Dowty Equipment Corp.

National Labor Relations Board - Board Decisions

Oct 31, 1942

45 N.L.R.B. 214 (N.L.R.B. 1942)

In the Matter of DO-Vi'TY EQUIPMENT CORPORATION and LOCAL 1227,
UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. C-2193.Decided October 31, 19412
Jurisdiction : airplane equipment and accessories manufacturing industry.
Unfair Labor'Practices
Interference, Restraint, and Coercion: anti-union statements
Company-Dominated Unions: first organization : organized and supported by
officials of management and supervisory employees; meetings held on company
time and property; financial assistance by use of vending machines in the
plant-successor organization held merely a continuation of first dominated
union and employer's domination of first organization 'carried over to its
successor : organized while predecessor was still in existence and without
any steps having been taken by the employer to mark a separation between
the two organizations or to publicly deprive successor of advantage of.appar=
ently continuing favor of employer ; election of officers on company time and
property, three officers of predecessor becoming officers of successor; subse-
quent posting of notice of dissolution of predecessor by employer ineffective as
to successor organization; employer indicated its approval of successor and
its hostility to competing affiliated union by anti-union statements and by
granting successor de facto recognition and by making material concessions
to it.
Remedial Orders : employer ordered to withdraw recognition from successor
organization and to disestablish it as representative of any employees for
collective bargaining.
Practice and Procedure : agreement purporting to settle unfair labor practice
involving domination of first organization given no effect in view of quick
formation of successor organization and the support and assistance rendered
it by employer.
Mr. James C. Paradise, for the Board.
Lauterstein, Winn, Spiller and Bergerman, by Mr. Joseph F. Finne-
gan, of New York City, for the respondent. -
Mr. Sidney Gilbert, of Long Island City, N. Y., and Mr. Frank
Scheiner, of New York City, for the Union.
Mr. Edward F. Platow, of New York City, for the Aircraft.
Mr. Gilbert V. Rosenberg, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge filed on April 10, 1942, by Local 1227,
United Electrical, Radio & Machine Workers of America, C. I. 0.,
45 N. L. R. B., No. 39.
214
DOWTY EQUIPMENT CORPORATION 215,
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Second Region
(New York City), issued its complaint dated April 10, 1942, against
Do%vty Equipment Corporation, Long Island City, New York, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and of notice of hearing thereon, were duly
served upon the respondent and the Union, and upon Dowty Em-
ployees Association,, herein called the Association, and Aircraft
Equipment Union, herein called the Aircraft, both being labor or-
ganizations alleged in the complaint to be dominated by the
respondent.
With respect to the unfair labor practices, the complaint alleged, in
substance: (1) that the respondent (a) in or about August 1941,
initiated, formed, and sponsored the Association, which in December
1941 changed its name to the Aircraft, and dominated, interfered with
and contributed support to said organization; or (b) initated, formed,
and sponsored the Association in or about August 1941, and the Air-
craft in or about December 1941, and since said respective dates has
dominated, interfered with, and contributed support to said organi-
zations; and (2) that, by the foregoing acts, by vilifying the Union,
by interrogating its employees as to their union affiliations,, by urging,
persuading, threatening, and warning its employees to refrain from
assisting, or becoming,or remaining members of the Union and to
assist, and become and remain members of the Association and the
Aircraft, the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act. On April 20, 1942, the respondent filed its answer admitting
the allegations of the complaint with respect to its business, but
denying the alleged unfair labor practices.
Pursuant to notice, a hearing was held ,at New York City from
April 20 through 27, 1942, before Josef L. Hektoen, the Trial Ex-
aminer duly designated by the Chief Trial Examiner . The Board,
the respondent, the Union, and the Aircraft were represented at and
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of the Board's
case and at the close of the hearing, the respondent moved to dismiss
the complaint. The Trial Examiner denied the first of these motions
' The Association as served under the name of "Dowty Equipment Association." The
service was made at the address of the respondent and no question of its sufficiency was
raised by the parties
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and reserved decision on the second, which he later denied in his
Intermediate Report. At the conclusion of the Board's case and at
the close of the hearing, the Trial Examiner granted -%vithout-objec-
tion motions by counsel for the Board to conform the complaint to
the proof as to formal matters. On the last day of the hearing, the
Aircraft orally moved to intervene in the proceedings as of April
20, 1942. This motion was granted without objection. During the
course of the hearing, the Trial Examiner made rulings on other
motions and on the -admissibility of evidence. The Board has re-
viewed all the rulings of the Trial Examiner and finds that no prejudi-
cial errors were committed. The rulings are hereby affirmed.
