John A. Roebling's Sons Co.

In the Matter of JOHN A. ROEBLING'S SONS COMPANY and STEEL WORKERS ORGANIZING COMMITTEE Case No. C-860.-Decided November 10, 1939 Wire and Wire Rope Manufacturing Industry-Interference, Restraint, and Coercion: letter sent to employees by respondent warning employees that sign- ing of S. W. 0. C. cards would deprive them of rights to choose own repre- sentatives and would sign away rights as employees , held to convey implied threat that respondent would use its economic power to effectuate hostility to "outside" unions-Company-Dominated Union: domination of and interfer- ence with formation and administration of predecessor employees' representa- tion plan and outspoken hostility to "outside " unions, held to have resulted in organization of successor company=dominated union ordered disestablished- Discrimination: charges of dismissed. Mr. Joseph F. Castiello, for the Board. Mr. Shelton Pitney and Mr. Morris P. Skinner, of Newark, N. J., for the respondent. Mr. H. Collin Minton, Jr., of Trenton, N. J., for Roebling Em- ployees Association, Inc. Miss Carol Agger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Steel Workers Organizing Committee, herein called the S. W. O. C., the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) issued its complaint and notice of hearing dated June 28, 1938, against John A. Roebling's Sons Company, Trenton, New Jersey, 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. The complaint alleged in substance that in or about June 1937, the respondent, through its agents, by threats, the making of speeches, the circulation of petitions and cards for signature, the posting of notices, and in divers other ways, caused to be formed in its New 17 N. L. R. B., No. 40. 482 JOHN A. ROEBLING'S SONS COMPANY 483 Jersey plants, the Roebling Employees Association, Inc., ' a labor organization of its employees, and since on or about that date the respondent has interfered with and dominated the formation and administration of that organization, and has contributed financial and other support to it; that at various times since about December 1936, the respondent by its agents has, by threats of discharge and of curtailment of work, by the making of speeches and statements and the circulation of leaflets derogatory to the S. W. O. C., and in divers other ways attempted to discourage and has discouraged the. membership of its employees in the S. W. O. C. and has by other acts interfered with, restrained, and coerced its employees in the free choice of their representatives for the purposes of collective bargaining and other mutual aid and protection. The complaint and accompanying notice of hearing were duly served upon the respondent, the S. W. O. C., and Roebling Employees Association, Inc., herein called the Association. An amended charge having been filed, the Board on July 6, 1938, issued an amended complaint alleg- ing that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. The allegations of the amended,complaint were identical with those of the original complaint except that, in addition to the allegations in the original complaint, it was alleged that the respondent, on or about May 10, 1938, terminated for a period of 2 weeks the employ- ment of Roland Goddard, an employee in its Roebling, New Jersey, plant, and that on or about May 23, 1938, after he had been reem- ployed demoted him because of his affiliation with the S. W. O. C. and because he engaged in other concerted activities with other employees for the purposes of mutual aid and protection and for the purposes of collective bargaining. The amended complaint was served upon the parties at the beginning of the hearing on July 7, 1938. On July 7, 1938, the respondent filed its answer to the original complaint, admitting certain allegations as to the nature of its busi- ness and denying that it had engaged in or was engaging in the unfair labor practices as alleged. The answer further set out certain alleged deficiencies in the charge, complaint, and notice of hearing, which are discussed below. During the hearing, on July 14, 1938'- the respondent filed its answer to the amended complaint. The answer to the amended complaint differed in matters of substance from the answer to the original complaint only in that it denied the alleged discrimination with respect to the hire and tenure of employment of Goddard; set up affirmatively that Goddard was suspended for cause on May 10, 1938, and that he was demoted for 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause; and pointed out alleged deficiencies in the amended charge, amended complaint, and certain other matters of procedure concern- ing which the respondent alleged that it was denied its right to a fair hearing. On July 6, 1938, the Association filed with the Regional Director and duly served on all parties, a motion and petition for interven- tion in the proceedings., This motion was renewed before and granted by the Trial Examiner at the hearing. Pursuant to notice, a hearing was held at Trenton, New Jersey, from July 7 to 14, 1938, before Earl S. Bellman , the Trial Exam- iner duly designated by the Board. The Board, the respondent, and the Association were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-exam- ine witnesses, and to introduce evidence bearing on the issues was afforded all parties. In its answer to the complaint and by motion at the beginning of the hearing, the respondent moved to dismiss the complaint as im- providently issued because the charge failed to make a clear and concise statement of the facts constituting the alleged unfair labor practices. The respondent in its answer to the amended complaint moved for its dismissal because of a similar alleged deficiency in the amended charge. We are of the opinion that the charge and amended charge provided a sufficient basis for the issuance of the complaint. In its answers to the complaint and amended complaint, in its motion for a bill of particulars submitted to the Regional Director prior to the commencement of the hearing and renewed before the Trial Examiner at the beginning of the hearing,' and its motion, made before the Trial Examiner, to dismiss the complaint, the respondent urged that the complaint and amended complaint failed to apprise the respondent of the issues of fact 3 it might be called upon to meet. The Trial Examiner, in denying the respond- ent's motion for a bill of particulars, stated : Respondent is assured that reasonable opportunity will be given for the preparation of his case, which may involve an adjournment at the end of the Board's case if it appears to the Trial Examiner at that time that such adjournment is necessary for respondent to prepare his case. The respondent's counsel objected that such an adjournment would be of no assistance in the preparation of cross-examination. There- after, at the close of the Board's case, the respondent made no re- ' All parties stipulated that this document would be considered the Association 's answer to the allegations of the complaint. ,The motion was denied by the Regional Director and by the Trial Examiner. 