Elastic Stop Nut Corp.

In the Matter of ELASTIC STOP NUT CORPORATION and INTERNATIONAL ASSOCIATION OF MACHINISTS, CORNIIUSKER LODGE No. 1604 and EMPLOYEES BENEVOLENT ASSOCIATION UNION, PARTY TO THE AGREIa- MENT Case No. C-92601.-Decided July 24 , 1943 Mr. John A. Weiss, for the Board. Mr. Charles E. Whittaker, of Kansas City, Mo., and Mr. L. R. Doyle, of Lincoln, Nebr., for the respondent. Mr. Ray S. Roth, of Omaha, Nebr., for the Union. Mr. Lloyd J. Marti, of Lincoln, Nebr., for the Association. Mr. Robert E. Tillman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a third amended charge duly filed on January 9, 1943, by International Association of Machinists, Cornhusker Lodge No. 1604, herein called the Union,' the National Labor Relations Board, herein called the Board, by the Regional Director for the Seventeenth Region (Kansas City, Missouri ), issued its complaint dated February 23. 1943, against Elastic Stop Nut Corporation, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the respondent, the Union, and Employees Benevolent Association Union, herein called the Association. With respect to the unfair labor practices, the complaint alleged, in substance: (1) that on or about August 15, 1942, and thereafter, the 1 The Board , having taken notice of the withdrawal of the International Association of Mzcbinists from the Amellcan Federation of Labor, has herein dropped all reference to the A F. of L. from the title of the Union, although such reference appears in the record of the case. 51 N. L. H. B., No. 116. 694 ELASiT'IC. STOP NUT CORPORATION 695 respondent instigated, formed, assisted, dominated and supported the Association; (2) that on or about September 25, 1942, the respondent recognized the Association as the collective bargaining representative of its employees and on or about that date signed a closed-shop agree- ment with the Association at a time when the Association's representa- tion of a majority of the employees was in question and after the re- spondent had knowledge that charges of employer domination of the Association were pending before the Board; and (3) that by the above- stated acts and by other specifically alleged like and related conduct, the respondent dominated and interfered with the formation and administration of the Association and contributed support to it, and interfered with, restrained, and coerced .its employees in the exercise of the rights guaranteed in Section 7 of the Act. On or about March 3, 1943, the respondent filed an answer admit- ting that it is engaged in interstate commerce but. denying that it engaged in the alleged unfair labor practices. On or about March 4, 1943, the Association filed an answer denying that the respondent had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held from March 11 to 15, 1943, at Lincoln, Nebraska, before William F. Guffey, Jr., the Trial Exami- ner duly designated by the Chief Trial Examiner. The Board, the respondent, and the Association were represented by counsel, the Union by a representative, and 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. The Board has reviewed the rulings of the Trial Examiner on mo- tions and on objections to the admission of evidence and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Trial Examiner thereafter filed his Intermediate Report dated April 29, 1943, copies of which were duly served upon the parties. He found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (^) and Section 2 (6) and (7) of the Act. He accordingly recommended that the respondent cease and desist from engaging in unfair labor prac- tices and take certain affirmative action to effectuate the policies of the Act. On May 10 and 14, 1943, respectively, the respondent and the Association filed exceptions to the Intermediate Report, and the respondent a brief in support thereof. None of the parties requested oral argument before the Board. The Board has considered the exceptions and brief and, insofar as the exceptions are inconsistent with the findings, conclusions, and order hereinafter set forth, finds them to be without merit. 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT Is THE BUSINESS ,OF, THE RESPONDENT Elastic Stop Nut Corporation, a New Jersey corporation engaged 'in the manufacture of nuts, maintains its principal office and operates its main plant in Union, New Jersey, and a second plant in Lincoln, Nebraska, which alone is involved in this proceeding. Approximately 90 percent of the raw materials used by the respondent in its Lincoln plant is shipped there from points outside the State of Nebraska. A like percentage of finished products, valued in excess of $500,000 an- nually, is shipped from the Lincoln plant to points outside the State of Nebraska. The respondent admits that it is engaged in commerce within'the meaning of the Act. II. THE' ORGANIZATIONS 'INVOLVED International. Association of Machinists, Cornhusker Lodge No. 1604, is a labor organization, admitting to membership employees of the respondent: Employees Benevolent Association Union is an unaffiliated labor organization, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Chronology of events Unless otherwise noted, the findings of fact set forth below relating to the series of events occurring between July 21; 1942, and October 2, 