McHale Manufacturing Co.

National Labor Relations Board - Board Decisions

May 9, 1946

67 N.L.R.B. 1266 (N.L.R.B. 1946)

In the Matter of THOMAS D. MORALE AND HORACE J. WALKER, DOING
BUSINESS AS MCHALE MANUFACTURING COMPANY and UNITED
BROTHERHOOD OF WELDERS, CUTTERS AND HELPERS OF AMERICA,
INDEPENDENT and DAIRY MANUFACTURERS EMPLOYEES ' ASSOCIATION,
INC.
Case No. 21-C-2600.-Decided May 9, 1946
DECISION
AND
ORDER
On March 18, 1946, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
in violation of Section 8 (2) and (1) of the Act and that they had not
engaged in unfair labor practices in violation of Section 8 (3) of
the Act by the discharge of Louis A. Blackburn, and recommending
that they cease and desist from the unfair labor practices found and
take certain affirmative action and that the complaint be dismissed
insofar as it alleged a violation of the Act with respect to the discharge
of Louis A. Blackburn, as set forth in the copy of the Intermediate
Report attached hereto.
No exceptions to the Intermediate Report, briefs, or requests for
oral argument before the Board at Washington, D. C., were thereafter
filed with the Board.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The, Board has considered the Inter-
mediate Report and the entire record in the case. As noted above,
no exceptions have been filed to the Intermediate Report. The Board,
accordingly, hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
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 respondents, Thomas D. McHale and
Horace J. Walker, doing business as McHale Manufacturing Com-
67 N. L. R. B, No. 166
1266
McHALE MANUFACTURING COMPANY 1267
pany, Los Angeles, California, and their officers, agents, successors,
and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing support to, Dairy Manufacturers Employees' Association,
Inc., and dominating or interfering with the formation or adminis-
tration of, or contributing support to, any other labor organization
of their employees;
(b) Recognizing Dairy Manufacturers Employees' Association,
Inc., or any successor thereto, as the representative of any of their
employees for the purpose of dealing with the respondents concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment;
(c) Performing or giving effect to the contract of September 4,
1945, with Dairy Manufacturers Employees' Association, Inc., or to
any amendment, extension, or renewal thereof, or to any other con-
tract, agreement or understanding entered into with said organization
relating to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist United Brotherhood of
Welders, Cutters and Helpers of America, Independent, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose 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
Dairy Manufacturers Employees' Associaton, Inc., as the represent-
ative of any of the respondents' employees for the purpose of dealing
with the respondents concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or other conditions of employment;
(b) Post at their plant at Los Angeles, California, copies of the
notice attached to the Intermediate Report, marked "Appendix A." 1
Copies of said notice, to be furnished by the Regional Director for
the Twenty-first Region, shall, after being duly signed by the respond-
ents' representative, be posted by the respondents immediately upon
receipt thereof, and maintained by them for sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
I 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 substituting in lieu thereof the words "A Decision and Order "
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondents to insure that said notices are not altered,
defaced, or covered by any other material;
(c) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondents discriminatorily discharged Louis A. Blackburn
within the meaning of Section 8 (3) of the Act, be, and it hereby is,
dismissed. -
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. William T. Whitsett, for the Board.
Mr. Cecil W Collins, of Los Angeles, Calif., for the respondents.
Mr. George D. Felzien, of Los Angeles, Calif., for the Brotherhood.
Mr. Ernest W. Pitney, of Los Angeles, Calif., for the Association.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Brotherhood of Welders, Cutters
and Helpers of America, Independent, herein called the Brotherhood, the National
Labor Relations Board, herein called the Board, by its Regional Director for
the Twenty-first Region (Los Angeles, California), issued its complaint dated
December 4, 1945, against Thomas D. McHale and Horace J. Walker, doing
business as McHale Manufacturing Company, Los Angeles, California, herein
called the respondents, alleging that the respondents had engaged in and were
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint,
accompanied by notice of hearing, were duly served upon the respondents, the
Brotherhood, and Dairy Manufacturers Employees' Association, Inc., herein called
the Association.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondents : (1) on or about August 24, 1945, inaugurated, sponsored,
and formed the Association and from that date to the date of the issuance of
the complaint have dominated and interfered with the formation and adminis-
tration of the Association, contributed support thereto, and have coerced, in-
fluenced, and persuaded their employees to accept the Association as their rep-
resentative for the purpose of collective bargaining with the respondents with
respect to wages, rates of pay, hours of employment, and other conditions of
employment; (2) on or about August 23, 1945, discriminatorily discharged Louis
Blackburn because of his activities in behalf of the Brotherhood; and (3) by the
foregoing conduct interfered with, restrained, and coerced their employees in
the exercise of the rights guaranteed in Section 7 of the Act and engaged in
unfair labor practices within the meaning of Section 8 (1), (2), and (3) of
the Act.
