Westinghouse Electric & Manufacturing Co.

In the Matter Of WESTINGHOUSE ELECTRIC & MANUFACTURING COM- PANY and UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, LOCAL #410 Case No. C-770.-Decided December 13, 1939 Electrical Appliances Manufacturing Industry-Interference , Restraint, and Coercion : threat to president of outside union ; hostile statement to union com- mittee ; dealing with company-dominated organization ; allegations of surveil- lance, dismissed for lack of evidence-Company-Dominated Union: history of admittedly dominated Joint Conference Committee Plan from its establishment by respondent in 1933 to its discontinuance by respondent on May 12, 1937, con- sidered in evaluating alleged unfair labor practices ; attempt by respondent to revise Plan after April 12, 1.937; Independent launched in May 1937 by em- ployees who were active representatives under Plan and constitution drafted by them, based on drafts for revising Plan, with representatives still subjected to respondent's control ; respondent induced employees to accept the Independent as a substitute for the Plan, enabling it to enroll majority of 2300 employees in less than a month ; discrimination in favor of : refusing use of ball to outside organization where speaker not an employee ; events subsequent to formation immaterial, because constitution of Independent subjecting representatives to employer's continuing control, incapacitated it from acting as free representative of employees ; no finding of financial support ; Independent disestablished as representative for collective bargaining. Mr. Mark Lauter, for the Board. Mr. Harold Smith, Mr. C. A. Reinwald, and Mr. R. L. Gilpatric, of New York City, for the respondent. Isserman, Isserman, Rothbard d Kapelsohn, Mr. Neil Brant, and Mr. Samuel L. Rothbard, of Newark, N. J., and Mr. Stanley H. New- ton, of Bloomfield, N. J., for Local #410. Mr. Ralph Ricciardi, and Bailey c -Grimm, by Mr. George L. Bailey, of Newark, N. J., for the Independent. Mr. Milton E. Harris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges duly filed by United Electrical, Radio & Machine Workers of America, Local #410, herein called Local #410, the Na- tional Labor Relations Board, herein called the Board, by its Regional 18 N. L. R. B., No. 46. 300 WLSTIINGH.OUSP ELECTRIC & ITANUI ACTURING COMPANY 301 Director for the Second Region (New York City), issued its com- plaint, dated March 8, 1938, against the Westinghouse Electric & Man- ufacturing Company, herein called the respondent, alleging that the respondent, at its place of business on Clearfield Avenue, Bloomfield, New Jersey, herein called the Bloomfield plant, 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. With respect to the unfair labor practices, the complaint alleges, in substance, that the respondent (1) dominated and interfered with the formation and administration of, and contributed support to, a labor organization of its employees at the Bloomfield plant, the said organization being known as The Employees' Independent Union, herein called the Independent; and (2) interfered with, re- strained, and coerced its employees at the Bloomfield plant in the exercise of the rights guaranteed in Section 7 of the Act by its activ- ities in connection with the Independent, by urging, persuading, and warning the said employees to become members of the Independent and to refrain from becoming or remaining members of Local #410, by threatening them with reprisals if they became or remained mem- bers of Local #410, by keeping the meetings of Local #410 under surveillance, and by other acts. The complaint, containing notice of it hearing, was duly served upon the respondent, upon Local #410, and upon the Independent. Thereafter the respondent duly filed its answer to the complaint, admitting some of the jurisdictional allegations thereof but denying that it had engaged in any of the alleged unfair labor practices. The respondent also duly filed a motion for a bill of particulars, and a motion to consolidate the proceeding with another proceeding theretofore duly commenced by the Independent, pursuant to Section 9 (c) of the Act, for investigation and certification as the exclusive representative of all the employees in a certain unit claimed to be appropriate at the respondent's Bloomfield plant for the purposes of collective bargaining.' The Independent duly filed a motion to intervene, and to consoli- date the proceeding with the aforesaid proceeding for investigation and certification of representatives, and for a change of venue to some locality near Bloomfield, New Jersey. Pursuant to notice, a hearing was duly held on May 5, 6, 9, 11, 12, and 13, 1938, at New York City, before Paul Davier, the Trial Exam- iner duly designated by the Board. The Independent's motion to intervene was granted. The respondent and the Independent were represented by counsel and participated in the hearing, and were 1 Case No. II-R-408. 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues.2 The respondent's motion for a bill of particulars and its motion to con- solidate were denied.' The Independent's motion to consolidate and its motion for a change of venue were denied. On July 14, 1938, the Trial Examiner filed his Intermediate Re- port, in which he found that the respondent had dominated and interfered with the formation and administration of, and contributed financial and other support to, the Independent within the meaning of Section 8 (2) of the Act, and had engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8 (1) of the Act. He recommended that the respondent cease and desist from engaging in such practices, and that the respondent, in order to effectuate the policies of the Act, (a) withdraw recognition from and completely disestablish the Independent as the representative of any of its employees for the purposes of collective bargaining, (b) post notices that it would cease and desist as aforesaid, and (c) report to the Regional Director within 10 days the manner and form in which it had complied with such recommendations. Copies of the Intermediate Report were duly served on the respondent, on Local #410, and on the Independent. Thereafter the respondent and the Independent duly filed exceptions to the Intermediate Report and other parts of the record 4 No exceptions were filed by Local #410. Notice was thereafter duly given to all parties that they might file a brief with the Board by May 6, 1939. At the request of the In- dependent, and subsequently at the request of Local #410, two extensions of additional time were granted to all parties, expiring May 24, 1939. Pursuant to such notice, the respondent duly filed a brief, but neither the Independent nor Local #410 did so. Notice was also duly given to all parties that a, hearing for the purpose of oral argument would be held before the Board, at Wash- ington, D. C., and that the argument of each party would be limited to a half hour. The respondent and the Independent each having duly requested the Board to be granted more than the half hour allotted for oral argument, the Board issued an order on April 14, 1939, granting the respondent an hour for oral argnment, and another order on May 16, 1939, granting the Independent an hour for oral argument. Pursuant to notice, a hearing for the purpose of oral 2 Local ##410 did not participate in this hearing. 