Exact Level & Tool Mfg. Co., Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1946

66 N.L.R.B. 1238 (N.L.R.B. 1946)

In the Matter of EXACT LECEN, & Tool Mrc. Co., Ixc. and UNITED
STEELWORKERS OF AMERICA, C. 1. O.
Case No../-C-1461.-headed M(o,eh _118. 19/6
DECISION
I D
ORDER
On July 7, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent 'filed exceptions to the
Intermediate Report and a supporting brief. On March 7, 1946, the
Board heard oral argument at Washington. D. C. The respondent
and the Union participated in the oral argument.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following addi-
tions, exceptions, and modifications:
1. At the hearing before the Trial Examiner, the respondent
objected to the admission of certain documents and testimony elicited
from witnesses by the use of such documents, and moved that the
documents and such testimony be stricken from the record on the
ground that an agent of the Board had obtained the documents from
the respondent by false representations or promises which precluded
their use at the hearing. Theodore Vaida. the respondent's president,
delivered the documents in question, consisting of a series of tran-
scripts of conversations between Vaida and certain employees of the
respondent or union representatives, to Harold Summers, a Field
Examiner of the Board, in the course of an investigation by Sum-
mers of the charges in this proceeding. Vaida testified that on
October 31, 1944, when Summers first visited the respondent's plant,
Summers made the following promise :
66 N. L . R. B., No. 149.
1238
EXACT LEVEL & TOOL MFG. CO., INC. 1239
He said that no matter what facts I am to acquaint him with,
no matter what documents I might show him, no matter what
records I might make available to him, none of them will be
used in any way, form or shape except for the purpose of
acquainting him with the facts so that at the time of his exami-
nation while in the plant he can appraise ( sic) us of the findings
to see if the Board decides that there is no case for the Govern-
ment or that there is one.
Vaida also testified that, on November 6, 1944, when he delivered
the transcripts to Summers at the Board's Regional Office, Summers
reassured Vaida that the documents would be used by no one except
Summers. Vaida 's testimony as to the October 31 conversation was
corroborated by his secretary , Marion Cole.
Summers specifically denied all of Vaida 's testimony relative to
the alleged agreement to limit the use of the documents or any in-
formation furnished by the respondent . Summers also denied that
he had at any time told Vaida that any documents or information
obtained from the respondent would be used for a limited purpose
only.
In support of Vaida's and Cole's testimony , the respondent relies
upon a typewritten transcript of shorthand notes which Cole testified
she took during the October 31 conversation between Vaida and
Summers. This transcript supports Vaida's version of his October 31
conversation with Summers. The shorthand notes were first men-
tioned at the hearing after Summers , called as a witness for the
Board at a specially adjourned hearing 10 days after the respondent
had rested, had contradicted Vaida's testimony referred to above.
At the suggestion of the Trial Examiner , Cole transcribed the notes,
according to her testimony , for the first time, and the notes were
introduced into evidence at the instance of the Trial Examiner.
Vaida testified that, when Summers arrived at his office on October
31, he instructed his secretary to make notes of the conversation.
Although Vaida contradicted Summers' testimony that thereafter,
on November 9, Vaida denied the existence of any notes of their
October 31 conversation , Vaida admitted that, when Summers made
(he inquiry , Vaida replied "I told him that there were no records
taken of our conversation in a general way, excepting the very be-
ginning and it would be quite difficult to ungarble them * * *"
However, an examination of the notes discloses , as stated above,
that they are full and complete, and not garbled.
On November 9, Vaida was informed by Summers as to the recom-
mendation that he would make as a result of his investigation.
During the following few weeks , Vaida called on Summers and
telephoned to him several times . During that period. Vaida delivered
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Summers other documents relative to the pending charges, pro-
tested that the respondent was innocent and asked for further time
to consider a request by Summers that the respondent comply with
the recommendation. At no time during this period did Vaida refer
to any promise to limit the use of the documents then in the Board's
possession.
In December 1944, Vaida retained attorney Robert H. Kleeb, and
together they conferred with Summers at the Board's Regional Office.
Summers credibly testified without contradiction that at this con-
ference in December, Kleeb said that if he had been representing
Vaida from the beginning, Summers' "file would not be so large."
At the conference a proposed settlement was discussed, but no claim
was then advanced by the respondent that evidence had been im-
properly obtained. Inasmuch as Summers had told the respondent
that a complaint was about to issue, Kleeb telephoned to Summers
several times after this conference to request more time to consider
the proposed settlement, but it was not until January 1945, when
Vaida and his attorney conferred with Summers and the Board's
Regional Director, that the respondent first claimed that any evidence
was improperly in the Board's hands.
Under the circumstances, we credit Summers' testimony and find
that he at no time promised or agreed to limit the use of the docu-
ments received from Vaida or of any information that he might
obtain in the course of his investigation. Accordingly, we affirm
the Trial Examiner's ruling denying the respondent's motion to strike
from the record the exhibits and testimony in question."
2. The Trial Examiner found that on October 24, 1944, Foreman
Francis Dalrymple arranged to have Theresa Fedo, a union adherent,
attend the Independent meeting in the assembly room on that day,
and that such conduct constituted an independent violation of Section
8 (1) of the Act, on the part of the respondent. Dalrymple testified
that Fedo, an assembly room employee whom he knew to be opposed
to the Independent, expressed a desire to remain at her work in the
assembly room during the meeting instead of going to the office, as
he had suggested to her. Dalrymple further testified that he con-
veyed Fedo's request to remain at work during the meeting to Helen
Trimmer, who had theretofore advised Dalrymple that Fedo's
presence at the meeting was not desired, and that Trimmer, who
had received permission from Dalrymple to hold the meeting in the
plant during working hours, decided to permit Fedo to remain in
the assembly room during the meeting, which Fedo did. Dalrymple
denied having told Fedo to remain at the meeting. Trimmer did
2 1n view of this finding of fact above, it is unnecessary to make any determination,
one way or the other , with respect to the respondent 's legal contention that evidence
improperly obtained by an agent of the Board may not be used at a hearing before a
Trial Examiner.
EXACT LEVEL & TOOL MFG. CO., INC. 1241
not refer to this incident in her testimony ; Fedo was not called as
a witness. In view of the foregoing, we are of the opinion that the
record does not support the Trial Examiner 's conclusion that Dal-
rymple arranged to have Fedo attend the meeting of the Independent,
and we so find.
3. We reject, as did the Trial Examiner, the respondent's con-
tention that it discharged Oscar Suydam in accordance with the
terms of his employment and find, as did the Trial Examiner, that
Suydam had been hired for the "duration" which had not expired
at the time of his discharge. In addition, we find, for the reasons
indicated in the Intermediate Report, that the respondent would have
transferred Suydam to other work in the plant or obtained new
work for him upon completion of the clinometer arms job but for
Suydam's union activities. We agree therefore that the respondent
violated Section 8 (3) of the Act by discharging Suydam.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent , Exact Level & Tool Mfg.
Co., Inc., High Bridge , New Jersey , and its officers, agents , successors,
and assigns , shall:
1. Cease and desist from :
(a) Dominating , interfering with the administration of, or con-
tributing support to the Independent Union of the Workers of the
Exact Level & Tool Mfg. Co., Inc., or any other labor organization
of its employees;
(b) Refusing to bargain collectively with the United Steelworkers
of America, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of all the employees engaged in the
production and maintenance department of its plant, excluding office
employees and supervisors;
(c) Discouraging membership in United Steelworkers of America,
C. I. 0., or in any other labor organization of its employees, by dis-
charging and refusing to reinstate any of its employees , or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of their employment;
(d) In any other manner interfering with, restraining, or coercing
its employees, in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Steelworkers of America,
affiliated with the Congress of Industrial Organizations, or any other
labor organization , to bargain collectively through representatives
1 242 DECISIONS Oh' NATIONAL LABOR 1tFLATIONS BOARD
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 Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from and completely disestablish
the Independent Union of the Workers of the Exact Level & Tool
Mfg. Co., Inc., and the representative of any of its employees for
the purposes of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, and other
conditions of employment;
(b) Upon request, bargain collectively with United Steelworkers
of America, affiliated with the Congress of Industrial Organizations,
as the exclusive representative of all employees engaged in production
and maintenance work at its plant, excluding office employees and
supervisors, concerning grievances, labor disputes, wages, rates of
pay, hours of employment, and other conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement;
(c) Make whole Oscar Suydam for any loss of pay that he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount
that he normally would have earned as wages during the period from
October 23, 1944, to November 13. 1944, the date of the respondent's
offer of reemployment. less his net earnings, if any, during that
period;
(d) Post in its plant at High Bridge, New Jersey , copies of the
notice attached to the Intermediate Report, marked "Appendix A." 2
Copies of said notice, to be furnished by the Regional Director for
the Fourth region. shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt
thereof and maintained by the respondent for sixty (60) consecutive
days thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondent to insure that said notices are not altered,
defaced, 'or covered by any other material;
(e) Notify the Regional Director for the Fourth Region (Phila-
delphia, Pennsylvania), in writing, within ten ( 10) days from the
date of this Order, what steps the respondent has taken to comply
herewith.
MR. GERARD D. RFILLY took no part in the consideration of the
above Decision and Order.
2 Said notice , however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words The Recommendations of a Trial Examiner " and substitut-
ing in lieu thereof the words "A Decision and Older
EXACT LEVEL & TOOL MFG CO , INC 1243
INTERMEDIATE REPORT
Kerman Lazarus, Esq., of Philadelphia, Pa., for the Board.
Robert H. Kleeb, Esq., of Philadelphia, Pa., for the respondent
ltr. Stanley Oleniacz, of Glenn Gardner, N. J., for the Union.
Mr. Arthur J. Templeton, of High Bridge, N J., for the Independent.
STATEMENT OF THE CASE
Upon a charge duly filed on November 15, 1944, by United Steelworkers of
America, affiliated with the Congress of Industrial Organizations, herein called
the Union, the National Labor Relations Board, herein called the Board, by
the Regional Director for the Fourth Region (Philadelphia, Pennsylvania),
issued its complaint dated February 19, 1945, against Exact Level & Tool Mfg.
Co., Inc., herein called the Respondent, alleging that Respondent had engaged
in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, the charge, and the notice of hearing were duly served upon
the Respondent, the Union, and the Independent Union of the Workers of the
Exact Level & Tool Mfg. Co., Inc, herein referred to as the Independent.
With respect to the alleged untair labor practices, the complaint in substance
states that the Respondent : (l) on or about August 29, September 2, Sep-
tember 9, and September 13, 1944, was requested to recognize the Union an
the exclusive agency for the purposes of collective bargaining and was fin then
requested to bargain collectively with the Union as the exclusive representative
of its employees in an appropriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of employment; (2) on or about
September 13, 1944, recognized the Union as the sole bargaining agent of its
employees but on that date and thereafter refused to bargain collectively with
the Union within the meaning of the Act because it, (a) between on or abort
October 19 and October 24, 1944, engaged in a course of action bringing about
the resignation of its employees from the Union and the formation of the
Independent, (b) on or about October 26, 1944, advised the Union that it no
longer recognized the Union as the exclusive bargaining agent for its employees
and that it would not bargain collectively with the Union, (c) on or about
Jauuaiy 30, 1943, unilaterally granted its employees insurance, the premiums
to be paid by it, notwithstanding the fact that said insurance was one of the
demands made upon it by the Union, (d) since on or about October 19, 1944.
.aid thereafter, refused to bargain collectively with the Union; (3) on or
about October 23, 1944, terminated the employment of Oscar Suydam and sine"
on or about that date down to on or about November 9, 1914, refused to reinstate
Iiiui to his former position in the plant, for the reason that he joined and
assisted the Union and failed and refused to abandon the Union for the Inde-
pendent or to participate in the formation of the Independent or to join that
organization; (4) on or about August 26, 1944, and thereafter, caused to be
formed, interfered with and dominated the formation and administration of
the' Independent, and contributed financial and other support to that organi-
zation; (5) on or about August 26, 1944, and thereafter, by certain specified
nets of its officers, agent', servants, and employees. and particularly Theodore
V'aida and Francis Dalrymple. and by all the foregoing acts. has interfered
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act'
The Respondent, in its answer dated February 28, 1945, admitted the juris-
dictional allegations of the complaint with respect to commerce and that the
Union and the Independent are labor organizations within the meaning of the
Act. Although the Respondent alleged in its answer that it was unknown to
the Respondent whether or not a unit of production and maintenance employees
constitutes an appropriate unit, it did, by stipulation at the opening of the
hearing, agree that the unit as contended for by the Board was appropriate.
The Respondent, in its answer, denied that the Union, at any time, represented
a majority of the employees in the appropriate unit and also denied the com-
mission of any of the alleged unfair labor practices in the complaint.