On May 19, 1942, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon all parties. He found
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent cease and desist from its unfair labor
practices and that it disestablish, and withdraw all recognition from,
i he Aircraft. On June 27, 1942, the respondent and the Aircraft
filed exceptions to the Intermediate Report and on July 1, 1942, the
respondent filed a brief in support of its exceptions.
Pursuant to notice and at the request of the respondent and the
Aircraft, a hearing was held before the Board at Washington, D. C.,
on September 8, 1942, for the purpose of oral argument. The re-
spondent, the Union, and the Aircraft were represented by counsel
and participated in the argument.
The Board has considered the exceptions to the Intermediate Re-
port and the brief filed and, insofar as the exceptions are inconsistent
with the findings, conclusions, and order set forth below, finds them
to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Dowty Equipment Corporation, a Delaware corporation, is en-
gaged at a plant at Long Island City, New York, in the manufacture
of airplane landing gears and hydraulic pumps, -equipment, and
accessories . During the 6-month period preceding April 15, 1942, the
respondent purchased materials, consisting-principally of steel, alumi-
num, brass, copper, and rubber, valued at approximately $250,000, of
which approximately 50 percent were received from sources outside
the State of New York. During the same period, the respondent
sold finished products valued at approximately $500,000, all of -which
DOWTY EQUIPMENT CORPORATION 217
were shipped to destinations outside the State of New York. 'The
respondent admits that it is engaged in commerce, within the meaning
of'tlie Act.
II. THE ORGANIZATIONS INVOLVED
Local' 1227; United Electricd1, Radio & Machine Workers of Amer'
ica, is a labor organization affiliated, with the Congress of Industrial
Organizations. It admit's to membership employees of the, re-
spondent.
Dowty Employees Association was an unaffiliated labor organiza-
tion, admitting to membership employees of the respondent.
Aircraft Equipment Union is an unaffiliated labor organization
admitting to membership employees of the respondent.
III. THE' UNFAIR LABOR PRACTICES
Interference, restraint, and coercion; domination and support of, and
interference with, the Association and the Aircraft
1. The Association
There was no union activity at the respondent's plant until July
or August 1941, when union members employed at a neighboring plant
began to organize the respondent's employees and to solicit their mem-
bership in the Union. At about the same time there appeared at the
respondent's plant a system of departmental representation for pre-
senting employee grievances to the respondent.2'
About the middle of August 1941, Steve Polanski, then a leadman in
the pump department,8 spoke to Raymond Schneck, the respondent's
comptroller who is. in charge of its office force of 15 or 20 employees,
concerning the formation at the"plant of an organization for "some
sort of social activity" and requested Schneck to interest the office em-
ployees in such an organization. Schneck agreed to assist Polanski
and also stated that he would endeavor to secure permission from the
respondent's president to solicit employees to join this new organiza-
tion. Although Schneck was unable to recall at the hearing whether
2 The record is not explicit as to the origin or operation of this system
"Polanski, as a leadman, distributed work to the other employees working in his group
and earned 10 cents an hour more than those working with him. In the latter part of
November or the first part of December 1941, Polanski was made an assistant foreman
over some 30 employees. Production Manager Longhurst testified that Polanski was one
of the supervisory employees who was told by him in the late fall of 1941 not to discuss
unions with other employees We find, as did the Trial Examiner, that, both because of
the positions held by Polanski and because of his participation with the respondent's
officials in organizing and directing the activities of the Association, as discussed below,
he was in a strategic position to translate to employees the labor views of management,
with which he is essentially identified. The respondent is therefore respopsible for any
conduct on his part interfering with or restraining the unon activities of non-supervisory
employees.
218 -DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had obtained such permission, he admitted that about 2 weeks after
the above conversation he met with the office force to consider the
proposed organization and that John Stanford, in charge of personnel
under Schneck,4 was selected to represent these employees at organi-
zational meetings of the new organization. Shortly after Foreman
Kenney had been first employed by the respondent on September 4,
1941, he told employee Straway that the respondent's plant would be
"a pretty nice place to work in if the running of the [proposed] or-
ganization . . . had nothing to do with any outside union ..."
About the middle of September 1941, an organization meeting of
what later became the Association was held in the shipping depart-
Inent of the respondent's plant at 6: 30 p. in. Comptroller Schneck
presided as temporary chairman. Foremen Kenney 5 and Miller,
Assistant Foreman Conklin, and Polanski addressed the meeting.
