Revere Copper and Brass Inc.

In the Matter of REVERE COPPER AND BRASS INCORPORATED and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL #303 Case No. C-1046.Decided October 05, 1939 Copper Sheets, Bars, Tubes and Rods Manufacturing Industry-Interference, Restraint, and Coercion: allegations in complaint alleging that- respondent has discouraged membership in the United by threatening to lay off or discharge members and by threatening to cut down amount of wages and work given members, dismissed-Company-Dominated Union: formation and domination of and support of; allowing use of meeting hall without collecting rent as provided in leasing agreement and turning over profits of candy-vending machines; continued domination by provisions in contract. which obstructed change in form of organization ; union . organized at respondent's suggestion ; disestablished as agency for collective bargaining-Contract: recognizing com- pany-dominated union as exclusive bargaining representative; respondent ordered to cease giving effect to. Mr. Edward D. Flaherty, for the Board. Mr. Seth Evans, of Rome, N. Y., for the respondent. Mr. Joseph A. Page, of Rome, N. Y., and Mr. John F. Cusack, of Chicago, Ill, for the Intervenor. Miss Carol Agger, of counsel to the Board. DECISION AND ' ORDER STATEMENT OF -THE CASE Charges and amended charges having been duly filed by United Electrical, Radio & Machine Workers of America, Local #303, here- in called the United, the National Labor Relations Board, herein called the Board, by Henry J. Winters, Regional ,Director for the Third Region (Buffalo, New York) issued and duly served its com- plaint dated June 28, 1938, against Revere Copper and Brass In- corporated, Rome, New York, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 16 N. L. R. B., No. 44. 437 438 DECISIONS. OF NATIONAL.,LABOR.RELAT,IONS BOARD, The complaint alleged in substance that during the months of April, May, and June, 1937, and thereafter up to the date of the filing of the complaint, the respondent by various acts and means, fostered, encouraged, sponsored, dominated, and interfered with the formation, enlistment of members, and administration, of a labor organization of its employees, known as the Revere Copper and Brass Independent Employees Union, Rome Division, herein called the Intervenor, and contributed financial and other support thereto; and that the respondent has, since on or about April 18, 1937, and at. various 'times thereafter, .by.the :,aforesaid., acts... and,. means,- and, by threatening to lay off or discharge members of the United and by threatening to cut down the amount of wages and the amount of work given members of the United, interfered with, restrained, and coerced its employees' in the exercise of the rights guaranteed in Section 7 of the Act. On July l,'1938, the Intervenor filed a petition to intervene is the proceedings, which petition was granted by the Regional Director. Thereafter, the respondent and the Intervenor filed answers to the complaint. The respondent in its answer admitted certain allega- tions concerning its business, denied that it had committed any of the unfair labor practices alleged in the complaint, averred that if any election of officers or representatives of the Intervenor was held on the respondent's property during working hours, it was without the permission, knowledge, or consent of the respondent, and peti- tioned that the complaint be dismissed. The Intervenor in its answer denied those portions of the complaint which alleged that the re- spondent-bad fostered, encouraged, -sponsored, dominated, and in- terfered with the formation, enlistment of members, and administra- tion of the Intervenor and had contributed financial and other sup- port thereto, and petitioned that the complaint be dismissed. Pursuant to notices of hearing a hearing was held at Rome, New York, on July 11, 12, 13, 14, and 15,.1938, before Webster Powell, the Trial Examiner duly designated by the Board. The Board, the respondent,'. 'and the Intervenor were represented by counsel and participated;- in the . hearing. Full. opportunity to be heard, to ex amine 'a'rid cross-exainilie witnesses, • and introduce evidence' bearing on the issues was afforded all parties.- -During the course of the hearing, the Trial Examiner made several rulings on motions, on requests for the issuance of subpenas,l and on objections to the achliission of evidence. At the conclusion of the '1 The Intervenor contends in its brief filed in support of its Exceptions to the Interme- diate Report that it was denied it fair hearing before the Trial Examiner by reason of his, refusal to issue a .autbpgna daces teorun directing the United to produce all books of record , membership records, books of account , financial records , minute books , constitution and bylaws, and correspondence filed by the United, with it record of the payment of initia- REVERE COPPER AND BRASS INCORPORATED 439 hearing the complaint was amended to conform to the proof. At the conclusion of the hearing the respondent and the Intervenor moved that the complaint be dismissed. The Trial Examiner denied the motions in his Intermediate Report. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby, affirmed. On November 21, 1938, the Trial Examiner issued his Intermediate Report. He found that the respondent had engaged in and was engaging in unfair labor practices, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act, and recom- mended that the respondent cease and desist therefrom and take certain affirmative action to remedy the situation brought about by the unfair labor practices. Thereafter the respondent and the In- tervenor filed exceptions to the Intermediate Report and briefs in support of the exceptions. On January 16, 1939, the Intervenor filed with the Board a peti- tion alleging that at the time of the hearing certain vital exhibits were mislaid and could not be found by the attorneys for the Inter- venor despite a diligent search; that these exhibits contained infor- mation regarding certain payments by the Intervenor to depart- mental representatives for time expended in attending certain meetings; that the exhibits had been discovered; and requesting that the Intervenor be given leave to offer the exhibits in evidence. On January 16, 1939, the Board issued an order reopening the case. On February 10, 1939, the Board's Regional Attorney filed a peti- tion with the Board requesting that the case be reopened for the .presentation of certain newly discovered evidence. On the same day, the Board issued an amendment to the order reopening the case and on February 14, 1939, the Board issued a supplemental order reopening the case. Upon notice duly given, a supplemental hearing was held on'February 16, 1939, in Rome, New York, before Webster Powell, the Trial Examiner duly designated,by the Board. The Board, the respondent, and the' Intervenor were represented by counsel. Full opportunity to be heard, to examine and cross- examine witnesses, and introduce evidence bearing on the issues was afforded all parties; During the course of the supplemental hear- ing, the Trial Examiner made several rulings on motions and objec- tions to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. tion fees and dues , and copies of any contracts or correspondence between the United and the respondent . The Intervenor does not state , either in its application for subpena or elsewhere in the record , any reason why these documents were required or the manner in which it was prejudiced by the Trial Examiner 's ruling, nor is any prejudice apparent to us. 24 7383-40-vol. 16--29 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 11, 1939, the Trial Examiner issued his Supplemental Intermediate Report reaffirming the findings, conclusions, and rec- ommendations contained in his Intermediate Report, and making certain