3In respect to the allegations alleging violations of Section 8 (1) and ( 2) of the Act. JOHN A. ROEBLING'S SONS COMPANY 485 .quest for additional time for the preparation of its case although the Trial Examiner inquired whether it desired further time. On those occasions during the presentation of the Board's case when the re- spondent requested the right to recall witnesses for cross-examina- tion after it had had an opportunity to investigate matters brought out on direct examination, such requests were granted by the Trial Examiner. We are of the opinion that the respondent had ample opportunity for the preparation of its case and to meet the allega- tions of the complaint. In its answer to the amended complaint and before the Trial Examiner the respondent objected to the issuance of the amended complaint based upon an amended charge, first because the respond- ent contended that the period of time covered by the amended charge .was extended thereby by almost 5 months without prior notice to .the respondent; secondly, because the respondent was compelled to answer the amended complaint with respect to the longer period of time covered by the amended complaint and as to new matter therein contained before the lapse of the 5 days provided by the National Labor Relations Board Rules and Regulations. The first ground for the objection is based upon a misapprehension of the scope of the allegations in the original complaint in so far as they allege a continuing course of interference' with, restraint, and coercion of the respondent's employees and the continuing interference with, domination and support of the Association. In the absence of an amended charge or an amended complaint, any act of the respond- ent's which was a part of a continuing course of conduct, even though it occurred after the date of the filing of the charge or of the issuance of the complaint would be a proper subject for inquiry at the hear- ing provided the respondent was given a reasonable opportunity to meet the evidence concerning such acts. We have found that the respondent was granted such an opportunity in this case. The sec- ond ground for the objection depends upon a technical question of whether the 5 days, to which the respondent is entitled for the preparation of its answer, should start to run from the date upon which the Trial Examiner gave notice that the Board's motion to amend the complaint would be granted or from the date of the actual granting of the motion. In view of our statement above con- cerning the scope of . the original complaint with respect to a con- tinuing course of conduct and in view of our finding below' with 4 The hearing proceeded upon the original complaint until 5 days had elapsed from the date when the Trial Examiner stated that he would grant the Board's motion to amend the complaint by substituting an amended complaint. The only evidence intro- duced pursuant to the amended complaint was that pertaining to the alleged discrimina- tory discharge. The allegations alleging the discharge were dismissed by the Trial Examiner upon the respondent's motion, and as set forth below, we are affirming the dismissal. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to the new matter involved, we find it unnecessary to resolve the question since the respondent was not prejudiced by the ruling of the Trial Examiner. During the course of the hearing the Trial Examiner made sev- eral other rulings on motions 5 and on objections to the admission of evidence. At the conclusion of the hearing the complaint and the answers of the respondent and of the Association were amended to conform to the proof. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On July 27, 1938, the respondent filed a brief and the Association filed a memorandum, both of which were considered by the Trial Examiner in the preparation of his Intermediate Report. On August 27, 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. He recom- mended that the respondent cease and desist from interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act; that it cease and desist from dominating or interfering with the formation or administration of the Association and the Plan of Employee Representation in plants of John A. Roebling's Sons Company, herein called the Plan '6 or any other labor organization, and from contributing financial or other support to the Association or any other labor organization; that the respondent withdraw all recognition from the Association and from the Plan as representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employ- ment, and completely disestablish the Association and the Plan as such representatives ; and that the respondent take other affirmative action with respect to the posting of notices, which the Trial Exam- iner found would effectuate the purposes of the Act. Thereafter, the respondent and the Association filed exceptions to the Intermediate Report. A hearing for the purpose of oral argument on the excep- tions was held before the Board at Washington, D. C., on June 22, 5 One of these motions was a motion to dismiss the complaint because the notice of bearing attached thereto did not contain a notice of hearing before the Board or member thereof or before a designated agent as required by Section 10 (b) of the Act. The notice of hearing stated, "a hearing will be conducted before the National Labor Relations Board, by a Trial Examiner, to be designated in accordance with its Rules and Regula- tions." . . . On July 0, 1938 (after the notice of,hearing was issued) Earl S. Bellman was duly designated to act as Trial Examiner. Section 10 (b) of the Act does not require that the name of the individual who is to act as Trial Examiner be stated in the notice of hearing. Sufficient notice was given to the respondent in the notice of hearing quoted above. 0 The -Plan, a predecessor of the Association, is discussed below. JOHN A. ROEBLING'S SONS COMPANY 487 1939, following several postponements and notices duly served upon all parties. The respondent and the Association participated in the oral argument but the S. W. O. C. did not appear. Pursuant to permission granted, further briefs were thereafter filed by the respondent and the Association. The Board has considered the exceptions to the Intermediate Re- port and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent is a corporation organized under the laws of the State of New Jersey with its principal place of business in Trenton, New Jersey. The respondent owns and operates two manufacturing plants located in Trenton, New Jersey, and in Roebling, New Jersey. Only these two plants, which employ approximately 3,800 production and maintenance employees, are here involved. At these plants the respondent manufactures wire, wire rope, cold rolled flat wire, and insulated copper wire. In addition to these manufacturing plants, the respondent operates sales agencies and offices in a number of cities throughout the country. In the manufacture of the wire products listed above, the respond- ent utilizes as raw materials pig and scrap iron, lead, rubber, copper, tin, ferro-manganese, cotton, silk, and zinc. Eighty per cent of these raw materials are brought to the New Jersey plants from foreign countries or from States other than the State of New Jersey. Ninety per cent of the finished products manufactured by the respondent in its New Jersey plants are shipped therefrom to other States, to South American countries, to South Africa, and Asia, by water, rail, and truck. In 1937, the respondent shipped 75,000 tons of finished prod- ucts, valued at $22,099,000, from its New Jersey plants. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization affili- ated with the Committee for Industrial Organization.7 It admits to membership employees in steel manufacturing plants, hot mills, roll- ing mills, fabrication plants, and rail and wire mills.8 Roebling Employees' Association, Inc., an unaffiliated labor organ- ization, is incorporated under the laws of the State of New Jersey. 7 Now the Congress of Industrial Organizations. 8 No local lodge had been chartered for the employees in the respondent's mills at the time of the hearing. A temporary organization had been set up to organize the employees. 247384-40-vol. 17 32 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It admits to membership all employees in the respondent's New Jersey plants , except those in salaried positions and those who hire or discharge workers. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The S. W. O. C. started organizing in the respondent's Trenton plant late in 1936 and in the Roebling plant in March 1937. On January 22, 1937, W. A. Anderson , the respondent's president, addressed the following communication to the employees : OFFICE OF THE PRESIDENT, JANUARY 22, 1937. To Our Employees: During the past few days outside union organizers have approached many of our employees, both at the entrance to the plant and at their homes, urging them to sign membership cards in their union. I feel it is my duty to inform all our employees of this situa- tion and the results that would follow should they be successful in misleading you. The cards you are asked to sign are in fact a "Power of Attorney." The signing of the Power of Attorney means that you are no longer a free agent to deal with our Company regard- ing "rates of pay, wages, hours of employment or other condi- tions of employment." It means that you have no further say in selecting your own representative to deal for you but gives this power to outsiders over whom you have no control. If enough people are misled into "signing up" regardless of the motive, the cards will be used as evidence that you have empowered strangers to represent you and once they get your signature there can be no "dropping out" if you are dissatisfied. The cards are not from responsible Government officials as they would have you believe. I am confident that if you know all the facts, no one will lightly sign away his or her personal rights as an employee of our Company W. A. ANDERSON, President. The power of attorney referred to in the letter was an application -for membership in the S. W. O. C. which contained the words, "I hereby . . . authorize the Steel Workers Organizing Committee, its .agents or representatives to act for me as a collective bargaining JOHN A. ROEBLTINTG'S SONS COMPANY 489 agency in all matters pertaining to rates of pay, wages, hours of employment, or other conditions of employment." The authorization .is clearly revocable at will and the statement in Anderson's letter of January 22 that dissatisfied employees could not drop out of the .S. W. 0. C. is misleading. The statement in the letter that the em- ployees who joined the S. W. 0. C. would have no further "say" in selecting their representatives was made recklessly without any attempt to verify its accuracy. Anderson in testifying concerning the letter stated that he did not look with favor on the entrance of ooutsiders into the relations between the employer and the employee, that he believed the Employees Representation Plan, which was in existence at the time, was sufficient to take care of questions arising between the employer and the employees even though the Plan had been set up by the respondent, and that he did not think the men wanted to be represented by an outside union which they did not know instead of choosing their representatives in the manner pro- vided by the Plan. Anderson further testified that he was prompted to send out the communication by (1) the fact that the words, "A Message to You from the President" were printed on the envelope sent by the S. W. 0. C. to the employees along with the application card; and (2) the fact the employees were directed to return the signed applications to Philadelphia from which Anderson concluded that the employees who signed them would place their representative rights in the hands of individuals who were not employees of the respondent. It is apparent that Anderson's letter went far beyond a discussion of the impression given by the S. W. 0. C. literature concerning the President of the United States. The letter warns the employees of nn imaginary loss of rights if they sign the S. W. 0. C. application cards, makes misleading statements concerning the effect of signing such cards, and ends with an assurance that Anderson believes that no one will "lightly, sign away his or her personal rights as an employee of our Company." The letter makes clear to the employees the respondent's dislike of "outside" unions and of "strangers" enter- ing into the employer-employee relationship, and its preference for the type of organization which the respondent had introduced into its plants. It contains no assurance that the employees are free to join the S. W. 0. C. if they wish. The letter as a whole was calcu- lated to impress upon the employees the respondent's strong hostility to their joining an "outside" union. In the absence of accompanying assurances that they were free to join the S. W. 0. C. or other "out- side" union, if they so desired, the letter conveyed to the employees an implicit threat that the respondent would use its economic power to effectuate this hostility. We find that the respondent, by.circu- 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lating this letter, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.9 The record also includes testimony concerning conversations be- tween various workmen and supervisory officials in which the super- visors are alleged to have made anti-S. W. 0. C. and threatening statements. This testimony was given for the most part by em- ployees of foreign birth whose language difficulty was great: Accord- ingly, their testimony is not clear cut. We think that it is entirely possible that the employees misunderstood the import of remarks addressed to them, since in most instances the supervisors' versions of the conversations are reasonable on their face and do not bear the interpretation put upon them by the employees. Under these circum- stances, we do not find that supervisory employees made the state- ments attributed to and denied by them.19 B. Interference with and domination and support of the Association 1. The plan of employee representation Prior to 1933 no labor organization existed in the respondent's Roebling and Trenton plants. In that year the respondent instituted a