Oliver Machinery Corp.

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority status, Anheuser refused both union demands. Thereafter, at the request of the parties, the New Jersey State Board of Mediation conducted a card check to determine which of the unions had received majority designation. It found that the Engineers had a majority. Upon such finding Anheuser recognized the Engineers and referred it to the Association for further negotiations. The Association, on behalf of Anheuser, agreed to adopt for Anheuser's employees the terms and conditions embodied in the them existing associationwide contract with the Engineers. Thereafter, and on March 21, 1951, a separate document was signed by Anheuser which contained the ;dentical terms and provisions as were contained in the current asso- ciationwide (1950) agreement and terminating at the same date, viz, April 30, 159246 Upon the foregoing facts we find, contrary to the contention of the CIO, that since March 1951 Anheuser's "powerhouse" employees have been represented by the Engineers as part of the multiemployer unit and that the history of the inclusion of such employees in the multi- employer unit is of sufficiently long duration to preclude establishment now of a single-employer unit 47 We shall, therefore, dismiss the Brewery `Yorkers (CIO) Local 2 petition in Case No. 2-RC-4277. [Text of Direction of Elections omitted from publication in this volume.] CHAIRMAN HERZOG took no part in the consideration of the above Decision and Direction of Elections. 46 At this time the petition herein was pending. 47 Taylor and Boggss Foundry Division of Consolidated Iron-Steel Manufacturing Com- pany, 98 NLRB 481. OLIVER MACHINERY CORPORATION and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, INDEPENDENT and EMPLOYEES' COMMITTEE , PARTY ADMINISTERING CONTRACT . Case No. 7-C.4-504. January/ 30,1953 Decision and Order On May 15, 1952, Trial Examiner Earl S. Bellman issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and had not engaged in others, and recommending that it cease and desist from the unfair labor practices found and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent, the General Counsel, and the Employees' 102 NLRB No. 65. OLIVER MACHINERY CORPORATION 823 Committee filed exceptions to the Intermediate Report; the Respond- ent and the General Counsel also filed briefs in support of their exceptions. The Board 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, the briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following exceptions and clarification. 1. We agree with the Trial Examiner's recommendation for the dismissal of the refusal-to-bargain allegation in the complaint. We do so because of our concurrence with his finding that the General Counsel failed to prove, by valid evidence, that the Union represented a ma- jority of employees in an appropriate unit at the time of the refusal to bargain. The Union was certified as bargaining representative of East Side and West Side plant employees in 1946 and 1947, respectively. Ordi- narily, when a labor organization's representative status has been established by Board certification, it is presumed to continue until the contrary is shown.2 However, the certificates in this case were followed by the incorporation of unlawful union-security provisions in later executed collective-bargaining agreements. To give the usual effect to these old certificates would amount to ignoring the assistance rendered the Union by the illegal union-security clauses. As stated by the Trial Examiner, to do so would be inconsistent with the Board's policy in analagous other situations.3 For this reason, we reject the General Counsel's contention that the 1946 and 1947 certificates con- stitute valid proof of the Union's majority status. 2. We do not agree with the Trial Examiner that the Respondent violated Section 8 (a) (1) of the Act by its announcement that the acceptance of the November 2, 1950, wage increases was conditioned upon no further wage reopening by the employees before November 1, 1953. The Trial Examiner found that the unilateral announcement of the wage increase was lawful, only the limitation on further wage increases being illegal. But as the Respondent was not under any obligation to bargain with the Union in November 1950, it was free to enter into individual contracts with its employees.' That freedom 3 The Respondent has requested oral argument. The request is denied inasmuch as the record and briefs, in our opinion , adequately set forth the issues and the positions of the parties. 2 Pool Foundry and Machine Company, 95 NLRB 34; United States Gypsum Company, 90 NLRB 964. 8 Compare C Hager & Sons Hinge Manufacturing Company, 80 NLRB 163,; Salant d Salant, Inc., 87 NLRB 215, 88 NLRB 816. ' J. I. Case v. N. L. R. B., 321 U. S. 322, 337. 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD included the right, we believe, to attach any condition against wage reopening to its wage increase offer.5 3. We agree with the Trial Examiner that the October 16, 1950, meeting and the polls conducted on October 17, 1950, violated Section 8 (a) (1) of the Act. In time and circumstance, these incidents were an integral part of the course of conduct which led to the formation of the Committee, an unlawfully constituted and dominated labor organization. When considered as part of this pattern of unlawful conduct, they had a tendency to interfere with, restrain, and coerce employees in violation of Section 8 (a) (1) of the Act .6 Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Oliver Machinery Com- pany, Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Dominating or interfering with the administration of, or con- tributing financial or other support to, the Employees' Committee, including the West Side Committee and the East Side Committee, jointly and severally, or dominating 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, the Em- ployees' Committee, or any successor thereto, as the collective-bargain- ing representative of any of its employees. (c) Interrogating its employees with respect to their union sympa- thies, and conducting polls of its employees with respect to their preferences as to labor organizations and forms of self-organization or representation. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist United Electrical, Radio and Machine Workers of America, Independent, 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 protec- tion, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring 5 A contract with an individual employee cannot, however, be a bar to a representation petition or to bargaining with a collective-bargaining representative when one is selected. J. I. Case v. N. L. R. B., supra. 6N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7), cert. denied, 340 U. S. 810. OLIVER MACHINERY CORPORATION '825 membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from, and completely disestablish, the Employees' Committee, including the West Side Committee and the East Side Committee, jointly and severally, as the representative of any of its employees for the purpose of dealing with the Respond- ent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment. (b) Post at both its East Side and West Side plants in Grand Rapids, Michigan, copies of the notice attached hereto marked "Ap- pendix A." 7 Copies of said notice, to be furnished by the Regional Director for the Seventh Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immedi- ately upon receipt thereof and maintained by it for at least 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 such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region, Detroit, Michigan, in writing, within ten (10) days from the date of this Order, of the steps taken to comply herewith. IT IS HEREBY FURTHER ORDERED that those allegations of the com- plaint not found herein to be unfair labor practices, be, and they hereby are, dismissed. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. "In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 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 wmL NOT dominate or interfere with the administration of, or contribute financial or other support to, the EMPLorEi;s' Cola- Mn'rEE, including the West Side Committee and the East Side Committee, jointly and severally, or dominate or interfere with the formation or administration of, or contribute financial or other support to, any other labor organization of our employees. 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT recognize, or in any other manner deal with, the EMPLOYEES' COMMITTEE, or any successor thereto, as the collective bargaining representative of any of our employees. WE WILL NOT interrogate our employees with respect to their union sympathies, or conduct polls of our employees with respect to their preferences as to labor organizations and forms of self- organization or representation. WE WILL NOT in any like or related manner, interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, INDE- PENDENT, 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 activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE wiLL withdraw all recognition from, and completely dis- establish, the EMPLOYEES' COMMITTEE, including the West Side and East Side Committees, jointly and severally, as the representa- tive 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 terms and conditions of employment. OLIVER MACHINERY 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on October 10, 1950, and an amended charge duly filed on November 2, 1950,' by United Electrical, Radio and Machine Workers of America, Independent, herein called the Union,' the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for the Seventh Region 1 As shown by return receipts for registered mail, the Respondent received a copy of the charge on October 12, 1950, and a copy of the amended charge on November 6, 1950. 2 Both charges were signed "David Mates, Field Organizer " Although each charge sets out the filing labor organization as the Union "and its Local 911," the complaint mentions only the Union , Ignoring Local 911. For reasons which appear more fully below, the Union is treated herein as the only charging party, and Lewis A. Towns, who stated his appearance on the record as "President , Local 911" is shown as appearing for the Union. OLIVER MACHINERY CORPORATION 827 (Detroit, Michigan),' issued his complaint dated May 22, 1951, against Oliver Machinery Company, Grand Rapids, Michigan, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (2), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, notice of hearing, charge, and amended charge were duly served upon the Respondent, the Union, and the Employees' Committee, herein called the Committee .4 With respect to the unfair labor practices, the complaint alleged in substance that : (1) About November 1, 1949, the Respondent entered into a collective- bargaining agreement with the Union covering the production and maintenance employees at the Respondent's East Side plant, for which the Board had certified the Union on November 29, 1946, and at its West Side plant, for which the Board had certified the Union on April 14, 1947; (2) said agreement by its terms has continued to remain in force and effect and the Union has continued to be the exclusive representative of the employees in the aforesaid 2-plant unit; (3) beginning about August 9, 1950, the Respondent, by various specified acts, in- cluding refusal to furnish wage data essential to negotiations, bypassing the Union concerning wage proposals, increasing wages unilaterally, individually soliciting strikers to return to work, recognizing the Committee, and refusing after November 1, 1950, to deal with the Union, has refused to bargain with the Union in violation of Section 8 (a) (5) of the Act; (4) beginning about October 16, 1950; the Respondent has violated Section 8 (a) (2) of the Act, by numerous actions spelled out in 8 subparagraphs, whereby it initiated, formed, encouraged, assisted, fostered, interfered with, contributed support to and dominated the Committee; and (5) by the foregoing, and by various actions specified in 10 subparagraphs of the complaint, including threats of various types, interroga- tion of employees, and a private poll of its employees, the Respondent from about August 9, 1950, has interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. On May 31, 1951, the Respondent filed its answer which admitted the allega- tions as to its operations and the facts as to the certifications, but specifically denied that Respondent had engaged in any of the alleged unfair labor practices and that it was engaged in commerce within the meaning of Section 2 (7) of the Act. The answer neither admitted nor denied the appropriateness of the alleged unit and set out in considerable detail numerous averments and defenses, the more pertinent of which are here briefly summarized. The answer averred that the Respondent negotiated with the Union during August, September, and October, 1950, until an impasse had been reached ; that the Union had failed to bargain in good faith ; that about October 11, 1950, the Union commenced an economic strike ; that thereafter the employees returned to work and effectively disavowed the Union ; that Local 911 was no longer an entity ; that the agreement was no longer in effect ; and that if the agreement were still in effect, the Union had no rights remaining thereunder. The answer denied that the Union is a labor organization within the meaning of the Act ; that the Union has continued to be the representative of the employees in the unit; and that the Respondent has extended recognition to the Committee. The answer characterized the Com- mittee as an "independent voluntary arrangement made by the employees them- 8 The General Counsel and his representatives at the hearing will be called herein the General Counsel ; the National Labor Relations Board , the Board ; and the Regional Director for the Seventh Region, the Regional Director. 4 Service on the Committee was made both on the Committee, East Side plant , and the Committee, West Side plant, "attention" the respective chairmen. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selves," and stated that the Respondent is without knowledge as to whether the Committee is a labor organization within the meaning of the Act. Pursuant to notice, a hearing was held from June 18 through June 28, 1951, at Grand Rapids, Michigan, before me, the undersigned duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel, the Union by two officials, and the Committee by its respective chairmen at the two plants involved. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, oral argument was heard on a motion by the Respondent to dismiss the complaint in its entirety because neither the Union nor Local 911 had served a copy of either of the charges on the Respondent, as re- quired by the Board's Rules and Regulations, both then and presently in effect.` Said motion was denied without prejudice to its renewal. Argument was also heard on a motion by the Respondent to dismiss the complaint in its entirety inso- far as Local 911 is concerned because Local 911 was "not in any way a party" to the proceeding. The Respondent's position, in part, was that Local 911 was defunct, could not administer the contract, and had made no authorizations whatsoever pertaining to the case. Ruling was reserved on said motion. Be- fore testimony was heard, a motion by the General Counsel for the separation of witnesses was granted over the Respondent's objection. When the General Counsel rested his case-in-chief, the Respondent moved to dismiss the complaint in its entirety on the basis of the evidence. This motion was argued on the record, all parties being accorded opportunity to participate. The Respondent, the General Counsel, and the Union presented fairly complete statements of their respective positions. The Respondent's motion was taken under advisement. It was thereafter denied without prejudice to its renewal, and the hearing proceeded. During the Respondent's case, a clarifying amend- ment to the complaint was permitted over objection. At the close of the hearing, the Respondent renewed all three of its above- described motions. The Committee moved that the complaint be dismissed as concerning Local 911, and also that it be dismissed on the basis of the record. Rulings upon the motions of the Committee and upon the motions renewed by the Respondent were reserved by me for the Intermediate Report. A motion by the General Counsel that the pleadings be conformed to the proof as to minor details was granted without objection. All parties were afforded opportunity to argue orally and to file briefs or proposed findings of fact and conclusions of law, or both. In view of the oral argument already held on the record, oral argu- ment was waived by all parties. Pursuant to extension of time for filing to August 20, 1951, granted by the Chief Trial Examiner, the General Counsel and the Respondent have filed de- tailed briefs. On August 20 the Respondent also filed with me a motion to correct the record in some 52 particulars. The formal file shows proof of service of this motion on all parties. Rulings Upon Pending Motions As no objections to the Respondent's proposed corrections of the transcript have been filed, and since said corrections appear to me upon examination of the record to be appropriate, the Respondent's written motion to correct the record s Section 203.14 of the Rules, Series 5, specified : "Upon the filing of a charge, the charging party shall be responsible for the timely and proper service of a copy thereof upon the person against whom such charge is made." This identical language appears presently in the Rules , Series 6, in the renumbered Section 102.14. OLIVER MACHINERY CORPORATION 829 is hereby granted, with two clarifications set forth in the margin' In addition, several other corrections in the transcript which appear in the margin are hereby made,' The motions of the Respondent and the Committee to dismiss the complaint in its entirety insofar as Local 911 is concerned are hereby denied, inasmuch as I am convinced from the record as a whole that Local 911 is not a charging party. There is no evidence that Local 911 took any action of any kind to authorize or to join in the filing of the charges; no officer of Local 911 signed either charge; and the complaint does not in any way identify Local 911 as a charging party. Further, the General Counsel stated at one point during the hearing that "the UB is the charging party"; the General Counsel's brief states that the charge and the amended charge "were instituted by the Union." In addition, Local 911 was not separately served with notice of hearing ; did not make a motion to intervene in this case ; and did not sign the contract named in the complaint. In view of my holding that Local 911 is not a charging party, dismissal of the complaint as concerning Local 911 would be an anomaly.' As to the Respondent's motion to dismiss because of the failure of the Union and Local 911 to serve copies of the charges on the Respondent, this motion can properly apply only to the Union in view of the above holding. Assuming that the Union itself did not duly serve a copy of either of its charges on the Respond- ent, it is clear that the Regional Director did make timely service of the charges, as shown in footnote 1. While I believe it would have been procedurally better, under the explicit language of the Board's Rules, for the Union to have served its charges, the Union's failure to do so, in view of the Regional Director's due service thereof, does not under the language of Section 10 (b) of the Act, which does not specify by whom charges are to be served , deprive the Board of juris- diction to proceed ° Nor am I persuaded that, as a matter of policy , the Board would extend certain language in decision cited by the Respondent to the clearly distinguishable facts of the present case.1° Accordingly, the aforesaid motion of the Respondent to dismiss is denied. $ The correction made on page 711 Is in line 15 rather than line 14; the correction on page 1075 Is in line 20 rather than line 19. 