Frank R. Cook Co.

FRANK R. COOK Co., ETC. 805 Frank R. Cook Co., a Subsidiary of Telecomputing Corporation and International Brotherhood of Electrical Workers, Local 1823, AFL-CIO Frank R. Cook Co., a Subsidiary of Telecomputing Corporation and International Brotherhood of Electrical Workers, Local 1823, AFL-CIO, Petitioner. Cases Nos. 30-CA-701 and 30-RC- 1544. February 24, 1960 DECISION AND ORDER On October 1, 1959, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He found further that the Respondent had interfered with a representation election conducted among the Respondent's employees in Case No. 30-RC-1544 on Feb- ruary 20, 1959, and recommended that that election be set aside and a new election be held. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and the Respond- ent filed a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the entire record in these cases, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Frank R. Cook Co., a Subsidiary of Telecomputing Corporation, Denver, Colorado, its officers, agents, successors, and assigns shall : 1 We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a) (1) of the Act by putting into effect the new group insurance plan. We are satisfied, as was the Trial Examiner, that the plan was introduced for the purpose of undermining the Union and stemming the tide of its organizational campaign ; however, we do not agree that there is sufficient evidence to establish that it was also designed to assist the Policy Committee which was not a subject of discussion until almost a week after the plan was announced. Under all the circumstances, we find it unnecessary to pass upon the legality of the wage 'increase announced by Respondent on November 18, 1958. 126 NLRB No. 96. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Dominating or interfering with the formation and administra- tion of, or contributing financial or other support to, the Policy Committee or any other labor organization. (b) Recognizing the Policy Committee, or any successor thereto, as a representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organization, to form, join, or assist International Brotherhood of Electrical Workers, Local 1823, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from the Policy Com- mittee as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish the Policy Committee as such representative. (b) Post immediately in its plant at Denver, Colorado, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region (Kansas City, Missouri), shall, after being duly signed by Respondent's representative, be posted by it immediately upon receipt thereof and maintained by it for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order what steps Re- spondent has taken to comply herewith. IT Is FURTHER ORDERED that the election held in Case No. 30-RC-1544 on February 20, 1959, be, and it hereby is, set aside, and that such proceeding be, and it hereby is, remanded to the Regional Director for the Seventeenth Region for the purpose of conducting a new election 2In the event that this Order is enforced by a 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." FRANK R. COOK CO., ETC. 807 at such time as he deems that circumstances permit the free choice of a bargaining representative.' 8 The new election shall be conducted among the employees in the unit heretofore found appropriate by the Board in this case who are employed during the payroll period imme- diately preceding the date of issuance of notice of election . Now England Upholstery Co., Inc., 121 NLRB 234. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL disestablish the Policy Committee as the representa- tive of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT dominate or interfere with the administration of any labor organization or contribute support to it. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. All our employees are free to become or remain members of any labor organization, or to refrain from such action, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the amended Act. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or ac- tivity on behalf of any labor organization. FRANK R. COOK CO., A SUBSIDIARY OF TELECOMPUTINO CORPORATION, Employer. Dated---------------- By ------------------------------------- (Representative )- ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. '808 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD INTERMEDIATE,REPORT AND RECOMMENDED ORDER' STATEMENT OF THE CASE Upon a petition filed duly on November 17, 1958, by International Brotherhood .of Electrical Workers, Local Union 1823, AFL-CIO, herein called the Union, the .National Labor Relations Board, herein called the Board, held a hearing on December 18, 1958, to determine whether the employees of Frank R. Cook Co., a subsidiary of Telecomputing Corporation, herein called Respondent, desired to be represented by the Union for the purposes of collective bargaining. Thereafter and on January 29, 1959, the Board issued an order directing that an election be con- ducted among Respondent's nonsupervisory production and maintenance employees under the auspices of the Regional Director for the Seventeenth Region On February 20, 1959, said election was held and the Union lost it.' The Union, -on February 27, 1959, filed timely exceptions to conduct affecting the results of the election, and on June 11, 1959, the aforesaid Regional Director issued his report on the objections *recommending that since objections numbered 1, 3, and 4 were without merit that they be overruled. He further recommended that the Board direct a hearing on the issues raised by the facts disclosed by the investigation of the objections numbered 2 and 5 as these facts reveal substantial and material issues with respect to conduct affecting the results of the election, which may best be resolved by a hearing. He also recommended that authority be granted him to consolidate said hearing on objections numbered 2 and 5 with a hearing on the complaint in Case No. 30-CA-701. No objections were filed by any of the parties to said Regional Director's recommendations. The Board, by order dated June 25, 1959, adopted the aforesaid recommendations and ordered a hearing to be held foi the purpose of resolving the issues raised by objections numbered 2 and 5. The Board further ordered that such hearing be consolidated with any hearing held on the complaint issued in Case No. 30-CA-701. Upon a charge and an amended charge dully filed by the Union on March 20 and May 12, 1959, respectively, the General Counsel 2 of the Board, through the afore- mentioned Regional Director, issued a complaint, dated May 29, 1959, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (2) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and order consolidating the above captioned cases, together with notice of hearing thereon, were duly served upon Respondent and upon the Union. There were also duly served upon Policy Committee, Frank R. Cook Co., herein called the Policy Committee, a labor organization alleged in the complaint to be existing in violation of the Act, copies of the charges, notice of hear- ing on objections numbered 2 and 5, and order consolidating the above-captioned cases. Specifically, the complaint alleged that (1) during the month of February 1959 certain named officials, and others, engaged in certain conduct and made various statements which interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act; and (2) during the aforesaid month its officials, dominated, and interfered with the formation and administration of the Policy Committee. On June 3, 1959, Respondent duly filed an answer denying the commission of the unfair labor practices alleged Pursuant to due notice, a hearing was held from June 30 to July 7, 1959, at Denver, Colorado, before the duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel; the Union by an official thereof. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence relevant and pertinent to the issues, to argue orally on the record at the conclusion of the taking of the evidence, and to file briefs on or before August 3.3 Briefs have been received from the General Counsel and from counsel for Respondent which have been duly considered. I Of the 53 valid votes cast, 14 were cast for the Union and 39 against. 2 This term specifically includes Counsel for the General Counsel appearing at the 'hearing 8 At the request of Respondent's Counsel the time to file briefs was extended to August 27. FRANK R. COOK CO., ETC. 809 Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Respondent is a Colorado corporation, with its principal offices and plant at Denver, Colorado, is engaged in the manufacture, sale, and distribution of high energy batteries and allied electronic devices. Respondent's annual out-of-State sales of finished products exceed $50,000. Telecomputing Corporation, of which Respondent is a partly owned subsidiary, is a California corporation having its principal offices and plant at Los Angeles, California. Telecomputing operates, through wholly owned or partly owned sub- sidiaries, plants in California and in New Mexico. Respondent's personnel, and certain other managerial policies are, in the main, established and controlled by Telecomputing Upon the above undisputed facts, the Trial Examiner finds that Respondent at all times material was, and now is, engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act for the Board to assert over this proceeding. II. THE LABOR ORGANIZATIONS INVOLVED The Union and the Policy Committee are labor organizations admitting to mem- bership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Formation and domination of, interference with, and support of the Policy Committee; interference, restraint, and coercion 1. Prefatory statement In an effort to absolve itself from liability for its illegal conduct, with respect to, the Policy Committee, Respondent contends, among other things, that the Policy Committee was not a labor organization within the meaning of the Act. Section 2(5) of the Act defines the term "labor organization" to include "any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." As pointed out in the Report of the Senate Committee which considered the identical provision in the original Act,4 the term "labor organization" was purposely phrased "very broadly in order that the independence of action guaranteed in Section 7 of the bill and protected by Section 8 shall extend to all organizations of employees that deal with employers." 5 To the same effect is the following excerpt from a memorandum dated March 11, 1935, prepared by Mr. William M. Leiserson, the then Chairman of the National Mediation Board, for the Senate Committee on Education and Labor, comparing the provisions of S. 1958 (which became law) with similar provisions in the bill proposed in the preceding Congress. It has been argued frequently by employers as well as by protagonists of the bill last year that an employee representation plan or committee arrangement is not a labor organization or a union but simply a method of contact between employers and employees. But the Act is entitled to prescribe its own defini- tions of labor organizations, for its own purposes, and it is clear that unless these plans, etc., are included in the definitions, whether they merely "deal" or "adjust" or exist for the purpose of collective bargaining, most of the activity of employees in connection therewith which we are seeking to outlaw would' fall outside the scope of the Act. [Emphasis supplied.] Tested by the statutory definition, and in the light of the congressional intent, the Trial Examiner finds that the Policy Committee constitutes a "labor organization" within the purview of the Act. In the first place, the employees "participate" in the ' The above definition In the amended Act, commonly referred to as the Taft-Hartley Act, was carried over without change from the original Act, commonly referred to as the Wagner Act 6 Report No. 573 on S. 1958, 74th Cong., 1st sess.,.p. 7. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Policy Committee through the representatives thereof who met and conducted busi- ness with management . The Policy Committee exists, moreover , for the purpose of-and actually engaged in-"dealing" with management and discussed "grievances" concerning "working conditions " Thus, the record discloses , Respondent discussed with the Policy Committee, plant vending machines , rubber mats for employees to stand on, improvements to plant parking lot, employee payroll savings plan, and the progress of a certain wage survey which management was then undertaking. Under the circumstances , there can scarcely be any serious question that the Policy Committee functioned as a "labor organization" within the meaning of the "very broad" definition of Section 2(5) of the Act.6 2. Sequence of the pertinent facts On November 17, 1958, the Union, filed a representation petition with the Board (30-RC-1544 ) requesting an election , for the purpose of establishing its majority status, among all Respondent 's production and maintenance employees at its Denver, Colorado, plant 7 The following day, November 18, Respondent , over the signature of Frank R. Cook, its president, mailed to the home of each of its employees to whom pay raises were granted a letter reading as follows: Dear Fellow Employee: During our negotiations with Telecomputing Corpo- ration in September and October of this year , we carefully discussed the fact that our wage structure would be one year old on the first of November, and that an area wage survey was in the process of completion and indicated an upward trend which we wished to meet. Many events have taken place since these negotiations started. We have recovered from the fire , moved to larger, better located quarters , formed our association with Telecomputing Corporation , developed working relationships with many offices in that company and have made several organizational changes to strengthen our ability to get our products out on time at competitive prices. Of course, it is recognized that in any reorganization there exists a feeling of uncertainty as to the future . We are therefore making every effort to complete any necessary changes as quickly as possible. I am sure you will remember John Devitt 's announcement to you a week ago Monday, November 10, 1958, concerning our current evaluation of your job and wage rates . We are