McHALE MANUFACTURING COMPANY 1269
On January 3, 1946, the respondents filed their answer, admitting that they
were engaged in commerce within the meaning of the Act, but denying that they
had committed any of the unfair labor practices alleged.
Pursuant to notice , a hearing was held at Los Angeles , California , from Janu-
ary 3 to 5, 1946, inclusive , before William E . Spencer, the undersigned Trial
Examiner duly designated by the Chief Trial Examiner. The Board , the respond-
ents, and the Association were represented by counsel and the Brotherhood by an
official representative . Full opportunity to be heard, to examine and cross-exam-
ine witnesses , and to introduce evidence bearing on the issues was afforded all
parties.
Following'the introduction of all evidence , the undersigned granted a motion
by counsel for the Board to conform the pleadings to the proof as to dates and
minor variances . Upon the conclusion of the hearing, the undersigned advised
the parties that they might orally argue before , and file briefs with, the Trial
Examiner . The Board , the respondents , and the Association participated in oral
argument . No briefs were filed.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
McHale Manufacturing Company, a partnership composed of Thomas D.
McHale and Horace J. Walker, is engaged in the manufacture and sale of dairy
and creamery equipment at Los Angeles, California. During the year 1945, the
respondents purchased raw materials, consisting of stainless steel sheets, shapes,
and tubes and galvanized iron sheets and shapes, valued at approximately $80,000,
of which 50 percent was shipped to it from points outside the State of California.
During the same period, the respondents manufactured finished products valued
at approximately $306,000, of which $50,000 worth was sold and shipped to pur-
chasers outside the State of California. The respondents concede that they are
subject to the Board's jurisdiction.
II. THE ORGANIZATIONS INVOLVED
United Brotherhood of Welders, Cutters and Helpers of America, Independent,
and Dairy Manufacturers Employees' Association, Inc., are unaffiliated labor
organizations, admitting to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES 1
A. Domination and interference with the formation and administration of the
Association ; interference , restraint , and coercion
1. Sequence of events
a. Advent of the Brotherhood
Although from time to time the respondents' employees had exhibited interest
in self-organization, the first concrete steps toward organization occurred in
July 1945, when employee Louis A Blackburn consulted George D Felzien, busi-
ness representative of the Brbtherhood and long a friend of Blackburn, about
1Unless otherwise indicated, the findings in this section are based upon undisputed
evidence.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the matter and arranged for Felzien to meet with Blackburn and employee Ben
Bolt on the evening of July 17, 1945, at the latter's home. After discussing the
possibility of the Brotherhood's organizing the respondents' employees, it was
decided that Felzien should further that aim by talking with other employees.
Shortly after this conference, Felzien gave supplies of the Brotherhood's authori-
zation cards to employees Blackburn and Cecil P. Cole and Foreman Fred
Koering = to distribute among their co-workers. Blackburn and Koering, in turn
remitted the signed authorization cards to Felzien. On July 23, 1945 , at the close
of the work day, Felzien spoke with several employees at the plant gate and
informed them that a meeting would be held at the Brotherhood's hall on Au-
gust 8. This meeting was attended by nine of the respondents' employees, of
whom seven joined the Brotherhood at that time.
On or about August 6, 1945, Horace J. Walker, co-owner of the respondents,
first learned of the Brotherhood's organizational campaign in the plant and called
a meeting of the foremen and leadmen who were instructed by Walker to main-
tain a neutral attitude and to take no part in the union activities of the em-
ployees.
On the same afternoon , the respondents posted the following notice in the plant :
NOTICE ! ! AUGUST 6, 1945.
It has come to our attention that some of the Foremen in the Shop have
been discussing the "pros and cons" of labor unions. These Foremen have
been entirely innocent of the regulations of the Wagner Act, which strictly
forbid such activity, and, we of the Management, have been completely
ignorant of their actions.
This notice is to inform all shop employees that, we as Management, and
our Supervisors and Foremen as our representatives, take no stand whatso-
ever either for or against the employees organizing.
This notice is also to make clear that any statements and acts of our
supervisory employees to-date are neither authorized, nor ratified by us,
and we have taken the necessary steps to discipline and warn the offenders.'
(Italics supplied )
Under the terms of the Wagner Act, it is necessary that our Supervisors
and Foreman (sic) refrain from attending any union meetings, or partici-
pating in any way in the formation of an employees' union. They are also
restrained from voting and expressing opinions in any manner.
Please do not embarrass them by asking them questions.
2 According to the credible testimony of co -owner Horace J. Walker, Koering had full
authority over six or seven employees in the grinding section "with respect to pay raises,
recommending for hiring or discharging," although Koering worked along with his sub-
ordinates most of the time. The undersigned finds that Koering occupied a supervisory
status within the Board's customary definition of that term Felzien, the Brotherhood's
business agent, testified that he told Doering that foremen "were eligible to join the or-
ganization but that they were not to take any active part in union matters within the
plant " He further testibed that foremen were not included in the bargaining unit
alleged to he appropriate in the petition for investigation and certification of representa-
tives subsequently filed by the Brotherhood with the Board The Brotherhood's Constitu-
tion and General Regulations provides that the following paragraph should be entered in all
woi king agreements .