1942, are based upon the uncontradicted and consistent testimony of William Borner. Ray S. Roth, Clare West, Fred Hofmann, Linus Dillon and Henry Bretzer. We credit their testimony and find that the events occurred substantially as indicated. in the summer'of 1942, the respondent took over a large warehouse building in Lincoln, Nebraska, and began remodeling it for use as a second plant. Three men from the New Jersey home plant were sent to Lincoln to supervise the work on the new plant. On or about July 21, 1912, six automatic screw Iachines were installed and thereafter were used to train operators for the bulk of the screw machines which were, eventually to be installed. During the remainder of the month of July and ina the early part of August, the trainee employees' began discussing the subj ect of unions. Opinion was divided between unaffiliated and affiliated organizations. In the latter part of August, adherents of both groups began seeking ELASTIC STOP NUT CORPORATION 697 advice from Michael Valnoski, foreman of the automatic screw ma- chine department, and Charlie Harvin, the plant superintendent,2 both of whom had served at the Company's New Jersey plant. The em- ployees met with little success from Harvin, who refused to talk about unions. The evidence also indicates that Valnoski was generally close- mouthed, and advised the employees he could not talk about unions. However, Carl Arnold, an employee, testified that he followed Valnoski on one occasion, and showed him an A. F. of L. union card; and that Valnoski said if the employees at the respondent's New Jersey plant were not satisfied with their unaffiliated organization, "they would get into either the C. I. O. or the A. F. of L." Clare West, an employee, testified to a similar statement made by Valnoski. Arnold testified further that Valnoski added, "We don't want the A. F. of L. or C. I. O. in here because you can't transfer a man from a department unless they let you." Valnoski admitted that in answer to questions by employees, he informed them of the type of union at the New Jersey plant. He denied, however, making the above-related statements attributed to ,,him by West and Arnold. We credit the testimony of Arnold and West, as did the Trial Examiner, and find that Valnoski made the statements. In the latter part of August, William Borner, an employee who had favored an unaffiliated organization, prepared a petition which bore the following heading : I am in favor of establishing an Independent Labor Union for the employees of the Elastic Stop Nut Corporation of Lincoln, Nebr. This Union will be for the purpose of negotiating with the management for the purpose of securing bargaining rights and to settle all labor disputes that may arise between the company and the employees. With the aid'of 2 or 3 other employees, Borner circulated this petition ,,among the employees of the plant both during working hours and when not on duty, until about September 14. Of the approximately 60 hourly paid employees at that time, 44 signed the petition; 2 subse- quently had their names scratched off. Arnold and Nicholas Meistrell, an employee, testified that during the period the petition was circulated Borner was absent from his machine about half the time, and Valnoski and Harvin were around the machine when Borner was missing. Borner denied that he was excessively absent. His denial was corroborated by Valnoski, who testified he did not notice any undue absenteeism from the machines 2It is undisputed, and we find , that Valnoski and IIIarvin were supervisory employees for whose actions the respondent is liable. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Borner, and was also corroborated by Charles Wheeler and John Schwindt, fellow employees, who testified Borner was not absent from his machine any more than other employees. While this contra- dictory testimony does not permit a finding that Borner was absent from his machine for excessive periods, nevertheless the overwhelming weight of the evidence, including Burner's own admission, indicates that he circulated the petition widely throughout the plant during working hours, and we so find. There is a further dispute in the record as to whether Valnoski was present in the plant while the petition was being circulated. None of the witnesses was able to testify that Valnoski saw the petition, and several witnesses testified that no supervisors were present. Valnoski, himself, testified he did not see the petition being circulated. This state of the record does not permit a finding that Valnoski actually saw the circulation of the petition. But this does not mean that Valnoski was not aware of the circulation of the petition. The record contains a signed statement made by Valnoski to the Board's attorney in January 1943, in which Valnoski states he "knew Borner and Bretzer were circulating a. petition and distributing cards in the plant."