General Aniline Works, Inc

In the Matter of GENERAL ANILINE WORKS, INC and FEDERAL LABOR UNION LOCAL 21759 , AMERICAN FEDERATION OF LABOR is Case No C-1388 -Decided August 10, 1940 Jurisdiction : chemical manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coerczon• charges of, by keeping under surveillance union meetings or members and by urging, persuading, or warning employees to refrain from becoming or remaining members of complainant union, dis- missed. Company-Dominated Union. appearance of employee representation plan follow- ing display of interest by employees in nationally affiliated labor organization, employer's participation in the formation of: presentation of plan of organiza- tion to employees, giving notice of and attendance at meetings; contribution of support to: furnishing meeting place, bulletin boards, printed copies of repre- sentation plan, and stenographic services; permitting employees to solicit members in representation plan and to hold meetings on company time. Discrimination. charges of discharge for union membership and activity, dis- missed. Remedial Orders : company-dominated union disestablished; contract with, abrogated; reimbursement of employees for any deductions in wages for dues to company-dominated union. Mr. Millard L. Midonick , for the Board. Breed, Abbott cl; Morgan, by Mr. Thomas E. Kerwin, of New York City, for the respondent. Mr. John C. Consroe , of Albany, N . Y., for the E. R. P. Ribyat, Walsh cQ Meyers , of Utica, N . Y., Mr. Robert A. Wilson, of Washington, D. C., and Mr. Lee J. Erwine , of Albany, N. Y., for Local No. 21759. Mr. Woodrow J. Sandler, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Federal Labor Union, No. 21759, American Federation of Labor, herein called Local No. 21759, the National Labor Relations Board, herein called the Board, by the Regional Director for the Second Region (New York 26 N. L. R. B., No. 47. 491 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City), issued its complaint dated March 14, 1939, against General Aniline Works, Inc., Rensselaer, New York, herein called the respond- ent, alleging 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 National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accompanying notice of hearing were duly served upon the respondent, upon Local No. 21759, and upon the Employees' Representation Plan of the General Aniline Works, Inc. Employees at Rensselaer, New York, herein called the E. R. P., is a labor organiza- tion allegedly, dominated and supported by the respondent. Concerning the unfair labor practices, the complaint, as amended at the hearing, alleged in substance (1) that the respondent on or .about April 8, 1937, initiated, ,formed, and sponsored the E. R. P. at its Rensselaer, New York, plant, that it thereafter dominated and contributed to the support of and interfered with the administration of the E. R. P., and that on or about October 25, 1938, it entered into an agreement with the E. R. -P., pursuant to such domination and support; (2) that the respondent, on or about September 9, 1938, dis- criminatorily discharged Lee J.,Erwine because he joined and assisted Local No. 21759, and because he resigned from membership in and refused to continue to assist the E. R. P.; and (3) that by the fore- going, by urging, persuading, and warning its Rensselaer employees to refrain from becoming or remaining members of Local No. 21759, by threatening them with discharge and other reprisals therefor, by keeping under surveillance meetings and members of Local No. 21759, and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Thereafter, the respondent filed its answer, admitting the allega- tions of the complaint concerning the character of its business, but denying that it had engaged in the alleged unfair labor practices. The respondent also filed two motions for bills of particulars,' and moved that in the event such motions were denied, the complaint should be dismissed on the ground&.that it was insufficient, indefinite, and uncertain. Thereafter, the E. R. P. filed a motion for leave to intervene in the proceeding. Pursuant to notice, a hearing was duly held in Albany, New York, from April 3 to May 6, 1939, before Madison Hill, the Trial Examiner duly designated by the Board. The Board, the respondent, and the E. R. P. were represented by counsel; Local No. 21759 was represented by its representative; all participated in the hearing. Full opportunity I In separate motion papers, the respondent requested particulars as to the allegations of the original complaint, and as to proposed additional allegations set forth in the Board attorney's motion to amend the complaint. GEMMAL ANILTNE WORKS INC. 493 to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues was afforded all parties. - - I At the outset of the hearing, the Trial Examiner granted the motion' of the E. R. P. for leave to intervene. The Trial Examiner denied', both the respondent's motions for bills of particulars and advised counsel for the respondent that on request he would be granted' a reasonable time within which to meet any issue raised in the trial,'of the Board's case. On April 3, 1939, the respondent appealed to the Board the Trial Examiner's rulings denying the motions for bills of particulars. On April 4, 1939, the Board issued its order denying the appeals. Both. at the close of the Board's case and at the end of the hearing, counsel for the respondent and counsel for the E. R. P. moved to dismiss the complaint on the ground that the Board