Oliver Machinery Corp.

National Labor Relations Board - Board Decisions

Jan 30, 1953

102 N.L.R.B. 822 (N.L.R.B. 1953)

822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority status, Anheuser refused both union demands. Thereafter,
at the request of the parties, the New Jersey State Board of Mediation
conducted a card check to determine which of the unions had received
majority designation. It found that the Engineers had a majority.
Upon such finding Anheuser recognized the Engineers and referred
it to the Association for further negotiations. The Association, on
behalf of Anheuser, agreed to adopt for Anheuser's employees the
terms and conditions embodied in the them existing associationwide
contract with the Engineers. Thereafter, and on March 21, 1951, a
separate document was signed by Anheuser which contained the
;dentical terms and provisions as were contained in the current asso-
ciationwide (1950) agreement and terminating at the same date, viz,
April 30, 159246
Upon the foregoing facts we find, contrary to the contention of the
CIO, that since March 1951 Anheuser's "powerhouse" employees have
been represented by the Engineers as part of the multiemployer unit
and that the history of the inclusion of such employees in the multi-
employer unit is of sufficiently long duration to preclude establishment
now of a single-employer unit 47 We shall, therefore, dismiss the
Brewery `Yorkers (CIO) Local 2 petition in Case No. 2-RC-4277.
[Text of Direction of Elections omitted from publication in this
volume.]
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.
46 At this time the petition herein was pending.
47 Taylor and Boggss Foundry Division of Consolidated Iron-Steel Manufacturing Com-
pany, 98 NLRB 481.
OLIVER MACHINERY CORPORATION and UNITED ELECTRICAL, RADIO AND
MACHINE WORKERS OF AMERICA, INDEPENDENT and EMPLOYEES'
COMMITTEE , PARTY ADMINISTERING CONTRACT . Case No. 7-C.4-504.
January/ 30,1953
Decision and Order
On May 15, 1952, Trial Examiner Earl S. Bellman issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and had
not engaged in others, and recommending that it cease and desist from
the unfair labor practices found and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter, the Respondent, the General Counsel, and the Employees'
102 NLRB No. 65.
OLIVER MACHINERY CORPORATION 823
Committee filed exceptions to the Intermediate Report; the Respond-
ent and the General Counsel also filed briefs in support of their
exceptions.
The Board has reviewed the rulings made by 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 exceptions, the briefs, and the entire record in
the case,' and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following exceptions and
clarification.
1. We agree with the Trial Examiner's recommendation for the
dismissal of the refusal-to-bargain allegation in the complaint. We do
so because of our concurrence with his finding that the General Counsel
failed to prove, by valid evidence, that the Union represented a ma-
jority of employees in an appropriate unit at the time of the refusal
to bargain.
The Union was certified as bargaining representative of East Side
and West Side plant employees in 1946 and 1947, respectively. Ordi-
narily, when a labor organization's representative status has been
established by Board certification, it is presumed to continue until
the contrary is shown.2 However, the certificates in this case were
followed by the incorporation of unlawful union-security provisions
in later executed collective-bargaining agreements. To give the usual
effect to these old certificates would amount to ignoring the assistance
rendered the Union by the illegal union-security clauses. As stated
by the Trial Examiner, to do so would be inconsistent with the Board's
policy in analagous other situations.3 For this reason, we reject the
General Counsel's contention that the 1946 and 1947 certificates con-
stitute valid proof of the Union's majority status.
2. We do not agree with the Trial Examiner that the Respondent
violated Section 8 (a) (1) of the Act by its announcement that the
acceptance of the November 2, 1950, wage increases was conditioned
upon no further wage reopening by the employees before November 1,
1953. The Trial Examiner found that the unilateral announcement
of the wage increase was lawful, only the limitation on further wage
increases being illegal. But as the Respondent was not under any
obligation to bargain with the Union in November 1950, it was free
to enter into individual contracts with its employees.' That freedom
3 The Respondent has requested oral argument. The request is denied inasmuch as the
record and briefs, in our opinion , adequately set forth the issues and the positions of the
parties.
2 Pool Foundry and Machine Company, 95 NLRB 34; United States Gypsum Company,
90 NLRB 964.
8 Compare C Hager & Sons Hinge Manufacturing Company, 80 NLRB 163,; Salant d
Salant, Inc., 87 NLRB 215, 88 NLRB 816.
' J. I. Case v. N. L. R. B., 321 U. S. 322, 337.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
included the right, we believe, to attach any condition against wage
reopening to its wage increase offer.5
3. We agree with the Trial Examiner that the October 16, 1950,
meeting and the polls conducted on October 17, 1950, violated Section
8 (a) (1) of the Act. In time and circumstance, these incidents were
an integral part of the course of conduct which led to the formation
of the Committee, an unlawfully constituted and dominated labor
organization. When considered as part of this pattern of unlawful
conduct, they had a tendency to interfere with, restrain, and coerce
employees in violation of Section 8 (a) (1) of the Act .6
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, Oliver Machinery Com-
pany, Grand Rapids, Michigan, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing financial or other support to, the Employees' Committee,
including the West Side Committee and the East Side Committee,
jointly and severally, or dominating or interfering with the formation
or administration of, or contributing financial or other support to,
any other labor organization of its employees.
(b) Recognizing, or in any other manner dealing with, the Em-
ployees' Committee, or any successor thereto, as the collective-bargain-
ing representative of any of its employees.
(c) Interrogating its employees with respect to their union sympa-
thies, and conducting polls of its employees with respect to their
preferences as to labor organizations and forms of self-organization
or representation.
(d) In any like or related manner, interfering with, restraining,
or coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Electrical,
Radio and Machine Workers of America, Independent, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring
5 A contract with an individual employee cannot, however, be a bar to a representation
petition or to bargaining with a collective-bargaining representative when one is selected.
J. I. Case v. N. L. R. B., supra.
6N. L. R. B. v. Kropp Forge Co., 178 F. 2d 822 (C. A. 7), cert. denied, 340 U. S. 810.
OLIVER MACHINERY CORPORATION '825
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) 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 Employees' Committee, including the West Side Committee and
the East Side Committee, jointly and severally, as the representative
of any of its employees for the purpose of dealing with the Respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other terms and conditions of employment.
(b) Post at both its East Side and West Side plants in Grand
Rapids, Michigan, copies of the notice attached hereto marked "Ap-
pendix A." 7 Copies of said notice, to be furnished by the Regional
Director for the Seventh Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent immedi-
ately upon receipt thereof and maintained by it for at least 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 such notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Seventh Region, Detroit,
Michigan, in writing, within ten (10) days from the date of this
Order, of the steps taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that those allegations of the com-
plaint not found herein to be unfair labor practices, be, and they
hereby are, dismissed.
MEMBER HOUSTON took no part in the consideration of the above
Decision and Order.
"In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order " the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 wmL NOT dominate or interfere with the administration of,
or contribute financial or other support to, the EMPLorEi;s' Cola-
Mn'rEE, including the West Side Committee and the East Side
Committee, jointly and severally, or dominate or interfere with
the formation or administration of, or contribute financial or
other support to, any other labor organization of our employees.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT recognize, or in any other manner deal with, the
EMPLOYEES' COMMITTEE, or any successor thereto, as the collective
bargaining representative of any of our employees.
WE WILL NOT interrogate our employees with respect to their
union sympathies, or conduct polls of our employees with respect
to their preferences as to labor organizations and forms of self-
organization or representation.
WE WILL NOT in any like or related manner, interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist UNITED
ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, INDE-
PENDENT, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all
of such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
WE wiLL withdraw all recognition from, and completely dis-
establish, the EMPLOYEES' COMMITTEE, including the West Side
and East Side Committees, jointly and severally, as the representa-
tive 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 terms and conditions of employment.
OLIVER MACHINERY 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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on October 10, 1950, and an amended charge duly
filed on November 2, 1950,' by United Electrical , Radio and Machine Workers of
America, Independent, herein called the Union,' the General Counsel of the Na-
tional Labor Relations Board, by the Regional Director for the Seventh Region
1 As shown by return receipts for registered mail, the Respondent received a copy of
the charge on October 12, 1950, and a copy of the amended charge on November 6, 1950.
2 Both charges were signed "David Mates, Field Organizer " Although each charge sets
out the filing labor organization as the Union "and its Local 911," the complaint mentions
only the Union , Ignoring Local 911. For reasons which appear more fully below, the
Union is treated herein as the only charging party, and Lewis A. Towns, who stated his
appearance on the record as "President , Local 911" is shown as appearing for the Union.
OLIVER MACHINERY CORPORATION 827
(Detroit, Michigan),' issued his complaint dated May 22, 1951, against Oliver
Machinery Company, Grand Rapids, Michigan, herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1), (2), and
(5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the complaint, notice of hearing,
charge, and amended charge were duly served upon the Respondent, the Union,
and the Employees' Committee, herein called the Committee .4
With respect to the unfair labor practices, the complaint alleged in substance
that : (1) About November 1, 1949, the Respondent entered into a collective-
bargaining agreement with the Union covering the production and maintenance
employees at the Respondent's East Side plant, for which the Board had certified
the Union on November 29, 1946, and at its West Side plant, for which the Board
had certified the Union on April 14, 1947; (2) said agreement by its terms has
continued to remain in force and effect and the Union has continued to be the
exclusive representative of the employees in the aforesaid 2-plant unit; (3)
beginning about August 9, 1950, the Respondent, by various specified acts, in-
cluding refusal to furnish wage data essential to negotiations, bypassing the
Union concerning wage proposals, increasing wages unilaterally, individually
soliciting strikers to return to work, recognizing the Committee, and refusing
after November 1, 1950, to deal with the Union, has refused to bargain with the
Union in violation of Section 8 (a) (5) of the Act; (4) beginning about October
16, 1950; the Respondent has violated Section 8 (a) (2) of the Act, by numerous
actions spelled out in 8 subparagraphs, whereby it initiated, formed, encouraged,
assisted, fostered, interfered with, contributed support to and dominated the
Committee; and (5) by the foregoing, and by various actions specified in 10
subparagraphs of the complaint, including threats of various types, interroga-
tion of employees, and a private poll of its employees, the Respondent from
about August 9, 1950, has interfered with, restrained, and coerced its employees
in violation of Section 8 (a) (1) of the Act.
On May 31, 1951, the Respondent filed its answer which admitted the allega-
tions as to its operations and the facts as to the certifications, but specifically
denied that Respondent had engaged in any of the alleged unfair labor practices
and that it was engaged in commerce within the meaning of Section 2 (7) of
the Act. The answer neither admitted nor denied the appropriateness of the
alleged unit and set out in considerable detail numerous averments and defenses,
the more pertinent of which are here briefly summarized. The answer averred
that the Respondent negotiated with the Union during August, September,
and October, 1950, until an impasse had been reached ; that the Union had failed
to bargain in good faith ; that about October 11, 1950, the Union commenced an
economic strike ; that thereafter the employees returned to work and effectively
disavowed the Union ; that Local 911 was no longer an entity ; that the agreement
was no longer in effect ; and that if the agreement were still in effect, the Union
had no rights remaining thereunder. The answer denied that the Union is a
labor organization within the meaning of the Act ; that the Union has continued
to be the representative of the employees in the unit; and that the Respondent
has extended recognition to the Committee. The answer characterized the Com-
mittee as an "independent voluntary arrangement made by the employees them-
8 The General Counsel and his representatives at the hearing will be called herein the
General Counsel ; the National Labor Relations Board , the Board ; and the Regional
Director for the Seventh Region, the Regional Director.
4 Service on the Committee was made both on the Committee, East Side plant , and the
Committee, West Side plant, "attention" the respective chairmen.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves," and stated that the Respondent is without knowledge as to whether
the Committee is a labor organization within the meaning of the Act.
Pursuant to notice, a hearing was held from June 18 through June 28, 1951, at
Grand Rapids, Michigan, before me, the undersigned duly designated Trial
Examiner. The General Counsel and the Respondent were represented by
counsel, the Union by two officials, and the Committee by its respective chairmen
at the two plants involved. All participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties.
At the opening of the hearing, oral argument was heard on a motion by the
Respondent to dismiss the complaint in its entirety because neither the Union nor
Local 911 had served a copy of either of the charges on the Respondent, as re-
quired by the Board's Rules and Regulations, both then and presently in effect.`
Said motion was denied without prejudice to its renewal. Argument was also
heard on a motion by the Respondent to dismiss the complaint in its entirety inso-
far as Local 911 is concerned because Local 911 was "not in any way a party" to
the proceeding. The Respondent's position, in part, was that Local 911 was
defunct, could not administer the contract, and had made no authorizations
whatsoever pertaining to the case. Ruling was reserved on said motion. Be-
fore testimony was heard, a motion by the General Counsel for the separation
of witnesses was granted over the Respondent's objection.
When the General Counsel rested his case-in-chief, the Respondent moved to
dismiss the complaint in its entirety on the basis of the evidence. This motion
was argued on the record, all parties being accorded opportunity to participate.
The Respondent, the General Counsel, and the Union presented fairly complete
statements of their respective positions. The Respondent's motion was taken
under advisement. It was thereafter denied without prejudice to its renewal,
and the hearing proceeded. During the Respondent's case , a clarifying amend-
ment to the complaint was permitted over objection.
At the close of the hearing, the Respondent renewed all three of its above-
described motions. The Committee moved that the complaint be dismissed as
concerning Local 911, and also that it be dismissed on the basis of the record.
Rulings upon the motions of the Committee and upon the motions renewed by
the Respondent were reserved by me for the Intermediate Report. A motion by
the General Counsel that the pleadings be conformed to the proof as to minor
details was granted without objection. All parties were afforded opportunity to
argue orally and to file briefs or proposed findings of fact and conclusions of law,
or both. In view of the oral argument already held on the record, oral argu-
ment was waived by all parties.
Pursuant to extension of time for filing to August 20, 1951, granted by the
Chief Trial Examiner , the General Counsel and the Respondent have filed de-
tailed briefs. On August 20 the Respondent also filed with me a motion to correct
the record in some 52 particulars. The formal file shows proof of service of this
motion on all parties.
Rulings Upon Pending Motions
As no objections to the Respondent's proposed corrections of the transcript
have been filed, and since said corrections appear to me upon examination of the
record to be appropriate, the Respondent's written motion to correct the record
s Section 203.14 of the Rules, Series 5, specified : "Upon the filing of a charge, the
charging party shall be responsible for the timely and proper service of a copy thereof upon
the person against whom such charge is made." This identical language appears presently
in the Rules , Series 6, in the renumbered Section 102.14.
OLIVER MACHINERY CORPORATION 829
is hereby granted, with two clarifications set forth in the margin' In addition,
several other corrections in the transcript which appear in the margin are hereby
made,'
The motions of the Respondent and the Committee to dismiss the complaint in
its entirety insofar as Local 911 is concerned are hereby denied, inasmuch as I
am convinced from the record as a whole that Local 911 is not a charging party.
There is no evidence that Local 911 took any action of any kind to authorize or
to join in the filing of the charges; no officer of Local 911 signed either charge;
and the complaint does not in any way identify Local 911 as a charging party.
Further, the General Counsel stated at one point during the hearing that "the
UB is the charging party"; the General Counsel's brief states that the charge
and the amended charge "were instituted by the Union." In addition, Local 911
was not separately served with notice of hearing ; did not make a motion to
intervene in this case ; and did not sign the contract named in the complaint.
In view of my holding that Local 911 is not a charging party, dismissal of the
complaint as concerning Local 911 would be an anomaly.'
As to the Respondent's motion to dismiss because of the failure of the Union
and Local 911 to serve copies of the charges on the Respondent, this motion can
properly apply only to the Union in view of the above holding. Assuming that
the Union itself did not duly serve a copy of either of its charges on the Respond-
ent, it is clear that the Regional Director did make timely service of the charges,
as shown in footnote 1. While I believe it would have been procedurally better,
under the explicit language of the Board's Rules, for the Union to have served
its charges, the Union's failure to do so, in view of the Regional Director's due
service thereof, does not under the language of Section 10 (b) of the Act, which
does not specify by whom charges are to be served , deprive the Board of juris-
diction to proceed ° Nor am I persuaded that , as a matter of policy , the Board
would extend certain language in decision cited by the Respondent to the clearly
distinguishable facts of the present case.1° Accordingly, the aforesaid motion
of the Respondent to dismiss is denied.
$ The correction made on page 711 Is in line 15 rather than line 14; the correction on
page 1075 Is in line 20 rather than line 19.
'The corrections thus made are as follows :
Page 240, line 15, "West Side" is corrected to read "East Side."
Page 240, line 21, "31 voted" Is corrected to read "20 voted."
Page 287, line 1, is corrected by striking the word "on" and inserting "without
further arguing whether it is"
Page 468, line 19, "company" is corrected to read "complaint."
Page 495, line 2, "non-union" Is corrected to read "union."