Kenney urged that the Union be kept out of the plant because "before
any union gets in the company is all right with the men, and once a
union- gets in then they have to lose a lot of time and a lot of their
benefits are taken away from them." He also stated that the C. I. O.
had been responsible for a strike at the plant of Air Associates, Inc.,
where he had worked before being employed by the respondent.
Conklin,° who had also worked at the plant mentioned by Kenney,
agreed with the latter's anti-union strictures, adding that both of them
had worked in many plants and knew from experience that it was
best "to string along with the company and not have anything to do
with an outside organization." Polanski endorsed these expressions.'
Foreman Miller testified that in his comments at the meeting he asked
"... 'if there was anybody within our confines that could show us or
prove us or sell us the CIO idea to come to the front and tell us."
Those present instructed Schneck to prepare a draft of a constitution
for the organization.
At a second meeting of this new group held about a week later at
the same place in the plant, Schneck submitted a proposed constitution
which, after some revision, was adopted at a third meeting held late
4 Stanford received and filed applications for employment and conducted preliminary
interviews with applicants . Production Manager Longhurst testified that Stanford "has
been called . . . personnel manager. " There was introduced in evidence a letter written
on the respondent ' s letterhead stationery , dictated by Stanford to Miss Frances Gilbert,
the confidential secretary to the respondent 's officials , and signed as follow;s:
Dowty Equipment Corporation
s/ John Al Stanford
J. M. Stanford
Personnel
Under all the circumstances , we find , as did the trial Examiner , that Stanford is essen-
tially identified with management and that the respondent is accountable for his activities
herein described.
Spelled both "Kenney" and "Kenny" in the documentary proof and in the record.
° Conklin, like Kenney, etas hired by the respondent on September 4, 1941.
These findings are based upon the undenied and credible testimony of Straway, a wit-
ness for the Board.
DOWTY- E,QUIPMENT_: CORPORATION 219
in September. The stated purpose of the Association,8 according to
the constitution, was to promote the welfare of the respondent's em-
ployees, to improve the working conditions of its members, and "to
promote the spirit of friendship and cooperation among its members
and between the employees and Management." The constitution fur-
ther provided that any employee of the respondent with 60 days'
standing was eligible for membership; dues were fixed at 50 cents per
month with a $1 initiation fee; and a grievance committee consisting
,of a representative from each of the respondent's six departments was
created. At the same meeting, the following officers were elected with-
out opposition : Schneck, president; Polanski, vice president; Stan-
ford, secretary-treasurer; and Miller, foreman of the shipping and
receiving department, recording secretary.
Shortly thereafter, at a meeting in the plant, the Association named
employees Holt, Straway, Kilkenny, Nichter, Maloney, and Assistant
Foreman Conklin as shop stewards who, together with the officers,
constituted the executive board of the Association. The membership
roll of the Association shows that, in addition to those named above,
some six or seven supervisors and executives of the respondent became
members.
Immediately upon its organization in September 1941, the Associa-
tion, through a committee of which Polanski was a member, requested
of Production Manager Longhurst certain wage increases for employ-
ees of the pump department. Longhurst asked the members of the
committee whether they were "truly representative of the men that
they proposed to 'represent" and accepted their assurances that they
were. Shortly thereafter, Longhurst and a smaller committee repre-
senting the Association agreed upon "a satisfactory equalization of
rates." Later, during the fall of 1941, the Association, with Long-
hurst's approval, installed soft-drink vending machines in the plant
and received the revenue from them.
Notwithstanding the formation of the Association, the Union con-
tinued its organizational efforts at the respondent's plant. In Novem-
ber 1941, the Union distributed handbills outside the plant urging
employees to sign membership cards and stating, among other things,
that Foreman Miller had "worked to the utmost to sell you the phoney
benefits of the Company Union." Shortly thereafter, employee Boy-
han and Foreman Miller had a conversation about unions and, accord-
ing to Boyhan, Miller stated that, since the working conditions in the
plant were good, the Union was of no advantage to the employees, and
that if the Union "came in there would be a change, our overtime
s Its full name, accoiding to the constitution , was "Employees Association of the Dowty
Equipment Corporation of New York " This became "Dowty Employees Association" in.
usage , and the Association is so referred to in the pleadings and record in this proceeding.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would:end.and,that our. privileges would: cease ..." Miller admitted
having, a, conversation with Boyhan in' the' plant as to' whether the
Union. could do. more for. the employees-, than, the' Association; but
denied, disparaging, the Union. Boyhan's-version of this conversation
is consistent with the pattern of event's disclosed, by the record' and'
particularly, wwith, Miller's pro--Association activities, We-credit Bby
han's testimony. At an Association meeting' held' during- November
1941, Foreman, Kenney. again expressed his disapproval of the Union
and asked, why, the-employees, should:"go along'and'paydues to' some
Jew gangsters when they' got more' out' of, it, by stringing along with
the, boss ..."