'The corrections thus made are as follows : Page 240, line 15, "West Side" is corrected to read "East Side." Page 240, line 21, "31 voted" Is corrected to read "20 voted." Page 287, line 1, is corrected by striking the word "on" and inserting "without further arguing whether it is" Page 468, line 19, "company" is corrected to read "complaint." Page 495, line 2, "non-union" Is corrected to read "union." Page 499, lines 9 and 10, "The witness testified he didn't know," Is corrected to read, "As the witness testified, I didn't know." Page 597, line 1, is corrected to read "TRIAL EXAMINER BELLMAN : You may answer." Page 656, line 13, "October 24th" is corrected to read "August 24th." Page 735, line 24, is corrected to read, "does seem to me from the context that this contract must incorporate a wage scale." It should be noted that in conformity with this holding, the appearance of Towns, who identified himself as president of Local 911, is shown with the appearances for the Union rather than separately for Local 911. Since the charge and the amended charge which bottomed the complaint were filed by the Union, any attempt on the part of members of Local 911 to withdraw these charges is, as the General Counsel contends, without force or effect. In addition, under all the circumstances of this case, I do not consider the request made by Committee Chairmen Simons and Grover at the close of the hearing to Towns that Local 911 j oin in their motion to dismiss the proceedings, to constitute "evidence of interference, restraint and coercion," as the General Counsel contends. ' N. L. R. B. v. Arthur J. Wiltse, d/b/a The Ann Arbor Press, 188 F. 2d 917 (C. A. 6). °° R sf R News Company, 92 NLRB 1134, and Beacon Manufacturing Go., 94 NLRB 88L 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remain the motions of the Respondent and the Committee to dismiss the complaint in its entirety on the basis of the record. Said motions to dismiss on the merits are in part granted and in part denied, in accordance with the conclusions which hereinafter appear. Upon the entire record in this case, and from my observations of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Oliver Machinery Company, the Respondent, is a Michigan corporation having its principal office and place of business in Grand Rapids, Michigan. It is there engaged in the manufacture of woodworking machinery, metalworking machine tools, packaging equipment, and labeling machinery. The Respondent's two principal manufacturing plants, its East Side plant, also known as the Clancy Street plant, and its West Side plant, also known as the Baldwin-Tuthill Division, both in Grand Rapids, are involved in this proceeding. A foundry which the Respondent operates in Grand Rapids is not involved nor is its label division, a distinct organization which is housed in the same building as the West Side plant. In the course of its operations in Grand Rapids during the year 1950, the Respondent purchased raw materials, including grey iron, steel, aluminum, and motor bearings, valued in excess of $1,000,000. Approximately 50 percent of these materials came from points outside the State of Michigan. The various types of machinery, machine tools, and equipment, which the Respondent manu- factured in Grand Rapids during 1950, had a total value in excess of $2,000,000. Of these products, approximately 90 percent was shipped to points outside the State of Michigan. On the basis of the foregoing undisputed facts, I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America, Independent, the charging party which is herein called the Union, is an unaffiliated organization which admits to membership employees of the Respondent. Beginning with an agreement signed November 1, 1946, the Union has continuously had written agreements covering employees of the Respondent. On the basis of the Union's constitution and bylaws, its bargaining negotiations with the Respondent, and its signed agreements, it is patent that the Union is a labor organization within the meaning of the Act, and it is so found. III. THE UNFAIR LABOR PRACTICES A. The case in perspective In a decision involving a complex of issues, some of which appear novel, and inconsistent testimony bearing on numerous facts, it may be well to indicate at the outset something of the general nature of the problem. For instance, there was substantial bias because of strong feelings on the part of many witnesses. Moreover, witnesses called by the same party were not in agreement as to the order in which events transpired or as to the details of conversations and negotiations. This was particularly true witfi respect to what took place at the bargaining conferences during August, September, and October, 1950, but it was also true with respect to other matters. Such factors, along with conflicts in the testimony, make fact finding on several matters difficult. It should be noted that one of the principal figures in many of the events in Issue, David Mates, the field organizer who was the principal negotiator for the OLIVER MACHINERY CORPORATION 831 Union at the bargaining conferences, did not take the stand to testify although he was present during most of the hearing. It should also be noted that some of the witnesses for the Respondent, particularly Ralph Baldwin, the official of the Respondent primarily responsible for its labor relations and for most of the actions in issue as unfair labor practices, made it clear by demeanor as well as by testimony that Mates' manner and behavior were strongly resented and his motives suspected. Evidently some of the Respondent's representatives finally came to suspect that Mates was subject to Communist influence. In addi- tion, there does not appear to be any doubt, from the testimony of numerous witnesses called by the General Counsel and the Respondent, that prior to any of the alleged unfair labor practices, dissension had arisen among members of Local 911 because of a belief that some of the officials of the Union were subject to Communist influence. Further, while the Respondent apparently does not specifically advance, as a defense of its own actions, any belief that Mates and the Union were subject to Communist influence, the Respondent does contend that after the Union had lost an unpopular economic strike in October 1950, the issue of communism in the Union, which had been expelled from the CIO about a year earlier, influenced the employees to disavow the Union and further motivated members and officers of Local 911 to take part in activities resulting in the formation of the Committee. The "issue of communism" in this case arises in a different context from that involved in Stewart-Warner Corporation, 94 NLRB 607, cited by the General Counsel. The question of whether Mates was, in fact, a Communist was not litigated." On the other hand, a memorandum of "Information From the Files of The Committee On Un-American Activities, U. S. House of Representatives," secured through his Congressman by counsel for the Respondent, Steven F. Dunn, in January 1951, which contains among other things an approximately two-page summary about Mates, was received in evidence after it became ap- parent that Baldwin, at a joint meeting of the Committee a few weeks before the hearing in the instant matter, had read to the committeemen at least the section therein concerning Mates. This document was first offered by the Re- spondent as corroboration of the existence of the type of public information about Communist influence in the Union which employees testified entered into their consideration in taking action which the Respondent contends constituted voluntary action by them. This document was not offered or received as evidence of the truth of the statements contained therein, particularly as to whether Mates, or either of the other two officers of the Union therein mentioned, were actually Communists. In addition, it should be borne in mind that Mates was not called to testify as a witness, although he participated in the hearing as a representative of the Union. Hence, in my opinion, the Respondent's contention that Mates' credibility is in issue is without merit. Mates failure to testify, however, has of course been duly considered in weighing the evidence. The Respondent's additional contentions as to the motives and the statements of Mates in filing the charges are not controlling on any of the issues. Statements in the charges were not received as proof of the facts stated, and the charges are not pleadings. Nor would questionable motives or character on the part of an informer, if proved, preclude action by the appropriate governmental agency." n Nor do I understand that the Respondent sought to litigate that issue, although one exhibit offered by the Respondent was rejected because its receipt would have opened up the issue of Mates' actual Communist affiliation. 22 See N. L. R. B. v. Indiana d Michigan Electric Company , 318 U. S. 9, 18. 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To summarize, fact finding in this case as to several matters is difficult because of the distortion induced in the memory of witnesses by the operation of strong feelings during an intervening period available for rationalization. In addition, a realistic appraisal of the record as a whole shows that at certain periods some of the employees, including members and officials of Local 911, were influenced by their own feelings about the Union and its leaders as well as by various letters, speeches, and actions of the Respondent. Thus, under the unusual cir- cumstances of this case, determination of whether or not behavior of the Respond- ent was violative of the Act, become closely enmeshed with the problem of under- standing the total context in which it occurred. Yet to spell out that total context for each of the numerous matters in issue, and to set out all of the subtle infer- ences connected with resolutions of credibility which such a course would entail, would very greatly protract this report. Hence, while I have carefully studied all of the evidence, and have weighed all of the contentions advanced by the parties in oral argument and briefs, I am discussing only such matters as appear to me, after living with the case long enough for painstaking reflection, to have substantial bearing on pivotal facts and issues. Under this procedure, many facts and issues will receive only cursory attention. Others which appear remote or insubstantial with respect to the major issues will not be discussed. In any event, such findings as follow are made upon the preponderance of the reliable, probative, and substantial evidence in the record considered as a whole. B. Background facts and contractual relations" The Respondent's first labor agreement covering employees involved in the instant matter apparently stems from a Board decision issued March 12, 1942, in Oliver Machinery Co., 39 NLRB 722, in which the Board, on the disputed issue of whether only 1 of the 2 plants presently involved could constitute an ap- propriate unit, found as appropriate a single plant unit composed of "all produc- tion employees" at the West Side plant, "including apprentices, but excluding supervisory, clerical, engineering and plant protection employees and truck drivers." In upholding the position of the petitioning union, International Asso- ciation of Machinists, Lodge No. 475, herein called the I. A. M., the Board, while recognizing merit in the arguments advanced in support of a unit including both plants, concluded and found as follows : In these circumstances, giving due consideration to the arguments ad- vanced by the Company, we see no reason for denying the employees at the Baldwin Tuthill plant their right to self-organization and to collective bar- gaining through representatives of their own choosing merely because under other circumstances a unit including employees at both plants might be deemed appropriate. We find that the Baldwin Tuthill plant constitutes a separate appropriate unit in view of the present state of self-organization, but our finding in this respect does not preclude a later determination that a larger unit is appropriate when organization has extended to employees at the Coldbrook plant` Pursuant to the results of an election, the I. A. M. was certified by the Board in the above unit at the West Side plant" However, that the employer main- tained its position on the unit question is patent from the Board's Decision and 13 The findings in this section are based mainly on documentary evidence, credited testimony which is not contradicted, admissions, and official notice of decisions. '' It is apparent that the Coldbrook plant is another name for the East Side plant, just as Baldwin Tuthill Is for the West Side plant. ' 40 NLRB 578. OLIVER MACHINERY CORPORATION 833 Order of February 12,1943, in M. D. Baldwin, et at., 47 NLRB 449.16 That decision involved a stipulated refusal to bargain solely on the basis of the contention that the Board's unit finding was inappropriate. The Board reviewed its decision on the appropriate unit, again pointing out factors having weight both for the two-plant unit and for a single-plant unit. As to factors weighing for a unit embracing both plants, which are about a mile apart, the Board stated : In the representation case, the Board recognized, as the evidence showed, that the two plants were similar with respect to equipment, type of opera- tions performed, and employee classifications ; that the operations of the two plants were interdependent to a considerable degree and there was a sub- stantial interchange of work between them ; that both plants were operated through a single office located in the Coldbrook plant, and all personnel records were kept in that office ; and that general labor policy was determined in the company's main office. As to factors indicating the appropriateness of the single-plant unit, the Board's, decision continued : However, we also found that no history of collective bargaining existed at the respondent's plants ; that the Baldwin Tuthill plant, geographically sepa- rated from the Coldbrook plant, had a superintendent, assigned exclusively to it, who handled personnel problems and had authority to hire employees ; that there was no substantial temporary interchange of employees, but, in fact, there existed a policy against such interchange ; and that only the employees at the Baldwin Tuthill plant were organized for the purpose of collective bargaining. The Board reaffirmed its previous decision that the West Side plant alone was an appropriate unit, and ordered the Respondent to bargain. The Board's order that the Respondent bargain with the I. A. M. for the pro- duction employees at the West Side plant was enforced by the Court of Appeals for the Sixth Circuit in Case No. 9513 on December 16, 1943. Thereafter, bar- gaining relations which are not revealed by the record resulted in a contract between the I. A. M. and the Respondent covering the West Side plant only. On September 24, 1943, the Board decided, in M. D. Baldwin, et at., 52 NLRB 849, and in substantial agreement with a stipulation of the parties in that case, that all employees at the Grand Rapids foundry division, excluding office, clerical, plant protection, and supervisory employees, constituted an appropriate unit, and directed an election in which International Molders and Foundry Workers, Local #213, A. F. L., was the only labor organization on the ballot. Although the record is vague on the subject, it was apparently pursuant to the outcome of the election so directed that "an AFL union" has represented the foundry em- ployees "for a substantial period of time." The complaint alleges and the answer admits that about July 23, 1946, in Case No. 7-R-2308, the Board conducted an election among the production, mainte- nance, and shipping and receiving employees, and other employees in the East, Side plant only, excluding office, clerical, and supervisory employees ; that the majority of said employees selected the Union as their bargaining representative ; and that on November 29, 1946, the Board certified the Union as the representa- tive of said employees. The foregoing case is not reported in the Board's deci sions. The only record available in Washington for official notice is the case 19 The 2 plants, operated then by the copartnership constituting the respondents in that case, are the same 2 plants now involved in the instant matter and in the above representation case. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD history card. It indicates that the Union was the only labor organization on the ballot in the election which resulted in the Union's certification by the Regional Director. It thus appears that the Union and the Respondent, with the approval of the Regional Director, agreed upon a unit confined to the East Side plant. Whether or not there was any proviso as to possible subsequent enlargement of this unit does not appear. In any event, an agreement dated November 1, 1946, was signed by a represenative of the Respondent, a representative of the Union, and by three representatives of Local 918, the predecessor of Local 91114 In its opening paragraph, the agreement, like each of the series of three agreements which followed, specified that it was entered into between the Respondent and the Union, "in behalf of and in conjunction with" its local.1B The unit of recog- nition in the 1946 agreement coincided with that for which the Union was certified, except that no mention was made therein of "shipping and receiving" employees. There appears to be no explanation in the record for this omission. Article III of the agreement, entitled "UNION SECURITY AND CHECK-OFF," required all members of the Union in good standing, and all employees who thereafter became members, to maintain their membership in the Union in good standing "as a condition of employment." It also provided for checking off initiation fees and dues upon individually executed written authorizations, and for determination under the grievance procedure of the contract of several matters pertaining to maintenance of membership. The agreement was to re- main in effect for 1 year, and from year to year thereafter, in the absence of written notice 30 days prior to its anniversary date. The complaint alleges and the answer admits that about April 4, 1947, in Case No. 7-R-2595, the Board conducted an election among all of the employees of the West Side plant, "excluding clerical, engineering, plant protection em- ployees, truck drivers, printers, foremen and supervisors" ; that the majority of said employees selected the Union as their representatives ; and that on April 14, 1947, the Board certified the Union as the representative of said employees. This case is not reported in the Board's decisions. The case history card shows that this was a consent election won by the Union, which was the petitioner, over Lodge No. 475 of the I. A. M, the intervenor, which had an agreement expiring on May 7, 1947. The only exclusions from the unit listed on the case history card are "plant-protection employees." However, from the exclusions specified in the Board's above-discussed decision of March 12, 1942, in estab- lishing the unit at the West Side plant, and from the fact that there apparently never has been any question but that the label division housed in the same building as the West Side plant should be excluded, it would appear that the unit admitted in the pleadings reflects the agreed unit for which the Regional Di- rector certified the Union for the West Side plant. It thus appears that this certification of the Union," the most recent certification involved in this case, stems back to a unit determination made by the Board some 5 years earlier, which was upheld by the Court of Appeals for the Sixth Circuit on December 16, 1943, and that the I. A. M. had had a contract for the West Side plant em- ployees for a period of time prior to the Union's 1947 certification for that unit. The next development established by the evidence was the execution by the Respondent, the Union, and Local 911, of a 1-year agreement, dated November 1, 1947, renewable in the absence of 60 days notice, which provided for the Union's 17 By notice dated December 3, 1946, bearing 3 signatures , 2 of which appear on the above agreement, the Respondent was advised that thereafter Local 9-18 would be known as Local 9,11. '8 The local was specified as "Local No 918" in this agreement and as "Local No. 911" in each of the subsequent agreements. 11 In both certifications , it was the International UE only which was certified. OLIVER MACHINERY CORPORATION 835 recognition as the representative of the Respondent's employees in both the East Side and West Side plants. The description of the combined unit in the 1947 agreement differs in no material respect from that in the most recent agreement of November 1, 1949, which is set out in full hereinafter. The 1947 agreement, and a memorandum of understanding attached thereto, were each signed by a representative of the Respondent, by a representative of the Union , and by four representatives of Local 911. The union-security and checkoff provisions of article III were similar to those in the earlier contract. All employees who were union members in good standing on November 20, 1947, or thereafter, voluntarily became members, were required to maintain their membership in good standing. An employee "intimidated or coerced" into joining the Union during a 15-day "escape" period could submit the matter as a grievance. The voluntary written checkoff authorizations were for dues only, and were effective for 1 year or the duration of the contract, whichever was shorter. The memorandum of understanding attached to the 1947 agreement, to which article III thereof was specifically made subject, essentially recapitulated certain fundamental provisions of article III, including the above-summarized provisions requiring maintenance of union membership. However, it varied the resort to the contract's grievance procedure by substituting therefor "an impartial referee" to determine such disputes as whether an employee was a union member on November 20, 1947; was coerced into joining during the 15-day escape period ; or failed to maintain his membership in good standing. In addition, the memo- randum contained the following new provisions, which are not further explained in the record : If any employee should, after the signing of this contract, desire to resign from the Union but continue his employment with the Company, these facts likewise shall be presented to the impartial referee, who shall decide whether or not the employer may be permitted to resign from Union membership. The referee shall permit employees to resign from Union membership, without such affecting their employment, if they can show religious objec- tions to membership in the Union, or that they have been intimidated or coerced into joining the Union or maintaining their membership therein, or have joined the Union under misrepresentation, or if their membership in the Union shall cause them extreme financial hardship. Other reasons justifying resignation from Union membership shall be within the discretion of the referee. The referee's decision in all cases shall be final and the expenses of the referee shall be paid as mutually agreed upon. At this point it is important to note that although the above contract was executed after August 22, 1947, the effective date of certain amendments to the Act pertaining to union security, no election had then, or has at any time since, been conducted, pursuant to Section 9 (a) (1) of the amended Act, which could authorize the Union to make an agreement containing union-security provisions. In short, the 1947 agreement appears to have taken no cognizance of the union- security provisions of Sections S (a) (3) and 9 (e) (1) of the Act as then amended," except to the extent that the above-quoted provisions of the memo- randum apparently were intended to soften the illegal maintenance-of-member- ship requirements in the agreement itself. But even these apparently novel softening provisions! did not, as I interpret the long line of Board decisions bearing on this subject, serve to make the 1947 contract's union-security pro- visions legal. In any event, as appears below, those softening provisions were subsequently abandoned. 