Pursuant to notice, a hearing was held at Flemington, New Jersey, on March
15, 16, 17, 19, 20, 21, 22, and 24, 1945, at Philadelphia, Pennsylvania, on April 9,
1945, and at High Bridge, New Jersey, on April 9, 1945, before the undersigned.
James C. Batten, the Trial Examiner, duly designated by the Chief Trial
Examiner. The Board, the Respondent, the Union, and the Independent were
represented and participated in the hearing. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses , and to intro-
duce evidence bearing on the issues.
During the course of the hearing counsel for the Respondent moved that
the undersigned strike from the record Respondent's Exhibit 1. Decision hav-
ing been reserved thereon, the motion is hereby denied. At the close of the
testimony with respect to the issues herein, the undersigned denied the motion
of Respondent's counsel for a dismissal of the complaint. Also at this time the
undersigned granted, without objection, the motion of the Board 's counsel to
conform the pleadings to the proof as to minor details . At the close of the
hearing, Respondent's counsel moved that the Board' s Exhibits 2, 3, 6, 7, 8.
9, 10, 11, 12, 13, and 14, Respondent's Exhibit 1, all testimony adduced at the
hearing from Board witness Alexander Westman by Board's counsel and all
testimony of the witness, Theodore F. Vaida, he stricken from the record for
the reason that it had been obtained illegally and through misrepresentation
by the Board's agent ; thus this evidence has been improperly used at the
hearing, by the Board. The undersigned reserved decision on the motion to
strike. The motion is hereby denied. The undersigned having denied the
above motion, the request of counsel for the return to the Respondent of the
Board Exhibits set forth in the motion, is hereby denied. No oral argument
was presented at the conclusion of the taking of testimony. Briefs were filed
by the Board, the Respondent, and the Independent.
On the entire record thus made and from the undersigned' s observation of
the witnesses, the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
1. TILE BUSINESS OF THE RESPONDENT
Exact Level & Tool Mfg. Co., Inc., the Respondent herein , is a New Jersey
corporation with its only office and plant located at High Bridge , New Jersey.
where it Is engaged in the manufacture of ordnance materials , principally fire
control devices : The Respondent annually has used about $100,000 worth
IIn accordance with the motion, which was allowed , to correct minor errors in the
pleadings, it is hereby ordered that the reference In paragraph 13 of the complaint to
"paragraph 11" be amended to read "paragraph 12."
2 Before the war, the Respondent was engaged in the production of carpenters' levels.
EXACT LEVEL & TOOL MFG. CO., INC. 1245
of raw materials , which includes aluminum castings, lumber, and brass, 95
percent of which came from points outside the State of New Jersey. It annu-
ally sells in excess of $300,000 worth of its finished products, all of which is
shipped to points outside the State of New Jersey.
The Respondent is engaged in commerce within the meaning of the National
Labor Relations Act'
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations , and Independent Union of the Workers of the Exact Level &
Tool Mfg. Co, unafRliated , are labor organizations admitting to membership
employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events`
Prior to August , 1944,6 the employees in the Respondent 's plant had evidenced
no interest in a labor organization nor had any organization sought to organize
the employees . On or about August 21, Oleniacz , a staff representative of the
Union , contacted some of the Respondent 's employees and on that day several
of the employees signed cards for that organization authorizing it to act for
them as a collective bargaining agency in all matters pertaining to rates of pay,
wages, hours of employment , or other conditions of employment .' Employees
who were active in the solicitation campaign were Mary Lance, Elizabeth
Edmonds, Carolyn Smith, and Alexander E. Westman . By August 28, the
Union had obtained authorization cards from a majority of the Respondent's
employees?
The Respondent , at any early date, became aware of the organizational drive
of the Union . Vaida , president of the Respondent , testified that on August 21,
he knew of the activities of the Union in the plant . On August 22, 1944, Fore-
man Dalrymple went to Vaida's office with a notice that he had prepared and
asked Vaida to sign the notice because the employees were congregating in the
toilet room. Vaida testified that Dalrymple did not advise him what union
Y The above facts and jurisdiction of the Board were stipulated.
The recital of facts herein, unless otherwise indicated, are undisputed and are sup-
ported by credible evidence.
5 Unless otherwise indicated , the events referred to herein occurred during the year
1944.
"The cards signed by the employees contained the following statement:
I hereby request and accept membership in the United Steel Workers of America
and of my own free will hereby authorize the United Steel Workers of America, Its
agents or representatives to act for me as a collective bargaining agency in all
matters pertaining to rates of pay, wages, hours of employment or other conditions
of employment and enter into contract with my employer covering all such matters
including contracts which may require the continuance of my membership In the
United Steel Workers of America as a condition of my continued employment.
" Eight cards were signed on August 22; 5 cards were signed on August 23; 11 cards
were signed on August 24; 9 cards were signed on August 25; 11 cards were signed on
August 26; and 3 cards were signed on August 28, making a total of 47. In addition,
2 cards were signed on August 30, 1 on September 2nd, 1 on September 5th, 1 on Sep-
tember 6th , and 1 on September 18th The normal complement of production and main-
tenance employees in the Respondent's plant was approximately 55. The Respondent
does not contest the validity of the signatures appearing on these cards.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was involved in the activity but that he, Vaida, had already been advised
about the situation. Vaida refused to sign the notice, and stated to Dalrymple,
"Just skip over and it will pass away and everything will be alright again."
Vaida further testified that he didn't do anything about the matter for the
reason that he "didn't look for anything substantial enough to consider them
any further ." On August 26, the interest of the employees in an organization,
at least in the mind of Vaida, vas not passing away and so on the morning
of that day, Vaida, because of the unrest prevailing in the plant, decided that
some action on his part was necessai y. Vaida testified that he called in Mary
Lance and Alexander Westinan and talked to them individually and perhaps
a few others in an effort to restrict the Union's activities. Vaida testified that
after telling Mary Lance that he was interested in freedom on the part of
the individual, lie asked her if the rumor was correct that, "there is a C. I. 0
Union subscription campaign going on " Mary Lance, in answer to Vaida's
inquiry, advised him that there was a "union subscription campaign" in the
plant but that she could not divulge any further details. Vaida also called in
Westmaii, an employee who was active in the organizational campaign of the
I'inoii, aid after some pre] ininary remarks concerning Vaida's belief in fiee-
dom, the right of employees to organize and that no action would be taken
against them, he asked Westnian if there was a union subscription campaign
in the plant Vaida testified that Westman told him that he could not "give
any further details until things are accomplished." According to the credible
testimony of Westman, Vaida on this occasion asked him what he, Westman,
thought of the C. 1 O. movement. Westman expressed no opinion. Vaida
testified that he called in Lance and Westman because there was a rumor
around that they were the two employees who were the "prime movers" in
the organizational campaign. Vaida also admitted that he talked to "some
other" employees whom he picked "at random," concerning the union campaign,
but he was unable to recall their names. Also, on August 26, Vaida called a
meeting of the foremen and, after some discussion concerning organized labor
and the rights of the employees, told the foremen that the Respondent 's posi-
tion was, "hands off, no influence one way, no influence in any other way. We
are neutral and it must riot make any difference to us which one or any union
is going to be created." Vaida also expressed the opinion , to the foremen, that
although some of the employees were absent from their place of work to, "Just
let it go now, it will pass like the rest of things pass and it will be alright."
Following the foremen meeting, Foreman Dalrymple of the assembly depart-
ment called together the employees of his department. Dalrymple told the
employees that he was to maintain a neutral attitude with respect to the
organizational campaign. During the talk by Dalrymple, he called the
employees' attention to the fact that some of the employees were new and that
they "should consider it well any move they make because it would effect
those who were there for permanent employment and those in the Armed
Services who were coming back and would like to work there. Any action
they took would affect them ; therefore, they should consider well whatever
they did." Mary Raunec, a credible witness and an employee who attended
the meeting at which Dalrymple spoke to the employees testified that during
the meeting Dalrymple asked the question "What is all this about? I can't
understand " When Dairy mple asked Mary how she felt about the matter,
she replied that "What the rest does, we will do too " Mary was asked bi
counsel for the Respondent, "Mr Dalrymple didn't talk for or against any
union?" Mary replied, "No, but he said-, "Yes. All he said , he said lie
didn't feel like the C. I. O. was benefiting to his brother at Taylor Wharton
EXACT LEVEL & TOOL MFG. CO., INC. 1247
that is all." Mary further testified that after the meeting Dalrymple came
into the room where she and Loretta Heffernan, an active union adherent,
were working and asked them how they felt about the Union.
On Monday morning August 28, Vaida again summoned Westman to the
office and asked him if he had formed any opinion on the union matter they
had discussed the previous Saturday. Westman replied that he had formed
an opinion and that he "felt we should have some kind of a union."
On Monday afternoon of August 28, Vaida, 2 days after lie had told the fore-
man that "it [the Union] will pass like the rest of things pass and it will be
alright," asembled the employees in the assembly department on the second
floor of the plant.' When asked by the Trial Examiner as to why, he, Vaida,
thought it necessary to express any "concept" to the employees during the time
they were attempting to organize, his reply was "My mental cooperation toward
our employees have been I hope in the past always beneficial. My ability of
thinking, I think, as conceited as I am, is a beneficial influence on them."
Addressing the employees who had been called away from their work as "co-
operators," Vaida said referring to the fact that employees had been gathering
in groups recently, "So from one indication to another it seems to be that there
is a campaign going on for the C. I 0 union subscriptions and before you are
arriving to any conclusions of what your steps intend to be in any of these
directions I would like to tell you about the Company's policies in reference
to you cooperators in this industry. I would not have to explain those things
to our old timers but there are so many of you who are new comers or respec-
tive new comers of 1944 or 1943 vintage, who never saw how this company op-
erated before the war that I feel that I have to acquaint you with a number
of things in reference to your employment, that you might not know yet " He
also stated that the Respondent except for a limited number of employees
hired for the duration of the emergency maintained the policy of paying a
"medium fair wage per hour and offsetting the lack of higher hourly wage
by continuous operation" and that the Respondent did not take in workers
when they were needed and lay them off when the work became slack He
went on to explain that the exceptions to this rule "of continued and permanent
operation over a fifty-two week per year period, year lit and year out" wi ei e
those few persons, including Oscar Suydam, who were hired "only in a tem-
porary way just as long as this manpower emergency lasts " Vaida continued
by saying that except in those instances of returning service men who would
be by law entitled to replace others, the Respondent had no intention of ter-
ininating the employment of any of the employees and that this policy of years'
standing in the plant could be maintained, "if proper cooperation is existing
the outcome is so that we will almost surely be able to manage it as we always
did " He stated, however, that if the majority of the employees would rather
have higher wages, uncertain hours, and lay-offs iilien ilork was slack the
Respondent was willing to try that method, a method which in Vaida' s opin-
ion was unhealthy. Vaida, after rather lengthy remarks concerning the method
of operation theretofore existing in the plant told the employees that he did not
9 Vaida testified that the reason foi making a speech to the ,niplo.ees on this occasion
was, "Very many of our employees have been neiacomets to our plant Very many had
no experience of either our attitude or our method of employ nient in peace time The
acquaintanceship of the workers pith the management and the management's policies
have been, in consequence rather scant I felt if they should decide for one union,
another union or no union, I should be able to aiquaiut thenicelves fiisi, tot v hat the
Company is standing for so that in the light and in the pi ospi ctive of what their onn
management's prospecti'.e for the pant and plospeittie lot l;n, tutuie years, thet might
b,, able to iserrh properly what aetuin the} AN onld like to t.tke
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know of any better method and, "if anybody knows of anything better he
always was free to do so and I hope will simply correct me and we will try to
do it better or he or she will acknowledge that this method Is better, anyhow
I know of no better relationship and I don't think that any union rules or any
other rules can ever improve it." Vaida continued his talk to the employees
by stating that he was not prejudiced against a union nor against the C. I. O.
and then asked if any employee could explain the advantages of an "outside
union" for cooperators who "must live together." When no one replied Vaida
asked Westman to speak as he seemed to be convinced that union organizations
had some merit. When Vaida remarked that he could not obtain an explana-
tion from anyone about the Union because he had been told they knew nothing
about It, Westman, apparently embarrassed by Vaida' s remark, left the room
without making a statement. Vaida then asked Suydam to explain to the em-
ployees "just what the reasons might be that would make It convenient for you
to join an outside union." When Suydan said that his experience over many
years as a member of the Railroad Brotherhood had been beneficial, Vaida
stated that these organizations were a form of "shop union" that they were
confined to railroad men whereas the "steel workers" union "knew nothing of
our system." Vaida added that the steel workers union was accustomed to
deal with nationwide companies against which it had to use "power" and
"pressure," which was undesirable in a small plant like the Respondent's.