- At the hearing Valnoski admitted that sometime in September he learned that Borner and Bretzer were organizing a union,-but denied having then had knowledge of the circulation of the petition. He sought to explain his statement to the Board's attorney by testifying that what he meant was that he learned of the circulation after it occurred but before his statement to the Board's attorney. Like the Trial Ex- aminer, we do not credit Valnoski's denial, since so much of his testi- mony is confused. It is also unbelievable, in view of the undisputed widespread • circulation of the petition through the plant during a period of more than 2 weeks, during which 44 out of 60 employees signed it, and others witnessed the circulation, that Valnoski was completely unaware of what was taking place. This is particularly so in view of the fact that Valnoski knew in August that organizational activities were being considered by the employees and admitted that he knew in September that the employees were starting a union. We believe that the record justifies the inference which we draw, that the respondent knew of the circulation of the petition in the plant during working hours. It is undisputed that the respondent did nothing to stop this circulation or to counteract the inference that an independent union was being organized with the consent and ap- proval of the respondent. On September 6 or 7, while the petition was still being circulated, 'approximately nine supporters of an unaffiliated organization met at Borner's home. Lambert Eitel, an employee, and Borner were,author- ized to retain an attorney. They finally selected Victor Eitel, cousin 11 ELASTIC STOP NUT CORPORATION 699 of Lambert Eitel, and met with him on September 10 and 11, at which time he proposed drawing up articles of incorporation, and the three agreed on the name of the Association. On September 14, Attorney Eitel telephoned Hofmann and requested that the respondent enter into a contract with the group he represented. Hofmann asked for proof of majority representation and when assured it would be offered, agreed to meet with Eitel the next day. The meet- ing was held on the afternoon of September 15, at which time Eitel submitted the petition circulated by Borner. Hofmann, L. R. Doyle, the respondent's attorney, and Eitel then compared the petition with a pay-roll list and found that all 42 of the signatures were names of employees listed on the pay roll. Doyle then advised Hofmann that the petition evidenced representation of a. clear majority of the em- ployees and that the respondent was required by the Act to recognize and bargain with the representative so designated. Hofmann there- upon recognized the Association and agreed to another conference, for September It. In the meantime, employees favoring an affiliated organization were instrumental in bringing Ray Roth, an international repre- sentative of the Union, to Lincoln. Roth met with approximately 26 of the respondent's employees for the first time on the evening of September 15. About 22 of the employees signed union designation cards at that time. That same night the Association held its second organizational meeting at Borner's home. About 19 employees at- tended. During the meeting articles of incorporation were signed, and Attorney Eitel was authorized to draw up a contract. Officers and a negotiating committee were elected. On September 16 Roth notified Hofmann that the Union repre- sented a "majority of the respondent's employees. Hofmann inquired as to-how many employees had joined, but Roth refused to say. A meeting for September 18 was arranged, however. On September 17, Attorney Eitel and the Association's negotiating committee met with Hofmann and Doyle. A rough draft of a contract was submitted, and, after some discussion, it was agreed that Doyle and Eitel would revise it. In the morning of September 18, Roth met with Hofmann and Doyle. Eitel was also present. Roth again refused to supply the names of the union members to Hofmann, but stated he was willing to supply the information to the Board's representatives. Hofmann replied that it was Roth's privilege to seek recourse with the Board, but that the respondent had already recognized an organization and could not therefore recognize the Union. In the evening of September 18 the Union held its second organiza- tional meeting. About 30 employees attended. On September 22 the 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association held its third meeting. A notice of this meeting was posted on the respondent's bulletin board. About 33 employees at- tended, 21 of whom, according to Borner's testimony, were paid-up members of the Association. Several witnesses who were members of the Union testified that 15 to 17 of those present were members of the Union. We credit Borner's testimony as well as that of the other witnesses and find that there was an overlapping of the Union and Association adherents among the 33 employees at the Associa- tion meeting. The proposed contract was discussed, changes were made, and a new draft was authorized. On September 23 the revised contract was presented to Hofmann s All terms were finally, agreed upon, but Hofmann stated he would not sign until the Association submitted further proof that it represented a majority of the employees. On September 24, the Association held a meeting, attended by 25 employees, at which the contract was approved by the members present. On the afternoon of September 25 representatives of the Associa- tion again met with the respondent. Membership records were pre- sented, showing that a majority of the employees were current dues- paying members of the Association. Doyle