supplemental findings with respect to the payment of em- ployees by the respondent for time spent in attending certain meet- ings of the Intervenor. On April 21, 1939, the respondent and the Intervenor filed their exceptions to the Supplemental Inter- mediate Report and on May 20, 1939, they filed supplemental briefs in support of the exceptions. Oral argument was held before the Board on July 20, 1939, follow- ing notice duly served upon all parties. The respondent and the Independent participated in the oral argument, but the United did not appear. The Board has considered the exceptions to the Intermediate Report and the Supplemental Intermediate Report, together with the briefs in support of the exceptions, and finds that, except so far as they are consistent with our findings and conclusions below, the exceptions are without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Revere Copper and Brass Incorporated, is a corporation organ- ized under the laws of the State of Maryland, with, its principal offices in New York, New York. The respondent operates manu- facturing plants in Chicago, Illinois, Detroit, Michigan, Baltimore, Maryland, New Bedford, Massachusetts, and Rome, New York. Only the Rome, New York, plant, known as the Rome Division, is here involved. In addition to these manufacturing plants, the respondent maintains sales offices in the principal cities of the United States. At its various manufacturing plants, the respondent engages in the manufacture of copper sheets, rods, bars, and tubes. The gen- eral nature of the processes performed on the raw materials, con- sisting of copper, alloys of copper and other metals, is casting, rolling, drawing or extrusion and other processes incidental to the general methods of manufacture. The principal raw materials used by the respondent at the Rome Division are copper, zinc, nickel, tin, and lead. The respondent causes these and other materials used by it in the manufacture of copper and brass products to be purchased and transported in inter- state commerce, from and through States other than the State of New York to the Rome Division. During the year 1937 the re- REVERE COPPER AND BRASS INCORPORATED 441 spondent purchased raw materials valued at $10,009,433 for use at the Rome Division, of which 75 per cent was shipped to Rome via the Barge Canal, rail, freight, and trucks. During the same year 49.4 per cent of the finished products manufactured at the Rome Division was shipped to points outside the State of New York via rail, rail and boat, trucks, parcel post, and express. The average number of employees employed at the Rome Division during 1937 was 2,623, these employees being grouped in the follow- ing classifications: supervisory and clerical, 360; maintenance, 309; production, 1,941; outside salesmen, 13. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio and Machine Workers of America, Local #303 is a labor organization affiliated with the Committee for Industrial Organization. It admits to membership production and maintenance employees, except those in supervisory positions, em- ployed in metal industries in the city of Rome. Revere Copper and Brass Independent Employees Union, Rome Division, is a labor organization unaffiliated with any other labor organization. It admits to membership the respondent's employees in the Rome Division who have been so employed for 30 days and who do not have disciplinary powers or the authority to hire or discharge and who are not members of any other employees' union, association, or group. III. THE UNFAIR LABOR PRACTICES A. Interference with, domination, and support of the Intervenor 1. Chronological statement of events In 1920 the Rome Brass and Copper Company, the respondent's predecessor, organized a plan of employee representation known as the Brass and Copper Industrial Council, herein called the Coun- cil. When the respondent bought the plant in Rome in 1928, it continued the operation of the Council. The Council's charter, pro- vided for an "advisory legislative body" made up of equal numbers of elected employee representatives and appointed employer repre- sentatives. Employee representatives were elected from the elec- toral divisions into which the plant was divided. Non-supervisory factory employees who had been on the pay roll for 1 month were entitled to vote in elections of representatives. The charter required that to be eligible as a representative, a person must have been an employee of the respondent for a year, 21 years of age, able to read and write English, and a citizen of the United States. The Council 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was granted the power to investigate, advise, and confer with the management, and to pass "legislation" referring to Wages, hours, working conditions, and other matters of mutual concern. Meas- ures passed by the Council were not effective until approved by the respondent's president. In the event of a deadlock between the Council and the president, the charter provided that arbitration could be resorted to by the Council. Since half the members of the Council were management representatives, the Council could not proceed to arbitration without the consent of at least one man- agement representative. The charter could be amended by a two- thirds vote of the Council and with the approval of the manage- ment. It made no provision for general membership meetings. On June 28, 1935,.a revised charter was issued by the respondent 2 which made two material alterations in the original plan : The pro- visions for employer representation in the Council and for manage- ment approval of amendments to the charter were deleted. The revised charter governed the employer-employee relationship in the respondent's plant at Rome until some time in 1937.3 Although by the charter revision of June 1935, the respondent removed two methods of control from the plan of operation, never- theless the respondent could still exercise control over the Council. The respondent by discharging an employee could prevent him from :acting as, a representative since. all representatives were reduired to be employees. Nor were other changes made in the charter which would have been necessary to an independent existence. No dues were provided for, and the respondent continued to supply meeting space and necessary services to the Council. The respondent also paid the employee representatives for the time lost from work by reason of their attendance of Council meetings. It is apparent from the foregoing, and we find, that the Council was originally organized by the respondent's predecessor, that it was reorganized by the re- .spondent, that at all times after 1928 it remained subject to the respondent's domination and control, and that the respondent inter- fered with, dominated, and -contributed support to the formation and administration. "The record does not fully disclose the procedure followed in revising the charter.' How- ever, it appears that the action was taken upon the initiative of the management and we so find. Works Manager Richmond testified that the charter was amended because, "It was felt that under' the old set-up, . although the men were free to talk at the meetings where equal representation was present, that possibly the men did not talk as freely as they would like to . . Counsel for the respondent then asked : Q. Wasn't it also due to the fact that the company believed it 'would be more in keeping with the Wagner Act, which had recently been passed? A. Yes, that is right. 