On November. 12, 1941, the Union filed' charges 9 with, the' Board's
Regional Director for the Second"Region alleging thatthe'respond'ent
had, violated. the Act by creating, and: d'o'minating the Association, by
discriminatorily discharging employee Zachas, and by other' acts of
interference, restraint, and coercion. After' several conferences with
the Regional Director,,on December 12, 1941, the Union; they respond-
ent, and' the, Association reached, an. agreement` in' settlement of the
charge. The agreement' provided, that the respondent pay' Zachas' a'
sum of money, disestablish the Association, and post notices in its
plant. On December 19; the' agreement' had- been executed' by. all
parties- and- the payment to Zachas' made. On December 24; the
Board's-Regional, Office sent the respondent notices, which were'posted
in: the respondent's plant between. December 27 and 31, 1941, and
remained posted for at least 30 days. On December 27, copies of such
notices. were also mailed to all employees of the respondent. The
notices read as follows :
At the suggestion of the National Labor Relations Board, and by
agreement with the parties whose signatures appear below, the
Dowty Equipment Corporation hereby makes the following state-
ments and gives notice that :
(1) It will not recognize the Dowty Employees Association, or
its successors or assignees, as representative of its employees :
(2) It will completely disestablish said Dowty Employees As-
sociation :
(3) It will withdraw all support, financial or otherwise, from
said Dowty Employees Association, and will give no support,
financial or otherwise, to any successor or assignee of the Dowty
Employees Association;
(4) It will cease and desist from dominating or interfering
with the formation or administration of any labor organization
of its employees:
9 Docketed as Case No II-C-4191.
,DOWNY -EQUIPMENT CORPORATION 221
(5) It will recognize the right of its employees to self-
organization, to form, join, or assist labor organizations, to-bar-
gain collectively through representatives of, their own choosing,
and 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 Labor Relations Act, and states-that
it and its officers and agents :
(a) Will not in any manner interfere with, restrain or coerce
its employees in the exercise of the above-rights.
(b) Will not discourage membership in Local 1227 of the
United Electrical, Radio & Machine Workers of America,-C. 1. 1 0.,
,or any other labor. organization :by discharging or threatening
to discharge any. of its employees for joining or assisting -the said
union or any other labor organization.
(c) Will not -in any mariner discriminate against any of its
employees-in regard-to hire or tenure of employment or any term
or= condition. of employment for joining or assisting the said union
or any other labor organization.
(s) THOMAS HANLEY,
Treasurer, Dowty Equipment Corp.
(S) STEPHEN POLANSKI,
Dowty Employees Association
(S) SIDNEY GILBERT,
Local 1227, United Electrical,
Radio cC Machine 'Workers of America, CIO.
2. The Aircraft
Late in November 1941, upon returning from a meeting at the
Regional Office of the Board concerning settlement of the Union's
charge, Polanski announced at the plant that-the Association would
be disestablished and that its name and officers must be changed, but
that ".practically . . . the same principles" as those of the Association
could be used in a new organization.
On, about December 13, 1941; , the day after the , disestablishment
of the Association had been agreed upon, Stanford conducted a meet-
ing of Association members iit the plant at dinner time. He told the
members'that the, Association ,would-be dissolved, informed them that
he had on hand funds belonging to it, and received a unanimous ,vote
that the,funds•be used-for a,Christmas party, which as found below
was held on the evening of December 22, 1941.
A few days before December 22, word was passed about in the plant
that a meeting would be held that- day at the neighboring Stack's
Bar and Grill "to form a new organization, for "an 'organization of
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our own." On about December 22, Foreman Miller told employee
Boyhan, according to the latter's testimony, that there was' to be a
meeting to form a new organization to replace the Association, that
it would be a good thing to keep the Union out, and that Boyhan
should attend.10 On December 22, William S. Grady, the respond-
ent's timekeeper 11 who acted as temporary secretary of the group
which later became known as the Aircraft, posted on the bulletin
board in the plant formerly used by the Association a notice an-
nouncing the meeting and stating that free refreshments would be
served.
