Ben Corson Manufacturing Co.

BEN CORSON MANUFACTURING CO . 323 Crump field office, for, as already found, the sole immediate purpose of picketing at those locations was to bring about a cessation of work on the Crump project by appealing to the construction employees. Upon all the foregoing, I conclude that Respondent Teamsters has induced and encouraged the employees of Crump and Crump's subcontractors to quit work on the project for the purpose of forcing Crump to cease doing business with his subcontractors and with Kaufmann. Respondent Teamsters has thereby violated Section 8 (b) (4) (A) and Section 2 (6) and (7) of the Act. N. L. R. B. v. Denver Building & Construction Trades Council, 341 U. S. 675; United Brick and Clay Workers v. Deena Artware, 198 F. 2d 638, 642, cert. denied 344 U. S. 897; and the other cases cited above. In its answer filed in this matter, Respondent moved to dismiss the complaint on the basis of the aforementioned State court proceeding before Judge Samuel A. Weiss. That action was instituted by Crump under Pennsylvania secondary boy- cott law to restrain Respondent Teamsters and other striking unions from picketing the Crump project at Cherry Way. Judge Weiss issued an opinion in the matter on January 28, 1954, dismissing the action on the ground that the specific matter at issue was within the purview of the Federal Act and therefore beyond the authority of the State. In passing, however, the court also declared that the alleged secondary action complained of in the State court action was protected primary, rather than unlawful secondary, conduct under decisions of the National Labor Relations Board. Respondent asserts that the State court's interpretation of the Teamsters' conduct as primary rather than secondary conduct is res adjudicata here. All parties in the present action were not parties to the State court action, and the doctrine of res adjudicata is therefore inapplicable; but even if such deficiency were not present, the court's interpretation is clearly dictum in view of the court's own dismissal of the action on jurisdictional grounds. Moreover, the court's interpretation would, in any event, not be binding here in view of Garner v. Teamsters, 346 U. S. 485. See Professional and Business Men's Life Ins. Company, 108 NLRB 363. III. THE REMEDY I shall recommend that Respondent cease and desist from violating Section 8 (b) (4) (A) of the Act, and that Respondent take certain affirmative action which I find necessary to effectuate the policies of the Act. It is the intent and meaning of this recommended order, as District Judge Willson directed with respect to his order granting temporary injunction of March 5, 1954, that, among other things, "there be no picketing south of the north line of Cherry Way, except that respondent may place a picket at the south entrance to Resort Way and on Diamond Street at any point ten feet south of the Crump, Inc. office, and may use Script Way as a passage- way to and from Diamond Street in order that the persons picketing shall have a congregating area on Script Way. There shall be no interference in any way with delivery of material or access of employees to the construction site where Crump, Inc. is engaged." [Recommendations omitted from publication.] Ben Corson Manufacturing Co., Belmont Aluminum Extrusion Co., Parkside Distributing Co., Corben Manufacturing Co. and F. C. and Allied Workers Union, Local 37, Affiliated with Up- holsterers' International Union of North America, AFL and Shop Committee, Party to the contract. Case No. 4-CA-1066. April 01, 1955 DECISION AND ORDER On December 28, 1954, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair 112 NLRB No. 46. 369028-56-vol. 112-22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respond- ents filed exceptions to the Intermediate Report with a supporting brief. The Board has reviewed the rulings of the Trial Examiner made 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 Respondents' exceptions and brief, and the entire record in this case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, Ben Corson Manufacturing Co., Belmont Aluminum Extrusion Co., Parkside Distributing Co., and Corben Manufacturing Co., Philadelphia, Penn- sylvania, their agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with F. C. and Allied Work- ers Union, Local 37, affiliated with Upholsterers' International Union of North America, AFL, as the exclusive bargaining representative of all its production and maintenance employees excluding clerical employees, truckdrivers, salesmen, foremen, and other supervisory employees as defined in the Act. (b) Dominating or interfering with the administration of the Shop Committee or any other collective-bargaining representative of its employees or contributing support or rendering assistance thereto. (c) Recognizing the Shop Committee or any successor thereto, as the representative of any of its employees for the purpose of dealing with Respondent concerning grievances, wages, rates of pay, hours of employment, or other conditions of employment. (d) Giving effect to the contract with the Shop Committee dated April 28, 1954, or to any other contract with said Committee (this does not prohibit Respondent from continuing in effect the substan- tive terms, including wages, and other conditions and benefits therein embodied). (e) Promising or granting wage raises or other economic favors as inducements to influence or interfere with the employees' choice of collective-bargaining representatives ; conducting or causing to be conducted elections among its employees as part of any plant to in- fluence or interfere with their choice of collective-bargaining repre- BEN CORSON MANUFACTURING CO. 325 sentatives; interrogating its employees regarding their union member- ship or activity ; soliciting employees to abandon or forego their union activity or sever their affiliation with any union or labor organization of their choice. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist and bargain collectively through F. C. and Allied Workers Union, Local 37, affiliated with Upholsterers' International Union of North America, AFL, or any other labor organization of their own choosing. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with F. C. and Allied Workers Union, Local 37, affiliated with Upholsterers' International Union of North America, AFL, as the exclusive representative of the employees in the appropriate unit described above, with respect to their rates of pay, wages, hours of employment, and other condi- tions of employment, and if an agreement is reached, embody it in a signed contract. (b) Withdraw and withhold all recognition from, and completely disestablish the Shop Committee, or any successor thereof, as the rep- resentative of any of Respondents' employees for the purpose of deal- ing in respect to grievances, wages, rates of pay, hours of employ- ment, or other conditions of employment. (c) Post at its place of business in Philadelphia, Pennsylvania, copies of the notice attached to the Intermediate Report and marked "Appendix."' Copies of the notice, to be furnished by the Regional Director for the Fourth Region of the Board, shall, after being signed by the Respondents' authorized representative, be posted by Respondents immediately upon receipt thereof in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it for at least sixty (60) consecutive days there- after. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourth Region, in writ- ing, within ten (10) days from the date of this Order what steps Respondents have taken to comply therewith. MEMBERS RODGERS and LEEDOM took no part in the consideration of the above Decision and Order. 1 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A 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 " 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The formal proceedings in this case were initiated by a complaint issued August 20, 1954, by the Acting Regional Director of the Fourth Region of the Board on behalf of the General Counsel on charges filed by F. C. and Allied Workers Union, Local 37, affiliated with Upholsterers ' International Union of North America, AFL, herein called the Union. The complaint alleges, in substance , that Ben Corson Manufacturing Co, Belmont Aluminum Extrusion Co, Parkside Distributing Co., Corben Manufacturing Co., collectively called the Respondent , in violation of Sec- tion 8 (a) (5), (2), and ( 1) of the National Labor Relations Act, refused the re- quest of the Union to bargain with it on behalf of an appropriate unit of employees although it had been designated as bargaining representative by a majority in the unit and bargained , instead , with a labor organization called the Shop Committee; and that the Respondent, in addition , granted and promised wage increases , bonuses, and paid holidays ; suggested or advised the formation of the Shop Committee as the employees' bargaining representative, conducted an election "to determine employees' desire to accept or reject Respondent 's system of representation i e. Shop Commit- tee"; conducted an election among the employees covering the benefits offered by Respondent ; and interrogated employees concerning their union or concerted ac- tivities . Copies of the complaint and all other formal papers in this proceeding were duly served on the Respondent, the Union, and the Shop Committee, Respondent filed and served an answer in which , in substance, it admitted that it refused to bar- gain with or recognize the Union and that it entered into a collective-bargaining agreement with the Shop Committee The answer asserted, however, that the Shop Committee and not the Union was designated as representative by a majority of the employees in the unit in question . The answer denied that Respondent promised wage increases , bonuses, and paid holidays , and, while admitting Respondent granted a wage increase , asserted it was made pursuant to collective bargaining with the Shop Committee. The answer denied the remainder of the allegations of the com- plaint, and in denying that it suggested or advised the formation of the Shop Com- mittee or held an election to determine employees' desire to accept or reject the Shop Committee asserted that "the Shop had been in existence since June 1951." 1 Pursuant to notice duly served on all parties , a hearing was held before the duly designated Trial Examiner on October 4, 5, 6, 11, 12, 13 , and 14, 1954 , in Philadelphia, Pennsylvania . All parties were given opportunity to be heard and to examine and cross-examine witnesses All parties were represented at the hearing by counsel or their representatives, except the Shop Committee . The latter although duly served with copies of all documents in the proceeding , and although its chairman , Richard N. Jones, was present at the first 2 days of the hearing (testifying as a witness called by the General Counsel ) and was fully advised by the Trial Examiner on the record of the nature of the Shop Committee's interest in the outcome of the proceeding and of its right to full participation therein through counsel or any representative of its own selection entered no appearance.2 1 On motion of the General Counsel the complaint was amended during the hearing to include an allegation that Respondent had engaged in surveillance of the union meeting on two occasions, once in April and the other in August 1954 , through Harold Adrian, an alleged supervisor Although nothing was said about it at the bearing, I have at all times construed the denial in the answer to extend to these new allegations ' When the hearing opened, the General Counsel , pursuant to notice duly served 11 days earlier on all parties and also the Shop Committee , moved to amend the caption of the case so as to include the Shop Committee as "party to the contract ," a step which formally confeis upon it the status of a "paity " to the proceeding as that term is defined in Sec- tion 102 8 of the current Rules and Regulations of the Board . The motion was granted over objection of Respondent Present when the motion was argued and granted was Richard N Jones, chairman of the Committee . As noted in the text , on both the first and second day of the hearing, the Trial Examiner advised Jones at some length concerning the Shop Committee 's stake in the outcome of the proceeding and of its right to appear by counsel Upon Jones ' stating that the Committee did not intend-to retain or be repre- sented by counsel because the Committee had no funds, Jones was advised that the Com- mittee could nevertheless be represented by him or any person it would select Again, at the completion of his testimony, Jones was advised that he had the right on behalf of the Committee to full participation in the proceeding . When the next matter was taken up immediately following completion of his testimony (which happened to be a motion by the General Counsel to revoke a subpena issued and served at the request of Respondent), the BEN CORSON MANUFACTURING CO. 327 Respondent at the outset of the hearing moved to dismiss the complaint because it was not sworn to and because it failed to "state the basis of the complaint ," which motion was denied. The Trial Examiner also denied, on the ground of irrelevancy of purpose, a request by Respondent's counsel for leave to conduct an in limme examina- tion of the Acting Regional Director concerning the adequacy of the investigation preceding his issuance of the complaint , and, on the same ground, granted the General Counsel's motion to revoke a subpena served by Respondent on the Acting Regional Director for the purpose of eliciting testimony on that subject. At the close of the hearing Respondent moved to dismiss the complaint for lack of merit. The matter is disposed of in the manner indicated in this report . The Trial Examiner has heard and considered oral argument by counsel for Respondent and the General Counsel and a brief submitted by Respondent. The findings and conclusions below, as well as the recommendations , are based on consideration of the entire record, including the exhibits , the testimony, the argu- ments oral and written , as well as the impressions derived from my observation of the witnesses during their testimony. FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT The term "Respondent" refers to all four companies named as Respondents in the caption . Each is a Pennsylvania corporation . Together they