Any work designed for welded construction, shall be done under the supervision of a
member of our craft-be it plate, pipe, structural shapes or of any form whatsoever
and of any metal, either ferrous, or non-ferrous, where 40 percent or more of man
hours allotted to the fabrication and erection of said work shall be allotted to welding.
It does not appear that any disciplinary action was actually taken.
McHALE MANUFACTURING COMPANY
The Supervisors subject to these conditions are as follows:
Ray Denney Al. Peters
Ralph Straub Clarence Fisher
Jack McClintock Ben Behn
Andy Watz Ebel, Pinion 4
Fred Koering
1271
McH ALE MANUFACTURING Co.
Taos. D. McHALE (s)
H. J. WALKER (S)
Prior to the publication of this notice, Koering, acting in behalf of himself,
Ben Bolt, Ralph Straub, and Blackburn, had attempted to get an appointment
with Walker and McHale for the purpose of discussing "the union and representa-
tion for the employees." Blackburn testified that Koering reported that McHale
and Walker had agreed to call them in at a later date. Blackburn further
testified, "it was shortly after that time there was a notice posted on the bulletin
board that all foremen or leadmen should have no contact with the union or
no contact with the union through the office or at work, and we never had any
audience other than what Fred [Koering] had with either of the owners, to
my knowledge."'
On the evening of August 20, 1945, Felzien again met with employees outside
the plant as they left work in order to set a time and place for a more formal
meeting near the plant. On August 22. 1945, at 5: 00 p. m such a meeting was
held at a cafe under the auspices of the Brotherhood and was attended by ap-
proximately 40 employees, including several foremen and leadmen. Approxi-
mately 18 employees signed authorization cards at this meeting.
On August 27, 1945, Felzien telephoned Thomas 1) McHale, co-owner of the
respondents, informed him that the Brotherhood represented a majority of
the respondents' employees, requested recognition as the exclusive bargaining
representative of the respondents' employees, and asked that McHale grant him
an appointment so that they might more fully discuss the matter and the negotia-
4 Walker testified that the list comprised all employees classified on the respondents' pay-
rolls as foremen and leadmen , but that not all possessed supervisory duties and were
included on the list purely as a precautionary measure. All were hourly paid. The duties
of these employees, as described by Walker at the hearing, will be discussed seriatim
(1) Denney, who left the respondents' employ about August 17, and McClintock were
admittedly supervisors, spending more than 80 percent of their time in duties of a
supervisory nature (2) Andy Watz was a sub-foreman until Denney's employment was
terminated on August 17, and thereafter Watz was admittedly the supervisor of the ma-
chine shop and aircraft department (3) Straub possessed authority to hire and discharge
and recommend wage increases for suboidinate employees, although lie spent about 70
percent of his time in production work (4) Koering, as found in footnote 2 above, was
supervisor of the grinders. (5) Behn, in August, assumed Koering's position when the
latter was transferred to the storage tank assembly department (6) Peters was a lead-
man of repair and installation crews, ishich consisted of two or three helpers, and pos-
sessed no authority to hire or discharge or recommend wage increases (7) In August
1945, Fisher was "straw boss" in charge of a group of employees constructing storage
tanks and had no authority to hire or discharge or recommend wage increases. On the
basis of the foregoing, the undersigned finds that Denney, McClintock, Watz, Straub,
Koering, and Behn were supervisory employees whose activities were attributable to the
respondents but that Peters, Fisher, and Pinnon were not supervisory employees for whose
activities the iespondents might be held responsible
5 Walker was unable to name the person or peisons from whom he learned of organiza-
tional activity in the plant In view of Koering s request for an appointment, it is a
reasonable inference that this was at least one source of his information on the subject,
and since Koering was a foreman it is clear that the August 6 notice was predicated in
part, at least, upon information that he was engaging in the Brotherhood's organizational
campaign.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of a contract. McHale refused to grant an appointment, stating that he
did not feel that he had anything to discuss with Felzien.' On that same day,
following Felzien's conversation with McHale, the Brotherhood filed with the
Board a petition for investigation and certification of representatives.
b. Formation of the Association
On August 22, 1945, immediately following the close of the Brotherhood's
meeting, Foreman Ralph Straub and employees Raymond E. Vannaman, Al.
Peters, and LeRoy Harvey met in front of the respondents' plant, where their
automobiles were parked, and after discussion, decided to organize an inde-
pendent union whose membership should be confined to the respondents' em-
ployees. At Vannaman's suggestion, it was determined to retain legal counsel
at once. The group entered the plant and telephoned Earnest W. Pitney, an
attorney, who joined them about an hour and a half later. In the meantime,
the group gathered in a room or office in the respondents' plant and drew up
an outline of the provisions of a proposed contract and also of the purposes of
the nascent organization. Soon after Pitney's arrival, the group left the plant
and went to a neighboring restaurant for further discussion. Pitney agreed
to prepare a charter for the organization and a proposed contract to be submitted
to the respondents. The contract as originally drawn proposed the payment of
a substantial sum of money by the respondents to the Association. This pro-
vision was deleted when the respondents' counsel advised the Association's
committee that such a requirement was "improper."