3' The date when'the council fell into disuse is a matter of dispute and is discussed below. REVERE COPPER AND'BRASS INCORPORATED 443 On April 12, 1937, the Supreme Court of the United States decided the Jones d Laughlin case 4 upholding the constitutionality of the Act as applied to certain manufacturing enterprises. Works Man- ager Richmond testified that after this decision was handed down he was notified by the respondent's New York office that the re- spondent could no longer participate in the activities of the Council as it then existed and that he, therefore, called a meeting of the employee representatives on May 17, 1937. According to his own testimony, Richmond notified the representatives that the respondent could no longer operate under the Council as it then existed. The minutes of this meeting 5 read in part as follows : Mr. Richmond announced that certain changes would have to be made in the Council; that most of the men knew, from reading the papers, that this change is caused by recent laws enacted in Washington. The first change would be that Mr. Bow would no longer act as Assistant Secretary. Second : No official of the company can attend meetings except on special invitations ... Third : The company cannot supply stenographic services, paper, or anything of this nature. Fourth : The company can no longer pay employees for the time they are attending meetings, unless a meeting is called on request of the company to make some announcement to the men. Fifth : The company will have to make a charge for the room ,in which meetings are held. We also may have to make a small charge for the space occupied by the vending machines 6 thruout the mill, as the profits from these machines go to the men. Sixth : As you have no money at present to operate on, we will turn over to the Treasurer of the Council the money that is now being held, which represents the profits from the vending machines, and hereafter, instead of Mr. Beasley, Mr. Phillips and myself acting as trustees for this money, it will be turned over to your Treasurer monthly. If, at any time, you want me, I will always be available to attend any meeting where my presence is desired and, as in the past, will be glad to do anything for you within my power .. . The respondent contends and some witnesses testified that in addi- tion to the remarks noted in the minutes, Richmond stated among other things that the Council was disbanded or would have to be 0 * National Labor Relations Board V. Jones & Laughlin Steel Corp., 301 U. S. 1. 5 Richmond testified at the hearing that the minutes were substantially correct. 8 These are machines placed around the mill for the stile of candy, salted peanuts, and the like. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disbanded. Richmond testified that he thought he made no state- ments other than those appearing in the minutes. That the re- spondent did not then propose that the Council be disbanded, or believe, as it now contends, that the Council was disbanded on May 17, is shown by the fact that on May 22, 1937, it entered into a leasing agreement with the Council for meeting space and space for "the. use and occupancy of vending machine units of the Council." 7 Fur- thermore, we are of the opinion that the minutes provide a more reliable version of the meeting than testimony of witnesses based upon their recollection of events occurring more than a year before. We find, therefore, that the minutes state the substance of what Richmond said at the meeting. At the conclusion of his talk, Richmond left the Council meeting. The representatives then discussed the formation of a new organiza- tion and appointed a committee of three 8 of their number to consider the future course of action. This committee held one or two meet- ings within a few days of its appointment, made no progress, and never met again. I Within a week of the May 17, 1937, meeting with Richmond, a new committee, herein called the committee of five, was organized to take the initiative in the formation of a new organization.9 The only evidence as to just how the committee of five was organized is found in the testimony of Lamphier 10 He testified that within a week of May 17, 1937, the individuals who had been representatives in the Council had a meeting in a part of the respondent's property known as the Riverdale Clubhouse. Those present at the meeting decided that the five council members named above should constitute ` the organizing committee for a new organization. In the absence of other evidence concerning the formation of the committee of five, we accept Lamphier's testimony and find that the committee was organized as stated above. By June 8, 1937, Mead, one of the committee of five, had had red, white, and blue cards printed which read in part as follows : INDEPENDENT EMPLOYEES ASSOCIATION OF REVERE COPPER AND BRASS INCORPORATED I agree to join the Independent Employees Association which is being formed by the Committee whose names appear below. The names listed were those of the committee of five. These cards were passed out to the employees by the committee of five and by 7 This leasing agreement is discussed below under the heading of "financial assistance .to the Intervenor." 'The committee consisted of Sherman Taylor , Anderson , and De Matteo. O The committee of five was made up of Spado , Mead, Natali, Lamphier, and Anderson. 11 Sometimes referred to in the record as Lamphear. REVERE COPPER AND BRASS INCORPORATED 445 other Council representatives. The Intervenor contends that the cards were passed out only by the committee members, but there is evidence that Thomas Sherman, De Matteo, Miraballi, Murphy, and Sherman Taylor, all Council representatives, also passed out the cards. We find that the committee was assisted in procuring signa- tures to the cards by at least some of the Council representatives. While there is evidence that a number of signatures were procured upon the respondent's premises during working hours, the record contains no substantial evidence that these activities were observed by supervisory officials. The record does not disclose the number of employees who signed the card but it appears that a large number of signatures was obtained. No "Independent Employees Association of Revere Copper and Brass Incorporated" was ever in fact formed. The Intervenor con- tends that the purpose of the card was to test the sentiment of the employees to determine whether a sufficient number was interested in the formation of an independent labor organization, and that no organization of that name was contemplated. This contention is not in harmony with the appearance or wording of the card which on its face appears to be an application to or an agreement to join a particular organization then being formed by a committee. How- ever, we make no finding on the matter. The Intervenor states in its brief in support of exceptions to the record and Intermediate Report that "on or about June 10, 1937, William Anderson [a member of the committee of five] went to Attorney Joseph A. Page [one of the attorneys representing the intervenor in these proceedings] and retained him for legal services in connection with the organization of such an independent group. Anderson told Page that a committee would wait on him within a few days thereafter, to make all necessary arrangements, and dur- ing the following week met with him two or three times, in his office." The record, however, contains no evidence concerning the retention of Page by the committee or any conferences between him and Anderson. The record does show that on or about June 19, 1937, a group of 21 men conferred with Page. Taylor, one of the men present testified that all these men had been Council representa- tives. The Intervenor urges that those present at Page's office were never identified as representatives of the Council and that they were departmental representatives picked by the organizing committee throughout the plant. There is no evidence in the record to support this contention. Taylor's testimony is the only evidence on the point in the record and we find that the persons attending the meeting were Council representatives. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apparently, as the Trial Examiner found, measures to be taken in connection with the formation of an independent labor organiza- tion were discussed with Page. Thereafter, on June 24, 1937, Mead had another set of cards printed. The cards were applications for membership in Revere Copper and Brass Independent Employees Union, the Intervenor. The record does not disclose how, when, or by whom the name was chosen. However, since the committee of five was the organizing force behind the Intervenor, it is probable that the name was chosen by the committee. Signatures to the ap- plications were procured by the committee members, with the assist- ance of some persons who had been Council representatives in much the same way as signatures were obtained upon the first set of cards. Although a number of those soliciting signatures deny that they ever did so during working hours the record discloses that at least some signatures were obtained on the respondent's property during working hours," and we so find. While there is no evidence that the supervisory staff generally knew that the solicitation was going on during working hours, one incident occurred in which a foreman lent his assistance to Mead who was procuring signatures to the application cards in his de- partment. Ewanyk, an employee, testified that he observed Mead come into his department and stand at Foreman O'Brien's desk for awhile talking. Mead carried a stack of application cards. After some discussion with Mead, O'Brien approached Ewanyk and said, "Go ahead, he wants you to sign [up for] the union." Ewanyk proceeded to the desk where Mead asked him to join the Intervenor. Ewanyk protested that the Intervenor was a "company union" and Mead explained that it was not. O'Brien stood at the desk during the conversation which, according to Ewanyk, made him "a little afraid." Ewanyk said he would think it over and subsequently did join. After Ewanyk's conversation with Mead, the other employees in the department went up to the desk, one by one, and talked to Mead. O'Brien did not testify. Mead's testimony on the point was as follows : Q. Did you ever sign anyone up in his [O'Brien's] department? A. Yes. Q. Were you ever at his desk in his department? A. No sir. Q. Never? A. No business beyond when I delivered tools. "The record also contains evidence that some months later persons interested in the United solicited membership in the plant during working hours. REVERE COPPER AND BRASS INCORPORATED 447 Q. Were- you there during lunch hour signing anybody up? A. Yes. Q. How long were you at the desk? A. A very few minutes. We find that Ewanyk's version of the incident is substantially cor- rect although he may have overstated the time spent by Mead in signing up the men. The respondent objects that Ewanyk's testimony does not show that he joined the Intervenor as a result of the interference or coer- cion of any supervisory official, (1) because Ewanyk did not join the Intervenor for several months thereafter and (2) because he testified that O'Brien did not tell him that he must join the Inter- venor and that no supervisory official told him that he, must join the Intervenor to keep his job. We cannot subscribe to this view of the incident. O'Brien's cooperation in getting cards signed by send- ing the men up to his desk for an interview obviated any necessity of telling any of them that they must join; he had sufficiently indi- cated his desires in the matter. Ewanyk did not forget the incident for he testified that when he did join the Intervenor some months later he did so to "protect" his job, although, as the respondent points out, no one had told him that he must join the Intervenor to protect his job. Ewanyk drew a reasonable inference from O'Brien's acts and we do not feel that the fact that he did not act immediately upon the inference negates our conclusion that Ewanyk was influenced by his foreman to join the Intervenor by the coercion implicit in the foreman's acts, and- we so find. Independently of our conclusion that Ewanyk was coerced by O'Brien's acts, we can- not accept the contention that an unsuccessful attempt to interfere with the freedom of Ewanyk and of other employees in the depart- ment in their choice of a labor organization does not constitute a violation of the Act. On June 26, 1937, a mass meeting of employees was held by the committee of five. The second application cards, referred to above, were passed out at that meeting and a substantial number were signed at that time. The Intervenor's constitution and bylaws, which had already been prepared, were presented to and accepted by those in attendance at the meeting. The constitution so adopted bears a general resemblance to the Council's charter in the type of organization contemplated although a number of the details are dissimilar. Both documents limit membership to those of the re- spondent's employees who have been on the pay roll for 30 days; 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD provide for an employee's representation plan and for the election of departmental representatives; and make similar eligibility re- quirements of age, citizenship, and employment service with the respondent for employee representatives.12 The departmental representatives make up the Board of Repre- sentatives in which the constitution vests all "powers of this Union and full and complete authority to act in all matters, except such powers and authority as are herein reserved to the members and herein delegated to and vested in the officers." Generally, the Board of Representatives is the governing body of the organization. Among other powers vested in the Board of Representatives is that of deciding by a majority vote whether or not to submit to the mem- bership the question of whether a strike should be called. The constitution provides that if two-thirds of all the members voting, which must be at least a majority of all members in good standing, vote to authorize the Board of Representatives to call a strike, the question shall be again submitted to the Board of Representatives; and that the Board of Representatives may, at any time thereafter, call a strike by the vote of the majority of the Board of Represen- tatives. The constitution makes no provision for regular 'membership meetings except an annual meeting, but provides that such meetings may be called as determined by the Board of Representatives or on the petition of 50 members. The Board of Representatives is also authorized to appoint committees and assign duties to them. Dues of 25 cents a month for the first year and thereafter 25 cents every 3 months are also provided. The constitution further provides for the maintenance of member- ship in the Intervenor by employees. discharged "without just cause" until the Board of Representatives has investigated and determined his status and determined what action is to be taken. The Council's charter made no such provision for continuing membership. On July 24, 1937, a general membership meeting was held for the election of officers of the Intervenor. Edwin Hamilton was elected to the Intervenor's presidency. On July 26, 1937, Hamilton went to see Works Manager Richmond and they discussed the possibility of an agreement between the respondent and the Intervenor. Rich- mond, who testified that he had been advised by a member of the committee of five, even prior to the organizational meeting on June 26, 1937, that an independent union had been or was being organized, obviously anticipated Hamilton's visit. He gave Hamilton a copy is The Council's charter required representatives to have been employees for 1 year. The Intervenor's constitution, a typewritten copy of which was introduced as an exhibit at the hearing, provides for a 3-year employment period. The words "(1 year)" are written in pen and ink in the margin adjacent to this provision. The change, if