happy to confirm the following increase which con- forms to the results of the survey conducted thus far and which were decided on by Telecomputing Corporation They are effective on October 28, 1953, the date upon which Telecomputing Corporation acquired their controlling stock interest in our company. Your Job: Your Raise: We still need 'lots of help from everyone to improve our operations to the point where they are competitive with other manufacturers who bid against us. If we cannot meet their bids, they get the order and we do not , as you know. And if we cannot meet our cost estimate , we lose money on jobs, as you also know. We must have your continuing assistance to meet competition and to be able to make other wage structure increases in the future. We will appreciate very much your cooperation in this effort and we are confident that with the teamwork of all concerned , we will succeed in our mutual goal. On December 18, a hearing was held upon the above-mentioned representation petition of the Union. In due course, the Board , on January 29, 1959,8 issued an order, a copy of which was received by Respondent on February 2, directing that an 9 N.L.R.B. v. Cabot Carbon Company and Cabot Shops, Inc ., 360U S. 203 ; N.L.R.B. v. Standard Coil Products Co., Inc , 224 F. 2d 465 ( C.A 1) ; Indiana Metal Products Cor- poration v N L R B , 202 F. 2d 613 ( C A. 7) ; N.L R.B. v. General Shoe Corporation, 192 F. 2d 504 (C A. 6 ) ; N.L.R.B . v. Stow Manufacturing Co , 217 F. 2d 900 (C.A. 2 ) ; Harri- son Sheet Steel Company v. N.L.R .B., 194 F 2d 407 (CA. 7) ; N.L R B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 ; N.L R B, v. Newport News Shipbuilding & Dry Dock Co , 308 U .S. 241 ; N L R B . v. James H. Matthews & Company , 156 F. 2d 706 ( C A. 3). 7 On the same day, the Union demanded recognition as the collective-bargaining repre- sentative of the production and maintenance employees Unless otherwise noted, all dates hereinafter mentioned refer to 1959. FRANK R . COOK CO., ETC. 811 •election be held as prayed for by the Union. Pursuant to said Board order an elec- tion was scheduled to be held on February 20. Under date of February 13, Respondent , over the signiture of Cook, mailed to the home of each employee a latter, addressed to the employee by his or her first name, reading as follows: We want to talk with you regarding the business and working conditions of our company. This last year was a difficult year for all of us. It was a period of time that saw a nation and a general economy hampered by recession-employment was low throughout the country . It was a year when employees felt insecure and confused as they observed their Managements put many changes into effect to cope with the problems of the recession . It was an era when there was less business in total and more companies to handle it. Your cooperation through the trying times of this last year is very much ap- preciated . Now is the time for confidence and trust . Our top performance today, tomorrow, and in the weeks to come, will keep us in an excellent position for future business. As you know, an election will be held Friday, February 20, 1959, to deter- mine whether or not you wish us to deal with you through the Electrical Work- ers Union The way you vote Friday in the election is extremely important to each of you because it has to do with your job , your making a living and your future with this company. You should seriously consider the issues involved Our company policy is to pay as high wages and offer as good fringe bene- fits as economic factors permit us to do. The company has shared with the employees whenever it could. Your future wage increases and continued bene- fits are not dependent on unionization . In the past , we have worked out our problems together and can continue to do so, without having this cost you $4.00 per month in Electrical Workers dues . This is $48.00 per year for life-plus up to $10.00 in Electrical Worker initiation fees, and more for assessments, strike funds, etc. This election is to find out whether or not you want the IBEW to do your talking for you about wages and working conditions , to pay dues to the union and to obey their rules and regulations . We have many examples today of the methods used by unions-strikes, economic chaos, reduced production, union hoodlumism , etc. We don't believe we would find it enjoyable to "negotiate" on these union terms and, what's more important, we don't see how it could result in any better benefits to you. Our company has always held the belief that it was "good business" to share our economic situation with our employees-to be as fair as possible and that under these conditions we would have the competent, loyal employees necessary to stay ahead of our competition . It is a fact that in our particular business we need the degree of cooperation that has existed . Anything that makes us non- competitive confronts us with the distasteful problems of curtailed production, consolidated operations , layoff, etc. We do not believe a union would in any way strengthen our competitive position. We do believe that continued mutual cooperation will. THIS IS VERY IMPORTANT THE UNION CAN GUARANTEE YOU NOTHING. They cannot guarantee that a single benefit you do or do not now have will be in- cluded in a written and signed agreement . All they can do is give you promises . If you think this is not true, put it to the test. Ask them right now to give you, a written, signed agreement, in detail and in total, what they will guarantee you if you vote for them. Your company has always given general increases whenever they could be afforded. This would not change with a union involved-except that the union could jeopardize your weekly paycheck and your job itself by calling a strike to try forcing a wage increase at a time when it would not be economically possible to grant a raise. Our customers do not guarantee to continue to do business with us. We must maintain our efficiency in order to maintain our security . The IBEW cannot guarantee that we will continue to receive business . They cannot guar- antee that we will become more efficient . In fact, we do not believe they can even help. Throughout your company 's history, we have done the best we could for you-always trying to improve and increase your benefits . This we will con- 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinue to do. We are grateful to you for your trust and cooperation and the im- portant part you have played in building this company. We have tried to ex- press this gratitude in the way that has real value-a sincere and active interest in your welfare. A vote of confidence is a "NO UNION" vote on Friday If you are sincere in wanting to really protect your security, vote NO UNION on Friday. On February 13, J. M. Wehrly, Telecomputing Corporation's industrial relations director and its director of labor relations, addressed Respondent's employees in Respondent's plant lunchroom and announced a new group insurance plant, retro- active as of February 1.9 A printed memorandum was distributed to Respondent's employees during the week immediately preceeding the scheduled February 20 Board election, which outlined the major features of the new