3 In denying the motion for a bill of particulars , the Trial Examiner stated that an ad- journment would he granted if evidence were adduced which surprised the respondent. The respontent at no time requested an adjourmnent pursuant to this ruling, however. I Included with the exceptions of both parties were motions that the Board make certain findings of fact and conclusions which the Trial Examiner had not made , and that the Board dismiss the complaint. WE'STINGH'OUSE ELECTRIC & MANUFACTURING COMPANY 303 argument, at which the respondent and Local #410 participated, was duly held on May 26, 1939, before the Board, at Washington, D. C.5 The Board has reviewed all the rulings of the Trial Examiner on motions and on objections to the admission of evidence, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the exceptions filed by the re- spondent and by the Independent, the oral argument held before it, and the brief filed with it. Save as the exceptions are consistent with the findings, conclusions, and order hereinafter set forth, the Board finds them to be without merit. The motions made by the respondent and by the Independent, in their respective exceptions, that certain findings of fact and conclusions, as therein set forth, be made by the Board, and that the complaint be dismissed, are, for reasons hereinafter set forth, hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF TIIE RESPONDENT The respondent, a Pennsylvania corporation, maintains a place of business on Clearfield Avenue, Bloomfield, New Jersey. At all times hereinafter referred to prior to December 1, 1936, the Bloomfield plant was owned by the respondent's wholly owned subsidiary, the Westinghouse Lamp Company, but at all times since the said date has been owned by the respondent. The Bloomfield plant is oper- ated by the respondent's Westinghouse Lamp Division, which also operates two other plants in New Jersey, one in Belleville, and the other in Trenton. The Bloomfield plant normally employs about 2,500 employees, and manufactures, sells, and distributes lamps, power tubes, X-ray tubes, and related articles. During the 12-month period from April 1, 1937, to March 31, 1938, the materials purchased by the respondent for its Bloomfield plant and transported from points outside of New Jersey amounted to about $2,400,000, or 54 per cent of the total pur- chases for this plant. During the same period, the products sold by the respondent from its Bloomfield plant and transported to points outside of New Jersey amounted to about $8,427,000, or 95 per cent of the total sales from this plants The Independent did not appear at this hearing. The respondent stipulated at the hearing that at its Bloomfield plant it was engaged in commerce within the meaning of the Act , and that it would not contest the jurisdiction of the Board on that ground, 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED Local #410 is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership the respondent's employees at its Bloomfield plant, with the exclusion of certain super- visory employees. The Independent is an unaffiliated labor organization, admitting to membership the respondent's employees at its Bloomfield plant. III. THE UNFAIR LABOR PRACTICES A. Background In determining whether the respondent engaged in unfair labor practices by dominating and interfering with the formation and administration of, and contributing financial and other support to, the Independent, we shall consider certain events which occurred prior to July 5, 1935, the date when the Act went into effect. How- ever, we make no finding of unfair labor practices with reference to such events. The actions of the respondent prior to the said date do not constitute unfair labor practices under the Act; they merely help to determine whether the respondent engaged in unfair labor practices subsequent to the said date.7 In August 1933 the Westinghouse Lamp Company, the respondent's wholly owned subsidiary and its predecessor as legal owner of the Bloomfield plant, established and sponsored at the Bloomfield plant, and also at two other New Jersey plants in Belleville and Trenton, a Joint Conference Committee Plan, herein called the Plan, to pro- vide a "direct method of handling questions" between the manage- ment and the employees. The Plan provided, in substance, for three different kinds of joint committees, each composed of equal numbers of "executive" employees appointed by the management, and of "process and non-process" em- ployees elected for an annual term by their fellow employees. These three kinds of committees were (1) a "Joint Departmental Commit- tee" for each of the nine "departments" established by the Plan 8 its size depending upon the number of employees in the "department"; (2) a "Joint Executive Committee," composed of one elected member from each of the nine Joint Departmental Committees and a like number of management appointees; and (3) a "Joint Conference 7 See National Labor Relations Board v . Pacific Greyhound Lines, Inc ., 303 U. S. 272. 8 One of the "departments" was apparently located at the Belleville plant, and another at the Trenton plant. WESTINGHOUSE ELECTRIIC S, MANUFACTURING COMPANY 305 Committee," composed of all the appointed and elected members of all the foregoing committees. In general, a Joint Departmental Com- mittee dealt with all local matters, and referred matters to the Joint Conference Committee only when they involved the interests of other "departments." It was the duty of the Joint Conference Committee to consider all matters referred to it by any of the Joint Depart- mental Committees, or by the Joint Executive Committee ; and it was the duty of the Joint Executive Committee to consider all mat- ters referred to it by the Joint Conference Committee, and to make recommendations thereon to the Joint Conference Committee, or to the management. The Plan did not confer authority on any of the joint committees to bind the management, the function of the com- mittees being merely advisory. The Plan further provided that all "process and non-process" em- ployees were eligible to vote for committee members, but that only those employees eligible to vote who had been in the continuous employ of the Westinghouse Lamp Company for at least 2 years immediately preceding an election were eligible for election to the committees. The Plan also provided that "leaving the employ" of the Westinghouse Lamp Company, or "being transferred to another department," constituted a vacancy in any committee. The method of amending or terminating the Plan was