comprise the busi- ness or enterprise described below, and it is stipulated that for purposes of this case they constitute a single employer. The complaint alleges, the answer admits, and I find that Respondent has its principal office and plant in Philadelphia , Pennsylvania; there it is engaged in the manufacture , sale, and distribution of storm windows , screens, and allied products, annually sells products valued in excess of $500,000, of which ap- proximately $250,000 are sold and transported from Philadelphia to points outside Pennsylvania, and annually purchases raw materials , consisting principally of glass, aluminum, and aluminum wire screens, valued in excess of $400,000 , of which ap- proximately $260,000 are sold and transported from points outside Pennsylvania to Philadelphia . On the foregoing facts, I find that Respondent is engaged in com- merce within the meaning of the Act. If. THE ORGANIZATIONS INVOLVED The Union and the Shop Committee are labor organizations within the meaning of Section 2 (5) of the Act, and that is so whether the Shop Committee be deemed to have come into existence April 27, 1954, or to be a continuation of the Shop Committee which originated in 1951. III. THE UNFAIR LABOR PRACTICE A. Introduction The crucial events in this case occurred within 3 days , beginning the morning of April 27, 1954, when Respondent received from the Union a request for bargaining on behalf of a unit of production and maintenance employees , claiming that a majority in the unit had designated the Union as their bargaining agent, and culminating April 29 3 when Respondent and the Shop Committee signed and a majority of the employees countersigned a contract negotiated April 28 by Respondent with the Shop Committee. Before the particulars are detailed , a brief discussion of the bargaining history of Re- spondent preceding these events would be in order. B. The Shop Committee preceding April 27, 1954 On June 20, 1951, Respondent signed a contract of 1 year's duration with the 14 individual employees then constituting its production and maintenance force. The contract included the following provision: Trial Examiner invited Jones' views on behalf of the Committee Jones offered leis per- sonal views but he relused to appear on behalf of the Committee The Committee at no time entered an appeal ance in the case , and after the end of the morning session of the second day neither Jones nor, so far as the record shows , any of the membeis of the Coin- mittee attended the lieaiing . Respondent urges it was ciior to grant the motion amend- ing the caption Assuming Respondent's standing to urge this objection on behalf of the committee-which it lacks-its objection is even less valid now than it was when the motion was made, and I accoidingly reaffirm my iulmg as made at the hearing. 3 All dates in which the year is omitted iefer to 1954 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6 A committee of three shall be elected by the employees . This committee will represent all of the employees in dealing with the company and is authorized to negotiate and agree with the company to modify this contract. Although the contract explicitly refers to the Committee as a thing of the future, Daniel Unile, a member of the Committee from its inception and its chairman from June 1953 to April 27, 1954, the day of the advent of the new shop committee, testified the Committee was already in existence when the contract was signed and that the contract had in fact been negotiated with the Committee. But whether the Commit- tee was sired by the contract or whether the reverse was true, the contract and the provision for the Shop Committee were apparently responsive at that time to the de- sire of employees for a voice of some sort in management decisions which concerned them, particularly those which involved benefits, such as paid vacations and holidays. As constituted until April 27, 1954, the Committee consisted of a chairman and two members, all informally chosen by the employees as a whole, without formal vote or ballot It had no organizational composition or structure, being without constitu- tion or bylaws, or employee membership roster, a treasury, or any established pro- cedures for meeting or communicating with the employees. It was a "standing com- mittee," those composing it having no fixed tenure and being succeeded , as they might drop out, by informal selection among the employees at large. When the contract expired on June 20, 1952, Respondent made no new contract with the employees or with the Committee 4 However, the Committee continued in existence . The meetings with management were occasional and occurred when a particular situation required discussion , the last such meeting being a week or two before April 27, 1954, for the adjustment of the quota on the bonus then in force for one of the departments.5 Also, the chairman would from time to time receive grievances from individual employees which he would take up with their foremen. In the latter part of 1953, Respondent's working force began to increase and it was enlarged still further beginning February 1954, when Respondent expanded its operations by installing an extrustion press (for the construction of aluminum frames ).6 Whether due to the absence of established channels of communication with the employees or the complete absence of provision for group assemblage with them or otherwise , it is the fact-and Corson, president of the Respondent 7 noted it in the address he made to the employees on April 27 described later in the report-that many of the "new" employees (constituting nearly the entire work- ing force as appears from the record ) did not know of the existence of the Shop Committee. I would gather also that the Committee, howsoever it may have been viewed or may have functioned in the period when the working force was small, had by the time of the critical events here mentioned ebbed in the eyes of the rank and file as a bargaining vehicle in fact. Such is the inference I draw from all the testimony and the evidence , the salient items being the testimony of Unile its last chairman before the new Committee was formed on April 27, that prior to the meeting between the Committee and Respondent which was held a week or two before April 27, only two such meetings had been held in a span of over a year, one being 5 or 6 months before this last and the other 7 or 8 months earlier than that and the overwhelming response of the employees within a single day to the distribution of union application cards as recited below, one of those signing up being Unile himself. 4 While Unile testified that he thought that contract still to be in effect , his testimony, uncorroborated by any representative of management and lacking in specificity of detail', strikes me as an inadequate basis for believing that the contract was ever renewed or ex- tended, and as I read Respondent 's brief, I do not understand that it so contends 6 Other meetings conceined wage increases in June 1952 and the early fall of 19.13, which were granted , the Blue Cross insurance system , -Much was put into effect, and absorption into other departments of employees when work for them in their own depai t- ments had petered out O The list of employees who constituted the production and maintenance force for the critical payroll week ending April 28, shows 17 were taken on in September to November 1953 and 19 between the beginning of February and the week ending April 28, 1954, these 36 being 8 short of the entire rank-and -file force as of that time P Ben Corson is president of Ben Corson Manufacturing Co , and is the top man in the enterprise composed of the four Respondent Companies He is accordingly referred to as president of Respondent , and Webster, vice president of Ben Corson Manufacturing Co is referred to as vice president of Respondent. BEN CORSON MANUFACTURING CO. 329 C. Organization of the employees by the Union and the Union's bargaining request On April 23, employee Edward Brennan assisted by employees James Grenfell and Frank King distributed among the production and maintenance employees union application cards procured on Brennan's initiative the night before from the Union. The cards in terms, authorize the Union to act as bargaining agent for the signers. By April 24, 35 of the 44 rank-and-file production and maintenance employees then on the payroll signed up. Those signing were old employees as well as new. On April 24, the Union mailed Respondent a letter advising that it had been designated as bargaining agent by a majority of Respondent's production and maintenance employees and requesting that Respondent suggest a time and place for bargaining. Respondent received this letter on April 27. Later on the morning of the 27th Corson received a call from George Bucher, president of the Union, repeating the Union's bargaining request. Corson, claiming that he did not "handle these matters," referred Bucher to John E. Swartz, attorney for Respondent. Bucher on the 28th called Swartz informing him of his talk with Corson. Swartz, pleading a court engagement, told Bucher he had no time to talk to him. The same day Bucher on behalf of the Union filed a representation petition under Section 9 (c) of the Act, and within a few days, the Union's bargaining request was again repeated over the telephone, this time by the Union's attorney, Maurice Abrams, to Respond- ent's attorney, Swartz. By that time, Respondent had executed a contract with a newly selected Shop Committee as the climax of a series of events of its own initiation detailed below. Corson admitted that he at no time challenged or indi- cated that he doubted the Union's assertion of a majority or requested proof of it.8 D. The unit and the unit's majority Since a refusal to bargain in contravention of Section 8 (a) (5) of the Act is among the violations charged, the narrative is here interrupted for consideration of the formal aspects of that issue. 1. The appropriate unit and its size a. Unit The parties agree and I find that the appropriate unit within the meaning of the Act consists, as alleged in the complaint, of "all production and maintenance em- ployees, excluding clerical employees, truck drivers, salesmen, foremen, and other supervisory employees as defined in the Act." During the payroll week ending April 28, the number of employees in that unit according to a list prepared by Respondent at the General Counsel's request was 47 employees. Of these, the General Counsel contends that 3, Lonnie Robertson, William Schumacher, and Harold Adrian, are supervisory employees. If his con- tention is sustained, the number is 44. In view of the number of the employees who signed union cards, the determination of that issue is not crucial to the Union's ma- jority. However, it appears appropriate to pass upon the matter in the interest of ob- taining the complete picture and for such bearing as it may have on the aspect of the case dealing with the activities of Harold Adrian as detailed below. b. Supervisory status of William Schumacher, Lonnie Robertson, and Harold Adrian In February 1954, when Respondent installed the extrusion press, Respondent hired from the outside its present vice president, Mr. Webster, to take charge of plant production. At that time, Webster divided the production operations into four departments-extrusion, anodizing, door, and window. The employees in these departments, along with those in the shipping and receiving department, com- prise the unit of production and maintenance employees here involved. Webster brought with him from the outside William Whitney, and although Whitney was put in charge of the four production departments, he actually spends most of his time running the extrusion department. In immediate charge of two of the other production departments are Schumacher and Robertson. Although unlike Whitney, they are not salaried employees and work alongside of the men whose work they 8 Following these events, the Union filed unfair labor practice charges on May 4, 1954, and with the Regional Director's approval withdrew its representation petition a inonth later 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD direct, the record indicates that they are responsible for the operations of the departments and are otherwise vested with supervisory functions. Richard N. Jones, present chairman of the Shop Committee which was selected April 27 (infra), testified that sometime before April 27, when he was in the anodizing department, he took up a grievance concerning uniforms with "Bill Schumacher, my immediate foreman at that time." Jones further testified that since he became chairman of the Committee he has taken up grievances with fore- men, including Schumacher.9 Lonnie Robertson was identified by employee James Grenfell as the person from whom he received his orders when the worked in the door department. Daniel Unile, oldest employee in the plant in seniority and whose role as member of the 1951 Committee when it was established and later its chair- man has been related above, testified that during the period concerning which Jones testified, "it was taken for granted" without "formal announcement" by Respondent, that Schumacher was in charge of the anodizing and that Lonnie Robertson was in charge of the door department.io Harold Adrian works in the receiving and shipping department which consists of eight people, who are engaged in loading and unloading materials from trucks, in accordance with written orders received from the office. Half of them work near Respondent's office in the main floor in the front building it handling lighter materials; the other half, which includes Adrian, handle heavy materials and work in the basement in the rear or "new" building where the four production depart- ments operate. President Corson testified that supervision of the entire department was under Frank Kovach, who in turn was answerable to Webster. Kovach, how- ever, works with and directs the employees in the department working in the front part of the plant, and Adrian although an hourly paid employee (the highest paid such employee in his department) directs and gives orders to the group working on the production floor in the back. Employees Prince McDaniel and Tryee Mills testified that when they were hired by Respondent to work in the receiving and shipping department, Adrian was called into the office, and there each was given to understand (McDaniel by Whitney and Mills by Webster) they were to work under Adrian's supervision, thereafter, during their tenure in the department, they performed under the exclusive supervision of Adrian, loading and unloading trucks as he would direct 12 Employees Brennan and Grenfell, who work in the extrusion department on the same floor as Adrian, have observed him giving orders and in- structions to the men in his department Like Kovach in the front building, Adrian, who handles the written orders against which are checked the materials handled by the shipping and receiving people, performs part of his functions at a desk iden- tified by the employees as Adrian's. It appears moreover, that the functions of the kind performed by the three persons here considered entails the power of effective recommendation for hiring. Thus Tryee Mills testified that after 3 weeks under Adrian he transferred to the window department under Schumacher at the latter's invitation following a detail in which Schumacher was pleased with Mills' performance.13 Mills further testified that in an ° Schumacher's supervision was apparently transferred at some indeterminate time from the anodising to the window department Tryee Mills, an employee hired May 14, 1954, who, as detailed later, testified to Adrian's supervisory status over him during the first 3 weeks of his employment with Respondent testified he has worked in the window department since Tune 1954 with Schumacher as his foreman Corson, as appears later, likewise described Schumacher as responsible for operations in the window department. 