J. Wiss & Sons Company

In the Matter of J. WIss & SONS COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA Case No. C-553.-Decided May 2, 1939 Cutlery Manufacturing Industry-Interference, Restraint, and Coercion: spy- ing on union meeting; charges of, not sustained-Discrimination: discharge; charges of. not sustained-Company-Dominated Union: charges of, not sus-' tained-Employer Election : not unfair labor practice under circumstances of case; contract resulting from, no bar to subsequent investigation and certification of representatives for employees , if petition therefor filed, in the absence of proof of majority other than results of employer conducted election-Complaint: dis- missed. Mr. Christopher W. Hoey, for the Board. Mr. N. C. Murray, of Newark, N. J., for the respondent. Mr. Samuel L. Rothbard, of Newark, N. J., for the United. Mr. Charles C. Pilgrim and Mr. Hugh Stokes, of Newark, N. J., for the Independent. Mr. Robert Kramer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Electrical, Radio & Machine Workers of America, herein called the United, the National Labor Relations Board, herein called the Board, by Elinore M. Herrick, Regional Director for the Second Region (New York City), issued its complaint, dated February 23, 1938, against J. Wiss & Sons Company, Newark, New Jersey, herein called the respondent, alleging that the respondent had engaged in and was engaging in un- fair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notice of hearing, were duly served upon the respondent, the United, and Wiss Employees' Independent Union, herein called the Independent. 12 N. L. R. B., No. 70. 601 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In respect of the unfair labor practices, the complaint alleged in substance (1) that on or about August 30, 1937, the respondent initi- ated, formed, and sponsored a labor organization of its employees known as Wiss Employees' Independent Union, and thereafter domi- nated, interfered with, and contributed support to the administra- tion of the Independent; (2) that on or about August 11, 1937, the respondent discharged and thereafter refused to reinstate Henry Nolan, an employee of the respondent, for the reason that he had joined and assisted the United and had engaged in concerted activi- ties with other employees of the respondent for the purposes of collective bargaining and other mutual aid and protection; (3) that by the above and various other acts, such as warning and urging its employees to refrain from becoming or remaining members of the United, threatening them with discharge for so doing, conduct- ing, under circumstances indicative of intimidation and coercion, an election for the purpose of discovering its employees' representa- tives, and keeping under surveillance the meetings of the members of the United in its employ, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. The respondent filed an answer denying that it was engaged in interstate commerce within the meaning of the Act and that it had engaged in the alleged unfair labor practices, and stating affirma- tively that the Independent had been voluntarily selected at an election by a majority of its employees as their bargaining repre- sentative. The respondent also filed a demand for a bill of par- ticulars. Counsel for the Board filed a bill of particulars, to which the respondent filed exceptions. The Independent filed an answer denying that the respondent had initiated, formed, and sponsored it, and dominated, interfered with, and contributed support to its administration. Pursuant to the notice, a hearing was held at Newark, New Jersey, on March 21, 22, 23, 24, and 25, 1938, before Elliott L. Biskind, the Trial Examiner duly designated by the Board. The Board, the respondent, the United, and the Independent were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all the parties. During the course of the hearing, the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. J. WISS & SONS COMPANY 603 On April 19, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon all the parties, find- ing that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices; that it withdraw all recognition from the Independent as a representative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; and that it offer full reinstatement to Henry Nolan. The respondent and the United filed exceptions to the Intermediate Report. The respondent filed a brief in support of its exceptions. The Independent also filed a brief. On January 26, 1939, pursuant to notice duly served upon all the parties, oral argument, in which representatives for the respondent and the Independent participated, was had before the Board in Washington, D. C. The Board has considered the briefs and has reviewed all the exceptions to the Intermediate Report and hereby overrules the United's exceptions and sustains the exceptions of the respondent in so far as they are directed to the Trial Examiner's finding and conclusion that the respondent has engaged in unfair labor practices and his recommen- dations based thereon. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is engaged in the business of manufacturing shears, pruning shears, and scissors. It operates a manufacturing plant in Newark, New Jersey, consisting of two four-story buildings con- nected by a passageway, with a total floor space of 150,000 square feet. Normally, the respondent has about 400 employees on its pay roll. The only raw material used in the manufacture of its products is steel; 75 per cent of this steel is shipped to its plant from points in New York and Pennsylvania. Over 75 per cent of its manu- factured products are shipped to points outside the State of New Jersey. We find that the operations of the respondent, set forth in the pre- ceding paragraph, occur in commerce, within the meaning of Section 2 (6) of the Act. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Committee for Industrial Organiza- tion, admitting to membership employees of the respondent. The Wiss Employees' Independent Union is an unaffiliated labor or- ganization, admitting to membership all employees of the respondent except those connected with the rate department and those in executive positions, such as superintendents, department heads, foremen, assist- ant or subforemen, or anyone with authority to hire and discharge employees. III. THE ALLEGED 'UNFAIR LABOR PRACTICES A. The alleged espionage Late in June 1937, the United began a campaign to organize the respondent's employees. On numerous occasions during the follow- ing months the United had circulars distributed among the employ- ees as they entered or left the respondent's plant, and on the evenings of June 29, July 14, and July 21, 1937, the United held meetings for the employees in a hall on Academy Street in Newark. On July 27, 1937, circulars announcing a meeting for employees interested in the United for the evening of July 29, 1937, at Academy hall, were dis- tributed among the employees as they left the plant. As Henry Nolan and John Finucan, employees belonging to the United, were entering Academy hall on the evening of July 29 to at- tend the United meeting, they were stopped by Frederick Rauh, Jr., an employee of the respondent and son of the superintendent of the respondent's plant. Rauh asked the two men if they were attending the United meeting, and, upon receiving an affirmative reply from them, stated that he had already been inside the hall and had found that no one was there yet. Rauh then walked away, informing Nolan and Finucan that he would return later. About an hour later that evening Alex Burkon, an employee and United member, drove up to Academy hall. Seeing Foreman Joseph Schmid walking by the hall, Burkon hailed Schmid and asked him what he was doing. Burkon testified that Schmid replied that he wished to join the United, and that he, Burkon, told Schmid that foremen were ineligible for United membership. Schmid denied mak- ing this remark to Burkon. Two other employees, United members, Peter Rinoldo and Charles Shanley, now joined Schmid and Burkon. Shanley testified that while he was standing in front of Academy hall and talking with the group, he saw Rauh, Jr., drive past the hall in an automobile. After a short and friendly conversation, in which union affairs were not discussed, Burkon, Rinoldo, Shanley, J. WISS & SONS COMPANY 605 and Schmid decided to obtain some beer, and all four drove to a saloon in Burkon's car and spent the remainder of the evening there. Schmid testified that after eating supper at home that evening, he had gone downtown to do some shopping, and then had decided to visit a sick friend, Edgar Mendel. While he was walking to Mendel's home, as he passed by Academy hall, Burkon hailed him. Schmid testified that he had no intention of spying on the United meeting, and never discussed it with the employees that evening. He stated that when the three employees decided to drink beer, he postponed his visit to Mendel, and joined them. There is no evidence that the respondent's officials spied either on the three previous United meetings or on the subsequent meetings of the United, held almost weekly during the next 2 months. The July 29 meeting was not an unusual one. The record does not reveal any special reason why the respondent would spy on it only and not on previous or subsequent United meetings. Moreover, neither Schmid nor Rauh, Jr., in any manner concealed their presence or identity, or questioned the employees or expressed any opinion to them then or subsequently about the United or other labor unions. Nor is there any evidence that Rauh's father, the superintendent, ever questioned or expressed an opinion to an employee about the United. In addition, Rauh, Jr., so far as the record shows, was, as an employee of the respondent, eligible for membership in the United. It is also undisputed that Schmid's relations with the em- ployees were very friendly, and that he often attended parties and drank beer with them. We are of the opinion, and we find, that the record does not support the allegations of the amended complaint that the respondent's offi- cials kept under surveillance the meetings of the United members employed by the respondent. B. The discharge of Henry Nolan Henry Nolan worked for the respondent as a polisher in department L, under Foreman August Zieser , for over 10 years before he was dis- charged on August 11 , 1937. He was a piece worker and was tenth in seniority among the 20 polishers in this department. Nolan joined the United in July 1937 , and became a member of its organizing committee at the respondent 's plant. Nolan and Charles Shanley, the committee chairman , had each secured between 15 and 29 members for the United among the respondent's employees before Nolan was discharged. The respondent's piece workers are required to hand in to their foremen slips on which they have listed the lot numbers of the work 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD completed by them each day. These slips are handed in either after finishing the day's work or on the