again advised Hofmann that the respondent was required by law to deal with the Association. Thereupon the contract was signed. Hofmann admitted that he knew on September 24, 1942, that charges of domination of the Associa- tion had been filed with the Board by the Union. On October 2, 1942, Roth again met with Hofmann. This time his request that the respondent recognize the Union was dismissed with the statement that the respondent had already signed a contract with another organization. It is not disputed, and we find, that both before and after October 2, 1942, members of the Association collected Association dues in the plant during working hours, that the respondent did nothing to prevent such activity, and that for a period of about 2 days early in October, an Association handbill criticizing the Union and prais- ing the Association was posted on the respondent's bulletin board. Linus Dillon, an employee, testified that in late November or early December while he was temporary president of the Union, Valnoski told him that horseplay and foolishness like filing charges with respect to a, discharged employee would have to stop. The Union had filed such a charge on October 29, 1942. Valnoski did not deny making this statement. We credit Dillon's testimony, as did the Trial Ex- aminer, and find that Valnoski made the statement. Meistrell testified that the day before the hearing began he told Valnoski that he had been served with a subpena and that on the first + A second draft had been submitted on September 19 or 20. ELASTIC STOP NUT CORPORATION 701 day of the hearing Valnoski said to him, "I hear you fellows is going to tell a lot of stuff about me up there" and added "You hadn't better, or it's going to be too bad." Meistrell further testified that after his appearance at the hearing as a witness, Valnoski came to, him in the plant and accused Meistrell of doing some "dirty trick" to one of the girls who worked in the plant and then said, "You know what I told .you if you went up there and lied about me." Valnoski testified that he talked to Meistrell about the time the hearing in this proceed- ing began but denied making the statements as claimed by Meistrell. Valnoskii,•,testified that Meistrell showed him a subpena to appear at the hearing and that he told Meistrell to tell the truth. We credit Meistrell's testimony, as did the Trial Examiner and, find that Val- noski made the statements to Meistrell as related by him. It is fur- ther found, that Valnoski made the first of these statements for the purpose of restraining Meistrell from testifying concerning Valnoski's anti-union activity, and that it constituted a threat of reprisal if Meistrell did so testify, and that the second statement constituted a threat of reprisal against Meistrell because he did testify' adversely to the respondent. B. Concluding findings We find that by Valnoski's statement to Arnold-that the respondent did not want an affiliated union in the plant, by Valnoski's statement to Dillon that foolishness like filing charges would have to stop, and by Valnoski's warning to Meistrell concerning his testimony in the instant proceeding the respondent has interfered with, restrained, and coerced its employees in the exercise' of the rights guaranteed-in Sec- tion 7 of the Act. ' We are of the opinion and find, moreover, that by various acts of assistance to the Association, the respondent has not only abridged the rights guaranteed in Section 7 of the Act, but, more specifically,' has contributed unlawful assistance to the Association, in violation of Section 8 (1) of the Act. Thus, at a time when its employees were divided for and against,an unaffiliated organization, the respondent's foreman, Valnoski, indirectly but clearly, expressed his preference for an unaffiliated organization. Thereafter, while much of the organiza- tion of an unaffiliated union was taking place in the plant during working hours, the respondent, which has been found to have had knowledge of the activity, took no steps to rebut the natural tendency of the employees to presume therefrom that the respondent favored the formation of an unaffiliated organization. Further assistance was supplied by permitting the posting of notices of the Association's meetings and an anti-union handbill on the respondent's bulletin boards, and by permitting the collection of dues for the Association 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the plant during working hours. Then, too, the respondent pro- ceeded to recognize the Association on the basis of a petition which did not designate the Association as bargaining representative, but expressed a preference of the signers for an "independent labor union." Although informed 1 day later that the Union also claimed to represent a majority. of its employees, the respondent nevertheless carried on contract negotiations with the Association. Finally, within a period of 10 days, and after having had notice of the filing by the Union of charges of domination of the Association, the respondent on September 25, 1942, entered into a contract with the Association. A neutral employer, when faced with the conflicting representation claims of two rival unions, would not negotiate a contract with one of them until its right to be recognized as the