group insurance plan and explained that it was the same group insurance plan then in effect at Telecomputing.10 Under date of February 14, Respondent, over the signature of John Devitt, Respondent's vice president and general manager, mailed to the home of each employee a letter, addressed to the employee by his or her first name, reading as follows: A number of you have asked us to express our feelings regarding the election to be held next Friday, February 20, 1959. This is a tough assignment, because it means comparing a pleasant working atmosphere-in which we have mutual trust and understanding-with the tough conditions of Electrical Worker association. We believe everyone should ask, "What's in it for me-and what's in it for the Electrical Workers' Union?" People in many plants all over the country have voted AGAINST unions such as this one-because they really had nothing to gain from the union. That's the case at Cook. Many people have missed many a weekly paycheck with the Electrical Workers Union and other unions. Remember the recent strike disasters at the Coors plant and Climax-with little or no gain to the many unfortunate men, women and children involved. Sincerely, we would not wish to see you drawn into a mess like that. We believe that you are better off without having to worry about Electrical Worker strikes, Electrical Worker jurisdictional disputes, Electrical Worker sympathy walkouts, and loss of wages which in many cases happen when a union comes into the picture. It is history that the building crafts strike often, and the Electrical Workers represent one of those building crafts. This is one of the many reasons why you should vote "NO UNION" next Friday. Another reason why you should vote against the IBEW is because they can guarantee you nothing. Have they given you a written and signed agreement specifying exactly what they would get for you if you cast your lot with them? All of us know that talk and unsigned promises mean, in total, nothing. Another reason why you should vote against the IBEW is because you would have absentee union management spending a very, very tiny part of their time "working" for you. You would also undoubtedly be thrown in with some amalgamated local which would virtually herd several plants together-and would you get any sort of hearing in a mass like that? Another reason why you should vote against the IBEW is because it would cost you at least $48.00 per year for life, plus initiation fees, strike funds, etc., with no return guaranteed. Not counting anything like lost wages, etc., $48.00 per year represents well over $2,500.00 per year from present Cook employees. All of us know that you could do a lot better with well over $2,500.00 in your pockets that contributing this money and more to wealthy union officials-to "At this meeting or the meeting held by Wehrly with Respondent's employees about a week later, he remarked, according to the credible testimony of Charlotte Hazelwood, "Telecomputing was a good company to work for and . . . at that one [plant] 1200 employees didn't have a union, why should [Respondent with] 53 [employees] have one " 10 Since September 1, 1958, Telecomputing has, and most , if not all , of its subsidiaries have a group insurance plan under which Union Mutual Life Insurance is the carrier of the plan's "Medical-Basic Life-Insurance" (provisions and the Sun Life Insurance Com- pany, together with The United States Life Insurance Company, are the carriers of the plant's "Additional Group Life Insurance " This new plan gives the persons then in Respondent's employ and their respective dependents not only greater coverage but the cost thereof is borne solely by Respondent. Under the plan in effect at the plant immediately prior to the institution of the Tele- computing plan, the employees paid half the cost and Respondent paid half. FRANK R. COOK CO., ETC. 813 their Cadillacs and cabin cruisers ... to their other excesses in the lavish luxury of their well-advertised high-living. Yes, there is everything in the IBEW 's proposition for the IBEW-and there is nothing in it for you. In case you have signed a card, or attended a union meeting-just to get the pressure off you-remember that you have the right to change your mind when you get all the facts. You are not committed to the IBEW . You have a right to think for yourself. Keep your right of citizenship-and speak for yourself! Vote "NO UNION" on Friday. Under date of February 19, Respondent , over the signature of Devitt , mailed to She home of each employee a letter, addressed to the employee by his or her first name, reading as follows: You have a very serious decision to make in the election on Friday , February 20, 1959 between 2:45 and 3:45 p.m. This election involves the question of whether you want to keep the security of your company benefits which have steadily come to you, or whether you want to start again from scratch with the promises being waved before you by the Electrical Workers. You can see, then, how important it is that you consider the details, judge privately, and be sure to vote. The union may try to tell you that you may not be involved in strikes. How do you know you won't be involved in one? In the first place, we understand the IBEW has stated very clearly to you that they would demand a union shop if they should win the election . The IBEW has often in the past called a strike in order to get a union shop . A union shop is unfair because of the harm that results to people who cannot afford the $48.00 per year dues or have sincere feelings against being forced to join the union (as the union shop requires everyone to join ). Also, the strike which is often necessary to get it causes extreme hardships to the people and their families involved. In the Climax mine strike here in Colorado last fall, an 80 raise was finally agreed to at the so-called bargaining table-and this was the same 80 raise the company had offered in the first place!) The union may tell you that their dues are not paid out of present wages, implying that dues would be paid out of a raise . The truth is that the union cannot guarantee you an increase in pay. In fact, just a week or so ago, the IBEW accepted a 51/z % reduction in wages at the National Electrical Products Co. in Ambridge, Pennsylvania. This cut in pay put the wages back to the level that existed prior to a 21-day strike last August. (See current issue of "U.S. News and World Report", February 13, 1959, page 90.) A word about the realities of the bargaining table is very much in order at this time. Bargaining, as you know, is the exchange of one thing for another- such as a strike for a pay raise, and in such cases, you know what you have, but you do not know what you may get. Has the IBEW told you that, in setting the stage for a bargaining process, they are actually trying to get you to put on the BARGAINING BLOCK all of your present benefits and then EXCHANGE THEM ONE BY ONE in strife-ridden circumstances for union working conditions, which are far below the personal dignity of your com- pany's traditional recognition of each person as an individual. Here in our plant , Electrical Worker total conditions including strikes , picketing, etc., would be many a