He expressed a fear that, "our mutual cooperation which brought about such
results as we accomplished in common would vanish with vanishing of the
reciprocal good will." In the meantime Westman returned to the meeting and
Vaida again invited him to speak up. Westman declined stating that the Union
as an organization did not yet exist ; that a meeting was to be held on Wednes-
day night August 30, when the employees would make their decisions ; that by
the interest the employees had shown in the Union they meant no harm to the
Respondent and that in any event there would be no "outside interference" :
that, whatever choice was made, "it will be our own group with no outsiders."
Vaida then told Westman that unions, "are accustomed to group action and in
their midst you will be a small little speck of the pin point and you will be
expected to do as you are told. And that is really my major worry," which
may result in "our good relationship" disappearing. When Vaida indicated to
Westman that things are "just never done that way. And what you are going
to do is contrary to your declaration or belief there will be Just the same out-
side interference." Westman replied, "Well, that would not be so good and
I can tell you that if there is outside interference I promise you we will resign."
Vaida then asked employees Miss Jones and Arthur Templeton for an expres-
sion of opinion with respect to the matter under discussion. Miss Jones re-
plied that she had nothing to say. Templeton, who never signed a union card
and was later active in the organization of the Independent, stated that no
one had yet been able to explain to his satisfaction, "what the possible benefits
of the CIO would be." Templeton referred to the fact that he disapproved of
many of the things the CIO "continuously" did in calling strikes after they had
promised not to have strikes during the war. Vaida closed the meeting by
stating, "I hope that your decision will be a wise one and that I will be able
to look at you in the future with the same free feeling I always had and that
I will be able to remain between you as my friends and cooperators, as it has
been heretofore. I wish you good luck and I must say I wish myself good luck
too."
On August 29, the Union sent to the Respondent a letter which stated that
a majority of the employees had authorized the Union to represent them in
EXACT LEVEL & TOOL MFG. CO., INC. 1249
matters of collective bargaining and requested a meeting with the management.
The letter further stated that the Union was prepared to produce evidence
of its claimed majority, "in any of the proper manners, designated by the Na-
tional Labor Relations Act." The Respondent received the letter on August
30, but made no reply.
On August 30, during the afternoon, Vaida again called a meeting of the
employees . In opening the meeting Vaida asked Westman if it was correct
that 2 days ago Westman had said that there was no union as yet in existence
Westman replied that there was no union and that as far as the employees
were concerned the Union could only come into existence , after a meeting of
the employees called for that night. Vaida then asked Westman if it was true
what he had said on August 28 that, "There would be no outside interference,
is that still standing good." When Westman replied, "Yes, of course it does,"
Vaida then remarked, "So there is no union for this shop existing yet and you
are no member of it yet, please listen to this letter." Vaida at this point then
read the Union's letter of August 29th advising him that that organization wa'
authorized to represent the employees in collective bargaining. At the close
of the letter Vaida stated, "Not only that there is outside interference but they
do not even wait as long as you decided on your own what you yourself are,
and they are already intending to take over from you and to do on their own
for you. I would say that this is rather, if nothing else a little premature
How about it Mr. Westman, as the only spokesman." Mr. Westman replied,
"Well, I would say it is hasty and we will see tonight, it will be up to the
vote of the majority." Vaida then closed the meeting by stating, "All right
ladies and gentlemen , good luck to you."
On the evening of August 30, 1944, a meeting of the Union was held, attended
by a substantial majority of the Respondent's employees As Oleniacz, the stati
representative of the Union, was entering the meeting hall, James, Sr, and
Templeton , two employees of the Respondent who had not signed authorization
cards, requested that they be permitted to attend the meeting. Oleniacz in
i ited them into the hall. After some general explanation by Oleniacz of the
purpose of the Union, he announced that a majority of the Respondent's em-
ployees had signed authorization cards and that the organization would waive
any initiation fee for those employees who had already signed, as they were
charter members of the Union. The employees then proceeded to elect as
officers :
Alexander Westman, President
Oscar Suydam, Vice President
Florence Lance, Recording Secretary
Loretta Heffernan, Treasurer
Verna Maxwell, Financial Secretary
Also at the meeting the employees selected a bargaining committee composed
of employees Maxwell, Lance, and Westman.
Westman, who was elected president of the Union, testified that he was not
told by a representative of the Union that at this meeting the employees would
vote on the question as to whether or not they desired a union. He further
testified that he understood that when lie signed a card that he had designated
the Union as his representative. James, an employee who had not signed a
card at the time of the meeting, about a week later signed a card without ques-
tioning the Union's right to represent the employees, It is thus evident that
up to this point in the organization of the Union, the employees had not indi-
cated that they were unaware of the fact that they had selected the Union
as their representative and had freely participated in the organization of the
686572-46-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union 's local . The Union thereafter held several meetings at which the officers
that had been elected presided and participated in the activities of the Local,
On August 30, 1944, Haines, an International representative of the Union,
who had received a report from Oleniacz , that Vaida had been participating
in the organizational activities of the employees , sent a letter to the Respond-
ent Among other things the letter stated, "Your supervision has been contact-
ing individuals in small groups and discussing the possibilities of whether or
not these individuals and groups should he represented by a labor organiza-
tion. It has also been stated that during the course of these contacts between
supervision and certain of your employees that labor organizations have been
condemned in general and derided and employees have been urged by super-
vision not to associate themselves with organized labor." In the letter Haines
also called the Respondent's attention to the fact that the Act "Strictly pro-
hibits actions" of this character and requested that Vaida "refrain from the
practice presently in vogue in your plant" and "instead that you shall meet
with me as per my request of August 29, 1944, to discuss matters pertaining
to Collective Bargaining." The Respondent made no reply to Haines.
On August 31, Westman and Suydam called upon Vaida at his office in the
plant and notified him that at a meeting held August 30, the majority of the
employees of the Respondent had indicated they were for the Union; that a
Local had been organized ; and that Westman, had been elected president and
Suydam had been elected vice president. Westman also told Vaida that "Wo
nominated all the committees, including the bargaining committee and will
pretty soon ask you to sit down with us and bargain about the various points "
1Vestman also assured Vaida that, "nothing will disturb our existing relations
and everything will work out for the benefit of everybody concerned." Vaida,
after stating to Westinan that as long as the majority desired the Union he
would do his best to cooperate , "so that the relationship that we all cherished
so much up to now , should be possible to maintain in the future ," referred to
the fact that Oleniacz had asked for an appointment for Saturday. Westman
replied that he understood that Oleniacz, the representative of the Union, was
to meet with Vaida on Saturday , September 2. Vaida then assured Westman
that , "You have my assurance that if you live up to your part of the bargain
I will do my best for you."
On Saturday , September 2, Oleniacz visited Vaida at the plant . The testi-
mony concerning this meeting clearly shows that the purpose of his visit was
to get acquainted with Vaida . The meeting lasted for about four hours and
towards the close of the visit, Oleniacz told Vaida that he would like to have
him meet Haines, who was the negotiating representative of the Union, for
the reason that he, Oleniacz, had no authority to negotiate contracts. Also,
during the conference , Vaida asked Oleniacz why the Union had elected Suydam
a "temporary employee," as its vice president, and what would happen when
Suydam 's temporary employment was terminated . Arrangements were made
before Oleniacz, left the plant for Haines to meet with Vaida, at the plant, on
September 9, 1944 . On that day, Haines and Oleniacz went to the plant and
there had a conference with Vaida that lasted for several hours. Again, many
matters were discussed of a rather irrelevant nature, but during the course of
the discussion the question of recognition arose and Haines suggested to Vaida
that the issue as to the Union's authority be resolved by a Board election.
Vaida, in his testimony , admits that during this conversation there was a dis-
cussion concerning a card check but denies that there was any understanding
or agreement upon that point. It is clear from the record that such an under-
standing was arrived at on September 11, and that the card check was to be
EXACT LEVEL & TOOL MFG. CO., INC. 12S I
held sometime in the near future, the date to be determined by Vaida and
Oleniacz . During the next few days Oleniacz sought to arrange an appoint-
ment with Vaida for the purpose of conducting a card check but met with no
success
On Tuesday , September 12, Vaida summoned Westman and Suydam to the
plant office . Vaida opened the discussion by stating that Oleniacz and Haines,
representatives of the Union , were pressing him for a letter of recognition, but
that he, Vaida, would like to know from Westman and Suydam, "on your
honor in the best of your belief the majority of the workers are in favor of
the CIO union " Vaida told them if they would assure him of that fact, that
"there is no use of any further dilly -dallying, and I would be willing to issue
a letter of recognition for the purpose of hastening the procedure of arriving
to a contract so that our relationship would be established with good progress
with our work ." Westman replied, "yes, to the best of my knowledge the ma-
jority of our men are in favor of the CIO ," and Suydam added, "The majority
of our employees are in favor of the C. I. 0. union ." Vaida closed the dis
cussion by stating, "Thank you gentlemen , it is good enough for me " As
Westman and Suydam were preparing to leave the office Vaida stated "Ot
[Suydam] those arms you are grinding are going to an end, and iie are now
working for February 1945." Ot replied , "I know, I know, you hear what I
said. I will be with [you] as long as this emergency lasts and when it is over,
it is over." To this Vaida replied, "0. K."
On September 13, Olenracz , who had made several efforts to make an ap-
pointment with Vaida to conduct a card check , called Haines at his office in
Easton, Pennsylvania, and advised him that there had been some difficulty in
setting a date for the card check Haines then called Vaida at the plant and
asked him if he would get together with Oleniacz and a representative of the
local Union . Vaida replied that he would. Haines then called Oleniacz and
told him that Vaida was ready to meet with him and to go to the plant as
quickly as possible. Oleniacz then arranged to meet with Vaida at the plant
on Wednesday evening, September 13, at which time the card check was to be
made . Present at the card check were Vaida, Oleniacz , Henry Wiggins, an
employee of Taylor and Wharton Steel Company, and Oscar Suydam, i ice
president of the local Union. The records used for the card check were the
Union's authorization cards , a typewritten list of employees and pay-roll stubs
containing the signatures of employees . As Oleniacz read off the names on the
cards, Vaida would then compare the signature with that on the pay-roll stubs,
and if Vaida was satisfied he checked off the employee 's name on the pay-roll
list.
There were 57 names on the pay-roll list . This list, however, included the
name of Irving Cole , a night foreman . The Union presented 45 cards. Vaida
checked off 44 names , of these 43 names corresponded to the names on the
cards presented by Oleniacz . In addition , Suydam's name was checked off,
although his card was not available . Upon the statement of Suydam that he
had signed a card and the further fact that Vaida was aware that Suydam was
vice president of the local Union, his name was checked off the pay -roll list by
Vaida. Oleniacz had in his possession a number of additional cards which he
did not have with him the evening of September 13, although they had been
signed prior to that date. The card check established the fact that the Union
had been designated as the representative of 44 employees out of a total of 56
names appearing on the pay -roll list, which had been prepared by the Respond-
ent. During the card check among the cards presented by Oleniacz was one
for Verna Maxwell , an office employee . Vaida objected not only to her being
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included within the unit, but also to her membership in the Union. Oleniacz
then laid aside the card of Verna Maxwell and the card of Mary Baltz , another
office employee, stating to Vaida that the question of the office employees was a
matter which could be disposed of during collective bargaining negotiations!
Prior to the time that the parties started the card check a discussion arose
as to the form in which the Respondent should recognize the Union. Oleniacz
presented Vaida with a recognition agreement previously prepared by Haines,
in the Union's usual form. It provided that the Respondent agreed to recog-
nize the Union as the sole collective bargaining agent for its employees and
that the term "employee" should not include "executives, foremen and super-
intendents of the Company." Vaida objected to the use of Haines ' recognition
form and suggested the use of one which he had himself prepared prior to the
card check meeting. Vaida's statement read as follows : "This is to advise
you that in consequence of our telephone conversation I do herewith recognize
you as the sole bargaining agent for our employees in the Exact Level and Tool
Mfg. Co., Inc." When Vaida suggested the acceptance of his recognition state-
ment Oleniacz indicated.that he would have to take the matter up with Haines.
A telephone conversation then ensued in which Haines approved the statement
as prepared by Vaida. Upon the approval of the Vaida recognition statement,
he signed the letter and gave it to Oleniacz. Oleniacz, on September 17, at one
of the regular meetings of the local Union, announced that the Respondent had
recognized the Union.
On September 20, Haines, at about 10 a. m., visited the Respondent's plant
for a conference with Vaida, in accordance with arrangements previously made
by Oleniacz. Almost immediately a discussion arose between Vaida and Haines
as to whether or not the Union had agreed to submit to Vaida a proposed con-
tract prior to the conference. Vaida stated that he wanted to discuss the
contract with Haines before the bargaining committee of the local Union was
called into the conference. Haines refused to proceed without the committee.