ever made , is not, explained. REVERE COPPER AND BRASS INCORPORATED 449 of a proposed agreement he had prepared and told Hamilton that he, Richmond, would have to be sure that the Intervenor represented a majority of the employees before he would enter into a contract. The proposed contract provided for the recognition of the "Inde- pendent Employees' Union" as the exclusive bargaining agent of hourly rated employees with certain specified exceptions not here material and included provisions relating to hours of work, rates of pay, overtime, seniority, and vacations. The proposed contract fur- ther provides that "Department representatives will be selected by union members working in the department which the department representative represents"; "that no one shall be selected to the posi- tion of department representative unless he has been continuously in the Division [respondent's] employment for at least three (3) years"; and that "the grievance committee shall be composed of not more than five (5) employees who have been continuously in the Division employment for at least - years . . " Between August 1 and 5, 1937, the election of departmental employee representatives was held in the plant. Ballots were passed out to the employees in the various departments in the plant either at noon or as they punched their time cards in on their way to work. It is denied by none of the parties that they were given out on the respondent's property. There is considerable conflict in the evidence as to whether some of them were given out during working hours and this does not appear to have been the general practice. Ballot boxes were placed under the time-clocks in the several departments and although Hamilton testified that all departments were instructed to hold the election at noon, it appears that in some departments the men placed their ballots in the boxes on their way out at the end of the shift. The foreman habitually stood at the time-clocks as the men punched in and out. In one department the ballot box was locked in Superintendent Tietz's office over night until it could be collected in the morning. A second election of representatives was held in February 1938, in about the same manner. Richmond testi- fied that any elections of representatives held in the plant were held without his permission and that had his permission been sought, he would have refused it. However, it is apparent that. the foremen knew that the elections were going on and while there was no express permission granted to the Intervenor to hold the elections in the manner described above, no objection, was made. On August 5, 1937, the newly elected representatives met and dis- cussed the provisions of the proposed contract which had been sub- mitted. On the following day, Hamilton presented to Richmond a petition asking recognition of the Intervenor as the sole bargaining agent and claiming to represent 90 per cent of the employees. On the same day Mead, together with Beasley, the respondent's per- 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sonnel director, checked application cards against the names and sig- natures of the hourly rated employees on the pay roll. The check disclosed that 61 per cent of the hourly rated employees on the pay roll or 77 per cent of the employees who were actually working that day had signed membership applications. On August 10, 1937, a second meeting of the representatives was held-to discuss the proposed contract. The Intervenor contends that Richmond was present at this meeting. The minutes do not disclose that Richmond was there, Richmond himself could not remember, and there is considerable conflict in the testimony of those who testi- fied concerning the meeting. The Trial Examiner found that Rich- mond was not present. In view of our conclusions below Ave find it unnecessary to make any finding concerning the correctness of his determination. On August 12, 1937, Richmond wrote a letter to the Intervenor recognizing it as the sole bargaining agent. Thereafter, Richmond received from the Intervenor. a written counterproposal in the form of a contract. Among, the suggestions made by the Intervenor in its counterproposal was one for higher hourly minimum rates than those provided in the respondent's original July 26th draft of a proposed contract. On August 16, 1937, Richmond met with the representatives to discuss the Intervenor's counterproposal. The discussion' at the meeting centered upon the wage question and the representatives ultimately decided to accept the rates contained in the respondent's original proposal. Other meetings were held to discuss the various provisions of the contract but the record does not disclose the dates upon which they were held. By August 21, 1937,: the, respondent and the Intervenor had come to an agreement upon the terms of the contract and it was signed. On the same day the respondent and the Intervenor executed a leasing agreement for meeting space and vending-machine space, identical with the lease of May 22, 1937, between the respondent and the Council referred to above. _ The record discloses no further activities on the part of the Inter- venor, with the exception of an employees' picnic given in August 1937, from the date of the execution of the contract until the early months of 1938 when the Intervenor held an election to determine whether the respondent should be allowed to initiate certain wage de- creases. In February 1938 a charter was issued to the United 18 18 Louis Torre, organizer for the United, testified that this was the date of the issuance of the charter. On March 11, 1939, the attorneys for the respondent, the Intervenor, and the Board entered into a stipulation that a charter was issued to the United "as of February 25, 1937." In view of Torre's testimony and in view of the fact that the record discloses no United activity in the plant until the spring of 1938, we are of the opinion that the stipulation may contain a typographical error and that 1938 rather than 1937 may have been meant. In any event the date of the issuance of the charter is not impor- tant, the record being clear that no substantial organizational activity took place until after the beginning of 1938. REVERE COPPER AND BRAS'S' INCORPORATED 451. There is evidence that persons interested in the United occasionally solicited membership on the respondent's property during working hours. There is no evidence that this solicitation was observed by the respondent's supervisory officials. The United posted its literature on the respondent''s bulletin boards from time to time. It was and has been the practice of the Intervenor to make a similar use of the re- spondent's bulletin boards. The respondent apparently took no action concerning the use of the boards although Richmond testified that neither he nor any supervisory employee had consented,to the use of the bulletin boards by either labor organization 14 2. Conclusions Domination of and interference with the formation and administration of the Intervenor We have found above that on May 17, 1937, Richmond told the Council representatives that certain changes would have to be made in the Council and stated that the accumulated profits from the. vending machines would be turned over to the Council to enable it to continue to operate.-' The first change which Richmond said was necessary was that Bow could no longer act as assistant secretary of the Council. Bow. was the respondent's treasurer. The second change was that no official of the respondent could attend meetings except on special invitation. The necessity of such a change is not apparent unless the respondent's officials had been accustomed to attend without invitation.16 Richmond also said that the respondent could no longer supply stenographic services or paper or pay the employees for time spent in meetings. Richmond's statement in- formed the Council representatives that the respondent desired and expected the Council, or an organization similar in its general outline to the Council, to continue in existence. The statement also informed the Council representatives as to the specific practices which would have to be discontinued. While certain support and financial assist- ance were to be withdrawn, Richmond told the Council representives . 