had failed to prove a prima facie case. Both motions were denied by the Trial Examiner. At the conclusion of the hearing, counsel, for the respondent also moved" for a verdict and for a judgment on the facts. On this motion, the Trial Examiner reserved decision, pending the issuance of his Intermediate Report.2 At the conclusion of the hearing, the Trial Examiner granted a motion of the Board's attorney to confirm the pleadings to the proof. During the course of the hear- ing, the Trial Examiner made numerous other rulings on' motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On October 11; 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon, all the, parties, in which he found that the respondent had interfered with the formation and administration of the E. R. P. and contributed support thereto, and recommended that the respondent cease and desist from such unfair labor practices and take certain affirmative, action in order to effectuate the policies of the Act: He further found that the respond- ent had not engaged in unfair labor` practices within' the meaning 'of Section 8 (3) of the Act, and had not urged, persuaded, or warned its Rensselaer employees to refrain from becoming or remaining members of Local No. 21759, threatened them with,discharge,or other reprisals therefor, or kept under surveillance the meetings or members of Local No. 21759, and recommended that the complaint be dismissed , in so far as it alleged such unfair labor practices by the respondent. Thereafter, the respondent, Local No. 21759, and, the E.,-R., 'P. filed exceptions to' the Intermediate Report. Pursuant to leave granted by the Board to all parties, the respondent filed a brief with, the Board on January 5, 1940. On February 20, 1940, pursuant to request therefor by the respondent and Local No. 21759,-and upon 7 The findings , conclusions , and recommendations contained in the Trial Examiner 's Intermediate Report, subsequently issued by him, constituted his ruling on this motion. 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notice thereof to all parties and their counsel, a hearing was held before the Board in Washington, D. C., for the purpose of oral argu- ment. Counsel for the respondent and for Local No. 21759 appeared and participated therein. The Board has considered the exceptions to the Intermediate Report and, save as they are consistent with the findings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT General Aniline Works, Inc., the respondent, is a Delaware corpora- tion engaged in the manufacture of coal-tar dyestuffs and inter- mediates. The respondent's main office is in New York City, and it maintains factories and warehouses at Grasselli, New Jersey, and at Rensselaer, New York. At the Rensselaer plant, which is the part of the respondent's operations here involved, the respondent employs approximately 500 employees. The principal raw materials purchased by the respondent are in- organic chemicals, such as sulfuric acid, muriatic acid, nitric acid, caustic soda, soda ash, and limestone; and organic products, such as benzene, toluene, naphthalene, and anthraquinone. Acid essential to the respondent's production is shipped to the Rensselaer plant from points outside the State of New York. In the 6-month period prior to February 1939, the respondent purchased from points outside the State of New York approximately 8,100,000 pounds of raw mate- rials for use at its Rensselaer plant, constituting 45 per cent of the respondent's total purchases for that plant. During the same period, the respondent shipped approximately 2,700,000 pounds of finished products, 56 per cent of the total output of the Rensselaer plant, from the Rensselaer plant to points outside the State of New York. II. THE ORGANIZATIONS INVOLVED Federal Labor Union, No. 21759, American Federation of Labor, is a labor organization, admitting to its membership all production and maintenance employees of the respondent, excluding foremen and subforemen. Employees' Representation Plan of the General Aniline Works, Inc. Employees at Rensselaer, New York, is an unaffiliated labor organi- zation, admitting to its membership all employees of the respondent at its Rensselaer plant, excluding supervisors and all those having the power to hire and discharge employees, but including subforemen. GENERAL ANILINE WORKS, INC. 495 III. THE UNFAIR LABOR PRACTICES A. Domination of and interference with the formation and administration of the E. R. P. and contribution of support to it A few weeks prior to April 7, 1937, the Textile Workers Organizing Committee of the Committee for Industrial Organization,' herein called the C. I. 0., began organizational activities among the respond- ent's employees in the Rensselaer plant. On that day, Horace J. LaBier, an employee, distributed C. I. 0. membership cards to his fellow employees at the Rensselaer County Bank as they were cashing their pay checks, and between 180 and 200 employees signed the cards. According to C. B. C. Fellows, the respondent's plant super- intendent, several employees told him on the following day, April 8, that they had signed cards on the previous day but "did not know what they had signed." On the afternoon of April 8 three employees ' came to Fellows' office and requested his permission to call a meeting of employees for the purpose of discussing organization. Fellows gave his consent, and the employees posted a notice calling the meeting for that afternoon, after working hours, in Building 91, the plant Welfare Building. An