to be subsequently estab- lished by the committees. The Plan made no provision for any meetings of the employees, or of the elected members by themselves in the absence of the members appointed by the management ; nor was there any provision for becoming a member of the organization (as distinguished from automatic participation by all employees), or for dues or any other form of financial support. Voting was conducted and all committee meetings were held in the plant during working hours; and all expenses, including the prepara- tion and distribution of minutes and the pay of the elected committee members, were borne by the respondent. The Plan was revised in minor respects a year later, in August 1934, by the Westinghouse Lamp Company. The chief changes were the addition of provisions that three-fourths of the members of a joint committee were necessary to constitute a quorum, that amendments to the Plan must be approved by two-thirds of the Joint Conference Committee and of the Joint Executive Committee before being "sub- mitted to the management," s and that the plan could be terminated jointly by the management and the employees. After July 5, 1935, the effective date of the Act, the Plan continued in operation without change. In August 1936, the Plan was again revised in minor respects by the Westinghouse Lamp Company, the There was no provision that an amendment duly passed by the Joint Committees should become effective without the management's approval. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes being chiefly in terminology. However, the management was no longer expressly restricted to "executive" employees in making appointments to the joint committees, but apparently might appoint any employee; and all the employees not so appointed by the manage- ment (not merely the non-supervisory employees) were eligible to vote and to be elected as committee members.10 The word "Joint" be- fore the committee names was generally dropped, and the former "Joint Executive Committee" was renamed the "Advisory Com- mittee." After the legal title to the Bloomfield plant was transferred to the respondent on December 1, 1936, the respondent continued to operate the Plan as an advisory agency to the management. On March 5, 1937, the respondent issued a printed revision of the Plan, the only change being in the name of the management. The respondent concedes," and we find, that it dominated and interfered with the administration of, and contributed financial and other support to, the Plan. However, the complaint does not allege, and we make no finding, that the respondent engaged in unfair labor practices with respect to the Plan. B. Local #410 Sometime in March 1937, a labor organization was formed among the employees at the Bloomfield plant by the United Electrical & Radio Workers of America'12 which granted the organization a charter as Local #410 on April 17. In May 1937, Local #410 held a meeting in the Recreation Room of the plant, pursuant to permission obtained from Harry D. Madden, the plant manager. Later in the same day John E. Blendermann, a foreman, called Harold C. Conselyea, the president of Local #410, to the office of F. C. Thorns, the superintendent of Conselyea's divi- sion. Conselyea testified that Thoms then stated, in the presence of Blendermann and Kestner, the assistant superintendent of the division, that he understood that Conselyea had had "a C. I. O. 10 The eligibility requirement for elected members was reduced to 1 year of previous employment. 11 At page 10 of its brief , the respondent states that "the fundamental characteristic of the Joint Conference Plan lay in the appointment by the management of one-half of the membership of each of the committees serving under the Plan ( Ex. B8, Art . V). This feature , coupled with the provisions of the Plan that `appointed' members by their absence from committee meetings could block transaction of business ( Ex. B8, Art. VII ), and that neither the Plan nor its rules could be amended without approval by at least some of such members ( Ex. 138, Art. X ), gave the management a substantial voice in the functioning of the Plan. * * * Also * * *, all non-supervisory employees * * * automati- cally became members * * *." In addition , no dues or other form of financial sup- port was provided for the operating expenses of the Plan, which were borne by the respondent. 12 The name of this parent organization was changed to the United Electrical, Radio & Machine Workers of America prior to the verification of the charge on which the complaint herein is based. WESTINGHOUSE BUrn'CTBILC & TAIANUFACTURLNG COMPANY 307 meeting" in the Recreation Room that afternoon, to which statement Conselyea replied in the affirmative ; that Thorns then asked Consel- yea, "Which is more important, your job or the Union?"; that Conselyea answered, "Naturally, my job"; and that Thorns admitted knowing that Madden had already given Conselyea permission to hold the meeting, but, after pointing out that Conselyea was needed around his machines and that he could not afford to be away from them '13 closed by saying that Conselyea could have no meetings after that one. Neither Thorns nor Kestner was called as a witness, and Blendermann, who was called, did not testify concerning this incident. We find that the incident occurred substantially as testified to by Conselyea. The respondent urges in its brief that it is a fair inference that Thorns spoke to Conselyea about this meeting because Conselyea had not taken the matter up with Thorns beforehand, so that arrange- ments could be made to take care of Conselyea's work. We do not agree with that interpretation of the evidence. There is no showing that Madden's permission did not include an express or implied permission for Conselyea to leave his work. Madden did not testify about the incident, and Thorns did not testify at all. We are of the opinion and find that Madden's permission did include an express or implied sanction for Conselyea to leave his work, since it seems reasonable to us that Madden knew the circumstances under which he had granted Local #410 the right to use the Recreation Room. We further find that Thorns, by such statements, intended to dis- courage Conselyea's participation in union activity. However, even if, contrary to our finding, Thorns' actions were motivated primarily by the consideration urged by the respondent, nevertheless the terms in which the reprimand was couched-the alternative choice of Con- selyea's job or the Union-plainly showed that it was intended to convey a threat because of the union activity in which Conselyea was engaged, and we so find. On May 14, 1937, Conselyea and other officers of Local #410 had their first meeting with Madden. At this meeting, Local #410 requested the use of the company bulletin boards at the plant. Madden denied this request, saying that it would "affect the morale of the employees" and "might eventually stir up trouble" if the use of the bulletin boards were granted to Local #410. Local #410 also requested recognition as the exclusive bargaining representative, but Madden stated that such recognition would be accorded only upon certification by the Board.14 Meetings between Local #410 and ' Conselyea was not paid for the time spent at the afternoon meeting, as he had "punched out" to attend it. 14 There is no issue under the pleadings, and no showing in the record, as to whether or not Local #410 at any time represented a majority of the employees in any unit claimed to be appropriate for the purposes of collective bargaining at the Bloomfield plant. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Madden were thereafter held at intervals, for the purpose of discuss- ing matters of interest to members of Local #410. On June 9, 1937, Conselyea requested Madden for permission to use the Recreation Room for a meeting the following afternoon. Madden granted this request. At the same time Conselyea requested permission to have "an outside member of the C. I. 0." address this meeting. Madden refused this request, stating that the Recreation Room was for the use of employees only. The record does not dis- close that this meeting was held, but Local x$410 did not thereafter use the Recreation Room. We find that, by the foregoing acts, the respondent interfered with, restrained, and coerced its employees at the Bloomfield plant in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleges that the respondent interfered with, re- strained, and coerced employees by keeping the meetings and mem- bers of Local #410 under surveillance. The evidence does not sus- tain this allegation, and it will be dismissed. C. Formation of the independent 15 On April 12, 1937, the Supreme Court of the United States, in passing on the validity of the Act for the first time, decided that it was constitutional.16 Two days later, the Miscellaneous Depart- mental Committee held a special meeting in the office of E. H. Vernet, the manager of the Industrial Relations Department at the Bloom- field plant, and one of the two secretaries of all the committees estab- lished under the Plan.- At this meeting, Vernet undertook to obtain the opinion of the respondent's legal department by April 21, the date of the next meeting of the Joint Conference Committee, as to whether the Plan was valid under the Act, and, if not, what changes should be made. In accordance with the provisions of the Plan with respect to amendments,"' the meeting requested the Joint Conference Committee to appoint a subcommittee to review the status of the Plan under the Act and to submit proposed revisions to the em- ployees to bring about conformity with the Act. A meeting of the Joint Conference Committee was held a week later, on April 21, 1937, at 10:30 a. m., in the Research Conference 11 The respondent contends that Newton , who testified in some detail concerning what he conceived to be the formation of the Independent, is not a credible witness. Our findings of fact as to the formation of the Independent, however, are based almost exclusively on the testimony of Joseph J. Donnelly, whose credibility the respondent not only does not attack, but for which it affirmatively vouches in its brief. 16 National Labor Relations Board v. Jones it Laughlin Steel Corporation , 301 U. S. 1, and related cases. 17 The other secretary was Frank Shepard , an elected committee member. 11 The Plan in effect at this time required that proposed amendments first be submitted to the Joint Conference Committee by either a Joint Departmental Committee or the Joint Advisory Committee. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 309 Room of the plant, under the chairmanship of J. Whitmore, the superintendent of one of the divisions of the respondent's Westing- house Lamp Division. At this meeting, Vernet reported on the April 14 meeting of the Miscellaneous Departmental Committee, but added that no reliable information had been obtained on the status of the Plan under the Act. On Shepard's motion, 10 employees- were appointed as a subcommittee to revise the Plan so that it would conform to the requirements of the Act. Donnelly, who was an elected committee member and 1 of the 10 employees appointed on this subcommittee, then asked for a general discussion of "what is wanted." 20 A discussion followed, in which three of the supervisory employees of the subcommittee participated. Most of the members stated that they wanted the Plan continued, but in less cumbersome form, without members appointed by the management and without outside affiliation. Donnelly then moved that a poll of the em- ployees be taken on the question of affiliation, but after further dis- cussion he withdrew his motion. There had been two informal lunch-time meetings of some of the persons on this subcommittee prior to their appointment on April 21, and there were about five more meetings of the subcommittee after April 21, all in the plant and during working hours. How- ever, this subcommittee never made any formal report or recom- mendation to the Joint Conference Committee, or to the employees. A special meeting of the elected members of the Joint Conference Committee was called at Madden's request for May 12, 1937. This meeting was held in the plant, beginning at sometime between 10 and 11 o'clock in the morning. At the meeting, Madden announced that the respondent would no longer contribute support to the Plan, and that the Plan would be discontinued. Madden then made an address, stating that he was not interested in what type of labor organization the employees adopted, since that was their own busi- ness, and asking if the elected members present would care to discuss the situation among themselves. If so, he added that he would withdraw but would be available at his office if he were needed for anything later on. The members present indicated that they wished to adopt this suggestion, and Madden and Vernet, the only non-elected members then present, accordingly withdrew. After electing Donnelly chairman of the meeting, those present proceeded to tabulate a poll that some of the elected representatives had taken in various informal ways among some of the employees, during working hours, on the question of affiliation. The sentiment 19 Four of the ten were supervisory employees : namely, W. Gero (superintendent of Divi- sion No. 313), E. Schmid (head chemist ), G. Thierbach (assistant superintendent of Division No. 330 ), and w. Wallace (a supervisor in Division No. 307). '9 Board Exhibit 6, the minutes prepared and mimeographed by the respondent. 