On August 23, Vannaman and Harvey talked with numerous employees, telling
them of the steps taken in the organization of the Association, asking for sug-
gestions , and compiling a list of suggestions and a list of employees with whom
they conferred. According to Vannaman, such activities were confined to his
and Harvey's non-working hours. After work that day, Vannaman obtained a
proposed contract and a charter for the Association,' drafted by Pitney.
On the morning of August 24, Vannaman brought both documents to work and
on that and the following day obtained the signatures of 52 employees to the
Association's charter.' All but 3 of these employees signed the charter at the
respondents' plant, for the most part in the fitting room. The charter was signed
by Foremen Ralph H. Straub and Andy Watz, as well as Head Clerk William
Watz,' all of whom were clearly identified with management.
$ This finding is based on Felzien's testimony and a memorandum which he made of the
conversation which stated : "Contacted Mr. McHale by telephone for an appointment to
meet with him for the purpose of entering into discussion of collective bargaining agree-
ment for his employees . Appointment refused " McHale admitted that the conversa-
tion occurred and that Felzien asked for an appointment . He further testified , however,
that while refusing to grant an appointment at the time , he advised Felzien that he would
"have to look into this matter" and that it would take him a "couple of days to do it."
According to McHale , Felzien replied , "Well, a couple of days will be all right ," or "I will
see you in a couple of days " The undersigned is unable to credit this testimony. Fel-
zien's action in filing a petition for investigation and certification of representatives with
the Board immediately after his conversion with McHale , is consistent with his testimony
that McHale definitely refused to recognize the Brotherhood or to meet with him for the
purpose of discussing an agreement.
7 The charter was entitled , "Articles of Association of McHale Employees ' Association"
and stated that the signers "all being employees of McHale Manufacturing Company, do
hereby voluntarily associate themselves together for the purpose of forming an employees'
association and social club . . .
8 At that time, the respondents employed about 71 employees.
William Watz handled incoming orders from purchasers and although he had no
subordinate employees under his supervision , it is clear from the testimony of Walker and
MCHALE MANUFACTURING COMPANY 1273
Vannaman testified that his activities in regard to securing the signatures
were carried on during his non-working hours in the plant. However, Cecil P.
Cole, employed in the shipping department and working directly adjacent to the
fitting room, testified that on August 24 and 25, he observed several groups of
employees enter the fitting room during working hours to confer with Vannaman
and that later, also during working hours, Vannaman showed him the charter
and proposed contract and asked him to join the Association. Employee Susano
Cota testified that he observed, during working hours on the morning of August
24, Vannaman approach a group of employees who left with Vannaman and re-
turned in 20 or 30 minutes. One of these employees, according to Cota, told him
that the group had met in the fitting room with Vannaman and Foreman Straub
and that an independent organization was being formed "to buck the Brother-
hood." Cota and employee Ben Bolt further testified that at the beginning of
the shift on August 25 they and Foreman Fred Koering conferred with Vannaman
in the fitting room respecting the Association for about an hour during working
hours and were asked to sign its charter and that Co-owner McHale was present
with a customer in the fitting room during nearly all the conferences.10 They
further testified that they did not punch the time clock for the period consumed
by the meeting, but upon its conclusion merely punched the clock to start a desig-
nated job, and wrote "shop" on the time card to indicate the time spent in the
meeting, instead of following the usual practice of designating the labor opera-
tion, job number, and job name. Cota's time card for August 25 supports his
testimony.' Vannaman stated at the hearing that as near as he could recall the
conference with Cota, Bolt, and Koering occurred during the rest period between
10: 10 and 10: 20 a. in. on August 25. In view of the mutual corroboration in
the testimony of Cota and Bolt, the fact that documentary evidence supports
such testimony, and also the extensive nature of Vannaman's activities expended
in behalf of the Association on August 24 and 25, as well as the undersigned's
observation of the witness, the undersigned cannot credit Vannaman's denial of
engaging in solicitation of Association memberships during working hours but
credits the testimony of Cota, Bolt. and Cole, to the effect that Vannaman actively
and openly campaigned for the Association on the respondents' property during
working hours.
Sometime during the early formative period of the Association, the following
officers were selected by an informal means not revealed by the record: " Vanna-
employees Cecil P. Cole that Watz interviewed applicants for jobs and made recommenda-
tions to Walker with respect to their eventual employment by the respondents. In addi-
tion, Walker admitted that he considered Watz to be a management representative and
explained that Watz' name was omitted from the August 6 notice because Walker had not
considered the possibility of union activities extending to office employees. The undersigned
finds that Watz was a management representative and that his activities are attributable
to the respondents.