employee named Akens presided at the meeting and Fellows attended at his invitation. When asked by an employee to explain his attitude concerning organization, Fellows told the employees that the respond- ent would recognize any union selected by them "whether it was a C. I.O., A. F. of L., or an independent union." A number of employees addressed the meeting concerning the type of representation desired by them and, according to Fellows' testimony, "it sort of boiled down to the question of an inside or outside union." He further testified that there "showed up" at the meeting an employees' representation plan, which provided, for a "Works Council" consisting of an equal number of employee and management representatives, and that he could not recall whether he had ever seen that plan prior to the meeting.4 Fellows left the meeting before it ended, and the employees elected a committee of three of their number b to arrange for and supervise an election "to find out whether the ... employees preferred an inside union or an outside union." Following the close of the meeting, the election committee called at Fellows' office and asked him "how they could get additional copies of the pamphlet" that "showed up" at the meeting "so that the men could study it." The respondent then had a number of copies printed at Now Congress of Industrial Organizations 4 According to Fellows, the plan that "showed up" was "very similar" to an employee representation plan in the form of a folded printed pamphlet six pages in length, which was introduced into evidence at the hear- ing as Board Exhibit 12 5 Robinson MacCabe, Charles Hacker, and William Strobel 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its own expense and delivered them to the election committee on April .9. On April 10 or 12 Fellows gave the election committee permission to call another meeting of the employees for-the' afternoon of April 12. ' Typewritten notices, posted on the bulletin boards of the plant, announced that the meeting would be held at 3.30 p. m.' "for the purpose of discussing the proposed employees' representation plan." -Department heads and foremen were instructed by the notices to arrange the schedules of their departments so that as many of their employees as possible could be present. At the bottom of the notice the respondent's name was affixed, apparently by a rubber stamp, as a signature, and Fellows' initials appeared in the lower left-hand corner.' Fellows testified that neither he nor other officials of the respondent "had anything to do with putting up" the notices, and that they were posted by the election committee. He further testified that all he recalled about the meeting was that he had given permis- sion for it to be held. Literally, Fellows did not deny the prepara- tion or authorization of the notices by the respondent, but denied merely the actual "putting up" of the notices by the respondent. If, however, Fellows intended by his testimony to disclaim any re- Isponsibility on the part of the respondent, for the contents of the notices, we do not credit his testimony. It'.is obvious on its face that the notice announcing the meeting of April 12 was prepared by Fellows. The respondent offered no explanation at the hearing for the appearance of -Fellows' initials and the respondent's stamped name on the face of the notice. In addition, the instructions to fore- men contained therein could have' emanated from no one other than the respondent. We find that the notice was prepared by the re- spondent. The meeting was held as scheduled. It was presided over by Charles Hacker, the leader of the E. R. P. movement in the plant, who had been selected by -the election committee as its chairman. Approxi- e The regular work day ended at 4 00 p in. !' 7 The following is a reproduction of the form and contents of the notice NOTICE A GENERAL MEETING WILL BE HELD IN BUILDING #91 AT 3 30 P M ON MONDAY, APRIL 12TH, FOR THE PURPOSE OF DISCUSSING THE PROPOSED EMPLOYEES' REPRESENTATION PLAN. DEPARTMENT HEADS AND FOREMEN ON NEW YORK PAYROLL ARE NOT EX- PECTED TO ATTEND BUT SHOULD ARRANGE THEIR SCHEDULES SO THAT AS MANY OF THEIR MEN AS POSSIBLE CAN BE PRESENT CBCF FB 4/10/37 GENERAL. ANILINE WORKS, INC (Stamp) Meeting requested by a Committee representing Employees. (s) R MACCABE, (S) CHARLES HACKER, Committee. • GENERAL ANILINE' WORKS, INC. 497 mately 400 employees were present and no deduction was made in their pay,for their working time spent at the meeting. The election committee's report, setting- April 15, 1937, as the date and -Building 91 as the place for the election to determine the choice of an inside or outside union, was read to the assembled employees- and approved by them. Once more, a number of employees -addressed the meeting, including LaBier,, who spoke in favor of the C. I. O. Fellows and Dr. Harry W. Grimmel, the respondent's plant manager, who had been invited by LaBier to attend the meeting to express their views on unions, also spoke. Grimmel told the assembled, employees, in substance, that the respondent would- recognize and ^ bargain' with, any. union selected by the employees. He was then asked by some- one present why the Rensselaer employees had not received a ,general, wage increase similar to an increase which had been granted by-the respondent to the employees at Grasselli on April 1, 1937. `Grimmel answered that the respondent had been considering the granting of a wage increase- at Rensselaer but was withholding it for fear' of influencing the employees one