10 While such an election is no longer required under further amendments of October 22, 1951 , such amendments occurring after matters in issue in this case are not material to a determination thereof. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 2, 1948, a supplemental agreement was signed by a representative of the Respondent, a representative of the Union, and by four representatives of Local 911. It extended the 1947 agreement to November 1, 1949, and provided among other things, that "said contract will be administered and interpreted in accordance with applicable laws and interpretations thereof."' On or about November 1, 1949, a 2-year agreement, renewable from year to year thereafter in the absence of 60 days written notice prior to November 1, 1951, was signed for the Respondent by Ralph Baldwin, and for the Union by David Mates and 4 employees." In contrast to the preceding agreements, Local 911 does not appear as a signer of the 1949 agreement. Nor was the phrase last quoted in the immediately preceding paragraph carried over into this agreement. The unit in the 1949 agreement is identical, save for minor clerical variations, with the unit alleged in the complaint as appropriate. It reads as follows : The bargaining unit, for the purposes of this agreement, shall be composed of production and maintenance employees of the Company's two (2) machine shops, known as the "Clancy Avenue plant" and the "Baldwin-Tuthill plant" but excluding all office and clerical employees ; all supervisory employees with the authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, and all employees of the label division of the Baldwin-Tuthill plant. As to the union-security provisions in this latest agreement, all of the novel softening modifications of the 1947 memorandum were abandoned. Disputes of the type transferred under the memorandum to an impartial referee, all were returned to the contract's grievance procedure. It was provided that the Re- spondent would deduct union dues for 1 year or the life of the contract, which- ever was shorter, upon receipt of voluntary authorizations received in writing before November 16, 1949. And it was required that, "as a condition of employ- ment," union membership in good standing would have to be maintained by all employees who thereafter joined and by all employees who were members of the Union in good standing on November 2, 1949. It is thus apparent on its face that the 1949 contract provided no effective escape period and imposed more stringent union-security requirements of an illegal nature than its predecessor.' While there is no specific explanation in the record of the failure of Local 911 to appear as a signer of the 1949 contract, there is evidence which sheds considerable light on the situation which existed within Local 911 during that period. It should be noted that Local 911 had originally included the employees of 3 other companies R4 in addition to the employees of the 2 plants of the Re- spondent here involved. I am convinced from credited testimony, some of which is hereafter cited, that a principal cause of Local 911 dwindling until it included only employees of the Respondent was dissension which developed around the Communist issue. Archie Simons, presently chairman of the Com- mittee, West Side plant, who was the treasurer of Local 911, testified that from a Such a phrase was not a substitute for authorization pursuant to a Section 9 (e) (1) election. 2' While this agreement may not have been signed by the four employees, as appears more fully below, until sometime after November 1, 1949, the date it bears, that date is herein used as the date of its execution. a' The Board had held as early as November 5, 1948, that the execution of maintenance- of-membership provisions in the absence of certification pursuant to Section 9 (e) (1) of the Act was illegal . See General Electric Company, 80 NLRB 169, and C. Hager J Sons Hinge Manufacturing Company, 80 NLRB 163, 165. u These were Lear, Incorporated ; Furniture City Plating Company; and Automatic Musical Instrument Company, also known as AMI. OLIVER MACHINERY CORPORATION 837 the earlier part of 1947, the first year after the Respondent's employees got into the amalgamated local ,26 there were discussions at the meetings about Communist infiltration ; that they "even had men here from New York, Pittsburgh, and all over arguing about it"; that the other plants "all dropped out of Local 911 for the stated reason that the UE was Communist dominated and they wanted no part of Local 911 and that left just Oliver Machinery holding the bag" ; and that he himself "would have withdrawn then but that would have left us no means of bargaining with the company collectively." Although the chronology of Local 911's dwindling cannot be precisely estab- lished from the record, it appears that the employees of Lear, Incorporated, "pulled out" first, possibly as early as 1947; that the employees of AMI followed next, about a year and a half later; 28 and that a small number of employees of Furniture City Plating Company remained until perhaps November 1949, leaving about the time of the severance of the Union from the CIO 27 In any event, Edward Bernatowicz, an East Side plant employee who had been a member of the Union since it had secured its first contract and had also served as a steward of Local 911, testified that "from the time Lear, Incorporated dropped out of the amalgamated union, until around the time when the 1949 contract was signed and Local 911 contained only Oliver Machinery Company, there was strong talk of communism in the Union." 28 While it is possible that "the Communist issue had reached its climax" by, the latter part of 1949, as the General Counsel' s brief contends, it was far from "a dead issue" at the time the contract for 2 years, with its above-described illegal union-security provisions, was signed on November 1, 1949. In thia respect, the undisputed testimony of Harold Cooper, who had served on the Union's 1949 bargaining committee and had also been recording secretary and chief steward of Local 911,29 is particularly illuminating. Cooper, whose signa- ture heads the four signatures of the employees appearing below that of Mates on behalf of the Union on the 1949 agreement , testified that he had hesitated to sign the 1949 contract "because the UE had been expelled from the CIO at that time." Cooper's credited version of what transpired in a conversation with Dunn, before signing the 1949 agreement during the negotiation of which Dunn had served as the Respondent's attorney, is as follows : . .. The other members of our plant, that is of the negotiating committee and myself approached Mr. Dunn immediately prior to signing the agreement because of the fact that there had been an upheaval in the CIO. The UE had been put out and we were somewhat hesitant to sign with the Inter- national Union because we didn't know what was coming. We thought it would be better if we could find out and could Sign on behalf of the Local, and then if we wanted to, we could withdraw from the International. [Emphasis supplied.] s • • s s a s I believe that you [Dunn] said it was-the whole situation was very undecided. This whole thing had taken place I believe just a day or two 26 It will be recalled that the Respondent was notified on December 3, 1946, that Local 918, one of the signers of the 1946 contract covering the East Side plant , would thereafter be known as Local 911. 28 Dunn testified that the Union still represented the employees of AMI, but In "a different local " 27 This approximate chronology rests largely on somewhat Indefinite testimony of Donald Baar, who is identified elsewhere herein. 28 The quoted material is a summary of Baar's testimony adopted from the General Counsel's brief. 29 Cooper became assistant general assembly foreman in November 1950. 250983-vol. 102-53-54 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior and-there was nothing definite as to what could be done or what was going to happen. That is in respect to the status of the UE in relation to the CIO and I believe you said there wasn't too much we could do other than sign the contract at that time. Dunn's version of the foregoing incident supplements Cooper's in some re- spects. Dunn testified that Mates had asked him to give "the shop committee in 1949 my opinion as to the effect of the UE's expulsion from the CIO"; that he thereafter told the committee that factually and legally the "identity of the UE International" had not changed and that he had "no facts supporting those rumors" as to communism in the Union ; that he had accepted "at face value" the explanation which Mates had given him that "the expulsion of the International UE from the CIO was purely political" ; that he later felt that lie "had been fooled" ; and that he had not known at the time he talked with the committee that "there was any interest on the part of another union." As to the bearing of the signing of the 1949 contract on employee activity at that time looking toward the selection of another representative, the credited and uncontradicted testimony of Donald Baar, a steward in the East Side plant who had been in the Union since 1946, is particularly noteworthy. This is the gist of Baar's testimony on this subject. A committee, apparently composed largely of stewards from the East Side plant, held two meetings with UAW representatives to canvass the possibility of the employees getting out of the Union and into the UAW. The first of these meetings was held the evening of the day upon which the 1949 contract had been signed about noon. After meeting with the UAW rep- resentatives, the committee of stewards talked the matter over with employees who, "in most instances," said they wanted to get out of the Union. They explained to the employees that there would have to be enough UAW cards signed to support a petition for an NLRB election. The feeling revealed as a result of this questioning was expressed by Baar as follows: Everyone seemed to be quite sick of all unions at the time and we just couldn't interest enough people into going through with it, seeing we had to have some sort of a majority to petition an election from the NLRB. Baar further testified that Cooper, who was also a member of the committee considering going into the UAW, explained to the committee that Dunn's advice had been sought about signing the 1949 contract, and that Dunn's opinion had been "to sign it." The ultimate decision informally reached by the committee was explained by Baar in the following words : We talked amongst each other and at that time we had just signed an agreement with the Company and we decided we would leave the agreement in effect because we would undoubtedly run into difficulties getting a petition for an NLRB election. Some additional testimony, summarized in the General Counsel's brief as follows, should be noted : Frank Herman testified that in November 1949, under an escape period in the 1947 contract, he withdrew from the Union because he thought it was a Communist organization, and that the reasons for his resigning, as well as the existence of an escape period, were generally known to the employees. % While it would appear from Herman's testimony that other employees "pretty generally" knew of his reasons for leaving the Union, and that perhaps 1 or 2 OLIVER MACHINERY CORPORATION 839 other employees also got out about the same time, there is doubt in my mind as to just when Baar did withdraw, and as to how the escape period provided in the 1947 contract could have operated in November 1949. It is possible, of course, that Herman may have left the Union prior to November 1949, under the above-discussed provisions in the 1947 memorandum, or that the Union was lax in insisting upon adherence to the provisions of the 1949 contract. In any event, the contract "entered into" on November 1, 1949, provided for mainte- nance of membership for employees who were members of the Union as of No- vember 2, 1949, and Herman's testimony, in my opinion, does not warrant a finding that the 1949 agreement was actually interpreted to mean less than it plainly said. C The alleged refusal to bargain 1. The appropriate unit As noted above, the Respondent's answer does not admit the allegations of the complaint as to the appropriate unit. Rather it states that the Respondent "neither admits nor denies that the employees in the unit described in Paragraph 13 constitute a unit appropriate for the purposes of collective bargaining." Para- graph 13 of the complaint alleges that the Respondent entered into an agreement with the Union covering "the employees described in units set forth in para- graphs 11 and 12 above, ° said units being jointly described" in the agreement in the language set forth above in full. Paragraph 14 of the complaint further alleges that all of the employees "in the unit described in paragraph 13 above, constitute a unit appropriate for the purposes of collective bargaining." At best, the complaint appears somewhat ambiguous as to whether it is alleged that there are 2 separate appropriate units for which there has been joint bar- gaining or whether the 2 plants constitute a single appropriate unit. The Gen- eral Counsel introduced some unit evidence, the intent of which appears to be to establish that a single unit composed of both plants is appropriate. However, it is my opinion that the unit evidence, which is silent on several points, does not, on the whole, establish that there have been material changes in the factors bearing on the unit issue since the Board's decision of February 12, 1943,' except that self-organization has been extended to both plants, and the collective- bargaining history set out above in detail has since developed. In brief, this history shows that before November 1, 1947, the IAM had repre- sented the West Side plant employees separately for an apparently substantial period of time, and the Union had a contract covering only the East Side plant employees for a year. Since November 1, 1947, subsequent to its separate certifi- cations for the respective plants as separate units, the Union has covered both plants in a series of single contracts which have described the employees covered in language which on its face constitutes a single combined unit . Moreover, each of these contracts, as is fully detailed above, afforded the Union illegal assistance by virtue of illegal union-security provisions. It is thus apparent that the only history of bargaining pointing toward a unit composed of both plants is all under the cloud of these illegal union-security provisions. Accord- ingly, the weight which should be accorded such bargaining history in deter- mining the appropriate unit is subject to serious question" 3O Those units are the respective ones set out in the immediately preceding section of this report , for which the Regional Director certified the Union in the two plants separately. ii The factors discussed in that decision have been fully set out in the preceding section of this report. ii Cf 11'isconxin Telephone Company, 12 NLRB 375,, 396. 0 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, it is not clear from the evidence that the unit description, taken from the 1949 contract and set out in paragraph 13 of the complaint, actually does jointly describe the two units for which the Union had previously been certified. A careful comparison of all of the units detailed above shows that, on its face, the language relied upon as the unit description fails specifically to include shipping and receiving employees who were specifically included in the East Side plant certification. It also fails specifically to exclude truckdrivers, printers, and engineering and plant-protection employees, who were specifically excluded from the West Side plant certification. However, the printers ap- parently have been excluded by virtue of the unit language which excludes "all employees of the label division." While the facts, if fully developed, might warrant holding that the employees specified in the complaint constitute an appropriate unit, in view of the ambiguity and the relative balance of the evidence on the unit issue, and because findings in the next section of this report have equal force in disposing of the refusal- to-bargain phase of this case, whether considered as applying to 1 joint unit or to 2 separate units, it is my opinion that a unit finding is not now appropriate or necessary" In addition, as appears more fully from my ultimate conclusions and recommendations, the purposes of the Act may best be served by freeing the employees from interference to pursue self-organization in such unit or units. as may hereafter be established to be appropriate. Accordingly, no appropriate unit finding is made. 2. The Union's majority From the brief and positions taken at the hearing, it appears that the General Counsel advances the following as evidence that the Union represented a majority of the Respondent's employees during the fall of 1950: Checkoff lists of employees at both plants; the certifications above described; the then unexpired 2-year contract of November 1, 19,49; and the fact that most of the employees at first participated in the strike. It should also be noted that the General Counsel takes exception to majority issue contentions, now to be summarized, which are advanced by the Respondent. As to the majority issue, the Respondent's various contentions, buttressed by- numerous citations, are essentially that there is "absolutely no evidence" estab- lishing the Union's majority; that the 1949 contract contains an invalid union- security clause ; " that as a matter of law certifications are revocable at will after a reasonable time; that the "lapse of over 4 years is certainly longer" than the right to revoke can be suspended; that while the bargaining impasse continued, the Union "lost its position as representative of the majority of Respondent's employees by its own actions and without any improper actions by Respondent on October 13 and certainly by October 17"; that the evidence establishes the Union's loss of majority in five respects epitomized in the " Cf International Union, United Mine Workers of America, et al, 83 NLRB 916, 920, and A. S. Beck Shoe Corporation, 9,2 NLRB 1457, 1459 '* It should be noted that my holdings throughout this report as to the illegality of union-security clauses in the contracts are not based on the absence of 3,0-day escape periods, concerning which the Respondent cites Worthington Pump and Machinery Corpo- ration, 93 NLRB 527, because of the Board's more recent position in Krause Milling Co ,. 97 NLRB 536. Nor are such holdings bottomed on the voluntary checkoff provisions. OLIVER MACHINERY CORPORATION 841 margin; '5 and that the Respondent's position herein is more favorable than that involved in the Board's Celanese decision," because the Respondent not only had "ample reason to doubt" the Union's majority "at the termination of the strike," but the record "shows ample evidence to rebut any presumption" of continuing majority. Before further considering the majority question, certain facts should be noted about the strike, which started Tuesday morning, October 10, 1950. While the great majority of the employees at both plants stayed out the first day or two, the strike was not successful. Within some 3 days, the employees of the East Side plant, followed by the West Side employees, held meetings at which they voted to return to work. The strikers who wanted to return to work evidently did so by or before Monday, October 16. Apparently all of the strikers, except one who did not wish to, returned. In any event, there is no contention that the Respondent failed to reinstate any strikers, and no question concerning replacements is involved in the majority issue. I have carefully studied the Board's decision in the above-mentioned Celanese case. It is my opinion that the unusual circumstances involved in the instant matter warrant proceeding in the most direct way to a determination of the majority question. This is true in no small part ,because any preliminary appli- cation of the "good faith" test, apparently presumed in the majority decision in the Celanese case as a first step, would involve, because of the nature of the evidence pertaining to bargaining discussed in section III, A, above, the pro- tracted and complex task of setting out the facts concerning the negotiations and thereafter disposing of the contentions in the 14 numbered paragraphs in the General Counsel's brief in which are specified the "Indicia of the Respond- ent's bad faith bargaining." 