morning of the following day before commencing work. If a piece worker reports on his slip that he has finished a lot of work which, in fact, he has not yet completed, he has engaged in a practice known in the respondent's plant as "dead hors- ing." Since these report slips are used to compute the daily earnings of the piece workers, if an employee "dead horses," and thereafter leaves the respondent's employ before he actually has done the "dead horsed" work and before his "dead horsing" has been detected by the respondent, he will be paid for work he has not done. Consequently, the respondent has a rule, known to all its officers and employees, pro- hibiting "dead horsing." Nolan testified that he habitually "dead horsed" on an average of twice a week. He claimed that he always completed his "dead horsed" work the first thing the following morning, and that, therefore, he never had been paid for work he had not done. The evidence shows that on August 6 and on August 9, 1937, Nolan "dead horsed." Nolan never completed this "dead horsed" work, and inasmuch as the re- spondent did not discover these "dead horses" until about a week after his discharge, Nolan, at the time he left the respondent's employ, was paid for two lots of work which he had not done. Nolan testified that the sole occasion on which Foreman Zieser had ever reprimanded him for his "dead horsing" was about a year before, his discharge. Nolan admitted that he knew of the respondent's rule prohibiting "dead horsing" and that despite this rule and Zieser's reprimand he continued to "dead horse" habitually. Nolan stated that "dead horsing" was a common practice in his department, and that, so far as he knew, only one other employee, besides himself, had ever been rebuked for "dead horsing." Zieser claimed that he had sharply rebuked Nolan for "dead horsing" at least a dozen times dur- ing the year preceding Nolan's discharge, the last rebuke occurring about a month before he discharged Nolan. Andrew Schaefer, an em- ployee who worked near Nolan, testified that he heard Zieser rebuke Nolan for "dead horsing" about 6 months before Nolan left the re- spondent's employ. The evidence convinces us that before his dis- charge Nolan had been reprimanded several times by Zieser for "dead horsing." Zieser testified that, to his knowledge, only one other em- ployee in his department, one Bilobran, had ever "dead horsed"; and that after being rebuked several times, Bilobran stopped "dead horsing." In addition to Nolan, several other employees, including Finucan, Burkon, William Pericin, and Shanley, all testified that "dead hors- ing" was a common practice in the plant and that they often engaged in it. The respondent's foremen, however, all testified that they J. WISS & SONS COMPANY 607 made every effort to enforce the rule prohibiting "dead horsing" and that, to the best of their knowledge, the practice was not a common one in the plant. There is no evidence that any foreman ever tolerated "dead horsing" once he discovered or suspected its existence. On the contrary, Nolan, Pericin, and Henry Schmid, an employee, all stated that their foremen, upon discovering their "dead horsing," severely rebuked them for it. However, the evidence indicates that if a piece worker "dead horsed" on but one lot of work a day, and always completed this lot the first thing the next morning, he could escape detection by hisj foreman, who customarily would not have checked over the worker's report slip until after the employee had finished work on the "dead horse." We are of the opinion that "dead horsing" was a common practice in the respond- ent's plant, but that the respondent's officials were unaware of the extent of this practice and always, upon discovering it, reprimanded the offending employee. No employee, prior to August 11, 1937, had ever been discharged for "dead horsing." However, so far as the record shows, all employees who previously had been detected in the practice of "dead horsing" had, after being reprimanded several times by their foreman, either ceased to engage in it or never again been caught at "dead horsing." Nolan testified that on August 10, 1937, Zieser told him, "Some- body around here is going to learn something." Zieser testified that at this time he suspected-and as the evidence shows his suspi- cions were well founded-that Nolan, despite several reprimands, was still "dead horsing." So far as the record shows, Zieser's remark referred to Nolan's "dead horsing" and not to United activity. In fact, Zieser denied, and there is no evidence to the contrary, that he ever knew that Nolan belonged to, or was active in behalf of, the United. On the morning of August 11, 1937, about 20 minutes before work in the plant began, Nolan handed Zieser his report slip for August 10, on which he had listed two "dead horses." Nolan then entered the employees' washroom, and, joining a group of employees, unsuc- cessfully attempted to persuade one of them, Frank Metrione, to join the United. A thick wooden door, then closed, shut off the washroom from the rest of the plant. Zieser testified, and there is no evidence to the contrary, that on looking over the slip Nolan had handed him, lie immediately sus- pected Nolan had "dead horsed," and, going at once to Nolan's bench, quickly checked Nolan's work and discovered the two "dead horses." Thereupon he proceeded to the washroom, opened the door, and called out to Nolan : "You are through, you are fired." Zieser claimed that he discharged Nolan solely because of Nolan's persistent "dead hors- 