THE NORTH ELECTRIC MANUFACTURING COMPANY 147 Neither Fensch nor Billeter sought work at the Westinghouse Electric Com- pany plant. Billeter later became a member of the Union. Fensch did not, but did join the Independent after it came into existence. On or about November 1, the employees formed a labor organization', called herein the Independent. At the time of the formation of the Independent, temporary officers were elected or appointed. Neither the character of the organ- ization nor the speed with which the employees were joining the Independent seemed to meet with the approval of Harry S Haney, the Chief of Field Negotia- tions of the Labor Relations Institute Inc., located in New York, New York, which organization was employed by the Respondent Company on or about October 23, to handle the Company's labor relations problems.' Thus, according to the testimony of Herbert Arnold, the then president of Local 951 and at the time of the hearing a former employee of the Company, Haney suggested that Arnold "get on the other side of the fence" and join the Independent ; that the Independent needed leadership and Arnold was the one who could successfully lead it; that Arnold "wasn't going to get anywheres messing around with hood- lums and gangsters and Communists" ; and that if Arnold renounced his leader- ship in Local 951 and lead the Independent, the Company would give him a better job with more pay. Haney, under direct examination by Company's counsel "categorically" denied having any conversation with Arnold with respect to the Independent, except that during a conversation with Arnold on or about November 12, Arnold asked him "Flow was the company union doing?"; that he replied "Well, Arnold, I don't know a thing about that any more than you do except what I read in the papers" ; that Arnold then said "How do you. figure?" ; and that he then said "Well, they don't seem to be doing so well," adding, before closing the conversa- tion, "Well, I don't care to discuss that." On cross-examination by the General Counsel, Haney testified as follows: Q. (By Mr. Fusco:) And you told hum the only thing you knew is what you read in the paper, and he knew more about it than you did? A. Something to that effect. Q. And lie replied that it wasn't going so hot, in his opinion? A Something to that effect. Q Didn't you reply, "I only know what I read in the papers, but maybe what it needs, from what I read, is a couple of UAW fireballs like you and Duck." Did you say that, in words or substance? A. I said that from what I read in the papers, it doesn't seem to be so strong Maybe it could use a couple of fireballs, but I never said "like you or Duck," or something of that sort. Q Do you recall saying that to Mr. Finlay when he interviewed you about this case? A. I don't think I said, "like you or Duck." I said, "What it needs is a couple of fireballs." I can't remember my precise phraseology. Trial Examiner MYERS : Did you say that to Arnold? The WITNESS : Oh, yes I said, "Maybe what it needs from what I read in papers," and I was laughing about it. 4 Haney actively engaged in the negotiations which led to the settlement of the strike on November 3, and since that date has been an advisor to the Company on labor relations matters. 148 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD Mr. Bux$HALTER: Did you have reference to "you or Duck?" Trial Examiner MYExs : Are you talking to me? Mr. BUBBHALTEB : Yes, sir. Trial Examiner MYERS : I asked him what he, had said to Arnold about fireballs. The WITNESS : Something to the effect that it seemed to be weak or doesn;t seem to be getting anywhere. And I said something about "maybe they ,can use a couple of fireballs." I don't recall having said "like you and Duck." And I am quite sure I wouldn't say it. Q. (By Mr. Fusco:) Mr. Duck and Mr. Arnold were fireballs in this busi- ness, weren't they? A. A lot of this was kidding, ribbing stuff. We weren't at each other's throats in substance , "They need you," because I wouldn't have any such power or authority to make such statements for the Company. The undersigned was impressed with the sincerety and with the forthrightness with which Arnold testified. Haney did not so impress the undersigned. In fact, Haney tried to convey the impression on direct examination that he was not in the least bit interested in the internal affairs of the Independent. Under ,cross-examination, however, it became very evident to the undersigned that he was not only vitally interested in the internal affairs of the Independent but was very anxious that the employees join it in preference to Local 951. The under- signed finds that Arnold's version of what transpired in the above referred to conversation between Arnold and Haney to be substantially in accord with the facts. The undersigned further finds that the statements of Haney, for which the Respondent Company is chargeable, are violative of Section 8 (a) (1) of the Act. Mary Ann Berger testified that in the early part of January 1948, she and Wayne Horlocker, supervisor of the Miscellaneous Wiring Department, had a conversation which ensued as follows : He (Horlocker) said that in a few months the Company was going to start laying off, and I don't remember now, but he hinted that if the Union got in, that the plant would close down ; so I asked him, I said, "You mean that if the CIO gets in, the plant will close down?" And he said, "Yes, that is it." Horlocker testified that he could not remember having any conversation with Berger about union matters. When asked on direct examination whether he ever told Berger, "or anybody else that if the CIO secured representation at the Gallon plant it would be shut down, or words to that effect," he answered in the negative. Horlocker did not impress the undersigned as a forthright and