The preliminary discussion lasted for some period of time, in which several
matters were discussed, including the issue as to what representation those
employees would have who had not joined the Union. Haines advised Vaida
that under the Act, the Union, once its majority status was established , became
the exclusive representative of all the employees. Upon Haines ' refusal to
proceed with a discussion of the terms of the proposed contract, the bargaining
committee of the local Union was called into the conference. The committee
was composed of employees Westman, Suydam, Florence Lance, Verna Maxwell,
and Loretta Heffernan. Immediately upon the appearance of the bargaining
committee a discussion arose over the presence of Verna Maxwell , an office
employee, Vaida taking the position that the Union received a letter of recog-
nition, with the "stipulation that no office employees could be included in the
Union." Haines stated in reply that "Oleniacz had no authority to accept
recognition with any such stipulation," and that furthermore, "Oleniacz did
not make any such agreement" with Vaida. Haines also took the position, as
had Oleniacz in a former conference with Vaida, that this was a subject matter
for collective bargaining negotiations. The parties not being able to arrive at
any adjustment of this matter, a telephone call was made to Oleniacz, and
although Vaida in his testimony, supported by a transcript of shorthand notes
of his part of the telephone conversation, maintained that Oleniacz verified the
B The undersigned rejects Vaida's testimony that there aas any understanding of
agreement at that time that the office employees or that Verna Maxwell was to be
excluded from the unit . The undersigned accepts the credible testimony of Oleniarz
and Haines with respect to this incident.
EXACT LEVEL & TOOL MFG. CO., INC. 1253
fact that there was such an agreement, the undersigned rejects Vaida's tes-
timony as not credible, and accepts the testimony of Oleniacz that there was
no such agreement or understanding ever made by Oleniacz 30 Haines pro-
ceeded with the reading of the contract proposal, and when the clause was
read concerning the check-off of dues, Vaida referred to the fact that he did
not know who was a member of the Union in good standing. Haines replied
that anyone who had signed an authorization card. Vaida then stated, "That's
no proof, because if it is possible to sign into the union with signing your
name on the card, with the same ink anybody can sign out, again," and "All
one has to do to make sure is to send it by registered letter" to the Union.
There was some further discussion concerning the means of resigning from the
Union, including the making of an affidavit, to be forwarded to the Union by
registered mail. Thereafter, Haines continued to read the clauses in the con-
tract, and when the clause was reached concerning job changes that might
affect the basic wage rate, a rather heated discussion ensued. Vaida empha-
sized the fact that the Respondent's employees' knowledge of skill was some-
what limited, and that they had acquired all of their knowledge at the Re-
spondent's plant. Haines indicated that the Respondent was ridiculing and
belittling its employees. After some further discussion on this clause, in the
opinion of Haines, the parties had reached the point where agreement could
not be reached, but Vaida insisted upon further discussion and Haines refused
Vaida then termed Haines' methods as dictatorial and Haines asked Vaida,
"Are you calling me a dictator:" Vaida replied that under the circumstances,
"that's what I'm calling you-a dictator." Haines then left the conference.
stating that he did not feel that any progress could be made without a Depart-
ment of Labor Conciliator. The meeting ended at about 3 p. m.
Shortly after the above conference ended, Vaida summoned Verna Maxwell
to his office. Vaida testified that sometime prior thereto he had made arrange-
ments over the telephone to go to Washington, and that he had been advised
that a rumor had spread among the employees that he was going to Wash-
ington to complain about the CIO, and because of this rumor he summoned
Maxwell. He told Maxwell that whether she belonged to a union or not, all
matters she had learned by virtue of her position as an office employee and
telephone switchboard operator were to be held in strict confidence. Vaida
then referred to the rumor about his Washington trip and implied that the
information about this trip might have come from her. Maxwell then burst
into tears and left the room. At about 8 p. m. Vaida received a telephone pro-
test from Oleniacz concerning the Maxwell incident. The telephone protest
by Oleniacz was followed by a letter written by Haines to Vaida, protesting
the treatment accorded Maxwell. On September 22, Vaida dictated a reply,
which in substance was very critical of the Union's handling of the Maxwell
incident and also pointed out that "you [Haines] are again using dictatorial
methods." On the same day Vaida summoned Westman and Suydam to his
office and read to them the Haines letter and the letter which he had dictated
in reply. Vaida then remarked, "Nov, Mr. Westman, if this is not outside
interference of about the worst sort I would like to know what it is." Vaida also
10 As heretofore indicated , the letter of recognition prepared by Vaida made no refer-
ence to exclusions , although the Haines letter of recognition did cover certain exclusions,
but not the office employees. It is apparent that Oleniacz's refusal to accept the Vaida
letter of recognition , after he had been directed by Haines to secure the Union 's regular
form letter of recognition , would indicate to the undersigned that Olenlacz would not,
without consulting Haines, have agreed with Vaida at the time of the card check on the
evening of September 13, to the exclusion of office employees , without Haines' authority.
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attacked the conduct of Haines and the Union. Vaida also stated that if the
promises that, there would be no outside interference were correct, that he
would like, to know "what this is." When Suydam told Vaida that "in the
union you must listen to the higher ups," Vaida replied, "How about the out-
side intereference, I thought there won't be any." There was some further
discussion by Vaida after which he submitted his reply to Westman and Suy-
dam for their approval, which he obtained.
On September 30, Vaida summoned Westman to his office, and after receiv-
ing Westman's promise to keep "absolutely confidential" the information,
Vaida showed Westman "as President of the CIO" a schedule for cancellation
of orders prepared by the Ordnance district and termed "secret." Vaida stated
that since this schedule would mean the loss of practically the entire produc-
tion of the plant, he was asking Westman for "suggestions." Westman had
no suggestions to make, and Vaida then continued that, "in previous years"
he had felt the firm had an obligation to keep its people employed and as-
sured of a steady income, but because of "recent happenings" however, he felt
at a loss ; he was ill and upset ; and he did not know where he stood. Vaida
inquired if the CIO was going to obtain all they could grab with a big club,
and were wages going to be stressed to a point where the Respondent would
keep persons employed only during times they were actually needed. Vaida
stated that after 14 years without a single labor controversy or question aris-
ing, he was now being exposed to reprimand and insult from "outsiders," a
circumstance which distressed him greatly. Vaida then referred to the fact
that he had done many favors for the employees, including Westman, but that
such good-will could not continue to exist without reciprocal good-will from
the employees. Under such circumstances, how, he asked Westman, could he
go out and get additional business in order to maintain steady employment.
Westman replied that he believed, "everything will turn out all right." At
the close of the interview, Vaida pointed out to Westman that he, Westman,
could offer him "no constructive advice or suggestion." On October 3, another
conversation between Vaida and Westman took place in Vaida's office. Vaida
on that occasion, after asking Westman if the "old timers" were going to be
driven out of the plant because of petty C. I. O. controversies, inquired of
Westman whether Suydam understood that his work was running out. West-
man replied that of course if there was no work, Suydam would have to go.
Vaida then asked whether Suydam understood that that was a fact.
On October 10 Vaida again spoke to Westman. The occasion of this conver-
sation was receipt by the Respondent of a letter from the New York Ordnance
District of the Army Service Forces advising the Respondent that certain in-
formation regarding cancellation of contracts theretofore regarded as confi-
dential might be disclosed to the Respondent's employees. Vaida then read
this letter to Westman. The Ordnance letter requested that Vaida make the
information available to the employees,. and if for any reason he did not care
to do so he was to report the fact to the Army Service Forces. Vaida then
asked Westman if he had had a chance to think the matter over since he talked
to him on September 30. Westman replied that he had given the matter some
thought but that he was unable to suggest a solution. Westman then asked
Vaida whether Vaida could "go out just the same and get some other work."
Vaida replied, "of course, I can, but I don't know where I am." Vaida went
on to say that he feared that an application to the War Labor Board for higher
wages would be disastrous to the Respondent because negotiations with the
C. I. O. would then start from that point ; that since no one knew how prices
would be after the war such a move would be tantamount to negotiating the
EN ACT LEVEL & TOOL, âIFG. C0, INC. 1255
Respondent out of existence. He observed that the Respondent's competitors
were already manufacturing civilian goods; that they did it on a competitive
basis and that "none of them has a union." Vaida again referred to the claim
that the Respondent was losing good men on account of the Union although
these men had been in the employ of the Respondent 10 to 14 years. Vaida
deplored the apparent ill will of his employees and his own increasing ill health
and went on to say that he thought Westman might have "doped something
out" that would give some light on how to solve the problem "so that we either
all have the egg or the omelet " Westnian's only reply was that he thought
that the matter would work out alright in the end. As Westman was leaving
the room Vaida called him back and repeated the waiving that Suydam was
soon running out of a job and inquired of Westman if Suydam understood the
situation, commenting that Westman better advise him "so that lie may know
that it has no connection with any union activity or so."
On October 16, Vaida called Westman and Suydam to his office and told
Suydam of the Ordnance District's letter which he had read to Westman on
October 10 and told both of the employees that he was about to read the letter
to all of Respondent's employees. Vaida stated that he wanted to explain it
to Westman and Suydam as the president and vice president of the Union so
that they could explain it to the employees. Vaida went on to say that neither
Suydam nor Westman could advance any reasons why he, Vaida, should go out
and look for work that if the cancellations should come in, Respondent would
have no work for a majority of the assembly room employees and would have
to lay them off. Neither Westman nor Suydam responded. Vaida then told
Suydam that his work ucas pinning out and reminded Suydam of "our agree-
ment that you will stay with us only as long as this emergency lasts." Suydam
stated to Vaida that. "I have been satisfactory to you ever since I have been
here " Vaida agreed and then went on to say that if "we didn't go out to dig
lip some work that we didn't need * * * why there just isn't any work."
.At the close of the conversation Vaida told Westman and Suydam that the
"first Navy cancellation came in by -%i ire last Saturday and the letter of con-
urination came this morning." Vaida then stated "alright let's go" and they
went upstairs where Vaida had assembled all of the employees of the plant.
Vaida opened his remarks by stating that, "I don't feel so very well today and
I am not so very strong I am somewhat worn down." Vaida, after a few
opening remarks, read the Ordnance District letter to the employees and fur-
ther stated that the first cancellation had just come in," that, "in olden times
or befoi e the war anyhow as you know I would have gone out and broken
lily neck to get some work in, or if there would have been no work available
we would have gone on and manufactured just the same to keep everybody
going," but that at present he didn't know where he stood; that this much was
certain, management and employees each needed the good will and cooperation
of the other. Vaida, in closing, reminded the employees that, "This company
cannot manufacture with my operation alone. I need your good will and co-
operation for it but you need mine equally badly. It is a team work. I cannot
operate without your good will, but you equally surely cannot without mine.
You can surely have mine and you have mine freely, but only on a reciprocal
basis, you cannot have mine by compulsion."
On October 19, Westman appeared at Vaida's office and asked If he could
"take up a few minutes" of Vaida's time. Westman, after Vaida had asked
him what was on his mind stated , "Do I understand correctly, that you would
not mind a union composed of our own workers but that you do mind an out-
side union because of the outside interference." Vaida replied , "That's cor-
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rect." Westman then asked Vaida, "You would sit own and bargain with a
union composed of our own men and this union or our own men would have
your good will while the other union, the C. I. O. I mean, you just have to
take." Vaida replied, "That's right. As a matter of fact as you know I often
voiced that opinion before the C. I. O. came in, that as far as our own men
are concerned if they want to band together and talk one for all, or a delega-
tion for all, or if they want to come in independently, the door always has
been open. Nobody kept anybody out, and nobody should have been afraid
to come in here, and many weren't." Westman then explained to Vaida that
many of the workers could not speak up for themselves because "they are just
scared." Westman. then asked Vaida if the employees "would form a union
of our own men," whether he would bargain "with them and make a contract
with them." Vaida replied, "As I said before I told you that often over and
over again that I have not the slightest opposition against a union which is
composed of our own men, talks the same language, knows the problems, and
therefore will have a common sense understanding for everything that might
come up." Vaida went on to say that of course if such an organization had a
majority he would have no choice but to "accept them and deal with them"
and that he would "do everything that is within my power to arrive at a wage
scale that is in accordance with the War Labor Board's ruling for prevailing
wage rates in this territory." Vaida further stated that if an agreement was
arrived at concerning a wage scale the rates would go into effect "from the
day in which such an agreement is reached subject to the approval of the War
Labor Board." Westman then said he had given the matter some thought and
that he could now see "the other side" and that he wanted Vaida to understand
how he felt. Suydam, Westman stated, was the "only man who cannot see
from one angle." Vaida replied, "that's a strange thing." Vaida continued
by stating he wondered what Suydam "would have said if somebody would
have come in, in his railroader brotherhood and would have waved a steel
workers contract in his face and would have said that the brotherhood of rail-
roaders should accept the steel workers formula." Vaida went on to explain
the difference between a railroad union and other types of organizations. At
this point Vaida stated, "That brings to my mind, do you think we should call
him [Suydam] in now or does he know that his work is running out within
the next * * * two days and that when he has finished those arms that he
is grinding and drilling that the only thing he knows, that we will have
completed all the arms that we need up to June 1945. It is needless to say
that we already should have laid him off a month ago * * *, but that he
would be the first employee that the Respondent ever laid off for lack of work."