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees polled, as reported by the representatives present, appeared to be about 80 per cent opposed to affiliation with any national labor organization. After a lengthy discussion as to what steps should be taken, lasting until 3 or 4 p. in., the elected members recalled Madden to request him to continue to recognize the repre- sentatives of the Plan until a new labor organization was formed to take over the functions of the Plan, and to close the meeting. Madden replied that he would be glad to meet with any individuals or any group at any time. However, no further meetings were there- after requested or held under the Plan. No formal termination of the Plan, as provided for .in its constitution, appears to have ever taken place. About the middle of May 1937, J. Hennelly, an elected committee member under the Plan, invited about 20 employees, who, he thought, would be interested in forming an "independent" union, to a meeting in the Recreation Room of the Bloomfield plant at 7:30 p. in. on May 20, after working hours, for the purpose of organizing such a union. Almost all of these 20 employees were elected mem- bers of the Joint Conference Committee prior to the discontinuance of the Plan. The meeting was held in accordance with the invita- tion, with Donnelly acting as chairman, and lasted about 21/2 or 3 hours. After a discussion, of which the record discloses practically no details, the meeting authorized Donnelly and Shepard to draft a constitution for the organization along the lines suggested by the subcommittee appointed to revise the Plan. The meeting also author- ized the printing of application cards stating that the signer was contributing "$______" to the "Employees' Independent Union" as a credit against the dues thereafter to be established, and that he agreed to abide by and uphold the constitution of the Independent and designated its officers as his representatives. In accordance with the foreclosing instructions, Donnelly pro- ceeded to draft the desired constitution and bylaws, based on notes of the meetings previously held by the subcommittee and drafts prepared at those meetings. The constitution and bylaws so drafted were printed on June 4, 1937. The printed copy states on its cover : "Approved June 1937." However, there is no evidence in the record that this document was approved by the members of the Independ- ent.21 Nevertheless, the said constitution and bylaws have been in effect ever since the Independent began functioning. a The respondent contends that the statement in the application cards that each appli- cant agrees to "abide by and uphold " the constitution of the Independent indicates that the applicant has ratified this particular document. We think that the statement in the appli- cation cards , without further proof, can be taken to mean only that the applicant agrees to abide by and uphold whatever constitution may be adopted by the Independent , and is in the nature of a general authorization rather than a ratification of a specific document. But even if the respondent's contention were correct, we think that such ratification was not uninfluenced by the respondent's previous conduct with respect to the Plan. WESTINGHOUSE ELr'CTR11C & MANUFACTURING COMPANY 311 During the first part of 1937 Donnelly gave two talks to the em- ployees in the Recreation Room, during lunch periods, to induce them to join the Independent.22 Permission was granted to use the Recreation Room for these talks, and also for many subsequent meet- ings of the Independent,23 but such activities were not allowed to interfere with working time; and rent was generally charged. The respondent urges that it maintained an impartial attitude toward the rival labor organizations in its Bloomfield plant, in that it granted both of them the privilege of using the Recreation Room until they obtained their respective outside meeting places. We are not persuaded by this contention. We have seen that the respondent refused to permit Local #410 to have an outside organizer address any meeting of employees in the Recreation Room. By that action, the respondent permitted its employees to use the Recreation Room in connection with labor activities only in those cases where the speakers were restricted to employees.24 The respondent made no showing that it had ever placed such an unusual limitation upon the use of the Recreation Room during the existence of the Plan, before the advent of Local $410. Thus, there is no question here of the impartial application of a plant rule of past standing. Moreover, the respondent offered no explanation of its motive for first invoking the restriction when Local #410 sought to have an outside organizer address an employee group.25 Under these circumstances, we find that the respondent placed a restriction upon the use of its Recreation Room to permit the Inde- pendent to make frequent use of the said Room, while preventing Local #410 from doing so unless it, surrendered its right to outside affiliation, and that the respondent thereby discriminated against Local #410 in favor of the Independent and contributed support to the latter organization. .Marion McNicholas, a member of the Independent, on one occasion made a campaign speech in the Flashlight Department of the plant during her lunch period. She had been .an elected employee representative under the Plan until September 6, 1934, at which time Thorns removed her from the list of employees eligible for election and had her appointed as a management representative with the explanation that she had become a supervisory employee upon her promotion to the position of monitor (in charge of 8 or 10 production employees ), a position which she still occupied at the time of the hearing. See National Labor Relations Board v. American Manufacturing Company, et at., 106 F. (2d) 61 (C. C. A. 2), as to the supervisory capacity of such an employee, regardless of the power to hire and discharge. 23 The Independent did not obtain outside quarters for its meetings until August 1937. " The Act guarantees the right of employees to form, join, or assist labor organizations, without limiting such organizations to those whose membership is composed exclusively of fellow employees. The Act also guarantees the right of employees to bargain collectively through representatives of their own choosing , without limiting such choice to fellow employees. u In the absence of such an explanation , we are not unmindful of the reasons given by Madden for denying Local #410 the use of the respondent's bulletin boards, namely that it would "affect the morale of the employees" and "might eventually stir up trouble." 