Page 499, lines 9 and 10, "The witness testified he didn't know," Is corrected to read,
"As the witness testified, I didn't know."
Page 597, line 1, is corrected to read "TRIAL EXAMINER BELLMAN : You may
answer."
Page 656, line 13, "October 24th" is corrected to read "August 24th."
Page 735, line 24, is corrected to read , "does seem to me from the context that this
contract must incorporate a wage scale."
It should be noted that in conformity with this holding , the appearance of Towns, who
identified himself as president of Local 911, is shown with the appearances for the Union
rather than separately for Local 911. Since the charge and the amended charge which
bottomed the complaint were filed by the Union, any attempt on the part of members of
Local 911 to withdraw these charges is, as the General Counsel contends , without force
or effect . In addition, under all the circumstances of this case, I do not consider the
request made by Committee Chairmen Simons and Grover at the close of the hearing
to Towns that Local 911 j oin in their motion to dismiss the proceedings , to constitute
"evidence of interference, restraint and coercion," as the General Counsel contends.
' N. L. R. B. v. Arthur J. Wiltse, d/b/a The Ann Arbor Press, 188 F. 2d 917 (C. A. 6).
°° R sf R News Company, 92 NLRB 1134, and Beacon Manufacturing Go., 94 NLRB 88L
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remain the motions of the Respondent and the Committee to dismiss the
complaint in its entirety on the basis of the record. Said motions to dismiss
on the merits are in part granted and in part denied, in accordance with the
conclusions which hereinafter appear.
Upon the entire record in this case, and from my observations of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Oliver Machinery Company, the Respondent, is a Michigan corporation having
its principal office and place of business in Grand Rapids, Michigan. It is there
engaged in the manufacture of woodworking machinery, metalworking machine
tools, packaging equipment, and labeling machinery. The Respondent's two
principal manufacturing plants, its East Side plant, also known as the Clancy
Street plant, and its West Side plant, also known as the Baldwin-Tuthill Division,
both in Grand Rapids, are involved in this proceeding. A foundry which the
Respondent operates in Grand Rapids is not involved nor is its label division, a
distinct organization which is housed in the same building as the West Side plant.
In the course of its operations in Grand Rapids during the year 1950, the
Respondent purchased raw materials, including grey iron, steel, aluminum, and
motor bearings, valued in excess of $1,000,000. Approximately 50 percent of
these materials came from points outside the State of Michigan. The various
types of machinery, machine tools, and equipment, which the Respondent manu-
factured in Grand Rapids during 1950, had a total value in excess of $2,000,000.
Of these products, approximately 90 percent was shipped to points outside the
State of Michigan. On the basis of the foregoing undisputed facts, I find that
the Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of America, Independent, the
charging party which is herein called the Union, is an unaffiliated organization
which admits to membership employees of the Respondent. Beginning with an
agreement signed November 1, 1946, the Union has continuously had written
agreements covering employees of the Respondent. On the basis of the Union's
constitution and bylaws, its bargaining negotiations with the Respondent, and its
signed agreements, it is patent that the Union is a labor organization within the
meaning of the Act, and it is so found.
III. THE UNFAIR LABOR PRACTICES
A. The case in perspective
In a decision involving a complex of issues, some of which appear novel, and
inconsistent testimony bearing on numerous facts, it may be well to indicate at
the outset something of the general nature of the problem. For instance, there
was substantial bias because of strong feelings on the part of many witnesses.
Moreover, witnesses called by the same party were not in agreement as to the
order in which events transpired or as to the details of conversations and
negotiations. This was particularly true witfi respect to what took place at
the bargaining conferences during August, September, and October, 1950, but
it was also true with respect to other matters. Such factors, along with
conflicts in the testimony, make fact finding on several matters difficult.
It should be noted that one of the principal figures in many of the events in
Issue, David Mates, the field organizer who was the principal negotiator for the
OLIVER MACHINERY CORPORATION 831
Union at the bargaining conferences, did not take the stand to testify although
he was present during most of the hearing. It should also be noted that some
of the witnesses for the Respondent, particularly Ralph Baldwin, the official
of the Respondent primarily responsible for its labor relations and for most of
the actions in issue as unfair labor practices, made it clear by demeanor as well
as by testimony that Mates' manner and behavior were strongly resented and
his motives suspected. Evidently some of the Respondent's representatives
finally came to suspect that Mates was subject to Communist influence. In addi-
tion, there does not appear to be any doubt, from the testimony of numerous
witnesses called by the General Counsel and the Respondent, that prior to any
of the alleged unfair labor practices, dissension had arisen among members
of Local 911 because of a belief that some of the officials of the Union were
subject to Communist influence. Further, while the Respondent apparently does
not specifically advance, as a defense of its own actions, any belief that Mates
and the Union were subject to Communist influence, the Respondent does
contend that after the Union had lost an unpopular economic strike in October
1950, the issue of communism in the Union, which had been expelled from the
CIO about a year earlier, influenced the employees to disavow the Union and
further motivated members and officers of Local 911 to take part in activities
resulting in the formation of the Committee.
The "issue of communism" in this case arises in a different context from that
involved in Stewart-Warner Corporation, 94 NLRB 607, cited by the General
Counsel. The question of whether Mates was, in fact, a Communist was not
litigated." On the other hand, a memorandum of "Information From the Files
of The Committee On Un-American Activities, U. S. House of Representatives,"
secured through his Congressman by counsel for the Respondent, Steven F.
Dunn, in January 1951, which contains among other things an approximately
two-page summary about Mates, was received in evidence after it became ap-
parent that Baldwin, at a joint meeting of the Committee a few weeks before
the hearing in the instant matter, had read to the committeemen at least the
section therein concerning Mates. This document was first offered by the Re-
spondent as corroboration of the existence of the type of public information
about Communist influence in the Union which employees testified entered into
their consideration in taking action which the Respondent contends constituted
voluntary action by them. This document was not offered or received as evidence
of the truth of the statements contained therein, particularly as to whether
Mates, or either of the other two officers of the Union therein mentioned, were
actually Communists.
In addition, it should be borne in mind that Mates was not called to testify
as a witness, although he participated in the hearing as a representative of
the Union. Hence, in my opinion, the Respondent's contention that Mates'
credibility is in issue is without merit. Mates failure to testify, however, has
of course been duly considered in weighing the evidence. The Respondent's
additional contentions as to the motives and the statements of Mates in filing
the charges are not controlling on any of the issues. Statements in the charges
were not received as proof of the facts stated, and the charges are not pleadings.
Nor would questionable motives or character on the part of an informer, if
proved, preclude action by the appropriate governmental agency."
n Nor do I understand that the Respondent sought to litigate that issue , although one
exhibit offered by the Respondent was rejected because its receipt would have opened
up the issue of Mates' actual Communist affiliation.
22 See N. L. R. B. v. Indiana d Michigan Electric Company , 318 U . S. 9, 18.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To summarize, fact finding in this case as to several matters is difficult because
of the distortion induced in the memory of witnesses by the operation of strong
feelings during an intervening period available for rationalization. In addition,
a realistic appraisal of the record as a whole shows that at certain periods some
of the employees, including members and officials of Local 911, were influenced
by their own feelings about the Union and its leaders as well as by various
letters, speeches, and actions of the Respondent. Thus, under the unusual cir-
cumstances of this case, determination of whether or not behavior of the Respond-
ent was violative of the Act, become closely enmeshed with the problem of under-
standing the total context in which it occurred. Yet to spell out that total context
for each of the numerous matters in issue, and to set out all of the subtle infer-
ences connected with resolutions of credibility which such a course would entail,
would very greatly protract this report. Hence, while I have carefully studied
all of the evidence, and have weighed all of the contentions advanced by the
parties in oral argument and briefs, I am discussing only such matters as appear
to me, after living with the case long enough for painstaking reflection, to have
substantial bearing on pivotal facts and issues. Under this procedure, many
facts and issues will receive only cursory attention. Others which appear remote
or insubstantial with respect to the major issues will not be discussed. In
any event, such findings as follow are made upon the preponderance of the
reliable, probative, and substantial evidence in the record considered as a whole.
B. Background facts and contractual relations"
The Respondent's first labor agreement covering employees involved in the
instant matter apparently stems from a Board decision issued March 12, 1942,
in Oliver Machinery Co., 39 NLRB 722, in which the Board, on the disputed issue
of whether only 1 of the 2 plants presently involved could constitute an ap-
propriate unit, found as appropriate a single plant unit composed of "all produc-
tion employees" at the West Side plant, "including apprentices, but excluding
supervisory, clerical, engineering and plant protection employees and truck
drivers." In upholding the position of the petitioning union, International Asso-
ciation of Machinists, Lodge No. 475, herein called the I. A. M., the Board, while
recognizing merit in the arguments advanced in support of a unit including both
plants, concluded and found as follows :
In these circumstances, giving due consideration to the arguments ad-
vanced by the Company, we see no reason for denying the employees at the
Baldwin Tuthill plant their right to self-organization and to collective bar-
gaining through representatives of their own choosing merely because under
other circumstances a unit including employees at both plants might be
deemed appropriate. We find that the Baldwin Tuthill plant constitutes a
separate appropriate unit in view of the present state of self-organization,
but our finding in this respect does not preclude a later determination that
a larger unit is appropriate when organization has extended to employees
at the Coldbrook plant`
Pursuant to the results of an election, the I. A. M. was certified by the Board
in the above unit at the West Side plant" However, that the employer main-
tained its position on the unit question is patent from the Board's Decision and
13 The findings in this section are based mainly on documentary evidence , credited
testimony which is not contradicted, admissions , and official notice of decisions.
'' It is apparent that the Coldbrook plant is another name for the East Side plant, just
as Baldwin Tuthill Is for the West Side plant.
' 40 NLRB 578.
OLIVER MACHINERY CORPORATION 833
Order of February 12,1943, in M. D. Baldwin, et at., 47 NLRB 449.16 That decision
involved a stipulated refusal to bargain solely on the basis of the contention that
the Board's unit finding was inappropriate. The Board reviewed its decision
on the appropriate unit, again pointing out factors having weight both for the
two-plant unit and for a single-plant unit. As to factors weighing for a unit
embracing both plants, which are about a mile apart, the Board stated :
In the representation case , the Board recognized, as the evidence showed,
that the two plants were similar with respect to equipment, type of opera-
tions performed, and employee classifications ; that the operations of the two
plants were interdependent to a considerable degree and there was a sub-
stantial interchange of work between them ; that both plants were operated
through a single office located in the Coldbrook plant, and all personnel
records were kept in that office ; and that general labor policy was determined
in the company's main office.
As to factors indicating the appropriateness of the single-plant unit, the Board's,
decision continued :
However, we also found that no history of collective bargaining existed at
the respondent's plants ; that the Baldwin Tuthill plant, geographically sepa-
rated from the Coldbrook plant, had a superintendent , assigned exclusively
to it, who handled personnel problems and had authority to hire employees ;
that there was no substantial temporary interchange of employees, but, in
fact, there existed a policy against such interchange ; and that only the
employees at the Baldwin Tuthill plant were organized for the purpose of
collective bargaining.
The Board reaffirmed its previous decision that the West Side plant alone was
an appropriate unit, and ordered the Respondent to bargain.
The Board's order that the Respondent bargain with the I. A. M. for the pro-
duction employees at the West Side plant was enforced by the Court of Appeals
for the Sixth Circuit in Case No. 9513 on December 16, 1943. Thereafter, bar-
gaining relations which are not revealed by the record resulted in a contract
between the I. A. M. and the Respondent covering the West Side plant only.
On September 24, 1943, the Board decided, in M. D. Baldwin, et at., 52 NLRB
849, and in substantial agreement with a stipulation of the parties in that case,
that all employees at the Grand Rapids foundry division, excluding office, clerical,
plant protection, and supervisory employees, constituted an appropriate unit,
and directed an election in which International Molders and Foundry Workers,
Local #213, A. F. L., was the only labor organization on the ballot. Although
the record is vague on the subject, it was apparently pursuant to the outcome of
the election so directed that "an AFL union" has represented the foundry em-
ployees "for a substantial period of time."
The complaint alleges and the answer admits that about July 23, 1946, in Case
No. 7-R-2308, the Board conducted an election among the production, mainte-
nance, and shipping and receiving employees, and other employees in the East,
Side plant only, excluding office, clerical, and supervisory employees ; that the
majority of said employees selected the Union as their bargaining representative ;
and that on November 29, 1946, the Board certified the Union as the representa-
tive of said employees. The foregoing case is not reported in the Board's deci
sions. The only record available in Washington for official notice is the case
19 The 2 plants, operated then by the copartnership constituting the respondents in that
case, are the same 2 plants now involved in the instant matter and in the above
representation case.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
history card. It indicates that the Union was the only labor organization on the
ballot in the election which resulted in the Union's certification by the Regional
Director.
It thus appears that the Union and the Respondent , with the approval of the
Regional Director, agreed upon a unit confined to the East Side plant. Whether
or not there was any proviso as to possible subsequent enlargement of this unit
does not appear . In any event , an agreement dated November 1, 1946, was
signed by a represenative of the Respondent , a representative of the Union, and
by three representatives of Local 918, the predecessor of Local 91114 In its
opening paragraph , the agreement , like each of the series of three agreements
which followed, specified that it was entered into between the Respondent and
the Union, "in behalf of and in conjunction with" its local . 1B The unit of recog-
nition in the 1946 agreement coincided with that for which the Union was
certified, except that no mention was made therein of "shipping and receiving"
employees. There appears to be no explanation in the record for this omission.
Article III of the agreement , entitled "UNION SECURITY AND CHECK-OFF,"
required all members of the Union in good standing , and all employees who
thereafter became members, to maintain their membership in the Union in good
standing "as a condition of employment." It also provided for checking off
initiation fees and dues upon individually executed written authorizations, and
for determination under the grievance procedure of the contract of several
matters pertaining to maintenance of membership. The agreement was to re-
main in effect for 1 year, and from year to year thereafter, in the absence of
written notice 30 days prior to its anniversary date.
The complaint alleges and the answer admits that about April 4, 1947, in
Case No. 7-R-2595, the Board conducted an election among all of the employees
of the West Side plant, "excluding clerical, engineering, plant protection em-
ployees, truck drivers, printers, foremen and supervisors" ; that the majority of
said employees selected the Union as their representatives ; and that on April
14, 1947, the Board certified the Union as the representative of said employees.
This case is not reported in the Board's decisions. The case history card shows
that this was a consent election won by the Union, which was the petitioner,
over Lodge No. 475 of the I. A. M, the intervenor, which had an agreement
expiring on May 7, 1947. The only exclusions from the unit listed on the case
history card are "plant-protection employees." However, from the exclusions
specified in the Board's above-discussed decision of March 12, 1942, in estab-
lishing the unit at the West Side plant, and from the fact that there apparently
never has been any question but that the label division housed in the same
building as the West Side plant should be excluded, it would appear that the unit
admitted in the pleadings reflects the agreed unit for which the Regional Di-
rector certified the Union for the West Side plant. It thus appears that this
certification of the Union," the most recent certification involved in this
case, stems back to a unit determination made by the Board some 5 years earlier,
which was upheld by the Court of Appeals for the Sixth Circuit on December
16, 1943, and that the I. A. M. had had a contract for the West Side plant em-
ployees for a period of time prior to the Union's 1947 certification for that unit.
The next development established by the evidence was the execution by the
Respondent , the Union, and Local 911, of a 1-year agreement , dated November 1,
1947, renewable in the absence of 60 days notice, which provided for the Union's
17 By notice dated December 3, 1946, bearing 3 signatures , 2 of which appear on the
above agreement , the Respondent was advised that thereafter Local 9-18 would be known
as Local 9,11.
'8 The local was specified as "Local No 918" in this agreement and as "Local No. 911"
in each of the subsequent agreements.
11 In both certifications , it was the International UE only which was certified.
OLIVER MACHINERY CORPORATION 835
recognition as the representative of the Respondent's employees in both the East
Side and West Side plants. The description of the combined unit in the 1947
agreement differs in no material respect from that in the most recent agreement
of November 1, 1949, which is set out in full hereinafter. The 1947 agreement,
and a memorandum of understanding attached thereto, were each signed by a
representative of the Respondent, by a representative of the Union , and by four
representatives of Local 911. The union-security and checkoff provisions of
article III were similar to those in the earlier contract. All employees who were
union members in good standing on November 20, 1947, or thereafter, voluntarily
became members, were required to maintain their membership in good standing.
An employee "intimidated or coerced" into joining the Union during a 15-day
"escape" period could submit the matter as a grievance. The voluntary written
checkoff authorizations were for dues only, and were effective for 1 year or the
duration of the contract, whichever was shorter.