14 The respondent also allowed employees to leave their work to carry on the Intervenor's business . Natali, one of the representatives , sometimes left his work for 2 hours at a time to post notices about the plant or to notify other representatives of meetings. Rep- resentatives were also allowed to leave their work to attend meetings . With certain exceptions noted below , the respondent did not pay the employees for the time lost while they were away from their duties . They were paid for this time by the Intervenor. There is no evidence that United members took time off in the same manner or that they ever requested the privilege of doing so. 16 The accumulated profits from the vending machines were not In fact turned over to the Council . Their ultimate disposition is discussed below under the heading of "Financial assistance to the Intervenor." 10 It is noted that this change was said to have been made In 1935 when the Council's revised charter, which abolished management representatives , was issued . It appears, therefore , that the change was made only in the charter and not in the practice. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the respondent would turn over the accrued and future profits of the vending machines to the Council or to a similar type of organ- ization. Further indication of the respondent's wishes and assurance of further support if such wishes were observed, was given to the Council representatives by the execution, on May 22, 1937, of a leasing agreement with the Council for a meeting place and for space for the vending machines. 17 The respondent having made clear to the representatives, who had been elected under a plan interfered with, dominated, and supported by the respondent for many years, that it desired the Council or a similar type of organization in the plant, gave the employees as a whole no notice that they were free to change the form of representa- tion which the respondent had initiated and maintained over a long period of time. They were not informed that the respondent in- tended to abide by the Act's which it had been disregarding for almost 2 years in its activities with respect to the Council. The em- ployees generally were not even informed that the respondent in- tended to terminate those particular forms of domination of, interference with, and support of the Council, mentioned by Rich- mond at the May 17 meeting. We are of the opinion that the re- spondent made no such announcement to its employees because it expected and desired an organization like the Council to continue and had taken steps to insure such a result. That the respondent desired that the Council representatives form an organization similar to the Council and sought to encourage the formation of such an organization, is further demonstrated by Rich- mond's willingness in June 1937, to enter into preliminary negotia- tions with the Intervenor concerning a contract before any proof of majority was made or offered. We find that the Intervenor was organized by Council representa- tives who had been elected under a plan interfered with, dominated, and supported by the respondent, at the instance of the respondent, with the promise of the respondent's support, and that the respondent furthered the organization of the Intervenor by refraining from giving notice to the employees as a whole that the respondent con- templated any change in its policy of disregard of the Act by ceasing 17 The nominal character of the charges provided for in the lease is discussed below under the heading of "Financial assistance to the Intervenor." 19 The respondent introduced into the record a letter dated June 18, 1937, which was sent from its New York office to the managers of its various plants. Richmond received such a letter. The letter instructed the managers as to their conduct in dealing with employees and their representatives, informed them that the respondent intended to abide by the Act, and instructed them not to interfere with or assist in the organization of employees. Richmond testified that he attempted to follow the instructions contained in the letter . However, it is noted that these instructions were not given Richmond until about 1 month after the meeting with the Council of communicated to the employees. May 17, 1937, and were never REVERE COPPER AND BRASS INCORPORATED 453 of its support of the Council, or otherwise. That the respondent favored and encouraged the Intervenor is further shown by the ac- tivities of Foreman O'Brien in assisting Mead in his solicitation of members for the Intervenor. As stated above, under the provisions of the Intervenor's constitu- tion the department representatives make up the Board of Represent- atives which is the general governing body of the Intervenor and in which, among others, the power to initiate strike votes, and appoint committees and fix their duties is vested. The contract's entered into on August 21, 1937, by the respondent and the Intervenor, which appears to be still in effect, in addition.to terms dealing with wages, hours, and working conditions, provided that department representa- tives be elected by members of .the Intervenor working in the partic- ular department; and that no one be elected as department representa- tive unless he had been continuously in the respondent's employment for at least-1 year. As we have noted above the proposed contract submitted by the respondent to Hamilton on July 26, 1937, contained identical provisions except that the respondent provided that an em- ployee to be eligible to become a department representative must have been in the respondent's employment for 3 years. It is apparent and we find that upon the respondent's initiative and suggestion the de- partmental plan of employee representation and the requirement that department-employee representatives who made up the governing board of the Intervenor be elected by departments and by employees who had been employed for a specified length of time were made a matter of contract between the respondent and the Intervenor. By the terms of the contract, the Intervenor was bound to maintain in existence officials known as departmental representatives who were employees of 1-year standing. The membership of the Intervenor, if it desired, for example, to have its governing board made up of em- ployees chosen upon a different basis, could do so by transferring the powers now vested in the Board of Representatives to an entirely different body, thereby leaving the departmental representatives with a title but no duties within the organization. Since this move would require a complete reorganization of the organic structure of the In- tervenor, it is unlikely that it would be taken. As a practical matter, the incorporation of the above provisons in the contract places an obstacle in the way of a change and minimizes the likelihood that the organizational pattern of the Intervenor would be changed, since the contract under which the Intervenor was operating contemplated the continuance of that pattern which may be generally described as an 19 The contract provided that it was to be in effect for 1 year from the date of its execution and that it was to be continued thereafter from month to month until terminated pursuant to 30 days ' notice given by either party. The record does not disclose that any notice of termination has been given. 