10 McHale testified that he did not recall seeing Cota in the fitting room on the date in
question and that it would not be unusual for a group of employees to be in the room dis-
cussing work problems . The fitting room measured 14 by 17 feet , with allowance for
protruding shelves and bench In view of the extensive and open nature of Vannaman's
activities in soliciting signatures to the charter, the smallness of the fitting room, and the
activity of foremen in behalf of the Association, the undersigned does not credit McHale's
testimony in regard to his knowledge of Association activity but finds that the respondents
had actual, as well as constructive, knowledge of the Association's organizational efforts
during working hours on the respondents' premises
n Cota's time card shows that from about 7 : 37, the hour he reported for work, until
9: 02 a. in he was engaged in work designated as "shop " with the spaces on the card for
job number and labor operation left blank, contrary to the usual practice
12 As hereinafter noted, the first general and formal meeting of the Association was held
on September 4, 1945.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man, president ; Clarence Fisher, vice president ; Odin T. Peterson, recording
secretary; " LeRoy Harvey, financial secretary.
On August 27, Pitney drafted another proposed contract for the Association.
On the morning of August 28, Co-owners Walker and 1\IcHale met with the
Association's negotiation committee, which had been informally selected and
consisted of Foreman Straub, Head Clerk William Watz, and employees Ray
Vannaman, Fred Rodwell, and LeRoy Harvey. The committee informed the
respondents that the Association represented a majority of the employees, re-
quested recognition as the exclusive bargaining representative therefor, pre-
sented the proposed contract and charter signed by 52 employees but did not
leave it with the respondents, and asked that the respondents negotiate a con-
tract with the Association. According to Walker, he and McHale "looked over
the list and found . . . that out of some 54 shop employees there were 32 names
on the [charter] . . . so [we] agreed that we would recognize them if they
presented us with a Contract that we felt would be agreeable."
By letter dated August 28, 1945, the respondents were informed by the Board's
Regional Office that the Brotherhood had filed a petition for investigation and
certification of representatives and that an informal joint conference relating
to such petition would be held on August 31, 1945.
On August 30, 1945, the respondents and their counsel met with the Associa-
tion's negotiating committee and its counsel. The Association presented another
proposed contract. Following a discussion of the contract's general terms, the
Association insisted, according to Walker, that the respondents sign the con-
tract by September 4, otherwise the Association would instigate a work stop-
page because "they [the Association] were in fear of another petition having
been filed for recognition, and they wanted to record their majority first."
By letter dated August 30, 1945, the respondents were informed that the in-
formal joint conference in respect to the Brotherhood's 9 (c) petition had been
postponed until September 4"
On the morning of September 4, before the conference scheduled in the Board's
Regional Office respecting the Brotherhood's petition, the respondents and the
Association executed a contract, which so far as the record shows differed from
the Association's original demands principally in the vacation and holidays-
with-pay terms and the elimination of d provision that the respondents con-
tribute a sum of money for the Association's use. The contract, for the term
of one year with automatic renewal provision thereafter, defined the collective
bargaining unit as consisting of "all employees of the company at its plant" in
Los Angeles, and recognized the Association as the statutory representative of
all such employees. No supervisory employees by its terms are exempted from
coverage of the agreement That contract also established a union shop, i. P,
although no person then in the respondents' employ was required to join the
Association as a condition of employment, all employees who were members of
the Association at that time were required to maintain their membership in
good standing and all employees hired thereafter would be required to join the
Association within 30 days from the date of their employment. Other provi-
sions dealt with grievance procedures, wage rates, hours of work, holidays with
''Although Vannaman testified that he "believed" Rodwell was the original recording
seeret.irv and was followed by Peterson in that office upon the first formal election in
September, it is clear that Vannaman was mistaken, for Peterson signed the contract as a
repiesentative of the Association under the title of secretaiy before the general election.
13 Collins, counsel for the respondents, testified that the postponement was made
pursuant to his request for his own personal convenience.
McHALE MANUFACTURING COMPANY 1275
pay, seniority, vacations, and other matters customarily the subject matter of
collective bargaining contracts
About 10 minutes before the close of the work day on September 4, all em-
ployees were assembled and were addressed by âIcIIale and Walker. Accord-
ing to the credible testimony of employee Cole, McHale told the employees that
the respondents "had signed a contract on that date with the Association, and
that it was for the duration of one year, and the Association . . . would repre-
sent the employees in all matters of wages, vacation, sick leaves, and anything
that pertained to the welfare of the employees."