The memorandum of understanding attached to the 1947 agreement , to which
article III thereof was specifically made subject, essentially recapitulated certain
fundamental provisions of article III, including the above-summarized provisions
requiring maintenance of union membership. However, it varied the resort to
the contract's grievance procedure by substituting therefor "an impartial referee"
to determine such disputes as whether an employee was a union member on
November 20, 1947; was coerced into joining during the 15-day escape period ;
or failed to maintain his membership in good standing. In addition, the memo-
randum contained the following new provisions, which are not further explained
in the record :
If any employee should, after the signing of this contract, desire to resign
from the Union but continue his employment with the Company, these facts
likewise shall be presented to the impartial referee, who shall decide whether
or not the employer may be permitted to resign from Union membership.
The referee shall permit employees to resign from Union membership,
without such affecting their employment, if they can show religious objec-
tions to membership in the Union, or that they have been intimidated or
coerced into joining the Union or maintaining their membership therein,
or have joined the Union under misrepresentation, or if their membership
in the Union shall cause them extreme financial hardship. Other reasons
justifying resignation from Union membership shall be within the discretion
of the referee. The referee's decision in all cases shall be final and the
expenses of the referee shall be paid as mutually agreed upon.
At this point it is important to note that although the above contract was
executed after August 22, 1947, the effective date of certain amendments to the
Act pertaining to union security, no election had then, or has at any time since,
been conducted, pursuant to Section 9 (a) (1) of the amended Act, which could
authorize the Union to make an agreement containing union-security provisions.
In short, the 1947 agreement appears to have taken no cognizance of the union-
security provisions of Sections S (a) (3) and 9 (e) (1) of the Act as then
amended," except to the extent that the above-quoted provisions of the memo-
randum apparently were intended to soften the illegal maintenance-of-member-
ship requirements in the agreement itself. But even these apparently novel
softening provisions! did not, as I interpret the long line of Board decisions
bearing on this subject, serve to make the 1947 contract's union-security pro-
visions legal. In any event, as appears below, those softening provisions were
subsequently abandoned.
10 While such an election is no longer required under further amendments of October 22,
1951 , such amendments occurring after matters in issue in this case are not material to
a determination thereof.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 2, 1948, a supplemental agreement was signed by a representative of
the Respondent, a representative of the Union, and by four representatives of
Local 911. It extended the 1947 agreement to November 1, 1949, and provided
among other things, that "said contract will be administered and interpreted in
accordance with applicable laws and interpretations thereof."'
On or about November 1, 1949, a 2-year agreement, renewable from year to
year thereafter in the absence of 60 days written notice prior to November 1,
1951, was signed for the Respondent by Ralph Baldwin, and for the Union by
David Mates and 4 employees." In contrast to the preceding agreements, Local
911 does not appear as a signer of the 1949 agreement. Nor was the phrase last
quoted in the immediately preceding paragraph carried over into this agreement.
The unit in the 1949 agreement is identical, save for minor clerical variations,
with the unit alleged in the complaint as appropriate. It reads as follows :
The bargaining unit, for the purposes of this agreement, shall be composed
of production and maintenance employees of the Company's two (2) machine
shops, known as the "Clancy Avenue plant" and the "Baldwin-Tuthill plant"
but excluding all office and clerical employees ; all supervisory employees
with the authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such action,
and all employees of the label division of the Baldwin-Tuthill plant.
As to the union-security provisions in this latest agreement, all of the novel
softening modifications of the 1947 memorandum were abandoned. Disputes of
the type transferred under the memorandum to an impartial referee, all were
returned to the contract's grievance procedure. It was provided that the Re-
spondent would deduct union dues for 1 year or the life of the contract, which-
ever was shorter, upon receipt of voluntary authorizations received in writing
before November 16, 1949. And it was required that, "as a condition of employ-
ment," union membership in good standing would have to be maintained by all
employees who thereafter joined and by all employees who were members of
the Union in good standing on November 2, 1949. It is thus apparent on its
face that the 1949 contract provided no effective escape period and imposed
more stringent union-security requirements of an illegal nature than its
predecessor.'
While there is no specific explanation in the record of the failure of Local
911 to appear as a signer of the 1949 contract, there is evidence which sheds
considerable light on the situation which existed within Local 911 during that
period. It should be noted that Local 911 had originally included the employees
of 3 other companies R4 in addition to the employees of the 2 plants of the Re-
spondent here involved. I am convinced from credited testimony, some of
which is hereafter cited, that a principal cause of Local 911 dwindling until it
included only employees of the Respondent was dissension which developed
around the Communist issue. Archie Simons, presently chairman of the Com-
mittee, West Side plant, who was the treasurer of Local 911, testified that from
a Such a phrase was not a substitute for authorization pursuant to a Section 9 (e) (1)
election.
2' While this agreement may not have been signed by the four employees, as appears more
fully below, until sometime after November 1, 1949, the date it bears, that date is herein
used as the date of its execution.
a' The Board had held as early as November 5, 1948, that the execution of maintenance-
of-membership provisions in the absence of certification pursuant to Section 9 (e) (1) of
the Act was illegal . See General Electric Company, 80 NLRB 169, and C. Hager J Sons
Hinge Manufacturing Company, 80 NLRB 163, 165.
u These were Lear, Incorporated ; Furniture City Plating Company; and Automatic
Musical Instrument Company, also known as AMI.
OLIVER MACHINERY CORPORATION 837
the earlier part of 1947, the first year after the Respondent 's employees got into
the amalgamated local ,26 there were discussions at the meetings about Communist
infiltration ; that they "even had men here from New York, Pittsburgh, and all
over arguing about it"; that the other plants "all dropped out of Local 911 for
the stated reason that the UE was Communist dominated and they wanted no
part of Local 911 and that left just Oliver Machinery holding the bag" ; and that
he himself "would have withdrawn then but that would have left us no means
of bargaining with the company collectively."
Although the chronology of Local 911's dwindling cannot be precisely estab-
lished from the record, it appears that the employees of Lear, Incorporated,
"pulled out" first, possibly as early as 1947; that the employees of AMI followed
next, about a year and a half later; 28 and that a small number of employees of
Furniture City Plating Company remained until perhaps November 1949, leaving
about the time of the severance of the Union from the CIO 27 In any event,
Edward Bernatowicz, an East Side plant employee who had been a member of
the Union since it had secured its first contract and had also served as a steward
of Local 911, testified that "from the time Lear, Incorporated dropped out of the
amalgamated union, until around the time when the 1949 contract was signed and
Local 911 contained only Oliver Machinery Company, there was strong talk of
communism in the Union." 28
While it is possible that "the Communist issue had reached its climax" by,
the latter part of 1949, as the General Counsel' s brief contends, it was far from
"a dead issue" at the time the contract for 2 years, with its above-described
illegal union-security provisions, was signed on November 1, 1949 . In thia
respect, the undisputed testimony of Harold Cooper, who had served on the
Union's 1949 bargaining committee and had also been recording secretary and
chief steward of Local 911,29 is particularly illuminating. Cooper, whose signa-
ture heads the four signatures of the employees appearing below that of Mates
on behalf of the Union on the 1949 agreement , testified that he had hesitated
to sign the 1949 contract "because the UE had been expelled from the CIO at that
time." Cooper's credited version of what transpired in a conversation with
Dunn, before signing the 1949 agreement during the negotiation of which Dunn
had served as the Respondent's attorney, is as follows :
. .. The other members of our plant, that is of the negotiating committee
and myself approached Mr. Dunn immediately prior to signing the agreement
because of the fact that there had been an upheaval in the CIO. The UE
had been put out and we were somewhat hesitant to sign with the Inter-
national Union because we didn't know what was coming . We thought it
would be better if we could find out and could Sign on behalf of the Local,
and then if we wanted to, we could withdraw from the International.
[Emphasis supplied.]
s • • s s a s
I believe that you [Dunn] said it was-the whole situation was very
undecided. This whole thing had taken place I believe just a day or two
26 It will be recalled that the Respondent was notified on December 3, 1946 , that Local
918, one of the signers of the 1946 contract covering the East Side plant , would thereafter
be known as Local 911.
28 Dunn testified that the Union still represented the employees of AMI, but In "a different
local "
27 This approximate chronology rests largely on somewhat Indefinite testimony of Donald
Baar, who is identified elsewhere herein.
28 The quoted material is a summary of Baar's testimony adopted from the General
Counsel's brief.
29 Cooper became assistant general assembly foreman in November 1950.
250983-vol. 102-53-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior and-there was nothing definite as to what could be done or what was
going to happen. That is in respect to the status of the UE in relation to
the CIO and I believe you said there wasn't too much we could do other than
sign the contract at that time.
Dunn's version of the foregoing incident supplements Cooper's in some re-
spects. Dunn testified that Mates had asked him to give "the shop committee in
1949 my opinion as to the effect of the UE's expulsion from the CIO"; that he
thereafter told the committee that factually and legally the "identity of the UE
International" had not changed and that he had "no facts supporting those
rumors" as to communism in the Union ; that he had accepted "at face value" the
explanation which Mates had given him that "the expulsion of the International
UE from the CIO was purely political" ; that he later felt that lie "had been
fooled" ; and that he had not known at the time he talked with the committee
that "there was any interest on the part of another union."
As to the bearing of the signing of the 1949 contract on employee activity at
that time looking toward the selection of another representative, the credited and
uncontradicted testimony of Donald Baar, a steward in the East Side plant who
had been in the Union since 1946, is particularly noteworthy. This is the gist of
Baar's testimony on this subject. A committee, apparently composed largely of
stewards from the East Side plant, held two meetings with UAW representatives
to canvass the possibility of the employees getting out of the Union and into the
UAW. The first of these meetings was held the evening of the day upon which
the 1949 contract had been signed about noon. After meeting with the UAW rep-
resentatives, the committee of stewards talked the matter over with employees
who, "in most instances," said they wanted to get out of the Union. They
explained to the employees that there would have to be enough UAW cards signed
to support a petition for an NLRB election. The feeling revealed as a result of
this questioning was expressed by Baar as follows:
Everyone seemed to be quite sick of all unions at the time and we just
couldn't interest enough people into going through with it, seeing we had to
have some sort of a majority to petition an election from the NLRB.
Baar further testified that Cooper, who was also a member of the committee
considering going into the UAW, explained to the committee that Dunn's advice
had been sought about signing the 1949 contract, and that Dunn's opinion had
been "to sign it." The ultimate decision informally reached by the committee
was explained by Baar in the following words :
We talked amongst each other and at that time we had just signed an
agreement with the Company and we decided we would leave the agreement
in effect because we would undoubtedly run into difficulties getting a petition
for an NLRB election.
Some additional testimony, summarized in the General Counsel's brief as
follows, should be noted :
Frank Herman testified that in November 1949, under an escape period
in the 1947 contract, he withdrew from the Union because he thought it
was a Communist organization, and that the reasons for his resigning, as
well as the existence of an escape period, were generally known to the
employees. %
While it would appear from Herman's testimony that other employees "pretty
generally" knew of his reasons for leaving the Union, and that perhaps 1 or 2
OLIVER MACHINERY CORPORATION 839
other employees also got out about the same time, there is doubt in my mind as
to just when Baar did withdraw, and as to how the escape period provided in
the 1947 contract could have operated in November 1949. It is possible, of
course, that Herman may have left the Union prior to November 1949, under
the above-discussed provisions in the 1947 memorandum, or that the Union was
lax in insisting upon adherence to the provisions of the 1949 contract. In any
event, the contract "entered into" on November 1, 1949, provided for mainte-
nance of membership for employees who were members of the Union as of No-
vember 2, 1949, and Herman's testimony, in my opinion, does not warrant a
finding that the 1949 agreement was actually interpreted to mean less than it
plainly said.
C The alleged refusal to bargain
1. The appropriate unit
As noted above, the Respondent's answer does not admit the allegations of the
complaint as to the appropriate unit. Rather it states that the Respondent
"neither admits nor denies that the employees in the unit described in Paragraph
13 constitute a unit appropriate for the purposes of collective bargaining." Para-
graph 13 of the complaint alleges that the Respondent entered into an agreement
with the Union covering "the employees described in units set forth in para-
graphs 11 and 12 above, ° said units being jointly described" in the agreement
in the language set forth above in full. Paragraph 14 of the complaint further
alleges that all of the employees "in the unit described in paragraph 13 above,
constitute a unit appropriate for the purposes of collective bargaining."
At best, the complaint appears somewhat ambiguous as to whether it is alleged
that there are 2 separate appropriate units for which there has been joint bar-
gaining or whether the 2 plants constitute a single appropriate unit. The Gen-
eral Counsel introduced some unit evidence, the intent of which appears to be
to establish that a single unit composed of both plants is appropriate. However,
it is my opinion that the unit evidence, which is silent on several points, does not,
on the whole, establish that there have been material changes in the factors
bearing on the unit issue since the Board's decision of February 12, 1943,'
except that self-organization has been extended to both plants, and the collective-
bargaining history set out above in detail has since developed.
In brief, this history shows that before November 1, 1947, the IAM had repre-
sented the West Side plant employees separately for an apparently substantial
period of time, and the Union had a contract covering only the East Side plant
employees for a year. Since November 1, 1947, subsequent to its separate certifi-
cations for the respective plants as separate units, the Union has covered both
plants in a series of single contracts which have described the employees covered
in language which on its face constitutes a single combined unit . Moreover,
each of these contracts, as is fully detailed above, afforded the Union illegal
assistance by virtue of illegal union-security provisions. It is thus apparent
that the only history of bargaining pointing toward a unit composed of both
plants is all under the cloud of these illegal union-security provisions. Accord-
ingly, the weight which should be accorded such bargaining history in deter-
mining the appropriate unit is subject to serious question"
3O Those units are the respective ones set out in the immediately preceding section of
this report , for which the Regional Director certified the Union in the two plants separately.
ii The factors discussed in that decision have been fully set out in the preceding section
of this report.
ii Cf 11'isconxin Telephone Company , 12 NLRB 375,, 396.
0
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, it is not clear from the evidence that the unit description, taken
from the 1949 contract and set out in paragraph 13 of the complaint, actually
does jointly describe the two units for which the Union had previously been
certified. A careful comparison of all of the units detailed above shows that,
on its face, the language relied upon as the unit description fails specifically to
include shipping and receiving employees who were specifically included in the
East Side plant certification. It also fails specifically to exclude truckdrivers,
printers, and engineering and plant-protection employees, who were specifically
excluded from the West Side plant certification. However, the printers ap-
parently have been excluded by virtue of the unit language which excludes
"all employees of the label division."
While the facts, if fully developed, might warrant holding that the employees
specified in the complaint constitute an appropriate unit, in view of the ambiguity
and the relative balance of the evidence on the unit issue, and because findings
in the next section of this report have equal force in disposing of the refusal-
to-bargain phase of this case, whether considered as applying to 1 joint unit or
to 2 separate units, it is my opinion that a unit finding is not now appropriate
or necessary" In addition, as appears more fully from my ultimate conclusions
and recommendations, the purposes of the Act may best be served by freeing
the employees from interference to pursue self-organization in such unit or units.
as may hereafter be established to be appropriate. Accordingly, no appropriate
unit finding is made.
2. The Union's majority
From the brief and positions taken at the hearing, it appears that the General
Counsel advances the following as evidence that the Union represented a majority
of the Respondent's employees during the fall of 1950: Checkoff lists of employees
at both plants; the certifications above described; the then unexpired 2-year
contract of November 1, 19,49; and the fact that most of the employees at first
participated in the strike. It should also be noted that the General Counsel
takes exception to majority issue contentions, now to be summarized, which
are advanced by the Respondent.
As to the majority issue, the Respondent's various contentions, buttressed by-
numerous citations, are essentially that there is "absolutely no evidence" estab-
lishing the Union's majority; that the 1949 contract contains an invalid union-
security clause ; " that as a matter of law certifications are revocable at will
after a reasonable time; that the "lapse of over 4 years is certainly longer"
than the right to revoke can be suspended; that while the bargaining impasse
continued, the Union "lost its position as representative of the majority of
Respondent's employees by its own actions and without any improper actions
by Respondent on October 13 and certainly by October 17"; that the evidence
establishes the Union's loss of majority in five respects epitomized in the
" Cf International Union, United Mine Workers of America, et al, 83 NLRB 916, 920,
and A. S. Beck Shoe Corporation, 9,2 NLRB 1457, 1459
'* It should be noted that my holdings throughout this report as to the illegality of
union-security clauses in the contracts are not based on the absence of 3,0-day escape
periods, concerning which the Respondent cites Worthington Pump and Machinery Corpo-
ration, 93 NLRB 527, because of the Board's more recent position in Krause Milling Co ,.
97 NLRB 536. Nor are such holdings bottomed on the voluntary checkoff provisions.
OLIVER MACHINERY CORPORATION 841
margin; '5 and that the Respondent's position herein is more favorable than
that involved in the Board's Celanese decision ," because the Respondent not
only had "ample reason to doubt" the Union's majority "at the termination of
the strike," but the record "shows ample evidence to rebut any presumption"
of continuing majority.
Before further considering the majority question , certain facts should be
noted about the strike, which started Tuesday morning, October 10, 1950.