way or, the other during, the union "agitation:" Hacker stated that if the respondent wanted to grant a wage increase there was no reason why the employees should refuse it and asked LaBier in the presence of the assembled employees; whether he had any objection to this. LaBier said that he was- not opposed to a wage increase. Fellows then addressed the employees and told them in substance that they were to select the organization that they desired and that 'the respondent would bargain with the union so selected He also described to the employees a so-called "du Pont" plan of employee representation. Thereafter. Fellows' and Grimmel left the meeting. On the following day, April 13, the respondent announced a general wage increase to take effect as of April 11, 1937. On the, same day, Zoe Fales, a newspaper reporter, visited the Rensselaer plant to "get a story" on the organizational activity. Fellow: told her in an interview that a "considerable number" of employees had signed C. I. O. membership cards; that they had told him that they "did not know what they had signed"; and that "the opposing movement was promoting the introduction at- the plant of an employees repre- sentation plan as was in effect at the Linden, New Jersey, plant 8 of the concern." According to Miss Fales, Fellows also described to her "at some length" the provisions of the plan, told her that "the employee- participation features of this plan would provide the employees of the plant with the representation which they sought through -a union," and "described the benefits of the plan also." Fellows denied at the hearing that he had praised the employees' representation plan to 8 The respondent's plant at Grassell;, New Jersey, is also referred to in the reeoid as the "Linden, New' Jersey, plant" and the "west works " 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miss Fales. Since, however, Miss Fales was a disinterested witness who testified under subpoena, we believe her testimony concerning this interview, and find that Fellows made the statements as testified to by her. Prior to the scheduled election, the respondent furnished to the election committee at its request a list of employees to be used in the conduct of the election. The ballot prepared by the election com- mittee offered the employees the choice of representation "By Council or Committee Elected by Employees" or "By Outside Union.'! On April 15 the election was held in Building 91. Of 499 employees eligible to vote, 394 voted for an inside and 72 for an outside union. After this election, the C. I. O. discontinued its efforts to organize the respondent's employees. Shortly after the meeting of April 12, the election committee requested of Fellows the respondent's aid in formulating a plan of organization ° At the committee's request, the respondent procured at least three plans for the employees' consideration and gave all the plans so procured, except one,10 to the committee. Fellows told the committee, concerning one of the plans that he submitted to them, that he believed it involved a "violation of the Wagner Act." Another of the plans submitted to the employees by the respondent, introduced in evidence as Board Exhibit 13, was subsequently adopted as the plan of organization for the E. R. P. On about April 17 or 18, the election committee informed Fellows that they "liked" Board Exhibit 13 and asked him for additional copies thereof. As it had had copies of a plan printed for the employees on April 9, so on this occasion, at the committee's request, the respondent had 100 copies of Board Exhibit 13 mimeographed at its own expense and gave them to the committee. On April 19 the respondent's employees met on the respondent's property and elected a rules committee "to formulate the basic structure of an inside union." Just prior to May 5 the rules com- mittee adopted Board Exhibit 13 as the plan of organization for the inside union and the respondent's employees ratified this action at another meeting. Board Exhibit 13, by which the E. R. P was established as a labor organization, provided for a "Works Council" consisting of employee representatives, to be elected by the employees of each of 7 divisions of the plant, to administer the affairs of the E. R. P. The plan further provided that only employees with 1 year's continuous 4 The election committee continued in existence after the election in order to organize the E It. P The record is not clear as to whether the incidents here described occurred before or after the election , but they did occur before the formal organization of the E R P 10 The plan which was not turned over to the committee was one printed by the American Rolling Mill Company Fellows testified that "these boys came into my office and they might have seen it, but, as I recall it, it was almost a duplicate of the other 11 GENERAL 1ANILINE WORKS, INC. 499 service with the respondent were eligible to serve as employee repree- sentatives and that an employee representative who "leaves the service of the company . . shall immediately and automatically cease to hold office." "Works Council Consultants" were provided for, to be appointed by the respondent to attend Works Council meetings at the request of the Works Council, "for the purpose of furnishing information and discussing matters of mutual employee- company interest." "Joint Investigation Committees" were also provided for, to consist of employee and management representatives, to handle "all matters of mutual employee-Company interest " Con- cerning grievances, the plan provided that if the Works Council and the "Works Manager" 11 could not reach an agreement, then, upon their mutual agreement to do so, the grievance could be submitted to a board of three arbitrators. The Works Council could amend any feature of the plan that dealt with the internal affairs of the E. R. P.; however, the Works Manager's consent was necessary in order to amend those portions of the plan dealing with "joint employer- employee relations"; if he objected to such an amendment proposed by the Works Council, the question of amendment could then, upon then- mutual agreement to do so, be submitted to a board of arbitrators. No dues or general membership meetings were provided for by the plan 12 On May 5 and 13 the employees elected a Works Council, consisting of seven employee representatives.13 Immediately following this election, the Works Council held its first meeting in the foremen's room in Building 91. The Works Council was of the opinion that certain provisions of the plan by which the E. R. P. was formed pro- vided for excessive management participation and "violated sections of the Wagner Act." Accordingly, on May 21, 1937, at the second Works Council meeting, the employee representatives adopted certain amendments to the plan to remedy this. ' By the amendments, "Works Council Consultants" and "Joint Investigating Committees" could function only pursuant to a two-thirds vote of the Works Council; the necessity that the "Works Manager" agree to any amendment of those portions of the plan dealing with "joint employer- employee relations" was removed; however, the grievance machinery provided in the original plan was left unchanged. The plan as revised also provided for an initiation fee of 25 cents The Works Council then requested Fellows to supply it with copies of the revised plan. Pursuant to this request, the respondent mimeographed a number of copies of the revised plan and gave them to the Works Council. ' 11 The term "works Manager" is not defined in Board Exhibit 13 It is obvious, however, from the provisions of the plan , that the title refers to a representative of the respondent 12 During the first year of the E R P 's existence , only two general membership meetings were held. 13 Nominees were selected by the ballot of May 5 The final election of candidates was held on May 13. 5500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD , Members of the Works Council had begun to solicit members for the E. R. P. immediately after the first Works Council meeting. Prior -,to this, no membership cards had been printed and there was no mem- bership roll. By May 25, 1937, 205 employees had signed member- ship cards.14 At least some of the employees were solicited for mem- bership and paid their initiation fees in the plant during working hours. Following its organization the Works Council met approximately twice monthly in a room in the respondent's main office building, but a few yards from Fellows' office. Prior to September 28, 1938, the E. R. P. paid no rent to the respondent for this use of the respondent's facilities. Beginning at that time, however, the E. R. P. paid the respondent rent of $1.00 per meeting, except for the meetings which were attended by Fellows." Between May 13 and August 26, 1937, some of the Works Council meetings were held during the working hours of the Council members, and no deduction was made from their wages for the time thus spent. Minutes of the Works Council meet- ings and notices of E. R. P. meetings were typed by Frank Bailey, the secretary to Philip Kronowitt, the respondent's plant engineer. Bailey was not paid for this service. Prior to January 22, 1938, Bailey did this work in the plant. Thereafter, however, he did this typing outside the plant. The E. R. P. used plant bulletin boards to post its notices and minutes of Works Council meetings and prior to June 1938, did not pay the respondent for such use Beginning at that time the E R. P. paid the respondent $5 annually therefor and thereafter Works Council minutes were no longer posted on the respondent's bulletin boards. Notices of E. R P. meetings, however, continued to be posted on them Between May 2 and May 5, 1938, the second E. R P. election of representatives was held. This election also was held in the plant. On June 2, 1938, the Works Council voted to assess dues of 50 cents per year for membership in the E. R. P. On the same day, at a gen- eral membership meeting, a committee was appointed to "investigate the possibility and advantages of incorporating." Lee J. Erwine, a member of the committee, asked Fellows for his advice as to how to incorporate the E. R. P. Fellows suggested that the employees should consult an attorney. Erwine testified that, "under instruc- tions of Mr..Fellows," he went to see one McDermott, the respondent's local counsel and Fellows' personal attorney. Fellows at first testi- fied that he was unable to recall having sent Erwine to McDermott but .later admitted that he "may have mentioned" McDermott to Erwine and that Erwine "probably followed up on that and went to see him." McDermott gave Erwine little or no advice. Subse- quently, Erwine had an incorporation form prepared and submitted if By October 21, 1938, the E R P claimed a membership of 342 employees 15 Since September 28, 1938, only 5 meetings were held on the respondent 's property which were not at tended by Fellows GENERAL ANILINE WORKS, INC. 501 it to Fellows, who made some pencilled corrections on it. The E. R. P. committee