honest witness and after carefully reading Horlocker's and Berger's testimony, both direct and cross, he is convinced, and finds, that Berger's testimony with respect to her conversation with Horlocker, weighed in the light of her other testimony in the CA cases and her testimony in the CB case, to be substantially correct. The undersigned also finds that Horlocker made the statements attributed to him by Berger. The undersigned further finds that Horlocker's statements were violative of the Act and by said statements the Respondent Company interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed them in Section 7 of the Act. C. The alleged interference, restraint, and coercion Richard Brentlinger, a former employee, testified that he had a conversation with Bender sometime in July or August 1947, in which Bender asked him whether , THE -NORTH ELECTRIC MANUFACTURING COMPANY 149 he was a member of the Union ; what transpired at the July 22 meeting ; and whether he was not the person who tried to organize the employees into an AFL union in 1942. Bender denied making the statements attributed to him by Brent- linger. The undersigned credits Bender's denial and finds that, he did not make the statements that Brentlinger attributed to him. Brentlinger was not only an unimpressive witness but his testimony, in the opinion of the undersigned, was so muddled and confusing as to make it unworthy of credence. On or about January 15, three of the four officers of the Independent met with Bender, R. K. McBerty, and certain other officials of the Company. Admittedly, this was the only.time a representative of the Independent met with the Com- pany. At the outset of the meeting, McBerty stated that the Company would not meet with any representatives "of any union, but if [the officers of the Inde- pendent] came in as employees" to discuss their own individual grievances, the officials of the Company would gladly discuss them, but the Company would not discuss the grievances of any employee not present. Certain grievances were discussed and adjusted, but the record clearly shows, and the undersigned finds, that the grievances concerned those employees pres- ent. While it is true, the grievance discussed and adjusted affected the working conditions of the entire plant, the fact remains that they directly affected the working conditions of the 3 officers of the Independent who presented them. The undersigned further finds, that on many occasions, before and after July 1947, the same officials of the Company who inet with the 3 officers of the Independent on or about January 15, 1948. also met with other groups of employees and discussed and adjusted grievances In fact, the credible evidence reveals, and the undersigned finds, that on some occasions the groups consisted of as many as 20 employees. Under the circumstances, the undersigned is convinced, and finds, that the Respondent Company did not, as alleged in the complaint, bar- gain with the Independent despite its knowledge that Local 951 claimed to rep- resent a majority of the Company's employees. Berger testified that in February 1948, she had a conversation with Carl Har- riger, her then supervisor, wherein Harriger made certain anti-union remarks. Harriger testified, in effect, that he could not recall making the statements attributed to him by Berger. The undersigned finds, upon the state.of the record, that he did make the said statements. The undersigned further finds, however, that the statements attributed to Harriger by Berger are protected by Section 8 (c) of the Act and therefore they are not violative of Section 8 (a) (1) of the Act, as contended by the General Counsel. D. Case 8-CB-7 Restraint and coercion At the conclusion of the General Counsel's case-in-chief with respect to Case 8-CB-7, counsel for the Respondent Unions made -numerous motions to dismiss the complaint in its entirety or, in the alternative, to dismiss certain portions thereof. The motions were denied. Thereupon counsel for the Respondent Unions tested his case without calling any witnesses or introducing any additional evi- dence. Counsel for the Respondent Unions then renewed his motions to dismiss. Decisions thereon were reserved. They are hereby denied. There is no dispute as to the facts. The issues, as it arises from them turns on the question whether (1) the International or Local No. 951 is, or both are, guilty of committing, perpetuating or creating any or all of the Acts found to have been 853396-50-vol 84-11 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committed or responsible therefor and (2 ) were all or any of the acts committed by Local 951 or the International, or both, violations of Section S (b) (1) (A) of the Act. Both of these questions must be resolved against both the International and Local 951. The credible evidence, as epitomized- below, clearly indicates that the organizational campaign at the Galion plant was commenced under the guidance and leadership of Edward J. Duck, International representative and the person designated by the International to handle the organization campaign He appeared at the Galion plant in July 1947, and immediately proceeded with the campaign with the help of the Company's employees and members of the Inter- national's Marion, Ohio, local On July 22, Duck made a demand on the Company for recognition of the Unions as to collective bargaining representatives of the employees He also made subsequent demands for recognition He attended the August 19 meeting, which was attended by representatives of the Company, representatives of the Unions,- and a Field Examiner of the Board, and pressed anew his demand for recognition of the Unions. At this meeting, Duck stated that the employees had voted to strike if recognition was not met and that the strike vote