While the great majority of the employees at both plants stayed out the first
day or two, the strike was not successful. Within some 3 days, the employees
of the East Side plant, followed by the West Side employees, held meetings at
which they voted to return to work. The strikers who wanted to return to work
evidently did so by or before Monday, October 16. Apparently all of the strikers,
except one who did not wish to, returned. In any event, there is no contention
that the Respondent failed to reinstate any strikers, and no question concerning
replacements is involved in the majority issue.
I have carefully studied the Board's decision in the above-mentioned Celanese
case. It is my opinion that the unusual circumstances involved in the instant
matter warrant proceeding in the most direct way to a determination of the
majority question. This is true in no small part ,because any preliminary appli-
cation of the "good faith" test, apparently presumed in the majority decision in
the Celanese case as a first step, would involve, because of the nature of the
evidence pertaining to bargaining discussed in section III, A, above, the pro-
tracted and complex task of setting out the facts concerning the negotiations
and thereafter disposing of the contentions in the 14 numbered paragraphs in
the General Counsel's brief in which are specified the "Indicia of the Respond-
ent's bad faith bargaining." 8' Similar problems of setting out and evaluating
evidence, especially in view of the history of dissension connected with the
Communist issue, would be involved in attempting to determine whether or not
the record supports the Respondent's contention that the employee repudiated
the Union by voluntary actions during and after the strike , thereby rebutting
any presumption of majority. In any event, because of the background in this
case, including the illegal union-security clauses in the contracts, it is my opinion
that it will expedite decision to come to grips directly with the question of
whether or not the evidence relied upon by the General Counsel to establish the
" 1. A meeting of East Side plant employees voted to return to work after Mates had
advised them that "if they returned to work, they did so without a union."
2. Extensive dissatisfaction with the Union , particularly because of the feeling that it
was "Communist dominated ," and statements before and during the strike by "an over-
whelming number of the employees" that they did not wish to be represented by the
Union had been "communicated" to the Respondent.
3. A ballot of employees, discussed below, taken on their own initiative on October 17.
1950, demonstrated that the Union no longer had a majority.
4. Almost all of some 59 East Side plant employees whom Simons, as treasurer of Local
911, tried to get to sign new checkoff cards about November 1, 1950, told him they "wanted
no part" of the Union.
5. A majority of those who had been union members at the time of the strike signed
a petition to the Board to dismiss the charges in this case.
The quotations in this footnote and in the above paragraph are from the Respondent's
brief.
" Celanese Corporation of America, 95 NLRB 664.
87 Careful reading of the Celanese decision indicates that "good faith " in raising the
majority issue is not the same as having "ample reason to doubt" the majority.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union 's majority in the fall of 1950 actually does establish such majority.
Accordingly , that question will first be considered.
The General Counsel 's brief states that during October 1950 there were 167
employees in the 2 plants and that during the same period the checkoff contained
88 employees. My own analysis of the evidence shows that the payroll of the
West Side plant for the week ending October 7, 1950 , as conformed by agree-
ment of the parties at the hearing to include only the names of individuals
considered in the unit, contained 75 employees . The October checkoff list for the
West Side plant contained 38 names. For the East Side plant , the conformed
October 7 payroll contained 95 employees and the October checkoff lists 50 names.
It is thus apparent that for the 2 plants combined the October checkoff listed 88
of the 170 employees on the conformed October 7, 1950, payroll. Hence, this
evidence establishes that, whether the plants be considered jointly or separately,
a majority of the employees had their dues to the Union checked off for the
mouth of October 1950.
A result, similar in all material respects to that for October, is obtained
when the conformed payrolls, in evidence for the 2 plants for the week ending
September 30, 1950, are analyzed with respect to the September 1950 checkoff
lists for the 2 plants. The General Counsel's brief seeks to augment the checkoff
evidence by reference to some additional employees who signed applications for
membership in the Union about a month before the strike, and to union members
who paid dues in cash. The fragmentary and indefinite evidence on these mat-
ters is not sufficient to have any weight in proving majority if the checkoff
evidence fails. On the other hand, such additional evidence is unnecessary if
the checkoff evidence is found valid under all of the circumstances of this case.
To this last question we now turn.
The provisions of the November 1, 1949, contract, pursuant to which the check-
off was being made in the fall of 1950, have been detailed above, along with the
background and the circumstances surrounding the signing of that contract.
The individual checkoff authorization signed by union members, presumably
"before November 16, 1949" to comply with the terms of the contract, were
"irrevocable for a period of one year," or until the termination or renewal date
of the contract.
That the provisions of the 1949 contract requiring maintenance of member-
ship were illegal is beyond question. That the signing of this contract, upon
advice of counsel for the Respondent, actually had an inhibiting effect on self-
organization appears evident from the circumstances detailed earlier in this
report. But even ignoring evidence of such actual impact, the very existence
of the illegal union-security provisions in the series of agreements covering the
2 plants jointly , negatives any assumption that employees , by signing these de-
duction authorizations about November 16, 1949, were voluntarily and irrevoca-
bly designating the Union as their bargaining agent for the 1-year period which
actually did apply to those authorizations. This is true because the Board has
repeatedly held that illegal union-security clauses, by imposing unlawful con-
ditions of employment , act as restraints upon employees desiring to refrain from
union activities, within the meaning of Section 7 of the Act. Hence, it cannot
be said that employees who were being required by illegal contractual provisions
to maintain their membership in the Union negated that illegal restraint by
voluntarily accepting a less troublesome method of paying the union dues which
constituted an illegal prerequisite for their continued employment . In short,
it is my opinion that a careful study of the background facts set out in section
III, B , in the light of the Board's policy concerning illegal union-security clauses,
compels the conclusions that the checkoff lists relied on by the General Counsel
OLIVER MACHINERY CORPORATION 843
can be accorded no weight in establishing the Union 's majority in any unit at
any time material in this case.
As of the fall of 1950, the East Side plant certification was about 4 years old,
and the West Side plant certification about 31/2 years old . Although the certifi-
cations had been for separate units, by the fall of 1950 a unit which appears
to combine approximately those 2 units into a single one had been covered
for about 3 years by a series of contracts containing illegal union -security pro-
visions. It is apparent from numerous Board decisions in cases where allega-
tions that contracts involve illegal union-security clauses are proved, that the
Board , in essence , concludes that the labor organizations have been illegally
assisted and the employees illegally restrained and customarily requires that no
effect thereafter be given to such contracts and that recognition be withdrawn
from the contracting organizations. While the illegal provisions of the con-
tracts in the instant matter were not put in issue as unfair labor practices by
the pleadings , it would appear totally inconsistent with the Board' s policy per-
taining to illegal union-security provisions to give any effect to the certifications
as establishing the Union's majority in the fall of 1950, in view of the approxi-
mately 3 intervening years during which this illegal assistance to the Union and
restraint of the employees had existed . Accordingly, I find that the illegal
union-security provisions in the contracts described above, under all of the
circumstances of this case, deprive the certifications of probative value as evi-
dence of the Union's majority , in any unit or units, at any time material herein.
For reasons which are apparent from the foregoing , it would not square with
Board policy to accord any weight to the 2-year contract of November 1, 1949,
as evidence of the Union 's status as the representative of the Respondent's em-
ployees during the fall of 1950, although the contract then still had approximately
a year to run. Hence that contract, which was not a bar to a determination of
representatives and which restrained the employees and assisted the Union,
does nothing to contribute to the General Counsel's proof of the Union's majority.
In fact, because of the infirmity in this contract by virtue of its illegal union-
security provisions , I deem it unnecessary , except to the extent such matters are
hereinafter considered, to pass on other contentions of the parties pertaining to
this contract.
We come now to the participation of the employees in the strike as evidence
of majority . The essential facts as to this participation have previously been
stated. In view of the foregoing findings, this brief strike participation by most
of the employees , followed shortly by votes to return to work, stands alone as
proof of majority . Whatever weight might be accorded strike participation in
conjunction with other evidence in establishing majority , I am convinced and
find that the strike participation here involved does not constitute sufficient evi-
dence, under all of the circumstances of this case , to establish majority repre-
sentation by the Union in any unit or units.
In view of all of the foregoing , I conclude and find that whether the unit be
considered a single joint unit or two separate units bargained for jointly, the
allegations of the complaint as to the Union 's majority have not been established
by substantial evidence on the record considered as a whole.
3. Conclusions as to the alleged refusal to bargain
In view of the failure of the evidence to establish that the Union had a ma-
jority in any appropriate unit or units above discussed , at any time here material,
the allegations of the complaint as to the Respondent 's refusal to bargain must
fail . Accordingly , my partial granting of the motions to dismiss operates as a
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismissal of the complaint insofar as it alleges that the Respondent has refused
to bargain with the Union, in violation of Section 8 (a) (5) of the Act.
In view of the foregoing, I deem it unnecessary to go into numerous remaining
conflicts, theories, and contentions which revolve around the refusal-to-bargain
issue, although all have been carefully considered. Accordingly, with reference
to such matters as the bargaining conferences prior to the strike, only those
facts will hereinafter be stated which appear necessary for background and
orientation with respect to the remaining issues in this case.
D. Chronology of events; tinterference, restraint, and coercion
1. Events before the strike
It should be noted at the outset that, as the Respondent stresses, the back-
ground in this case shows no antiunion animus on its part. On the contrary,
the Respondent some years ago consented to elections involving the Union,
and thereafter signed a series of agreements with the Union. The last of these
agreements, dated November 1, 1949, contained a provision that during its
2-year term either party could, within 6 months of the signing thereof and
upon 60 days' written notice, reopen the contract once concerning wages. On
August 8, 1950, the Union, over the signature of Mates, wrote the Respondent
from Detroit where Mates had his office that pursuant to the reopening pro-
vision it desired "to open negotiations on monetary and wage matters," and
asked for a reply at "the earliest possible date."
Pursuant to this reopening, a series of 5 bargaining meetings were held.
These meetings, which usually lasted several hours, took place on August 24,
September 11, September 25, October 3, and October 9, 1950, in Attorney Dunn's
office. Mates, the chief representative of the Union, was accompanied by a
bargaining committee for Local 911, composed of 2 members from each plant.
The participants for the Respondent always included Ralph Baldwin, the Re-
spondent's production manager and 1 of its directors, and Dunn, except that
Dunn's associate took his place at the last meeting. The superintendents of the
2 plants were also present at most, if not all, of these meetings. In addition,
at apparently all the meetings except the first one either a State or a Federal
conciliator, or both, were present. During the period of the foregoing negotia-
tions, Local 911 held meetings at which bargaining demands were formulated
and the developments at the negotiations were reported and discussed.
In the meantime, before the bargaining meetings got underway, the Respondent
posted a notice on August 17, 1950, in its 2 plants that wages would be increased,
effective as of August 7, by 5 cents per hour for nonpremium or day rate
employees and by 4 cents per hour for premium or incentive employees. An
announcement had been posted the day before, August 16, increasing wages
of the foundry, label department, pattern shop, and office employees, who were
not represented by the Union, by 5 cents an hour, as of August 7. That August
16 notice stated that "a comparable wage increase offered the Machine Shop
Employees is presently unacceptable to the Union."
Dunn testified credibly and without contradiction that the increase to the em-
ployees represented by the Union had been held up until he had been able to
secure Mates ' approval for that increase in a telephone conversation to Mates
in Detroit on August 17. Baldwin's uncontradicted and credited testimony is
that he had first proposed the increase to the local committee of four union men
on August 9, after receiving Mates' letter of August 8, because he had felt that
early action was desirable in view of a possible wage freeze ; that the committee
said it would take the proposal "back to their local group for discussion"; that
OLIVER MACHINERY CORPORATION 845
the committee later informed him that they "were waiting for a response" from
Mates ; and that Dunn later explained that he had received Mates' approval of
the raise by telephone. Whether or not the Respondent might have handled this
matter more appropriately, under all the circumstances, is a debatable question.
In any event, I find no warrant for holding that the granting of this wage increase
prior to the opening of the bargaining conferences constituted a violation of
Section 8 (a) (1) of the Act"
About 4: 15 p. in. September 11, shortly after the second bargaining session
which adjourned early, the Respondent's employees in each plant were assembled
to hear a hastily prepared statement of the Respondent's position. The employee
did not punch out their timecards until after these meetings. The statement was
read to the employees at the East Side plant by Superintendent Fred Zwald, and
to the West Side plant employees by Manager Baldwin. After reading the pre-
pared statement, Baldwin advised the employees that the Respondent was not
breaking off negotiations and urged them to attend any union meeting which
might take place, and vote.
The 21/2-page "Memorandum re Facts to Employees" which was read is in
evidence. The General Counsel contends that this statement was violative of
Section 8 (a) (1) because the Respondent was thereby urging and persuading
the employees to negotiate with it directly and to abandon the Union. The
Respondent's position is that in presenting its viewpoint, proposals, and pertinent
facts, it was only exercising its protected right of free speech.
No purpose would be served by setting out all of this statement. In brief, the
statement explained why the August 7 increase had been given ; accused the
Union of making "several wild statements" at the first bargaining meeting ; stated
that at the second meeting held that day the Union "made the flat statement that
either we settle by tonight or they will put up pickets tomorrow morning" ; indi-
cated that such a strike would be in violation of the contract ; urged the merit of a
cost-of-living adjustment which the Respondent had offered ; asserted that the
employees did not "have to be pushed around by a small minority" in the Union ;
stated that the plant would be open for work as usual ; and expressed the hope
that the employees would see the fairness of the Respondent's position and avoid
"any unnecessary work stoppages and loss of earnings."
Careful study of the Respondent's statement in the light of the total context
in which it was presented does not convince me that the Respondent thereby
violated Section 8 (a) (1). I am satisfied from my analysis of the testimony
that Mates actually did threaten a strike the next day if the Union's demands
were not met at once. The Respondent could reasonably have believed that a
strike then would have violated the contract. In the light of my interpretation
of what was currently taking place, I do not believe that it can be said that this
statement of the Respondent constituted more than a permissible attempt to
present its position to its employees in order to avoid a strike.
At the close of work on October 3, the day on which the fourth bargaining
conference took place, the Respondent distributed to the employees concerned a
three-page, single-spaced letter which set out in considerable detail the Re-
spondent's analysis of the respective positions of the parties as of October 3.
This Indicated the Respondent had agreed to the Union's demands to restate
contract provisions "dealing with timing of incentive jobs" and to furnish the
Union "job classifications and rate ranges for all day rate workers" ; had refused
to agree the the Union's demand for 6 paid holidays ; had offered a further hourly
""Granting unilateral wage increases to employees" is one of the Section S (a) (1)
violations specified in the complaint.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase in "the base rate of premium workers by 2¢ and non-premium workers
by 21/a," which approximated half of the increase above the August 7 advance
which the Union was demanding ; and had also offered additionally to adjust
wages every 3 months on the basis of the BLS cost-of-living index. The letter
detailed the procedure under the proposed cost-of-living adjustments, indicating
that during its operation under the 2-year extension of the contract to November 1,
1953, which the Respondent proposed,30 wages could not fall below the base rate
at the time it was put into effect, although there was to be no upward limit
to such adjustments. A substantial part of this letter was given to showing, by
comparative analysis, that the Respondent's wage structure was among the
highest in the Grand Rapids area, and that the Respondent's proposal was "the
best one for all parties that can possibly be made at this time."
The General Counsel evidently does not attack the above letter on any theory
that it distorted the positions of the parties at that time. It appears to me,
in the light of all the evidence but without passing on the negotiations which
had led to the positions stated, that the October 3 letter's statement of the
positions of the parties at the end of the fourth conference was substantially
accurate. Under all the circumstances, I believe that this letter falls within the
area of "views, argument, or opinion," protected by Section 8 (c) of the Act,
as the Respondent contends, and does not violate Section 8 (a) (1) as a part
of a course of conduct, as the General Counsel contends.
On October 6, the Respondent addressed a personal, three-page letter to each
of its employees, which for the most part further argued the merits of the
Respondent's proposals and the disadvantages of a strike. Concerning this
letter, the contentions are essentially like those pertaining to the above letter
and speech, except that the General Counsel also contends that the October 6
letter "contains a veiled threat not to rehire all strikers." As to this threat,
the General Counsel quotes the following two paragraphs :
Let me point out to you what such a strike would mean. Anyone who
goes out on an economic strike actually quits his job-he does not have to be
rehired by the company unless the company agrees to it in the settlement
of the strike.
If a strike does occur, you may rest assured that the Company is resolved
to rehire at the end of the strike only those men who are willing to work
for the good of all concerned-the workers, the Company, and the general
public.
The above two paragraphs appear about the middle of the letter, which opens
with details as to the actual earnings of the individual to whom the letter was
addressed. Four paragraphs follow which argue the fairness of the Respond-
ent's wage proposals and the advantages of an automatic cost-of-living adjust-
ment when wages are frozen. After a brief paragraph to the effect that the
Union, in refusing the Respondent's offer, had indicated that it would "vote
a strike next Monday night," the letter devotes two paragraphs to the Union's
refusal at the October 3 meeting to accept the offer of the State conciliator to
conduct a vote among all of the employees affected as to "whether or not they
wished to accept the Company's proposal." Immediately preceding the above-
quoted paragraphs, the letter states that the Union planned to confine the strike
vote to its members10 so that "only a few men can destroy the job security and
income of all of you."