10 He asserted, however, that he did not regard them as supervisors because they worked with the men 11 The front and rear building of the plant are connected by doorways and are regarded as a single plant 1i Prince McDaniel was employed by Respondent from the latter part of March until the first of May 1954 Mills began to work for Respondent May 14, 1954 There is no indi- cation in the record or any contention that Adrian's duties underwent any intervening change Although it appears that McDaniel now on the city police force, was discharged by Respondent May 1, 1954, McDaniel impressed me as testifying with complete candor concerning the functions of Adrian in the shipping department as lie observed them 13 As Mills put it, "Bill Schumacher came up-he was the foreman on the day shift-he came by and liked the way I did it, and asked if I wanted to work over there I told him, `yes.' So he said he would let me know chat afternoon. And that afternoon he told inc to conic over next moaning, which was Firday, and started working in the Window Depart- ment " BEN CORSON MANUFACTURING CO. 331 effort to obtain a job for a friend he consulted Adrian,14 who stated "you should have told me this morning. I just hired two new guys. Anyway bring him in Tuesday morning at ten o'clock, I will put him to work," and that the friend re- ported and handed Adrian his application which Adrian, in turn, brought into the office. After an interview in Adrian's presence by Superintendent Whitney, the friend was put to work under Adrian. Any serious question concerning the super- visory status of the three would seem to have been dispelled by President Corson himself. Called as a witness by the General Counsel, he averred that when Respond- ent acquired the extrusion press he placed Webster in full charge of production and that except for the fact that Whitney was plant superintendent and Frank Kovach supervisor of shipping and receiving, he was unfamiliar with the other allocations of supervisory authority. However, he finally testified. Trial Examiner SOMERS. Hasn't Mr. Webster ever told you who assists him in the job of supervisor? Mr. Whitney has control of the entire operation, you say, with the exception, possibly, of shipping and packing. But have you been told whether Whitney has anyone helping him? The WITNESS' Whether Mr. Whitney has anybody helping him? Trial Examiner SOMERS' Yes, in the supervision of the separate depart- ments: door, window extrusion or anodizing. The WITNESS: Well, 1 know in these departments who, possibly the principal party would be Trial Examiner SOMERS: Name them, for example, and define what you mean by "principal party." The WITNESS Well, as far as principal parties concerned, a person that possibly Mr. Webster would go to. Trial Examiner SOMERS. Yes, who would they be? The WITNESS: Well, in the door department, you would have Lonnie Robertson, and in the window department you have Bill Schumacher. As far as shipping is concerned, you have Frank Kovach handling the shipping. Trial Examiner SOMERS- What you mean by principal party, is someone who would be looked to to see that things went right in that particular depart- ment? The WITNESS: To an extent. I don't know exactly to what extent, but I imagine what you said is about right. Trial Examiner SOMERS: It would be in order for them to make a complaint concerning the quality of work of an employee or the manner in which their instructions are carried out? The WITNESS. Possibly. Trial Examiner SOMERS: Tell me, Mr. Corson, would the designation "prin- cipal party" that you apply to Lonnie Robertson and Bill Schumacher in the door department and the window department apply to Adrian insofar as oper- ations in the half of the shipping department that he works in the back building is concerned? The WITNESS: To a point I possibly would, yes. Trial Examiner SOMERS. That is the principal party in the sense that you have previously defined it9 * * * * * * * The WITNESS: With this exception, that in the door department we have one person like Lonnie Robertson and that's that. Now in the other department, you possibly have the same situation, but in shipping and receiving we have Frank Kovach, and he [referring to Adrian], possibly either . . . I don't know what you call him, whether he is an assistant . I am explaining what he does, and I don't know what you call him, although we don't have that many titles in our company that we designate "Now, this is your title," or anything else. Mr. Corson reiterated that he reposed complete managerial authority in Webster and that he had "enough confidence in him that if he wants to change the flow of 14 The incident occurred in August 1954, but here again there is no indication that it was other than in connection with the type of responsibility reposed in Adrian from a period well antedating the critical dates here involved 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paper work or give somebody more authority or less authority , I don't question him." Webster never did testify , neither did the three men here involved . But I would deem Corson 's final testimony on the point dispositive . He was asked how Respond- ent applied the provision in its contract with the Shop Committee , executed April 28, that a proposed discharge of an employee would require the approval of the Committee and the "foreman of the shop in which an affected employee works." (General Counsel 's Exhibit No . 3.) Corson explained that "shop " meant department and that "foreman" meant the "leader in each department " or the person whom he previously described as a "principal party." On the basis of all the testimony given, 1 am satisfied that the three in question are "working foremen" 15 who are vested with supervisory functions . They have the duty "responsibility to direct" the operations of the employee under them , to make effective recommendations for hiring, and to cast a vote for management in respect ,of firing. Respondent urges as an offsetting factor testimony by James Grenfell that several months after the occurrences here involved he was put in charge of the night shift of the extrusion department and that in his present job he feels himself equal in authority to Harold Adrian , although he "was never told [he] was a boss ." Since. Grenfell's present status is not in issue, the extent of his authority was not explored or developed . Grenfell may or may not have blossomed into a supervisor,15 but so far as I can discern , his status does not affect that of the three employees here in issue. I find and conclude that at the times herein material Lonnie Robertson, William Schumacher, and Harold Adrian were supervisors within the meaning of Section 2 (11) of the Act The three are thus excluded from the computation , and I find that the number of employees in the unit on April 24 , 27, and 28, was 44. 2. The majority Cards of 40 employees designating the Union as bargaining representative were admitted into evidence upon proper proof of signature . 17 Of these , 35 were signed April 24 or earlier and a 36th signed April 28, by employees who are shown to have been on the payroll the week ending April 28 Thus on April 24 and 27, the Union was designated by 35 and on April 28 , by 36 out of the 44 employees here involved 18 I accordingly find that on April 24, and at all times material thereafter , the Union was designated as collective-bargaining representative by a majority of the employees in the unit here found appropriate. E. Events of April 27 to 29, following receipt of Union's request to bargain In the intervals between the four requests by the Union for recognition described above, the following occurred: 1. Morning of April 27 • Corson's calls to Respondent 's attorney, Supervisor Adrian's conversation with employees Brennan and Grenfell Upon receipt of the Union 's letter the morning of April 27, Corson , president of Respondent, called John E. Swartz, Respondent 's attorney, and informed him about it. According to Corson , he made two calls to Swartz, one before and one after the call he received from Bucher , president of the Union . The subject of the talks 15 Cf Cook Bros Egvipnient Co, 106 _NLRB No 225, and Foremost Dairies, Inc , 106 NLRB No 108 ( not reported in printed volumes of B oard Decisions and Orders) 16It happens that in the extrusion department , Whitney, who runs that department dur- ing the day, also works the first hour and a half of the night shift , during which he or- ganizes the woi k of that depaitnient before Grenfell takes over, and this may be a critical factoi in determining Grenfell's status. "The basis for the admission of the 40 cards is as follows . The authenticity of 23 was not contested by Respondent 9 employees identified their signatures and another testified his card was signed and filled out for him in his pi esence and with his approval ; the authenticity of the signatures on the remaining 7 cards was established by the testimony, which I credit, of a qualified handwriting expert on the basis of a comparison of the signa- tures on the cards with their conceded signatures on other documents , which were used as "standards" Is The i emaining 4, whom I have excluded from this computation, were part of a group of 8 employees lured April 28 but reporting April 29 Insofar as the computation for April 29 may be here material it is found that on April 29 , the Union 's majority was 40 out of a total of 52. BEN CORSON MANUFACTURING CO. 333 according to the fragmentary account given by Corson ,19 related to Corson's con- templated action taken late that afternoon , as detailed below, of assembling the employees and addressing them concerning the matter of their representation, an address which , as later appears, was followed by the employees selecting a new com- mittee with which Respondent made a contract the next day . In his talks with Swartz, Corson after mentioning that he received the Union 's letter, indicated that he was "going to talk to the [employees]," and asked "exactly what . what should I say, and how I should say it." Swartz stated to Corson "it was okay to go ahead and talk to them," and offered Corson the services of Larry Bunin, another attorney. He told Corson "he would get Larry Bunin to come up and draft the papers," and he also offered to arrange to have Bunin attend the meeting that after- noon, in which Corson was to talk to the employees.2e As appears later, when Corson held the meeting of the employees that afternoon , Bunin showed up shortly after Corson began his address . He remained with Corson until the employees, following Corson's talk, reported the selection of a new committee , and the next -day, the 28th, participated with Corson and Vice-President Webster in the negotia- tions of and drafted the contract made with the new committee. During the same morning according to the undenied testimony of employees Brennan and Grenfell, who distributed and collected the union cards among the employees on April 23 , Harold Adrian , who, as previously found, was supervisor in the shipping and receiving department , approached them at their work place and called them aside. He then had the following conversation , as testified to by 'Grenfell: Q. All right. Now, tell us what was said. A. He asked did we know what was going on in the shop , and we said no, we don't know what's going on. Then he said he thinks we do know what's going on in the shop. He said he was upstairs today. He said he knows we have something to do with the organizing of the union . He was positive of this, he said. Q. Well, just tell us what he said. A. He said he was upstairs in the office today, and Mr. Corson asked what did he think of the union , and he said he almost lost his job over asking that question. Q. Over asking that question? A. Yes. Q. You say that Corson asked the question9 A. No. He asked-yes, that's the way it went. Mr. Corson asked him what did he think of the union, and Hank Adrian said that he thought it was a good idea for the men. And then Hank said that he almost lost his job over it. Q. All right. Continue with the conversation. A. He asked is there any way it could be stopped? And we said no, we don't know of no way that it can be stopped . It's already started. The men have already signed the cards, and there's no way at all it can be stopped now. Q. Continue. A. He said he's going to try and break this up, what we 're starting. He said there's no hard feeling between me and him. And I believe that's all he said. Q. Well, see if you can recall whether there was anything else said A. He said that Mr Corson said he would like to-I believe he said he would like to negotiate with us on the matter , and we said we didn't-we don't want to even bother with him. 10 The reference to his talks with Swartz was initiated by Corson , but during question- ing by the General Counsel 's representative for further detail and clarification , Respond. ent's counsel suggested for the first time that this might be entering an area of privileged communication , thereupon , after some discussion , the General Counsel 's representative agreed not to press Corson for further clarification However, in its brief, as during oral argument, Respondent cites Coison 's testimony concerning his calls to Swartz in support of its case 20 Corson was not clear as to how much of this exchange with Attorney Swartz occurred before and how much after Bucher 's call to Coison The inference based upon the prob- abilities is that all of it preceded Bucher's call except that in which Swartz offered to have Bunin present at the meeting of the employees which Corson intended holding that after- noon. The reason is that in the call which Bucher made, Bucher according to his unde- nied testimony, indicated that he had heard that Corson intended to address the em- ployees and warned him against speeches to "captive audiences " The logic of the situa- tion would indicate that it was in the call which Corson made to Swartz thereafter that the latter offered to have Bunin present during Corson 's intended talk to the employees. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brennan testified to substantially similar effect, with the following minor variances. which I accept as against Grenfell 's: Brennan testified that Adrian asked whether they would speak to Corson instead of stating that Corson wanted to talk to them, and that upon their rejection of the proposal Adrian said that "he was going to try and' bust it up, and he hoped there would be no hard feelings." 21 2. Afternoon of April 27: Respondent addresses the employees and they elect a new Shop Committee Respondent held a meeting of its employees the afternoon of the same day, the 27th, at about 4:30, the end of the workday . They were addressed first by Corson, its president, and then by Webster, its vice president, both along similar lines. Corson opened the meeting by stating to the employees that he had not paid much attention to them lately, but that he now wished to know from them what grievances or com- plaints they had 22 Corson then went on to state that many of the employees, espe- cially the new ones, were perhaps unaware that there already existed in the plant a bargaining representative composed of persons from their own ranks in the form of a Shop Committee, and that, as Corson testified, "if they, the employees , had any prob- lems, to take it up with them and the Shop Committee would take it up with the management." He stressed the benefits presently enjoyed by the employees , such as paid vacations and holidays, Blue Cross insurance, and workmen's compensation, and told them that they could decide whether they still wanted the existing Shop Com- mittee or if they were dissatisfied with it, they might select a new Shop Committee but whether they chose the existing Committee or a new one , he would meet with either the next day.23 According to Brennan and Grenfell , Corson also told the employees that Re- spondent was contemplating extending the bonus plan which was then in existence for- the window department to other departments as soon as they had a sufficient history for each. According to Brennan, Corson, in addition, told the employees that up to then the Company did not have enough orders to enable it to give the employees a raise but that now it could do so. Grenfell in his testimony quoted Vice-President Webster as having made a statement concerning Respondent's capacity to raise wages similar to that which Brennan attributed to Corson . Although Corson denied making the bonus statement attributed to him by Brennan and Grenfell and the wage raise statement attributed to him by Brennan, undenied in the record is Grenfell 's testimony attributing to Vice-President Webster the statement concerning its capacity to grant a wage raise 24 Grenfell's undisputed testimony , in view of the manifest purpose- 21 I would not regard the testimony of these employees , concerning any conversation Adrian told them he had with Coison , as competent evidence that such a conversation occurred , and no such finding is made Ebasco Services Incorporated, 107 NLRB 017 The statement is competent as an account of what a supervisor stated to two employees. N. L R B v Chautauqua Hardware Corporation , 192 F. 2d 492 , 494 (C A 2) 22Corson was quoted as making this opening statement by Brennan and Grenfell Cor- son denied that lie made the opening statement The statement fits logically into the framework of what Corson admits he did say and is in accord with Corson's own acknowl- edgement in another context ( supra ), that he had in fact lost in some measure direct con- tact with the men ever since early- 1954 when lie began to be less active in production and personal problems I accordingly credit Brennan and Grenfell's testimony on that item. 21 There is no conflict in the retold concerning the reference to the benefits and Corson's offering to meet with the existing Shop Committee or a new one if they preferred the lat- ter Respondent in its brief asserts that Corson also stated he would meet with an out- side union if that was their choice His own testimony repeated by him several times is to the contrary No witness including Corson indicated that he as much as mentioned, the Union in his talk , and no witness including Corson , attributed to Corson his giving the employees a choice of other than a committee fiom their own tanks, either the existing one or a new one Against the background of the fact that an overwhelming inajoiity of them had joined the Union , his words , as reflected in the vote taken immediately after the- address, were understood to be a proposal of .L choice in lieu of an outside union But, as I find on the basis of the uniform testimony of the point , Corson never mentioned the Union as a possible alternative with which lie would be willing to "meet." Grenfell testified . He [referring to Webster ] said that a few men in the shop have already asked him for an increase He said at the time he couldn't give an increase out to the-he named this one person , particular person that asked for an increase, and he said that BEN CORSON MANUFACTURING CO. 335 and intent of the meeting as hereafter found, and the fact that the testimony possesses the kind of detail which negates the likelihood of fabrication or faulty memory is hereby credited. This leaves for disposition the resolution of the conflict arising out of Corson's denial that he made the bonus statements attributed to him by Brennan and Grenfell and the statement concerning a wage raise attributed to him by Brennan. Although in view of the purpose and intent of this meeting as hereafter found, the probabilities weigh heavily in favor of the Brennan and Grenfell testimony, there is this offsetting factor. Corson, though at times exhibiting a tendency to hold back, and at other times faulty in his recollection, showed the kind of positiveness in respect to these two items which suggests to me that he was guardedly avoiding a flatfooted promise. Respondent's counsel has suggested in his brief, and 1 think with merit, that Brennan (and by the same token Grenfell) may have heard some refreence to the bonus plan as then in existence, and in retrospect, confused it with an assurance which was put into the next day's contract with the new Shop Committee, of a future extension of the current bonus plan. As to the raise, Brennan on cross-examination admitted that in an interview with Respondent's counsel several days before the hearing, he stated he did not remember that Corson in his speech on April 27 promised a wage increase. He explained, and I am sure honestly, that his recollection was clearer on the stand than during the interview. What may have happened is that, in memory, he linked Corson with the remark which, I have found, was made by Webster. Accordingly, although the matter is not free from doubt, I conclude that Corson while acting, as shown by the events considered as a whole, to accomplish a swift defection from the Union, did refrain from expressly promising the bonus and the wage raise and I therefore credit his denial. The proceedings above lasted about a half hour. After the speeches, Corson and Webster retired to Corson's office They were accompanied by Attorney Bunin who, as previously noted, arrived at the meeting shortly after Corson began his talk. There the three waited for word from the employees, and a half hour later, four employees entered, reporting they were selected as a new committee. Described below are the deliberations leading up to that event. When Corson, Webster, and Bunin left the room, several employees left for home. Those who remained took a vote in writing. The writing consisted of the words "Yes" or "No" on blank pieces of paper. There is a slight variance concerning the precise subject about which the employees thus voted. Jones testified that "it was to decide whether or not the fellows want to have a group within the Company, them- selves, or whether or not they wanted to accept an outside Union," while Brennan testified that the vote was on whether to take "Mr Corson's agreement or the outside Union," with "No" in each case symbolizing the Union. Despite, the variance between Jones and Brennan concerning what "Yes" signified, I find there is no con- flict between them in fact, and that in the minds of the employees the Committee and the agreement stood for the same thing. Jones, in answers to questioning seeking to elicit a reconciliation between the subject of the vote as he described it and Corson's statement giving the employees the choice of only the existing committee or a new committee, was far from clear, but his testimony does indicate that while Corson did not mention the Union, what the employees apparently understood to have been proposed to them was a substitute for the Union. Asked specifically how he came to address himself to the issue of whether the fellows wanted to be represented by a committee or an outside union, Jones answered: I think I said before that I had-I knew myself-that there was an issue at hand, because of the fact that I had heard rumors of an outside union-I had seen representatives of an outside union in front of the premises-and I felt that from all hearsay that that is what we actually would have to get straightened- if we were going along in accord Jr. 166). Brennan's explanation for his concept of what the employees voted on was as follows: Q. Now, you have just used in your answer the words "Corson's agreement." Was there anything in Corson's speech concerning an agreement? A. Yes there was. lie's a good worker and everything, and he should get it He said, "But at the time I couldn't give him an increase." TRIAL ExnniiNER: That is Webster talking? The WITNESS Yes And he said business has been slow for-oh, lately, and he said they first lowered the price of the windows and they have a lot more business now, and things are mov- ing faster and better. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. What was that? A. When he called back and said he would meet with the committee we had picked, and he would come to an agreement with them the following day Although the foregoing is undenied, I have had a little difficulty determining from the tense used by the witness ("committee we had picked") whether he is referring to something Corson said before the vote was taken or to a statement made by him after the selection was made. When I heard the witness, 1 thought he was referring to the former, and considering his testimony as a whole, I still do. How- ever, despite this testimony, I do not think that Corson uttered an explicit promise that he would make a contract with them the next day. But I am satisfied in the light of later events and the record as a whole that that is how they understood him and he intended that he be understood. I find that the employees understood Corson's proposal to "meet" as being one to make a contract with a committee of their own selection, and that the term "Yes" as used in the vote connoted to them, interchangeably, "Corson's agreement" as the ultimate and a new committee as the vehicle for obtaining it 25 A majority voted "Yes," but while Jones testified it was by a 38 to 13, Brennan testified it was by a 17 to 15 margin. The only importance in this variance is that on the next day, as I find, there was a second "Yes" or "No" vote on whether to accept, not Corson's agreement as promised on the 27th, but an actual one with the committee selected on the 27th and that on this second poll "Yes" was the victor by a margin of 38 to 13. Jones evidently confused the vote on the 27th with the one taken on the 28th (indeed he testified, mistakenly as I find, that there was no vote other than that taken on the 27th). But, on the 27th, several employees, as I have noted, had left the meeting after Corson, Webster, and Bunin retired and before the vote was taken; in view of the size of the unit, a 38 to 13 would be unexplainably disproportionate to the number of those remaining I accordingly credit Brennan's testimony that the vote taken on the 27th was 17 to 15 in favor of "Yes." Immediately after this vote, the employees selected a new Shop Committee. The new Shop Committee paralleled the old in its informal character, but it differed from the old Committee in that instead of 3, it had 4 members, and instead of the members being selected by the employees at large, each member was selected from I of the 4 production departments; 26 finally, the chairman of the Shop Committee instead of being chosen by the employees directly was selected by the other members of the Committee. Respondent has contended from the outset that this was a continuation of the Committee formed in 1951. In many ways it had the aspect of successorship to the old, but as a group devoid of any bylaws, charter, officers, employee member- ship body, treasury, or records, it is difficult to see how the old could have existence as an entity apart from the group of members who had composed it. Particularly is this so when the new organization has a different structure as well as a completely different composition from the old. As far as I could see, no witness in testifying to it on his own referred to the new group as other than the "new committee." 