had been authorized by the International The demands for recognition were made by such and it was he who dictated the terms upon which Duck must be accepted, with a strike as the alternative in the event of nonacceptance Thus, there is no question but that the strike was called to obtain recognition of the Unions The record also clearly shows that the officers of the Local, the members of the Shop Committee, and members of the Union directed and participated in the events hereinafter found to have taken place. After the strike commenced, strike headquarters were established in a tent near the plant, which tent was erected by Duck. Herbert Arnold, president of Local 951, and Bernard Mason, whose identity is not disclosed in the record The headquarters were used by the above named three individuals and by others engaged in strike activities. At the very inception of the strike on August 20, at about 3 p in.. employees on the second shift, coming to work, were prevented from entering the plant by mass picketing which was carried on in the presence of Duck and who addressed the employees attempting to enter the plant, to the effect that "If you don't sign a card you will not have a job in the morning"; "If you want to go in be sure you take plenty of eats and your bed for you may be in for a long while." Duck's control of the situation is illustrated by the incident' involving Charles Miller, a nonstriking employee, who was unable to get out of the plant because of the mass of pickets in front of the main gate. Upon an order by Duck the pickets stood back to pernut Miller to leave and Duck stated words to the effect that "People could get out but nobody could go in " '?kbout the same time, Duck, addressing the people in front of the plant, stated "that they (the Union) would fight the police and the sheriff, if necessary, and the State Militia if they entered the picture." and that "lie could get fellows from 10 or 12 different places to help," naming, among other places, Marion and Toledo. Thus, on the very first day of the strike the control of the situation by Duck was clearly demonstrated and the pattern of forcibly keeping people from enter- mg the plant which was then occurring was foreshadowed along with the plan to bring in outsiders, if necessary, to keep people out of the plant It is thus clear that the dominating figure in these events was the International repre- sentative and not officers or members of the Local. THE NORTH ELECTRIC MANUFACTURING COMPANY 151 The following morning, August 21, Duck continued 'to announce his purpose and plans for the strike when in a speech to nonstriking office workers attempting to come to work he stated the office workers "might as well turn around and go home because no one would get in the plant" and asked the listeners to join the Unions. The office workers were barred by picketing activities from enter- ing the plant, as had been the second shift on the previous day The next day, August 22, Duck was again present on the scene, supervising the activities of the pickets and directing them concerning their duty to keep people out of the plant . He reprimanded the pickets'for allowing Vice-President It. K. McBerty to enter the plant, and, said "You have orders not to leave no one through the gate" and "Well, after this do not leave no one through the gate." About a week after the strike started, Duck apparently not pleased with the efforts of the pickets in keeping people out of the plant, was heard instructing them to the effect that if the pickets "didn't have enough around there to keep the workers out that they would get help," and a couple of days after that stated to the pickets that if the office wvorkeis (nonstriking employees) came to work at the plant they "had better come prepared to stay a long time with plenty to eat because they wouldn't get out " Duck's instructions to the pickets were successfully carried out and the workers were effectively prevented from entering the plant by the pickets and others joining with them. As further evidence that Duck directed the activities of the pickets and supervised their conduct with respect to keeping people out of the plant, is the incident occurring on the evening of September 14th, when he ordered the pickets "Well, scatter out around the plant Scatter out around the plant" which they did, carrying sticks, clubs, and stones. This incident was precipitated by a watchman inside the plant turning on the lights outside the warehouse and clearly demonstrates that Duck was directing the pickets to stop whatever activity in and about the plant might follow from the turning on of the lights. It was Duck's intention to keep the Galion plant closed, and in this aim and purpose he was joined by Regional Director Gosser. In the middle of September a strike was also in progress at the Mt Gilead plant, and Gosser was personally present on the occasion when the bit. Gilead plant was opened pursuant to a re- straining order prohibiting mass picketing issued by the Morrow County Common Pleas Court. He requested R. K McBerty to keep the plant closed for one addi- tional day. When McBerty refused to keep the Mt. Gilead plant closed any longer, Gosser replied, "The blood will be on your bead," and when asked whether this was a threat, added, "No, but if you go into the Galion plant, there will be people killed." On the same day, at lit Gilead, Duck told his listeners that the Galion plant would be closed from 1 to 20 years if the Unions' terms were not met, and again on September 18, Duck stated at the Galion plant that it would be closed until "this thing is settled." By September 26, more than 443 windows had been broken at the Galion plant by people engaged in various forms of picketing activities outside the plant hurling stones, rocks, railroad