Later the same day, the Association held its first formal meeting. The con-
tract was read and permanent officers were elected, for the most part being the
temporary officers earlier chosen informally. Foreman Ralph Straub was chosen
to act as "a chairman who would open and close the meetings only," though,
according to the testimony of Vannaman, he slid not actually serve in that
capacity.1i
2. Conclusions
In view of the foregoing and upon the entire record, the undersigned is con-
vinced that the respondents interfered with the formation and administration of
the Association and contributed support thereto This conclusion is particularly
evidenced by the disparity of treatment accorded the Brotherhood and the Asso-
ciation At a time when there was no organizational activity among the employ-
ees except that sponsored and fomented by the Brotherhood, and immediately
upon learning of this activity, the respondents posted the notice of August 6
disavowing their responsibility for acts of supervisory employees engaging
therein, and asserting that steps had been taken to "discipline and warn the
offenders." There is no showing that the respondents, subsequent to the posting
o^ this notice, had knowledge of any activity in behalf of the Brotherhood on the
part of supervisory employees 18
A few weeks later, when certain of their supervisors actively participated in
the formation and organization of the Association, with the manifest purpose of
defeating the Brotherhood in its efforts to organize the plant, the respondents
took no action to enforce the neutrality policy enunciated in the notice of August
6, nor did they at any time, by direct communication to their employees attempt
to dissipate the effect of their supervisors participating in organizational activi-
ties of the Association or to disavow the conduct of their supervisors in foment-
ing and supporting the Association." That the respondents had knowledge of
their supervisors' activities in behalf of the Association is clear, since Foreman
Straub was on the Association's negotiation committee which met with manage-
ment, and he, Foreman Andy Watz, and Head Clerk William Watz, all of whom
T,i Vannaman testified that he told Straub that he "didn't have any business messing
around with these committees, ' and that Straub replied that he was "an A F of L man",
and that "if they wanted to discharge him, 0 K , he is still going to do whatever he
wanted, if he wanted to join this, lie will join it" Straub did not testify
m The only credible evidence that supervisors participated in organizational activities
of the Brotherhood subsequent to the posting of the August 6 notice, is the attendance of
several supervisors at the Brotherhood meeting off company premises on August 22 The
record does not disclose whether any of these, with the exception of Koering, affiliated
with the Brotherhood It is clear, however, that it group attending this meeting, includ-
ing Foreman Straub, immediately following the Brotherhood meeting, initiated the
formation of the Association
]P During oial argument, respondents' counsel stated that no disciplinary action was
taken against supervisors for their infractions of the August 6 notice, because Foreman
Straub would have initiated a work stoppage The undersigned finds no merit in this
speculative defense
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were management representatives, signed the Association's charter which was
submitted to Co-owners Walker and McHale as proof of the Association's claim
of majority representation. In marked contrast with the position asserted in
the notice of August 6, the respondents, when confronted with the Association's
claim of majority representation, not only failed to "warn and discipline" its
supervisors for violating the instructions contained in the aforesaid notice, but
in effect approved and ratified their action in fomenting and assisting the
Association.
Further disparity of action with regard to the two organizations is shown by
the respondents' hasty recognition of the Association upon the latter's demand as
contrasted with their evasiveness on the occasion of a prior request for recognition
by the Brotherhood, and their execution of a contract with the Association despite
their knowledge that the Brotherhood also claimed to represent a majority of
their employees and had filed a petition for investigation and certification of
representatives with the Board." Exclusive recognition was granted the Asso-
ciation upon a mere count of names appearing on its charter ; no effort was made
to check the signatures against the pay roll for ascertaining their authenticity.
And the contract executed with the Association immediately prior to the confer-
ence on the Brotherhood's petition for certification of representatives, contained
provisions for a union shop. By such speedy execution of a contract containing a
union shop provision, at a time when the respondents were well aware of the
Brotherhood's prior claim of majority representation, the respondents effectively
undermined the Brotherhood's status among the employees and firmly established
the Association in the plant 19 The respondents further rendered support and
assistance to the Association by permitting it to solicit signatures to its charter
during working hours, without restraint and without deduction in pay for the
time thus spent in organizational activities.
While the undersigned attaches no significance to the naked fact that the
Association admits supervisory employees to membership, additional evidence
that the Association is incapable of acting as the free and uncoerced representa-
tive of the respondents' employees is seen in the fact that representatives of
management participated actively in its formation and that its membership is
composed, indiscriminately, of both supervisory and non-supervisory employees,
one foreman, in fact, being designated an officer for the purpose of opening and
closing all meetings. Furthermore, its contract covers all employees in a single
unit, including supervisors as well as production, maintenance and clerical
workers 2°
Upon the entire record, the undersigned finds that the respondents have
dominated, interfered with, and contributed support to the formation and ad-
ministration of the Association, and thereby have interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section 7
of the Act.
18 The recognition of the Association under these circumstances was In and of itself a
violation of Section 8 (1) of the Act . See Matter of Midwest Piping and Supply Co ., Inc.,
63 N. L. R. B. 1060.
19 Matter of The Arrowhead Rubber Company of Texas, 56 N. L . R. B. 1618, 146 F. (2d)
749 (C . C. A. 5).
20 The Brotherhood also admits supervisors to membership , but according to its repre-
sentative , excludes them from participating actively in "union matters within the plant."