27 25 It does not appear that the committee theretofore in existence was discussed or con- sidered among the employees and I find it was not 201 a the extrusion, anodizing, window, and door departments The record is silent as to what provision was made for the receiving and shipping department. 2-, Jones ("new body," "new Shop Committee") , Brennan (". have the old com- mittee, . or elect a new committee") , Grenfell ("Mr Corson already explained that if we want a new group, it's completely lip to the men if they want to form a new group to represent them") ; Corson ("and I told them that if they felt as though they were not satisfied with the existing committee, that they go ahead and select a new committee to represent them") So far as I could observe, the only one who invoked the concept of "new members" for the old committee as opposed to a new committee would appear to have been Respondent's counsel in questions which lie put to two witnesses on cross-examina- tion, namely Jones and Grenfell It is apparent to me that these witnesses in answering in the affirmative to the question put to them thought that they were merely confirming their prior testimony in which they iefeired to the committee alternately as a "new body" or a "new group " The distinction must have escaped the witnesses as, indeed, it escaped me at the time the questions were put. This is quite manifest, for example, from Gren- fell's answer to Respondent's counsel's question as follows : Q. To refresh your recollection, isn't what really happened is that Mr. Corson asked whether the men, because there were new employees, might not feel that the BEN CORSON MANUFACTURING CO. 337 Moreover, to say that the new group constituted the old Committee is to ignore the dynamics of the occasion. The Union 's letter betokened a desire for change on the part of the employees from their previous kind of representation . Corson had to reckon with that desire for a change if he was to succeed in his purpose , which I find existed, of having the employees embrace a committee type of representation. To satisfy that desire , the logic of the situation would call for his offering the em- ployees the alternative of a new committee , completely severed from the old. As noted previously, the old Committee, so far as appears, had not even been discussed or considered in their deliberations. I accordingly find that with the selection of the Committee of 4, the 1951 Shop Committee of 3 went out of existence and in its place emerged a new labor organiza- tion likewise called the Shop Committee , but hereafter sometimes identified as the "new committee" or "the committee of 4." The vote thus being taken , the Committee of 4 within about a half hour after the retirement of the 2 management officials and the attorney from the room, pro- ceeded to Corson's office and there reported to them the fact of their selection. Corson told the four employees that contract negotiations would take place the next morning. 3. The contract of April 28 ; Corson's second address to the men and the vote which followed; the countersigning of the contract by the individual employees on the morning of the 29th The morning of April 28 , the new Shop Committee met with Corson , Webster, and Attorney Bunin. The meeting proceeded for several hours, and by the after- noon of that day, Bunin had prepared a draft of the contract in longhand. The draft was then signed by the four members of the Committee and by Corson in be- half of Respondent. Apparently there was still confusion concerning its terms, be- cause that afternoon , toward the end of the workday, the employees were again called together for a meeting and again they were addressed by Corson . Corson informed the employees that they had selected a new Committee the night before and that management had this day negotiated a contract with it, the terms of which he either read or recited to them. The contract contained new benefits in the form of ( 1) a wage increase on a graduated scale, and ( 2) a provision for the extension to the other departments of the bonus already in existence for the window department when sufficient history was accumulated for each department. After Corson thus explained the contract and its terms to the employees , at his suggestion, the employees voted on whether to accept the agreement or "stick to the outside union." 28 As with the vote of the night before, blank strips of paper were passed around among the employees on which they were to indicate their choice by writing "Yes" or "No," depending on whether they accepted the agreement or rejected it as signifying their adherence to the Union. The result was a 38 to 13 majority for "Yes." 29 The next morning, the 29th, Attorney Bunin had the agreement, previously prepared and signed in longhand , reduced to typewriting in its present form. Thereupon it was signed by Respondent and the committee of 4, after which new employees were not familiar with the existing members of the committee, and that he therefore suggested that maybe they might want to elect new members for the same committee A I said that in my statement. 28 Here, too, the management officials left the room when the vote was taken Super- visor Adrian 's participation in it is related later. 20 As noted , it was this second ballot taken the 28th, which Jones apparently confused with the vote taken the 27th Brennan was present at both ballotings and quite clearly described the diffeience in the manner, the occasion, and the result of the balloting on the 28th from that on the 27th Grenfell left before the balloting occurred on the 27th but he did participate in the balloting of the 28th He corroborated Brennan on every aspect of it , including a detail which distinguished it from that of the 27th ( such as the fact that in this vote the men lett the loom to mark their ballots and dropped them into a box) I previously noted that a 38 to 13 tally on the 27th would in any event have been quite out of keeping with the number of persons then present, since several employees had left before the balloting took place On the other hand , it does not appear that any em- ployees left before the voting on the 28th, and while a 38 to 13 tally still reflects a total slightly in excess of the size of the unit , it was a more likely result on the 28th than the 27th Further supporting the Brennan and Grenfell version is that on the next morning when the contract was circulated among the employees the number of employees who signed was 38, which corresponds with the "Yes" vote of the 28th. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was circulated for signature among the employees, 38 of whom-a number cor- responding to the "Yes" vote of the night before-signed the agreement. 4. The activities of Harold Adrian Adrian's conversation with Brennan and Grenfell on the morning of April 27, culminating in his statement that he would try to "bust up " the Union has heretofore been related. The afternoon of the 27th he remained with the employees after Corson had left and was present at the voting and the deliberations culminating in the selection of the new committee . The record is silent on whether he voted. In the vote taken the next day the 28th, he distributed and counted the ballots , and announced the result. On the evening of the same day, the 28th, he attended a scheduled union meeting which had been announced by the Union on the 24th ( the same day on which the Union had sent its letter requesting recognition ) and remained there for a brief time until objection was taken , shortly before the formal commencement of the meeting, to his presence there because of his supervisory status.30 The following morning, the 29th, he participated in the circulation of the contract for signature among the employees.31 Concluding Findings The essence of the events thus reviewed is that on the day it received a request to bargain from the Union , the designated majority representative of its employees, Respondent without challenging the Union 's majority, proposed to its employees that they bargain through a committee from their own ranks, either the one already existing, called the Shop Committee, or a new one as they might select, offering as an inducement an immediate meeting with that committee ( which in context meant an immediate contract ) and the prospect of a raise , and the next day made a con- tract with a committee chosen by the employees in response to and immediately after Respondent 's proposal. The foregoing appears to me to be decisive of whether Respondent violated Section 8 (a) (1) (2) and (5) of the Act, and I would conclude that the answer on each score is in the affirmative . This conduct, independently of other aspects which support the conclusion here reached , adds up to an employer 's dishonoring his obligation under Section 8 (a) (5) of the Act to bargain with a majority repre- sentative on request , interfering with the free exercise by the employees of the rights vouchsafed them by statute, in violation of Section 8 (a) (1) and assisting the Committee in violation of Section 8 (a) (2).32 Respondent, insisting that there was "at most" here only a "technical violation" of the Act, urges that I go no further than to find a violation of Section 8 (a) (1) of the Act, and the latter only on the theory that perhaps it violated its obligation of neutrality in contracting with the Shop Committee in the face of, as it put it, a "q. c. r." (the symbol in labor parlance for a question concerning representation with- in the meaning of Section 9 (c) ), which it admits existed on the strength of the Union's bargaining request, buttressed as it was by the cards in its possession and a representation petition on file with the Board.33 ii The objection was made to the union president by Brennan , with whom Adrian had the conversation the day before When the union president asked Adrian his position he acknowledged his foreman's status, whereupon lie was told he was ineligible to be a mem- ber and was requested to leave the meeting hall ii Also, the General Counsel , to support an allegation of surveillance , presented evidence that on the evening of August 26, 1954 , when the Union was trying to hold a meeting as previously announced , Adrian was seen observing union headquarters for about 11/ hours from a point opposite headquarters This occurience is divorced from the main stream of events, and lacks both the kind of detail and contest which, in my opinion, would warrant the inference sought I accordingly attach no significance to it and will dismiss the allega- tion of the complaint , as amended , based upon this incident -12 1 defer the question of whether there was also domination to a later portion of the report ^ This concession made during oral argument and in the brief was based upon the obli- gation of employer to refrain from recognizing either of two competing unions pending a representation proceeding , under the doctrine of the Midwest Piping case , 63 NLRB 1060 . Respondent has interveningly written to nie citing the Board 's recent decision in TVilliami D. Gibson Co , Disision of Associated Spring Corporation, 110 NLRB 660 , limit- ing the Midwest Piping doctrine This I assume is intended to do away with its prior concession . If so , Respondent has, in niy opinion , misread the Gibson case. The Gibson case exempts from the scope of Midwest, a contract made by an employer during a repre- BEN CORSON MANUFACTURING CO. 339 However, in so contending, respondent overlooks among other vital aspects of this case, the fact that the Union with which it concededly refused to bargain was desig- nated as representative by a majority of its employees in the appropriate unit, and that its conduct was in derogation of [its] obligation to bargain on request with a majority representative. Underlying Respondent's position as a whole is a depreca- tion of the union authorization cards as an adequate basis on which to predicate an obligation on its part to honor the Union's bargaining request and a corresponding finding of an 8 (a ) (5) violation based on its refusal to honor it. This view is op- posed by a uniform line of authority upholding the adequacy and propriety of author- ization cards as a basis for predicating a majority finding. N. L. R. B. v. Harry Ep- stein, et al., 203 F. 2d 482, 484 (C. A. 3), and cases cited in footnote 3 of Brown Truck and Trailer Manufacturing Company, Inc., et al, 106 NLRB 999; N. L. R. B. v. Stow Mfg. Co., 217 F. 2d 900 (C. A. 2) (opinion by L. Hand); N. L. R. B. v. Stewart Oil Co., 207 F. 2d 8, 13 (C. A. 5); N. L. R. B. v. Southeastern Rubber Mfg. Co., Inc., 213 F. 2d 11, 15 (C. A. 5).34 Respondent contends that its position is well taken at least where, as Respondent's President Corson testified, Respondent, when it received Union's bargaining request, did not know or did not possess information from which it could determine the truth of the Union's assertion of a majority. This contention ignores certain well-estab- lished principles concerning the obligation of an employer when bargaining is re- quested by a representative whose claim is supported by cards signed by a clear majority of the employees affected. Contrary to Respondent's position, an employer has the obligation to honor that request unless he in good faith doubts its majority. Joy Silk Mills v. N. L. R. B., 185 F. 2d 732, 741 (C. A., D. C.) cert. denied 341 U. S. 914; N. L. R. B. v. Inter-City Advertising Co., 190 F. 2d 420, 421 (C. A. 4); N. L. R. B. v. W. T. Grant, 199 F. 2d 711, 712 (Q. A. 9) cert. denied 344 U. S. 928; N. L. R. B. v. Howell Chevrolet Co., 204 F. 2d 79, 86 (C. A. 9) 346 U. S. 482; N. L. R. B. v. Stewart Oil Co., 207 F. 2d 8, 11 (C. A. 3); N. L. R. B. v. Stow Mfg. Co., supra. If he is thus in doubt, he is, for the time, sheltered from liability for withholding recognition until this doubt is dispelled either by a showing of cards or, if he insists, by a Board election (ibid.). But an employer is thus sheltered only as an incident of resolving a genuine doubt; where, on all the evidence his refusal to bargain is disclosed not to stem from a good-faith doubt concerning the Union's majority, the employer has subjected himself to liability under Section 8 (a) (5) (ibid.); also N. L R. B. v. Harry Epstein, et al., 203 F. 2d 482, 484 (C. A. 3); N. L. R. B v. Samuel F. Kobritz, 193 F. 2d. 8, 14 (C. A. 1). Respondent in its brief claims it acted as it did only to resolve a doubt based on what it claims to be a "rival union" situation, arising from the existence