tieplates, railroad spikes, clubs, and other objects, through the windows. Despite the fact that the machinery and equipment of the plant were exposed to the elements because of the large number of broken windows, watchmen and maintenance men were forcibly kept out of the plant Up to and including September 25, the plant was closed due,to the inability of people to get into the plant on account of the activities of the pickets, and was 152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scheduled to be reopened on September 26. On the night of September 25, a Company truck was burned and previously during that day many strangers ap- peared in Galion, to some of whom Mrs. Duck, wife of organizer Duck, and who was actively engaged in strike activities, handed out CIO hat bands and arm bands in front of the plant. On September 26, the strangers were still present, engaging in mass picketing in front of the plant. All these people were mingling with others around a fire near the tracks north of the plant, which was the place where pickets congregated when not actively in the picket line or engaging in other strike duties. The at- tempt to open the plant was not successful. On September 25, a multitude of strangers appeared in front of the plant and engaged in mob demonstration which prevented nonstriking employees from leav- ing the plant. These strangers were wearing CIO hat bands and CIO arm bands, engaged in blocking the main gate, which proceedings were witnessed and in the immediate presence of Mr. and Mrs. Duck. Duck talked to the pickets so engaged, and there was no evidence whatsoever that he made any attempt to discourage the pickets in their activities On the contrary, it was during this day that Duck told Lucas, a nonstriking employee attempting to go to work, "You won't go in if you know what is good for you." As a consequence of the activities of the strikers the opening of the plant was unsuccessful. The plant continued to be closed until after October 10, on which day the Craw- ford County Common Pleas Court issued a restraining order limiting the pickets to six at each of the three gates. On the following Monday, October 13, employees showed up for work and thereafter the number who returned to work increased daily, which fact was known to the pickets as they took count of those entering and leaving the plant. By October 17, it appeared that substantial numbers of employees were return- ing to work making it possible to operate the plant with some degree of produc- tivity and, consistent with the plan announced by Duck, another demonstration of mass picketing took place on that day. On this occasion Walter Murphy, Assistant Regional Director, and Mr. and Mrs. Duck, were present. Murphy objected to letting the people into the plant through a gate other than the main gate, the lock of which had been plugged. Mary Ann Berger was operating a public address system, verbally abusing nonstriking employees attempting to go to work, and calling the people inside the plant obscene names. Murphy also took active charge of the picket line in front of the plant, encouraging the pickets to pep it up and demonstrating to them how to crowd the gate, and personally participated in impeding persons attempting to leave the plant. Duck admitted to Clara Eickhorn, a neighbor, that he was the one to see about the loud speaker, and refused to reduce its volume. It was on this day that Duck made a threat to Crissinger, a nonstriking employee, that the Unions would be able to get as many members as the American Legion if the latter group attempted to interfere with the activities of the strikers ; and it was during the evening of that day that Murphy participated in a circular picket line and forcefully knocked Ryan, a nonstriking employee, into the fence in the pres- ence of Toots Martin, another International representative. Pictures were being taken of all those who entered the plant and they were challenged to come out to fight. Automobiles were closely examined and license numbers noted by pickets. On the following day, October 18, further mass picketing occurred and again Mr. and Mrs . Duck were present on the scene. All of these events were accom- panied by repeated breaking of windows by people engaged in picketing activities. THE NORTH ELECTRIC MANUFACTURING COMPANY - 153 On October 22, there were'present outside the plant Duck, Martin, and Murphy, as well as most, if not all, of the members of the Local, and the shop committee. Murphy was observed conversing with the strangers who were present on the scene, and was also observed making a tour of the fence around the entire Company property. Strangers arrived by automobiles bearing license numbers from some other locality, and were seen entering the strike headquarters and thereafter remaining in the vicinity. About 3: 30 p. in. Duck wanted to make arrangements to get the crippled people out of the plant, and at about 4: 30 p. m. that day Duck stated to Bender that it would be necessary to start negotiations immediately to clear up this situation that the people would stay in the plant until the Unions got a- contract. After Colonel Graham, assistant chief of staff of the 37th Infantry Division and who went to Galion at the request of the Adjutant of the State of Ohio arrived on the scene, negotiations were started for the purpose of effecting a settlement. On behalf of the Union these negotiations were carried on by Duck, Murphy, and Martin, all representatives of the International. Duck talked to Graham on behalf of the Union and consulted with Murphy and Martin about the agree- ment. Martin and Murphy called the Union men who were in front of the plant, across the railroad tracks, for a meeting for the purpose of considering the proposed agreement and thereafter Martin, Murphy, and Duck