later recommended to the membership that the E. R. P. be incorporated but the suggestion was never adopted. Although the Works Council, on July 27, 1937, expressed the "hope" that they would enter into a written agreement with the respondent "early in August" no such agreement was entered into until October 25, 1938, 12 days after the filing of charges herein by Local No. 21759. At the same time, the respondent and the E. R. P. adopted a "40 Hour Week Plan." Under the contract, the respond- ent recognized the Works Council as the "Sole Bargaining Agency for the Organization," and both parties agreed that in the event of a disagreement between them concerning any grievance, the matter "shall" be submitted to a board of 3 arbitrators.16 In the contract, the respondent also agreed to "inake pay-roll deductions for Organiza- tion Dues." The contract and "40 Hour Week Plan," used as bases for the negotiations between the respondent and the E. R. P., were the same as those then in existence at the respondent's Grasselli, New Jersey, plant. The record does not indicate to what extent, if any, the Grasselli plan and contract were altered at Rensselaer. In the course of the negotiations leading up to the signing of the contract with the E. R. P., the respondent at no time questioned the E. R. P.'s representation of a majority of its employees. Before the contract was signed, however, it was ratified by the E. R. P. membership, which at that time was claimed by the E. R. P. to consist of 342 em- ployees. Conclusions From the foregoing it is clear that the respondent encouraged the formation of an inside labor organization in its Rensselaer plant, aided its employees in forming such an organization, and thereafter assisted it. The respondent, coincident with organizational activities among its employees by the C. 1. O. and discussion by the employees concerning self-organization, supplied its employees on April 9, 1937, with printed copies of an employees' representation plan. By the form of its notices announcing the employees' meeting of April 12, the respondent clearly indicated to its employees its preference for an inside union and lent its support to the discussion of an employees' representation plan form of organization. The respondent's having, just prior to the posting of that notice, supplied its employees with printed copies of such a plan, lent greater emphasis to the partiality expressed in the notice. That the respondent was partial to this form of organization is also indicated by Fellows' interview with Miss Fales as related by her. Formation of the inside organization, hav- ing been thus encouraged by the respondent, was further facilitated m The grievance machinery set forth in the contract superseded that set forth in the revised plan. 323429-42-vol. 26-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the respondent 's permitting the meeting of April 12 to, be held on its premises and during the employees ' working hours . After the employees , thus directed by the respondent , decided to , form, an inside union , the respondent supplied them with at least three forms of employee representation plans, ,one of which was thereafter adopted by the, employees. This plan provided for the respondent's, partici- pation in the affairs of the organization to an extent sufficient to render the organization incapable of serving as the true representative of the employees. When that plan was amended so as to eliminate some, but not all, of the respondent's participation therein, the respondent supplied the E. R. P. with copies of the amended plan. The respond-, ent also assisted the E. R. P. by paying the members of the Works Council for their working time spent in E. R . P. meetings and by permitting the E. R. P. to hold general membership and Works Council meetings on its premises , for a long period of time without charge therefor. The E. R. P. introduced evidence in an attempt to show that during the first 2 years of its existence it obtained certain conces- sions from the respondent and that therefore it was an effective collective bargaining representative. From the evidence of such concessions, however, we do not conclude that such was the case.- Furthermore, as we said in Matter of Magnolia Petroleum - Company and. Oil Workers International Union, Locals Nos . 280 and 278: 17 . . . the fact that the employer grants concessions to the or-' ganization does not necessarily indicate the organization's freedom from . . . domination . . . In fact, even better con- ditions than unions strive for are sometimes given to dominated organizations in order to maintain the domination. We find that by foregoing acts the respondent dominated and interfered with the formation and administration of the E. R. P. and contributed financial and other support thereto and, that the respond- ent thereby interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. We further find that the contract and "40 Hour Week Plan" entered into by the respondent and the E. R. P. on October 25, 1938, are invalid because they were made with a labor organization, the formation - and administration of which had been dominated , inter-: fered with, and supported by the respondent. B., The alleged discriminatory discharge of Lee J. Erwine On June 20 , 1935, Lee J. Erwine was hired by the respondent as elevator maintenance and repair man in its construction and repair ("C. & R.") department, to replace an employee named Frank Rossi who had been seriously injured and was not expected to recover. 