283029-41-vol. 18-21 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 21, 1937, the Independent held an election for officers in the Recreation Room during the lunch period. Two days later, on June 23, the respondent began to deal with the officers so elected, as the representatives of the Independent' s members. On June 29, in less than a month after the commencement of its campaign for mem- bers, the Independent claimed to represent a majority of the respond- ent's employees at the Bloomfield plant, and requested recognition as the exclusive representative of such employees. The respondent refused to grant this request, stating that exclusive recognition would be accorded only to a labor organization duly certified by the Board. The respondent thereafter continued to deal with the Independent as the representative of its members only. On August 10 the Inde- pendent duly filed with the Board a petition for investigation and certification, pursuant to Section 9 (c) of the Act.26 D. Structure of the Independent The constitution and bylaws of the Independent provide in part that any employee regularly on the pay roll of the respondent's West- inghouse Lamp Division is eligible for membership in the Independ- ent.27 Any member below the rank of assistant foreman, who was in the continuous-employ of the respondent's Westinghouse Lamp Divi- sion for at least 2 years prior to the date of election, is eligible for election to the office of president, vice president, or secretary-treasurer of the Independent, for an annual term. The respondent's Westing- house Lamp Division is divided into 10 "departments," which are the same as were established under the Plan (except that one of the old "departments" is split up into two new "departments"), and each of the 10 "departments" has its Local Committee, composed of 1 repre- sentative for every 100 members employed in that "department." Any member below the rank of assistant foreman, who has been in the continuous employ of the respondent's Westinghouse Lamp Division for at least 1 year prior to the date of election, is eligible for election to the Local Committee of the "department" in which he is employed, for an annual term. Any member of a Local Committee, except the president, the vice president, and the secretary-treasurer, is eligible for 26 On August 23, 1937 , the United Electrical & Radio Workers of America duly filed a charge alleging in part that the respondent, at its Bloomfield plant, dominated and inter- fered with the formation and administration of, and contributed financial and other sup- port to, the Independent . Pursuant to our usual practice in such cases, action on the Independent's petition has been held in abeyance pending final disposition of the allega- tions contained in the charge . An amended charge, containing similar allegations, was duly filed by Local # 410 on March 5, 1938; and the complaint herein, based on the amended charge, was issued 3 days later. 27 The membership of the Independent in practice is limited to the employees at the respondent's Bloomfield plant, and does not include the employees at the Belleville or Tren- ton plant. Supervisory employees are eligible for membership, apparently. WESTINGHOUSE ELE'C'TRIC & MANUFACTURING COMPANY 313 election to the General Council as the representative of that Local Com- mittee, for an indefinite term, subject to the wishes of the Local Com- mittee represented. The duty of the General Council is to "contact management . . . on subjects of interest" to the Independent.28 The president and the treasurer of the Independent, together with the treasurers of each of the 10 Local Committees, constitute a standing committee to determine and direct the organization's financial policies.20 The constitution further provides that "leaving the employ" of the respondent's Westinghouse Lamp Division or "being transferred to another jurisdiction" constitutes a vacancy in any committee, and "termination of employment" at the respondent's Westinghouse Lamp Division constitutes a vacancy in the office of president, vice presi- dent, or secretary-treasurer. There is no evidence in the record that the constitution and bylaws of the Independent, as set forth above, were subsequently amended. E. Conclusions with- respect to the Independent We have found that the respondent dominated and interfered with the administration of and contributed support to the Plan until May 12, 1937, when as a result of the decisions of the Supreme Court of the United States the respondent announced that the Plan would be dis- continued. The respondent, although advised in the May 12 meeting that it was intended to form a new labor organization to replace the Plan, at no time thereafter took any steps to dissipate the continuing effects on the employees of its past activities with respect to the Plan, nor did it in any way seek to advise its employees that it no longer desired to influence their exercise of the rights guaranteed in Section 7 of the Act.30 On the contrary, the course of conduct pursued by the respondent until the Independent was successfully launched served to induce its employees to accept the Independent as a substitute for the Plan, and belied Madden's May 12 profession of disinterestedness in the form of organization selected by the employees. Thus, under the respond- ent's guidance a definite movement for revision of the Plan was ini- tiated 2 days after the Supreme Court decisions of April 12, 1937, at a special meeting of one of the Joint Departmental Committees, com- posed of equal numbers of management and employee representatives, held during working hours in the office of Vernet, the manager of the 18 In practice, the officers of the Independent , who are ineligible for election to the Gen- eral Council , usually represented the organization in dealing with the management. m This committee, on June 29 , 1937, established dues at 25 cents per month. 30 We do not consider Madden's statements to the elected members of the Joint Confer- ence Committee , at the May 12 meeting , as amounting to giving notice to the employees that the respondent no longer desired to influence their exercise of such rights . There is no showing that these statements were conveyed to the employees generally , in any manner. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent's Industrial Relations Department and one of the Plan's two secretaries. At that meeting Vernet undertook to secure the ad- vice of the respondent's legal department on the question of revision of -the Plan to conform to the Act. One week later, at a meeting of the Joint Conference Committee, 10 members, including 4 supervisory employees, were appointed to prepare a revision of the Plan. This 10-man subcommittee thereafter held approximately 5 meetings in the plant during working hours, prior to May 12, 1937, for the purpose of discussing and preparing drafts of such a revision. After the sub- committee had held these five meetings and had prepared a draft con- stitution for an inside union, the respondent called the special meeting of May 12, 1937, and announced that the Plan would be discontinued. On May 20, 1937, 8 days after the announcement of the discon- tinuance of the Plan, at a meeting of about 20 employees, all of whom (without significant exception) were former elected committee mem- bers under the Plan, Donnelly, a member of the former 10-man sub- committee, and Shepard, the employee representative who had moved the appointment of the 4 supervisors and the 6 other em- ployees to the subcommittee, were authorized to prepare a constitu- tion for an inside