reported to Gra- ham that the agreement to take the people out of the plant was satisfactory. When the employees came out of the plant, Martin and Murphy told the crowd in front of the plant to stand back, and these people obeyed that order. One of the conditions of the settlement-agreement was that the Company was to meet with the Unions for purposes of discussing the strike situation, and at this meeting the International Union was represented by Gosser and Duck and the Local was represented by Arnold. From the foregoing recital of the facts, it is manifestly clear, and the under- signed finds, that the conduct of the strike was under the direct leadership of Duck, Murphy, and Martin, and that they were assisted by Gosser and by the officers of the Local. The undersigned further finds that the main purpose of the strike was to keep the plant closed until the Respondent Company yielded to the demands of the Unions. In the Matter of International Longshoremen' s and Warehousemen's Union, Local 6, et al., and Sunset Line and Tunne Company, 79 N. L. R. B. 1487, which case is strikingly similar to the instant case, the Board stated : Vail's (the business agent) authority certainly encompassed the planning and direction of lawful activities on the part of the strikers and their sympa- thizers, such as peaceful picketing, in furtherance of the general purposes of the strike, namely, to hamper or stop the Company's operations at this plant by withdrawal of its labor force, and, of course, to dissuade employees from working so long as the strike was current. It follows that the Local was responsible for the wrongful acts of Vail and the individuals under his direc- tion which were performed in furtherance of those same purposes and were of the same general character as, or incidental to, the peaceful picketing, and substantially within the area of this labor dispute in space and time. The basis of the decision in the Sunset case charging the International with responsibility for acts committed by the Local Union, is based on a conclusion that the strike was sponsored jointly by the two Unions. In arriving at this conclu- sion the Board based its decision on the fundamental principle of agency that a 0 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principal is responsible for the acts of his agents within the scope of that general agent's authority even though the principal has not specifically authorized such act or forbidden it. The Board concludes that it is enough if the principal actu- ally empowered the agent, to represent him in'the ,general area within which the agent acted. The facts upon which the Board based its finding supporting the charge against both the Local and International are pertinent to the instant case. It was found in the Sunset case that the business agent of the Local was authorized, without evidence showing his specific duties, to carry on the business of the Local which necessarily consisted of collective bargaining and other con- certed activities in furtherance of these objectives, and that the strike for recog- nition was in furtherance of that purpose. It was this business agent who con- ducted the bargaining negotiations with the Company both before and after the strike commenced. He addressed the meeting of the strikers and called upon them to serve in the picket line. On the day the strike was called he assigned the pickets to their posts and thereafter was frequently seen in the picket line or near the Company premises apparently directing the activities of the pickets. The business agent also actively participated in several of the incidents out of ,which that case arose. Principally upon the basis of these facts, the Local union was held responsible for the conduct of the business agent and individuals under his direction which was performed in furtherance of the union objective or was of the same general character or incidental thereto. These facts differ from the instant case only in the respect that the role of the Local's business agent was in the instant case assumed by Duck, the Inter- national representative, who acted in this capacity during the entire duration of the strike, assisted at various times by Gosser, Martin, and Murphy With respect to the responsibility of the International in the Sunset case, the Board based its conclusion on the fact that at no time did the International assert that its interest in the strike was in any way different from that of the Local and failed to produce any argument or evidence whatsoever in support of any such assertion While the record did not show the precise character of the relationship between the Local and the International other than their affilia- tion, and did not show exactly how or through what agents and by what means the International participated in the strike; the evidence did show that the Inter- national knew of and ratified the most aggravated single incident of violence which was incited by a union officer during the course of the strike. The evi- dence showed that an International officer was present when a crowd at the plant gate forcibly blocked the ingress of employees, among whom were the regularly detailed pickets, and that such officer made no effort to stop the vio- lence which was incited by a subordinate International officer It was princi- pally on these facts that the Board concluded that the International was a co- sponsor with the Local of this strike and the picketing conducted for the pur- pose of obtaining a common objective. Having concluded that a cosponsorship of the strike existed, the Boardiby application of the fundamentals of agency, charged each with the acts committed by both. Nowhere in the Sunset case did it appear that International officers were coritinually present on the scene or that they directed the activities of the pickets or that they participated in making threats to employees attempting to renter the plant or that such threats were carried out, as are the established facts •in"the instant case. ^ The Sunset ca'se)places substantial emphasis upon the fact that the International representatives approved and ratified the most aggravated -incident of the entire strike. 