Vaida continued by saying, "Now why we should go out and teach a man of
sixty-seven years of age who is a temporary employee a new trade that we do
not need, I would like to know. In other times I would have gone out or
broken my neck to get in some work that would fit a man so that we could
keep him on. But to tell you the truth I am so discouraged and I feel so ill
that I just don't feel that I can go out and do that for him." Westman re-
plied that "if there is no work there just isn't any work and that's all there
is to it." Vaida then continued, "Well anyhow, I don't know, I wish I could
get from somewhere the strength between now and the time that his work
runs out that we could do something else with him. But if we can't we just
can't and he will have to go." Vaida then referred to the fact that Suydam
some weeks before had told him that he, Suydam, had some money invested
in a water company and "I should really ask him if they are belonging to the
union and if not why he doesn't unionize them. That would be some fun
EXACT LEVEL & TOOL MFG. CO., INC. 1257
wouldn 't it? I think that he is more of a capitalist than I ever will be in my
life." Vaida closed the conversation by stating , "Alright, Mr. Westman, so
let it run at that."
On October 19, between 9 and 11 a. m. during working hours , Helen Trimmer,
a lathe operator , went to the Army Inspector 's office and there with the as-
sistance of Miss Jones, an inspector in the plant, prepared a rough draft of
certain claimed benefits which the employees might derive from an unaffiliated
union . When the draft had been completed it was given to Mary Baltz, an
office employee, who during the noon hour typed two copies of the document.
The document reads as follows :
PROBABLE BENEFITS OBTAINABLE FROM WORKER 'S LOCAL UNION
1. Recognition of the good will of Union by Company which means Com-
pany will make great effort to find work for workers so as to stave lay-off s
2. Wage rates equal to prevailing wage rates in other unions doing simi-
lar work.
3. Equal pay for men and women doing similar work.
4. Weeks vacation per year or average weeks pay at Christmas time.
5. Hours will not necessarily be cut to 40 hours per week.
6. Self government of workers making all decisions for their Union.
7. No dues necessary."
On October 19, 20, and 21, Trimmer took the document around among her fellow
employees to obtain their signatures. Trimmer testified that she spent prac-
tically all of her working time in this activity and that the activity was openh
conducted during working hours, within the plant'2 She further testified that
neither her foreman nor any other supervisor attempted to stop her, although
it was obvious that she was not at her place of work and was not engaged in
any business for the Respondent . In a small plant of this sort it is fair to
say that such activity on the part of Trimmer could not have gone unnoticed
by the supervisory force in the plant."
L' An examination of the above document and a consideration of Vaida's remarks and
discussions with employees prior to this time convinces the undersigned that while the
evidence does not disclose that Vaida prepared the document , certainly the document
clearly reflects statements that had been made by Vaida prior to its being drawn up by
Trimmer and Miss Jones.
v It can be said that Trimmer, in the minds of the employees was clearly representing
the management in her activities in forming the Independent , and the undersigned so
finds. This finding is based upon the following facts : Trimmer has been employed bN
the Respondent since August 1933; for the last three years she has worked as a lathe
operator , although at times called upon by various foremen to perform operations in all
departments ; she, in addition to her regular employment during the day, had a contract
with the Respondent for janitorial services in cleaning the plant ; her brothers Frank
and Jim Baldwin were foremen in the plant ; and her relations with Foreman Dalrymple.
hereinafter related, convinces the undersigned that she in some respects was a manage-
ment representative. In addition , the employees followed her instructions on October
24, when she directed them to attend, during working hours, a meeting for the purpose
of organizing an independent union , and in accordance with Trimmer 's instructions the
employees did not punch out their time cards, but at Trimmer 's direction punched out
after the meeting.
3s Trimmer testified that she had noticed Mary Lance organize the C. I. 0. and that
she followed the same method . This statement of Trimmer's is not in accordance with
the facts . There is no evidence in the record to indicate that the activities of the
C I. O. were upon any such scale or basis as those of Trimmer 's. In fact, Dalrymple
testified that while he noticed a number of the girls congregating in the rest room he
was not familiar with the reason for their doing so, while in the case of Trimmer,
Dalrymple was fully aware of her activities and in at least one instance , as will hereiu-
aiter appear, he assisted her in the promotion of the Independent Union.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 21, 1944, Westman went into Vaida's office and told him that lie
had contacted all of the employees who were members of the C. I. O. and
"found that almost all of them are so fed up with the C. 1. O. and its tactics
that they would be more than glad to resign from it and form an independent
union." Vaida inquired of Westman why he was discussing this matter with
hint and Westman replied, "I would like to have your advice of just what the
company's position would be " Vaida then told Westman that "As I told you
last Thursday when you asked me the same question, the company is com-
pelled by law to deal with any union which has the majority of the employees,"
and that he would have to accept the group that had the majority as the bar-
gaining agent. Westman then told Vaida that he was not very experienced in
"these things and would like you [Vaida] to give me advice of just what form
we have to use to resign from the C. I. 0." Vaida, after protesting against
giving advice, stated, "If as you say the majority of the C. I. O. members are
with you in feeling ill about the methods used by those professional organizers,
and you and a properly elected delegation will bring me with a notarized
proof-same as the C. I. O. would have to-that the signatures are genuine
and given by the employees' free will in which they resigned from the C. I. O.
and equally authenticated proof of their adherence or entrance into the new
union, whatever the name or make-up of the new union is I will have no choice
but to take that union on the chin." Vaida went on to say, that if the employ-
ees followed their plan for an independent union, they would have a fight on
their hands from the C. I. O. and that they "better be in a position" to prove
that the men are acting of their complete free will with no interference or
coercion, with no connection with me and not even knowledge by me of it. I
want to have nothing to do with it, I don't want to hear of it, and when you
are going to present me with accomplished facts, whatever these accomplished
facts are going to be, as long as they are accomplished with no coercion and
by the free will and choice of the majority I will have to take it." Westman
then told Vaida that, "Well that is alright. I understand that." Westman
went on further to say that he knew there would be a fight ; that he, Westman,
had promised the employees when they entered the C. I. O. union that as long
as, "there is no coercion on either side, and as long as there will be no outside
interference in our actions," he would continue with that organization. Vaida
then told Westman, "Do as you think." Westman in closing the discussion
said, "All right, Mr. Vaida, will see you on Monday." As Westman left Vaida's
office he met employees Mary Raunec and Loretta Ileffernan and said, "Could
I speak to you two ladies, I just carne out of Mr. Vaida's office and he said,
Mr. Vaida that if you stay in the CIO-if we had this union come in there
would be no more work for us." Westman also indicated to the girls that it
would be a "better idea" to have a "company union." "
On Monday morning, October 23, Westman went in Vaida's office where he
again requested that Vaida assist him in preparing a form of resignation
from the C. I. O. Vaida at first refused but finally drafted a form which he
gave to Westman and authorized Westman to have Mary Baltz, an office em-
14 This finding of fact is based upon the credible testimony of Raunee . Westman
testified in substance that he had such a conversation with these two employees but
denied that Vaida had made such statements to him. Whether those statements were
in fact made by Vaida is immaterial, for the reason that Westman testified that in telling
the girls that there would be a lay-off and that they should form an independent union,
he did so with the thought in mind that they would desire to comply with what the boss
would want, and Westman knew what Vaida wanted,
EXACT LEVEL & TOOL MFG CO, INC. 1259
ployee, "multigraph" the forms Vaida told Westman that he wasn' t sure that
it would be "very clever" for her to do the work, however " I am quite sure
that if you ask her she will try to do her best." Westman took the Vaida
resignation form to Baltz and asked her to multigraph 75 copies In triplicate.
R'estman testified that it was not his idea that the 75 copies be multigraphed
in triplicate and that he had not discussed the procedure with any one other
than Vaida. Baltz, because of the unusual size of the job, asked Westman if
Vaida had given permission to have the form multigraphed Westinan informed
her that Vaida had authorized the work to be done Upon instructions from
Maltz, Verna Maxtuell ran off the required copes of the resignation forms.
using paper stock that belonged to the Respondent. Westman then returned
to work and after lunch returned to the Respondent's office where he found
the resignation forms on Baltz's desk ; in addition he found two copies of the
Independent petition." Westman testified that he had not spoken to Mary
Maltz about drafting this petition and that since he found the petition there
lie assumed the proper procedure was to obtain the signatures of the employees
I luring the lunch hour and extending a short time beyond the end of the hunch
hour Westman took over the Respondent's office. Although he testified that
he had not secured permission to use the office. it is clear that the activities,
hereinafter described, could not have been conducted without the knowledge
of the Respondent. Present during most of the time was employee Mary Lance,
and for approximately one-half of the lunch hour Mary Baltz was also present
\Vestniau suuuaoned the employees to the oflice where they were asked to sign
the Petition and resignation forms in triplicate. After Westman had secured
the signatures to the Petition and resignation forms, he and Lance went to the
assembly department of the second floor of the plant, which is under the super-
vision of Foreman Dalrymple, and there spent about an hour, during working
hours, signing the iesignation forms as witnesses. Dalrymple testified that he
observed them there and that he was aware of the fact that they were not en-
gaged in any work for the Respondent, for the reason that neither of them
worked in his department. After Westman and Lance had completed witness-
ing; the signatures, the forms were taken down to Mary Baltz in the office,
N ho then signed them as the third witness. Baltz, during office hours, then
prepared an affidavit which was sworn to and notarized by her, stating: "The
following individuals appeared before me in person and signed of their own
free will the bete attached resignations from the United Steelworkers of
America, CIO Union " Baltz then sent one set of the resignations to the Pitts-
burgh Office of the C. I. O. and another set to its Regional Office at Easton,
Pennsylvania, by registered mail. The return address on the envelope was in
care of the Respondent and the return addressee was named as Alexander West-
nian Westman testified that it was not his idea that copies of the resignation
he sent to these offices nor did he authorize the use of his name as the return
;idilre'isee It is a fail- infeionce that the original procedure as discussed b}
\Ve,tnian and Vaida contemplated that three sets of resignation forms be pre-
p:u ed, inasnm h as Westman aftei speaking to Vaida, requested Baltz to have
75 copies of the resignation forms mmltigraphed in triplicate A further signifi-
cant fact is that when the return receipts were received from the post office
department at least some of them were delivered to Westman by Vaida.
iu The Petition read as follows
"we the undersigned declare bt affixing out aignatuies that we do heiehy form an
independent Union conipoled of the NNuiker, of and foi the Exact Level 8 Tooi
Mfg Co Inc."
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Late in the morning of October 23, the day that Westman secured the above
resignation forms, Suydam was discharged . He was sent by his foreman to
Vaida who told him that his work was finished and reminded him that his job
was a "duration" job. Suydam argued that the "duration " was not over, but
without success.
On October 24, Vaida and Westman had another brief conversation , and "it
was decided I [Westman ] was to ask a few of the members to come in with
me to go as a committee in presenting the resignation papers and asking for rec-
ognition ." Later that afternoon Westman returned with the Independent
Committee consisting of Mary Lance , Helen Trimmer , and himself . Westman
advised Vaida that the committee was representing a newly formed Independent
union and they desired recognition , presenting to Vaida as proof of member-
ship the list of names affixed to the Petition to signify the formation of the
Independent union . Vaida replied that he was glad they had formed such a
union but before he could grant recognition he would have to know whether
or not the majority had resigned from the C . I. O. Union . At that point West-
man handed him one set of the resignation forms, signed by the employees,
and a return receipt card as proof that they had been sent to the Union at
Easton and Pittsburgh . Vaida , without requiring any check of the signatures
on the resignation form or the Petition , or suggesting that a Board election
be conducted , stated that he thought "this should be sufficient proof of resigna-
tion and thank you for handing it to me and I will examine the same duly and
take the necessary steps in consequence thereof." As Westman stated that they
were going upstairs to proceed with the Independent 's first meeting, Vaida
asked him to wait a moment and then advised Westman to make it a point
to explain that Suydam had "not been discharged for any union activities,
that there is no connection with it, that you have been advised months and
months before, and he too, that his job is running out and that that job ran
out, and that there is no connection between union activity and his discharge."