On December 22, 1941, at 6:30 p. m., the scheduled meeting was
held at Stack's in a back room which was separated from the bar by
an archway. At the rear of the bar, about 12 feet from the meeting
room, were Foremen Kenney, Conklin, and Miller, and Assistant Fore-
man Polanski. About 40'employees attended the meeting, the chair-
man of which was Nichter, a member of the executive board of the
Association. He opened the meeting by stating that Polanski and other
employees had been told at the Regional Office of the Board that the
Association must be disestablished, but that he saw no reason why the
employees should not form a new organization. Nichter also explained
that the name and the officers of this new organization must be different
from those of the Association, but that the constitution of the latter
could be used. Nichter urged that officers for a new organization be
elected without delay and then invited Polanski to address the meet-
ing. The latter came into the meeting from the bar and stated that it
was necessary merely to choose a new name in order to set up a new
organization and that they could continue to use the constitution of the
Association "by changing a few'things in it." Nominations for officers
of the new organization were thereupon made, and a ways and means
committee consisting of Grady and employee Galard was appointed to
conduct an election. Those present enjoyed free refreshments. When
Stanford, who signed the' checks of the Association, was asked at the
hearing by counsel for the Board whether the Association paid for the
refreshments at the meeting of December 22, 1941, he testified that he
could not remember doing so, but added, "I wouldn't say I didn't." 1a
10 Miller , did not specifically deny the statements attributed to him by Boyhan, but
testified generally that, except for one occasion in November 1941, mentioned above, he
had no conversations with Boyhan concerning the Union or the Association . We credit
Boyhan's testimony , as did the Trial Examiner
"The first contact of some employees with the respondent was through Grady, who,
like Stanford , conducted preliminary interviews with applicants for employment. While
Grady does not hire applicants interviewed by him, he in effect determines whether they
will be considered further for employment. We find, as did the Trial Examiner, that
Grady is sufficiently identified with management to hold the respondent accountable for
his acts
12 Stanford, the Association 's secretary -treasurer , testified that, after the disestablish-
DOWTY EQUIPMENT CORPORATION 223
On the basis of the entire record, we are convinced, and we find, as did
the Trial Examiner, that the Association defrayed the expenses of the
meeting.
At 9: 30 on the same night, the Association held its Christmas party
at a hall in Long Island City rented for that purpose 13 Numerous
officials of the respondent, including Production Manager Longhurst,
were present, together with a large number of employees. A collec-
tion was taken at the door by Grady from those who had not paid dues
to the Association. The Association funds on hand were insufficient
to defray the cost of the party and a deficit of about $20 was incurred
which Stanford paid off 2 months later from the profits earned in the
interim through the vending machines installed in the respondent's
plant by the Association.14
On December 23, 1941, Timekeeper Grady and Night Timekeeper
Walsh conducted an election for officers of the Aircraft" among the
employees of the respondent during the day and night shifts. The list
of nominations was posted on the bulletin board in the plant. During
working hours, Grady and Walsh passed out ballots to the employees,
who marked the ballots and deposited them in a ballot box obtained by
Grady from Foreman Miller and placed under the time clock. The
vote resulted in a tie for one or more offices. On December 24, a run-off
election was conducted by the same persons in the same way. Among
the officers thus elected by the Aircraft were Grady, as secretary, and
Kilkenny, a member of the executive board of the Association, as
sergeant-at-arms.
At a meeting on about January 6, 1942, the Aircraft elected shop
stewards, two of whom were Nichter, a member of the Association's
executive committee, and Applegate, a member of its grievance com-
mittee. The Aircraft's steward system was similar to that of the As-
sociation; a steward being selected to represent each of the respondent's
ment of the Association and prior to hearing herein, he destroyed all financial records,
including canceled checks, of the Association
19 Stanford , who was in charge of the party , first testified that it was held on December
22 After a recess and a conference with Foreman Miller , he resumed the stand and
changed his testimony , placing the date of the party as December 19. From all the evi-
dence, including the written statement of Miller made on January 28, 1942, to a Field
Examiner of the Board , in which he stated that he spent some time in Stack's on Decem-
ber 22, and thereafter went on to the Christmas party , we find , as did the Trial Examiner,
that the party was in fact held on December 22, 1941.
"The vending machines « cie still in the plant at the time of the hearing . Stanford
testified that, after the Association was disestablished, he continued to receive income from
the machines However, on March 17, 1942, upon the advice of the respondent' s secre-
lary-treasurer , Stanford opened a bank account in the name of " Dowty Employees Fund"
to receive such income . The initial deposit was $ 2170 At the time of the hearing
Stanford had deposited $31 in addition and had a further $6 on hand Income checks
are received by Schneck , the respondent 's comptroller , and are by him given to Stanford
According to the latter , the funds are being kept for a picnic for the employees of the
respondent
15 The recoid is not explicit as to when or how the Aircraft acquired its name Nichter
testified that the name was adopted "right after " the meeting of December 22.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
six departments. The Aircraft has not' adopted a constitution or
collected any dues.