'This'is also the situation in the instant case. The 0 ' THE NORTH ELECTRIC MANUFACTURING COMPANY- 155 degree to-which the International officers, to-wit, Duck, Murphy, and Martin, controlled the situation around the plant on_the night of October,22, is conclu- sively demonstrated by their negotiating a settlement of the strike providing release of'the workers from the plant, their calling the union men to a meeting for the purpose of considering the agreement, and, after making the agreement, successfully accomplished its performance. The situation of the instant case is unlike that of the Sunset case for in that case the local and its officers were the leading and moving force in carrying out the strike activities and the participation of the International was slight, whereas in the instant case the dominating and controlling force was the Inter- national officers and the officers of the Shop Committee of the Local. It is therefore found, upon the entire record in this case, that the Interna- tional principally, and the Local union as a participant, were responsible for the unlawful activities occurring between August 20 and October 22, 1948.` It is further found that all the activities engaged in by either the Local or the International, or by both, which had the effect of keeping employees from going to work against their desire, are violations of the Act. This, of course, includes each instance of mass picketing, the threats, destruction of plant prop- erty, and the creation of the general atmosphere inducing a belief that going to work would be at the risk of sustaining physical injury. This conclusion is so even though in some instances the attempted restraint or coercion was unsuccessful. Attempted unfair labor practices are as much a violation of the Act as those which are successful. N. L. R. B. v. Crown Can Co., 138 F. (2d) 263 (C. C. A. 8) ; Rapid Roller Co. v N. L. R. B., 126 F. (2d) 452 (C C A. 7) ;Westera Cartridge Co. v. N L R. B, 134 F (2d) 240 (C. C A 7) ; N L R B. v. Brenner Tanning Co, 141 F (2d) 62 (C C. A 1) ; N. L R. B. v. lvanona Textile Hills, 160 F. (2d) 201 (C C. A. 8). At the hearing, counsel for the Respondent Unions contended that the. various activities conducted by the Unions during the strike were directed at the Com- pany and not against the employees. With this contention the undersigned cannot agree. The Act is designed to protect employees in the exercise of their rights guaranteed by Section 7, and therefore, whether the acts of any indi- viduals or groups are lawful within the meaning of the Act depends upon a determination of whether such acts obstructed or violated the rights guaranteed by Section 7. It is immaterial that the acts complained of are now said to be directed at the Employer if their ultimate effect was to obstruct the exercise of employees' rights guaranteed by Section 7. In the instant case, a strike for recog- nition and the activities connected therewith resulted in substantial damage to' the plant, in keeping maintenance workers and watchmen out of the plant, all of which resulted in keeping non-strikers out of work, aside from the efforts directed at the employees themselves as evidenced by the frequent instances of mass picket- ing, threats, and the imprisonment of a substantial number of workers in the plant on the night of October 22 It is fair to state that the purpose of all these activities and the accomplished result was to create an atmosphere of terror. Upon the basis of the foregoing, and upon the entire record in the case, the undersigned finds that, by the statements, threats, acts of violence, mass picket- ing, and the other unlawful conduct hereinabove found to have been committed, the Respondent 1Unions, and each of them, have restrained and coerced the em- 6 See also, In the Matter of Perry Norvell Company, et al., 80 N L R B 225. 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees of the Company in the exercise of the rights guaranteed them in Section 7 of the Act, thereby violating Section 8 (b) (1) (A).° IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Company and those of the Respondent Unions, both of which are set forth in Section III, above, occurring in connection with the operations of the Respondent Company described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce between the several States, and such of them as have been found to be unfair labor practices, tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent Company has engaged in unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent Company's illegal conduct discloses a purpose to defeat self- organization among its employees. For example, as soon as the Respondent Com, pany learned of the union activities of its employees it sought to coerce them in the exercise of the rights guaranteed them in the Act. As has been found, the Respondent Company's conduct interfered with, restrained, and coerced its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. Such conduct violated Section 8 (a) (1) of the Act. The Respondent Company's conduct presents a ready and effective means of destroying self-organization among its employees. Because of the Respondent Company's unlawful conduct and its underlying purpose, the undersigned is convinced that if the Respondent Company is not restrained from committing such conduct, the danger of their commission in the future is to be anticipated from the Respondent Company's