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' representation plan. This form of organization was ini- tiated by the respondent's predecessor and maintained by the re- spondent under the Council. The same form of organization was continued by the Intervenor at the respondent's direction. Again upon the respondent's initiative, provisions were inserted in the con- tract which contemplate the continuance of that type of organization. The action of the respondent, in proposing those provisions and enter- ing into a contract. which contained them, further assured the respond- ent's continued domination of and interference with the administra- tion of the Intervenor. Financial assistance to the Intervenor As we have found above, Richmond at the meeting of May 17, 1937, assured the Council of financial support by offering to turn over to it the accumulated profits from the vending machines and to enter into a lease for the space used by the machines, and such 'a lease was entered into between the respondent and the Council on May 21, 1937.20 At that time the profits which had accrued from the machines were held by three officials of the respondent as trustees, with the pur- pose of using them for a picnic for the employees. The respondent and the Intervenor contend, and, for the purposes of the case, we assume, that the funds continued to be held by the three trustees until August 1937, when all the money except some $28 was spent on the picnic.21 Richmond testified that at some time after the meeting of May 17, 1937, he had a discussion with "someone" con- cerning the vending-machine funds. Richmond could not recall with whom he had the discussion and stated at the hearing that the upshot of the discussion was that "it was the desire that we continue to act as trustee of the fund, so there was no mention at that time to turn over, no money was turned over." The record does not disclose whether this desire was on the part of the management or on the part of the Intervenor and we find the explanation somewhat unsatisfac- tory. In any event the fact that ultimately the accumulated profits were not turned over to the Council or the Intervenor, does not nega- tive our finding of support. For the promise of funds in itself, and at once, was a substantial and potent assurance of assistance. That 20 The machines themselves are owned by a company which services them and takes a percentage of the profits , returning the rest to the Intervenor . This return was formerly made to the respondent. 21 There is some evidence in the record that at least $16 .80 of these funds was used by Mead in behalf of the Intervenor. However, this is denied by Mead. The record is insufficiently clear concerning the funds arising from the vending machines prior to August 1937 and concerning the funds collected as dues for the Intervenor to enable us to make a finding as to whether ' or not any of the organizational expenses of the Intervenor were met out of these profits from the vending machines . We, therefore., make no finding on the matter. REVERE COPPER AND BRASS INCORPORATED 455 for reasons not apparent upon the record the assistance did not ripen into a cash contribution should be and has been given due considera- tion, but hardly overcomes the import and significance of the respond- ent's initial action. The lease arrangement executed by the Council and the respondent on May 21, 1937, never became operative, and was superseded by an identical lease entered into between the respondent and the Intervenor on August 21, 1937. On August 5, 1937, at least, and perhaps on other occasions prior thereto, the Intervenor's representatives met on the respondent's property.22 There is no evidence in the record that payment was made for the meeting space on this occasion, or for any other meetings which may have been held prior to the execution of the lease on August 21, 1937. The receipts from the vending machines accruing after July 1937, together with the $28 remaining after the expenses of the picnic had been met, were turned over to the Intervener.23 They are kept in an account separate from the Intervenor's general funds. All the witnesses who testified concerning them testified that it was under- stood that these funds were to be used for a picnic for all employees. How this understanding came about, and between whom it existed, the record does not show. There is no evidence that the respondent so instructed the Intervenor or that the lease for machine space entered into on August 21, 1937, was made upon any such condition. The Trial Examiner found that the proceeds were turned over to the Intervenor without any limitation as to their use and we conclude that this finding is correct. The respondent, in renting the machine space to the Intervenor, provided the Intervenor with a convenient source of an income which must have amounted to $1000 a year.24 The respondent thereby gave the Intervenor indirect financial support by providing it with facili- ties to augment its income. Even though the Intervenor was obli- gated to pay rent of 50 cents a month for each of the 12 machines, it received a substantial income in return. The Intervenor was sub- 22 The meetings of August 10 and 16 , 1937, were also held on the respondent 's property. However, the record is clear that Richmond attended the August 16 meeting , and he may have attended the August 10 meeting. 23 It was stated by the respondent and the Intervenor at the oral argument before the Board that after the Board decided Matter of Iowa Packing Company and United Packing House Workers Local Industrial Union No. 144, 11 N. L. R. B. 986, March 9, 1939, wherein a somewhat similar issue was presented, the lease for the vending-machine space was cancelled by the mutual consent of the Intervenor and the respondent and the profits are no longer turned over to the Intervenor . We do not consider that the fact that the respondent may no longer render indirect financial assistance determinative of the ques- tion of whether or not such assistance was rendered in the earlier stages of the Intervenor's development. 24 The income from the machines was over $700 from November 1936 to June 1937. 247383-40-vol. 16-30 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jetted to no risk in the undertaking; it merely took over machines which had been operated profitably by the respondent in the past and paid a small rent therefor. It further appears that no rent was ever paid for the use of the meeting place prior to August 21, 1937. The respondent by allowing the Intervenor to hold at least one meeting in the hall without charge during this period clearly gave it financial support. It further appears that no rent was paid by the Intervenor either for the meeting place or for the space for the machines for the period beginning August 21, 1937, until May 10, 1938, at least 6 days after the Intervenor knew that charges had been filed. Even then the respondent made no request for payment. The Intervenor urges that the amount involved was comparatively small and that the respond- ent would be in no fear of insolvency for failure to collect the rent. We, however, are of the opinion that independent parties dealing at arms length do not ordinarily allow bills to run for over 8 months without taking some action. The respondent, by not requiring prompter payment of the obligations under the leasing agreement, at least extended credit to the Intervenor. The respondent urges that the execution of the lease and the action taken thereunder are without significance since no other labor organization was in existence among its employees at the time. Whatever may be the validity of such an argument when the employer's assistance has been of a very minor character or has taken the form of tolerating certain practices adopted by a labor organization, it does not follow that an employer is free to give substantial aid and support to a labor organization merely because no competing union has