8' Similar problems of setting out and evaluating evidence, especially in view of the history of dissension connected with the Communist issue, would be involved in attempting to determine whether or not the record supports the Respondent's contention that the employee repudiated the Union by voluntary actions during and after the strike , thereby rebutting any presumption of majority. In any event, because of the background in this case, including the illegal union-security clauses in the contracts, it is my opinion that it will expedite decision to come to grips directly with the question of whether or not the evidence relied upon by the General Counsel to establish the " 1. A meeting of East Side plant employees voted to return to work after Mates had advised them that "if they returned to work, they did so without a union." 2. Extensive dissatisfaction with the Union, particularly because of the feeling that it was "Communist dominated ," and statements before and during the strike by "an over- whelming number of the employees" that they did not wish to be represented by the Union had been "communicated" to the Respondent. 3. A ballot of employees, discussed below, taken on their own initiative on October 17. 1950, demonstrated that the Union no longer had a majority. 4. Almost all of some 59 East Side plant employees whom Simons, as treasurer of Local 911, tried to get to sign new checkoff cards about November 1, 1950, told him they "wanted no part" of the Union. 5. A majority of those who had been union members at the time of the strike signed a petition to the Board to dismiss the charges in this case. The quotations in this footnote and in the above paragraph are from the Respondent's brief. " Celanese Corporation of America, 95 NLRB 664. 87 Careful reading of the Celanese decision indicates that "good faith " in raising the majority issue is not the same as having "ample reason to doubt" the majority. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's majority in the fall of 1950 actually does establish such majority. Accordingly, that question will first be considered. The General Counsel 's brief states that during October 1950 there were 167 employees in the 2 plants and that during the same period the checkoff contained 88 employees. My own analysis of the evidence shows that the payroll of the West Side plant for the week ending October 7, 1950 , as conformed by agree- ment of the parties at the hearing to include only the names of individuals considered in the unit, contained 75 employees . The October checkoff list for the West Side plant contained 38 names. For the East Side plant , the conformed October 7 payroll contained 95 employees and the October checkoff lists 50 names. It is thus apparent that for the 2 plants combined the October checkoff listed 88 of the 170 employees on the conformed October 7, 1950, payroll. Hence, this evidence establishes that, whether the plants be considered jointly or separately, a majority of the employees had their dues to the Union checked off for the mouth of October 1950. A result, similar in all material respects to that for October, is obtained when the conformed payrolls, in evidence for the 2 plants for the week ending September 30, 1950, are analyzed with respect to the September 1950 checkoff lists for the 2 plants. The General Counsel's brief seeks to augment the checkoff evidence by reference to some additional employees who signed applications for membership in the Union about a month before the strike, and to union members who paid dues in cash. The fragmentary and indefinite evidence on these mat- ters is not sufficient to have any weight in proving majority if the checkoff evidence fails. On the other hand, such additional evidence is unnecessary if the checkoff evidence is found valid under all of the circumstances of this case. To this last question we now turn. The provisions of the November 1, 1949, contract, pursuant to which the check- off was being made in the fall of 1950, have been detailed above, along with the background and the circumstances surrounding the signing of that contract. The individual checkoff authorization signed by union members, presumably "before November 16, 1949" to comply with the terms of the contract, were "irrevocable for a period of one year," or until the termination or renewal date of the contract. That the provisions of the 1949 contract requiring maintenance of member- ship were illegal is beyond question. That the signing of this contract, upon advice of counsel for the Respondent, actually had an inhibiting effect on self- organization appears evident from the circumstances detailed earlier in this report. But even ignoring evidence of such actual impact, the very existence of the illegal union-security provisions in the series of agreements covering the 2 plants jointly, negatives any assumption that employees , by signing these de- duction authorizations about November 16, 1949, were voluntarily and irrevoca- bly designating the Union as their bargaining agent for the 1-year period which actually did apply to those authorizations. This is true because the Board has repeatedly held that illegal union-security clauses, by imposing unlawful con- ditions of employment , act as restraints upon employees desiring to refrain from union activities, within the meaning of Section 7 of the Act. Hence, it cannot be said that employees who were being required by illegal contractual provisions to maintain their membership in the Union negated that illegal restraint by voluntarily accepting a less troublesome method of paying the union dues which constituted an illegal prerequisite for their continued employment . In short, it is my opinion that a careful study of the background facts set out in section III, B , in the light of the Board's policy concerning illegal union-security clauses, compels the conclusions that the checkoff lists relied on by the General Counsel OLIVER MACHINERY CORPORATION 843 can be accorded no weight in establishing the Union's majority in any unit at any time material in this case. As of the fall of 1950, the East Side plant certification was about 4 years old, and the West Side plant certification about 31/2 years old . Although the certifi- cations had been for separate units, by the fall of 1950 a unit which appears to combine approximately those 2 units into a single one had been covered for about 3 years by a series of contracts containing illegal union -security pro- visions. It is apparent from numerous Board decisions in cases where allega- tions that contracts involve illegal union-security clauses are proved, that the Board, in essence , concludes that the labor organizations have been illegally assisted and the employees illegally restrained and customarily requires that no effect thereafter be given to such contracts and that recognition be withdrawn from the contracting organizations. While the illegal provisions of the con- tracts in the instant matter were not put in issue as unfair labor practices by the pleadings , it would appear totally inconsistent with the Board' s policy per- taining to illegal union-security provisions to give any effect to the certifications as establishing the Union's majority in the fall of 1950, in view of the approxi- mately 3 intervening years during which this illegal assistance to the Union and restraint of the employees had existed . Accordingly, I find that the illegal union-security provisions in the contracts described above, under all of the circumstances of this case, deprive the certifications of probative value as evi- dence of the Union's majority , in any unit or units, at any time material herein. For reasons which are apparent from the foregoing, it would not square with Board policy to accord any weight to the 2-year contract of November 1, 1949, as evidence of the Union's status as the representative of the Respondent's em- ployees during the fall of 1950, although the contract then still had approximately a year to run. Hence that contract, which was not a bar to a determination of representatives and which restrained the employees and assisted the Union, does nothing to contribute to the General Counsel's proof of the Union's majority. In fact, because of the infirmity in this contract by virtue of its illegal union- security provisions , I deem it unnecessary , except to the extent such matters are hereinafter considered, to pass on other contentions of the parties pertaining to this contract. We come now to the participation of the employees in the strike as evidence of majority . The essential facts as to this participation have previously been stated. In view of the foregoing findings, this brief strike participation by most of the employees , followed shortly by votes to return to work, stands alone as proof of majority. Whatever weight might be accorded strike participation in conjunction with other evidence in establishing majority , I am convinced and find that the strike participation here involved does not constitute sufficient evi- dence, under all of the circumstances of this case , to establish majority repre- sentation by the Union in any unit or units. In view of all of the foregoing , I conclude and find that whether the unit be considered a single joint unit or two separate units bargained for jointly, the allegations of the complaint as to the Union 's majority have not been established by substantial evidence on the record considered as a whole. 3. Conclusions as to the alleged refusal to bargain In view of the failure of the evidence to establish that the Union had a ma- jority in any appropriate unit or units above discussed , at any time here material, the allegations of the complaint as to the Respondent's refusal to bargain must fail. Accordingly , my partial granting of the motions to dismiss operates as a 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dismissal of the complaint insofar as it alleges that the Respondent has refused to bargain with the Union, in violation of Section 8 (a) (5) of the Act. In view of the foregoing, I deem it unnecessary to go into numerous remaining conflicts, theories, and contentions which revolve around the refusal-to-bargain issue, although all have been carefully considered. Accordingly, with reference to such matters as the bargaining conferences prior to the strike, only those facts will hereinafter be stated which appear necessary for background and orientation with respect to the remaining issues in this case. D. Chronology of events; tinterference, restraint, and coercion 1. Events before the strike It should be noted at the outset that, as the Respondent stresses, the back- ground in this case shows no antiunion animus on its part. On the contrary, the Respondent some years ago consented to elections involving the Union, and thereafter signed a series of agreements with the Union. The last of these agreements, dated November 1, 1949, contained a provision that during its 2-year term either party could, within 6 months of the signing thereof and upon 60 days' written notice, reopen the contract once concerning wages. On August 8, 1950, the Union, over the signature of Mates, wrote the Respondent from Detroit where Mates had his office that pursuant to the reopening pro- vision it desired "to open negotiations on monetary and wage matters," and asked for a reply at "the earliest possible date." Pursuant to this reopening, a series of 5 bargaining meetings were held. These meetings, which usually lasted several hours, took place on August 24, September 11, September 25, October 3, and October 9, 1950, in Attorney Dunn's office. Mates, the chief representative of the Union, was accompanied by a bargaining committee for Local 911, composed of 2 members from each plant. The participants for the Respondent always included Ralph Baldwin, the Re- spondent's production manager and 1 of its directors, and Dunn, except that Dunn's associate took his place at the last meeting. The superintendents of the 2 plants were also present at most, if not all, of these meetings. In addition, at apparently all the meetings except the first one either a State or a Federal conciliator, or both, were present. During the period of the foregoing negotia- tions, Local 911 held meetings at which bargaining demands were formulated and the developments at the negotiations were reported and discussed. In the meantime, before the bargaining meetings got underway, the Respondent posted a notice on August 17, 1950, in its 2 plants that wages would be increased, effective as of August 7, by 5 cents per hour for nonpremium or day rate employees and by 4 cents per hour for premium or incentive employees. An announcement had been posted the day before, August 16, increasing wages of the foundry, label department, pattern shop, and office employees, who were not represented by the Union, by 5 cents an hour, as of August 7. That August 16 notice stated that "a comparable wage increase offered the Machine Shop Employees is presently unacceptable to the Union." Dunn testified credibly and without contradiction that the increase to the em- ployees represented by the Union had been held up until he had been able to secure Mates' approval for that increase in a telephone conversation to Mates in Detroit on August 17. Baldwin's uncontradicted and credited testimony is that he had first proposed the increase to the local committee of four union men on August 9, after receiving Mates' letter of August 8, because he had felt that early action was desirable in view of a possible wage freeze ; that the committee said it would take the proposal "back to their local group for discussion"; that OLIVER MACHINERY CORPORATION 845 the committee later informed him that they "were waiting for a response" from Mates ; and that Dunn later explained that he had received Mates' approval of the raise by telephone. Whether or not the Respondent might have handled this matter more appropriately, under all the circumstances, is a debatable question. In any event, I find no warrant for holding that the granting of this wage increase prior to the opening of the bargaining conferences constituted a violation of Section 8 (a) (1) of the Act" About 4: 15 p. in. September 11, shortly after the second bargaining session which adjourned early, the Respondent's employees in each plant were assembled to hear a hastily prepared statement of the Respondent's position. The employee did not punch out their timecards until after these meetings. The statement was read to the employees at the East Side plant by Superintendent Fred Zwald, and to the West Side plant employees by Manager Baldwin. After reading the pre- pared statement, Baldwin advised the employees that the Respondent was not breaking off negotiations and urged them to attend any union meeting which might take place, and vote. The 21/2-page "Memorandum re Facts to Employees" which was read is in evidence. The General Counsel contends that this statement was violative of Section 8 (a) (1) because the Respondent was thereby urging and persuading the employees to negotiate with it directly and to abandon the Union. The Respondent's position is that in presenting its viewpoint, proposals, and pertinent facts, it was only exercising its protected right of free speech. No purpose would be served by setting out all of this statement. In brief, the statement explained why the August 7 increase had been given ; accused the Union of making "several wild statements" at the first bargaining meeting ; stated that at the second meeting held that day the Union "made the flat statement that either we settle by tonight or they will put up pickets tomorrow morning" ; indi- cated that such a strike would be in violation of the contract ; urged the merit of a cost-of-living adjustment which the Respondent had offered ; asserted that the employees did not "have to be pushed around by a small minority" in the Union ; stated that the plant would be open for work as usual ; and expressed the hope that the employees would see the fairness of the Respondent's position and avoid "any unnecessary work stoppages and loss of earnings." Careful study of the Respondent's statement in the light of the total context in which it was presented does not convince me that the Respondent thereby violated Section 8 (a) (1). I am satisfied from my analysis of the testimony that Mates actually did threaten a strike the next day if the Union's demands were not met at once. The Respondent could reasonably have believed that a strike then would have violated the contract. In the light of my interpretation of what was currently taking place, I do not believe that it can be said that this statement of the Respondent constituted more than a permissible attempt to present its position to its employees in order to avoid a strike. At the close of work on October 3, the day on which the fourth bargaining conference took place, the Respondent distributed to the employees concerned a three-page, single-spaced letter which set out in considerable detail the Re- spondent's analysis of the respective positions of the parties as of October 3. This Indicated the Respondent had agreed to the Union's demands to restate contract provisions "dealing with timing of incentive jobs" and to furnish the Union "job classifications and rate ranges for all day rate workers" ; had refused to agree the the Union's demand for 6 paid holidays ; had offered a further hourly ""Granting unilateral wage increases to employees" is one of the Section S (a) (1) violations specified in the complaint. 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase in "the base rate of premium workers by 2¢ and non-premium workers by 21/a," which approximated half of the increase above the August 7 advance which the Union was demanding ; and had also offered additionally to adjust wages every 3 months on the basis of the BLS cost-of-living index. The letter detailed the procedure under the proposed cost-of-living adjustments, indicating that during its operation under the 2-year extension of the contract to November 1, 1953, which the Respondent proposed,30 wages could not fall below the base rate at the time it was put into effect, although there was to be no upward limit to such adjustments. A substantial part of this letter was given to showing, by comparative analysis, that the Respondent's wage structure was among the highest in the Grand Rapids area, and that the Respondent's proposal was "the best one for all parties that can possibly be made at this time." The General Counsel evidently does not attack the above letter on any theory that it distorted the positions of the parties at that time. It appears to me, in the light of all the evidence but without passing on the negotiations which had led to the positions stated, that the October 3 letter's statement of the positions of the parties at the end of the fourth conference was substantially accurate. Under all the circumstances, I believe that this letter falls within the area of "views, argument, or opinion," protected by Section 8 (c) of the Act, as the Respondent contends, and does not violate Section 8 (a) (1) as a part of a course of conduct, as the General Counsel contends. On October 6, the Respondent addressed a personal, three-page letter to each of its employees, which for the most part further argued the merits of the Respondent's proposals and the disadvantages of a strike. Concerning this letter, the contentions are essentially like those pertaining to the above letter and speech, except that the General Counsel also contends that the October 6 letter "contains a veiled threat not to rehire all strikers." As to this threat, the General Counsel quotes the following two paragraphs : Let me point out to you what such a strike would mean. Anyone who goes out on an economic strike actually quits his job-he does not have to be rehired by the company unless the company agrees to it in the settlement of the strike. If a strike does occur, you may rest assured that the Company is resolved to rehire at the end of the strike only those men who are willing to work for the good of all concerned-the workers, the Company, and the general public. The above two paragraphs appear about the middle of the letter, which opens with details as to the actual earnings of the individual to whom the letter was addressed. Four paragraphs follow which argue the fairness of the Respond- ent's wage proposals and the advantages of an automatic cost-of-living adjust- ment when wages are frozen. After a brief paragraph to the effect that the Union, in refusing the Respondent's offer, had indicated that it would "vote a strike next Monday night," the letter devotes two paragraphs to the Union's refusal at the October 3 meeting to accept the offer of the State conciliator to conduct a vote among all of the employees affected as to "whether or not they wished to accept the Company's proposal." Immediately preceding the above- quoted paragraphs, the letter states that the Union planned to confine the strike vote to its members10 so that "only a few men can destroy the job security and income of all of you." 80 The Union's proposal was for a 1-year extension. 