Boyhan testified that, in a conversation with Foreman Miller dur-
ing the first week of January 1942, the latter stated that he observed
that Boyhan's name appeared at the top of a list of the respondent's
employees who had joined the Union and then asked why Boyhan
had joined. Boyhan replied, giving his reason. Miller in effect denied
having had this conversation. We do not credit his denial, nor did the
Trial Examiner. At about the same time, Assistant Foreman Polaiiski
told employee McGrath that the respondent knew the identity of those
of its employees who were members of the Union, that they might be
troublemakers, and that they might be denied draft deferments. '
On January 6, 1942, the Union distributed leaflets outside the re-
spondent's plant announcing that it was about to undertake contract
negotiations with the respondent and pointing out that overtime. rates
at plants which were organized by the Union were higher than those
obtaining at the respondent's plant. Within a day or two thereafter,
according to_Aircraft Shop Steward Nichter, the shop stewards of the
Aircraft met with Longhurst and Vice-President Armstrong to obtain
increases in the wage rates at the plant. They requested time and a
half for Saturday work, double time for Sunday, and a 10-cent per
hour increase for employees earning 50 cents per hour. The Aircraft's
requests were promptly granted, except that Sunday rates were fixed at
time and a half. Later, according to Nichter, on about January 9,
the stewards again met with Longhurst and Armstrong, and with
Thomas Hanley, the respondent's treasurer, to obtain additional wage
increases. The Aircraft demanded and received a flat 10-cent per
hour increase for all hourly paid employees.16 At this meeting, how-
ever, Longhurst informed the stewards that the respondent would not
bargain further with the Aircraft until the latter had been proved
to be the representative of a majority of the employees. After the
meeting, according to the uncontradicted and credible testimony of
employee McGrath, Armstrong posted a notice on the bulletin board
listing the increases granted "as a result of the meeting of the stewards"
with the respondent's management. Later, on January 16, the Air-
craft distributed copies of a leaflet outside the'respondent's plant. The
leaflet, signed by "The Shop Committee," detailed the raises in pay
and improved conditions for the employees obtained by the Aircraft
from the respondent, urged that the recipients sign membership cards
"and string along with an organization of our own," and announced
16 Except those who had received increases from 50 to 60 cents per hour at the previous
meeting
0
DOWTY EQUIPMENT CORPORATION 225
that a meeting of the organization would beheld the same day at
Stack's Bar and Grill "*
In the meantime, acting on Longhurst's adlnonitlon that the Air-
craft first prove its majority before further bargaining with the
respondent, shop stewards Scott and Hanswald, according to the
former, composed a petition on their way home after the meeting of
January 9 with the respondent. According to Scott, Hanswald typed
copies thereof at his home that night and brought them to the plant
the following morning, January 10. The petitions authorized the
stewards of the Aircraft to represent the signers and provided that
"this agreement voids all others made by inc with other unions . . ." 18
They were circulated by Scott and Hanswald and the signatures of
numerous employees obtained. The evidence reveals that three of the
five petitions so circulated were typed on the machine of Frances Gil-
bert, confidential secretary to the three officers of the respondent.'