Plan of Employee Representation, herein called the Plan. The Plan provided for the election of employee representatives from the various departments and "natural subdivisions" of the plants and for the appointment of "Regular and Special Representatives of the. Company" by the management. An equal number of employee rep- resentatives and of the regular representatives of the respondent made up the Joint Committee. The principal function of the Joint Committee under the Plan was the consideration of grievances, when the other methods of settlement of such grievances provided by the Plan had failed. The Plan further provided that in the event that the Joint Committee was unable to agree upon the proper settlement of a grievance, the matter might be arbitrated, provided that the 9 The respondent urges that even if the letter was a violation of the Act, which the respondent does not admit, it occurred prior to the decisions of the Supreme Court of the United States which made it clear that the respondent was subject to the provisions of the Act, and the circulation of the letter should not be considered as evidence of the respondent's unwillingness to comply with the law. This contention is without merit. 11 The record clearly discloses one incident in which one of these employees by reason of his language difficulty, honestly mistook a notice concerning a free lunch period for an announcement that employees joining the Association would be given free lunch. Another example of probable mistake is the testimony of one Murgo who testified that Assistant Superintendent Ludwig told him that the respondent did not want a "CIO" kind of union in the plant. Ludwig denied making such a statement and testified that he had spoken to Murgo about passing out literature during working hours and that Superintendent Smith then came along and told Murgo that it was against the rules to pass out literature during hours. It is probable that this warning against union activities in the plant during hours was understood by Murgo to be a warning against all union activity. JOHN A. ROEBLING'S SONS COMPANY 491 respondent's general manager and a majority of employee representa- tives agreed to that procedure. The Plan could not be amended without the consent of the management representatives. Under the Plan the employee representatives were required to be non-supervisory employees who were over 21 years of age and American citizens. An employee representative was deemed to have vacated the office upon termination of his employment, permanent transfer from one voting unit to another, or upon his promotion to a supervisory posi- tion. The Plan also provided for the payment of representatives for the time lost from work by their attendance at employee repre- sentative committee meetings. The respondent was also required to assist in arranging for meeting places. From the foregoing it is apparent, and we find, that the Plan, having been initiated by the respondent, being subject to the re- spondent's control by reason of its power to prevent amendments and to discharge or transfer employee representatives who were repugnant to it, being supported by the respondent by the payment of representatives for time lost and by the provision for meeting space, was interfered with in its formation and administration and was dominated and supported by the respondent.," We do not under- stand the respondent to contend otherwise. 2. The Association As we have stated above, the Plan continued in operation until 1937. The record discloses no formal dissolution of the Plan but it appears that the Plan as such ceased functioning sometime in June 1937. The last election of employee representatives under the Plan was held on May 11, 1937. President Anderson testified that the election was held in the same manner as any other election under the Plan. This meant, and we find, that the respondent furnished ballots, notices, and other election material and paid the tellers for the time spent in conducting the election:12 From the representatives so elected a committee, consisting of representatives Catherine, Monard,13 Schaum, and Dillon, was appointed to investigate the legality of the Plan under the Act. Such an investigation was under- 11 Since the complaint contained no allegations that the respondent dominated or interfered with the formation or the administration of the Plan or contributed support thereto , we shall make no order based upon our finding. 12 Superintendent Smith testified that the respondent gave the Plan no support after April 12, 1937. Personnel Manager Ross in his testimony also intimates that election expenses were not met by the respondent after April 12, 1937. However, in view of Anderson's testimony and in view of the testimony of both Ross and Anderson that the respondent did nothing to suggest to the men that any changes would have to be made in the Plan, we find that the respondent assisted in the election of May 11 , 1937, as it had in other elections under the Plan. 13 Occasionally referred to in the record as Menard. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken because of the recent decisions of the Supreme Court of the United States upholding the constitutionality of the Act as applied. to certain manufacturing enterprises?' The officials of the respond- ent insist that any action taken to amend the Plan or to provide a. substitute therefor was taken by the employee representatives on their own initiative without any suggestion by the respondent. The record bears out the contention that the respondent took no action at that time to advise the representatives that the Plan was in viola- tion of the Act or to suggest that a new organization be formed- On the other hand, no action was taken to disclaim the respondent's, previously publicized hostility to "outside" unions. On June 5, 1937, the committee, having decided that it should see a lawyer, went to an attorney in Trenton and inquired whether the Plan could continue to function. He advised the committee that the Plan was "out." The committee then informed him that the Plan had been so successful that they would like a new one as similar to it as was possible within the requirements of the Act.. The attorney undertook the drafting of a constitution and bylaws. for a new organization which were subsequently approved by the committee. During the, period from about June 5 to about June 10, 19377 Dillon, one of the committee members, went to see the attorney six times during working hours. Dillon testified that he asked his fore- man if he could leave on these occasions . The foreman having given him permission, Dillon punched out and was not paid by the re- spondent for the time lost. Dillon did not tell the foreman why he wished to leave nor did the foreman ask him. The record does not disclose whether. or not such requests were ordinarily granted. Dillon admitted at the hearing, however, that it was " common gossip around the shop" that he was active in the formation of a new organization and that he guessed that the foreman had heard some of the gossip. Sometime in June or July 1937, Schaum and another representa- tive under the Plan went to see