It is also significant that in its petition for investigation and certification of representatives,
the Brotherhood did not seek the inclusion of foremen within the bargaining unit, a factor
which distinguishes this situation from the one presented in the Matter of Mississippi
Valley Structural Steel Company , 64 N. L. R. B. 78.
McHALE MANUFACTURING COMPANY 1277
B. The alleged discriminatory discharge of Louis A. Blackburn "
Louis A. Blackburn was employed by the respondents in April 1943, as a certified
aircraft welder at a wage of $1.50 an hour 22 and was the second highest paid
welder in the respondents' employ. Blackburn joined the Brotherhood on July
5, 1944, and, as previously noted, was one of the most active adherents in launch-
ing and promoting the Brotherhood's organizational campaign.
In conjunction with their normal business of manufacturing dairy equipment,
the respondents during the war period also manufactured various parts for
nationally known aircraft companies. Blackburn was employed to perform
welding on these parts, and from 1943 to 1945, there were at times four or five
certified aircraft welders, in addition to Blackburn, in the respondents' employ.
As the aircraft work declined, the other certified welders were laid off from time
to time, and when only enough work remained for one such welder, Blackburn
was retained and the employment of the others was terminated. During periods
when there was no aircraft work to be performed, Blackburn worked in other
departments manufacturing dairy equipment. According to the credible testi-
mony of Walker, 90 percent of Blackburn's work during the time he was employed
by the respondents was expended on aircraft welding, the remainder being con-
cerned with welding on dairy equipment. Upon the official termination of the
war, the respondents' aircraft contracts were cancelled , the last one expiring
about August 17, 1945. Thereafter, Blackburn was transferred to perform weld-
ing work on some stainless steel tubular milk coolers. On August 23, Blackburn
completed as much welding as possible on the coolers until some tubes, essential
for the coolers, could be supplied by another manufacturer. Not being able to
obtain the necessary tubes and not having other welding work commensurate
with Blackburn's skill and rate of pay, the respondents on August 23 determined
to lay him off. Walker explained the situation to Blackburn and told him that
it would be necessary to lay him off for an indefinite period until the tubes could
be obtained. However, Blackburn replied that such a lay-off "would not be
satisfactory" to him and that he "would just quit right then." At the time
Blackburn was laid off there were five welders in the respondents' employ. Black-
burn, who was second in point of seniority of the welders, testified that he would
not have accepted the jobs of any of the welders who were his junior in seniority
and all of whom were paid less per hour than Blackburn. About 3 weeks after
his employment was terminated, Blackburn was offered reinstatement by the
respondents but refused the offer. In November and December four other offers
of reinstatement by the respondents were refused by Blackburn.
The record, it is true, shows that Blackburn was the most active of the Brother-
hood's adherents. In view, however, of the cancellation of the aircraft contracts
and of the lack of work suitable for Blackburn, as above related, the under-
signed does not feel that the evidence is sufficient to show that Blackburn was
discharged because of his union activities. The undersigned finds that the re-
spondents have not discriminated against Blackburn in regard to hire or tenure
of employment within the meaning of Section 8 (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above , occurring in
connection with the operations of the respondents described in Section I, above,
Y1 The findings in this section are based upon the testimony of Blackburn , McHale, and
Walker.
23A certified welder is required to pass an examination given by the U. S. Army and
Navy in order to obtain a certification of ability to perform welding on airplanes for the
use of the Army and Navy.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondents have't?ngaged in certain unfair labor prac-
tices, the undersigned will recommend that they cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondents have dominated and interfered with
the formation and administration of and contributed support to the Association.
Because of the respondents' domination, interference, and support, the Associa-
tion is incapable of serving the respondents' employees as a genuine and inde-
pendent collective bargaining agency, and constitutes a continuing obstacle to
the free exercise by the employees of the rights guaranteed them in the Act.
Accordingly, the undersigned will recommend that the respondents disestablish
and withdraw all recognition of the Association as the representative of any of
their employees for the purpose of dealing with the respondents concerning
grievances, labor disputes, Ni ages, i ates of pay, hours of employment, or other
conditions of employment.
The agreements entered into between the respondents and the Association
have been a means whereby the respondents have utilized the employer-domi-
nated labor organization to frustrate self-organization and defeat genuine col-
lective bargaining by their employees. Under these circumstances any continu-
ation, renewal, or modification of the current agreement would perpetuate the
conditions which have deprived employees of the rights guaranteed to them by
the Act and would render ineffectual other portions of these recommendations.
The undersigned will therefore recommend that the respondents cease and desist
from giving effect to or performing any agreement between them and the Asso-
ciation relating to rates of pay, wages, hours of employment, and other condi-
tions of employment, now existing, and to refrain from entering into, renewing,
or extending any agreement with the Association relating to such matters.
Nothing herein shall be taken, however, to require the respondents to vary those
wages, hours, and other substantive features of their relation with the em-
ployees, if any, which they have established in performance of any agreement
as extended, renewed, mod.fidd, supplemented, or superseded.