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing" in violation of the respondent's rules and despite frequent warn- ings and reprimands. Nolan claimed, and Zieser denied, that Zieser, after opening the door, shouted; "Nolan, are you holding a meeting here? You are fired." Metrione, the only other person to testify at the hearing who was present in the washroom at this time, stated that he did not hear anything Zieser said to Nolan. The thick closed wooden door, however, completely prevented Zieser's seeing or hearing Nolan speaking to Metrione about the United, and 3 minutes before Zieser entered the washroom, Nolan had ceased talking to Metrione about the United. Moreover, the evidence indicates that Zieser discharged Nolan immediately after opening the washroom door, before he had had time to observe what Nolan was doing in the washroom. Zieser then escorted Nolan to the cashier's office in the plant, and told Nolan to wait there for his pay until the cashier arrived. While Nolan waited, Zieser returned to Nolan's desk, and as Finucan watched, again checked Nolan's work tg make certain of Nolan's "dead horsing." Two foremen, seeing Nolan outside the cashier's office, asked him what the trouble was, and were informed by him that he had been discharged for United activity. The foremen made no reply. Nolan had not previously made this statement to Zieser or anyone else. About 8 o'clock Nolan saw Superintendent Rauh and told him Zieser had discharged him, Nolan. Rauh stated that Zieser "must have had a good reason" for such action and told Nolan to get his pay. No- lan than asked the cashier for his pay, telling her to deduct his two "dead horses" for August 10. Zieser, who had returned, asked Nolan to sign a receipt for his pay. Nolan refused to do so. Zieser testi- fied that then, for the first time, he informed Nolan that "dead horsing" was the reason for his discharge, and that Nolan replied that United activity was the true cause. Nolan denied that Zieser mentioned "dead horsing" to him at this time. After leaving the plant, Nolan went to the offices of Neil Brant, a United organizer, and told Brant about his discharge. About 3 o'clock that afternoon, Nolan returned to the plant, and, after he had signed a receipt, received his pay. Nolan claimed, and Zieser denied, that Zieser then, for the first time, stated that "dead horsing" was the cause of Nolan's discharge. Brant, immediately after seeing Nolan, made a typewritten memo- randum based on notes he had taken during his interview with Nolan. This memorandum contains the following statement : When Nolan was asked to sign for his pay [on the morning of August 11], he was told he was dismissed because he fell behind in his work on Friday, August 6. J. WISS & SONS COMPANY 609 Nolan is a piece worker, and on that day, he fell behind 4 lots which was 50% of the usual day's work performed. As previously pointed-out, Nolan had "dead horsed" on August 6, but the respondent did not discover this "dead horse" until a week after Nolan's discharge. At the hearing, neither Brant nor Nolan explained the above statement in Brant's notes. This statement, ap- parently referring to "dead horsing," indicates that Zieser did men- tion "dead horsing" to Nolan when Nolan was discharged on the morning of August 11. Nolan also testified that although he knew on the afternoon of August 11 at the very latest that the respondent claimed to have discharged him for "dead horsing," he did not men- tion "dead horsing" to Brant until 3 or 4 days later. By accident or design, therefore, Nolan either misstated to, or concealed from, Brant the facts about his "dead horsing." Nolan also testified, and Zieser denied, that a few minutes after Zieser had discharged him in the washroom, he asked Zieser if Finu- can could bring home his work clothes which were in the plant, and that Zieser replied : "Maybe I will get rid of him [Finucan] too." Finucan usually worked on the second floor in Foreman Joseph Thompson's department, but for several weeks he had been working near Nolan on the third floor. Finucan testified that later that day Foreman Thompson ordered him to return to his former bench on the second floor, saying : "You will be better off down here, maybe you can keep out of trouble." Thompson, who denied making this statement, testified that, be- cause of the crowded condition of the second floor, Finucan had been moved temporarily to the third floor; that Finucan constantly com- plained about this change, claiming that because there was less electric current on the third floor than on the second, his output was de- creased; and that the day after Nolan was discharged, when an op- portunity arose to shift Finucan back to the second floor, he did so. Thompson denied that Nolan's discharge had any influence on Finu- can's transfer. Finucan's report slips indicate that his earnings for the first few days after his return to the second floor were less than his earnings for the last few days he was on the third floor. The de- crease in Finucan's earnings is not explained by any evidence in this proceeding, nor does the evidence show whether the decrease was temporary or permanent. Finucan does not claim that his transfer back to the second floor in any manner constituted discrimination against him in respect to his tenure or condition of employment, or interfered with his United activity. We find that the respondent did not discharge Nolan because of his union membership and activity. 