measured step BACKWARDS for our people. For example, the electrical workers you saw install fixtures in our new building were laid off the day after they finished here. The Electrical Workers can guarantee you no security either. If Cook Company employees were organized by the Electrical Workers, they would be paying the Electrical Workers well over $2,500.00 per year in dues alone. This is why the union is interested in you-because you represent mony to them , with NO GUARANTEE TO YOU in writing and signed what these thousands of dollars would buy in return for you-except STRIKES which are mostly called to try and force a union contract in the first place, ,or a contract renewal , or a wage reopening , from year to year, etc. Remember that strikes which are lost mean wages lost forever, while union leaders get paid as usual . Only you lose . Even strikes which supposedly "win," often take many years to make up in wages lost-for many strikes last for a long time. For example, employees have been involved in a FOUR YEAR STRIKE which is still continuing at the Kohler Company in Wisconsin . Ed Buesch is still on -strike from the Burlington Railroad since 1922. You have in your possession your Policy Manual, in which your benefits are published. In addition, your supervisor or manager, including Mr. Cook 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and me, welcome your contact with us regarding your problems at any time- On the other hand, you have UNSIGNED PROMISES from the IBEW which could cause you to REDUCE YOUR SECURITY by going out on a limb and by STRIKING for a union contract. Where is the security in that? Also, our customers who have critical missile programs to meet, prefer awarding orders to non-union plants, because of the absence of strikes there. We receive ques- tionnaires periodically on which we report to them our continuing non-union, strike-free status. We are enclosing for your information, articles from the Reader's Digest point out "How Welfare Funds are Looted" and which describe the dictatorial con- ditions which are the Union Man's lot. You will note that the Electrical Workers are involved and included, too. We hope that you will decide wisely. Be sure to vote. Do not leave your future in peril by letting only a few vote. You are deciding your future and the future of your friends working with you. Your vote is by SECRET ballot. NO ONE will know how you vote. Even if you signed a union card this does NOT have to control how you vote in this election. You have a right to change your mind. AFTER carefully considering all of the consequences, VOTE THE WAY YOU NOW THINK. You must vote "NO" on the ballot in order to be free of the union. Especially consider the FINALITY of your action! You CANNOT AL- WAYS vote a union out easily when you find you have made a MISTAKE. We know that the great majority of our intelligent and loyal employees have not been deceived by the empty IBEW promises. Every indication is that the overwhelming trend is now toward a "No Union" vote on Friday." On February 18, Devitt called a meeting of the employees at which he discussed the recently prepared, published, and distributed "Employee Manual." This manual outlined, among other things, the newly created group insurance plan and the manner in which the employees were to present to management their "questions, suggestions or complaints." On February 18, the following was mailed to each employee at his or her home: Text of Speech to be Given by Frank Cook on Thursday, February 19, 1959 I wanted us to get together for a few minutes because you have a most serious decision to make tomorrow. You have told us the last few days that you would like to have more contact with management. As you know, your Manual points out to you that you should see your supervisor or Personnel Department at any time about any problem. However, please also be assured that you are welcome to see me, or John Devitt, or any department manager at any time. We are a small group at Cook-and we want to operate as a family in a friendly manner. Over the last few days, we have outlined to you in letters to your homes, our great concern for our people if the union is allowed to organize the plant. We have done our best to explain that our wage policies and all other policies must be based upon what we can afford, whether or not a union is here with us. If we cannot afford something, we cannot grant it. You have seen that our association with Telecomputing Corporation allows us to take advantage of a large company's ability to get favorable insurance rates, association with an already-recognized, employee-owned credit union, and things of that kind. On the other hand, we here in Denver must be realistic. Suppose our plant here were shut down by a strike. Suppose you were managing the plant and had customers like our present Convair Atlas customer, our Lockheed Polaris customer, and other customers who are depending on us to supply batteries to them on time so the missile projects don't get behind in our country's efforts to provide defense for itself. The government WILL NOT DO ANYTHING to help us because it can go to our competitors to buy the batteries. If you were the manager, you would not want to lose your orders and your business, so you would do everything you could to make batteries in spite of the strike. Maybe Telecomputing would transfer production to California-perhaps per- manently. Don't think for a minute that it couldn't happen. Think about it! Let's not have this happen to us at Cook. Let's be certain that we work out our problems together. Let us grow and prosper here in Denver. Let's vote "No Union" tomorrow afternoon. "The letter indicates that there was enclosed therein some material entitled "How Welfare Funds are Looted " and "Wanted : A Bill of Rights for the Union Man." FRANK R. COOK CO., ETC. 815 - ' Remember that a majority of those voting determines whether or not union conditions are imposed on all our people. You must vote "NO" on the ballot in order to be free of the union. Thank you, and be sure to vote. On February 19, at starting time, 8 a.m., Devitt assembled the employees 12 and, after further discussing the aforementioned employees manual, began discussing unions, saying, among other things, to further quote the credible testimony of employee Charlotte Hazelwood, "Unions might have done some good but he did not believe they would do any good now in his company." After the meeting, referred to immediately above, had proceeded for 2 hours or so, Devitt announced a "coffee break." While William F. McCready,13 was standing near the coffee machine, Devitt, accompanied by Production Manager Pusch, approached the coffee machine at which time McCready asked Devitt whether he could speak to him. When Devitt replied in the affirmative, McCready asked what Devitt thought of the establishment of an employee committee. Devitt then said, to quote McCready's credible testimony, "That [is] a great idea . . that he had thought of it himself but did not want to bring it up because it would not look right." McCready further credibly testified that shortly before the meeting reconvened, Devitt said to him, "Would you mind bringing this up when we get back to [sic] the