On January 12, the Union wrote the respondent claurnmg to repre-
sent a majority of the respondent's employees and requesting a bar-
gaining conference.20 On the same day, a delegation of Aircraft pro-
ponents retained Attorney Edward F. Platow, w llo advised them to
procure signatures to Aircraft lnenlbership application'.. On January
133, Platow wrote the respondent stating that the Aircraft represented
a majority of the respondent's employees and requesting a bargaining
conference. At the same time the Aircraft also filed w ith the Regional
"The respondent contends that it did not deal with the Auciaft ".is a haiginmug
representative of its employees " This contention is based on the Iesntaouv of Longhmist
who denied negotiating with the Auciaft, but admitted in effect that. durmi the lattei
pact of December 1941 or the eaily part of January 1942, a "group" of eniploiecs regre,ted
111, assistance in forming an organization and that lie advised them to retain counsel
and that shortly thereafter lie tact with it committee representing the varmus dep.utunents
in the plant and granted its demands for wage and iietinme increases Longhunat s testi-
mony, which was iague and lacking in detail does not conimnce its that lie failed to recog-
nrre the committee, with which lie dealt. is being the nepie,e tatiie of the Aicraft On
the contrary, w e think it cleat from the record that the shop stew aids obtained these
concessions from the respondent as the ieloesentatives of the Aircraft In any Gent,
through the notice posted by Armstrong the respondent permitted the Aiciatt to obtain
credit for these concessions and theieby enhanced its prestige
18The events of,the week resulted in it severe loss of prestige by the Union McGrath
testified that, before the wage increases were announced by the respondent and the peti-
tions circulated, lie "was under the impression that the entire shop was going over to the
CIO ' and that lie joined it on January 7, 1942, on this account even though lie "wasn't
pan titularly in favor of the CIO ' He thereafter attended a meeting of the Union
held on January 13, at which only about 5 of 10 employees were present
"The Board called, and qualified as an expert witness, Detective Charles Al O'Mailel,
attached to the forgery squad of the New lock Police Department lie testified that lie
had examined a specimen known to hale been typed on the Gilbert machine, that his
examination of such specimen revealed an ureguhuity in one of the letters of the machine,
that he had examined the five petitions cicuiated by Scott and I-lausw'ald, that impres-
sions of the niegular letter appeared on three of then, and that in has opinion the three
bearing such impiessions were typed on the Gilbeit machine We accept, as (lid the Trial
Examiner, his expert opinion, and find accordingly
d°On the same day it filed the oliginal charge in this proceeding with the Regional
Office of the Board
493=,08-43-i of 45-13
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office of the Board a petition for investigation and certification of
representatives. On January 14, the respondent replied to both the
Union and the Aircraft, stating that, because of conflicting claims of
majority representation, it desired that the hatter of determining
representatives be placed in the hands of the Board.
On March 7, 1942, the Aircraft, by Grady, Wrote the Regional Office
of the Board asking that action be taken on its pending representation
petition. Attached to this letter were five petitions signed by numerous
employees making the same request. They were written on the type-
writer of Miss Gilbert, who, as stated above, is a confidential em-
ployee.21 Grady testified-that he did not know from whom he received
the petitions. Minutes of two of the earliest meetings of the Aircraft,
as well as a list of its officers and stewards, were furnished by Sekreta,
its president, to the Board during the investigation of the Union's
charge.. All were typed on Miss Gilbert's machine.22
3. Conclusions
It is clear that the Association was sponsored by the respondent's
supervisors. It was organized and functioned on the respondent's
premises, and received the active assistance and support of its officials.
The statements of Supervisors Kenney, Conklin, Miller, and Polanski
constituted outspoken preference by the respondent for the Associa-
tion and permitted of no doubt as to its hostility toward the Union .2`1
The evidence showing domination of the Association by the respond-
ent is so clear as to require no further comment.24 -
It is also clear that the Aircraft arose while the Association was still
in existence and at a time when the respondent had done nothing to
21 This finding is also based upon the testimony of Detective 0 Malley, the expert witness
above referred to.
22 See footnote 21, supra.
22 Longburst testified that lie instructed the foreman not to discuss union matters with
the employees. These alleged instructions were given after the Union had filed its charge
and were never made known to the employees, so far as is revealed by the record Al-
though the actions of its supervisors may have been in violation of its orders, they never-
theless constituted unfair labor practices by the respondent Solvay Process Company
v N L. R B, 117 F. (2d) 83 (C C A 5), cert don , 313 U S 596
24 At oral argument before the Board, counsel for the respondent admitted in effect that
the Association w as employer -dominated, but the respondent contended in its exceptions.
that, because of the settlement agreement of December 1941, the evidence relating to the
domination of the Association was immaterial and irrelevant. While that dgreement, by
requiring disestablishment of the Association and notice thereof to all employees, pur-
ported to settle the unfair labor practice, it is clear that, because of the quick formation
of the Association's successor (the Aircraft) and because of the subsequent illegal support
given by the respondent to the Aircraft, as herein found, the effects of the respondent's,
domination of the Association have not been eliminated but, rather , perpetuated , and the
terms of the settlement agreement have been violated by the respondent. Upon the entne
i ecoid, we find that it 'will best effectuate the purposes of the Act to give no effect to
the• settlement agreement . See Matter of Quality and Service Laundry , Inc. and Team-
sters Joint Council #55 (A F. of L ), 39 N L R. B 970, and cases cited in, footnote 6•
thereof, Matter of Marls Products Co, Inc and Local No 3, International Brotherhood or
Electrical Workers, A F of L, 35 N L. R. B 1262
DOWTY EQUIPMENT CORPORATION 227
mark a separation between the two organizations or publicly to de-
prive the Association of the respondent's apparently continuing favor.