appeared. Where the employer gives a labor organization sufficient support, the possibility that a competing organization will get a foothold is measurably lessened. We find that the respondent by transferring to the Intervenor, upon a nominal charge, a source of an income of at least $1000 a year in the form of the proceeds of the vending machines, gave substantial financial support and assistance to the Intervenor. We further find that by allowing the Intervenor free use of the hall on at least one occasion and thereafter by making no requirement for the prompt payment of rent for the meeting place and space for the vending machines the respondent gave further financial assistance to the Inter- venor.26 The action of the respondent in permitting the Intervenor, during the period of its organization and first months of existence, 25 We have found that the Intervenor was not obligated to employ these funds for the picnic for all employees. However, it appears that this was the intent of the Intervenor. We do not find this is a material consideration. If the Intervenor thought it could best maintain its prestige or retain the employees' good will by making such use of the money, It is in no way in contradiction of our finding that the respondent gave the Intervenor financial support. REVERE COPPER AND BRASS INCORPORATED 457 the use of the respondent's property without charge as a meeting place and allowing the continued use thereof for such purpose and for the purpose of securing revenue without requiring payment of agreed rent must be found to have furthered the organization of the Intervenor even beyond the amount of money involved in the financial support thereby rendered. Employees, because of their economic dependence upon employers, are sensitive to the •latter's wishes, and the respondent's employees could hardly have failed to interpret such financial assistance as a clear indication of the respondent's wish that the Intervenor be organized and continued. Moreover, the conduct of the Intervenor in accepting such financial support plainly discloses that it understood from the respondent's actions that the Intervenor succeeded to the privileged status formerly accorded the Council. A considerable portion of the record is devoted to the question of whether or not certain of the Intervenor's representatives were paid by the respondent for time spent at meetings on August 5 and 10, 1937, and whether or not Richmond attended the August 10, 1937, meeting. Although it appears that one representative, Whitman, who attended the August 5 meeting and two representatives, De Prospero and Laurie, who attended the August 10 meeting, were paid by the respondent for the time they spent at the meetings, it was not the respondent's practice after May 17, 1937, to pay. the representatives for time lost. It is quite possible that these repre- sentatives were paid as a result of an oversight on the respondent's part or the accidental or deliberate failure of the representatives to ring out their cards when they left for the meeting. Accordingly, we give no weight to the matter. We find that the respondent has dominated and interfered with the formation and administration of the Intervenor, and has contributed support to it, and has thereby engaged in unfair labor practices within the meaning of Section 8 _(2) of the Act, and by these acts the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. B. Other alleged interference, restraint, and coercion The complaint alleged that the respondent had attempted to dis- courage and has discouraged membership in the United by threatening to lay off or discharge its members and by threatening to cut down the amount of wages and the amount of work given to members of the United. The Trial Examiner found that these allegations were not supported by the evidence adduced at the hearing. The finding of the Trial Examiner is hereby affirmed. 458 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD THE REMEDY We have found that .. the respondent has dominated and inter- fered with the formation and administration of the Intervenor and has contributed support to it. In order to effectuate the policies of the At and free the employees of the respondent from such dom- ination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of rights guaranteed by the Act, we shall order the respondent to withdraw all recognition from the Intervenor, to disestablish it as a repre- sentative of the employees for the purposes of collective bargaining, and to cease giving effect to the contract with the Intervenor.21, The respondent will, in addition, be ordered to cease and desist from dominating and interfering with the formation and admin- istration of and from contributing support to the Intervenor or any other labor organization; and to cease and desist from interfering with, restraining, and coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organiza- tions, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid and protection. CONCLUSIONS of LAW 1. United Electrical, Radio & Machine Workers of America, Local No. 303 and Revere Copper and Brass Independent Employees Union, Rome Division, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration of Revere Copper and Brass Independent Employees Union, Rome Division, and by contributing support to said organization, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. , 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2. (6) and (7) of the Act. 21 National Labor Relations Board v . Pennsylvania Greyhound Lines, Inc., 303 U. S. 261 ; National Labor Relations Board v. Ronni Parfum, Inc. and Ey-Teb Sales Corp., 104 F. (2d) 1017 (C. C. A. 2d, 1939) ; National Labor Relations Board v. Stackpole Carbon Com- pany, 105 F. (2d) 167 (C. C. A. 3d, 1939). REVERE COPPER AND BRASS INCORPORATED ORDER 459 Upon the basis of. the above 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 respondent, Revere Copper and Brass Incorporated, Rome, New York, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : . (a) In any manner dominating or interfering with the admin- istration of Revere Copper and Brass Independent Employees Union, Rome Division, or with the formation or administration of any other labor organization of its employees, and from contributing support to said Revere Copper and Brass Independent Employees Union, Rome Division, or to any other labor organization of its employees; (b) In any manner giving effect to its contract, heretofore de- scribed, with Revere Copper and Brass Independent Employees Union, Rome Division, to any renewal therof, or to any successor con- tract it may have entered into with said Revere Copper and Brass Independent Employees Union, Rome Division, in respect to rates of pay, wages, hours of employment, or other conditions of employment; (c) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from Revere Copper and Brass In- dependent Employees Union, Rome Division, as a representative of its employees for the purpose of dealing with the respondent con- -cerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and completely dis- establish Revere Copper and Brass Independent Employees Union, Rome Division, as such representative;. (b) Immediately post notices in conspicuous places throughout its plant, and maintain such notices for a period of sixty (60) consec- utive days, stating that the respondent will cease and desist in the manner set forth in 1 (a), -(b), and (c) and that it will take the affirmative action set forth in 2 (a) of this Order; (c) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent attempted to discourage and has discouraged membership in the United Electrical, Radio and Machine Workers of America, Local .$303, by threat- ening to lay off or discharge members of said organization and by threatening to cut down the amount of wages and the amount of work given to such members.