collective bargaining representative had been finally determined under the procedures set up under the Act. In view of this unlawful aid and assistance to the Association, we find that the respondent's employees were not afforded the complete freedom to choose between rival organizations which the Act con- templates. Accordingly we shall order that the respondent withdraw and withhold recognition from the Association as the representative- of any of its employees for the. purposes of collective bargaining until such time as the Association may be certified as their representative by the Board.4 Since the contract of September 25, 1912, made with the Association, perpetuates the respondent's unlawful assistance to the Association, we shall further order the respondent to cease giving effect to it, as well as to any extension, modification, renewal, or supplement thereof, or to any superseding contract with said organization which may now be in force. Nothing in this Decision and Order shall be interpreted, however, to require the respondent to vary these wage rates, hours, and other substantive features of its relations with its employees which the respondent may have established pursuant to the contract, as extended, renewed, modified, supplemented, or superseded. In addition to the allegations of interference, restraint, and coercion, the complaint alleged that the respondent instigated, formed, assisted, dominated, and supported the Association, within the meaning of Sec- tion 8 (2) of the Act. In his Intermediate Report the Trial Examiner concluded that the respondent had dominated and interfered with the formation of the Association. Although we are of the opinion that the respondent's'activities constitute interference within the meaning of Section 8 (1) of the Act, we do not believe that the character and 4 Cf. Matter of Heather Handkerchief Works, Inc., 47 N . L. R. B. 800; Matter of Inter- state Folding Box Company, 47 N. L. R. B. 1192; Matter of Wayne Works, 47 N. L. R. B. 1437. ELASTIC STOP NUT CORPORATION 703 extent of these activities, under all the circumstances of this case, justify a finding that the respondent has violated Section 8 (2) of the Act. Accordingly, we shall dismiss the 8 (2) allegations of the com- plaint. We agree with the Trial Examiner that the allegations that the respondent entered into a "closed-shop" contract with the Association, permitted the Association but not the Union to distribute handbills near its premises, and favored Association members over union mem- bers with promotions and wage increases, are not substantiated by the record, and we shall dismiss the complaint as to them. IV. THE EFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent, set forth in Section III A, above, occuring 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 unfair labor prac- tices within the meaning of the Act, we shall order that it cease and desist therefrom, and take certain affirmative action which we find will effectuate the policies of the Act. Upon the foregoing finds of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, Cornhusker Lodge No. 1604, and Employees Benevolent Association Union are labor organi- zations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of he Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (e) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' Elastic Stop Nut Corporation, Lincoln, Nebraska, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from:., (a) Recognizing Employees Benevolent Association Union as the representative of any, of its employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment', or other conditions of employment, un- less and until that organization shall have been certified by the Board as the representative of the employees; (b) Giving effect to the contract of September 25, 1942, with Em- ployees Benevolent Association Union, or to any extension, renewal, modification, or supplement thereof, or to any other contract made with Employees Benevolent Association Union; (c) In any other manner, interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in concerted ac- tivities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw and withhold recognition from Employees Benevo- lent Association Union as the representative of any of its employees for the purposes of collective bargaining with respect to grievances, labor disputes, wages, rates ; of pay, hours of employment, or other conditions of employment, unless and until that organization shall have been certified by the Board as the representative of the employees; (b) Post immediately in conspicuous places throughout its plant in Lincoln, Nebraska, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating (1) that the respondent will not engage in the conduct from which it has been ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; and (2) that the respondent will take,the af- firmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Seventeenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that paragraph number V of the com- plaint, alleging that the respondent instigated, formed, assisted, domi- nated, and supported the Association in violation of Section 8 (2) of the Act, and subparagraphs (c), (f), (g) and (h), of paragraph num- ber VII, be, and they hereby are, dismissed.