Thus, the Aircraft, sponsored and supported by the respondent's
supervisors, was already in existence, its elections had been conducted
on the respondent's time and property, and three of the Association's
officials had succeeded to similar posts in the Aircraft, before the no-
tices of dissolution of the Association were posted. There was no
hiatus between the two organizations. Moreover, shortly after the
notices of the Association's dissolution were posted and at a time when
the Aircraft and the Union were competing for the allegiance of the
respondent's employees, the respondent, by giving 'the Aircraft de
facto recognition and, by making material concessions to it, indicated
its approval and support of the Aircraft and, by the statements of
Miller and Polanski, again made plain its hostility toward the Union.
These facts lead inescapably to the conclusion that the Aircraft was
merely a continuation of the Association, and that it was so regarded
by the employees. The respondent's domination of, interference with,
and support to the Association carried over to the Aircraft.25 Such
an organization is incapable of functioning as a true collective bar-
gaining representative.
We find, as did the Trial Examiner, that the respondent, by the
foregoing acts, dominated and interfered with the formation and ad-
ministration of the Association and the Aircraft, and contributed
support to them, and thereby and by the above-described statements
and conduct of its supervisors, Kenney, Conklin, Miller, and Polanski,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial rela-
tion to trade, traffic, and commerce among the several States, and tend
n' Westinghouse Electi is and Manufacturing Co. v. N L. R. B., 312 U S 660; N. L: R B.
v Link-Belt Company , 311 U. S 584; N. L. R. B. v. Newport News Shipbuilding and Dry
Dock Co, 308 U. S 241; Pequanoc Rubber Company and United Rubber Workers of
America, Local # 163, affiliated unth the C. 1. 0., 40 N. L. R. B. 541. The instant case is
thus clearly distinguishable from Matter of Providence Gas Company and Local No 12133,
District 50, United Mine Workers of America, 41 N., L R. B. 1121, where the circumstances
relating to the formation of a new unaffiliated union prior to disestablishment of a pre-
ceding dominated union required a contrary conclusion . In that case , a majority of the
Board found that employee dissatisfaction with the dominated union preceded and resulted
in the formation of the new organization , which reflected an honest rebellion -against the
respondent',s domination and a desire for bona fide representation ; there was a divergence
of opinion by the proponents of the new movement as to the type of organization to be
adopted in securing their freedom for self-organization" ; and, finally, "the rank and file
of the employees' decided upon an unaffiliated organization which was perfected by
' employees wholly unconnected in representative capacity" with the dominated union
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 and is engaging in
certain unfair labor practices , we shall order it to cease and desist
therefrom and to take affirmative action designed to effectuate the
policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Association and the Aircraft,
and contributed ' support to them . Since the Association no longer
exists as such and there appears to be no likelihood of its reestablish-
ment, no affirmative order will be made herein as to it. However, the
Aircraft is presently in existence and therefore , in order to effectuate
the policies of the Act and free the employees of the respondent from
such domination and interference , and the effects thereof, which con-
stitute a continuing obstacle to the free exercise by them of the rights
guaranteed in the Act , we shall order the respondent to withdraw all
recognition from the Aircraft as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning
grievances , labor disputes , wages , rates of pay , hours of employment,
or other conditions of employment , and completely to disestablish it as
such representative.
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. Local 1227, United Electrical, Radio & Machine Workers of
America, C. 1.6-, and Aircraft Equipment Union are labor organiza-
tions, and Dowty Employees Association was a labor organization,
within the meaning of Section 2 1 (5), of the Act. ^
2. By dominating and interfering with the formation and admin-
istration of Dowty Employees Association and Aircraft Equipment
Union, and contributing support to them, 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.
DOWTY EQUIPMENT CORPORATION 229
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) ofthe National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Dowty Equipment Corporation,- Long Island City, New
York, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Dowty
Employees Association and Aircraft Equipment Union, or with the
formation or administration of any other labor organization of its
employees, and from contributing support to Aircraft Equipment
Union or to any other labor organization of its employees;
(b) Recognizing Aircraft Equipment Union 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;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from Aircraft Equipment Union 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 employ-
ment, and completely disestablish Aircraft Equipment Union as such
representative;
(b) Post immediately in conspicuous places in its plant at Long
Island City, New York, and maintain for a period of not less than
sixty (60), consecutive clays 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 para-
graphs 1 (a), (b), and (c) of this Order; and (2) that the respondent
will take the affirmative action set forth in paragraph ,2 (a) of this
Order;
(c) Notify the Regional Director for the Second Region in writing
within ten (10) clays from the date of this Order what steps the re-
spondent has taken to comply herewith.
O