of the Shop Committee. In so contending, Respondent has departed somewhat from its position taken during oral argument and as recited in its answer. In its answer, Respondent frankly acknowledged its refusal to bargain with the Union, but justified it solely on the ground that the Union was not the majority representative and the Shop Com- sentation proceeding with an "incumbent" organization. As I read that case and the re- lated case of William Penn Broadcasting Co , 93 NLRB 1104, of which Gibson is an ex- tension, an "incumbent" union, as there referred to, is one with which the employer has an existing contractual relationship at the time of the new contract, the justification for this special exemption being, as the Board expressed it, that "stability in industrial rela- tions, the primary objective of the Act, requires that continuity in collective-bargaining agreements be encouraged even though a rival union is seeking to displace an incumbent." Here the contract of April 28 was not made with an "incumbent" but with an organiza- tion which, as I have found, came into being the day before And even if, contrary to my finding, this committee be deemed a continuation of the Shop Committee formed in 1951, neither was the latter an incumbent ; it had no existing contractual relation with Re- spondent on April 28, or indeed, ever, for even the contract which expired in 1952 was not with the Committee but the individual employees. ^ In Southeastern, the court reaffirmed the propiiety of a finding of majority based on union cards, in a case where Chairman Fainter filed a dissent similar to that in Brown Truck, on which Respondent relies and which he urges me to adopt. Apart from the fact that I am bound by the Board's majority ruling, I would not see much comfort for Re- spondent in the Chairman's dissent either in Brown Truck or Southeastern Rubber, 1.,r as I read his opinion in these cases, while challenging the wisdom of the "routine" use of caids, he indicated lie did not oppose their use where an employer "has in an effort to avoid his obligations under the statute, engaged in unlawful conduct dissipating the union's membership and making it impossible to hold a free and uncoerced election," which, as I later conclude, is the case here 369028-56-vol 112 23 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee was. During oral argument this position was explained on the theory that Respondent had "no burden . . . to make the inquiry" and that as long as "there- were no facts" brought to its attention "to indicate that the Charging Union repre- sented a majority," and the Union did not initiate the offer to prove its majority,. Respondent was entirely free to ignore the request Apart from its being refuted in point of fact by the Union's filing of a 9 (c) petition, this contention would seem to me contrary to what the sense of the situation would require, for until the em- ployer makes known the basis of its objection to granting recognition as requested, the Union is in no position to seek to overcome it. Such a contention has not been given a sympathetic reception in the courts.35 Respondent has now apparently slackened its stark emphasis on that position and, as indicated, now asserts that it had a genuine doubt concerning the Union's majority because of its prior dealing since 1951 with the Shop Committee, and that its action was calculated to resolve the doubt. It asserts in its brief that Corson, its president„ pursued the "practical," "business like," and "fair" course of first consulting his attorney and getting his "okay" to talk to the employees, then referring the Union to his attorney, then assembling the employees and offering them, on April 27, three' alternatives (with any of which he said Respondent would bargain) of the existing Shop Committee, "new members" of that Shop Committee and even the "outside union" and, finally making a contract the next morning "with the group selected by [its] employees." "The foregoing," asserts Respondent, "is not the portrait of a man who in bad faith refuses to bargain " It is somewhat beside the point that I cannot accept the Respondent's appraisal, since the performance of April 27 was hardly calculated to elicit the employees' untrammeled sentiments, and, as I find below, under the circumstances of this case, was an unfair labor practice in itself, my difficulty with the portrait is in recognizing the Respondent as its subject Superimposed upon it is the feature, alien to the, record, which credits Respondent with having offered the employees on April 27, the choice of an outside union, with which it indicated it would bargain As I have found, nothing in Corson's speech either as testified to by himself or by the other witnesses suggests that he gave them a choice of other than the existing Shop Com- mittee or a new Committee as a selection which he would recognize The balloting which followed Corson's speech was on whether to adopt a new Committee or be represented by an outside union, but this, as I have found, only reflected the em- ployees understanding that what they were being offered was a substitute for the- Union, not an alternative choice offered them While Corson did not mention the Union, his proposal to them of committee representation under the inducement of an immediate contract, with a promise made by Webster of a raise, was what they manifestly understood to be in displacement of the Union, and that is what would seem to account for some employees understanding the choice, as Brennan described it, to be between "Corson's contract" and the outside Union. That Respondent should now claim that Respondent offered them the choice of an outside union with which it would be willing to deal, would suggest to me a somewhat belated realiza- tion that the absence of that feature is fatal even on its own appraisal to Respondent's self-portrait of an employer acting in good faith to resolve a doubt. But while it is not this alone which impugns the Respondent's claim of good faith, it does fuinish the key to Respondent's motivation The events here under review, taken as a whole, would seem to me to leave little room for a belief that Respondent in refus- ing to bargain with the Union, was motivated by any doubt concerning its majority assertion; rather would it appear to have been motivated by a purpose to bring about a swift reversion to the committee form of representation, regardless of what might be the truth or untruth of the Union's assertion On the record as a whole and as I heard and observed Corson, T cannot credit the assertion that Corson was under any illusion of a "rival claim" to recognition by the Shop Committee. The It is a bargaining representative's duty when an employer in good faith ques- tions its nia)oiitl status to offei and it is the employee's duty to accept some reasonable method foi ascertaining the tiuth of the representative's claim," N L R B v New Era, Die Co , 118 F 2d 300. 30-1 (C A 3) [Emphasis supplied 1 To the same effect Al L R R v Remington Rand, lilt, 94 F 2d 862, 869 (C A 2) cert denied 304 U S 576 "The [employer] made no effoi t to learn the facts and took the chance of what they might be " N T, R I3 v Motoi ola, lee, 199 F 2d 82, 83 (C A 9) cert denied 344 U S 912, " if the Company doubted the majority of the Union on July 10, Noble failed to, say so, ' N. L R B N, Samuel J Kobiitz, 193 F 2d 8, 14 (C A 1), "It does not appear that Kobritz coupled his refusal to bargain with the expiession of a doubt as to, the Union s majority, and the lioaid aas warianted in finding that Kobritz had no bone fide doubt on this score." BEN CORSON MANUFACTURING CO. 341 Union and only the Union was asking for contract negotiations and, so far as the record shows, the Committee was asking nothing of him; there was no reasonable prospect that it would; Unile, its chairman had himself signed up with the Union. Corson's offering the employees the choice of a new Committee confirms the infer- ence that he was not acting out of any concern for the "rival" status of the old committee but out of a motive to bring the employees back to the prior kind of representation. I would suppose that the fact that Respondent never expressed a doubt concerning the Union's majority or challenged the Union's majority would, on the sheer strength of the probabilities, alone prevent me from finding that Respondent was motivated by any doubt of the kind it now claims, but if despite this I could conscientiously entertain such a belief, it could hardly withstand the compelling evidence to the contrary presented by the affirmative course of action which Respondent pursued.35 Regrettably, the entire journey traveled by Respondent from the time it received the Union's request to the time it made the contract with the Commitee would seem to have had as its goal the dissipation of the Union's majority and the entrenchment of a committee form of representation, with every milepost in the journey apparently bringing it nearer to the goal and also constituting an unfair labor practice in itself. These included (1) the proposal to the employees on Apiil 27 for the selection of a Shop Committee with promise of an immediate meeting or contract and of a raise, (2) the election held immediately after the proposal, which though not ex- pressly suggested by Corson and held after the retirement of Respondent's officials from the room, was the intended purpose and result of Corson's address (as would seem manifest from the address itself, Corson's waiting for the verdict in his office and the new Committee reporting to him as soon as the vote was over) and was an integral part of the plan to supplant the Union with a committee of its employees, 37 and (3) the swift negotiation and completion of a contract with the newly chosen com- mittee. These acts, I find, singly and in combination were in repudiation of Re- spondent's obligation under Section 8 (a) (5) of the Act, and since they tended to hamper the employees in making a free selection as vouchsafed them under the statute, they also constituted acts of interference with, restraint, and coercion of the employees in the exercise of their lights in violation of Section 8 (a) (1) of the Act. What I here conclude in regard to the events up to the making of the contract would seem likewise to pertain to its sequel, in which Respondent sought ratification of the contract by the individual employees on the strength of the economic benefits which it conferred. The suggestion to the employees of a vote on whether to accept the contract and the vote which immediately ensued on whether to accept the contract or "stick to the Union," an alternative which could only be embraced by forfeiting the benefits embodied in the contract, were like the election of the 27th, an integral part of the plan to consummate the displacement of the Union, and thereby invaded the employees' rights in violation of Section 8 (a) (1) of the Act. The road thus traveled, as I read the record and as I heard Corson, began even earlier than at the meeting with the employees on April 27. It starts at the very point which Respondent cites as a circumstance to buttress Respondent's claim of good faith-Corson's calls to Attorney Swartz and his referral of Bucher to Swartz. Respondent has characterized these as the acts of a man who, being in doubt about the Union's majority, has turned the situation over to his attorney for handling. But Swartz did not handle the situation any more than to arrange for the services of Attorney Bunin. Judging from Corson's dominant role in the events narrated, it was not Swartz but Corson who was running the show. Corson's call to Swartz in which he testified he "told [Swartz] that Lhe] would like to explain certain things to my people, and exactly . what should I say and how I should say it," taken in the light of what Corson said and did thereafter, does not impress me as that of a 36 As the Board put it in a related situation Spitzer Motor Sales, Iitc, 102 NLRB 437, 450. enfd 211 F 2d 235 (C A 2) It is true that an employer who refuses recognition to a majority union because of a good-faith doubt as to its major ity status normally is not guilty of a violation of Section 8 (a) (5) of the Act And it is also true that the presence of one or more rival claims can reasonably contribute to an employer's doubt and hence can be con- sidered bi the Board in neighing the employee's motive Indeed, in the ordinary case the employer who is confronted with claims by rival oiganizations is under a duty not to recognise one of them until the Board has resolved the question concerning repre- sentation However, the facts of this case lead us to agree . . that Respondent entertained no good-faith doubt as to the [charging union's] majority, and to find that the principle just referred to is not applicable here See Oliver Machinery Corp, 102 NLRB 822, 824, enfd. 210 F. 2d 946 (C. A. 6). 