17 19 N . L R. B 184 , GENERAL ANILINE WORKS, INC. 503 However,, Rossi ,returned to work on December 20, 1935., Still not completely recovered, he was assigned to work on portable elevators and to general machine work, and Erwine continued in Rossi's,former position. Following its organization, Erwine became an active member of the E. R. P. and in August 1938 he sought unsuccessfully to have him- self elected, to the Works Council. He thereupon resigned from the E. R. P. for the assigned reason that the E. R. P. failed to become incorporated. On August 18, 1938, 4 days prior to his resignation from the E. R. P., Erwine began organizational activities at the Rensselaer plant. on behalf of Local No. 21759 and assumed. full charge thereof. He had told Fellows of his intention to do this as early as the previous June or July. "'In 1938 there was a considerable curtailment of new construction work at the plant and on September 9, 1938, of the 70 employees' in the "C. & R." department, the respondent laid off eight, including Erwine. Erwine received one week's extra pay, which the respondent customarily give's to' employees who are laid off and not discharged for cause.. After Erwine's lay-off, Rossi resumed his former position which.Erwine had occupied. Rossi was fully qualified to do Erwine's work. . The respondent's lay-off policy is normally based upon departmental seniority but other factors, such as employees' ability and economic circumstances, are also taken into consideration. At the time of Erwine's lay-off, 'the respondent retained eight employees in'the "C. & R." department with less seniority than Erwine.'$' One of them, Joseph Stautner, was considered by the respondent to be the best machinist in its employ; another, Frank Ney, was a specialist in mill machinery who, had installed some-expensive new mill machinery in one of the buildings of-the plant where he was the building mechanic; a third, W.-Bertrand, a pip efitter, was in bad financial straits and had a large family, one of whom was afflicted with infantile paralysis. The five remaining employees who were junior to Erwine in point of service were in a lower wage group than he and performed different services from,his. , The respondent claims, that for these reasons it laid off Erwine rather than any of these eight with less seniority than he. The Board's attorney sought to show at the hearing that Erwine was an elevator mechanic of such marked ability that `the respondent would not have laid him off purely for'business reasons. However; Erwine's testimony as-to his capability and experience was shown by records of his 'past employment and other evidence to be grossly exaggerated and unreliable. I The Trial Examiner found that Erwine was not discharged by the respondent because of his membership and activities in Local No. 18 Some of these eight also had less seniority than others who were laid off with Erwine. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 21759, or because of his withdrawal from the E . R. P., but that he was laid off because of a curtailment of work in the respondent 's construc- tion and repair department . We agree with the Trial Examiner's conclusions and find that the respondent did not discriminatorily dis- charge Erwine. ,C. The alleged interference , restraint, and coercion The complaint alleged that the respondent , by urging, persuading, and warning its Rensselaer employees to refrain from becoming or remaining members of Local No. 21759 , by threatening them with discharge and other reprisals therefor, and by keeping under surveil- lance meetings and members of Local No . 21759, interfered with restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. Harry Leffler, an employee and member of Local No. 21759, testified that Adolph Petsch, department manager of the respondent's ware- house, remonstrated with him on one occasion in September 1938 for having joined Local No. 21759. Petsch, at the hearing, could not recall having done so and testified that he was only "joking" with Leffler. His testimony in this respect was corroborated by that of another employee. Edward Cross, an employee and member of Local No. 21759, testified that on or about October 1 , 1938, Charles Jacobs, the respondent's timekeeper and paymaster , warned him that the respond- ent would deprive him of certain benefits if the employees "brought an outside union in the plant ." Jacobs denied at the hearing that he had made any such statement. We find this evidence insufficient to sustain the allegation of the complaint that the respondent urged, persuaded , and warned its employees to refrain from becoming or remaining members of Local No. 21759, or that it threatened its employees with discharge and other reprisals therefor . No evidence was introduced to support the allega- tion that the respondent kept union meetings or members under surveillance. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A, 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. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom. We GENERAL ANILINE WORKS, INC. 505 shall also order the respondent to take certain affirmative action which we find necessary to effectuate the policies of the Act. We have found that the respondent dominated and interfered with the formation and administration of the E. R. P. and contributed financial and other support thereto. We shall order the respondent to withdraw all recognition from the E. R. P. as the representative of any 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 to disestablish the E. R. P. as such representative. We shall also order the respondent to cease and desist from giving effect to its contract with the E. R. P. and to the "40 Hour Week Plan", as well as to any extensions, renew- als, modifications, or supplements thereof, and to any superseding contract or agreement. Nothing in this Decision and Order should be taken to require the respondent to vary those wage, hour, seniority, and other substantive features of its relations with the employees, themselves, which the respondent has established in performance of the invalid contract or "40 Hour Week Plan" as entered into on October 25, 1938, or as extended, renewed, modified, supplemented, or superseded. The respondent, in the contract of October 25, 1938, agreed to deduct the E. R. P. members' dues from their wages. Any such deductions which have been made by the respondent are the result of the same employer encouragement, domination, interference, and support which gave rise to the E. R. P. We shall, therefore, in order to restore the status quo, order the respondent to refund to each employee, if any, from whose wages it deducted such dues the amount of such deductions. Having found that the respondent did not discriminatorily discharge Lee J. Erwine, and, that it did not by urging, persuading, or warning its employees to refrain from becoming or remaining members of Local No. 21759, threatening them with discharge and other reprisals therefor, or keeping under surveillance the meetings or members of Local No. 21759, interfere with, restrain, and coerce its employees in the exercise of the rights guaranteed in Section 7 of the Act, we shall dismiss those allegations of the complaint. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Federal Labor Union, No. 21759, American Federation of Labor, and Employees' Representation Plan of the General Aniline Works, Inc. Employees at Rensselaer, New York, are labor organizations, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of Employees' Representation Plan of the General Aniline 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Works, Inc. Employees at Rensselaer, New York, and by contributing financial,and other support thereto, 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 its employees 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 within the meaning of Section 8 (3) of the Act. 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, General Aniline Works, Inc., Rensselaer, New York, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the administration of Em- ployees' Representation Plan of the General Aniline Works, Inc. Employees at Rensselaer, New York, or with the formation or adminis- tration of any other labor organization of its employees, and from contributing financial or other support to Employees' Representation Plan of the General Aniline Works, Inc. Employees at Rensselaer, New York, or to any other labor organization of its employees; '- (b) Recognizing Employees' Representation Plan of the General Aniline Works, Inc. Employees at Rensselaer, New York, as the repre- sentative of any 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; ` (c) Giving effect to its contract and "40 Hour Week Plan" of October 25, 1938, with Employees' Representation Plan *of the General Aniline Works, Inc. Employees at Rensselaer, New' York, 'o'r to any extensions, renewals, modifications, or supplements thereof, or to any superseding contract or agreement with-said organization; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization,, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, acid to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Lalior Relations Act. GENERAL ANILINE WORKS, INC. 507 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Employees ' Representation Plan of the General Aniline Works , Inc. Employees at Rensselaer, New York, as the representative of any 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 em- ployment, and completely disestablish said Employees '_ Representa- tion Plan of the General Aniline Works , Inc. Employees at Rens- selaer, New York, as such representative; (b) Reimburse each of its employees, if any, whose dues in Employ- ees' Representation Plan of the General Aniline Works, Inc. Em- ployees at Rensselaer, New York, were deducted from their wages, for the amounts thus deducted; (c) Post immediately in conspicuous places at its' plant at Rens- selaer, New York, and maintain for a pe_ iod of at least sixty (60) consecutive days from the date of posting , notices to its employees stating: (1)"that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this Order; and (2) that the respondent will take the affirma- tive action set forth in paragraphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Second Region in writing within ten ( 10) days from the date of this Order what steps the respond- ent has taken to comply herew th. 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 (3) of the Act. ,AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges , that the respondent , by 'urging, persuading, and warning its employees at its Rensselaer , New York, plant, to refrain from becoming or remaining members of Local, No. 21759, by, threatening them with discharge and other reprisals there- for, or by keeping under surveillance the meetings and members of Local No. 21759, engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. MR. WILLIAM M. LEISERSON took no , part in ,the, consideration of the above Decision and Order. ,