40 While the Union was legally within its rights in confining the strike vote to members only, it departed from previous practice in conducting votes among the employees involved. Thiv departure resulted in resentment not only on the part of the Respondent but on the part of employees OLIVER MACHINERY CORPORATION 847 The letter, following the paragraphs specifically challenged as a veiled threat, is devoted principally to urging that careful consideration be given to the losses involved in a strike, both from the personal and the business standpoint. In closing, the letter, which was signed Al. D. Baldwin, president," states that "the two machine shops will continue open for all who wish to work" ; urges everyone "to think this whole problem through"; and expresses the hope that "you will come up with the right decision." While the above-quoted paragraphs, viewed out of context, raise doubts that a veiled threat may have been intended, it is my judgment that when all factors are considered, no threat to discriminate in rehiring strikers was intended or would necessarily be understood from the entire letter of October 6. It is note- worthy that after the Union had lost the strike, no question actually was ever raised about taking back any of the strikers who wished to return. In short, while the quoted paragraphs could have been more aptly worded, I find that the October 6 letter as a whole and in context did not fall within the prohibitions of Section 8 (a) (1) of the Act, but rather within the protection of Section 8 (c). The fifth and final bargaining conference took place on Monday, October 9. There can be no doubt that after further proposals and counterproposals had been considered for almost 3 hours, this meeting terminated in an impasse. It is my opinion that the chief element in this impasse was the Respondent's fiat refusal to agree to the Union's demand for 6 paid holidays. In addition, the Union never indicated any willingness to accept a cost-of-living adjustment as part of a wage settlement. It was that evening that a strike was voted at a meeting of Local 911. In the meantime, President Baldwin had made a speech on October 9, to a consideration of which we now turn. Elmer Johnson, a West Side plant employee called as a witness by the General Counsel, testified that his foreman notified him of a meeting in the assembly room of the plant at which the "biggest majority of the fellows" were present and that President Baldwin on that occasion made the following remarks : "My friends, which I hope you are my friends, we are up against a problem that is hard to discuss," and he says "We have got our backs to the wall." He says, "It is impossible to give any more money at this time in which the Union is trying to negotiate," and he says they are talking about a strike, and he said if they did strike, "which I hope they don't," but he says, "if they do, all right, if the worst comes to the worst, which I hope it doesn't," he says, "you boys will have to go on strike and when they get tired of being on strike, then when they come back the doors is always open to them," and he said "we still have preference to rehire whoever we care to." The testimony as to this speech on direct examination of James Grover, who was called by the Respondent, was as follows : Yes, the boys were called together and Mr. Baldwin, that is M. D. Baldwin, got up and told the fellows, just the way that the Management felt, towards the employees, that they wanted to work with the employees ; they wanted to do everything in their power to have a happy family, in other words. That was the gist of his talk. He wanted them to understand their point and he wanted to understand what their point was. He did say that there had been-that there was trouble brewing and he did not want to see it, that was true, but if it did happen and it carried on through a long period of time those boys that wanted to come back to work would be accepted with no coercion but those that did not, their places would be filled, and he ended his speech by saying God bless you, or to that effect. 41 M. D. Baldwin is the father of Manager Baldwin. 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Grover's testimony was : He expressed his desire to work with the men and have the men work with him because there was impending trouble brewing. If a strike was carried on over a long period of time, which might occur, he would feel free when it was over with to take every man back that wished to come back, but he would feel free to replace the places that were vacant in order to carry on production, and at the end of his speech he told the boys God bless you, or to that effect. Making allowance for bias which is understandable in a case of this type, I believe that both Johnson and Grover were trying to present the talk Baldwin gave as best they could recall it. Additional evidence casting light on this speech is President Baldwin's letter of October 6, from which two paragraphs have been quoted above. Everything considered, it is my opinion that the import of what Baldwin said to the employees in his address at the West Side plant on October 9 was substantially in line with what he had already said in his letter of October 6. Again, although it may well be that certain of Baldwin's remarks could have been more aptly stated in some technical respects, I do not believe that the evidence as a whole warrants a finding that Baldwin's remarks on this occasion contravened Section 8 (a) (1). 2. Events during the strike On October 11, the second day of the strike, the Respondent mailed a mimeo- graphed letter to each of the employees involved. This letter, which was sent to the respective homes of the employees, is criticized in the General Counsel's brief as violative of Section 8 (a) (1) on several grounds. Since the letter is relatively short, the body thereof is quoted in full : DO THE EMPLOYEES OF OLIVER MACHINERY COMPANY REALLY WANT THE PRESENT STRIKE TO CONTINUE? We are sending this personal letter to you so that you and your families will realize that only 44 people out of 197 in the bargaining unit represented by the U. E. W. voted for the present strike. Therefore, many of our em- ployees are out of work even though less than one out of four voted for strike action. The actual vote was 44 to 28, so 28 union members who voted at the union meeting clearly did not want the strike. Only 72 out of 197, or about 36% of our employees, actually voted. In other words, 2 out of 3 of our employees either did not vote or were not permitted to vote. Several employees who went to the union meeting for the purpose of voting on this important matter were not permitted to vote. Yet, by law the union is supposed to represent all employees in the unit. You have perhaps heard that in spite of the union pickets eleven men stayed at work Tuesday. Today, sixteen are at work in the machine shops in addition to supervisors and foremen. Quite a few more have phoned us that they will be on the job tomorrow. Your job is open, the plants are open. You have a right to work, a right which you are free to exercise at any time. Our previous letters explained in detail why our position and offer to the union was entirely fair. You will recall that we offered, in addition to the 5¢ increase already granted, an increase of 20 and 21/2¢ In the wage rates. In addition, we offered a "Cost of Living" clause, which would protect our employees against further cost of living increases. OLIVER MACHINERY CORPORATION 849 The union not only refused our offer, but refused to follow the suggestion made by representatives of the State of Michigan and the Company to submit the offer by secret ballot at the plant, under supervision of the State Labor Mediation Board. The union has decided instead, by a small minority, to throw you out of work by strike action . Since the union has caused this breakdown in negotiations, we wish to inform you that we are placing into effect the in- crease of 20 and 2%¢, effective as of Tuesday, October 10th. We are also willing to put into effect the B. L. S. Cost of Living formula. Only 44 out of 197 employees voted for this strike. Do you want to continue a strike under such conditions, or do you want to return to work with an immediate wage increase which was offered to the union , but turned down by a small minority ? Each day of work which you lose costs you a day's pay which you can never recover. The General Counsel contends that the strike vote discussed in the letter in- volved "internal affairs of the Union" which were of "no concern to the em- ployer" and that "any transgression into this protected area is clearly pro- scribed by Section 8 (a) (1) of the Act." The General Counsel does not appear to make any contention that the facts stated by the Respondent about the strike vote were distorted and the record wants no such finding. The General Counsel points to no evidence specifically showing that the Respondent secured this strike vote by interrogation of employees on the subject, and while it might be reasonable to infer from all of the circumstances that one or more of the employees present at the meeting may have relayed the information as to the vote to some official of the Respondent, the possibility that the Respondent learned of the vote through channels of public information cannot be precluded. In any event, since I do not believe that the record warrants finding that the Respondent procured the strike vote information through means repugnant to the Act, I am not persuaded that the use of this information in the October 11 letter in presenting arguments to its employees was violative of Section 8 (a) (1). The General Counsel contends that the October 11 letter makes an illegal promise of benefit in the form of "a unilateral wage increase as an inducement to the strikers to return to work." There is no dispute that the Respondent put into effect during the strike, and without the Union's concurrence therein, the wage change stated in its October 11 letter which had been proposed as part of its final offer to the Union. Nor is there any doubt, on the face of the October 11 letter, that this change constituted a benefit which would encourage strikers to return to work. However, on the basis of all of the findings and conclusions herein stated, I find, contrary to the General Counsel's contention, that the strike from its inception was an economic one. Under the circumstances, the Respondent was within its rights, both in deciding to put into effect the wage offer which the Union had refused and in making known, pursuant to its at- tempt to continue the operation of its plants, that change in wage scale to its striking employees. Hence, apart from the solicitation-of-strikers issue to which we next turn, I find neither the promise of the wage increase in the October 11 letter nor its actual institution at approximately that time, to have trans- gressed Section 8 (a) (1) of the Act. The October 11 letter clearly constitutes an individual solicitation of each striker to return to work. In addition, there is some testimony cited by the General Counsel which indicates that strikers on the picket line were solicited by supervisors to return to work, and that one supervisor may have engaged 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in such solicitation by telephone.92 But there is no evidence establishing that any of the oral solicitation which took place constituted more than urging strikers to return to work, without unlawful threats or promises . Everything considered, it is my opinion that neither the oral solicitation nor the letter of October 11 constituted solicitation of strikers in violation of Section 8 (a) (1), under all of the circumstances of this case." Nor do I believe that it can be said that the October 11 letter formed part of a course of conduct violative of Section 8 (a) (1), as the General Counsel contends, although unfair labor practices subsequent to the strike are hereinafter found. The last meeting between the Respondent and the Union occurred on Friday afternoon, October 13, after the employees at both plants had voted to return to work and after the East Side plant employees actually had returned. In oral argument, the General Counsel points out that at this meeting, although Mates said that matters were not settled, Baldwin, "instead of taking him into his office . . . met him at the curb." Similarly in oral argument, the Union stressed that "not even the common courtesy was extended to us to meet in the office." Under all of the determinations herein made, I am of the opinion that this curbside meeting did not involve a violation of the Act. However, some further consideration should be given this meeting for the light which it sheds on the events that followed. From the testimony of Baldwin and Towns, which is essentially supplementary in nature, it appears that substantially the following took place when the Union's representatives, which included Mates, Towns, and Waldo Stager, a field organizer, pulled up to the curb at the East Side plant for a meeting which had been arranged by telephone upon the Union's request." The Respondent's representatives, Ralph Baldwin and the two plant superintendents, Zwald and Krull, saw the car pull up to the curb. They went out to the car. Admittedly the Union's representatives were not invited into the office. Baldwin's state- ment of the Respondent's position was essentially that it had gone as far as it could in its offers ; that an impasse had been reached ; and that the Respondent could "see no further point in changing those offers." Mates "claimed the strike had not settled anything ; that the same wage questions existed at that time as before the strike " Baldwin pointed out that "either all questions had been completely settled by the voluntary action of the employees or that an absolute impasse had been reached." At approximately the close of the brief discussion, Mates "r mewed his demand for a settlement on the basis of the individual rates of nonincentive workers." Thereupon Baldwin "pinned him down," and Mates admitted that during the negotiations the Union had agreed that instead of individual wage information, the Respondent would furnish "wage rate ranges for various job classifications" for dayworkers 4 To understand the significance of the day rate discussion with which the meeting of October 13 apparently closed, it is necessary to revert to the bargain- ing conferences. The weight of the evidence indicates that during the early 4' See the testimony of Robert Glupker, Edward Bernatowlez, and James Grover. 48 Cf The Texas Company, 93 NLRB 1358., and Celanese Corporation of America, 95 NLRB 664 44 The Union's purpose in arranging the meeting, according to Towns, had been "to talk to Mr Baldwin in behalf of further negotiations and to get an understanding we had not closed our negotiations." 45 The quoted material in the above paragraph is from Baldwin's testimony. It is, evi- dent that the meeting ended without either side offering to consider any change in its position as of October l ; without a further meeting being requested by either party ; and without the Respondent making any specific challenge of the Union' s majority status. OLIVER MACHINERY CORPORATION 851 meetings, Baldwin and Mates differed sharply as to whether the Respondent's rates for dayworkers were in line with those paid in the Grand Rapids area, and as to whether the Respondent should comply with the Union 's demand for the rates actually being paid the individual employees on daywork . It also appears that by about the end of the second meeting, the Union had agreed to accept, in lieu of actual individual earnings , the Respondent's offer to make a survey and furnish the Union with job classifications and rate ranges for dayworkers. The Respondent had contended that furnishing this information would require protracted and exacting work. But the understanding that the Respondent would do so was still within the area of agreement at the time the impasse on other matters had been reached on October 9. It should be noted that the Respondent thereafter never finished its proposed survey, nor furnished the Union the promised job classifications and rate ranges for dayworkers. Further, it was apparent from Baldwin's testimony at the hearing that he con- sidered that the Respondent's operations were such as to make the establishment of such descriptions and ranges for dayworkers highly difficult and inappropri- ate in the two plants involved. In any event , in turning to the developments after the strike it should be borne in mind that what had transpired had laid bare substantial and unrecon- ciled differences between the Respondent and the Union on such significant matters as the wage rates of dayworkers, the granting of paid holidays , and the inclusion of a cost-of-living adjustment in working out wage rates. In addi- tion, it is evident that the negotiations at times had been turbulent ; that the Respondent deeply resented the Union 's departure from the former practice of permitting all of the employees to vote on whether to accept its last offer ; and that animosity had developed between Baldwin and Mates, whose opposite temperaments apparently rendered them better suited to irritating one another than to cooperating in reaching complex industrial adaptations .41 3. Developments after the strike On Monday, October 16, a group of about 10 West Side plant employees from the various departments, most of whom were members of the Union , were assem- bled at Superintendent Krull 's direction to meet with Manager Baldwin in Krull's office." Krull, who had been asked by Baldwin to assemble a repre- sentative group of employees, introduced those employees whom Baldwin did not know, and remained for the discussion . Among the employees present were Ronald Doxtater, then president of Local 911, William Colton , then chief steward of Local 911 , and James Grover, a union member who later became chairman of the Committee, West Side plant.48 In explaining the purpose of the meeting, Baldwin stated that many employees had told him, his father, and the two plant superintendents , that the situation had "got out of control" ; that the Union "no longer represented the majority" and "they wanted to do some- 46 Incidentally, the General Counsel's position , which I have duly considered, as to a telephone call which Dunn made to Mates on October 2 during the negotiations apparently overlooks the possibility that the call may have been partly motivated by Dunn's under- standing of the above-indicated clash. 19 While it appears that a similar meeting was also held that day at the East Side plant there is insufficient evidence to warrant making any findings concerning it. is My findings as to this meeting are made upon my analysis of the testimony of Baldwin and the above three employees . Their testimony as a whole varies more in emphasis than in substance . Colton was called as a witness by the General Counsel ; Doxtater and Grover by the Respondent . Most of the quotations in what follows are taken from Baldwin's testimony. 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing about it." He also stated that he had called the meeting "in compliance with their wishes" in order "to hear what they had to say." '° The sentiments thereafter expressed during the discussion between Baldwin and the employees were that "they were fed up with the UE , that they had had all of it that they wanted ; they had been misled and they knew it." Some of the men who were not members of the Union were "particularly bitter because when the strike vote had been taken" they were excluded from voting. During the discussion, Baldwin explained that it would be simpler to continue dealing with the Union in view of its contract and that whatever was done about any type of representation other than by the Union would have to be legal. He indicated that he wanted "good feeling between management and labor" and would "like to see the two plants closer together." b0 Baldwin also indicated that while the Respondent would be guided by the desires of the men themselves "if a tremendous majority approved," before any change or decision could be made they would have to know "the feelings of a large number of the people, more than the few who were in that meeting." Before the meeting closed, Baldwin suggested that the employees present "collect the information from the other men in the shops and find out if the sentiments they had expressed were those of a broad majority of the group." ° It is evident that following the meeting of October 16 other employees were questioned about their feelings with respect to the Union. Guy Baldwin testi- fied that after the meeting in Krull' s office, Jess Chase, one of the men who had been at the meeting, asked him and another employee about the matter. Colton testified that he was in favor of getting opinions ; that he went around to "find out the opinions of the men" ; that "most of the fellows thought the UE was a Communist union," and did not wish to continue to be represented by it; and that he advised Baldwin that "the boys wished they could get rid of the UE." Baldwin testified that his "talk," given at both plants on October 17 and discussed below, "was given after the various men had come individually" to him and the two superintendents "and reported that they had found the sentiments very strong against the way" the Union had conducted matters. From the foregoing it is evident that the October 16 meeting was more than a meeting between Baldwin and some employees who specifically had asked for a meeting. While those present included a few such employees, the meet- ing also included enough others to form a representative group from the de- partments of the West Side plant assembled at Baldwin's request by Superintend- ent Krull. Moreover, the discussion was not confined merely to conveying to 49 While some of the employees selected by Krull to attend this meeting had not made any request for such a meeting , it is evident that at least three of those present had. Baldwin testified credibly and without contradiction that Colton and Schoenfeldt "had asked for a meeting." Grover also testified credibly and without contradiction that dur- ing the strike he had talked with Colton and Schoenfeldt who were opposed to repre- sentation by the Union and wanted to do something about it ; that on the preceding Thursday during the strike, he and Colton had gone to Superintendent Krull 's home where they had told Krull there was "a lot of unrest in regard to the representation of the UE among the men and we wanted to see if we couldn't change that to a different representa- tion with Management" ; and that Krull told them that he did not know what could he done in view of the Union's contract , but that "he would see what could be done in regard to the wishes of the employees." 