80 The Union's proposal was for a 1-year extension.
40 While the Union was legally within its rights in confining the strike vote to members
only, it departed from previous practice in conducting votes among the employees involved.
Thiv departure resulted in resentment not only on the part of the Respondent but on the
part of employees
OLIVER MACHINERY CORPORATION 847
The letter, following the paragraphs specifically challenged as a veiled threat,
is devoted principally to urging that careful consideration be given to the losses
involved in a strike, both from the personal and the business standpoint. In
closing, the letter, which was signed Al. D. Baldwin, president," states that "the
two machine shops will continue open for all who wish to work" ; urges everyone
"to think this whole problem through"; and expresses the hope that "you will
come up with the right decision."
While the above-quoted paragraphs, viewed out of context, raise doubts that a
veiled threat may have been intended, it is my judgment that when all factors
are considered, no threat to discriminate in rehiring strikers was intended or
would necessarily be understood from the entire letter of October 6. It is note-
worthy that after the Union had lost the strike, no question actually was ever
raised about taking back any of the strikers who wished to return. In short,
while the quoted paragraphs could have been more aptly worded, I find that the
October 6 letter as a whole and in context did not fall within the prohibitions of
Section 8 (a) (1) of the Act, but rather within the protection of Section 8 (c).
The fifth and final bargaining conference took place on Monday, October 9.
There can be no doubt that after further proposals and counterproposals had
been considered for almost 3 hours, this meeting terminated in an impasse. It
is my opinion that the chief element in this impasse was the Respondent's fiat
refusal to agree to the Union's demand for 6 paid holidays. In addition, the
Union never indicated any willingness to accept a cost-of-living adjustment as
part of a wage settlement. It was that evening that a strike was voted at a
meeting of Local 911. In the meantime, President Baldwin had made a speech
on October 9, to a consideration of which we now turn.
Elmer Johnson, a West Side plant employee called as a witness by the General
Counsel, testified that his foreman notified him of a meeting in the assembly
room of the plant at which the "biggest majority of the fellows" were present
and that President Baldwin on that occasion made the following remarks :
"My friends, which I hope you are my friends, we are up against a problem
that is hard to discuss," and he says "We have got our backs to the wall."
He says, "It is impossible to give any more money at this time in which the
Union is trying to negotiate," and he says they are talking about a strike,
and he said if they did strike, "which I hope they don't," but he says, "if
they do, all right, if the worst comes to the worst, which I hope it doesn't," he
says, "you boys will have to go on strike and when they get tired of being
on strike, then when they come back the doors is always open to them," and
he said "we still have preference to rehire whoever we care to."
The testimony as to this speech on direct examination of James Grover, who
was called by the Respondent, was as follows :
Yes, the boys were called together and Mr. Baldwin, that is M. D. Baldwin,
got up and told the fellows, just the way that the Management felt, towards
the employees, that they wanted to work with the employees ; they wanted to
do everything in their power to have a happy family, in other words. That
was the gist of his talk. He wanted them to understand their point and he
wanted to understand what their point was. He did say that there had
been-that there was trouble brewing and he did not want to see it, that was
true, but if it did happen and it carried on through a long period of time
those boys that wanted to come back to work would be accepted with no
coercion but those that did not, their places would be filled, and he ended
his speech by saying God bless you, or to that effect.
41 M. D. Baldwin is the father of Manager Baldwin.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Grover's testimony was :
He expressed his desire to work with the men and have the men work with
him because there was impending trouble brewing. If a strike was carried
on over a long period of time, which might occur, he would feel free when
it was over with to take every man back that wished to come back, but he
would feel free to replace the places that were vacant in order to carry on
production, and at the end of his speech he told the boys God bless you, or to
that effect.
Making allowance for bias which is understandable in a case of this type, I
believe that both Johnson and Grover were trying to present the talk Baldwin
gave as best they could recall it. Additional evidence casting light on this
speech is President Baldwin's letter of October 6, from which two paragraphs
have been quoted above. Everything considered, it is my opinion that the
import of what Baldwin said to the employees in his address at the West Side
plant on October 9 was substantially in line with what he had already said in his
letter of October 6. Again, although it may well be that certain of Baldwin's
remarks could have been more aptly stated in some technical respects, I do not
believe that the evidence as a whole warrants a finding that Baldwin' s remarks
on this occasion contravened Section 8 (a) (1).
2. Events during the strike
On October 11, the second day of the strike, the Respondent mailed a mimeo-
graphed letter to each of the employees involved. This letter, which was sent
to the respective homes of the employees, is criticized in the General Counsel's
brief as violative of Section 8 (a) (1) on several grounds. Since the letter is
relatively short, the body thereof is quoted in full :
DO THE EMPLOYEES OF OLIVER MACHINERY COMPANY REALLY
WANT THE PRESENT STRIKE TO CONTINUE?
We are sending this personal letter to you so that you and your families
will realize that only 44 people out of 197 in the bargaining unit represented
by the U. E. W. voted for the present strike. Therefore, many of our em-
ployees are out of work even though less than one out of four voted for
strike action. The actual vote was 44 to 28, so 28 union members who voted
at the union meeting clearly did not want the strike. Only 72 out of 197,
or about 36% of our employees, actually voted. In other words, 2 out of 3
of our employees either did not vote or were not permitted to vote. Several
employees who went to the union meeting for the purpose of voting on this
important matter were not permitted to vote. Yet, by law the union is
supposed to represent all employees in the unit.
You have perhaps heard that in spite of the union pickets eleven men
stayed at work Tuesday. Today , sixteen are at work in the machine shops
in addition to supervisors and foremen. Quite a few more have phoned us
that they will be on the job tomorrow. Your job is open, the plants are
open. You have a right to work, a right which you are free to exercise
at any time.
Our previous letters explained in detail why our position and offer to the
union was entirely fair. You will recall that we offered, in addition to the
5¢ increase already granted , an increase of 20 and 21/2¢ In the wage rates.
In addition, we offered a "Cost of Living" clause, which would protect our
employees against further cost of living increases.
OLIVER MACHINERY CORPORATION 849
The union not only refused our offer, but refused to follow the suggestion
made by representatives of the State of Michigan and the Company to submit
the offer by secret ballot at the plant, under supervision of the State Labor
Mediation Board.
The union has decided instead, by a small minority, to throw you out
of work by strike action . Since the union has caused this breakdown in
negotiations , we wish to inform you that we are placing into effect the in-
crease of 20 and 2%¢, effective as of Tuesday, October 10th. We are also
willing to put into effect the B. L. S. Cost of Living formula.
Only 44 out of 197 employees voted for this strike. Do you want to
continue a strike under such conditions, or do you want to return to work
with an immediate wage increase which was offered to the union , but turned
down by a small minority ? Each day of work which you lose costs you
a day 's pay which you can never recover.
The General Counsel contends that the strike vote discussed in the letter in-
volved "internal affairs of the Union" which were of "no concern to the em-
ployer" and that "any transgression into this protected area is clearly pro-
scribed by Section 8 (a) (1) of the Act." The General Counsel does not appear
to make any contention that the facts stated by the Respondent about the strike
vote were distorted and the record wants no such finding. The General Counsel
points to no evidence specifically showing that the Respondent secured this
strike vote by interrogation of employees on the subject, and while it might
be reasonable to infer from all of the circumstances that one or more of the
employees present at the meeting may have relayed the information as to the
vote to some official of the Respondent, the possibility that the Respondent
learned of the vote through channels of public information cannot be precluded.
In any event, since I do not believe that the record warrants finding that the
Respondent procured the strike vote information through means repugnant to
the Act, I am not persuaded that the use of this information in the October 11
letter in presenting arguments to its employees was violative of Section 8
(a) (1).
The General Counsel contends that the October 11 letter makes an illegal
promise of benefit in the form of "a unilateral wage increase as an inducement
to the strikers to return to work." There is no dispute that the Respondent put
into effect during the strike, and without the Union's concurrence therein, the
wage change stated in its October 11 letter which had been proposed as part of
its final offer to the Union. Nor is there any doubt, on the face of the October
11 letter, that this change constituted a benefit which would encourage strikers
to return to work. However, on the basis of all of the findings and conclusions
herein stated, I find, contrary to the General Counsel's contention, that the
strike from its inception was an economic one. Under the circumstances, the
Respondent was within its rights, both in deciding to put into effect the wage
offer which the Union had refused and in making known, pursuant to its at-
tempt to continue the operation of its plants, that change in wage scale to its
striking employees. Hence, apart from the solicitation-of-strikers issue to which
we next turn, I find neither the promise of the wage increase in the October
11 letter nor its actual institution at approximately that time, to have trans-
gressed Section 8 (a) (1) of the Act.
The October 11 letter clearly constitutes an individual solicitation of each
striker to return to work. In addition, there is some testimony cited by the
General Counsel which indicates that strikers on the picket line were solicited
by supervisors to return to work, and that one supervisor may have engaged
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in such solicitation by telephone.92 But there is no evidence establishing that
any of the oral solicitation which took place constituted more than urging
strikers to return to work, without unlawful threats or promises . Everything
considered, it is my opinion that neither the oral solicitation nor the letter of
October 11 constituted solicitation of strikers in violation of Section 8 (a) (1),
under all of the circumstances of this case." Nor do I believe that it can be said
that the October 11 letter formed part of a course of conduct violative of Section
8 (a) (1), as the General Counsel contends, although unfair labor practices
subsequent to the strike are hereinafter found.
The last meeting between the Respondent and the Union occurred on Friday
afternoon, October 13, after the employees at both plants had voted to return
to work and after the East Side plant employees actually had returned. In oral
argument, the General Counsel points out that at this meeting, although Mates
said that matters were not settled, Baldwin, "instead of taking him into his
office . . . met him at the curb." Similarly in oral argument, the Union stressed
that "not even the common courtesy was extended to us to meet in the office."
Under all of the determinations herein made, I am of the opinion that this
curbside meeting did not involve a violation of the Act. However, some further
consideration should be given this meeting for the light which it sheds on the
events that followed.
From the testimony of Baldwin and Towns, which is essentially supplementary
in nature, it appears that substantially the following took place when the
Union's representatives, which included Mates, Towns, and Waldo Stager, a
field organizer, pulled up to the curb at the East Side plant for a meeting which
had been arranged by telephone upon the Union's request." The Respondent's
representatives, Ralph Baldwin and the two plant superintendents, Zwald and
Krull, saw the car pull up to the curb. They went out to the car. Admittedly
the Union's representatives were not invited into the office. Baldwin's state-
ment of the Respondent's position was essentially that it had gone as far as
it could in its offers ; that an impasse had been reached ; and that the Respondent
could "see no further point in changing those offers." Mates "claimed the strike
had not settled anything ; that the same wage questions existed at that time
as before the strike " Baldwin pointed out that "either all questions had been
completely settled by the voluntary action of the employees or that an absolute
impasse had been reached." At approximately the close of the brief discussion,
Mates "r mewed his demand for a settlement on the basis of the individual rates
of nonincentive workers." Thereupon Baldwin "pinned him down," and Mates
admitted that during the negotiations the Union had agreed that instead of
individual wage information, the Respondent would furnish "wage rate ranges
for various job classifications" for dayworkers 4
To understand the significance of the day rate discussion with which the
meeting of October 13 apparently closed, it is necessary to revert to the bargain-
ing conferences. The weight of the evidence indicates that during the early
4' See the testimony of Robert Glupker, Edward Bernatowlez, and James Grover.
48 Cf The Texas Company, 93 NLRB 1358., and Celanese Corporation of America, 95
NLRB 664
44 The Union's purpose in arranging the meeting, according to Towns, had been "to talk
to Mr Baldwin in behalf of further negotiations and to get an understanding we had not
closed our negotiations."
45 The quoted material in the above paragraph is from Baldwin's testimony. It is, evi-
dent that the meeting ended without either side offering to consider any change in its
position as of October l ; without a further meeting being requested by either party ; and
without the Respondent making any specific challenge of the Union' s majority status.
OLIVER MACHINERY CORPORATION 851
meetings , Baldwin and Mates differed sharply as to whether the Respondent's
rates for dayworkers were in line with those paid in the Grand Rapids area,
and as to whether the Respondent should comply with the Union 's demand for
the rates actually being paid the individual employees on daywork . It also
appears that by about the end of the second meeting, the Union had agreed to
accept, in lieu of actual individual earnings , the Respondent's offer to make a
survey and furnish the Union with job classifications and rate ranges for
dayworkers . The Respondent had contended that furnishing this information
would require protracted and exacting work. But the understanding that the
Respondent would do so was still within the area of agreement at the time the
impasse on other matters had been reached on October 9. It should be noted
that the Respondent thereafter never finished its proposed survey, nor furnished
the Union the promised job classifications and rate ranges for dayworkers.
Further , it was apparent from Baldwin 's testimony at the hearing that he con-
sidered that the Respondent 's operations were such as to make the establishment
of such descriptions and ranges for dayworkers highly difficult and inappropri-
ate in the two plants involved.
In any event , in turning to the developments after the strike it should be
borne in mind that what had transpired had laid bare substantial and unrecon-
ciled differences between the Respondent and the Union on such significant
matters as the wage rates of dayworkers , the granting of paid holidays , and the
inclusion of a cost-of-living adjustment in working out wage rates. In addi-
tion , it is evident that the negotiations at times had been turbulent ; that the
Respondent deeply resented the Union ' s departure from the former practice of
permitting all of the employees to vote on whether to accept its last offer ; and
that animosity had developed between Baldwin and Mates, whose opposite
temperaments apparently rendered them better suited to irritating one another
than to cooperating in reaching complex industrial adaptations .41
3. Developments after the strike
On Monday , October 16, a group of about 10 West Side plant employees from
the various departments, most of whom were members of the Union , were assem-
bled at Superintendent Krull 's direction to meet with Manager Baldwin in
Krull 's office." Krull, who had been asked by Baldwin to assemble a repre-
sentative group of employees, introduced those employees whom Baldwin did
not know , and remained for the discussion . Among the employees present were
Ronald Doxtater , then president of Local 911, William Colton , then chief
steward of Local 911 , and James Grover , a union member who later became
chairman of the Committee, West Side plant.48 In explaining the purpose of the
meeting, Baldwin stated that many employees had told him, his father, and
the two plant superintendents , that the situation had "got out of control" ; that
the Union "no longer represented the majority" and "they wanted to do some-
46 Incidentally , the General Counsel's position , which I have duly considered, as to a
telephone call which Dunn made to Mates on October 2 during the negotiations apparently
overlooks the possibility that the call may have been partly motivated by Dunn's under-
standing of the above -indicated clash.
19 While it appears that a similar meeting was also held that day at the East Side
plant there is insufficient evidence to warrant making any findings concerning it.
is My findings as to this meeting are made upon my analysis of the testimony of Baldwin
and the above three employees . Their testimony as a whole varies more in emphasis than
in substance . Colton was called as a witness by the General Counsel ; Doxtater and Grover
by the Respondent . Most of the quotations in what follows are taken from Baldwin's
testimony.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing about it." He also stated that he had called the meeting "in compliance
with their wishes" in order "to hear what they had to say." '°
The sentiments thereafter expressed during the discussion between Baldwin
and the employees were that "they were fed up with the UE , that they had had
all of it that they wanted ; they had been misled and they knew it." Some of
the men who were not members of the Union were "particularly bitter because
when the strike vote had been taken" they were excluded from voting. During
the discussion, Baldwin explained that it would be simpler to continue dealing
with the Union in view of its contract and that whatever was done about any
type of representation other than by the Union would have to be legal. He
indicated that he wanted "good feeling between management and labor" and
would "like to see the two plants closer together." b0 Baldwin also indicated
that while the Respondent would be guided by the desires of the men themselves
"if a tremendous majority approved," before any change or decision could be
made they would have to know "the feelings of a large number of the people,
more than the few who were in that meeting." Before the meeting closed,
Baldwin suggested that the employees present "collect the information from
the other men in the shops and find out if the sentiments they had expressed
were those of a broad majority of the group." °
It is evident that following the meeting of October 16 other employees were
questioned about their feelings with respect to the Union. Guy Baldwin testi-
fied that after the meeting in Krull' s office, Jess Chase, one of the men who
had been at the meeting, asked him and another employee about the matter.
Colton testified that he was in favor of getting opinions ; that he went around
to "find out the opinions of the men" ; that "most of the fellows thought the
UE was a Communist union," and did not wish to continue to be represented
by it; and that he advised Baldwin that "the boys wished they could get rid
of the UE." Baldwin testified that his "talk," given at both plants on October
17 and discussed below, "was given after the various men had come individually"
to him and the two superintendents "and reported that they had found the
sentiments very strong against the way" the Union had conducted matters.