meeting," that when Devitt called the meeting to order, he and Employee Marie Kingsland both, at about the same time, suggested that a "policy committee" 14 be set up; that thereupon Devitt said, in effect, "Just a moment. Bill McCready has something to say down here"; 15 that he stood up and said that he and a group of employees "had been talking about the Policy Committee and that I had had some experience with one in the past and that it would be equivalent, in some senses [sic], to a union but in others-or not in others-, to the effect it would be strictly run by the employees in this company." Hazelwood also testified, and the Trial Examiner finds, that after McCready had mentioned at the February 19 meeting, "How about a committee," Devitt said, to use Hazelwood's words, "He was glad it was brought up as he couldn't bring it up himself-they had had some sort of committee 16 A.M.F. 17 in Colorado Springs . an employee committee at Hathaway, and . . . the gentleman [who owns] Hathaway was very hard to get along with and that the people had gotten together and formed a committee to bring him around"; that she "believe[d] 18 Devitt also stated that the employees "Would probably get further with an employees' committee than they would with the Union"; and that before the meeting concluded Devitt stated that he would hold a meeting with the employees on the following Thursday "to set up a committee of the employees." On February 20, less than 2 hours before the scheduled Board election, Devitt caused the following document to be distributed in the plant to the employees: FRANK R. COOK CO. Inter-Office Correspondence TO: All Employees of Frank R. Cook Co. Date: February 20, 1959 FROM: John L. Devitt SUBJECT: Financial Information The following facts are given to you for your information. I will be available Monday, February 23, to give you the proof of all statements made herein. Control and Ownership of Frank R. Cook Co. The Frank R. Cook Co. is partly owned by Telecomputing Corporation. On October 28, 1958, contractual arrangements were completed so that existing 19 This meeting was referred to by some witnesses as the continuation of the previous day's meeting which Devitt had with the employees. 13 McCready left Respondent's employ in March of this year. 1* Kingsland testified that she thought she said, "Grievance Committee" rather than "Policy Committee " 15 Employee Virginia Hunter testified as soon as the meeting reconvened Kingsland "raised her hand and asked Mr. Devitt why couldn't we have a policy committee, and Mr. Devitt said, 'Just a minute. Bill McCready, would you stand up and tell them what you folks were talking about at the other end of the lunchroom during coffee break?' 1e Employee committee. 17 American Machine and Foundry where Devitt formerly worked. "Hazelwood testified, and the Trial Examiner finds, that when she uses the word "believe" she means "that is [my] recollection" of what occurred. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management of Frank R. Cook Co. would operate the Frank R. Cook Co. for a period of two years. At the end of that time, Telecomputing Corporation may purchase the rest of Frank R. Cook Co., depending upon the success of the Frank R. Cook Co. during this two year period. Cook Co. transferred its accounting functions to the IBM computing equipment owned by Telecomputing Corporation when it found out that it could obtain these services more cheaply than the price it had been paying the local IBM service company here in Denver. This is the connection between Telecomputing accounting and Frank R. Cook Co. accounting. It is less expensive by far to use IBM computing machines than to use bookkeepers who do all their work by hand. Your com- pany saves money by using IBM accounting machines, regardless of where they Z are located. Telecomputing does not control the detail wage structure of Frank R. Cook Co. The contract between Telecomputing Corporation and P4o Frank R. Cook Co. does not include the giving of any money to Frank R. Q. Cook Co. for higher wages or any other reason. Telecomputing is Union-free Various divisions of Telecomputing Corporation have often had union elections such as the one we are having here today. The employees of Tele- computing Corporation have always voted against the union before, and I have no reason to think that they will not vote against the union in any election they have in the future. Union Negotiations and Strikes The law states that if the union wins they may come to the present manage- ment of Frank R. Cook Co. and ask us to negotiate with them for a contract. If we, the management, do not agree to the union demands-such as a union shop, and a generally higher wage scale, the union has the choice of either backing down, or asking for a STRIKE VOTE. In our situation there is no compulsory arbitration. IT IS STILL UP TO YOUR COMPANY MANAGE- MENT TO AGREE THAT ANY BENEFITS BE GIVEN TO YOU. Policy Committee Yesterday, two groups of you suggested, of your own free will, that a com- mittee be set up which would meet with the management of the company. I told you that the company management would be most willing to cooperate with any such committee which you might set up, and would discuss anything that you wish to discuss. Whatever benefits we might give under union condi- tions, we can enjoy without these union conditions being imposed on our people. Your Policy Committee would charge no dues, and would speak directly for you. The same day, February 20, the election, under the auspices of the Regional Director for the Seventeenth Region, was held and the Union lost the election by a vote of 39 to 14.19 On February 26, the employees were assembled in the plant lunchroom, upon instructions from Devitt. This meeting was called, Devitt testified, and the under- signed finds, "Primarily to discuss the questions that had been raised on establishing a committee of some sort of employees " As the aforementioned February 26 meeting, Devitt read to those assembled from a pamphlet containing the bylaws of a Telecomputing employee organization and then said that he did not believe Respondent's employees "needed those bylaws." Then Devitt, who presided at the meeting, said that Jean Ryan, Respondent's per- sonnel manager, had suggested that the Company's seniority list be used for the purpose of selecting six persons who were to serve on the Policy Committee. Although McCready objected to Ryan's suggested means of selecting committee members, maintaining, according to the credible testimony of Hazelwood, "the people on the Policy Committee right at the start would be lead personnel, and . . if he had a gripe against his lead man he wouldn't want to take his gripe to the lead man to take to the Policy Committee meeting," her suggestion was, nevertheless, adopted 2° Before the meeting concluded it was agreed that the Policy Committee would meet with management on March 5. 