50 It is evident from President Doxtater's testimony , from which the quotations in the above sentence are taken, that while "many members of it were opposed to" the Union in both plants this was true "to a greater degree" in the East Side plant. m The quotation embodying the suggestion is from Baldwin's testimony. While Baldwin testified that he did not remember who made the suggestion, I am satisfied from other testimony that it was Baldwin's suggestion. Doxtater testified that Baldwin "suggested that we find out how they felt." Colton testified that Baldwin wanted the "fellows in the group to go and find out what the fellows" In the plant wanted. OLIVER MACHINERY CORPORATION 853 the Respondent a request by some employees that the Union no longer be con- sidered as representing them. It probed the feelings of the employees concerning union matters and representation without the Union. It ended in Baldwin's sug- gestion that those employees, in turn, find out how other employees felt. Such additional feelings were obtained and reported. In addition, all of this activity led into the subsequent meetings of October 17 and 20, which resulted in the formation of the Committee. Hence, in spite of the substantial discontent with the Union which then existed among the employees, concerning which the Re- spondent had already received some information, it is my opinion that the Re- spondent's inquiry into its employees' discontent with the Union and their de- sires concerning self-organization at the October 16 meeting, and thereafter through employees attending that meeting of still other employees, constituted an invasion of the rights of employees to freedom from interference in self- organization, proscribed by Section 8 (a) (1) of the Act, especially when viewed in context with respect to the formation of the Committee. Before proceeding to a discussion of the issues pertaining to the Committee, which had its inception in parallel meetings held at the respective plants on October 17 and 20, some additional matters pertaining to chronology will be developed, and several additional allegations as to violations of Section 8 (a) (1) will be considered. The polls taken in the plants on October 17 are discussed in the next section of this report because they are tied in so closely with the issues pertaining to the Committee. For reasons which hereinafter appear, these polls, like the October 16 meeting, violated Section 8 (a) (1). On October 23, 1950, the Respondent, without any prior consultation with the Union, gave substantial individual wage increases to a number of dayworkers. The rates of dayworkers had been in sharp dispute and the Respondent had agreed to furnish the Union their job descriptions and rate ranges. Later, under date of November 2, 1950, the Respondent posted on the bulletin boards in both plants a six-page document signed by Manager Baldwin, which purports to be an agreement, but which had not actually been negotiated with the Union, the Committee, or with the employees as individuals." This document, which has remained in effect and has continued to be posted on the bulletin boards in the two plants, opens with the following paragraph : The following agreement between the Oliver Machinery Company and the employees in the Machine Shops of the Oliver Machinery Company be- came effective October 10, 1950, and will be in effect until November 1, 1953 when it may be extended by mutual agreement. The two paragraphs in the agreement which follow fix increases in the base rate, as of October 10, of 2i cents for day and 2 cents for incentive employees. Approximately five pages are then devoted to a detailed statement of the factors controlling the operation of the cost-of-living wage adjustment practices therein inaugurated. The closing paragraph of this unilaterally promulgated contract, under which cost-of-living adjustments have since been made, reads as follows : It is a condition of the acceptance of this cost-of-living allowance program by the employees of the Oliver Machinery Company that there shall be no general wage reopening on the part of the employees before November 1, 1953. "Baldwin testified that the employees had accepted those conditions by returning "to work voluntarily under those conditions " Baldwin also testified that he had told the Committee that since only the Union had been certified, any group such as the Committee "would have to remain on an informal basis and instead of a contract with them, he would post on the bulletin board a wage agreement." 250983-vol. 102-53-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before considering whether the foregoing unilateral wage actions were viola- tive of Section 8 (a) (1), an exchange of letters between the Respondent and the Union at about that time should be related. On November 1, 1950, the Union, over the signature of Waldo Stager, the field organizer who had been at the October 13 curbside meeting, wrote the Respondent as follows : " On behalf of the above named union and its Local 911, which represent certain employees of your company as the sole and exclusive collective bargaining agency, I hereby request that a meeting be arranged at your earliest convenience, for the purpose of further negotiating a settlement of the wage question, now unsettled between the Company and the Union. May we suggest that you arrange a date at your earliest convenience, and so notify this office and the UE Local 911 Committee in your plants. The Respondent's reply, dated November 3, reads as follows : We have your letter of November 1 in which you request a meeting and in which you claim that there are wage questions now unsettled between the company and the union. We wish to point out that it very clearly appears either that the wage questions have been completely settled or that we have reached an impasse in our lengthy negotiations. Under these circumstances we do not believe that any purpose possibly could be served by arranging the meeting sug- gested in your letter. The Respondent's letter of November 3 did not question the Union's continued status as the bargaining representative." However, it is evident from the inter- vening activities, discussed in the next section of this report, that the Respondent had decided on the basis of polls conducted in the two plants on October 17 that the employees no longer wanted the Union to represent them, and that the Respondent had taken steps leading to the establishment of the Committee. If, contrary to the findings above made, the evidence had established that the Union was then actually the majority representative, the Respondent's wage actions of October 23 and November 2 would have to be scrutinized under the theory that a bargaining impasse gave the Respondent the right to institute its last offer to the Union ' But under all of the holdings herein, it is my opinion that no violation of Section 8 (a) (1) was involved in the day rate changes of October 23 or the reiteration on November 2 of the changes already put into effect on October 10, except that the so-called contract of November 2 unilaterally imposed a condition on the employees, which I am satisfied is repug- nant to Section 8 (a) (1). The opening and closing paragraphs of the November 2 contract are quoted above in full. The minimum dates of the contract are stated in its first paragraph as from October 10, 1950 to November 1, 1953. The final paragraph imposes, as a "condition" of accepting the cost-of-living plan, that the employees renounce the right to any "general wage reopening" before November 1, 1953. This action cannot be defended on the ground that the Respondent's last offer to the Union included the cost-of-living plan as part of a proposal in which the contract with °S This is the last request for a meeting which the Respondent received from the Union. Nor did the Union or Local 911 thereafter attempt to administer the unexpired contract 54 Shortly thereafter, in a letter dated November 9, 1950, to the Regional Director, the Respondent did take the position that by returning to work the employees "clearly repudiated any agency" of the Union. "The October 23 day rate increases, however, were never offered to the Union during the bargaining conferences or thereafter Such day rate issues were held in abeyance, pending the Respondent's study of ranges and Job descriptions. OLIVER MACHINERY CORPORATION 855 the Union was to be extended to November 1, 1953. Agreement by an accredited bargaining representative that wages shall remain in status quo for a fixed period is entirely different from an employer unilaterally imposing a fixed period of time during which employees may not seek to change wages. No grant of benefits can justify an employer in attempting unilaterally to alienate from his employees any of the rights guaranteed in the Act. Yet this is exactly what the Respondent attempted to do by the condition contained in its unilateral con- tract of November 2, when it deprived the employees of the right to bargain further about wages until November 1, 1953, an approximately 3-year period. Accordingly, I find that by this condition unilaterally placed upon the acceptance of its unilaterally given cost-of-living plan, the Respondent transgressed Section 8 (a) (1) of the Act. Of the subjects included in the General Counsel's brief under interference, restraint, and coercion, there remain 3 matters, 2 of which have already been touched upon, which warrant some consideration. The first of these apparently occurred about the end of January 1951. William Colton, the chief steward of Local 911, who was simultaneously serving as an elected member of the Commit- tee, assisted in giving a union party the latter part of January, which was attended by about 40 employees and their wives. Afterwards, during a discus- sion between Baldwin and Colton following a meeting of the Committee, Baldwin, who had asked Colton to remain, made a remark to the effect that he was "not going to have one man or the UE bust a big concern of this kind." Colton, who thought Baldwin was referring to the union party, asked if he was "refer- ring to the party." Baldwin's only further comment was that Colton knew what he meant. As to this incident, the General Counsel contends that Baldwin, who had "suc- cessfully weakened" Local 911, was "warning that he would deal accordingly with any further attempt to restore strength" to it. Colton, who had advised Baldwin after the October 16 meeting that "the boys wished they could get rid of the UE," admittedly was not frightened by Baldwin's statement. While the General Counsel's inference as to Baldwin's meaning has some plausibility, it is debatable whether or not Baldwin was making some sort of veiled threat. Every- thing considered, I do not believe that the evidence warrants any finding that this conversation transgressed Section 8 (a) (1) of the Act. The items remaining are Baldwin's reading at the meeting of the Committee on May 25, 1951, a summary concerning Mates, from material furnished from the files of the Un-American Activities Committee, and the petition sent by employees to the Regional Director, dated June 7, 1951, asking that the charges in this case be withdrawn. These two matters are tied together in the General Counsel's brief in a casual relationship which I am not satisfied that the evidence warrants. There is no doubt that Baldwin did read material concerning Mates, which is referred to above in section III, A, at the May 25 meeting of the Committee, which was a joint special meeting of the committeemen from both plants. The testimony indicates that Baldwin decided to read this material at this meeting after the committeemen themselves had become engaged in a discussion as to whether Mates was a Communist. But I am not convinced, on all of the evidence, that this meeting was the same meeting at which it was decided to circulate the petition. The petition to withdraw the charges is in evidence. It is actually composed of 2 documents, 1 for each plant. It bears what appear to be the original signa- ce As the Respondent points out in its brief, the committeemen "were members of Local 911-almost without exception." 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tures of 40 employees of the East Side plant, almost all of whom had had their dues for October 1950 to the Union deducted. It also bears the apparently original signatures of 17 employees of the West Side plant, all of whom had had their October 1950 union dues deducted. From all of the evidence, including his own testimony, I am satisfied that Towns, who was by that time president of Local 911, had a leading role in the activities which resulted in formulating, circulating, and forwarding this petition. And while there is some evidence tending to tinge this petition with employer assistance, a fair appraisal of the numerous pieces of evidence on this matter, including Towns' testimony, when considered in total context, indicates that this withdrawal petition had substan- tial and genuine support among employees who were members of the Union at the time of the strike. In any event, neither of the matters here under consideration is expressly covered by an allegation of the complaint. Nor was any motion made by the General Counsel to include either of these matters within the scope of the complaint. Accordingly, I make no unfair labor practice finding as to either of these matters, as neither was alleged in the complaint as a violation of the Act.°7 Nor do I deem it necessary, under all of the circumstances of this case, to pass upon such matters as the applicability of the schism doctrine to the present status of Local 911; the extent to which Local 911 may have become dormant or unable to administer the contract; or the effectiveness of the petition as evidence establishing the Union's loss of majority status." E. The Employees' Committee It will be recalled that on October 16 Manager Baldwin had a meeting with a group of employees selected as representative of the West Side plant. At that meeting, employee discontent with the Union and interest in representation without the Union were discussed. Thereafter, pursuant to Baldwin's sug- gestion at the close of that meeting, further information as to the feelings of employees on such matters was gathered and reported to the Respondent. In addition to this immediate setting for the activities which resulted in the forma- tion of the Committee, it should be remembered that there was extensive employee discontent with the Union, arising out of such factors as the Communist issue and the strike, and that the Respondent and the Union were at loggerheads in several substantial ways, which are summarized at the close of section III, D, 2. It is thus in a complex setting that the facts and contentions pertaining to the Committee must be considered. At 1 p. in. on October 17 at the East Side plant, and at 3 p. in. that same day at the West Side plant, Manager Baldwin gave the same prepared talk to the employees who had been instructed to assemble. The respective superintendents and foremen were also present. Each talk was followed by a question period and by balloting. These proceedings at each plant required approximately 1 hour, and the employees were all paid for time spent in attendance at these meetings. There is no dispute as to what Baldwin's prepared speech contained. The typed, four-page document which he read is in evidence. It is set out in full as Ap- pendix A, and should be read at this point. The evidence as to what happened at the respective meetings ranges from clear to contradictory. The findings which follow are made on my analysis of all of the evidence, particularly the testimony of the seven principal witnesses on this subject, some of whose versions were vague. It is clear, both from Appendix 57 Eaton Brothers Corp., 98 NLRB 464. 11 See also footnote 8 and the text at that point. OLIVER MACHINERY CORPORATION 857 A and the testimony, that in closing his formal statement at each plant, after having discussed the alternative of the employees dealing with the Respondent without the Union "in solving problems, grievances, and acting on suggestions as they arise," that Baldwin explained how the employees could conduct a poll and read to them the three choices on the mimeographed ballots which the Re- spondent had already prepared and which were available. But it is uncertain whether Baldwin and the respective superintendents and foremen left the meet- ings promptly at the close of Baldwin's formal speech, or were still within hearing distance during at least part of the periods when the respective meetings were selecting their chairmen and were deciding whether or not to conduct polls. Baldwin's testimony indicates that he heard a considerable part of such proceed- ings while leaving each of the meetings. But be that as it may, it is clear that the East Side meeting selected as its chairman, Harold Cooper, former chief steward of Local 911, and that the West Side meeting selected Ronald Doxtater. president of Local 91169 The evidence clearly establishes that the employees at each meeting decided that they wanted to take the suggested poll ; that a question period at each meet- ing preceded the actual taking of the respective polls; and that Baldwin, who answered questions prior to each poll, gave the results of the poll at the East Side plant to the employees at the West Side plant before those employees took their pol180 In addition, there appears to be no doubt on all of the evidence that, after the question period at each plant, Baldwin and all other management represent- atives withdrew ; that the employees were left alone to conduct the respective polls; that the employees did conduct these polls themselves; that tellers com- posed of employees counted the ballots fairly ; that the results were accurately reported at the close of each meeting to the assembled employees and to the man- agement representatives who returned at that point ; and that the ballots, which were produced at the hearing, had in the meantime been retained in the Respondent's files. Testimony that Manager Baldwin did not depart from the text during his formal speech is in conflict with testimony of Towns and Guy Baldwin. Towns testified that at one point, when Baldwin was reading his speech at the West Side plant, he said "off the record," continued with the remark, "I don't know whether you men know the position of the union or not" ; and then said that "they had lost part of their field men and it was his understanding they did have a case in Detroit that stood to run them around $30,000." Towns' testimony is partially corroborated by Guy Baldwin's testimony to the effect that Manager Baldwin digressed during his West Side speech to remark that the Union was "going bankrupt" or was "flat on the rocks." While Manager Baldwin admitted making statements substantially in accord with Towns' testimony, he insisted that his remarks were made during the question period, and in response to a question "from the floor about the financial condition of the UE." That an employee would ask Baldwin about the Union's financial condition seems rather unlikely. And an examination of the text of Baldwin's speech reveals at least 1 or 2 points where such a digression might easily have occurred. But whether Baldwin's remarks about the financial condition of the Union oc- 59 Doxtater testified that he raised no objection to the procedure because, among other things, "it would have been more or less futile" as the Union was "quite disorganized." many members were complaining, and Local 911, had "previously split." ° All of the evidence, including the results of these polls at the two plants, indicates that the discontent with the Union was more pronounced among the East Side plant employees than among those at the West Side plant. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burred during his speech or during the question period, it is evident that those remarks were made at the West Side plant before the poll there was taken. As to the question period at each meeting immediately preceding each poll, the evidence indicates that the respective chairmen collected written questions which Baldwin answered upon returning to the respective meetings. Some of the testimony as to these question periods is vague. It does appear, however, that questions were asked and answered concerning the "employee committees to be selected by you from each department" with which Baldwin had stated in his speech "a management committee is perfectly willing to meet." In view of all the evidence, I am of the opinion that during the West Side plant question pe- riod, Baldwin was asked "what kind of an organization should be formed," and that Baldwin replied that the representatives could present "grievances and carry them through in the same way" as stewards would for the Union. I also find on all of the testimony that the employees were informed, in effect, that they would have to furnish their own legal assistance in the unlikely event that a lawyer would be needed. It also appears from my analysis of the testimony that in answer to questions at one or the other or both plants, Baldwin explained that the Board would not recognize any organization which the employees formed, as it would recognize only a union that was nationally known ; that the Respondent would have to abide by its contract with the Union as long as it was in effect ; that it was up to the men themselves what they wished to do with any union funds ; and that the checkoff to the Union would continue through October. The results of the polls taken at the two plants on October 17, and announced that day, were as follows : Wording of the choices on the ballots Vote at East Side plant Vote at Nest Side plant Totals at both plants I wish the UE to continue to be my representative------ 13 24 37 I wish to deal directly with the Company, individually or as a group, without having to work through any Union----------------------------------------------- 53 33 86 1 have not made up my mind --------------------------- 20 11 31 Totals-------------------------------------------- 86 68 154 On the afternoon of October 20, 1950, after consultation with counsel and with the Respondent's board of directors, Manager Baldwin again addressed the assembled employees, first in the East Side plant and then in the West Side plant. The employees in both plants were paid for their time spent in attendance at these two meetings. Baldwin's prepared remarks, from which he did not digress during delivery at either plant, were read from a four-page, typed docu- ment, a copy of which was thereafter kept posted for at least a week on the bulletin board next to the clock in each plant. Baldwin's remarks appear in full in Appendix B, which should be read at this point. It will be noticed that in closing each address on October 20, Baldwin asked if there were any questions. While it is not clear whether any questions were presented at the East Side plant, I am satisfied from my study of the essentially corroborative testimony of Elmer Johnson, Guy Baldwin, Colton, and Towns, that at the close of the West Side speech Baldwin was questioned about securing a place to meet and about the collection of dues, particularly to defray any legal OLIVER MACHINERY CORPORATION 859 expenses.' In essence, Baldwin answered that some place in the plant could be found to hold meetings without the expense of renting a hall ; that dues of "pos- sibly a quarter a month" could be collected if the men cared to do so ; and that the money thus collected could be used to defray any legal expense, in the unlikely event such expense might arise, or to hold dances if the men wished and the funds were not otherwise needed. Following the October 20 talks, during which Baldwin had stated that the "exact size of the committee" would be left to the employees, but had recom- mended that a committee of about 8 "be set up for each plant," 18 representatives were selected, 9 from the West Side plant and 9 from the East Side plant.62 The record does not reveal how most of the representatives were elected. The Respondent's brief admits, however, "that some of the employees' representatives were elected during working hours and in a few cases in the presence of foremen." There is also evidence showing the type and extent of the participation of 2 foremen in their respective departmental elections. For instance, Towns testified credibly and without contradition that on the afternoon of the day following Baldwin's talk, Foreman Hansen called all of the employees in the assembly department to his desk and "appointed Frank Kuzniak as chairman until the election could be had" ; that Foreman Hansen left before the voting actually took place ; that the employees then elected two representatives from the assembly department by a show of hands ; and that the meeting was held during working hours without loss of pay. In addition, undisputed testimony of Chapin and Johnson convinces me that the 2 representatives of the sheet-metal department were elected some 2 weeks or more after Baldwin's October 20 speech under these circumstances. Foreman Ernest Dusing "called the group together" In the sheet-metal department during working hours. Dusing told the employees that "the company wished to have" each department represented ; indicated that if they "didn't appoint a couple of fellows," their department would not be represented ; and suggested that if they wanted representation, they "had better get started on the details right away." The 2 men nominated in Foreman Dusing's presence, but without Dusing sug- gesting any names, were Chapin and Bennett. Dusing, who conducted the elec- tion without anyone else serving as chairman, asked "how many agreed to it and they all agreed," thus electing the 2 nominees by voice vote." The first meeting of the Committee, a joint one including the representatives from both plants, was held on November 6, 1950. Two other joint meetings, on April 30 and May 25, 1951, have also been held. Otherwise the respective plant committees have held separate meetings about once a month, which are usually regularly scheduled meetings. Special meetings may be called upon the request of management or of the committee chairmen. Superintendent Zwald has at- tended all East Side Committee meetings and all joint meetings of the Committee. Zwald has also served as secretary of, and has kept, written up, and signed or initialed all of the minutes of the joint meetings and also of the East Side Committee. Some of the minutes of the East Side Committee have been posted on that plant bulletin board. Manager Baldwin has attended all joint committee a Baldwin testified that no questions were asked at the close of the West Side meeting, although he was "not as clear" about the East Side plant meeting. m The Respondent's brief omits Arnold Lowe from the latter group. ® Such procedure as the above is scarcely comparable to or justified by the activities of employee Bernatowicz on behalf of the Union , cited by the Respondent in its brief. Bernatowicz testified that he had solicited members for the Union in the plant during working hours, without objection on the part of management. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings, and all East Side Committee meetings except one. Baldwin has also attended all West Side Committee meetings and Superintendent Krull has been present at some of them. Thus no joint or separate meetings have been held by the Committee without the presence of Manager Baldwin or the plant super- intendent involved; usually both have been present. All committee meetings, joint and separate, are held in the plant, the space being furnished by the Respondent without charge. Committee meetings held in the West Side plant are held in Superintendent Krull's office. Those held in the East Side plant are held in either Superintendent Zwald's "separate inclo- sure," the purchasing office, or the balancing room. While some confusion at first existed as to payment for attendance on the part of employee representatives who were not scheduled to be working at the time of meetings, " the policy was established "after a relatively short period" of paying all employee representa- tives for time spent at meetings, whether or not they are held during the repre- sentative's own working time. Meetings are usually held about 4: 30 p. in. The practice established is shown by the following from the minutes of the meeting of January 8, 1951: Fred Zwald announced that all employees who were scheduled to work until 5:30 would be paid for the time spent in employee representatives meetings at their average earned rate, and that other committee men who were not scheduled to work would be paid at the base rate for this time.86 The committee has no constitution or bylaws. Such charter for its existence as it has is contained largely in Baldwin's addresses of October 17 and 20, set out in full as appendices. In addition, the committee has no financial resources of its own, depending entirely on facilities furnished by the Respondent. That the employees themselves raised the question of dues before the Committee was actually set up is clear from findings appearing above. In addition, the minutes of the first joint meeting show that the question of dues came up again in con- nection with a question raised by a committeeman as to "what sort of an organization the employees really wanted." With respect to this matter, the minutes of the November 6 meeting, which was called to order by Manager Baldwin, contain the following : °8 Bill Mulvey raised the question on what sort of an organization the em- ployees really wanted. It was pointed out that until the contract with the UB has run out any meetings are on an informal basis rather than on a formal basis. It was suggested that some sort of an organization, perhaps with dues, might be needed in the future. The rift between the Oliver and Baldwin-Tuthill plants was pointed up as a field of endeavor that this group can profitably work in. 64 This situation apparently involved only committeemen of the West Side plant, as all meetings at the East Side plant are held during working hours. 65 While employees who represented the Union during bargaining negotiations were not paid by the Respondent for time lost from work, payment for time spent in settling griev- ances was governed by the following provision in the 1949 contract with the IInion ; Stewards and committeemen shall be paid at base rates for time spent in settling grievances during working hours up to one and one-half hours per week or six (6), hours per month, provided they notify their foremen before leaving their work, and the foremen shall give them permission within a reasonable time, and they shall punch a fob card for the time spent. 00 These minutes show that it was not until after this matter had been considered, and also after "Ralph Baldwin suggested that a grievance procedure could well be set up" that toward the end of the meeting Grover was elected "presiding officer " of the West Side Committee, and Simons of the East Side Committee. OLIVER MACHINERY CORPORATION 861 Testimony of Baldwin, in part already quoted," which pertains to the above incident during the November 6 meeting, is set out fully below because it shows how the limited frame of reference, within which the Respondent conceived the Committee's functions to exist, and which had been spelled out in some detail in Baldwin's speeches attached hereto as appendices, continued to hem in and restrict the activities of the Committee, even to the extent of discouraging formal organization and the collection of dues, and foreclosing any attempt to bargain for contractual provisions. Baldwin testified : The question was raised at one meeting by Mr. William Mulvey to the effect that they as a group should organize and pay dues, and have a constitution, and at that time I specified that the UE was still the repre- sentative in the sense it was the only Union that had ever been certified, and what he was proposing was in effect the establishment of another Union and that we couldn't deal with any Union except the UE, and there- fore any group such as this would have to remain on an informal basis and instead of a contract with them, we would post on the bulletin board a wage agreement. Although the Committee's functions have been circumscribed by the Re- spondent's concepts, to which the Committee's activities have been conformed, I am satisfied that, as the General Counsel contends, the Committee is a labor organization within the meaning of the Act. This is borne out both by the testimony and by the minutes of committee meetings. That the handling of grievances was within the scope of the alternative to the Union which the Respondent suggested is clear from the following question which Baldwin rhetorically asked the employees during his formal talks on October 17: Do you want the UE, or do you trust yourselves sufficiently to deal with the Company and aid in solving problems, grievances, and acting on sug- gestions as they arise? Later, considerable discussion of how to handle grievances took place at the first joint meeting of the Committee on November 6 after Baldwin suggested that it would be well to set up a grievance procedure. That at least some of the employee representatives understood that they were handling grievances, among other things, is clear from some of their testimony. For instance, Committeeman Bernatowicz, a witness called by the Respondent, when asked to tell briefly what the Committee does at its meetings, testified, "discuss working conditions, take up grievances and that is all it does." Further, Chairman Simons, a witness also called by the Respondent, insisted on direct examination that the Committee had presented grievances ; defined grievances as "Wage adjustments, working conditions, in connection with anything the fellows have to complain about" ; persisted in his position after being given the minutes of five meetings to read; and characterized the minutes he had been given to read in these words : I would say they are a record of a settlement of every day happenings in the shop where the fellow has a complaint of any kind to make, a question raised about what the company is going to do or this or that. I would say they are a settlement of those questions. The minutes of a dozen meetings which are in evidence establish beyond ques- tion that a substantial part of the Committee 's time has been devoted to mat- 'r See footnote 52. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ters falling within the ambit of labor organizations. Among examples of such matters shown by these minutes are the following. Beginning with the first meeting, and continuing through many of the meetings thereafter, various aspects of the BLS index with reference to cost-of-living wage adjustment procedures were repeatedly the subject of discussion. The Decem- ber 21 meeting of the East Side Committee engaged in "a discussion of payment for time spent in receiving medical attention." At the January 8, 1951, East Side Committee meeting, an employee representative "brought up the matter of an employee who had been asked to pay for medical care because of an injury re- ceived in the plant." During the March 26 East Side Committee meeting, one of the committeemen "asked if it would be possible to have check stubs on pay checks," and other committeemen "asked if anything was being done about keep- ing the doors closed while the chip bin is shoveled out during cold weather as the men complained about the cold draft." At the joint committee meeting of April 30, a representative "asked if arrangements could be made to ease the parking problem at the East Side plant," and another "asked when vacation schedules would be posted." At the February 5 West Side Committee meeting, two sug- gestions "for revision of premium standard in the paint and shipping depart- ments" were handed in and discussed, and a committeeman "reported his premium times had been adjusted, and he would drop the matter for the time being." During the March 6 West Side Committee meeting, the shipping room and paint department wage scale was discussed and a procedure stated by Baldwin to settle the "question of correct rate on the job." At the April 30 West Side Committee meeting, a committeeman "asked about one-half hour cleanup time on Friday night." A study of the minutes shows that in many instances the committeemen, in presenting employee grievances pertaining to wages, hours, and conditions of employment, "asked" about various matters and were told what the Respondent's policies were, what the Respondent would do, or to whom the matter would be referred. However, it is not the effectiveness of an employee representation plan in securing concessions in handling employee grievances, nor its independence in the prosecution of matters which are raised, but rather the nature of the subject matter considered which determines whether or not a plan of employee repre- sentation is a labor organization within the meaning of the Act. The subject matter covered in the Committee's meetings clearly establishes the labor organiza- tion status of the Committee, in spite of the fact that the minutes indicate that many such subjects were presented by the representatives in a "hat in hand" manner. That the Committee has been interested in labor organization activities and an- ticipates a somewhat more active future in that field upon expiration of the Union's contract, is obvious from the following two paragraphs from the minutes of the joint meeting of the Committee on April 30, 1951: A question was raised as to the present sentiment toward the employees' representative group. A discussion of the activities of other Unions and the U. E. group was held. Ralph Baldwin requested that a committee be established or the Group as a committee of the whole, to work on setting up of working rules and condi- tions to carry on after Nov. 1, 1951.°/ ' Baldwin had previously stated at the January 31 East Side Committee meeting that when the UE contract under which they were "living" expired, "ways should be found to continue working under an agreement on working rules similar to the labor contract." OLIVER MACHINERY CORPORATION 863 F. Concluding Findings 1. Conclusions as to the Committee The facts above found concerning the formation and functioning of the Com- mittee, when considered in their total context, persuade me that the Committee is actually the creature of the Respondent, whose interests in ridding itself of the Union paralleled those of dissatisfied employees, and that the Committee is not the result of uninfluenced self-organization on the part of employees, among whom there undoubtedly was strong sentiment against continued representa- tion by the Union. Aware that there was discontent with the Union, the Re- spondent did not sit by and permit that discontent to run its own course at the close of the strike. Rather, upon learning of employee interest in "a different representation," 89 Manager Baldwin explored the extent to which the employees at the West Side plant, which had remained on strike longer than the East Side plant, were dissatisfied with the Union and "wanted to do something about it." This was done through the meeting of a representative group of West Side employees assembled by Krull. Baldwin also learned through reports made at his suggestion by members of that group, how other employees felt. Having thus preliminarily surveyed employee sentiment with respect to self- organization, through activities which have been found above to have been repugnant to Section 8 (a) (1) of the Act, the Respondent, with ballots already prepared which set out choices determined by the Respondent, assembled its employees for meetings on October 17. A careful study of Appendix A, Bald- win's prepared address at the meetings that day, and of the answers which Baldwin gave during question periods which preceded the polls, establishes that the Respondent was offering to deal through an alternative type of representa- tion, albeit still nebulous as to "the mechanics," which Baldwin said could "be worked out very shortly" if the employees showed "by a substantial margin" that they wished "to deal directly with the Company and no longer have the UE in the picture." In spite of the statement in Baldwin's speech that the Respond- ent did not "want to influence" the employees, a sense of urgency and of the the Respondent's preference to be free of the Union is obvious from Baldwin's October 17 speech as a whole.'° The October 17 polls, while conducted by the employees out of the presence of management representatives, were clearly suggested by the Respondent and were conducted on ballots worded and furnished by the Respondent. The re- sults of the polls were reported to the Respondent. Thus these polls were actually the culmination of the Respondent' s probing into its employees' interests and desires with respect to self-organization, and as proscribed interrogation were violative of Section 8 (a) (1) of the Act, in addition to their bearing on the 8 (a) (2) violation , of which the polls were an integral part n The choice on the ballot which received the majority of the votes at the East Side plant, and of the two plants when taken together, was at best an am- °° See footnote 49, concerning the visit to Superintendent Krull at his home about the close of the strike by employees Grover and Colton. °O On the latter point, see particularly the paragraph about the middle of Appendix A, following the statement , "The fundamental problem is this:" in which Baldwin said that the Union had "no direct interest" In the Respondent or its employees. a In my opinion , the cases cited by the Respondent with reference to these polls are not apposite, since they differ materially as to their facts from the case at bar . That the ballots were secret does not remove these polls from the area of proscribed interrogation. Long-Lewis Hardw5re Compbny, 90 NLRB 1403, 1417. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD biguous one, namely, "I wish to deal directly with the Company, individually or as a group, without having to work through any Union."" Involving, as it did, the dual possibility of dealing either individually or as a group, the vote was certainly not an affirmative one favoring any organization already formed. At most, it was an acceptance by the employees of the alternative held out by the Respondent of working out "the mechanics" for replacing the Union. At any rate, and contrary to its present uncertainty as to the appropriate unit, the Respondent treated the two plants as one unit, and on the basis of what seems scarcely "a very substantial majority," decided to proceed with arrangements designed to replace the Union as the representative of its employees in both plants. The mechanics and the legal frame of reference within which they could function were thereafter worked out by the Respondent and placed before the employees on October 20 by Manager Baldwin. There is no evidence that employees helped to formulate the ideas with which Baldwin confronted the employees that day. A careful study of Appendix B shows that the principal role assigned by the Respondent to the employees in each plant was summed up in this sentence toward the end of Baldwin's prepared statement: As we see it, the main thing now is for you to arrange to choose your representatives in this plant from each department. What actually happened thereafter is clear enough from the facts spelled out above. Obviously the Committee has no independent means of support whatso- ever, and its lack of independence in dealing with the Respondent is patent from a study of the minutes. All meetings of the Committee have been attended by at least one top management official and are held on the Respondent's prop- erty. Employee representatives are paid for time spent in attendance at meet- ings. The elections of departmental representatives were not free from par- ticipation by foremen. Superintendent Zwald serves as secretary of the meet- ings of the East Side Committee and of all joint meetings of the Committee. The functioning of the Committee, which has had no legal advice of its own, has been tailored to fit Manager Baldwin's explanations as to what could and could not legally be done." A further matter pertaining to the Committee and the contract remains to be considered. In closing its brief, the Respondent makes essentially these contentions with respect to the Union's 1949 contract, which still had approxi- mately a year to run at the time the Committee was formed. Either the con- tract continued in effect with the employees as principals freely electing to change their method of dealing with the Respondent, or the contract became inoperative because the employees rescinded the agency of the Union and in- dependently determined upon another method of dealing with the Respondent. Whatever merit either or both of Respondents' positions might have had as defense if the Respondent's conduct and the total context had been different neither now serves as a defense under the facts of this case. On the one hand, the Respondent did not treat the Committee as an agent of employee principles succeeding to rights under the Union's unexpired contract. On the other hand, the Respondent did not deal with the Committee as an agent free to contract on its own initiative. Quite the contrary, the position which the Respondent took with its employees and the Committee was essentially that it had to honor its contract with the Union and could not recognize any other union. But in any " This choice received only 33 out of the 6S votes cast at the West Side plant "None of the findings herein is bottomed on the failure of the Respondent or of the employees to file any type of petition with the Board , in view of all of the circumstances. OLIVER MACHINERY CORPORATION 865 event, since the Committee was actually an illegal creature of the Respondent, it could neither succeed to the Union's contract nor could it set up a valid al- ternative bargaining relationship, assuming that the contract became inoperative for any reason, including its illegal union-security clause. On all of the evidence, I am convinced and find, in substantial accord with the allegations in paragraph 9 of the complaint and its subparagraphs (a), (c), (d), (e), (f), (g), and (h), but excluding subparagraph (b) thereof, that the Respondent has from about October 16, 1950, and thereafter, initiated, formed, encouraged, fostered, assisted, interfered with the administration of, contributed financial and other support to, and dominated the Committee. I further find, under all of the circumstances of this case, that the Committee is so completely the creature of the Respondent that its disestablishment is re- quired to dissipate the Respondent's domination thereof." By its aforesaid conduct with respect to the Committee, the Respondent had engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (2) of the Act. 2. Conclusions as to the other alleged unfair labor practices It has already been indicated in section III, C, that the S (a) (5) allegations as to refusal to bargain have not been sustained. As to the 8 (a) (1) allegations spelled out in paragraph 7 of the complaint with its 10 subparagraphs (a) through (j), the substantial issues pertaining thereto have already been considered. For the most part, and for reasons which appear in section III, D, contentions ad- vanced as to 8 (a) (1) allegations have been found to be without merit. How- ever, it has been found that the Respondent has violated Section 8 (a) (1) of the Act in three respects, other than by its activities pertaining essentially to the Committee. Two of these three matters, while related to the formation of the Committee, have above been held to constitute illegal interrogation of employees. They are the West Side plant meeting held by Baldwin with a representative group of em- ployees on October 16, including subsequent inquiry and reporting by employees in said group, and the polls conducted in the plant on October 17. These ac- tivities constituted interrogation of employees as to their union sympathies, falling clearly within the scope of the allegations of subparagraph (h) of paragraph 7 of the complaint..°S The October 17 polls also fall specifically within the allegations of subparagraph (d) of paragraph 7 of the complaint. The remaining violation found, namely the condition placed by the Respond- ent through its posted contract of November 2, 1950, upon its employees accept- ing the unilaterally given cost-of-living wage adjustments, falls within the scope of subparagraph (g) of paragraph 7, as one phase of a unilaterally given wage increase. However, it has been indicated above that most of the General Coun- sel's contentions with respect to unilaterally given wage increases, as violative of Section 8 (a) (1) of the Act, are without merit. Thus, save for the above three matters specifically stated with respect to subparagraphs (d), (g), and (h), it is found that the allegations of paragraph 7 of the complaint have not been sustained. Hence subparagraphs (a), (b), (c), (e), (f), (I), and (j) thereof fall within my ruling, granting the motions to dismiss to the extent that dismissal accords with conclusions herein reached. 14 The Carpenters Steel Company, 76 NLRB 670, 673; see also the Fifteenth Annual Report (NLRB-1950), page 101. *a It is not found, however , that employees were interrogated as to their union member- ship or activities, allegations which also appear in that same subparagraph. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is also evident from all of the findings and conclusions above that all of the allegations with respect to violations of Section 8 (a) (5), the allegations in subparagraph (b) of paragraph 9 with respect to the Committee, and certain minor parts of other subparagraphs, are included within my partial granting of the motions to dismiss on the merits. Hence, no recommendations as to dis- missal appear below recapitulating the numerous allegations of the complaint with respect to which violations have not been established, since all of them fall within the scope of my ruling dismissing the complaint, in part. 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent initiated, formed, encouraged, fostered, assisted, interfered with the administration of, contributed financial and other support to, and dominated the Committee. It will therefore be recommended that the Respondent cease and desist from all interference with and support of the Committee, including both subdivisions thereof, and further that the Respond- ent disestablish the said Committee as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, hours of employment, or other conditions of employment, and that the Respond- ent refrain from recognizing the Committee, or any successor thereto, for any of the foregoing purposes. On the basis of the above findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. The operations of Oliver Machinery Company, Grand Rapids, Michigan, occur in commerce within the meaning of Section 2 (6) of the Act. 2. United Electrical, Radio and Machine Workers of America, Independent, and Employees' Committee, including the West Side Committee and the East Side Committee, jointly and severally, are labor organizations within the mean- ing of Section 2 (5) of the Act. 3. By initiating, forming, encouraging, fostering, assisting, interfering with the administration of, contributing financial and other support to, and dominating the Employees' Committee, including the West Side Committee and the East Side Committee, jointly and severally, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. OLIVER MACHINERY -CORPORATION 867 6. The Respondent has not violated the Act in those respects summarized in section III, F, 2, above. [Recommendations omitted from publication in this volume.] Appendix A October 17, 1950. MEMORANDUM FOR GROUP MEETINGS BY OLIVER MANAGEMENT WITH EMPLOYEES CLANCY AVENUE PLANT MEETING 1 P. M. BALDWIN-TUTHILL PLANT MEETING 3 P. M. I have called this meeting to get your help and your advice. It is extremely important for everyone here, for us to know your true wishes as to how you wish to deal with your Company in the future. The shortness of the strike and the employee reaction to it clearly indicated that a majority of you did not want the strike which was called by the Union. Ever since the strike we have been hearing that many of you no longer want the Union to represent them. At this point, however, we think we should make one thing very clear. Some time ago we entered into a contract with the UE because at that time a majority of our employees indicated that they wanted us to deal with the UE. The present contract still has about a year to run. The short strike resulted from a wage reopening under the contract as the contract itself was not up for negotiation. Although contract matters were not on the bargaining table, we tried to work out a long term settlement of all matters in connection with the wage reopening due to a real possibility of a wage freeze very soon. Now please understand this : If we are going to deal with any union, it should be and it must be the UE as it has always been the policy of this Company to respect its contract obligations, The Company signed the contract with the UE only after you had clearly indicated you wished the UE to be your bargaining agent and representative. However, if you now clearly, and by a substantial margin wish to deal directly with the Company and no longer have the UE in the picture, the Company will respect and follow your wishes. Any agreement which we have made with the UE was made because you had chosen that organization as your agent. If you wish to dis- continue the UE as your agent and notify us as to your desires, the Company will accept your decision if it is by a substantial majority of Oliver workers, and will refuse to bargain further with the UE. If you wish to deal with the Company directly, a management committee is perfectly willing to meet with employee committees to be selected by you from each department. These committees must democratically represent all em- ployees, not just a few. If you clearly decide by a substantial majority, and it must be a really substantial majority, that you no longer want the Union to represent you, and that you want to deal directly with the Company, the me- chanics of your dealing directly with the Company can be worked out very shortly. However, as you all probably know, it is impossible for us to separate the two plants and they have always been considered for all purposes as one unit. This was true under the Union contracts as well as the many years before we had a union to deal with. In other words, we can deal with you directly in each plant as to your own particular working conditions, but any matters affecting general Company policy will have to be considered on a two plant basis as they always have. 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The fundamental problem is this : You must have complete faith in the Company's integrity and desire to work with you for the long run benefit of all parties concerned. Also you must either have complete faith in your own integrity and ability to deal directly with the Company at regularly scheduled meetings and any others which may be called, or you must deal through the UE which has no direct interest in either the Company or you. In either case the Company representatives will be the same so that the problem resolves itself into this. Do you want the UE, or do you trust yourselves sufficiently to deal with the Company and aid in solving prob- lems, grievances, and acting on suggestions as they arise? It is extremely important that a decision be made quickly for your own pro- tection. Nobody knows when a wage freeze will be put into effect. It could be as quickly as the day after the election, November 8. Therefore, we should either have a signed agreement with the UE preferably in October, or have a working agreement with you so that we may put into effect the cost of living clause ahead of the freeze. The one thing we want to be absolutely sure about is that we know your true wishes, and that you will be satisfied to stand by your own expression of those wishes. Whatever arrangement you choose must be given a completely fair trial by all concerned. We do not want to influence you. The Company today is in a position not only of trying to find out your wishes so we can work together harmoniously, but we must also comply with the law. Therefore, every representative of man- agement will now leave you so that you may discuss this matter among your- selves and reach a conclusion. If you desire to reach a conclusion today we shall leave with you printed ballots which you may use to indicate whether you want the UE to continue representing you, or whether you want to deal in the future directly with the Company. If we are to know the real wishes of our employees it is very important that you all vote. You need not sign your ballot. You can readily choose two of your number to act as tellers. They can dis- tribute one ballot to each of you. We suggest that you then mark your choice, fold the ballot, and turn it in to the tellers. The tellers may then count the ballots in your presence, advise you of the results and then if you wish we can come back into the meeting and discuss this with you further. In order to have a real cross section of employees' opinion, the ballot reads as follows : This secret ballot is only for the purpose of determining the true wishes of our employees. Therefore, will you please mark an "X" in the box opposite your choice below : q I wish the UE to continue to be my representative. q I wish to deal directly with the Company, individually or as a group, without having to work through any Union. q I have not made up my mind. Appendix B MEMORANDUM FOR GROUP MEETINGS BY OLIVER MANAGEMENT WITH MACHINE SHOPS EMPLOYEES CLANCY AVENUE PLANT 1: 30 P. M., FRIDAY, OCTOBER 20, 1950 BALDWIN-TUTHILL PLANT 3 P. M., FRIDAY, OCTOBER 20, 1950 Today our main purpose of meeting with you is to tell you about the results and effects of the vote which you and the employees at the other plant con- OLIVER MACHINERY CORPORATION 869 ducted to decide whether you want to have the UE continue to represent you, or whether you want to deal directly with the Company for the purpose of administering the provisions of the present contract for the balance of its term. By a very substantial majority our employees clearly indicated that they want to deal directly with the Company . 86 people definitely voted that they want to deal directly with the Company . Only 37 voted for the UE, and 31 Indicated that they had not yet made up their minds . In other words, out of the 154 employees who voted, only 24% voted for the UE. Since we have always, as far as possible , considered and given effect to our employees wishes, we pro- pose to take steps with you immediately so as to deal with you directly in accordance with your own wishes. We shall continue this policy unless we are legally ordered to do otherwise. Each of you , individually, is free (as you always have been ) to present your problems and questions to your Management for discussion and settlement. You can discuss your questions with your foreman at any time, and also we want you to know that our doors are always open to you. In addition, we suggest that each major department of this plant select one or more employees from that departmental group . These men will be your representatives . A convenient size for this representative committee is about 8, and we are recommending to each plant that a committee of this size be set up for each plant. The exact size of the committee is to be decided by you, but both machine shops should be represented by equal committees . As soon as you have done this , we propose to have regular meetings with those representa- tive employees freely selected by you to discuss and settle production and related problems, and to settle questions arising under the contract. When most problems affect only one plant or another , most of the meetings will be between Management and one of the two committees . On all matters affecting general Company policies, the two committees combined will meet with Management. As to the contract itself, it has about a year to run-that is, to November 1, 1951. At that time we can legally terminate the contract by a 60 day notice which would be effective as of November 1, 1951. When we entered into the contract , the UE was your chosen representative. We therefore respected your wishes and dealt with the LIE. Now you have in- dicated that you no longer want the UE to act for you. We shall again respect your wishes. The contract is legally in effect and we shall act according to its provisions, but you employees are the principal parties of the contract and the Union is only your agent. Therefore, if you wish to select representatives from among you we shall recognize your chosen representatives who must speak for all employees. You can choose representatives from your own departments and deal with your Management directly by presenting your own grievances to your super- visors and by having regular meetings between your chosen committees and the Management. So far as the present contract is concerned, the law is clear. We will have to make one more check off deduction which is for the last week of this month, that is October. Therefore, those of you who signed deduction slips will have to have your dues deducted from the next pay. However, there will be no further dues deductions after November 1st as the dues authorization slips expire as of that date. Aside from this one additional deduction which applies only to those who had signed authorization slips, we do not know of any legal matter that will affect you under the contract. We have completed all negotiations with the Union. Your seniority rights, working conditions, and other employment rights will be fully respected as 250983-vol . 102-53--56 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,provided in the contract and will not be changed unless there should be some mutual agreement between us to our mutual advantage. We say "Mutual" and ,we mean "Mutual" for we are all friends and allies. We have a common interest in working together to please our customers so that we may sell our product and provide you with jobs which is the only real security. We believe that if you will take steps to choose representatives from each of your departments as suggested to meet with us regularly, we can assure you that ,we will continue to grow closer together, that we will always have a better and clearer understanding of each others problems , and that we will be able to work together always in a friendly way to further our mutual interests. This is about all we have to say. We want to be sure that I have made it clear, and I would also welcome the chance to have a discussion with you. As we see it, the main thing now is for you to arrange to choose your representatives in this plant from each department. For your convenience and information, the message just given you will be posted on the bulletin board for one week, and thereafter will be in our files but ,will be available to you. Before leaving you, are there any questions? RALPH B. BALDwIT" CONTINENTAL OIL BLACK COMPANY ( WESTLAKE , LOUISIANA PLANT) and LOCAL UNION 407, INTERNATIONAL UNION OF OPERATING EN; GINEERS, AFL, PETITIONER. Case No. 15-RC-854. January 30, 1953. Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John E. Price, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner requests a unit of all unit operators, and/or A oper- ators, and/or shift foremen, employed by the Employer at its West- lake, Louisiana, plant. However, the record establishes that the Peti- tioner in substance desires an addition of these workers to the already existing production and maintenance unit which it represents. 102 NLRB No. 86.