Superintendent Hunt. One or two other management representatives were also present. The employee representatives informed the management representatives that they were going to form an incorporated association but did not state why they were so informing the management. The officials who were present did not tell the two employees whether or not they favored the proposed action. On June 10, 1937, the certificate of incorporation for the Associa- tion was issued, with Catherine, Monard, Schaum, Dillon, and Cant- 14 National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, and other cases decided at the same time. JOHN A. ROEBLING 'S SONS COMPANY 493. well acting as incorporators. These men were representatives under the Plan and the record discloses that all of them except Schaum had been leaders in the Plan within the two previous years 15 On about June 11, 1937, a membership. campaign was undertaken by the committee with the object of persuading a majority of the employees to join the Association. It is apparent from the record that some solicitation of members took place in the plant during working hours. However, there is no substantial evidence that this activity was observed and condoned by the supervisory employees or officials.. During the period of solicitation, the charter and bylaws of the,, Association were posted upon the various bulletin boards in the plant without the respondent's objection. The charter and bylaws of the Association, more fully described'. below, provided for the election of employee representatives from the several departments, and on July 29, 1937, such an election was held.. The committee and its counsel decided that the election should be- conducted by persons who were not associated with the respondent.. Accordingly, two superintendents of schools in the vicinity were re- quested to act as election judges. They were guided by a memoran dum prepared for their use by the Association's counsel. This. memorandum included the following paragraphs : "1. The purpose. of forming this Association is to carry on the contact between the employees and the employer formerly carried on by the Company Union. The Wagner Act outlawed any company union which might be fostered or encouraged by the employer. This Association puts• in legal form this contact." "10. The formation of this Association. does not confer any greater rights in the employees than that pre- viously had under their former union. It is merely putting in legal. form what previously existed, and which now is declared illegal in. form. The Company has always dealt fairly with employees in the: past, and it is fair to assume that in the future its dealings with the delegates will be of the same nature." The superintendents of schools made the arrangements for the election. On the Saturday prior to the election, while the plant was closed, these superintend- ents posted copies of the following notice in the plants : To members of Roebling Employees' Association, Inc.: Take Notice, that an election of the Board of Trustees or Representatives will be held by the membership of this Associa- tion on Thursday, July 29, 1937. On election day, all members are requested to wear their buttons and carry their membership cards. 15 Dillon, Monard, Catherine, and Cantwell were members of the Executive Committee of the Plan in April 1935. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ballots will be handed out to the members in the various units during working hours on Wednesday, July 28, 1937. Ballot boxes will be located at all exit gates, and will be in charge of tellers selected by me. The twelve o'clock shift will vote at 8:00 A. M., Thursday; the eight o'clock shift will vote at four o'clock in the afternoon; the four o'clock shift will vote at 3:30 P. M., coming in. I have been requested to conduct this election as an impartial judge, and I ask for, the cooperation of all members of the Association in conducting this election. On July 26, 1937, the superintendents of schools, accompanied by Dillon, Monard, and Catherine, went to see Daniel Ross, the respond- ent's personnel director, advised him of their plan to conduct an election on the plant property, and inquired whether such arrange- ments were satisfactory to the respondent. Ross replied that the respondent would not interfere with the plan and had no objection to the election being held on the respondent's property. The elec- tion was held in the manner described in the above notice, the ballots being passed out in the various departments by the persons who had been representatives under the Plan or by persons designated by the election committee. On August 6, 1937, a committee representing the Association and consisting of Schaum, Cantwell, Catherine, Dillon, Huff, and Monard met with W. A. Anderson, the respondent's president, and entered into an oral agreement which was confirmed in writing by a letter to Schaum, president of the Association, from Personnel Director Ross. The letter sets out the matters agreed upon as follows : 1. Recognition of the Association as the Collective Bargain- ing Agency for those employees who were members ' of the Association. 2. The Company will give the Association thirty days notice before making a general reduction in pay. 3. The Association will give the Company thirty days notice before requesting a general raise in pay. 4. Association members who are laid off due to lack of work in their departments will be given preference over new employ- ees when work is available. 5. The Company will employ only American citizens. 6. The procedure for handling grievances shall be carried out in the same manner as that followed during the past few years. 7. The present labor policy relative to hours of work, wages, seniority, vacations, etc., will be continued. JOHN A. ROEBLING'S SONS COMPANY 495. At this conference, Schaum stated that the Association had 3,800 paid-up members and the Association requested recognition as sole bargaining agency. This request was refused. Anderson testified that he had been informed that 3,800 people had voted in the elec- tion of representatives and that he therefore did not question the Association's membership claim. At about this time Personnel Director Ross and Superintendents Smith and Hunt were appointed as a committee to represent the management in dealing with the Association. This committee of the management met with representatives of the Association three or four times between August 6 and September 8, 1938, concerning a state- ment of labor policy issued by the respondent on the latter date to which the representatives and Association members agreed. The statement was an amplification of the agreement reached on August 6, 1937, and made few substantial changes in the respondent's policies, which were in effect prior to August 6, 1937. The principal changes made in existing practices dealt with the employment of citizens,. married women, and the adoption of a straight seniority rule with- out reference to family responsibilities. With respect to wages, the. statement provides that : "The Company maintains a policy of pay- ing wage rates and providing working conditions comparable