organization, along the lines suggested by that subcommittee. Donnelly then drafted a constitution based upon notes of the prior meetings held by the subcommittee and upon drafts pre- pared in those meetings. The constitution was accepted promptly by the group of 20, and was printed on June 4, 1937, without ever being submitted to the miembership for approval. Less than a month thereafter, with little apparent effort having been needed to obtain members, the Independent claimed a majority of the approx- imately 2,300 employees below the rank of assistant foreman at the Bloomfield plant, and the respondent admitted this claim. Meanwhile, during the period from April 12 to the end of June, by which time the Independent was fully launched as the successor to the Plan, the respondent had made plain its hostility to outside organizations (1) by its threat to Conselyea, (2) by in effect refusing to permit its employees to use the Recreation Room for an outside organization, and (3) by announcing to Local #410 that to permit it to use the plant bulletin boards "would affect the employees' morale" and "might stir up trouble." Upon the basis of the foregoing facts, we find that the employees at the Bloomfield plant were not freed from the respondent's domi- nation of the Plan prior to May 12, 1937,31 and that their acceptance of the Independent, under the circumstances recited, was not their free and voluntary act, but was the product of the respondent's con- 81 Compare Matter of Wisconsin Telephone Company and Telephone Operators Union, Local 175-1, International Brotherhood of Electrical Workers, 12 N. L. R. B. 375. WESTINGHOUSE ELECTRIC & MANUFACTURING COMPANY 315 tinuing interference with and domination of their efforts directed toward self-organization. Several provisions of the Independent's constitution subject the organization to the respondent's continuing control, and reflect the respondent's domination of it. The respondent can prevent a mem- ber from becoming eligible for election as an officer or committee member, because of the eligibility requirement of continuous em- ployment at the respondent's Westinghouse Lamp Division for a certain period prior to election. The respondent can also deprive a duly elected officer or committee member of his office and his repre- sentative status by discharging him, by transferring him from its Westinghouse Lamp Division, or, except in the case of the president, the vice president and the secretary-treasurer, by merely transferring him to another "jurisdiction" within its Westinghouse Lamp Divi- sion, because of the provision of the constitution regarding vacancies. These provisions furnish a sufficient threat to insure that the rep- resentatives of the Independent will not become genuinely independ- ent of the respondent's wishes, and clearly render impossible any bona fide collective bargaining. 32 The respondent's mere possession of such a power to control the Independent's representatives in and of itself amounts to domination and interference with the administra- tion of the Independent, for the reason that the respondent never needs to deal with a representative it does not find sufficiently amen- able, and because the representative himself knows that he will lose his right to represent the employees or to bargain for them if he becomes too independent of the respondent's wishes. To sum up, the Independent was formed among employees accus- tomed over a long period of time to being represented by a labor organization dominated by the respondent; it was formed shortly after the respondent, as a result of the Supreme Court decisions uphold- ing the constitutionality of the Act, had announced the discontinu- ance of this admittedly dominated organization, which had been in operation for almost 2 years after being proscribed by law ; it was formed by prominent representatives elected under the dominated organization; its constitution was drafted by a representative who had been appointed to, the joint subcommittee 33 established to revise the dominated organization so as to conform to the Act, and who had attended the subcommittee's meetings at which such a revision of the organization was discussed and drafts prepared; its constitution con- tinued to subject the representatives of the new organization to the 81 See National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc ., 303 U. S. 261, at 268 , where Mr . Justice Stone, In enforcing the Board's order of disestablisbment as to a similarly controlled labor organization , said : ". . . collective bargaining is a sham when an employer sits on both sides of the table." 33 This subcommittee included four supervisory employees, who were management repre- sentatives under the Plan. 316 DECISIONS Or NATIONAL LABOR RELATIONS BOARD respondent's control; and it was formed at a time when the threat of genuine organization had become real, since Local #410 had begun organizing about 2 months earlier. In the face of such circumstances the respondent, although advised on May 12 by the representatives of the old organization that a new organization was to be formed to replace the old one, at no time took any steps to alter the natural impression of the employees that the representatives of the old organ- ization reflected the respondent's desires in organizing the new one; and, as a result, the new organization was able to enroll a majority of the plant's 2,300 employees within less than a month after it first started to recruit members. We have heretofore held, and we now hold, that a labor organization which is subjected by its constitution to the employer's control, and. which was formed by the representatives of a dominated organiza- tion among employees who have not been freed from the habit of being represented by that organization, especially if modeled along the lines suggested by a group including supervisory employees, is dominated and interfered with within the meaning of the Act. 34 The respondent contends that facts occurring subsequent to the events thus far recited are material to the issue of domination, and show that the Independent is now free from interference by the respondent. In substance, such facts are that the respondent, al- though agreeing with the Independent's claim of a majority as early as June 29, 1937, refused to grant the Independent's request for recognition as the exclusive bargaining representative, and stated that exclusive recognition would be accorded only to a, labor organization duly certified by the Board; that the respondent thereafter continued to deal with both Local #410 and the Independent, as the representa- tive of their respective members only; and that the Independent, on August 10, 1937, filed a petition for investigation and certification of representatives, pursuant to Section 9 (c) of the Act, on which no final action has yet been taken. We think that such facts neither have the probative value ascribed to them by the respondent nor alter the dominated