From the foregoing it is evident that the October 16 meeting was more than
a meeting between Baldwin and some employees who specifically had asked
for a meeting. While those present included a few such employees, the meet-
ing also included enough others to form a representative group from the de-
partments of the West Side plant assembled at Baldwin's request by Superintend-
ent Krull. Moreover, the discussion was not confined merely to conveying to
49 While some of the employees selected by Krull to attend this meeting had not made
any request for such a meeting , it is evident that at least three of those present had.
Baldwin testified credibly and without contradiction that Colton and Schoenfeldt "had
asked for a meeting." Grover also testified credibly and without contradiction that dur-
ing the strike he had talked with Colton and Schoenfeldt who were opposed to repre-
sentation by the Union and wanted to do something about it ; that on the preceding
Thursday during the strike, he and Colton had gone to Superintendent Krull 's home where
they had told Krull there was "a lot of unrest in regard to the representation of the UE
among the men and we wanted to see if we couldn't change that to a different representa-
tion with Management" ; and that Krull told them that he did not know what could he
done in view of the Union's contract , but that "he would see what could be done in regard
to the wishes of the employees."
50 It is evident from President Doxtater's testimony , from which the quotations in the
above sentence are taken, that while "many members of it were opposed to" the Union
in both plants this was true "to a greater degree" in the East Side plant.
m The quotation embodying the suggestion is from Baldwin's testimony. While Baldwin
testified that he did not remember who made the suggestion, I am satisfied from other
testimony that it was Baldwin's suggestion. Doxtater testified that Baldwin "suggested
that we find out how they felt." Colton testified that Baldwin wanted the "fellows in the
group to go and find out what the fellows" In the plant wanted.
OLIVER MACHINERY CORPORATION 853
the Respondent a request by some employees that the Union no longer be con-
sidered as representing them. It probed the feelings of the employees concerning
union matters and representation without the Union. It ended in Baldwin's sug-
gestion that those employees, in turn, find out how other employees felt. Such
additional feelings were obtained and reported. In addition, all of this activity
led into the subsequent meetings of October 17 and 20, which resulted in the
formation of the Committee. Hence, in spite of the substantial discontent with
the Union which then existed among the employees, concerning which the Re-
spondent had already received some information, it is my opinion that the Re-
spondent's inquiry into its employees' discontent with the Union and their de-
sires concerning self-organization at the October 16 meeting, and thereafter
through employees attending that meeting of still other employees, constituted
an invasion of the rights of employees to freedom from interference in self-
organization, proscribed by Section 8 (a) (1) of the Act, especially when viewed
in context with respect to the formation of the Committee.
Before proceeding to a discussion of the issues pertaining to the Committee,
which had its inception in parallel meetings held at the respective plants on
October 17 and 20, some additional matters pertaining to chronology will be
developed, and several additional allegations as to violations of Section 8 (a)
(1) will be considered.
The polls taken in the plants on October 17 are discussed in the next section
of this report because they are tied in so closely with the issues pertaining to
the Committee. For reasons which hereinafter appear, these polls, like the
October 16 meeting, violated Section 8 (a) (1).
On October 23, 1950, the Respondent, without any prior consultation with the
Union, gave substantial individual wage increases to a number of dayworkers.
The rates of dayworkers had been in sharp dispute and the Respondent had
agreed to furnish the Union their job descriptions and rate ranges. Later, under
date of November 2, 1950, the Respondent posted on the bulletin boards in both
plants a six-page document signed by Manager Baldwin, which purports to be
an agreement, but which had not actually been negotiated with the Union, the
Committee, or with the employees as individuals." This document, which has
remained in effect and has continued to be posted on the bulletin boards in the
two plants, opens with the following paragraph :
The following agreement between the Oliver Machinery Company and
the employees in the Machine Shops of the Oliver Machinery Company be-
came effective October 10, 1950, and will be in effect until November 1, 1953
when it may be extended by mutual agreement.
The two paragraphs in the agreement which follow fix increases in the base
rate, as of October 10, of 2i cents for day and 2 cents for incentive employees.
Approximately five pages are then devoted to a detailed statement of the factors
controlling the operation of the cost-of-living wage adjustment practices therein
inaugurated. The closing paragraph of this unilaterally promulgated contract,
under which cost-of-living adjustments have since been made, reads as follows :
It is a condition of the acceptance of this cost-of-living allowance program
by the employees of the Oliver Machinery Company that there shall be no
general wage reopening on the part of the employees before November 1, 1953.
"Baldwin testified that the employees had accepted those conditions by returning "to
work voluntarily under those conditions " Baldwin also testified that he had told the
Committee that since only the Union had been certified, any group such as the Committee
"would have to remain on an informal basis and instead of a contract with them, he would
post on the bulletin board a wage agreement."
250983-vol. 102-53-55
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Before considering whether the foregoing unilateral wage actions were viola-
tive of Section 8 (a) (1), an exchange of letters between the Respondent and
the Union at about that time should be related. On November 1, 1950, the Union,
over the signature of Waldo Stager, the field organizer who had been at the
October 13 curbside meeting, wrote the Respondent as follows : "
On behalf of the above named union and its Local 911, which represent
certain employees of your company as the sole and exclusive collective
bargaining agency, I hereby request that a meeting be arranged at your
earliest convenience, for the purpose of further negotiating a settlement
of the wage question, now unsettled between the Company and the Union.
May we suggest that you arrange a date at your earliest convenience, and
so notify this office and the UE Local 911 Committee in your plants.
The Respondent's reply, dated November 3, reads as follows :
We have your letter of November 1 in which you request a meeting and
in which you claim that there are wage questions now unsettled between the
company and the union.
We wish to point out that it very clearly appears either that the wage
questions have been completely settled or that we have reached an impasse
in our lengthy negotiations. Under these circumstances we do not believe
that any purpose possibly could be served by arranging the meeting sug-
gested in your letter.
The Respondent's letter of November 3 did not question the Union's continued
status as the bargaining representative." However, it is evident from the inter-
vening activities, discussed in the next section of this report, that the Respondent
had decided on the basis of polls conducted in the two plants on October 17
that the employees no longer wanted the Union to represent them, and that the
Respondent had taken steps leading to the establishment of the Committee.
If, contrary to the findings above made, the evidence had established that the
Union was then actually the majority representative, the Respondent's wage
actions of October 23 and November 2 would have to be scrutinized under the
theory that a bargaining impasse gave the Respondent the right to institute
its last offer to the Union ' But under all of the holdings herein, it is my
opinion that no violation of Section 8 (a) (1) was involved in the day rate
changes of October 23 or the reiteration on November 2 of the changes already
put into effect on October 10, except that the so-called contract of November 2
unilaterally imposed a condition on the employees, which I am satisfied is repug-
nant to Section 8 (a) (1).
The opening and closing paragraphs of the November 2 contract are quoted
above in full. The minimum dates of the contract are stated in its first paragraph
as from October 10, 1950 to November 1, 1953. The final paragraph imposes, as a
"condition" of accepting the cost-of-living plan, that the employees renounce the
right to any "general wage reopening" before November 1, 1953. This action
cannot be defended on the ground that the Respondent's last offer to the Union
included the cost-of-living plan as part of a proposal in which the contract with
°S This is the last request for a meeting which the Respondent received from the Union.
Nor did the Union or Local 911 thereafter attempt to administer the unexpired contract
54 Shortly thereafter, in a letter dated November 9, 1950, to the Regional Director,
the Respondent did take the position that by returning to work the employees "clearly
repudiated any agency" of the Union.
"The October 23 day rate increases, however, were never offered to the Union during
the bargaining conferences or thereafter Such day rate issues were held in abeyance,
pending the Respondent's study of ranges and Job descriptions.
OLIVER MACHINERY CORPORATION 855
the Union was to be extended to November 1, 1953. Agreement by an accredited
bargaining representative that wages shall remain in status quo for a fixed period
is entirely different from an employer unilaterally imposing a fixed period of
time during which employees may not seek to change wages. No grant of
benefits can justify an employer in attempting unilaterally to alienate from his
employees any of the rights guaranteed in the Act. Yet this is exactly what
the Respondent attempted to do by the condition contained in its unilateral con-
tract of November 2, when it deprived the employees of the right to bargain
further about wages until November 1, 1953, an approximately 3-year period.
Accordingly, I find that by this condition unilaterally placed upon the acceptance
of its unilaterally given cost-of-living plan, the Respondent transgressed Section
8 (a) (1) of the Act.
Of the subjects included in the General Counsel's brief under interference,
restraint, and coercion, there remain 3 matters, 2 of which have already been
touched upon, which warrant some consideration. The first of these apparently
occurred about the end of January 1951. William Colton, the chief steward of
Local 911, who was simultaneously serving as an elected member of the Commit-
tee, assisted in giving a union party the latter part of January, which was
attended by about 40 employees and their wives. Afterwards, during a discus-
sion between Baldwin and Colton following a meeting of the Committee, Baldwin,
who had asked Colton to remain, made a remark to the effect that he was
"not going to have one man or the UE bust a big concern of this kind." Colton,
who thought Baldwin was referring to the union party, asked if he was "refer-
ring to the party." Baldwin's only further comment was that Colton knew what
he meant.
As to this incident, the General Counsel contends that Baldwin, who had "suc-
cessfully weakened" Local 911, was "warning that he would deal accordingly
with any further attempt to restore strength" to it. Colton, who had advised
Baldwin after the October 16 meeting that "the boys wished they could get rid
of the UE," admittedly was not frightened by Baldwin's statement. While the
General Counsel's inference as to Baldwin's meaning has some plausibility, it is
debatable whether or not Baldwin was making some sort of veiled threat. Every-
thing considered, I do not believe that the evidence warrants any finding that
this conversation transgressed Section 8 (a) (1) of the Act.
The items remaining are Baldwin's reading at the meeting of the Committee on
May 25, 1951, a summary concerning Mates, from material furnished from the
files of the Un-American Activities Committee, and the petition sent by employees
to the Regional Director, dated June 7, 1951, asking that the charges in this
case be withdrawn. These two matters are tied together in the General Counsel's
brief in a casual relationship which I am not satisfied that the evidence warrants.
There is no doubt that Baldwin did read material concerning Mates, which is
referred to above in section III, A, at the May 25 meeting of the Committee,
which was a joint special meeting of the committeemen from both plants. The
testimony indicates that Baldwin decided to read this material at this meeting
after the committeemen themselves had become engaged in a discussion as
to whether Mates was a Communist. But I am not convinced, on all of the
evidence, that this meeting was the same meeting at which it was decided
to circulate the petition.
The petition to withdraw the charges is in evidence. It is actually composed
of 2 documents, 1 for each plant. It bears what appear to be the original signa-
ce As the Respondent points out in its brief, the committeemen "were members of Local
911-almost without exception."
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tures of 40 employees of the East Side plant, almost all of whom had had their
dues for October 1950 to the Union deducted. It also bears the apparently
original signatures of 17 employees of the West Side plant, all of whom had had
their October 1950 union dues deducted. From all of the evidence, including his
own testimony, I am satisfied that Towns, who was by that time president
of Local 911, had a leading role in the activities which resulted in formulating,
circulating, and forwarding this petition. And while there is some evidence
tending to tinge this petition with employer assistance, a fair appraisal of the
numerous pieces of evidence on this matter, including Towns' testimony, when
considered in total context, indicates that this withdrawal petition had substan-
tial and genuine support among employees who were members of the Union at the
time of the strike.
In any event, neither of the matters here under consideration is expressly
covered by an allegation of the complaint. Nor was any motion made by
the General Counsel to include either of these matters within the scope of
the complaint. Accordingly, I make no unfair labor practice finding as to
either of these matters, as neither was alleged in the complaint as a violation
of the Act.°7 Nor do I deem it necessary, under all of the circumstances of this
case, to pass upon such matters as the applicability of the schism doctrine to
the present status of Local 911; the extent to which Local 911 may have become
dormant or unable to administer the contract; or the effectiveness of the petition
as evidence establishing the Union's loss of majority status."
E. The Employees' Committee
It will be recalled that on October 16 Manager Baldwin had a meeting with
a group of employees selected as representative of the West Side plant. At
that meeting, employee discontent with the Union and interest in representation
without the Union were discussed. Thereafter, pursuant to Baldwin's sug-
gestion at the close of that meeting, further information as to the feelings of
employees on such matters was gathered and reported to the Respondent. In
addition to this immediate setting for the activities which resulted in the forma-
tion of the Committee, it should be remembered that there was extensive employee
discontent with the Union, arising out of such factors as the Communist issue
and the strike, and that the Respondent and the Union were at loggerheads in
several substantial ways, which are summarized at the close of section III,
D, 2. It is thus in a complex setting that the facts and contentions pertaining
to the Committee must be considered.
At 1 p. in. on October 17 at the East Side plant, and at 3 p. in. that same day
at the West Side plant, Manager Baldwin gave the same prepared talk to the
employees who had been instructed to assemble. The respective superintendents
and foremen were also present. Each talk was followed by a question period and
by balloting. These proceedings at each plant required approximately 1 hour, and
the employees were all paid for time spent in attendance at these meetings.
There is no dispute as to what Baldwin's prepared speech contained. The typed,
four-page document which he read is in evidence. It is set out in full as Ap-
pendix A, and should be read at this point.
The evidence as to what happened at the respective meetings ranges from
clear to contradictory. The findings which follow are made on my analysis of
all of the evidence, particularly the testimony of the seven principal witnesses on
this subject, some of whose versions were vague. It is clear, both from Appendix
57 Eaton Brothers Corp., 98 NLRB 464.
11 See also footnote 8 and the text at that point.
OLIVER MACHINERY CORPORATION 857
A and the testimony, that in closing his formal statement at each plant, after
having discussed the alternative of the employees dealing with the Respondent
without the Union "in solving problems, grievances, and acting on suggestions as
they arise," that Baldwin explained how the employees could conduct a poll
and read to them the three choices on the mimeographed ballots which the Re-
spondent had already prepared and which were available. But it is uncertain
whether Baldwin and the respective superintendents and foremen left the meet-
ings promptly at the close of Baldwin's formal speech, or were still within
hearing distance during at least part of the periods when the respective meetings
were selecting their chairmen and were deciding whether or not to conduct polls.
Baldwin's testimony indicates that he heard a considerable part of such proceed-
ings while leaving each of the meetings. But be that as it may, it is clear that
the East Side meeting selected as its chairman, Harold Cooper, former chief
steward of Local 911, and that the West Side meeting selected Ronald Doxtater.
president of Local 91169
The evidence clearly establishes that the employees at each meeting decided
that they wanted to take the suggested poll ; that a question period at each meet-
ing preceded the actual taking of the respective polls; and that Baldwin, who
answered questions prior to each poll, gave the results of the poll at the East Side
plant to the employees at the West Side plant before those employees took their
pol180
In addition, there appears to be no doubt on all of the evidence that, after
the question period at each plant, Baldwin and all other management represent-
atives withdrew ; that the employees were left alone to conduct the respective
polls; that the employees did conduct these polls themselves; that tellers com-
posed of employees counted the ballots fairly ; that the results were accurately
reported at the close of each meeting to the assembled employees and to the man-
agement representatives who returned at that point ; and that the ballots, which
were produced at the hearing, had in the meantime been retained in the
Respondent's files.
Testimony that Manager Baldwin did not depart from the text during his
formal speech is in conflict with testimony of Towns and Guy Baldwin. Towns
testified that at one point, when Baldwin was reading his speech at the West
Side plant, he said "off the record," continued with the remark, "I don't know
whether you men know the position of the union or not" ; and then said that
"they had lost part of their field men and it was his understanding they did have
a case in Detroit that stood to run them around $30,000." Towns' testimony is
partially corroborated by Guy Baldwin's testimony to the effect that Manager
Baldwin digressed during his West Side speech to remark that the Union was
"going bankrupt" or was "flat on the rocks." While Manager Baldwin admitted
making statements substantially in accord with Towns' testimony, he insisted
that his remarks were made during the question period, and in response to a
question "from the floor about the financial condition of the UE."
That an employee would ask Baldwin about the Union's financial condition
seems rather unlikely. And an examination of the text of Baldwin's speech
reveals at least 1 or 2 points where such a digression might easily have occurred.
But whether Baldwin's remarks about the financial condition of the Union oc-
59 Doxtater testified that he raised no objection to the procedure because, among other
things , "it would have been more or less futile" as the Union was "quite disorganized."
many members were complaining, and Local 911, had "previously split."
° All of the evidence, including the results of these polls at the two plants, indicates that
the discontent with the Union was more pronounced among the East Side plant employees
than among those at the West Side plant.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burred during his speech or during the question period, it is evident that those
remarks were made at the West Side plant before the poll there was taken.