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD man vesting the handling of the situation in counsel. The words and conduct would seem to be less that of a man seeking to ascertain the facts than to control them; and Swartz' reply to Corson that he would get Larry Bunin "to come up and draft the papers" derives meaning, as far as I can discern, only in the light of the papers which Bunin did draft-the contract with the Committee . This would tend to indi- cate to me at least that at that moment, Corson had already laid his plans for consum- mating a contract with a committee of his employees in the face of the Union's claim for recognition . Thus, when he referred Union President Bucher to Swartz, giving as the reason that he did not "handle " a matter which , so far as the record reveals, he would appear to have been handling in fact, he could have had no reasonable expectation that Swartz , knowing what Corson was already planning , would give Bucher's bargaining request, made the next day , any more attention than he did. I would infer this from the further fact that Corson as he admitted , never followed up to inquire from Swartz whether he had heard from Bucher . And when Bucher called Swartz on the 28th , Corson, assisted by Swartz' emissary Bunin, was already engaged in contract negotiations with the Committee . Corson's referral of Bucher to Swartz on the pretext he gave, with no reasonable expectation or intention that Swartz would give the matter any attention, and with plans already made to dissipate the Union's majority, was , in actual intent, a summary dismissal of Bucher, which in itself was a refusal to bargain in violation of Section 8 (a) (5) of the Act, a refusal continued and repeated as I have found above, by the course of conduct which ensued. By way of final suggestion , Respondent in its brief, as a variant of its position concerning the union cards as a gauge of employee sentiment, urges that since the Union filed a representation petition , the Union should have awaited the outcome of the Board's election and that it should be obliged to do so now. Had the Re- spondent instead of pursuing the course it did, followed the counsel which it now urges, this controversy might not have come into being . The Board has put it a bit more bluntly: 38 The argument [somewhat related to the contention here] comes with ill grace from an employer which deliberately engaged in unfair labor practices to make the holding of a fair election impossible. The difficulty with Respondent's suggestion is that the unfair labor practices engaged in by Respondent have this dual effect: (1) They furnish , as before indicated, the basis for the conclusion here reached and which the authorities here cited hold to be justified in these circumstances , that Respondent neither entertained nor was moti- vated by any genuine doubt of the Union 's majority which it is entitled to resolve by an election ; and (2 ) they defeat the right to an election which a doubt , if any existed in fact, would otherwise have given it; the contention that an election is a truer gauge of employee sentiment is sound only as long as the measuring capacities of the elec- tion machinery are not impaired by unfair labor practices . The Respondent by its unlawful acts climaxed by the displacement of the Union with the Committee has done injury to the efficacy of the machinery, which it now belatedly applauds , and has reduced it to a less, not a more, reliable gauge of employee sentiment than the cards, which the employees signed before Respondent intruded itself into the picture. Re- spondent , by its conduct, has thus made necessary the use of the cards, which it now deplores; having destroyed the utility of what it urges as best, it must accept what has been recognized to be good and adequate . N. L. R. B. v. Southeastern Rubber Mfg. Co., Inc., supra, at p. 15; N. L. R. B. v. Samuel J. Kobritz, supra, at p. 14; Joy Silk Mills v. N. L. R. B., supra, at p. 741 ; N. L. R. B. v. Inter-City Advertising Co., supra, at p. 421; N. L. R. B. v. Howell Chevrolet Co., supra, at p. 86; N. L. R. B. v. Stewart Oil Co., supra, at p. 13; N. L. R. B. v. Stow Mfg. Co., supra.39 I also find Respondent to have interfered with the employees ' rights in violation of Section 8 (a) (1) by Supervisor Adrian's questioning of employees Brennan and Gren- fell on the morning of April 27 concerning their role in the Union and soliciting them to abandon the Union and confer privately with Corson . Taken in connection with his statement that he was going to "bust up " the Union and Respondent 's own course of conduct calculated to destroy the Union 's majority, Adrian's statement to the em- ployees would reasonably tend to restrain them in the free pursuit of their rights guaranteed under the statute. It is against that background that I must also appraise the significance of Adrian 's attendance, uninvited as far as the record shows, at the Spitzer Motor Sales, 102 NLRB 437, 451-452, enfd . 211 F 2d 235 (C. A 2). z" Since the Union filed its charge of unfair labor practices shortly after the illegal con- duct and withdrew its representation petition prior to a Board election, it exercised a valid option within the principle recently enunciated by the Board in Aiello Dairy Farms, 110 NLRB 1365. BEN CORSON MANUFACTURING CO. 343 scheduled meeting of the Union on April 28. Taken alone, I would attach no weight to it and would make the same disposition of it as 1 have in respect to the allegation based upon his activities of August 26. But cast against the background of his avowed purpose to "bust up" the Union and Respondent's own course of action, his uninvited presence there for which no explanation was forthcoming, as I conclude, would reasonably tend to restrain the employees in their deliberations and the free exercise of their rights.40 I have heretofore found that Respondent's course of action calculated to supplant the Union with the Shop Committee, including the execution of the contract with it, constituted support and assistance to it in violation of Section 8 (a) (2) of the Act. There remains only for consideration whether Respondent's action in respect to the Committee "exceeded the bounds of interference and support, and constituted domination of the . . . Committee, as well." The Carpenter Steel Co., 76 NLRB 670, 673. The cases have dealt with specific hallmarks of domination, rationale being implicit rather than expressed. As I view it, the concept is a practical one and involves an inquiry as to whether the organization is capable of standing on an in- dependent footing and performing its function as a bargaining representative in fact. This, in turn involves consideration of the underlying purpose of the prohibitions of Section 8 (a) (2). Its wording and its logical place in the scheme of the Act would indicate that the objective was to vouchsafe to the employees that in the bargaining relationship those purporting to act for them not be rendered so subject to employer control or dependent upon employer favor as to tend to deprive them of the will and the capacity to give their devotion to the interests of the group they represent. Judge Learned Hand writing for a unanimous court in N. L. R. B. v. Stow Manu- facturing Co , Inc., supra, gave the following rationalization for the proscription against employer domination in the statute: Although one may indeed be said to "dominate" another by the force of his superior intelligence, or, more vaguely, of his generally coercive personality, the Act does not of course include that. But collective bargaining is an activity, pre- supposing that the employees shall have opportunity in the absence of the em- ployer to canvass their grievances, formulate their demands in common, and instruct and advocate whom they believe will best press their suit. It is one thing to speak collectively through one who urges claims of which he is not the author, and for presenting which he is not so likely to be made the object of reprisal; it is another to rise in a gathering, not unlike a town meeting, and argue claims of one's own devising, or even those of the group as a whole. The Act took over trade unionism as it has developed; it presupposed a champion chosen by one faction to a controversy, and charged with the duty of securing victory. Perhaps that may be a mistaken way to promote industrial peace; but with that we have nothing to do. The language used by Parker, C. J., as to the selection of such an advocate T applies as well to collective bargaining without any ad- vocate: "Collective bargaining becomes a delusion and a snare if the employer, either directly or indirectly, is allowed to sit on both sides of the bargaining table; and, with the great advantage that he holds as the master of pay and pro- motions, he will be on both sides of the table if he is allowed to take any part whatever in the choice of bargaining representatives by the employees. * American Enka Corp v. National Labor Relations Board, 119 Fed. (2) 60, 62, 63 (C A.4). As long as two groups sitting opposite each other at the bargaining table are ad- verse in economic interest, it is potentially possible for one no matter how much weaker to persuade the stronger in some slight measure to its position. Hence, even where domination exists in fact, the employer seldom does in the absolute sense of the term "sit on both sides of the bargaining table." I would thus read Judge Parker's expression in American Enka adopted above as less descriptive of the physical reality than expressive of a standard or measuring rod by which to judge the character of an organization. Where the effect of the forbidden conduct, taken as a whole, tends to 90 The General Counsel alleges that Adrian's conduct was an act of surveillance It is true that Adrian's coming to the meeting on the heels of an expressed resolve to break up the Union and in the face of the frank avowal of his supervisory status (which could hardly have left him under an illusion that he belonged at the meeting) would seem to leave an open question as to his purpose Nevertheless, in the absence of evidence con- cerning his behavior during his very brief stay at the meeting hall which was terminated before the meeting actually began, I would, in my opinion, not be warranted in drawing the inference that Adrian was engaged in surveillance. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make the employer's role so overpowering as to render the bargaining relationship, though bilateral in form, preponderantly one sided in fact, the labor organization would seem to answer to the description of being "dominated." In the administration of the Act prior to 1947, the Board applied to organizations having national affiliation the concept of assistance and support short of domination, of which it then took cognizance as an act of interference in violation of only old Section 8 (1) not 8 (2).41 In such a case the employer was not required to "disestablish" the assisted organiza- tion but merely withdraw recognition from it until it was certified in a representation proceeding (a prerequisite to which was generally the cessation of the assistance and the removal of its effect). In respect to unaffiliated organizations, the Board gen- erally did not draw such a distinction, and where such an organization was found to be illegally assisted or supported, it was by that token also found "dominated," on the theory that assistance once given to such an organization left it too supine to func- tion effectively and, in addition, stamped it so indelibly in the minds of the employees as a symbol of employer favor as to hamper their freedom of choice while it remained in competition with other groups vying for employee selection Underlying this was the view expressed in an early annual report of the Board 42 that "as the natural re- sult of the employer's economic favor, employees are alertly responsive to the slight- est suggestion of the employer," with the corollary that they were incapable of shak- ing off the effects of even mere "intimations of an employer's preference." 43 The foregoing view underwent revision in the light of economic realities. By August 26, 1946, the Board invoked in favor of an unaffiliated organization the dis- tinction, which it theretofore applied to affiliated groups, between domination and mere assistance, finding the latter to offend only the 8 (1) provision against interfer- ence and to warrant mere temporary withdrawal of recognition 44 However, it was not until after the amendments of 1947, that the Board, in connection with giving effect to the command of the amended statute to apply the same standards to unaffiliated as to affiliated organizations in administering Section 8 (a) (2), expressly recognized that organizations, affiliated or unaffiliated alike, can be assisted and supported in violation of Section 8 (a) (2) (not merely Section 8 (a) (1)) and still be capable of functioning independently after the effects of the assistance were removed. Accordingly, in the companion cases of The Carpenter Steel Co., supra, and Hershey Metal Products Col 76 NLRB 695, the Board, in find- ing that Section 8 (a) (2) had been violated in both cases, invoked the distinc- tion (applicable to both kinds of organizations) between "domination" which would warrant "disestablishment" or permanent withdrawal of recognition, and mere illegal assistance and support, which would warrant temporary withdrawal of recognition until cessation of and the removal of the effects of the favor illegally bestowed The basic criterion for the latter would seem to be whether despite the illegal assistance thus given, the organization is shown to have an inde- pendent origin, life, and functioning of its own, apart from any advantage it may have derived from the assistance wrongfully given it Such, at least, would appear to have been the touchstone applied by the Board in the Hershey case. There the Board noted particular acts of assistance which the employer rendered to an unaffiliated organization (called the employees' committee), such as allowing organization on company time and premises, making available payroll lists to facilitate a petition against the incumbent, and the grant of general payroll increases. Nevertheless, it reversed the finding of the Trial Examiner that the employer dominated the com- mittee, with this explanation (p 696). We do not agree, however, that the respondents' conduct amounted to domina- tion of the Employees Committee within the meaning of Section 8 (2). Indeed, the record affirmatively shows that, although the Employees Committee ac- cepted and used for its own purposes the assistance extended by the respondents, it was free from control by the respondents. The Employees Committee had its inception in a general dissatisfaction among the non-supervisory employees with an apparent deadlock. between the respondents and the [incumbent] CIO on questions of pay increase and bargaining status. Non-supervisory employees, including dissident members of the CIO, organized and determined the policies of the Employees Committee with a view to breaking this deadlock and obtain- ing an immediate general pay raise. On February 16, 1946, when the respond- ents requested delay before granting a general pay increase, the Employees 41See Eighth Annual Report of NLRB (1943) p. 30 42'i'hird Annual Report NLRB (1938) p 125 43\' L It It v Link-Belt Co , 311 U. S 584, 600 44 Norfolk Shipbuilding & Drydock Corp , 70 NLRB 391, 392. BEN CORSON MANUFACTURING CO. 345 'Committee threatened to lead a strike unless the pay increase was immediately forthcoming. About the same time it rejected Hershey 's offer of the services of the respondents' attorney to assist it in forming an unaffiliated union. The Employees Committee subsequently consulted with another attorney of its own choice in the face of Hershey's specific advice against such action. The Board thus took note of the fact that the committee in that case originated with the employees themselves , being born out of their own desire for more ef- fective representation than they were then receiving , and that it relied on the group strength of the membership as a lever to achieve it, rejecting at the same time any employer assistance in its actual establishment . Related self-liberating aspects were .given controlling weight in Wagner Iron Woiks, 104 NLRB 445 , 447, where the Board emphasized that the assisted union had "a bargaining history of more than 14 years during which [it] enjoyed status as exclusive bargaining representative of the company's employees under contractual arrangements gained by reason of [that union 's] own and independent organizing efforts and resources " [ Emphasis -supplied.] 