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The formation and administration of the Independent A few days after Nolan's discharge, Ernest Stacker, a stock clerk, informed Superintendent Rauh that he, Stacker, would "like to start an independent union" in the plant. Stacker testified that Rauh told him : "I can't advise you one way or the other whether you should form a union or not. You can or you cannot. It is for you to say." Rauh gave Stacker the impression that he wanted "no part of nothing about it, he could not tell me nothing [or] ... advise me one way or the other." Stacker then conferred with several other employees about organiz- ing an unaffiliated union, and by noon of August 30, 1937, he had arranged, through one of the employees, to use a garage across the street from the plant for a meeting of the employees immediately after the plant closed that evening. During the noon hour, Starker told many employees about this meeting. Frank Yannuzzello, an employee, testified that while he was working that afternoon Eddie Holmes, an employee, went through the department and invited all the employees to attend this meeting. There is no evidence that any foreman was present while Holmes was there. Stacker presided at the meeting. He testified that he told those present that the plan "is purely my undertaking and in no way connected or directed by company management" and that he urged the employees to form their own unaffiliated union. Shanley, who was present at the meeting, claimed that Stacker also said that "he was well informed that if we did not get a company union that Mr. Wiss would close the plant down for three months rather than let any other Union come in there." Stacker and other employees present at the meeting denied that Stacker made this statement. There is no evidence that any person actually or apparently author- ized by the respondent ever made such a statement. By September 2 or 3, Stacker, assisted by Hugh Stokes, an em- ployee, had had membership application cards printed and, together with other employees, began a campaign to obtain members for the Independent. Yannuzzello testified that Hugh Brady, an employee, asked him : "Did you hear about Marshall collecting slips and [Independent] union cards . . . One of the fellows in there told me, that Marshall was collecting the cards." William Marshall, who is a foreman, denied ever seeing or handling application cards for the Independent and there is no other evidence that he did so. We attach no weight to Yannuzzello's testimony. Julia Fiorita attended the August 30 meeting. Subsequently she was elected treasurer of the Independent, and solicited members for J. WISS & SONS COMPANY 611 it among the employees. Fiorita worked as a wrapper in department S under Foreman John Canmer. There are 31 employees in this de- partment, of whom 26 are women. Fiorita had worked for 17 years in this department and was the senior woman employee in it. She earned about $19 a week; the other women employees in the depart- ment earned between $11 and $14 a week. When Foreman Canmer was in the department, Fiorita did the same type of work as the other women, but when he left the department, as he sometimes did for an hour or longer, he often gave Fiorita specific orders to transmit to the other employees in the department during his absence. There is no evidence as to whether or not the other employees in this department considered Fiorita a supervisory employee. So far as the record shows, none of the other employees ever transmitted Canmer's orders during his absence. We are satisfied that Fiorita's supervisory duties, if any, are so trivial as not, in the absence of other evidence, to make her activity on behalf of the Independent, as above set forth, inter- ference with, and support and domination of, the Independent by the respondent. There is evidence that several employees, including Metrione, John Medynski, Jr., John Medynski, Sr., William Kraft, and Holmes, so- licited members for the Independent on the respondent's property out of working hours. However, Nolan and Shanley and other United members vigorously campaigned for the United on the respondent's property out of working hours. There is no evidence that the re- spondent's officials witnessed or interfered with the activities of either union in this respect. Yannuzzello testified that while at work he saw Fiorita speak to an employee, one Tony; that Tony immediately went to the washroom, and from there to the foreman's office; and that on returning to work, Tony told him, "I signed one of the Wiss Union cards." Tony, whose last name does not appear in the record, did not testify at the hear- ing, and there is no indication whether Tony signed the card while cleaning up in the washroom-where United members, such as Nolan, often solicited members-or in the foreman's office. Nor is there any evidence as to whether Fiorita told Tony to see the foreman about Independent affairs or on other matters. Yannuzzello first testified that he saw Holmes, during working hours, distribute Independent cards among employees in three departments, including Yannuzzello's. Subsequently Yannuzzello changed his testimony several times and finally stated that he saw Holmes give Independent cards to two employees in another department. Yannuzzello's testimony is so vague and contradictory that we can give it little credence. Finucan testified that Kraft for 20 minutes during working hours solicited employees to join the United. Burkon testified that during 169134-39-vol. 12-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working hours he saw