conduct in the past In order, there- fore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which ' burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned recommends that the Respondent Company cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. It has been found that Respondent Unions have engaged in unfair labor prac- tices within the meaning of Section 8 (b) (1) (A) of the Act. It will, therefore, be recommended that Respondent Unions cease and desist therefrom and take ,certain affirmative action in order to effectuate the purposes of the Act. Re- spondent Unions contend, and, indeed, the record establishes, that any unfair labor practices committed have long since ceased,, and it appears, that the plant has been in full and uninterrupted production, at least since November 3, 1947: Respondent Unions contend, therefore, that the issues have become moot and that no useful purpose can be served by the issuance of a cease and desist order: It has been well established that mere abandonment of` unfair labor practices does not deprive the Board of the right to make a finding thereon, and to issue an appropriate remedial order. Moreover, the undersigned believes that such an 6 The three proposed Conclusions of Law submitted by the Respondent Company are hereby found together with the other Conclusions of Law set out below. THE NORTH ELECTRIC MANUFACTURING COMPANY 157 order is required to prevent the recurrence of similar unlawful conduct by the said Unions, in the future. In order, therefore, to make effective the interde- pendent guarantees of Section 7, to prevent a recurrence of unfair labor prac- tices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned recom- mends that the Respondent Unions cease and desist from in any manner infring- ing upon the rights guaranteed in Section 7 of the Act. In their brief counsel for the Respondent Company urge that the Respondent Unions be required to make whole employees of the Company who were prevented from working during the pendency of the strike, by reason of the Respondent Unions' unfair labor practices. The undersigned finds, contrary to the contention of counsel for the Respondent Company, that it was never the intention of the Congress to give the Board the power to assess money damages in cases like the instant one.7 Having found that the Company did not bargain with the Independent in vio- lation of the Act, as alleged in the complaint, the undersigned will recommend that the allegations of the complaint with respect thereto be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW Cases 8-CA-25 and 8-CA-30 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workeis of America, Local 951, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, each being affiliated with the Congress of Industrial Organizations, and The Independent Workers Union of The North Electric Manufacturing Company of Galion, Ohio, unaffil- iated, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. The Respondent Company did not bargain with the Independent in violation of the Act, as alleged in the complaint. Case 8-CB-7 1. The North Electric Manufacturing Company, Galion, Ohio, is, and during all the times material herein was, engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. . 2. International Union,'United Automobile, Aircraft and Agricultural Imple- ment Workers of America, Local 951, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, each being affiliated with the Congress of Industrial Organizations, and The Independent Workers Union of The North Electric Manufacturing Company of Galion, Ohio, unaffiliated, are labor organizations, within the meaning of Section 2 (5) of the Act. 3. By restraining and coercing employees of The North Electric Manufactur- ing Company in the exercise of the rights guaranteed in Section 7 of the Act, 7 See Matter of National Maritime Union of America et al., 78 N. L. R. B. 971. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Unions, as found above, have engaged in, and are engaging in,' unfair labor practices within'the meaning of Section 8 (b) (1) (A) of the Act. ' 4 The aforesaid unfair labor practices are unfair labor practices 'affecting commerce within the meaning of (Section 2 (6) and (7) of the Act. RECOMMENDATIONS Cases 8-CA-25 and 8-CA-30 Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that The North Electric Manufacturing Company, Galion, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from : - - (a) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join or assist labor. organizations, to bargain collectively through representatives of their own choos- ing and to engage in concerted activities for the 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 effec- tuate the policies of the Act : (a) Post at its plants in Galion, Ohio, and in Mt. Gilead, Ohio, copies of the notice attached hereto, marked "Appendix A." - Copies of said notice, to be supplied by the Regional Director for the Eighth Region, shall, after being duly signed by Respondent Company, be posted by Respondent Company immediately upon receipt thereof and be maintained by it for at least sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted Reasonable precautions shall be taken by the Respondent Company to insure that such notices are not altered, defaced, or covered by any other material ; I ' (b) Notify the Regional Director for the Eighth Region (Cleveland, Ohio), in writing, within twenty (20) days from the date of receipt of this Inter- mediate Report and Recommended Order, setting forth in detail the steps taken by Respondent Company in compliance herewith. It is further recommended that unless on or before twenty (20) days from the date of receipt of this Intermediate Report and Recommended Order, the Respondent Company 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 