The committee at the close of the conference with Vaida went to the assembly
department on the second floor where the other employees , during working
hours, had gathered at the request of Helen Trimmer . In addition to the
statement made to Vaida that the Independent was holding a meeting- in the
plant, permission for holding the meeting had been obtained earlier in the
day from Foreman Dalrymple . Dalrymple, in his testimony , at first denied
that he knew what the meeting was for ; he later admitted that that afternoon
before the meeting started he learned the purpose of the meeting but did noth-
ing to stop it although it was held during working hours . Dalrymple also
testified that employee Fedo, whom he knew to be against the Independent
and for the C. I. 0., told Dalrymple she wanted to stay in the department for
the Independent meeting instead of going with him to the office until quitting
time. Dalrymple then called Trimmer and explained to her that Fedo wanted
to attend the meeting . Trimmer , in the presence of Dalrymple , stated that
it would be a good idea for Fedo to attend in order to find out what the Inde-
pendent had to offer the employees . The meeting started at approximately
4:30 p. in. and lasted until 5:10 or 5:15 p. in. Respondent admits the employees
were paid for the time they spent in the meeting . Westman announced at the
meeting that the Independent had been recognized as the bargaining agent of
the Respondent 's employees . An election followed in which the following
employees were elected officers : Alexander Westman, president ; Helen Trim-
mer, vice president ; Arthur Templeton , secretary ; and Mary Lance, treasurer.
At the meeting Arthur Templeton read a mimeographed paper prepared by
ENACT LEVEL & TOOL MFG. CO., INC. 1261
Vaida on the basis of a War Labor Board release . The paper contained the
wage rates which the War Labor Board would allow in certain industries such
as the Respondent 's. Templeton admitted that he obtained the paper from
Vaida and that he returned the paper to Vaida after he had used it.
After the meeting Westman went to Vaida's office where he informed Vaida
of the officers who had been elected by the Independent . Shortly thereafter
Vaida dictated a letter to the Union repudiating the Respondent 's recognition
of the Union . In the letter Vaida advised Haines, representative of the Union,
that the Independent committee had presented him, "with 42 certified copies
of withdrawal of authority delegated to you for collective bargaining. Also
resignations from the Union ." Vaida continued , "this writer has therefore
no alternative but to accept this fact ." Vaida in the letter went on to say that
the withdrawal of authority from the Union to bargain for the employees,
"makes any further negotiations with you meaningless. Our previous letter
of -September the 13th is therefore null and void." Vaida closed the letter by
stating, "You not having the authority to represent our employees , the sched-
uled conference on Friday would be just a waste of time. We so advised all
those concerned."
On October 26, Vaida met with a bargaining committee of the Independent
composed of Westman, Helen Trimmer, Mary Lance, and Henry Hagen, Sr.
According to Westman , the meeting was for the purpose of negotiating a con-
tract. Prior to the meeting with the committee , Vaida, accompanied by West-
man, came into the office where they had a rather lengthy conversation . During
the conversation Vaida referred to the fact that Westman on August 28, at
the meeting at which Vaida addressed employees , had promised that there
would be no outside interference and if there was that he, Westman, would
resign from the Union. Vaida went on to say "Now, you lived up to this
promise of your own and that is very nice, I am sure that your constituents
cannot feel any other way about it but at this time you stood up and lived up
to your own word." During the course of the conversation, Vaida, from West-
man's remarks, concluded that the latter had doubts as to the right of the
Independent to represent the employees . Vaida pressed Westman as to the
reason for his doubts and Westman's only reply was that Vaida should wait
until the following day when he would be visited by a United States conciliator.
Though Vaida pressed Westman very strenuously , Westman persisted in his
position and when the committee arrived for negotiations, Vaida informed them
that Westman had some doubts about being able to proceed with the bargaining.
Vaida was of the opinion that some further clarification was necessary in order
to determine for certain which of the two Unions, the C. I. O. or the Inde-
pendent had the majority. Helen Trimmer told Vaida that the committee
had "come down here" as the bargaining committee of the independent union
and she then asked, "Shall we start then?" Vaida stated that he was not
sure how the situation stood and that Westman "seems to have something on
his heart besides the law that will have to be cleared up." There was quite
an exchange of remarks between Trimmer, Westman, Hagen, Sr., and Vaida and
when Westman indicated that be was in doubt whether they should proceed
and requested continuance until the following day when the Labor Conciliator
might clear up the situation, Mary Lance told Westman they wanted to know
if he was going to "stick to us as you promised you would when you took the
presidency or if you want to stick to the C. I. 0." Westman replied, "Well,
I am willing to resign ." Lance replied, "So why don 't you ." Helen Trimmer
then said to Westman "Now do you resign or don't you resign." Vaida at that
1262 DI:CItilONS OF NATIONAL LABOR RELATIONS BOARD
point Indicated that the contio%ersy was none of It;" business and closed 111^
remarks by stating, "L am compelled by law to deal with whiclieNer union has
the majority " The committee then left Vaida's office and the coimtiittee event
over to "a shed" in the parking lot where Westman explained to them about
the possible violation of a Federal law and the Wagner Act with respect to
the unauthorized use of his name as the return addresses on the registered
letter enclosing the resignation forms which had been sent to the Union
Westman testified that he explained the matter to the committee, but "I didn't
make very much headway with them." Westman further testified that the
balance of the committee, Lance, Trimmer, and Ilagen, Sr, went back to 1;-4
office, as lie understood it, to talk to Vaida. Westman also testified that in
it matter of a few days he "didn't feel" that he could go along with the little-
pendent the way thing' wwete uoikmg out "and the Independent decided to
elect a new pi esident "
On January 4 and again on January 18, 11)4.5, the Union inserted in the High
Bridge "Gazette" a full-page advertisement enumerating therein 10 points or
demands which it was making on the Respondent. One of these points included
a demand for "Improved life and accident coverage, premiums to be borne by
the employer." It should also be noted that the original agreement proposed
by the Union on September 20, included a clause relating to insurance, which
provided certain insurance features to be in force for the duration of the
agreement 10
On or about January 30, Vaida summoned each of his employees to his office
The employees in some instances were called to the office individually and in
some instances in groups of three or four. Vaida at that time advised them
that the Respondent had taken out insurance covering all of its employees
and that the Respondent was hearing the entire cost of the premiums. Prior
to this time there had been a joint insurance plan in which the employees paid
a certain percentage of the premium on the policies. Vaida, as lie called the
employees in, gave each of them a mimeographed letter addressed to all
employees. The opening paragraph stated, "Lots of foolishness has recently
been written in handbills, newspaper advertisements, and notices and so I am
addressing to you this letter to advise you of a few facts." Vaida then went
on to state that in the past the employees had paid part of the Insurance costs
but that it was to be borne entirely by the Respondent from that time on. The
letter advised the employees, "You cannot receive less, you cannot receive more,
and surely no union, C. I. O. or Independent, or any Union, can claim to obtain
more for you or less for you " However, it is clear that this last reference
applied not to the insurance which was entirely voluntary but to compensation
insurance which was required by the laws of the State of New Jersey. The
letter closed by telling the employees that the insurance plan "is one of the
many forms of cooperation that this Company always felt to give you,
because this a cooperative enterprise." 11
ie While the section does not specifically state that the Respondent was to bear the
cost of the insurance , it is clear from the testimony of Haines , the union representative,
and from a careful reading of Section 21 that such an arrangement was contemplated.
17 Valda testified that prior to this time the Respondent had a group insurance policy
which covered only about 30 percent of the Company 's employees under which the
Respondent paid 75 percent of the premiums and the employees covered paid 25 percent
EXACT LEVEL & TOOL MIFG. CO., I\C. 1263
B. Conclusions and Findings
1. The refusal to bargain
a. The appropriate unit
After the opening of the hearing the Respondent withdrew paragraph five of
its answer in which it averred that the Board had exclusive jurisdiction to
determine what unit of employees is appropriate for the purpose of collective
bargaining , and therefore it is unknown to Respondent whether or not a unit
of production and maintenance employees constitutes an appropriate unit, and
substituted therefor an admission that the unit alleged in the complaint was
appropriate in order to ensure to the employees of Respondent the full benefit
of their rights to self-organization and of collective bargaining and otherwise
to effectuate the policies of the Act. In addition , the parties stipulated that
at all times material herein that the Respondent 's production and maintenance
employees at its High Bridge plant , exclusive of office and supervisory
employees with authority to hire, promote , discharge , discipline , or otherwise
(feet changes in the status of employees, or effectively recommend such action,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act . The undersigned does so find.
b. Representation by the Union of a majority in the appropriate unit
The Union made its first demand for recognition from the Respondent in a
letter dated August 29 , 1944, which was received by the Respondent on August
30, 1944. As heretofore shown, the Union on that date clearly represented a
majority of the Respondent 's employees-a total of 47 signed designation cards
dated prior to September 1, in the above appropriate unit containing approxi-
mately 56 employees . In addition to the designation cards, the Union's majority
status was agreed to by Vaida on September 13, when he participated in a
card check after which he gave to the Union's representative a letter of recog-
nition In addition to the card check, Vaida also made personal inquiries on
Nepteniber 12, of Westman and Suydam, president and vice president, respec-
tively, of the Union as to whether they believed that a majority of the
employees would vote for the Union in a secret ballot. When advised that it
was their belief that such was the case and that a majority had designated the
Union, Vaida informed them that under the circumstances an election was
unnecessary. The Union having established the fact that it represented the
majority of the employees it thereupon became the obligation of the Respondent
to bargain with the Union. Respondent does not contend that up until the
trine the Independent came into existence on or about October 26, it refused
to bargain with the Union because it had any doubt the Union in fact repre-
sented a majority of the employees. Respondent, however, does contend that
the signatures on the cards were improperly obtained and that therefore the
Union did not in fact represent a majority of the employees at any time. In
support of its position , Respondent adduced testimony which in substance was
that employees were told at the time their signatures were solicited that their
signing of the Union card was merely evidence of their interest in learning
what the Union was about and that "an election" would be held at the first
meeting of the Union.
a
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned rejects the Respondent's contention."
The undersigned also finds that on August 30, 1944, and at all times material
herein, the Union represented a majority of the Respondent's employees in the
unit heretofore found to be appropriate.
c. The refusal to bargain
It is axiomatic that once the Union established its majority status, the
Respondent became obligated to bargain with that Union as exclusive repre-
sentative of its employees. The Respondent apparently, at least at the outset,
recognized this obligation for on September 20 Vaida met with the union
representatives and an employee bargaining committee and discussed the terms
of a proposed contract. This conference, as heretofore shown, developed into
one of personalities and ended during a discussion of Section 3 of the proposed
contract covering changes in job requirements and wage rates. However,
Respondent's obligation to bargain continued thereafter. In direct violation of
that obligation, Respondent, in August, laid the ground work for the Inde-
pendent and, as heretofore related, jn October formed, dominated, and inter-
fered with that organization. This conduct is evidence of the Respondent's
refusal to bargain collectively with a the Union and also evidence of the fact
that the recognition given to the Union on September 13 and the bargaining
conference of September 20 were not participated in by the Respondent in
28 It is unnecessary to make a detailed analysis of the evidence in regard to the Re-
spondent 's contention. Testimony is clear that the employees who signed the cards
were well aware that they were designating the Union to represent them . There is no
evidence of any intimidation or coercion by the Union or its representatives , in obtaining
the employees' signatures . The misrepresentation , assuming that the Respondent's con-
tention was correct , was of a character which the Board and the Courts have held not
to be fatal to a union's claim . N. L. R. B. v. William Tehei Bottling Company, 129 F.
(2d) 250 (C. C. A. 8), enforcing Matter of William Tehel Bottling Company and Inter-
national Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers, Local 238,
A. F. of L., 30 N. L. R. B. 440; N. L. R. B. v. Dahlstrom Metallic Door Company, 112
F. (2d) 756, 758 (C. C. A. 2) ; Matter of Karp Metal Products and Fabricated Metal,
Local 1225, United Electrical, Radio and Machine Workers of America , C. 1. 0., 42
N. L. R. B . 119. It also is to be noted that employees to whom the alleged misrepresen-
tation was made in the solicitation of their signatures attended the first union meeting
held on August 30. At this meeting an announcement was made that the Union had
obtained cards from the majority of the respondent 's employees , that the payment of
initiation fees was waived and that the employees who had signed cards were charter
members. Officers were elected and employees present participated in the proceedings
and the Local was organized . As heretofore shown , Alexander Westman was present at
the meeting on August 30 and accepted the office of president without protest. Other
employees also accepted office at the meeting without protest . Further, employees later
attended several meetings of the Union and the bargaining committee representing the
Union, on September 20, met with Vaida. Also subsequent to the union meeting on
August 30, additional cards were obtained from Respondent 's employees. Moreover, the
representation which was alleged in main to have consisted of statements that the
employees would later decide in a vote whether or not they wanted the Union was
itself not shown conclusively . See Van DeCamps Holland Dutch Bakers, Inc., 56
N. L. R. B. 694, 698.
The undersigned advised counsel for the Respondent that be would receive testimony
as to the circumstances under which the cards were signed but that be did not intend
to receive the testimony of all of the employees as to whether or not at the time they
signed the cards they intended to designate and select the Union as their representative
nor was he going to permit testimony several months subsequent to the signing, as to
what the employees intended at the time of signing the cards. Such testimony is clearly
irrelevant and immlterial particularly where , as here , a series of intervening events
participated in by aida, the president of the Respondent , occurred.