character of the Independent. Moreover, since there is no evidence in the record that the original constitution and bylaws of the Independent were subsequently amended, we conclude that the organization lacks the independence which would entitle it to represent employees for the purposes of collective bargaining within the meaning of the Act. 35 84 Matter of Phelps Dodge Corporation-United Verde Branch and American Federation of Labor, et al., 15 N. L. R. B. 732. se See National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc ., supra, where Mr. Justice Stone, in approving the Board 's disestablishment order as to a company- dominated union , said that the employer, by unfair labor practices , had "succeeded in es- tablishing a company union so organized that it is incapable of functioning as a bargaining representative of employees," and that the company-dominated union therefore "could not without amendment of its by-laws be used as a means of collective bargaining contemplated by Section 7." WESTINGHOUSE EELEICT'RIIC & MANUFACTURING COMPANY 317 The respondent further contends that the foregoing acts do not warrant a finding that its employees at the Bloomfield plant were influenced by it in accepting the Independent, without further evi- dence to that effect. We do not agree. In the circumstances here disclosed, no employee could fail to comprehend the fact that the respondent actively desired its employees to deal with it through the Independent. Upon the basis of the foregoing facts, we find that the Independent stands in the same position as the Plan, which we found to have been dominated and supported by the respondent; 36 that the respondent dominated and interfered with the formation and administration of, and contributed support to, the Independent, and is dominating and interfering with the administration thereof ; and that the respondent has been and is interfering with, restraining, and coercing its employees at the Bloomfield plant in the exercise of the rights guaranteed in Section 7 of the Act. The complaint alleged that the respondent contributed financial support to the Independent. The evidence does not support that allegation, and we make no finding to that effect. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent set forth 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. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. The United Electrical, Radio & Machine Workers of America, Local #410, and The Employees' Independent Union, Westinghouse Electric & Manufacturing Company, Westinghouse Lamp Division, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and ad- ministration of, and contributing support to, The Employees' Inde- zO See National Labor Relations Board v. American Manufacturing Company , at al., supra, where the Court said : "In view of the identity of the persons who were most active in the formation of this union , and the similarity of the means employed . . . to set up the new organization , we think it stands in the same position as .. , the Company Union of 1936, and that the Board could properly order it disestablished . . . 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendent Union, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing employees at its place of business on Clearfield Avenue, Bloomfield, New Jersey, in the exercise of the rights guaranteed in Section 7 of the Act, the respondent 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. 5. The respondent has not engaged in unfair labor practices, with- in the meaning of Section 8 (1) of the Act, with respect to the alleged surveillance of the meetings and members of the United Electrical, Radio & Machine Workers of America, Local #410. THE REMEDY Having found thatthe respondent has engaged in unfair labor prac- tices, within the meaning of Section 8 (1) and (2) of the Act, by dominating and interfering with the formation and administration of, and contributing support to, the Independent, and by dealing with it as a representative of employees, we shall order the respondent to cease and desist from engaging in such practices. We conclude, moreover, that the continued existence of the Independent as a bargaining repre- sentative would be a continuing obstacle to the exercise of the em- ployees' right of self-organization and to bargain collectively through representatives of their own choosing; and that the employees would not be freed from the effects of the respondent's previous interference, restraint, and coercion, and the policies of the Act would therefore not be effectuated, merely by the respondent's performance of such a nega- tive order, without also requiring the respondent to take certain affirmative action. We shall therefore order the respondent to dis- establish the Independent as the representative of any of its employees for the purposes of collective bargaining, and to notify its employees at the Bloomfield plant that the respondent will comply with all of the provisions of our order."' ORDER 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, Westinghouse Electric & Manufacturing Company, and its officers, agents, successors, and assigns, shall : 37 See National Labor Relations Board v. Pennsylvania Greyhound Lines , Inc., 303 U. S. 261, supra. WESTINGHOUSE ,ELECTRIC & MANUFACTURING COMPANY 319 1. Cease and desist from : (a) Dominating or interfering with the administration of, or con- tributing support to, The Employees' Independent Union, Westing- house Electric & Manufacturing Company, Westinghouse Lamp Division, or dominating or interfering with the formation or admin- istration of, or contributing financial or other support to, any other labor organization of its employees; (b) Recognizing The Employees' Independent Union as the repre- sentative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work; (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 rep- resentatives of their own choosing, and to engage in concerted activi- ties for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw all recognition from, and completely disestablish, The Employees' Independent Union as the representative of any of its employees for the purposes of dealing with the respondent concern- ing grievances, labor disputes, wages, rates of pay, hours of employ- ment, or other conditions of work; (b) Immediately post notices in conspicuous places at its place of business on Clearfield Avenue, Bloomfield, New Jersey, and maintain such notices for a period of at least sixty (60) consecutive days, stating that the respondent will cease and desist from the aforesaid practices, and will take the aforesaid affirmative action; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of service 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 engaged in unfair labor practices, within the meaning of. Section 8 (1) of the Act, by keeping under surveillance the meetings and members of the United Electrical, Radio & Machine Workers of America, Local #410.