with those of its competitors in this district." The statement also sets out the respon,d'ent's policy with respect to collective bargaining : "The Company recognizes and will abide by the principle of collec- tive bargaining relating to wages, hours, and working conditions, as provided by law. The Company also recognizes the right of employ- ees to bargain individually, and will deal individually with such employees as desire this method in preference to collective bargain- ing." Copies of the statement of labor policy were given to the super- visory employees in the plants and to the employee representatives in the Association but not to the employees generally. Although one of the purposes of the Association was stated, in its bylaws to be the negotiation of a contract with the respondent, no contract other than the oral agreement has been negotiated. Prior to August 6, 1937, the bylaws of the Association were sub- mitted to the representatives elected in the July 29 election and re- ceived their approval. The bylaws limit membership in the Asso- ciation to employees of the respondent and suspend membership "upon severance of employment." They also provide for the elec- tion of departmental employee representatives, who are primarily responsible for carrying on the activities of the Association, and each of whom "shall automatically vacate his office upon severance of his relations with" the respondent. The bylaws provide for monthly 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD membership meetings, notice of which is to be given by notices posted in all departments of the plants. Some evidence was introduced concerning suggestions made by supervisors that employees join the Association and concerning solici- tation of members by Gang Leader Lawrence and Foreman Price. One Rousch testified that in May or June 1937 Superintendent Bar- retta inquired whether Rousch belonged to the Association and said that if work became slack, the men who belonged to the Association would yet preference. Barretta denied making any such statement. A similar statement was attributed to Barretta by Kozma and Klau- ser in connection with an incident which took place in July 1937. On this occasion, 12 men who had been sent to work temporarily in a department other than their own were sent away when they arrived for work by one Cantwell an Association representative, because they -did not have Association buttons and therefore the other men would not work with them. When the 12 men returned to their own depart- ment and explained to Barretta what had happened, he said, accord- ing to Kozma, "Why you fellows don't join the union? [Associa- tion] If I am not going to have enough work I have to give the union men work and I have to let you fellows stay home." Klauser testified that Barretta said, "Why don't you sign it? Maybe after- wards when the Roebling Employees' Association gets through, only those men get work what join the company [Association], and if some work is left, why we will get it." Barretta's version of the conversa- tion was that he said : I don't know what they do over there, but here in the copper mill I am instructed not to recognize any union or have any union activities interfere with a man's privilege . . . I don't see why they should be any different . . . I tried to give them [the men] the impression that as far as I was concerned, and as far as the Company was concerned, they were free to belong to .. . any union . . . as long as it didn't interfere with their work. Barretta also testified that two or three of the men asked him whether they would get more work if they joined the Association and that "I said I could not answer that question, because as far as I knew the company had not signed up giving them the bargaining rights, whether they were to represent 100 per cent of the people or 50, so it would be left to their discretion . . . As far as I was concerned at that time . . . everybody was on equal terms re- gardless of what association he belonged to . . . I expressed it as clear as I could." After these conversations the men were sent back to work, Cantwell was reprimanded for his action, and the 12 men were paid in full for the time lost. We find that the employees JOHN A. ROEBLING'S SONS COMPANY 497 misunderstood Barretta's remarks, and that his statements were sub- stantially as he described them. Yuhas, an employee, testified that in June 1937, Foreman Hartman asked him why he did not join the Association and remarked that if he did not join he could not work in the shop like a scab. There- after, Yuhas joined the Association. Hartman denied that he had ever had any conversation with Yuhas concerning unions. Smekal, an employee, testified that in June 1937, a list of Association members was posted upon the departmental bulletin board which the men in- spected as they left work; and that Foreman Grouser, who was pres- ent, said, "we have 98 and the rest of them are Bolsheviks." Grouser denied that he had ever made such a statement or had ever discussed any union with Smekal. He also denied that a list of Association members was ever posted in the department. No other witnesses testified that they had seen such a list posted. An examination of this evidence does not convince us that Hartman and Grouser made the statements attributed to them. We therefore do not find that foremen and supervisors suggested that the em- ployees join the Association. An employee, Malmos, testified that in May 1938 Foreman Price brought a handful of Association application cards into the shop and gave some of them to a gang leader to hand out to the employees while Price himself handed out some. Because Price was unable to be present at the hearing, it was stipulated that had, he testified he would have denied Malmos' testimony to the effect that Price dis- tributed or participated in the distribution of Association literature. The Trial Examiner found that, "There can be no doubt that some of the respondent's supervisors encouraged membership in the Asso- ciation by their remarks and attitudes," but made no specific findings upon the alleged statements and activities of the various supervisory employees. We therefore do not have the benefit of his observation of the behavior of each witness on the witness stand. • The record is clear that shortly after April 12, 1937, the respondent's superintend- ents and foremen were instructed not to interfere with the union activities of the employees and that the rights guaranteed by Sections 7 and 8 of the Act were to be respected. Under the circumstances here presented, we find that Foreman Price took no part in the distribution of Association application cards. Other testimony concerns the solicitation of members for the Asso- ciation on the respondent's property during working hours by George Lawrence, a gang leader. Since Lawrence did not testify and no evidence was introduced to rebut the testimony concerning his activ- ities, our sole concern is the question of Lawrence's supervisory status. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawrence was not a salaried foreman but a gang leader whose earnings depended upon the amount of wire cleaned by the seven members of the gang, although they were somewhat higher than those of the gang members. Lawrence was supposed to engage in manual labor along with the members of the gang although there is some conflict as to whether or not he did in fact participate. The wire-mill foreman, who appears to have worked in a different room, was generally in charge of the wire-cleaning gangs during the night shift. The day foreman laid out the work for the gang when they came in at 4 p. m., giving Lawrence written instructions concerning the size of the wire and the manner in which it was to be cleaned. Although the foreman instructed Lawrence as to how much wire was to be cleaned during the night Lawrence was not told what the duties of each man 'should be. Henry Ulrich, assistant superintendent of the wire mills at Roebling, testified that Lawrence had no authority to depart from the day foreman's instructions. Lawrence was described by Emanuel Smith, the general superintendent in charge of manu- facturing operations, as having some power of direction over the gang and added that there were hundreds of employees in the plants with similar powers. Ulrich stated that Lawrence was responsible for seeing that the work was done after it had been laid out by the day foreman but that he had no authority to "boss" the men. Anderson, the respondent's president, testified that a gang leader reports on the men's work to the foreman in charge and the foreman then investigates any complaint. Anderson thought that a foreman would not act upon a gang leader's recommendation to discharge an employee. Superintendent Smith testified that Lawrence would not have the power to settle minor grievances by himself but could report anything he thought needed attention to his superior. Lawrence sent the men home when there was no work for them but it appears that he did not keep account of the men's working time. We find that Lawrence's position was such that he exercised some of the powers of management since he had some power of direction over the gang members and within rather narrow limits could have subjected them to some discrimination in the manner of assigning duties to them and in reporting on their work. 3. Conclusions The Trial Examiner found that the Association is a continuation of the Plan and subject to the same employer domination, inter- ference, and support. It is clear that the Association was formed by individuals who had been representatives under the Plan. These representatives were elected under a Plan which had been dominated and supported by the respondent for several years. The cost of the JOHN A. ROEBLING'S SONS COMPANY 499 election on May 11, 1937, at which they were selected, was borne by the respondent. While no suggestion was made by the respond- ent at that time that an independent organization be formed to replace the Plan, such notice was not necessary since the representa- tives themselves suspected that the Plan was deficient under the Act and were so informed by their counsel, and since the respondent's preference for an inside organization had been made abundantly clear by its letter of January 22, 1937, and by,its long-standing sup- port of the Plan. The respondent made no announcement to its employees generally that it intended to abide by the Act in the future and to forsake the policy it had followed for several years of dominating and supporting the labor organization it had origi- nally brought into being. Nor did the respondent take any action to counteract the impression made by its letter of January 22, 1937, that it was opposed to affiliated labor organizations and ,preferred that its employees designate only employees to represent them. Un- der these circumstances, the employees, when solicited to join the Association by men who had been elected under a Plan which the employees knew was favored by the respondent, did not feel free to join or not join as they desired. That the organizers of the Association did' not regard themselves at liberty to organize whatever type of organization they felt would be most effective, is shown by their visit to the respondent's officials to advise them that they planned to form an incorporated Asso- ciation. The only inference which can reasonably be drawn from this visit is that the organizers wanted to be sure that what they were proposing had the respondent's approval, or at least was not disapproved by the respondent. Although the respondent's officials did not commit themselves one way or the other, the organizers of the Association took such approval for granted and posted copies of the Association's constitution and bylaws upon the bulletin boards of the respondent's plants during the period when member- ship was being solicited. The respondent made no objection to this use of the bulletin boards. The effect of this action upon the em- ployees who already had been pointedly made aware of the respond- ent's preference for the type of organization represented by the Plan by the letter of January 22, 1937, was to further encourage them in the belief that the Association had succeeded to the privileged status formerly accorded to the Plan. The election of the Association rep- resentatives held upon the respondent's property and the use of the respondent's bulletin boards in connection therewith provided a fur- ther basis for this belief. These activities, together with the pro- vision in the constitution that meetings are to be announced by notices posted in all departments, show that the organizers of the 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association themselves took for granted the respondent's approval of their use of the bulletin boards and the respondent' s premises. The constitution and bylaws of the Association, which were adopted by the representatives elected under a plan originated and dominated by the respondent, but, so far as the record shows, not by the membership as a whole, provide for a type of organization similar to that which the respondent initiated in the Plan, and which may be generally described as an employees' representation plan. Under such a form of organization the persons who carry on the activities of the organization are the employee representatives who are elected by the membership in each of the electoral districts into which the plants are divided. This organizational pattern. was adopted by the Association when it tried to set up an organization as like the Plan as possible. It also followed the respondent's Plan by providing that a representative's office was vacated when his employment terminated. This provision not only effectively pre- vented the employees from designating outsiders as their representa- tives once they had' accepted the Association, but also gave the respondent the power to rid itself of representatives who were dis- tasteful to it by discharging them 16 The constitution and bylaws make no provision for protecting the Association against such inter- ference. In short, an inherently weak bargaining structure, origi- nally instituted by the respondent, was perpetuated in the Associa- tion, under circumstances affording no reason to believe that such