EXACT LEVEL & TOOL MFG CO., INC. 1265
good faith10 On October 24 Vaida took further steps in violation of his obliga-
tion to bargain with the Union. As shown above, on that date he sent a letter
to the Union in which he repudiated the recognition given to the Union on
September 13 and stated that he would not bargain with the Union The action
was taken after Vaida had succeeded in procuring from the employees resig-
nations from the Union and the establishment of the Independent. Another
factor which indicates Vaida's bad faith and intention not to bargain with
the Union occurred on January 30, 1945, the details of which have been hereto-
fore set forth, when he unilaterally agreed to pay the entire cost of the
employees' insurance premiums notwithstanding the fact that such a plan was
one of the demands made upon the Respondent by the Union on January 4
and January 18, 1945, and referred to in the original contract proposed by the
Union on September 20, 1944 20
The Respondent contended at the hearing that it was not obligated to bargain
with the Union because of an issue which it raised with respect to the office
employees being included within the appropriate unit. Respondent objected
to the membership in the Union of Verna Maxwell and Mary Baltz who were
employed in the office, and especially to the fact that Verna Maxwell was
included on the Union's bargaining committee However, at no time did the
Respondent refuse to bargain because of this issue ; in fact, on September 20,
the Respondent, after it had raised the issue concerning Verna Maxwell, pro-
ceeded to discuss the terms of the proposed contract with the committee and
n ith Haines, the Union's representative. Finally, when the Respondent oil
October 24 advised the Union by letter that it was revoking its recognition
of September 13, and that it would not bargain with the Union, it did not base
it-4 action on the issue as to office employees or that the Union did not have
a majority, but on the fact that the Respondent's employees had resigned from
the Union and had affiliated themselves with the Independent. In the discus-
,ion with the Respondent concerning the office employees, the Union did not
take a definite position, but, as Haines testified, it was a matter for discussion
during the negotiations, and according to him the Union was prepared to give
in on this point"
As heretofore detailed, the Respondent in the same letter to the Union based
the breaking off of its relationship with the Union oil the ground that its
employees had shifted to the Independent. Such a defense does not require
any extended discussion, for it is clear that where the Respondent's conduct
has brought about the loss of the Union's majority status it is not available
11 The domination and interference with the administration of the Independent is
lieieinafter detailed. Such conduct constitutes a refusal to bargain in isolation of
Section 8 (5). N. L R. B v. Elks-Klatscher d Co, 142 F (2d) 356 (C C A 9),
enfoi cmg 40 N. L R. B 1037.
20 This type of unilateral action is under the Board's decisions a violation of Section
8 (5). See Newton Chevrolet, Inc, 37 N. L. R. B 334; Schmidt Baking Co., 27 N. L
It B. 864.
21 Respondent by organizing the Independent and by categorically refusing to baigain
with the Union foreclosed any further discussion on the matter. See Medo Photo Supply
Go, p v. N L R. B, 321 U. S. 678; N. L. R. B. v. National Motor Beai tug Co , 105
F ('d) 652, 660 (C. C. A. 9).
686572-46-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a defense to the charge that there had been an unfair labor practice com-
mitted under Section 8 (5) of the Act'
Since the Union represented a majority of employees on August 30, 1944, the
date of the receipt by the Respondent of the request for recognition, it was
under a duty to bargain with it, but instead the Respondent engaged throughout
in a course of strategy deliberately designed to eliminate the Union. The Act
required the Respondent to maintain the strictest neutrality. It instead in-
truded both before and after the request of the Union for recognition, as an
active protagonist to prevent collective bargaining with the representatives of
the employees. The undersigned is convinced that at no point can it be said,
upon the record herein, that the Respondent entertained seriously any thought
of entering into collective bargaining relations with the Union. Rejection by
the Respondent of the principle and procedure of collective bargaining could
not have been more complete than here.
Under all the circumstances presented herein and upon the record in its
entirety, the undersigned finds that the Respondent on August 30, 1944, and
thereafter, refused to recognize and bargain collectively with the Union, and
on September 13, 1944, recognized the Union as the exclusive representative of
the employees in an appropriate unit, but that it, on that date and thereafter,
refused to bargain collectively with the Union within the meaning of the Act ;
thereby it interfered with, restrained, and coerced the employees in the exercise
of the rights guaranteed in Section 7 of the Act. In addition and independently
thereof, the undersigned finds that the Respondent was responsible for the
loss of majority status of the Union, and by the conduct and activities of
Theodore Vaida and Francis Dalrymple, directed toward the destruction of
the Union, It further interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. The discrimination as to Oscar Suydam
Suydam was first employed by the Respondent on January 17 but be-
cause of his age was employed on a temporary basis, his tenure to be for
the "duration." This arrangement was consistent with the policy followed by
the Respondent in the case of a number of other employees who by reason
of their marital ties or age were not likely to remain in the employ of the
Respondent after the war. Suydam, for a short time after he was employed.
ran a lathe, then worked on a sander and a small milling machine. Generally
he was assigned to perform two specific operations, grinding and boring on
clinometer arms, at which work he continued until the date of his discharge
on October 23. During the period of Suydam's employment by the Respondent,
according to the testimony of Vaida, the Respondent accumulated quite a bank
of clinometer arms, and according to Vaida, the Respondent had on hand at
the time Suydam was discharged, a supply sufficient to fill Its needs until
:o See Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678 ; N. L. R. B. v. Bradford
Dyeing Association, 310 U. S. 318 ; also N. L. R. B. V. Century Oxford Manufacturing
Corp, 140 F. ( 2d) 541 (C. C. A. 2). In the latter decision the Court held that the
majority status of a bargaining agent must be presumed to continue for a reasonable
time after it is designated , and that employees could not revoke it within that period
on the basis that there is a need for stabilizing labor relations . The Court's position
does not rest on employer responsibility for the loss of the Union 's majority . It can be
noted , too, that the time involved in the Century Oxford decision was about the same
as elapsed from the time that the Union herein secured its majority status to the
time that Respondent 's employees resigned from the Union and went over to the Inde-
pendent.
EXACT LEVEL & TOOL MFG. CO., INC. 1267
June 1945. Suydam's work both as to quality and quantity was satisfactory
to the Respondent. Suydam's discharge, according to Vaida, was the first in
the entire history of the Respondent.
Suydam signed an authorization card on August 23, 1944, and was one of
the most active members of the Union in the plant. He at once became active
in behalf of the Union and at the first meeting of the Union on August 30 he
was elected vice president. When the card check was conducted on September
13 he was the only employee member who was present and assisted the Union's
representatives in checking the cards with Vaida. In addition, he was a
member of the Union's negotiating committee which met with the Respondent
on September 20. Thus there can be no question concerning the Respondent's
knowledge of his union membership and activities. In fact, on September 2,
as heretofore indicated, Vaida, in a discussion with Oleniacz, questioned the
advisability of Suydam's selection as vice president of the Union. Also Suydam
as outspoken in his views concerning the Union. This is evidenced by the
fact that at the meeting of the employees called by Vaida on August 28 he,
at the request of Vaida, stated his opinion as to the benefits to be derived from
an outside union and on this occasion he was the only employee to endorse
without hesitation a labor organization such as the C. I. O. It is clear that
he was one of a very few employees who refused to participate in the formation
of the Independent and on October 19, a few days before Suydam's discharge,
Vaida became aware of that fact.
Prior to the latter part of August, Vaida on no occasion discussed with
Suydam, or with any other employee, the status of his employment in the plant.
However, almost immediately, when the Union became active among the
Respondent's employees, Vaida either directly or through Westman, the details
of which have been heretofore related, reminded Suydam that his employment
was temporary and that the specific work upon which he was then engaged was
almost completed. Almost without exception these reminders either to Suydam
in person or through Westman, who was president of the Union, were usually
voiced by Vaida on occasions when the Union or its activities were under dis-
cussion. For instance, on October 28, Vaida in his speech to the employees
reminded them that a few of them, including Suydam, had been hired only
for the "duration of the emergency" ; on October 3, when Vaida questioned
Westman about the Union's responsibility for one of the Respondent's oldest
employees leaving the plant, he asked Westman whether Suydam understood
that his job was nearly over and that soon there would be no more work for
him; on October 9, when Vaida stated to Westman that negotiations with the
Union might put the Respondent out of business, he added the warning that
Suydam was soon running out of a job ; on October 16, when Vaida showed
Westman and Suydam the Ordnance letter and asked Suydam whether there
was any reason why he, Vaida, should go out and look for more work, he at
that time also asked Suydam whether he understood that his job was about to
end. Although Suydam replied that he did, it is clear from his testimony that
he assumed that other work would be given to him as had been done in the case
of the other employees hired for the "duration"; on October 19, when Westman
discussed with Vaida the latter's position with respect to an independent union
and informed Vaida that Suydam was not in favor of such an organization,
Vaida expressed regret that Suydam, would have to be laid off soon and that
this would be the Respondent's first lay-off. It was on this occasion that
Vaida remarked that in ordinary times he would have gone out and sought
other work for the plant rather than lay Suydam off, but he was now too
discouraged and ill to do that At the time that Suydam's employment was
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOAR],
terminated, Suydam told Vaida that he understood that his job was for the
"duration" and the duration was not as yet over
The Respondent asserts that Suydam Ras discharged in accordance with
the terms of his employment and an understanding had with Vaida at the
time he was employed and not because of his union membership or activities
The undersigned rejects this contention as clearly inconsistent with the facts."
Upon the entire record the undersigned is convinced and finds that Suydam
was discharged on October 23, 1944, because of his attempt to organize the
employees ; his refusal to join the Independent ; his opposition to the Indpend-
ent; his failure to assist the Independent ; and his failure to participate in
the activities of the Independent
Since Suydam was discharged because of his union activities, the normal
remedy would be to recommend his reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privi-
leges However, since it appears that on November 13, 1944. Suydam as
offered reinstatement by the Respondent, which he refused for the reason that
he had other employ ment more satisfactory to him, the undersigned will rec-
ommend that he be made whole for any loss he sustained by his unlawful
discharge on October 23, 1944, to November 13, 1944, the date of the offer of
reinstatement.
3. The Independent
From the facts set forth in Section A, hereof, it is clear that the Independent
was not a spontaneous, self-inspired idea of the employees, conceived and
executed by them, but was, instead, a creation of the Respondent. Prior to
the appearance of the Independent, Theodore Vaida laid the groundwork for
the establishment of the Independent In his speeches and his conversation."
shortly after he learned of the Union's organizational activities, he stated that,
while the employees could unionize if they desired, he objected to' "outside
interference " Westman testified that he did not recall on just what date
Vaida referred to "outside interference," but that he did so on many occasions
and that he, Westman, understood this reference to mean the Union's repre-
sentatives who were not employed in the plant. Also, on August 28, he told
the assembled employees that the continuation of the Respondent's policy of
steady employment would require "cooperation," questioned the advantages
to be obtained from the "outside" union that "knows nothing of our system,"
and provoked from Westman a promise that there would be no "outside inter-
ference" and a further promise that if there were "outside interference" West-
man would resign from the Union.
It is evident that Vaida defined the terms under which lie would permit his
employees to form a union. In addition, having secured a promise of resig-
nation from Westman in the event of outside interference, Vaida then pro-
ceeded to demonstrate that affiliation with an outside organization brought
with it "outside interference." For instance, on October 30, after he received
23 From the above it is plain that Vaida at least implied that under ordinary conditions
he would have gone out and attempted to secure other work in order to provide employ-
ment for the employees including Suydam: in addition , it should be noted that on
November 13 , 1944, the Respondent offered Suydam a job "in another department where
[he] might have experience " and stated that the original agreement "as for the duration
of your job" remained unaltered . This statement by the Respondent shortly after
Suydam s discharge further suppoits the undersigned ' s rejection of the Respondent's
contention herein In addition , the oiler to Suydam was made shortly after the Union
had written to the Rcspoaihnt protesting the discharge of Suidani,
EXACT LEVEL & TOOL Ml•'I Ctc. INC 1269
the Union 's letter requesting him to bargain , Vaida told the assembled
employees that this was "outside interference" and that "they are already
taking over."