As to the question period at each meeting immediately preceding each poll,
the evidence indicates that the respective chairmen collected written questions
which Baldwin answered upon returning to the respective meetings. Some of
the testimony as to these question periods is vague. It does appear, however,
that questions were asked and answered concerning the "employee committees to
be selected by you from each department" with which Baldwin had stated in his
speech "a management committee is perfectly willing to meet." In view of all
the evidence, I am of the opinion that during the West Side plant question pe-
riod, Baldwin was asked "what kind of an organization should be formed," and
that Baldwin replied that the representatives could present "grievances and
carry them through in the same way" as stewards would for the Union. I also
find on all of the testimony that the employees were informed, in effect, that
they would have to furnish their own legal assistance in the unlikely event that
a lawyer would be needed.
It also appears from my analysis of the testimony that in answer to questions
at one or the other or both plants, Baldwin explained that the Board would not
recognize any organization which the employees formed, as it would recognize
only a union that was nationally known ; that the Respondent would have to
abide by its contract with the Union as long as it was in effect ; that it was up
to the men themselves what they wished to do with any union funds ; and that
the checkoff to the Union would continue through October.
The results of the polls taken at the two plants on October 17, and announced
that day, were as follows :
Wording of the choices on the ballots Vote at EastSide plant
Vote at Nest
Side plant
Totals at
both plants
I wish the UE to continue to be my representative------ 13 24 37
I wish to deal directly with the Company, individually
or as a group, without having to work through any
Union----------------------------------------------- 53 33 86
1 have not made up my mind --------------------------- 20 11 31
Totals-------------------------------------------- 86 68 154
On the afternoon of October 20, 1950, after consultation with counsel and with
the Respondent's board of directors, Manager Baldwin again addressed the
assembled employees, first in the East Side plant and then in the West Side
plant. The employees in both plants were paid for their time spent in attendance
at these two meetings. Baldwin's prepared remarks, from which he did not
digress during delivery at either plant, were read from a four-page, typed docu-
ment, a copy of which was thereafter kept posted for at least a week on the
bulletin board next to the clock in each plant. Baldwin's remarks appear in full
in Appendix B, which should be read at this point.
It will be noticed that in closing each address on October 20, Baldwin asked if
there were any questions. While it is not clear whether any questions were
presented at the East Side plant, I am satisfied from my study of the essentially
corroborative testimony of Elmer Johnson, Guy Baldwin, Colton, and Towns,
that at the close of the West Side speech Baldwin was questioned about securing
a place to meet and about the collection of dues, particularly to defray any legal
OLIVER MACHINERY CORPORATION 859
expenses.' In essence , Baldwin answered that some place in the plant could be
found to hold meetings without the expense of renting a hall ; that dues of "pos-
sibly a quarter a month" could be collected if the men cared to do so ; and that
the money thus collected could be used to defray any legal expense, in the
unlikely event such expense might arise, or to hold dances if the men wished and
the funds were not otherwise needed.
Following the October 20 talks, during which Baldwin had stated that the
"exact size of the committee" would be left to the employees, but had recom-
mended that a committee of about 8 "be set up for each plant," 18 representatives
were selected, 9 from the West Side plant and 9 from the East Side plant.62 The
record does not reveal how most of the representatives were elected. The
Respondent's brief admits, however, "that some of the employees' representatives
were elected during working hours and in a few cases in the presence of foremen."
There is also evidence showing the type and extent of the participation of 2
foremen in their respective departmental elections.
For instance, Towns testified credibly and without contradition that on the
afternoon of the day following Baldwin's talk, Foreman Hansen called all of
the employees in the assembly department to his desk and "appointed Frank
Kuzniak as chairman until the election could be had" ; that Foreman Hansen
left before the voting actually took place ; that the employees then elected two
representatives from the assembly department by a show of hands ; and that the
meeting was held during working hours without loss of pay.
In addition, undisputed testimony of Chapin and Johnson convinces me that
the 2 representatives of the sheet-metal department were elected some 2 weeks
or more after Baldwin's October 20 speech under these circumstances. Foreman
Ernest Dusing "called the group together" In the sheet-metal department during
working hours. Dusing told the employees that "the company wished to have"
each department represented ; indicated that if they "didn't appoint a couple of
fellows," their department would not be represented ; and suggested that if they
wanted representation, they "had better get started on the details right away."
The 2 men nominated in Foreman Dusing's presence, but without Dusing sug-
gesting any names, were Chapin and Bennett. Dusing, who conducted the elec-
tion without anyone else serving as chairman, asked "how many agreed to it
and they all agreed," thus electing the 2 nominees by voice vote."
The first meeting of the Committee, a joint one including the representatives
from both plants, was held on November 6, 1950. Two other joint meetings, on
April 30 and May 25, 1951, have also been held. Otherwise the respective plant
committees have held separate meetings about once a month, which are usually
regularly scheduled meetings. Special meetings may be called upon the request
of management or of the committee chairmen. Superintendent Zwald has at-
tended all East Side Committee meetings and all joint meetings of the Committee.
Zwald has also served as secretary of, and has kept, written up, and signed or
initialed all of the minutes of the joint meetings and also of the East Side
Committee. Some of the minutes of the East Side Committee have been posted
on that plant bulletin board. Manager Baldwin has attended all joint committee
a Baldwin testified that no questions were asked at the close of the West Side meeting,
although he was "not as clear" about the East Side plant meeting.
m The Respondent 's brief omits Arnold Lowe from the latter group.
® Such procedure as the above is scarcely comparable to or justified by the activities of
employee Bernatowicz on behalf of the Union , cited by the Respondent in its brief.
Bernatowicz testified that he had solicited members for the Union in the plant during
working hours, without objection on the part of management.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings, and all East Side Committee meetings except one. Baldwin has also
attended all West Side Committee meetings and Superintendent Krull has been
present at some of them. Thus no joint or separate meetings have been held
by the Committee without the presence of Manager Baldwin or the plant super-
intendent involved; usually both have been present.
All committee meetings, joint and separate, are held in the plant, the space
being furnished by the Respondent without charge. Committee meetings held
in the West Side plant are held in Superintendent Krull's office. Those held in
the East Side plant are held in either Superintendent Zwald's "separate inclo-
sure," the purchasing office, or the balancing room. While some confusion at
first existed as to payment for attendance on the part of employee representatives
who were not scheduled to be working at the time of meetings, " the policy was
established "after a relatively short period" of paying all employee representa-
tives for time spent at meetings, whether or not they are held during the repre-
sentative's own working time. Meetings are usually held about 4: 30 p. in. The
practice established is shown by the following from the minutes of the meeting
of January 8, 1951:
Fred Zwald announced that all employees who were scheduled to work
until 5:30 would be paid for the time spent in employee representatives
meetings at their average earned rate, and that other committee men who
were not scheduled to work would be paid at the base rate for this time.86
The committee has no constitution or bylaws. Such charter for its existence
as it has is contained largely in Baldwin's addresses of October 17 and 20, set
out in full as appendices. In addition, the committee has no financial resources
of its own, depending entirely on facilities furnished by the Respondent. That
the employees themselves raised the question of dues before the Committee was
actually set up is clear from findings appearing above. In addition, the minutes
of the first joint meeting show that the question of dues came up again in con-
nection with a question raised by a committeeman as to "what sort of an
organization the employees really wanted." With respect to this matter, the
minutes of the November 6 meeting, which was called to order by Manager
Baldwin, contain the following : °8
Bill Mulvey raised the question on what sort of an organization the em-
ployees really wanted. It was pointed out that until the contract with the
UB has run out any meetings are on an informal basis rather than on a
formal basis. It was suggested that some sort of an organization, perhaps
with dues, might be needed in the future. The rift between the Oliver and
Baldwin-Tuthill plants was pointed up as a field of endeavor that this group
can profitably work in.
64 This situation apparently involved only committeemen of the West Side plant, as all
meetings at the East Side plant are held during working hours.
65 While employees who represented the Union during bargaining negotiations were not
paid by the Respondent for time lost from work, payment for time spent in settling griev-
ances was governed by the following provision in the 1949 contract with the IInion ;
Stewards and committeemen shall be paid at base rates for time spent in settling
grievances during working hours up to one and one-half hours per week or six (6),
hours per month , provided they notify their foremen before leaving their work, and
the foremen shall give them permission within a reasonable time, and they shall
punch a fob card for the time spent.
00 These minutes show that it was not until after this matter had been considered, and
also after "Ralph Baldwin suggested that a grievance procedure could well be set up" that
toward the end of the meeting Grover was elected "presiding officer " of the West Side
Committee , and Simons of the East Side Committee.
OLIVER MACHINERY CORPORATION 861
Testimony of Baldwin, in part already quoted," which pertains to the above
incident during the November 6 meeting, is set out fully below because it
shows how the limited frame of reference, within which the Respondent
conceived the Committee's functions to exist, and which had been spelled out
in some detail in Baldwin's speeches attached hereto as appendices, continued
to hem in and restrict the activities of the Committee, even to the extent of
discouraging formal organization and the collection of dues, and foreclosing
any attempt to bargain for contractual provisions. Baldwin testified :
The question was raised at one meeting by Mr. William Mulvey to the
effect that they as a group should organize and pay dues, and have a
constitution, and at that time I specified that the UE was still the repre-
sentative in the sense it was the only Union that had ever been certified,
and what he was proposing was in effect the establishment of another
Union and that we couldn't deal with any Union except the UE, and there-
fore any group such as this would have to remain on an informal basis
and instead of a contract with them, we would post on the bulletin board
a wage agreement.
Although the Committee's functions have been circumscribed by the Re-
spondent's concepts, to which the Committee's activities have been conformed,
I am satisfied that, as the General Counsel contends, the Committee is a labor
organization within the meaning of the Act. This is borne out both by the
testimony and by the minutes of committee meetings. That the handling of
grievances was within the scope of the alternative to the Union which the
Respondent suggested is clear from the following question which Baldwin
rhetorically asked the employees during his formal talks on October 17:
Do you want the UE, or do you trust yourselves sufficiently to deal with
the Company and aid in solving problems, grievances, and acting on sug-
gestions as they arise?
Later, considerable discussion of how to handle grievances took place at the
first joint meeting of the Committee on November 6 after Baldwin suggested
that it would be well to set up a grievance procedure.
That at least some of the employee representatives understood that they were
handling grievances, among other things, is clear from some of their testimony.
For instance, Committeeman Bernatowicz, a witness called by the Respondent,
when asked to tell briefly what the Committee does at its meetings, testified,
"discuss working conditions, take up grievances and that is all it does." Further,
Chairman Simons, a witness also called by the Respondent, insisted on direct
examination that the Committee had presented grievances ; defined grievances
as "Wage adjustments, working conditions, in connection with anything the
fellows have to complain about" ; persisted in his position after being given the
minutes of five meetings to read; and characterized the minutes he had been
given to read in these words :
I would say they are a record of a settlement of every day happenings
in the shop where the fellow has a complaint of any kind to make, a question
raised about what the company is going to do or this or that. I would
say they are a settlement of those questions.
The minutes of a dozen meetings which are in evidence establish beyond ques-
tion that a substantial part of the Committee 's time has been devoted to mat-
'r See footnote 52.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ters falling within the ambit of labor organizations. Among examples of such
matters shown by these minutes are the following.
Beginning with the first meeting, and continuing through many of the meetings
thereafter, various aspects of the BLS index with reference to cost-of-living wage
adjustment procedures were repeatedly the subject of discussion. The Decem-
ber 21 meeting of the East Side Committee engaged in "a discussion of payment
for time spent in receiving medical attention." At the January 8, 1951, East
Side Committee meeting, an employee representative "brought up the matter of
an employee who had been asked to pay for medical care because of an injury re-
ceived in the plant." During the March 26 East Side Committee meeting, one of
the committeemen "asked if it would be possible to have check stubs on pay
checks," and other committeemen "asked if anything was being done about keep-
ing the doors closed while the chip bin is shoveled out during cold weather as the
men complained about the cold draft." At the joint committee meeting of April
30, a representative "asked if arrangements could be made to ease the parking
problem at the East Side plant," and another "asked when vacation schedules
would be posted." At the February 5 West Side Committee meeting, two sug-
gestions "for revision of premium standard in the paint and shipping depart-
ments" were handed in and discussed, and a committeeman "reported his
premium times had been adjusted, and he would drop the matter for the time
being." During the March 6 West Side Committee meeting, the shipping room
and paint department wage scale was discussed and a procedure stated by
Baldwin to settle the "question of correct rate on the job." At the April 30 West
Side Committee meeting, a committeeman "asked about one-half hour cleanup
time on Friday night."
A study of the minutes shows that in many instances the committeemen, in
presenting employee grievances pertaining to wages, hours, and conditions of
employment, "asked" about various matters and were told what the Respondent's
policies were, what the Respondent would do, or to whom the matter would be
referred. However, it is not the effectiveness of an employee representation plan
in securing concessions in handling employee grievances, nor its independence in
the prosecution of matters which are raised, but rather the nature of the subject
matter considered which determines whether or not a plan of employee repre-
sentation is a labor organization within the meaning of the Act. The subject
matter covered in the Committee's meetings clearly establishes the labor organiza-
tion status of the Committee, in spite of the fact that the minutes indicate that
many such subjects were presented by the representatives in a "hat in hand"
manner.
That the Committee has been interested in labor organization activities and an-
ticipates a somewhat more active future in that field upon expiration of the
Union's contract, is obvious from the following two paragraphs from the minutes
of the joint meeting of the Committee on April 30, 1951:
A question was raised as to the present sentiment toward the employees'
representative group. A discussion of the activities of other Unions and the
U. E. group was held.
Ralph Baldwin requested that a committee be established or the Group as a
committee of the whole, to work on setting up of working rules and condi-
tions to carry on after Nov. 1, 1951.°/
' Baldwin had previously stated at the January 31 East Side Committee meeting that
when the UE contract under which they were "living" expired, "ways should be found
to continue working under an agreement on working rules similar to the labor contract."
OLIVER MACHINERY CORPORATION 863
F. Concluding Findings
1. Conclusions as to the Committee
The facts above found concerning the formation and functioning of the Com-
mittee, when considered in their total context, persuade me that the Committee
is actually the creature of the Respondent, whose interests in ridding itself of
the Union paralleled those of dissatisfied employees, and that the Committee is
not the result of uninfluenced self-organization on the part of employees, among
whom there undoubtedly was strong sentiment against continued representa-
tion by the Union. Aware that there was discontent with the Union, the Re-
spondent did not sit by and permit that discontent to run its own course at the
close of the strike. Rather, upon learning of employee interest in "a different
representation," 89 Manager Baldwin explored the extent to which the employees
at the West Side plant, which had remained on strike longer than the East Side
plant, were dissatisfied with the Union and "wanted to do something about it."
This was done through the meeting of a representative group of West Side
employees assembled by Krull. Baldwin also learned through reports made
at his suggestion by members of that group, how other employees felt.
Having thus preliminarily surveyed employee sentiment with respect to self-
organization, through activities which have been found above to have been
repugnant to Section 8 (a) (1) of the Act, the Respondent, with ballots already
prepared which set out choices determined by the Respondent, assembled its
employees for meetings on October 17. A careful study of Appendix A, Bald-
win's prepared address at the meetings that day, and of the answers which
Baldwin gave during question periods which preceded the polls, establishes that
the Respondent was offering to deal through an alternative type of representa-
tion, albeit still nebulous as to "the mechanics," which Baldwin said could "be
worked out very shortly" if the employees showed "by a substantial margin"
that they wished "to deal directly with the Company and no longer have the UE
in the picture." In spite of the statement in Baldwin's speech that the Respond-
ent did not "want to influence" the employees, a sense of urgency and of the
the Respondent's preference to be free of the Union is obvious from Baldwin's
October 17 speech as a whole.'°
The October 17 polls, while conducted by the employees out of the presence
of management representatives, were clearly suggested by the Respondent and
were conducted on ballots worded and furnished by the Respondent. The re-
sults of the polls were reported to the Respondent . Thus these polls were
actually the culmination of the Respondent' s probing into its employees' interests
and desires with respect to self-organization , and as proscribed interrogation
were violative of Section 8 (a) (1) of the Act, in addition to their bearing on
the 8 ( a) (2) violation , of which the polls were an integral part n
The choice on the ballot which received the majority of the votes at the East
Side plant, and of the two plants when taken together, was at best an am-
°° See footnote 49, concerning the visit to Superintendent Krull at his home about the
close of the strike by employees Grover and Colton.
°O On the latter point , see particularly the paragraph about the middle of Appendix A,
following the statement , "The fundamental problem is this:" in which Baldwin said that
the Union had "no direct interest" In the Respondent or its employees.
a In my opinion , the cases cited by the Respondent with reference to these polls are not
apposite, since they differ materially as to their facts from the case at bar . That the
ballots were secret does not remove these polls from the area of proscribed interrogation.