45 By negative implication , it would seem that where the proposal for the forma- tion of the organization comes not from the employees but the employer , and further where the impetus for the formation likewise comes from the employer , and when in addition , the organization has no discernible resources except the one which the ,employer has illegally given it, the picture is one of domination rather than mere illegal assistance. Accordingly, the Board,- in finding that a labor organization is employer-dominated rather than merely assisted has noted such factors as the em- ployer's having proposed its formation ,46 having given "impetus to [ its] formation almost immediately after the Union's demand for recognition ," 47 the absence of a written constitution , bylaws, or dues 48 and the total or nearly total absence of membership meetings 49 No two cases are altogether alike, and each must be judged by the totality of its ,own facts In this case the proposal for the new Shop Committee originated with Respondent on the day it received the Union's bargaining demand , the impetus for its formation was the Respondent's promise of an immediate contract accompanied by the assurance of a raise, and its sole resource is the illegal contract which Respondent bestowed upon it the next day. With the contract removed , there seems to be no ,discernible basis for its viability. It has no bylaws , no treasury, no dues provisions, no provisions for meetings , and as Jones, its chairman , admitted has not held a meet- ing with the employees as a whole since its formation Provision for group as- semblage and employee meetings being absent , there would seem to be no occasion furnished for the employees to discuss in a body matters affecting wages, hours, and other working conditions , the opportunity is thus wanting, in the words of Judge Learned Hand , for "the employees . . . in the absence of the employer to canvass their grievances , formulate their demands in common , and instruct [their] advo- cate. . . . .. (Stow case, supra. ) Indeed, the employees met as a group only during the two times their employer called them together, first to propose selection of the new committee and secondly to submit to the employees directly the agreement signed with that committee for ratification . While nothing in the Act prevents employees from selecting that kind of informal representation if that is what they freely prefer, the absence of these requisites to effective functioning bears on whether an organization , formed at the employer's suggestion and under the impetus of promised benefits can stand on its own feet or is too inexorably dependent upon the employer's favor and preference to constitute a truly independent spokesman for the employees . My conclusion, based upon the entire record is that the latter is the case. As I view the events as a whole, the Shop Committee owing its birth to Respondent's suggestion and its life to the inducements illegally promised and given, is under the domination of Respondent , and would appear to have served primarily as Respondent's means of channelizing the employees ' desire for repre- sentation in the direction of its own preference . This is not to say that the Com- 4e Cf . Sears, Roebuck R Company, 110 NLRB 226, where the Trial Examiner 's finding of .domination was reversed on the authority of Wagner Iron Works 49 Rehraq-Pacific Co , 99 NLRB 163 , Coal Creek Coal Co , 97 NLRB 14 , 23 ; see Seven- teenth Annual Report of the Board ( 1952) p 128. 47 Rehr ig -Pacific Co , supra ; II N Thayer Co , 99 NLRB 1122 , 1180 , enfd 213 F 2d 748 (C A 1) cert denied 348 U S. 883. 48 Rehraq-Pacific Co , supra 48 Rehriq-Pacific Co., supra ; Jack Smith. Beverages, 94 NLRB 1401 , 1403, enfd. 202 F. 2d 100 (C A 6) cert denied 345 U. S 995 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mittee even as presently constituted might not through the intelligence of the constituent members be capable of inducing Respondent to make some changes for the employees ' benefit. There have in fact been , as Jones and Corson testified, six meetings between Respondent and the Committee for discussion of particular griev- ances the nature of which does not appear in the record . But these, on balance, would not seem to overcome the aspects of its origin , formation , and general func- tioning, heretofore described , which tend to render it subservient to rather than independent of Respondent in the bargaining relationship 50 I therefore find that Respondent dominated and interfered with the formation and administration of the Shop Committee within the meaning of Section 8 (a) (2) of the Act.51 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent above recited , occurring in connection with its operation as previously described , 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 In addition to the usual posting of notices, Respondent should be required to remedy its unfair labor practices as found, as follows: To remedy Respondent's unlawful refusal to bargain with the Union , it will be recommended that Respondent be ordered to cease and desist from such refusal and, affirmatively, to bargain collectively with the Union on request on behalf of the employees here affected .52 It will also be recommended that Respondent be ordered to cease giving effect to its contract of April 28 , 1954, or any other contract with the Shop Committee . (Such order is not intended to preclude Respondent from con- tinuing in effect all substantive terms, conditions , and benefits therein contained: it reaches only the status of the Shop Committee as contracting party and employee representative.) It will also be recommended that Respondent be directed to cease and desist from assisting, supporting, or dominating the Shop Committee and, as a corollary of the finding of domination ,53 that it withdraw recognition from and permanently disestablish the Shop Committee as collective -bargaining representative of the employees in respect to grievances, wages, hours , or working conditions. This will not prevent the employees, after the unfair labor practices have been remedied and the conditions for a free choice established , from adopting representa- tion from their own ranks or any other kind of representation , if such is their genuine desire, unfettered by employer domination , interference, assistance , or support. It will be further recommended that Respondent be ordered to cease and desist from the violations of Section 8 (a) (1) here found , and to insure to the employees "the benefits of prevention or prophylaxis " 54 warranted by the record as a whole, from 60 Cf Wagner Iron Works, supra, at p 447 Oi The conclusions above expressed apply alike whether the present Shop Committee be a new organization as I have found , or, as Respondent contends , a continuation of its prede- cessor Applying the latter concept to it would in no way change the character of the rela- tionship between it and Respondent, for if the occuirence of April 27 is to be viewed as a reconstitution of the old rather than the foimation of a new committee it was nevertheless brought about under the same proposals and inducements offered by Resopndents, and as an organization , it is subject to the identical infirmities above described whether it be new or old. Hence if the new be in fact the old, then Respondent, within the terms of Sec- tion 8 (a) (2), has "dominated" and "interfered with the . . . administration" of the Committee OiThe iemedial obligation of an employer to bargain with a union with which he has unlawfully refused to bargain is not avoided by a claim that the union has since lost its majority , and that is so even in the absence of a showing of the kind made by the record here that the dissipation of the Union's majority was brought about by the employer's unfair labor practices Franks Bros v. N L R B , 321 U S . 702, 704; cf. Ray Brooks v. N L. R. B , 348 U. S 96 . However , as the Franks opinion makes clear , such an order "is not intended to fix a permanent bargaining relationship without regard to new situa- tions that may develop . . After . . . a reasonable period [for the functioning of the bargaining relationship ], the Board may, in a proper proceeding and upon a proper show- ing, take steps in recognition of changed situations which might make appropriate changed baigaming relationships . . see [Section 9 (c) of the Act]" (pp. 705-706). 53 The Carpenter Steel Co , supra ra Hutcheson , Jos C., "Judging as Administration , Administration as Judging." 21 Texas Law Rev. (1942) 1, 6. BEN CORSON MANUFACTURING CO. 347 in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under the Act.55 CONCLUSIONS OF LAW 1. F. C. and Allied Workers Union, Local 37, affiliated with Upholsterers' Inter- national Union of North America, AFL (called the Union) is a labor organization within the meaning of the Act. 2. Respondent's production and maintenance employees, excluding clerical em- ployees, truckdrivers, salesmen, foremen, and other supervisory employees as defined in the Act, constitute a union appropriate for collective bargaining within the mean- ing of Section 9 (b) of the Act. 3. The Union, having been designated as representative by a majority of the employees in said unit, on April 24, 1954, was, and at all times thereafter continued to be, the exclusive representative of all of said employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section 9 (a) of the Act. 4. By refusing on April 27, 1954, and at all times thereafter, to bargain with said Union as such representative of the employees in the above-described unit, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. The Shop Committee is a labor organization within the meaning of the Act. 6. By assisting and dominating the Shop Committee as heretofore described, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 7. By such conduct and by other acts interfering with, restraining, and coercing the employees in the exercise of the rights guaranteed in Section 7 of the Act, Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 8. The above-described unfair labor practices tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof and constitute unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondent did not engage in surveillance as alleged in the complaint, as amended. [Recommendations omitted from publication.] rs N L R B v Express Publishmq Co, 312 U. S 426, 436-437; N L . R. B. v. Cheney Calaforntia Lv,nber Co , 327 U S 385, 387 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with F. C. and Allied Workers Union, Local 37, affiliated with Upholsterers' International Union of North America, AFL, as the exclusive representative of all employees in the bargaining unit described below, with respect to grievances, wages, rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All production and maintenance employees excluding clerical employees, truckdrivers, salesmen, foremen, and other supervisory employees as de- fined in the National Labor Relations Act. WE WILL NOT dominate or interfere with the administration of the Shop Com- mittee or any other collective-bargaining representative of our employees or contribute support or render assistance thereto. WE WILL NOT recognize the Shop Committee or any successor thereto and we hereby withdraw recognition from and disestablish the Shop Committee as the representative of any of our employees for the purpose of dealing with us concerning grievances, wages, rates of pay, hours of employment, or other conditions of employment; nor will we give effect to the contract with the Shop Committee dated April 24, 1954, or to any other contract made with that Committee (we are expressly permitted, however, to keep in effect any of the terms of the agreement relating to wages, benefits, and working conditions). 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT promise or grant wage increases or other economic favors as inducements to our employees to influence or interfere with our employees in their choice of bargaining representative; nor, as part of any plan to influence or interfere with our employees' free choice of representative, will we conduct or cause to be conducted elections among our employees ; we will not question them regarding their union membership or activity , or solicit them to abandon or forego their union activity or sever their affiliation with any union or labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. BEN CORSON MANUFACTURING CO., BELMONT ALUMINUM EXTRUSION CO., PARKSIDE DISTRIBUTING CO., CORBEN MANUFACTURING CO., Employers. 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. District 50, United Mine Workers of America, and its agent, Charles C. Camp and George Winn and Lyle Winn, co-partners- doing business as Marion Machine Works District 50, United Mine Workers of America , and its agent, Charles C. Camp and Wiley Cochran, an individual operating Tamora Fluorspar Mine. Cases Nos. 14-CC-59 and 14-CC-60. April 21,1955 DECISION AND ORDER On November 9, 1954, Trial Examiner George A. Downing issued his Intermediate Report in this consolidated proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of Section 8 (b) (4) (A) of the Act, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent District 50 filed excep- tions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the following additions and modifications : 1. The Trial Examiner found that the primary dispute in this case, concerned the wage rates of the employees of Patton who, under a contract with Ozark, was operating various of its mines; that in fur- therance of this dispute the Respondent Union's pickets, led by its agent, Respondent Camp, accosted employees of Kaegi, Davis, Marion, 112 NLRB No. 56.