The Respondent gave tangible form and effective weight to its objection to
"outside interference" by constant allusions to and implications of lay-offs if
the Union should become or remain bargaining agent of Respondent's
employees. For instance, on October 28, Vaida, in addressing the employees,
stated that the Respondent's policy of steady employment could be maintained
"if the present system will survive" and if the employees would rather have
higher wages, uncertain hours and lay-offs when the work was slack the
Respondent was willing to try it, on September 30, Vaida showed Westm.ui
a schedule of cancellations, the disclosure of which had been forbidden by the
New York Ordnance District, and said that this would mean a loss of prac-
tically all production work. Vaida went on to say that previously he had felt
chat the Respondent had an obligation to keep its workers employed, but that
"under present circumstances" he did not feel disposed to go out and seek
more work Vaida closed his remarks on this occasion by asking Westman for
some suggestion as to how the situation could be rectified ; on October 10, Vaida
called in Westman to discuss the Ordnance letter which was no longer confiden-
tial, and told Westman that the question was now acute as to what should be
done in the case of cancellations. He went on to ask Westman whether the
latter had had a chance to think over what they had discussed in their last
conference. When Westman asked Vaida whether he could not go out as he
had done before to get other work, Vaida replied, "Of course I can, but I don't
know where 1 am." Vaida then went on to say that in negotiating with a union
it might negotiate the Respondent out of existence; that competitors did not
have the Union, and that he did not have the good will of the employees On
October 16, Vaida again spoke to Westman, this time in the presence of Suydam,
about the possible termination of contracts. Vaida told them that a termina-
tion of the contracts would mean that a majority of the employees in the
assembly room would have to be laid off unless he could find other work, and
he asked Suydam and Westman whether they could give him any reason why
he should go out and look for other work. On the same day Vaida assembled
the employees, read the Ordnance letter to them, and then stated that "in
olden times or before the war" he would have gone out and "broken" his neck
to get some work in, or if there was no work available he would have gone
on and manufactured just the same to keep everyone going, but that at tha
present time he didn't know where he was. Vaida added further that the
management needed the good will of employees and their cooperation , just as
employees needed management's good will and cooperation, and that he could
always make a living in one way or another In closing his remarks on this
occasion Vaida told the employees that while they could have his good will
freely, they could have it only on a reciprocal basis.
It is clear from the above and the record in its entirety that in view of the
well-known attitude of Vaida with respect to "outside interference" and his
repeatedly expressed fears as to the employees' economic future if the Union
remained in the picture, the employees would have a ready ear for "a way out "
It is also clear that Helen Trimmer, who from the first opposed the Union,
should take steps to find the way ; that Westman, the main target of Vaida's
speeches and conversations, should "go along." Furthermore, from Vaida's
speeches and conversations with the employees, the undersigned is convinced
that lie therein interrogated them for the purpose of ascertaining their opinions
with respect to the Union.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The activities of Trimmer and Westman during the period following October
19 and the readiness with which employees resigned from the Union and sub-
scribed to the Independent make it abundantly clear that they recognized that
a union of their own would stand a much better chance of acceptance than
would the Union . For instance , Westman on the afternoon of October 19 by
direct inquiries of Vaida verified that this was so . The contrast between the
open character of Westman 's and Trimmer 's activities and the surreptitious
activities of the Union 's adherents in August indicates that the Respondent
acquiesced in the former and not in the latter , and the undersigned so finds.
The undersigned is further convinced of this fact , for it Is clear that Foreman
Dalrymple took immediate steps to restrain the activities of the Union in
August but did nothing to curb Trimmer and Westman In October ; in fact, as
shown above, he actively cooperated with Trimmer . Furthermore, the activities
of the Independent, although Vaida testified that it was a common occurrence
to call employees in to meetings , did not call forth any speeches from Vaida
such as he made when the Union first began to organize.
The facts herein support the conclusion that the Respondent is responsible
for the formation of the Independent . A clear Indication of this is shown by
the Respondent 's failure and the foremen 's failure to check Trimmer 's exten-
sive operations on Respondent 's time and property ; by Vaida 's personal contri-
bution of a form for resigning from the Union and other advice as to precedures
to follow ; by the sanctioned use of Mary Blatz 's and Verna Maxwell's time
and the Respondent's consent in the use of materials for reproducing the resig-
nation forms ; by the unconcealed use of the front office both before and during
working hours to effect a change in labor organizations ; by the granting of
recognition to the Independent at its request without the formality of a cross-
check ; by the granting by Foreman Dalrymple and by Vaida of permission
to use the assembly room on Respondent 's time for an Independent meeting;
by the failure on the part of management to stop the meeting ; and by the
failure to deduct wages for time spent in the meeting and by the attempted
negotiations between the Respondent and the Independent ; make It clear that
the Independent was inspired , fostered , contributed to, maintained , and at all
times dominated by the Respondent within the meaning of Section 8 (2) of
the Act.
In view of all the foregoing facts and the record in its entirety , the under-
signed finds that the Respondent dominated and interfered with the formation
and administration of the Independent and contributed support to It, thereby
interfering with, restraining , and coercing its employees In the exercise of the
rights guaranteed in Section 7 of the Act.
4. Interfere ice, restraint , and coercion
The Board alleged in its complaint that the Respondent by its conduct and
statements violated the Act in still other respects ; that it on or about August
26 and 28, September 30 and October 9, 1944 , threatened the employees with
dire economic consequences if the Union became or remained the bargaining
agent of Respondent 's employees ; on or about August 25 and 28, 1944, it ques-
tioned the employees as to the advantages to be derived from an outside union ;
on or about August 26, 1944, it advised the employees of the assembly depart-
ment that it was opposed to the CIO ; and on or about August 28, 1944, and
on or about September 30, 1944, it disparaged and criticized the Union to the
employees . The facts set forth in A, above, establish (1) that Vaida on
EXACT LEVEL & TOOL MFG. CO., INC. 1271
August 28 and 30, September 30, October 9, and October 16 threatened Respond-
ent's employees with dire economic consequences if the Union became or
remained the bargaining agent of the employees; (2) that Vaida on August 28,
1944, and thereafter questioned the Respondent's employees concerning the
advantages to be derived from an outside union; (3) that Foreman Dalrymple
on August 26, 1944, told a group of employees under his supervision that his
brother had joined the CIO and that it was not benefiting him, and that he
on this occasion cautioned the employees to consider "well any move they made"
for the reason that it would affect their employment with the Respondent; (4)
that Vaida on August 28 and again on August 30 in his talk to the employees
disparaged and criticized the Union; and (5) that on October 24, 1944. Foreman
Dalrymple arranged to have Fedo, a union adherent, attend the Independent
meeting held in the plant that afternoon during working hours.
The foregoing review of the evidence convinces the undersigned, and the
undersigned so finds, that Respondent, through the activities and statements
of President Vaida and Foreman Dalrymple, interfered with, restrained, and
coerced the employees in the exercise of the rights under 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 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
Since the undersigned has found that the Respondent has engaged In unfair
labor practices, he will recommend that the Respondent cease and desist there-
from and take certain affirmative action which the undersigned finds necessary
to effectuate the policies of the Act.
The undersigned has found that on August 30, and September 9, 1944, the
Respondent refused to recognize and bargain collectively with the Union ; and
on September 13, 1944, recognized the Union as the exclusive bargaining rep-
resentative for its employees in an appropriate unit, but that it, on that date
and thereafter, refused to bargain collectively with the Union within the mean-
ing of the Act. Further, the undersigned has found that any loss of majority
status of the Union, after September 13, 1944, is attributable to the unfair
labor practices of the Respondent. In order to correct the situation and to
effectuate the policies of the Act by restoration insofar as may be possible of
the status quo existing prior to the Respondent 's unfair labor practices, the
undersigned will recommend that, upon request, the Respondent bargain collec-
tively with the Union as exclusive representative of all the employees in the
appropriate unit in respect to rates of pay, wages, hours, and other terms and
conditions of employment.
The undersigned has further found that Respondent dominated and inter-
fered with the formation and administration of the Independent and con-
tributed support to It. In the circumstances of this case, the undersigned finds
the Independent is incapable of serving as a true collective bargaining repre-
sentative of the employees. The continued recognition of the Independent by
the Respondent will continue as an obstacle to the exercise by the employees
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the rights guaranteed in the Act. Accordingly, the undersigned will recom-
mend that the Respondent disestablish and withdraw all recognition from the
Independent as the representative of any of the employees for the purposes
of collective bargaining.
The undersigned has also found that the Respondent has discriminatorily
discharged Oscar Suydam, thereby causing him losses in earnings. The under-
signed will recommend that the Respondent make him whole for the losses in
earnings so suffered by him, by payment to him of a sum of money equal to
the amount he would normally have earned as wages during said period in
which it deprived him of regular employment, less his net earnings 24 during
this period.
Upon the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAw
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, and the Independent Union of the Workers of the Exact Level &
Tool Mfg. Co., unaffiliated, are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By refusing to bargain collectively with the Union as exclusive representa-
tive of all the employees in the appropriate unit, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (5) of the Act.
3. By dominating and interfering with the formation and administration of
the Independent and contributing support to that organization, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of
Oscar Suydam, thereby discouraging membership in the Union, the Respondent
has engaged in and is engaging in an unfair labor practice within the meaning
of Section 8 (3) of the Act.
5. 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 1
of the Act.
6. The foregoing unfair labor practices are unfair labor practices affectin,;
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the Respondent, Exact Level & Tool Mfg. Co.,
Inc., High Bridge, New Jersey, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
24 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere than for the Respondent, which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere
See Matter of Crossett Lumber Company, etc, 8 N. L R. B. 440. Monies received for
work performed upon Federal, State, county, municipal, or other work-relief project,
shall be considered as earnings . See Republic Steel Corporation v. N. L R B, 311
U. S. 7.
EXACT LEVEL & TOOL MFG. CO , INC. 1273
(a) Refusing to bargain collectively with the United Steelworkers of Amer-
ica as the exclusive representative of all the employees engaged in the produc-
tion and maintenance department of its plant, excluding office employees and
suprvisors;
(b) Dominating or interfering with the formation and administration of,
or contributing support to, the Independent Union of the Workers of the Exact
Level & Tool Mfg Co. or any other labor organization of its employees;
(c) Discouraging membership in United Steelworkers of America or in any
other labor organization of its employees by discriminating in regard to the
hire, tenure, or any term or condition of employment of any of its employees
(d) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the rights to self-organization, to form labor
organizations or to join or assist United Steelworkers of America, affiliated
with the Congress of Industrial Organizations, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or other
mutual aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
offectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers of America
as the exclusive representative of all the employees engaged in production
and maintenance work at the plant, excluding office employees and supervisors,
in respect to rates of pay, wages, hours of employment, and other conditions
of employment ;
(b) Withdraw all recognition from and completely disestablish the Inde-
pendent Union of the Workers of the Exact Level & Tool Mfg. Co., as the
representative of any of its employees for the purposes of dealing with the
Respondent concerning grievances, labor disputes, wages, rates of pay, hours
of employment. or other conditions of employment;
(c) Make whole Oscar Suydam for any losses in earnings he may have
suffered by reason of Respondent's discriminatory discharge on October 23,
1944, to November 13, 1944, the elate of Respondent's offer of reemployment, by
payment to him of a sum of money equal to that which he would normally
have earned as wages during that period, less his net earnings, if any, during
that period ;
(d) Post at its plant at High Bridge, New Jersey, copies of the notice at-
tached to the Intermediate Report herein. marked "Appendix A." Copies of said
notice, to be furnished by the Regional Director of the Fourth Region, shall,
after being duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered , defaced,
or covered by any other material;
(e) Notify the Regional Director for the Fourth Region, in writing , within
(10) days from the date of the receipt of this Intermediate Report what steps
the Respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report Respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondent to take the
action aforesaid.
As provided in Section 33, of Article II, of the Rules and Regulations of the
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board, Series 3, as amended , effective July 12, 1944,
any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board pursuant to
Section 32, of Article II, of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions and objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from the
date of the order transferring the case to the Board.
JAMES C. BATTEN,
Trial Examiner.
Dated July 7, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES PURSUANT TO THE RECOMMENDATIONS OF A
TRIAL EXAMINER
of the National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that :
We hereby disestablish Independent Union of the Workers of the Exact
Level & Tool Mfg. Co., unaffiliated, as the representative of any of our
employees for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions of
employment, and we will not recognize it or any successor thereto for any
of the above purposes.
We will not dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it.
We will make whole the employee named below for any loss of pay suffered
as a result of the discrimination.
Oscar Suydam
We will bargain collectively upon request with the United Steelworkers
of America as the exclusive representative of all employees In the bargain-
ing unit described herein with respect to rates of pay, hours of employment
or other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement . The bargaining unit
is- The Company's production and maintenance employees of its High
Bridge plant, exclusive of office employees and supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees or effectively recommend such action.
We will not In any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization , to form labor organizations,
to join or assist United Steelworkers of America, the recognized representative,
or any other labor organization, to bargain 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 . All our employees are
EXACT LEVEL & TOOL MFG. CO., INC. 1275
free to become or remain members of this union, or any other labor organiza-
tion. We will not discriminate in regard to hire or tenure of employment
because of membership in or activity on behalf of any such labor organization.
EXACT LEVEL & TOOL MFG. CO., INC.,
Employer.
Dated ...................... By............................................
(Representative ) (Title)
NoTE : Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.