Company to take such action: Case 8-CB-7 Upon the basis of the above findings of fact and conclusions of law, the under- signed hereby recommends that International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and Local 951, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, their respective officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Restraining and coercing employees of The North Electric Manufacturing Company in the exercise of their rights guaranteed in Section 7 of the Act to refs ain' 'from self-or ganization and from joining and assisting International Union, United Automobile, Aircraft and Agricultural Implement Workers of America and Local 951, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, and to refrain from engaging iii concerted activities for the purpose of collective bargaining, by directing, leading, THE NORTH ELECTRIC MANUFACTURING COMPANY - 159 and engaging in mass picketing' at the entrances of the Respondent Company's plants at Galion, Ohio, and at Mt. Gilead, Ohio, and at or near the vicinity of either plant ; threatening employees of the Respondent Company with physical assault and other reprisals; assaulting employees of the Respondent Company, or in any other ,manner, restraining, or coercing the said employees 2 Take the following affirmative action, which the undersigned finds will ef- fectuate the policies of the Act : (a) Post in conspicuous places at the business offices and in- the meeting halls of each of the Respondent Unions, and in all other places where notices or communications to members of the said labor organizations are customarily posted, copies of the notice attached hereto, as "Appendix B." Copies of the said notice, to be furnished by the Regional Director for the Eighth Region, after being signed by the respective duly authorized representative of each of the Respondent Unions, shall be posted by the said Respondent Unions immediately upon receipt thereof, and maintained for a period of sixty (60) consecutive days thereafter Reasonable steps shall be taken by each of the Respondent Unions to insure that said notices are not altered, defaced, or covered by any other material; (b) Furnish the Regional Director of the Eighth Region signed copies of the notice, attached hereto as "Appendix B." to be delivered by him to the Respondent Company, upon request, for posting on the bulletin boards of the Company in its Galion, Ohio, and in its Mt. Gilead, Ohio, plants or in any other place or places where notices to employees are customarily posted, and maintained by the Respondent Company for a period of sixty (60) consecutive days thereafter; (c) Notify the Regional Director of the Eighth Region in writing within twenty (20) days from receipt of this Intermediate Report what steps Respondent Unions have taken to comply therewith. It is further recommended that unless Respondent Unions shall, within twenty (20) days from receipt of this Intermediate Report, notify said Regional Director in writing, that they will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent Unions to take the action aforesaid. - As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the, date of service of the order transferring the case to the Board, pursuant to Section 203 45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order 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 six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Inter- mediate Report and Recommended Order. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall 'designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and it mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 85. As further provided in said Sec- tion 203.46 should any party desire permission to argue orally before the Board, i 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 30th day of November 1948. HOWARD MYERS, Trial Examiner. 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 WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, each being affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, 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 mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. THE NORTH ELECTRIC MANUFACTURING COMPANY, Employer. Dated------------- By --------------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. THE NORTH ELECTRIC MANUFACTURING COMPANY APPENDIX B NOTICE 161 To ALL MEMBERS OF INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA AND LOCAL 951, INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA AND To ALL EMPLOYEES OF THE NORTH ELECTRIC MANUFAC- TURING COMPANY. 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, as amended, we hereby notify our members and employees of The North Electric Manufacturing Company. WE WILL NOT restrain and coerce employees of The North Electric Manu- facturing Company in the right to refrain from self-organization, front, joining and assisting INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA AND LOCAL 951, INTER- NATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, and in the right to refrain from engaging in concerted activities for the purposes of collective bargaining, by engaging in mass picketing, threatening employees of the Company with physical assault and other reprisals, and assaulting employees of the Company, or in any other manner restraining or coercing its employees. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND NGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Labor Organization. By ----------------------- ----------------------- (Nanie and Title) LOCAL 951, INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, Labor Organization. Dated--------- By -------- ------------------------------------- (Name and Title) This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material.