In view of the findings above, it is apparent that the respondents have, by vary-
ing methods, dominated and interfered with the Association and have con-
tributed support to the Association and thereby interfered with, restrained, and
coerced their employees in the exercise of rights guaranteed in Section 7 of the
Act The respondents' course of conduct in this respect discloses a fixed pur-
pose to defeat self-organization and its objects. Thus, the respondents, by domi-
nating and interfering with, and by contributing support to, the Association,
interfered with their employees' right to self-organization, and to form, join,
and assist labor organizations, denied their employees the free opportunity to
bargain collectively through representatives of their own choosing, and sub-
stantially deprived their employees of their right to engage in concerted activ-
ities for the purpose of collective bargaining or other mutual aid or protection,
except in the channels directed b} the respondents Because of the respondents'
unlawful conduct and its underlying purpose, the undersigned is convinced that
the unfair labor practices found are persuasively related to other unfair labor
practices proscribed and that a danger of their commission in the future is to be
anticipated from the course of the respondents' conduct in the past. The pre-
McHALE MANUFACTURING COMPANY 1279
ventive purpose of the Act will be thwarted unless these recommendations are
coextensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby to minimize strife which burdens and obstructs commerce,
and thus effectuate the policies of the Act, the undersigned will recommend that
the respondents cease and desist from in any manner infringing upon the rights
guaranteed in Section 7 of the Act.23
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCL USIONS OF LAW
1. United Brotherhood of Welders, Cutters and Helpers of America, Inde-
pendent, and Dairy Manufacturers Emplcyees' Association, Inc., are labor organ-
izations, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Dairy Manufacturers Employees' Association, Inc, and contributing support
thereto, the respondents have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have engaged
in and are engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices, within the
meaning of Section 2 (6) and (7) of the Act.
5. The respondents have not discriminated with regard to the hire and tenure
of employment of Louis A. Blackburn, within the meaning of Section 8 (3) of
the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondents, Thomas D McHale and Horace J.
Walker, doing business as McHale Manufacturing Company, Los Angeles, Cali-
fornia, and their agents, successors, and assigns shall
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or contributing sup-
port to, Dairy Manufacturers Employees' Association, Inc, and dominating or
interfering with the formation or Administration of, or contributing support to,
any other labor organization of their employees ;
(b) Recognizing Dairy Manufacturers Employees' Association, Inc., as the
representative of any of their employees for the purpose of dealing with the
respondents concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment ;
(c) Performing or giving effect to the contract of September 4, 1945, with
Dairy Manufacturers Employees' Association, Inc, or to any amendment, ex-
tension, or renewal thereof, or to any other contract, agreement or understand-
ing entered into with said organization relating to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment ;
(d) In any other manner interfering with, restraining, or coercing their em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist United Brotherhood of Welders, Cutters and Helpers of
23 See, for example, N L R. B v Standard Oil Company, et at., 138 F. (2d) 885 (C C. A
2), enf'g. 43 N L. R B 12
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, Independent, 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 protec-
tion, as guaranteell in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Dairy Manufacturers Employees' Asso-
ciation, Inc., and completely disestablish that organization as the representative
of any of the respondents' employees for the purpose of dealing with the re-
spondents concerning grievances, labor disputes, rates of pay, wages, hours
of employment, or other conditions of employment ;
(b) Post at its plant at Los Angeles, California, copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region, shall, after being duly signed
by the respondents' representative, be posted by the respondents immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the respondents
to insure that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Twenty-first Region in writing within
ten (10) days from the receipt of this Intermediate Report what steps the
respondents have taken to comply therewith.
It is further recommended that the complaint, insofar as it alleges that the
respondents have discriminated with regard to the hire and tenure of em-
ployment of Louis A. Blackburn, be dismissed.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondents notify said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring the
respondents to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the ease to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, 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 proceedings (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the 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.
WILLIAM R. SPENCER,
Trial Examiner.
Dated March 18, 1946.
AlcHALE MANUFACTURING COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
1281
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 Dairy Manufacturers Employees' Asso-
ciation, Inc., 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 administration of Dairy
Manufacturers Employees' Association, Inc., or with the formation or ad-
ministration of any other labor organization of our employees or contribute
financial or other support to it
WE WILL NOT perform or give effect to the contract of September 4,
1945, with Dairy Manufacturers Employees' Association, Inc., or to any
amendment, extension, or renewal thereof, or to any other contract, agree-
ment, or understanding with Dairy Manufacturers Employees' Association,
Inc., relating to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
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 Brotherhood of Welders, Cutters and
Helpers of America, Independent, 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 free to become or
remain members of this union, or any other labor organization.
THOMAS D. McHALE and HORACE J. WALKER,
doing business as
MCHALE MANUFACTURING COMPANY
Employer
Dated ------------------------- By ---------------------------------------
(Representative) , (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
692148-46-vol. 67-82