19 All eligible employees voted. '0 Hazelwood could not remember whether a vote was taken with respect to Ryan's suggestion. She testified, however, and the Trial Examiner finds, that "show of hands" votes were taken regarding other matters and that Devitt always announced the results of said votes FRANK R. COOK CO., ETC. 817 Although the persons who were to be the employees ' representatives on the Policy Committee were chosen at the aforementioned February 26 meeting, Ryan, changed the composition of the committee by asking two of the selected members to resign therefrom because some employees had purportedly objected to lead personnel being on the Policy Committee and replaced those persons by employees of her own choice. On March 13 ,21 the six members of the Policy Committee met with Devitt in his office. The meeting was opened by Devitt, who inquired whether any Policy Committee member wanted to be chairman of the meeting . When each of them had declined to act as such, Devitt assumed the chair. Thereupon , Devitt asked Andrew Biggs, a committee member to take minutes or notes of the meeting . Devitt then inquired whether the representatives had given any thought to the question of tenure of office for Policy Committee members, Biggs then suggested a method which was adopted after Devitt had asked the Policy Committee members what they thought of Biggs' suggestion. After disposing of the questions regarding plant vend- ing machines, the meeting adjourned , those present adopting Devitt's idea that, instead of having an "employee mass meeting" and informing the employees what had transpired at this Policy Committee meeting, copies of the Biggs ' minutes thereof were to be distributed to the employees. At the conclusion of the meeting, or shortly thereafter, the minutes were turned over to Ryan for typing . Because of Devitt's objection , copies of the minutes were not distributed to the employees. On or about April 14, the Policy Committee again met with Devitt. Hazelwood was told by her lead lady to attend this meeting , as an employee representative, in the place and stead of Jenny Mattox, who was ill.22 This meeting was again chaired by Devitt, who discussed various personnel problems with the employees' representatives, such as, deficit in the coffee kitty, in the soup kitty, and in the tea kitty; improvement of plant parking lot; installation of platforms or rubber pads for employees to stand on while at work ; and the installa- tion of employees' lockers or boxes. The question of the first meeting's minutes was also taken up. Devitt handed each member of the Policy Committee copies thereof and instructed them to return copies to him as soon as they had finished reading them. Devitt then said that no minutes of the Policy Committee would be distributed to the employees because "the lawyer said it wasn 't a good idea to give the minutes out to the entire company." 3. Concluding findings The right of employees, under Section 7 of the Act, "to form, join, or assist labor organizations, to bargain collectively through representatives of their own choos- ing . [and ] to refrain from any or all of such activities " is effectively imple- mented by Sections 8(a)(1) and (2). These provisions forbid employers to "interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7," and likewise prohibit employers from dominating, interfering with, or supporting labor organizations of their employees . The employer's economic hold over his employees, which inheres in their relationship , is thereby neutralized in matters of organization and representation , which are peculiarly the concern of the employees. Interdictions against employer intrusion in such matters are essential if employees are to be free from the coercive influence of their employers, for employees are, as the courts have repeatedly found, not insensitive to the advan- tages in their employment that they consider are likely to flow from their choice of a representative to coincide with the wishes of their employer, nor the disadvan- tages which may attend their choice of a representative opposed by their employer. And for the same reason, employees cannot be expected to derive the full benefit from their protected right or self-organization if they believe, from circumstances which the employer created or for which he was fairly responsible, that their repre- sentative, however chosen, is subject to the employer's compulsive will. Conse- quently, the Act prohibits all forms of employer assistance to, or domination of, his employees' labor organizations and interference in their organizing campaigns which might operate to preclude an uninhibited exercise by employees of their collective-bargaining rights.23 The scheduled Maich 5 meeting was not held because of Devitt' s absence from the city 27 Hazelwood had attended the March 13 meeting - I See N L R B. v. Link-Belt Company, 311 U S 584 ; International Association of Ma- chinists, Tool and Die Makers Lodge No. 35 (Serrick Corp.) v. N L R B., 311 U S 72 ; 554461-60-vol. 126-53 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In open disregard of its duty of neutrality, Respondent foisted upon the employees, at a time when the Union was attempting to prove its majority status through a Board-conducted election, a labor organization which met with its approval. Not only did Respondent initiate and sponsor the Policy Committee, but it permitted its premises to be used for balloting purposes, selected the persons who were to represent the employees, and declared that the Policy Committee was not to charge any mem- bership dues. After the Policy Committee came into being, Devitt, not only attended its meet- ings but was chairman thereof. Furthermore, Respondent paid all the representatives for the time spent at Policy Committee meetings , supplied the meeting place, and supplied clerical help without being reimbursed therefor 24 That the Policy Committee exists in violation of the Act is further demonstrated by the fact that all the employees were, without regard to their wishes, members thereof Such compulsory membership is repugnant to Section 7 of the Act, which provides, in part, that an employee may refrain from joining a 'labor organization unless there is a valid collective-bargaining agreement requiring membership therein as a condition of employment as authorized in Section 8(a)(3). Despite the testimony of Respondent's witnesses, including that of Devitt, Wehrly, and Ryan, that the November 1958 wage increase was given and the new group insurance plan was introduced merely to bring Respondent's wage scale in line with the other plants in the Denver area and to make uniform all Telecomputing and subsidiary companies' group insurance plans uniform, the Trial Examiner is con- vinced, and finds, that the granting of the wage increases and the introduction of a wholly paid group insurance plan were adroitly and strategically timed to impress upon all the employees that continuous union adherence was a fruitless gesture, would bring them naught, and that they could rely upon their employer's unilateral generosity to attain their needs. In addition, the record leaves no doubt, and the Trial Examiner finds, that the wage increase was granted and the group insurance plan was introduced for the sole purpose of undermining the Union, stemming the tide of its organizational campaign, and to assist the Policy Committee. These findings are clearly warranted when consideration is given to the settling in which they were made, who were the