Long-Lewis Hardw5re Compbny, 90 NLRB 1403, 1417.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
biguous one, namely, "I wish to deal directly with the Company, individually
or as a group, without having to work through any Union."" Involving, as it
did, the dual possibility of dealing either individually or as a group, the vote
was certainly not an affirmative one favoring any organization already formed.
At most, it was an acceptance by the employees of the alternative held out by the
Respondent of working out "the mechanics" for replacing the Union. At any
rate, and contrary to its present uncertainty as to the appropriate unit, the
Respondent treated the two plants as one unit, and on the basis of what seems
scarcely "a very substantial majority," decided to proceed with arrangements
designed to replace the Union as the representative of its employees in both
plants.
The mechanics and the legal frame of reference within which they could
function were thereafter worked out by the Respondent and placed before
the employees on October 20 by Manager Baldwin. There is no evidence that
employees helped to formulate the ideas with which Baldwin confronted the
employees that day. A careful study of Appendix B shows that the principal
role assigned by the Respondent to the employees in each plant was summed up
in this sentence toward the end of Baldwin's prepared statement:
As we see it, the main thing now is for you to arrange to choose your
representatives in this plant from each department.
What actually happened thereafter is clear enough from the facts spelled out
above. Obviously the Committee has no independent means of support whatso-
ever, and its lack of independence in dealing with the Respondent is patent
from a study of the minutes. All meetings of the Committee have been attended
by at least one top management official and are held on the Respondent's prop-
erty. Employee representatives are paid for time spent in attendance at meet-
ings. The elections of departmental representatives were not free from par-
ticipation by foremen. Superintendent Zwald serves as secretary of the meet-
ings of the East Side Committee and of all joint meetings of the Committee.
The functioning of the Committee, which has had no legal advice of its own, has
been tailored to fit Manager Baldwin's explanations as to what could and could
not legally be done."
A further matter pertaining to the Committee and the contract remains to
be considered. In closing its brief, the Respondent makes essentially these
contentions with respect to the Union's 1949 contract, which still had approxi-
mately a year to run at the time the Committee was formed. Either the con-
tract continued in effect with the employees as principals freely electing to
change their method of dealing with the Respondent, or the contract became
inoperative because the employees rescinded the agency of the Union and in-
dependently determined upon another method of dealing with the Respondent.
Whatever merit either or both of Respondents' positions might have had as
defense if the Respondent's conduct and the total context had been different
neither now serves as a defense under the facts of this case. On the one hand,
the Respondent did not treat the Committee as an agent of employee principles
succeeding to rights under the Union's unexpired contract. On the other hand,
the Respondent did not deal with the Committee as an agent free to contract on
its own initiative. Quite the contrary, the position which the Respondent took
with its employees and the Committee was essentially that it had to honor its
contract with the Union and could not recognize any other union. But in any
" This choice received only 33 out of the 6S votes cast at the West Side plant
"None of the findings herein is bottomed on the failure of the Respondent or of the
employees to file any type of petition with the Board , in view of all of the circumstances.
OLIVER MACHINERY CORPORATION 865
event, since the Committee was actually an illegal creature of the Respondent,
it could neither succeed to the Union's contract nor could it set up a valid al-
ternative bargaining relationship, assuming that the contract became inoperative
for any reason, including its illegal union-security clause.
On all of the evidence, I am convinced and find, in substantial accord with the
allegations in paragraph 9 of the complaint and its subparagraphs (a), (c),
(d), (e), (f), (g), and (h), but excluding subparagraph (b) thereof, that
the Respondent has from about October 16, 1950, and thereafter, initiated,
formed, encouraged, fostered, assisted, interfered with the administration of,
contributed financial and other support to, and dominated the Committee. I
further find, under all of the circumstances of this case, that the Committee is
so completely the creature of the Respondent that its disestablishment is re-
quired to dissipate the Respondent's domination thereof." By its aforesaid
conduct with respect to the Committee, the Respondent had engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1)
and (2) of the Act.
2. Conclusions as to the other alleged unfair labor practices
It has already been indicated in section III, C, that the S (a) (5) allegations
as to refusal to bargain have not been sustained. As to the 8 (a) (1) allegations
spelled out in paragraph 7 of the complaint with its 10 subparagraphs (a) through
(j), the substantial issues pertaining thereto have already been considered. For
the most part, and for reasons which appear in section III, D, contentions ad-
vanced as to 8 (a) (1) allegations have been found to be without merit. How-
ever, it has been found that the Respondent has violated Section 8 (a) (1) of
the Act in three respects, other than by its activities pertaining essentially to
the Committee.
Two of these three matters, while related to the formation of the Committee,
have above been held to constitute illegal interrogation of employees. They are the
West Side plant meeting held by Baldwin with a representative group of em-
ployees on October 16, including subsequent inquiry and reporting by employees
in said group, and the polls conducted in the plant on October 17. These ac-
tivities constituted interrogation of employees as to their union sympathies,
falling clearly within the scope of the allegations of subparagraph (h) of
paragraph 7 of the complaint..°S The October 17 polls also fall specifically within
the allegations of subparagraph (d) of paragraph 7 of the complaint.
The remaining violation found, namely the condition placed by the Respond-
ent through its posted contract of November 2, 1950, upon its employees accept-
ing the unilaterally given cost-of-living wage adjustments, falls within the scope
of subparagraph (g) of paragraph 7, as one phase of a unilaterally given wage
increase. However, it has been indicated above that most of the General Coun-
sel's contentions with respect to unilaterally given wage increases, as violative
of Section 8 (a) (1) of the Act, are without merit.
Thus, save for the above three matters specifically stated with respect to
subparagraphs (d), (g), and (h), it is found that the allegations of paragraph
7 of the complaint have not been sustained. Hence subparagraphs (a), (b), (c),
(e), (f), (I), and (j) thereof fall within my ruling, granting the motions to
dismiss to the extent that dismissal accords with conclusions herein reached.
14 The Carpenters Steel Company , 76 NLRB 670, 673; see also the Fifteenth Annual
Report (NLRB-1950), page 101.
*a It is not found, however , that employees were interrogated as to their union member-
ship or activities, allegations which also appear in that same subparagraph.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also evident from all of the findings and conclusions above that all of the
allegations with respect to violations of Section 8 (a) (5), the allegations in
subparagraph (b) of paragraph 9 with respect to the Committee, and certain
minor parts of other subparagraphs, are included within my partial granting
of the motions to dismiss on the merits. Hence, no recommendations as to dis-
missal appear below recapitulating the numerous allegations of the complaint
with respect to which violations have not been established, since all of them
fall within the scope of my ruling dismissing the complaint, in part.
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
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent initiated, formed, encouraged, fostered,
assisted, interfered with the administration of, contributed financial and other
support to, and dominated the Committee. It will therefore be recommended
that the Respondent cease and desist from all interference with and support of
the Committee, including both subdivisions thereof, and further that the Respond-
ent disestablish the said Committee as the representative of any of its employees
for the purpose of dealing with it concerning grievances, labor disputes, wages,
hours of employment, or other conditions of employment, and that the Respond-
ent refrain from recognizing the Committee, or any successor thereto, for any
of the foregoing purposes.
On the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The operations of Oliver Machinery Company, Grand Rapids, Michigan,
occur in commerce within the meaning of Section 2 (6) of the Act.
2. United Electrical, Radio and Machine Workers of America, Independent,
and Employees' Committee, including the West Side Committee and the East
Side Committee, jointly and severally, are labor organizations within the mean-
ing of Section 2 (5) of the Act.
3. By initiating, forming, encouraging, fostering, assisting, interfering with the
administration of, contributing financial and other support to, and dominating
the Employees' Committee, including the West Side Committee and the East Side
Committee, jointly and severally, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
4. 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 (a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
OLIVER MACHINERY -CORPORATION 867
6. The Respondent has not violated the Act in those respects summarized in
section III, F, 2, above.
[Recommendations omitted from publication in this volume.]
Appendix A
October 17, 1950.
MEMORANDUM FOR GROUP MEETINGS BY OLIVER MANAGEMENT WITH EMPLOYEES
CLANCY AVENUE PLANT MEETING 1 P. M.
BALDWIN-TUTHILL PLANT MEETING 3 P. M.
I have called this meeting to get your help and your advice.
It is extremely important for everyone here, for us to know your true wishes
as to how you wish to deal with your Company in the future.
The shortness of the strike and the employee reaction to it clearly indicated
that a majority of you did not want the strike which was called by the Union.
Ever since the strike we have been hearing that many of you no longer want
the Union to represent them.
At this point, however, we think we should make one thing very clear. Some
time ago we entered into a contract with the UE because at that time a majority
of our employees indicated that they wanted us to deal with the UE. The present
contract still has about a year to run. The short strike resulted from a wage
reopening under the contract as the contract itself was not up for negotiation.
Although contract matters were not on the bargaining table, we tried to work out
a long term settlement of all matters in connection with the wage reopening due to
a real possibility of a wage freeze very soon. Now please understand this :
If we are going to deal with any union, it should be and it must be the UE as
it has always been the policy of this Company to respect its contract obligations,
The Company signed the contract with the UE only after you had clearly indicated
you wished the UE to be your bargaining agent and representative. However,
if you now clearly, and by a substantial margin wish to deal directly with the
Company and no longer have the UE in the picture, the Company will respect and
follow your wishes. Any agreement which we have made with the UE was made
because you had chosen that organization as your agent. If you wish to dis-
continue the UE as your agent and notify us as to your desires, the Company will
accept your decision if it is by a substantial majority of Oliver workers, and
will refuse to bargain further with the UE.
If you wish to deal with the Company directly, a management committee is
perfectly willing to meet with employee committees to be selected by you from
each department. These committees must democratically represent all em-
ployees, not just a few. If you clearly decide by a substantial majority, and it
must be a really substantial majority, that you no longer want the Union to
represent you, and that you want to deal directly with the Company, the me-
chanics of your dealing directly with the Company can be worked out very
shortly. However, as you all probably know, it is impossible for us to separate
the two plants and they have always been considered for all purposes as one unit.
This was true under the Union contracts as well as the many years before we had
a union to deal with. In other words, we can deal with you directly in each plant
as to your own particular working conditions, but any matters affecting general
Company policy will have to be considered on a two plant basis as they always
have.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The fundamental problem is this :
You must have complete faith in the Company's integrity and desire to work
with you for the long run benefit of all parties concerned. Also you must either
have complete faith in your own integrity and ability to deal directly with the
Company at regularly scheduled meetings and any others which may be called,
or you must deal through the UE which has no direct interest in either the
Company or you. In either case the Company representatives will be the same
so that the problem resolves itself into this. Do you want the UE, or do you
trust yourselves sufficiently to deal with the Company and aid in solving prob-
lems, grievances, and acting on suggestions as they arise?
It is extremely important that a decision be made quickly for your own pro-
tection. Nobody knows when a wage freeze will be put into effect. It could
be as quickly as the day after the election, November 8. Therefore, we should
either have a signed agreement with the UE preferably in October, or have a
working agreement with you so that we may put into effect the cost of living
clause ahead of the freeze.
The one thing we want to be absolutely sure about is that we know your true
wishes, and that you will be satisfied to stand by your own expression of those
wishes. Whatever arrangement you choose must be given a completely fair
trial by all concerned.
We do not want to influence you. The Company today is in a position not
only of trying to find out your wishes so we can work together harmoniously,
but we must also comply with the law. Therefore, every representative of man-
agement will now leave you so that you may discuss this matter among your-
selves and reach a conclusion. If you desire to reach a conclusion today we
shall leave with you printed ballots which you may use to indicate whether you
want the UE to continue representing you, or whether you want to deal in the
future directly with the Company. If we are to know the real wishes of our
employees it is very important that you all vote. You need not sign your ballot.
You can readily choose two of your number to act as tellers. They can dis-
tribute one ballot to each of you. We suggest that you then mark your choice,
fold the ballot, and turn it in to the tellers. The tellers may then count the
ballots in your presence, advise you of the results and then if you wish we can
come back into the meeting and discuss this with you further.
In order to have a real cross section of employees' opinion, the ballot reads
as follows :
This secret ballot is only for the purpose of determining the true wishes of our
employees. Therefore, will you please mark an "X" in the box opposite your
choice below :
q I wish the UE to continue to be my representative.
q I wish to deal directly with the Company, individually or as a group, without
having to work through any Union.
q I have not made up my mind.
Appendix B
MEMORANDUM FOR GROUP MEETINGS BY OLIVER MANAGEMENT WITH MACHINE
SHOPS EMPLOYEES
CLANCY AVENUE PLANT 1: 30 P. M., FRIDAY, OCTOBER 20, 1950
BALDWIN-TUTHILL PLANT 3 P. M., FRIDAY, OCTOBER 20, 1950
Today our main purpose of meeting with you is to tell you about the results
and effects of the vote which you and the employees at the other plant con-
OLIVER MACHINERY CORPORATION 869
ducted to decide whether you want to have the UE continue to represent you,
or whether you want to deal directly with the Company for the purpose of
administering the provisions of the present contract for the balance of its term.
By a very substantial majority our employees clearly indicated that they
want to deal directly with the Company . 86 people definitely voted that they
want to deal directly with the Company . Only 37 voted for the UE, and 31
Indicated that they had not yet made up their minds . In other words, out of
the 154 employees who voted, only 24% voted for the UE. Since we have always,
as far as possible , considered and given effect to our employees wishes, we pro-
pose to take steps with you immediately so as to deal with you directly in
accordance with your own wishes.
We shall continue this policy unless we are legally ordered to do otherwise.
Each of you , individually , is free ( as you always have been ) to present your
problems and questions to your Management for discussion and settlement. You
can discuss your questions with your foreman at any time, and also we want
you to know that our doors are always open to you.
In addition , we suggest that each major department of this plant select one
or more employees from that departmental group . These men will be your
representatives . A convenient size for this representative committee is about 8,
and we are recommending to each plant that a committee of this size be set up
for each plant. The exact size of the committee is to be decided by you, but
both machine shops should be represented by equal committees . As soon as
you have done this , we propose to have regular meetings with those representa-
tive employees freely selected by you to discuss and settle production and related
problems, and to settle questions arising under the contract.
When most problems affect only one plant or another , most of the meetings
will be between Management and one of the two committees . On all matters
affecting general Company policies , the two committees combined will meet with
Management.
As to the contract itself , it has about a year to run-that is, to November 1,
1951. At that time we can legally terminate the contract by a 60 day notice
which would be effective as of November 1, 1951.
When we entered into the contract , the UE was your chosen representative.
We therefore respected your wishes and dealt with the LIE. Now you have in-
dicated that you no longer want the UE to act for you. We shall again respect
your wishes. The contract is legally in effect and we shall act according to its
provisions, but you employees are the principal parties of the contract and the
Union is only your agent. Therefore, if you wish to select representatives from
among you we shall recognize your chosen representatives who must speak for
all employees.
You can choose representatives from your own departments and deal with
your Management directly by presenting your own grievances to your super-
visors and by having regular meetings between your chosen committees and the
Management.
So far as the present contract is concerned, the law is clear. We will have to
make one more check off deduction which is for the last week of this month, that
is October. Therefore, those of you who signed deduction slips will have to have
your dues deducted from the next pay. However, there will be no further dues
deductions after November 1st as the dues authorization slips expire as of that
date. Aside from this one additional deduction which applies only to those who
had signed authorization slips, we do not know of any legal matter that will
affect you under the contract.
We have completed all negotiations with the Union. Your seniority rights,
working conditions, and other employment rights will be fully respected as
250983-vol . 102-53--56
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,provided in the contract and will not be changed unless there should be some
mutual agreement between us to our mutual advantage. We say "Mutual" and
,we mean "Mutual" for we are all friends and allies. We have a common interest
in working together to please our customers so that we may sell our product and
provide you with jobs which is the only real security.
We believe that if you will take steps to choose representatives from each of
your departments as suggested to meet with us regularly , we can assure you that
,we will continue to grow closer together, that we will always have a better and
clearer understanding of each others problems , and that we will be able to work
together always in a friendly way to further our mutual interests.
This is about all we have to say. We want to be sure that I have made it clear,
and I would also welcome the chance to have a discussion with you. As we see
it, the main thing now is for you to arrange to choose your representatives in
this plant from each department.
For your convenience and information , the message just given you will be
posted on the bulletin board for one week, and thereafter will be in our files but
, will be available to you.
Before leaving you, are there any questions?
RALPH B. BALDwIT"
CONTINENTAL OIL BLACK COMPANY ( WESTLAKE , LOUISIANA PLANT)
and LOCAL UNION 407, INTERNATIONAL UNION OF OPERATING EN;
GINEERS, AFL , PETITIONER . Case No. 15-RC-854. January 30,
1953.
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before John E. Price, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Styles, and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees of
the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner requests a unit of all unit operators, and/or A oper-
ators, and/or shift foremen, employed by the Employer at its West-
lake, Louisiana, plant. However, the record establishes that the Peti-
tioner in substance desires an addition of these workers to the already
existing production and maintenance unit which it represents.
102 NLRB No. 86.