an organization was the free and untrammeled wish of the employees generally. From the foregoing, it is apparent that the Association was not a new and truly independent organization but rather a continuation and reorganization of the Plan under a different name. Not even counsel for the Association believed that it was a different and inde- pendent organization. In his memorandum to the superintendents of schools, quoted above, he described the Association as "merely putting in legal form what previously existed, and which now is declared illegal in form." The reorganization was encouraged by the respondent's expressed hostility toward "outside" unions an4 its preference for a union limited to its own employees and by its domi- nation and support of the Plan over a long period of time. Allow- ing the Association privileges of the sort enjoyed by the Plan pro- vided the employees with a further basis for the belief that the '0 Dillon, one of the organizers of the Association, testified that while the bylaws made no provision for continuing membership in the Association in the event of an unjust dis- charge, he thought that the discharged employee would be entitled to appeal to the repre- sentatives to have his grievance taken up. Such an informal arrangement does little to insure the independence of employee representatives,wbo are themselves employees com- pletely dependent upon the respondent for their livelihood. JOHN A. ROEBLING'S SONS COMPANY 501 respondent favored the Association.' The employees, dependent upon the respondent for their living, are naturally sensitive to its wishes. We believe that the respondent made its wishes sufficiently clear to the employees to deprive them of that free and unhampered choice of a bargaining agent to which they are entitled under the Act. Had the respondent taken affirmative steps to assure the em- ployees that its previous unlawful policy was no longer in effect, and that they were completely free to do as they wished in organiza- tional matters, a different conclusion might be warranted. No such assurances are shown here. Upon the basis of the entire record, we find that the respondent, has dominated and interfered with the formation and administration of, and contributed support to, the Association. C. The alleged discriminatory discharge The amended complaint alleged that on or about May 10, 1938, the respondent terminated for a period of 2 weeks the employment of Roland Goddard,la an employee in its Roebling plant, and that on or about May 23, 1938, after he had been reemployed, demoted him because of his membership in and activities in behalf of the S. W. 0. C. When the Board had completed the presentation of the evidence with respect to the allegations in the complaint con- cerning Goddard's discharge, the Trial Examiner, on the respond- ent's motion, dismissed the allegations. No exception to this action was taken by the S. W. 0. C. We have reviewed the evidence and find the Trial Examiner's ruling correct. The ruling is hereby affirmed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A and B above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY We have found that the respondent, by the circulation of its letter of January 22, 1937, has interfered with, restrained, and coerced its 17 A further indication of the respondent's desire that the Association endure is the solicitation of membership in the Association by Gang Leader Lawrence, whom we have found to occupy a supervisory position . While we would not regard this instance of solicitation as of great weight in the absence of other indications of the respondent's favoritism for the Association, It is of some significance under the circumstances present here. is Roland Goddard is not to be confused with one of the superintendents , P. S. Goddard. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in their right to self-organization. Accordingly, we shall order the respondent to cease and desist from such practices. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has con- tributed support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination 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 Association, to disestablish it as a representative of the employees for the purposes of collective bargaining, and to cease giving effect to the contract with the Association. The respondent will, in addition, be ordered to cease and desist from dominating and interfering with the formation and administration of and contribut- ing support to the Association or any other labor organization. This action, together with the posting of appropriate notices, is necessary to afford the employees a free opportunity, which has never been theirs, to follow their own desires as to organization, whatever they may be. Upon the basis of the foregoing findings of fact and the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee and Roebling Employees Association, Inc., are labor organizations, within the meaning of Section 2 (5) of the Act. 2. 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. 3. The respondent has dominated and interfered with the forma- tion and administration of Roebling Employees Association, Inc., and it has contributed support thereto, within the meaning of Section 8 (2) of the Act. 4. The respondent has not discriminated in regard to the tenure of employment of Roland Goddard within the meaning of Section 8 (3) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law and pursuant to Section 10 (c) of the National Labor Re- lations Act, the National Labor Relations Board hereby orders that JOHN A. ROEBLING 'S' SONS COMPANY 503 the respondent, John A. Roebling's Sons Company, Trenton, New Jersey, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Roebling Employees' Association, Inc., or with the forma- tion or administration of any other labor organization of its em- ployees, or contributing support to said Roebling Employees' Asso- ciation, Inc., or to any other labor organization of its employees; (b) In any manner giving effect to its contract, heretofore de- scribed, with Roebling Employees' Association, Inc., to any renewal thereof, or to any successor contract it may have entered into with said Roebling Employees' Association, Inc., in respect to rates of pay, wages, hours of employment, or other conditions of employment; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, 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, 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 Roebling Employees' Asso- ciation, Inc., as a representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes; wages, rates of pay, hours of employment, or other conditions of employment, and completely disestablish Roebling Employees' Asso- ciation, Inc., as such representative; (b) Immediately post notices in conspicuous places at its Trenton and Roebling, New Jersey, plants, and maintain them for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in Section 1 (a), (b), and (c) and that it will take the affirmative action set forth in Section 2 (a) of this Order; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (a) of the National Labor Relations Act. 247384-40-vol. 17-33