recipients of Respondent's generosity, the surrounding circumstances, the related events, and the entire background of Respondent's opposi- tion to its employees' unionization. The credible evidence also leads the Trial Examiner to the conclusion that the Policy Committee exists and functions only through Respondent's control, participa- tion, and sufferance. In short, the Policy Committee is being utilized by Respondent as a substitute for collective bargaining and, as such, is a device which has been held repeatedly to be an outlawed form of a labor organization 25 Therefore, upon the entire record in the case, the Trial Examiner finds that Respondent initiated, sponsored, formed, dominated, and interfered with the administration of the Policy Committee within the meaning of Section 8(a)(2) and (1) of the Act, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The objections to the election it would serve no useful purpose to set forth here the evidence which was intro- duced by the General Counsel with respect to the Union's objection numbered 2 and N L R B v Electric Vacuum Cleaner Company, Inc, 315 U S 685; N.L R.B. v Southern Bell Telephone and Telegraph Company, 319 U S. 50; Harrison Sheet Steel Company v NLRB , 19'4 F 2d 407 (C A '7) : N L R.B v S. H Kress and Company, 194 F 2d 444 (C A 6) , N L R B. v. Edwin D Wemyss, d/b/a Coc(b-Cola Bottling Company of Stockton, 212 F 2d 465 (CA. '9). 24 The Policy Committee charges no dues and has no treasury. Nor does it have any constitution or bvlaws 25 N L R B v Newport News Shipbuilding d Dry Dock Co, 308 U S 241 ; N L R B v Baldwin Locomotive Works, 128 F 2d 39 C A. 3) ; Bethlehem Steel Company v N L R B , 120 F 2d 641 (C A, D C) ; Westinghouse Electric A Manufacturing Company v N L R B, 112 F 2d 657 (C A. 2) ; Edward G. Budd Manufacturing Co. v. N L R B , 138 F. 2d,86 (C.A. 3) : N L R B. v Rath Packing Company, 123 F. 2d 684 (C.A. 8) ; N.L.R B v Edwin D Wemyss, d/b/a Coca-Cola Bottling Company of Stockton , supra. Adhesive Products Corporation, 117 NLRB 265, and cases cited therein, remanded on other grounds, 258 F 2d 403 (C A 2) ; 0 E. Szekely and Associates, Inc, 118 NLRB 1125, enfd 259 F. 2d 652 (C.A. 5). FRANK R. COOK CO., ETC. 819 objection numbered 5, for the Trial Examiner is convinced, and finds, that the credible evidence, as summarized in section III, A, 2, above, leads to inescapable conclusion that Respondent's activities on behalf of the Policy Committee and its introduction of the new gioup insurance was calculated to and did interfere with the results of the election in Case 30-RC-1544.26 Therefore, the Trial Examiner finds that the results of the February 20 Board election be set aside and that a new election be ordered among Respondent's employees in the appropriate unit to permit a free choice of a collective-bargaining representative. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (2) of the Act, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As found above, Respondent dominated and interfered with the formation and administration of the Policy Committee and contributed support to it. The Trial Examiner is convinced , and finds, that Respondent's continued recognition of the Policy Committee constitutes a continuing obstacle to the exercise by the employees of the rights guaranteed them under the Act. Therefore, in order to effectuate the policies of the Act and to free the employees from the effects of Respondent's unfair labor practices , the Trial Examiner will recommend that Respondent withdraw all recognition from the Policy Committee as a representative of any of its employees for the purpose of dealing with it concerning grievances , labor disputes , wages, rates of pay, hours of employment, and other conditions of employment and to completely disestablish it as such representative. The record herein clearly discloses , and the Trial Examiner finds , that Respondent granted certain of its employees wage increases and certain other rights and privileges , including a new group insurance plan, not previously enjoyed by them. Respondent's action in granting these wage increases and benefits has been a means whereby Respondent has utilized the unlawfully dominated and supported Policy Committee to frustrate self-organization and to defeat genuine collective bargaining by the employees . Nonetheless , nothing herein shall be taken to require Respondent to vary the wages, hours, and other substantive features of its relations with the employees , themselves , which Respondent has established The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure the employees here involved their full rights guaranteed them by the Act it will be recommended that Respondent cease and desist from in any manner interfering with, restraining , and coercing his employees in their right to self-organization. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The Union and the Policy Committee are labor organizations within the mean- ing of Section 2(5) of the Act. 2. By dominating and interfering with the formation and administration of the Policy Committee and by contributing support to it, Respondent has engaged in and is engaging in unfair 4abor practices within the meaning of Section 8(a)(2) of the Act. 3. By granting certain employees wage increases and by introducing and putting into effect a new group insurance plan for the purpose of assisting and controlling the Policy Committee and for the further purpose of discouraging membership in the Union, Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act 26See Food Fair Stores of Florida, Inc, 120 NLRB 1669, citing with aanroval 131o8ser Bros, Inc , 120 NLRB 965, and Data Shoe Company, Inc. 116 NLRB 1239 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The Great Atlantic & Pacific Tea Company, Inc. and Retail, Wholesale and Department Store Union , AFL-CIO. Case No. 10-CA-4026. February °26, 1960 DECISION AND ORDER On October 6, 1959, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices, and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate Report with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- member panel [Chairman Leedom and Members Bean and Jenkins.] 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 this case, and hereby adopts the findings,' conclusions, and recom- mendations 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 ' No exceptions were filed to the Trial Examiner's finding that the General Counsel failed to sustain his burden of proving that Respondent discriminated against Com- plainant Field. Consequently, we adopt this finding. The Respondent has excepted to the Trial Examiner's credibility findings. As it is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility except where, as is not the case here, the clear preponderance of all the relevant evidence convinces it that the resolutions were incorrect, we find no basis for disturbing the Trial Examiner's credibility findings. Standard Dry Nall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). 2 Contrary to the Respondent, we find insufficient reason for denying reinstatement to Complainant Kirby in the Huffstetler incident occurring prior to his discharge, which is reported in the Intermediate Report. 126 NLRB No. 102.