Medynski, Jr., with Independent cards in his hands, talking to another employee. Pericin testified that he over- heard Medynski, Sr., during working hours solicit an employee to join the United. The respondent's plant consists of two four-story buildings with 150,000 square feet of floor space. The foremen are often out of their departments, and even when present cannot observe the actions of every worker under their supervision. Some of the foremen have departments located on several floors or in both build- ings. There is no evidence that any foreman ever witnessed or tolerated any of the above-described Independent activity which allegedly occurred during working hours in the plant. All the fore- men denied ever seeing or permitting union activity of any kind in the plant during working hours. In addition, about August 27 or 28, 1937, all the foremen were summoned by Superintendent Rauh to a meeting in the plant. Rauh ordered them "to keep our hands clean and not interfere and not get ourselves implicated one way or the other with either faction . . . to keep our hands off everything pertaining to Unionism . . . not to bother either way or the other so long as they were not doing any union activity during the working hours . . . let it run its course whichever way it does ... which- ever way it went we should be satisfied . . . C. I. O. or Independ- ent . . . we should not interfere in any way." There is no credible evidence that any foreman ever disobeyed these express orders of Rauh to remain neutral or ever uttered remarks showing hostility toward the United or friendliness toward the Independent. More- over, there is evidence that United members, during the absence of foremen, engaged in union activity and discussion in the plant dur- ing working hours. Joseph Cunningham, an employee, complained to Foreman Schmid that Michael Tynczyszyn, an employee belong- ing to the United, annoyed him with union matters during working hours. Burkon, during working hours, discussed the United with a fellow employee, Joe Fuss. All meetings of the Independent were held off the respondent's property and during non-working hours. All expenses of the Inde- pendent were met by dues paid by its members. The Constitution and Bylaws of the Independent show no trace of interference, domi- nation, or support by the respondent. On August 30, 1937, Brant arranged for a meeting to be held on September 2, 1937, between the respondent and United representatives. The next day the respondent posted a notice on the plant bulletin board informing employees that it had agreed to meet Brant, and that no one could either compel any employee to join a union or prevent his joining a union. At this meeting on September 2, Brant at once stated that a majority of the employees did not yet belong to the United. J. WISS & SONS COMPANY 613 N. C. Murray, the respondent's attorney, thereupon told Brant that another labor organization was also trying to organize the respond- ent's employees, and that the respondent was willing to bargain with any union which had a majority, but that the respondent was unwill- ing to bargain with any union until it was certain that such union represented a majority of the employees. Brant rejected a proposal by Murray to adjourn the conference for 10 days in order to give the United an opportunity of increasing its membership. That same day, after the conference had ended, the respondent posted a notice to employees on the plant bulletin board stating that since Brant ad- mitted that the United lacked a majority, the respondent had refused to bargain with the United; that the respondent had informed Brant that "there was another employees organization by which we had been approached"; and that the respondent was "ready to recognize and bargain collectively with any organization which represents a major- ity." Although the respondent's officials undoubtedly were aware by this time of the formation and activity of the Independent, there is no evidence that, apart from Stacker's interview with Rauh in the middle of August, the Independent either "approached," or sought a confer- ence with, or recognition from, the respondent prior to September 17, 1937. The record fails to explain this discrepancy between the state- ment contained in the respondent's bulletin of September 2, 1937, that the Independent had already "approached" the respondent, and the evidence that no such action was taken by the Independent until September 17. On September 23, 1937, an Independent bargaining committee met with the respondent. The committee offered signed membership cards to prove the Independent's majority. Murray, on behalf of the re- spondent, stated that the cards did not constitute satisfactory proof of the Independent's majority, in view of the United's demands, and suggested that the conflicting demands of the United and the Inde- pendent be resolved by a secret ballot to determine the wishes of the employees regarding labor organizations . The Independent commit- tee consented to such an arrangement. On September 24, the respondent posted a notice to employees on the plant bulletin board informing them that the United and the Independent had each asked the respondent to bargain with it; that the respondent would recognize as the exclusive bargaining agency any labor organization having a majority, but that the respondent must be certain that the organization it bargained with actually had been chosen voluntarily by a majority of employees ; that, therefore, on September 29, 1937, an election by secret ballot would be held; and that the respondent would recognize as exclusive bargaining agency the labor organization, if any, which received a majority of the ballots. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent requested representatives of the Board to partici- pate in the election, but in view of the fact that on September 18, 1937, the United had filed charges alleging that the Independent was dominated by the respondent, the Board's representatives refused to participate in the election. The United protested to the respondent against the holding of the election, refused the respondent's invita- tion to participate in the conduct of it, and urged its members not to vote in it. On September 29, 1937, the election was held. All employees were dismissed from their work before the customary closing hour. The balloting took place in the plant, but no employee was forced to vote, nor could the respondent ascertain whether or not an employee, after receiving a ballot, voted. A local minister, Reverend James Stauffer, supervised the election. The printed ballots allowed the employee to vote for either union or neither, and were secret. There is no evidence to impugn the fairness of the mechanics of the election. Of the 321 ballots cast, the United received 45, the Independent 247, 17 were void, and 12 were in favor of neither union. On October 14, 1937, the Independent and the respondent, after previous negotiations, entered into a written contract, which granted wage increases and recognized the Independent as the sole bargain- ing agency for the respondent's employees. This contract expired in October 1938, when, according to a statement made by the Inde- pendent's representative during oral argument before the Board, the respondent and the Independent signed another contract. We are of the opinion, and we find, that the record does not sup- port the allegations of the amended complaint that the respondent dominated, supported, and interfered with the formation and admin- istration of the Independent. The amended complaint alleged that the respondent by holding the election of September 29, 1937, interfered with, coerced, and restrained its employees in the exercise of the rights guaranted them in Section 7 of the Act. In previous decisions 1 we have repeatedly condemned elections held by employers without the consent of all the labor organ- 'Cf. Matter of Remington Rand Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R . B. 626, order enforced, Na- tional Labor Relations Board v. Remington Rand Inc., 94 F. (2d) 862 (C. C. A. 2d, 1938) ; Matter o f Maryland Distillery , Inc. and Distillery Workers Union 20270, 3 N. L. R. B. 176; Matter of Northrop Corporation and United Automobile Workers, Local No. 229, 3 N. L. R. B . 228, 234 ; Matter of Eagle Manufacturing Company and Steel Workers Or- ganizing Committee, 6 N. L. R . B. 492, order enforced, National Labor Relations Board v. Eagle Manufacturing Company, 99 F. (2d) 930 (C. C. A. 4th, 1938) ; Matter of McNeely J Price Company and National Leather Workers Association, Local No. 80, of the C. 1. 0., 6 N. L. R. B. 800; Matter of The Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646, 657; Matter of Shellabarger Grain Products Company and Flour and Cereal Workers Union, No. 20765, 8 N. L. R B 336. J. WISS & SONS COMPANY 615 lzations involved. However, at the conference with the Independent's representatives on September 23, 1937, the respondent, if it had been seeking to aid the Independent by according it recognition, might have recognized the Independent solely on the basis of its signed mem- bership cards. Because of this fact and under all the circumstances of this case, we are of the opinion that the respondent held the election on September 29, 1937, not in an attempt to aid the Independent or to undermine the United but in an honest endeavor to ascertain accurately the wishes of its employees.' We find that the respondent by holding the election of September 29, 1937, did not violate Section 8 (1) of the Act. But our experience has shown that the sponsorship of an election by the employer, the conduct of it in his plant during the customary working hours with supervisory officials present, and the possibility, doubtless known to employees, of hidden identification marks on the ballots, can cause employees to vote as they believe the employer de- sires.2 Therefore, even if the mechanics of the ballot are not im- peached and even if the election is not motivated by any desire of the employer to aid one union and discourage another, we cannot rely upon the results of an election conducted by an employer as an accurate and independent expression by the employees of their free choice of repre- sentatives. Consequently, any existing contract between the respond- ent and the Independent, in the absence of proof of the Independent's membership other than the election of September 29, 1937, will not be a bar to an investigation and certification of representatives by the Board, if a petition therefor is filed following the issuance of this decision.' Inasmuch as we have found that none of the allegations of the complaint in regard to the commission of unfair labor practices by the respondent are supported by the record, we will dismiss the en- tire complaint against the respondent. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The operations of the respondent, J. Wiss & Sons Company, occur in commerce, within the meaning of Section 2 (6) of the Act. 2. United Electrical, Radio & Machine Workers of America and Wiss Employees' Independent Union are labor organizations, within the meaning of Section 2 (5) of the Act. 2 Matter of The Heller Brothers Company of Newcomeretown and International Brother- hood of Blacksmiths, Drop Forgers, and Helpers, 7 N. L. R. B . 646, 657. s Apart from the election of September 29, 1937 , there is no evidence in the instant proceeding concerning membership in the Independent. The Independent's signed member- ship cards were not introduced in evidence. 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The respondent has not engaged in unfair labor practices, within the meaning of Section 8 (1), (2), and (3) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against J. Wiss & Sons Company be, and it hereby is, dis- missed. MR. DONALD WAKEFIELD SMITH, concurring: I concur in the decision and all of the foregoing opinion except the language on page 615 starting with "But our experience has shown that the sponsorship of an election by the employer" and ending with "if a petition therefor is filed following the issuance of this decision." It is found that the election of September 29, 1937, was held in an hon- est endeavor to ascertain accurately the wishes of the employees and that there was no evidence to impugn the fairness of the mechanics of the election. The evidence does not establish that the respondent showed any hostility to the United or favoritism to the Independent. At a time when the Independent was demanding recognition, the re- spondent requested the representatives of the Board to participate in the conduct of the election between the United and the Independent to determine the question concerning representation. The Board's representatives did not participate in the conduct of the election, as requested by the respondent, because of a then pending charge by the United alleging that the Independent was dominated by the respond- ent in violation of Section 8 (2) of the Act. However, it has been found in this proceeding that the Independent was not in fact so dominated. The employees having chosen the Independent as their exclusive bargaining representative through the medium of the elec- tion by secret ballot, the Independent was free to negotiate a contract with the respondent. The contract entered into as a result of the bargaining between the Independent and the respondent should receive the same con- sideration as any labor contract entered into between an employer and a bona fide labor organization. The question presented by the language of which I disapprove is whether the Independent was freely chosen as the representative of the employees through the medium of the election conducted by the respondent or his agent. The language indicates that the contract would constitute no bar to a proceeding by the Board during the term of the contract to determine the question concerning representation unless the con- tracting labor organization could in fact establish by adequate proof, J. WISS & SONS COMPANY 617 other than the results of the election, that it represented a majority of the employees at the time the contract was executed. Under the circumstances of this case I believe that the record clearly establishes that the employees were afforded the opportunity of freely choosing their collective bargaining representative through the medium of the election and that the Independent was so chosen. I believe that the dictum referred to is superfluous to the decision in this case. MR. EDWIN S. SMITH, concurring in part and dissenting in part : I concur in the majority's findings that the respondent has not engaged in unfair labor practices within the meaning of Section 8 (2) and (3) of the Act. I am satisfied, however, that the respondent has violated Section 8 (1) of the Act, by the posting of the August 31 and September 2 notices and the holding of the September 29 election. No reason appears why the respondent should have posted the notices, if it had no desire to influence its employees in their choice of representatives. The August 31 notice, after stating that the respondent had agreed to confer with the United, proceeded to emphasize that no employee need join a union.4 The September 2 ,notice, posted after the conference between the United and the respondent, after stressing the United's lack of a majority, stated that the respondent had been "approached" by the Independent, which, apparently, was not true, and that the respondent was "ready to recognize and bargain collectively with any organization which represents a majority." This notice, when viewed in light of the situation then existing at the plant, could only be construed by em- ployees as an exhortation and spur to organization by the Inde- pendent. In regard to the election, I agree with the statement in the Chairman's opinion that "our experience has shown that the spon- sorship of an election by the employer, the conduct of it in his plant during customary working hours with supervisory officials present, and the possibility, doubtless known to employees, of hidden identifi- cation marks on the ballots, can cause employees to vote as they believe the employer desires." I am of the opinion that the respond- ent, by posting the notices by which it indicated to the employees its preference for the Independent, and by thereafter conducting the election, has interfered with, coerced, and restrained its employees in the exercise of the rights guaranteed in Section 7 of the Act. 4 Cf Matter of Mansfield Mills, Inc. and Textile Workers Organizing Committee, 3 N. L. R. B. 901, 907.