Pequanoc Rubber Co.

National Labor Relations Board - Board Decisions

Apr 15, 1942

40 N.L.R.B. 541 (N.L.R.B. 1942)

In the Matter of PEQUANOO RUBBER COMPANY and UNITED RUBBER
WORKERS OF AMERICA, LOCAL #163, AFFILIATED WITH THE C. 1. 0.
Case No. C4044.-Decided April 15, 1942
Jurisdiction : reclaimed rubber- manufacturing industry. _
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; threats of dis-
charge, denial of promotions, transfer to less remunerative jobs and other
reprisals if employees aided or joined affiliated union or failed to join company-
dominated union ; espionage and surveillance of union activities of employees ;
vilifying affiliated union and its representatives.
Company-Dontznated Unions: first organization: participation and assistance of
supervisory employees from outset; requiring certain proof of representation
of affiliated union and dispensing with such proof of company-dominated union;
statements of supervisors and foremen showing preference for company-dom-
inated union, failure of company-dominated union to make collective bargaining
demands, acceptance of contract by company-dominated union devoid of im-
portant provisions relating to wages, hours, holidays, or vacations ; awarding to
dominated union vending machine privileges ; agreement with dominated union
for exclusive right for extra-work-successor organization • arising out of pred-
ecessor when successor was already in existence, with membership drive well
under way and Company had done nothing to mark separation between two
organizations or publicly deprive successor of advantage of apparently con-
tinuing favor of Company; lack of substantial differentiation between the first
company-dominated union and successor; successor created as part and parcel
of plan of attorney for first company-dominated union for dissolving same ; gap
between dominated union and successor, technical rather than substantial;
substantially identical constitution and bylaws and officers, trustees, and shop
committee men ; held second organization merely continuation of first dominated
union under different name and so regarded by employees, and Company's domi-
nation, interference and support of dominated union cap Pied over to successor.
Remedial Orders : employer ordered to withdraw all recognition from successor
organization, to disestablish it as representative of any of its employees for
purposes of collective bargaining, and to cease and desist from giving effect to
any contract with successor organization or modifications or extensions thereof.
Evidence : receiving in evidence transcript and exhibits introduced in evidence
at prior hearing in prior case on charges involving first dominated union,
held proper.
Practice and Procedure:
Difference of findings and recommendations of Trial Examiners in first
and second cases held not prejudicial for although Board gives careful
consideration to a Trial Examiner's Intermediate Report and has so con-
sidered the Intermediate Reports of both Trial Examiners, it is the duty
of the Board to determine issues involved and since the Board has for the
first time issued findings of fact and order relative to first dominated union
and its successor, no problem of res judicata is involved.
40 N. L. R B., No. 99.
0 - 541
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's communication to Company that steps taken by latter constituted
compliance with first Intermediate Report held not a determination of
merits or binding upon Board when it was sent without knowledge that
dominated union had already been transformed into successor before Com-
pany had taken action in purported compliance with Intermediate Report
and without Board's knowledge that Company had awarded successor organi-
zation exclusive recognition and contract
Mr. Mark Lauter, for the Board.
Mr. Elmer S. King, of Morristown, N. J., for the respondent.
Mr. John F. Dumont, of Little Falls, N. J., for the S. R. W.
Hr. Samuel L. Rothbard, of Newark, N. J., for the Union.
Mr. Milton A. Kallis, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on August 22, 1941, by United
Rubber Workers of America, Local #163, affiliated with the C. I. 0.,
herein called the Union, ,the National Labor Relations Board, herein
called the Board, by the Regional Director for the Second Region
(New York City), issued its complaint dated August 22, 1941, against
Pequa.noc Rubber Company, Butler, New Jersey, herein called the
respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint accompanied by notice of hearing were duly
served upon the respondent, the Union, Independent Rubber Workers
of Butler, Inc., herein called the Independent, and Soft Rubber Work-
ers, Inc., herein called the S. R. W.
With regard to the unfair labor practices, the complaint, as amended,
alleged in substance, (1) that the respondent on or about October 1,
1938, initiated, formed, and sponsored the Independent which, on or
about August 12, 1940, changed its name to or was succeeded by the
S. R. W., and that the respondent has dominated, interfered with, and
contributed support to said organizations; (2) that the respondent
entered into exclusive bargaining contracts with the Independent and
the S. R. W. on November 8, 1938, and August 30, 1940, respectively,
and that said contracts are invalid; (3) that by the foregoing acts
and by urging its employees to refrain from aiding, becoming, or
remaining members of the Union, by threatening them with discharge
PEQUANOC RUBBER COMPANY 543:
or other reprisals if they aided or joined the Union, or failed to join
the Independent or the S. R. W., by engaging in espionage and sur-
veillance of the union activities of its employees, and by vilifying the
Union and its representatives, the respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. On August 29, 1941, the respondent
filed its ansiv"er, admitting the allegations of the complaint concerning-
the nature of its business operations, and admitting that it had ac-
corded recognition to the S. R. W., but denying that it had committed'
any unfair labor'practices.
Pursuant to notice, a hearing was held at New York City, on Novem-
ber 13, 14, and 15, 1941, before James C. Paradise, the Trial Examiner-
duly designated by the Chief Trial Examiner. At the opening of the-
hearing the S. R. W. was permitted to intervene, upon motion granted
by the Trial Examiner. The Board, the respondent, the Union, and`
the S. R. W. were represented by counsel and participated in the hear--
ing. 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 close of the Board's case, the respondent and the,
S.' R. W. moved for dismissal of the complaint. These motions were,
denied.' They were` renewed at the close of the hearing. The Trial
Examiner reserved decision on said motions, and in his Intermediate
Report denied them. At the close of the entire case, a motion by the
Board's counsel to conform the complaint to the proof was granted
-without objection. During the course of the hearing, the Trial Ex-
aminer made various rulings on other motions and on objections to
the admission of evidence. The Board has reviewed the rulings of
the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
The respondent and the S. R. IV. filed briefs for the consideration-
of the Trial Examiner. On January 5, 1942, the Trial Examiner
issued his Intermediate Report, copies of which were duly served on
all the parties. He found that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of
the Act. He recommended that the respondent cease and desist there-
from and take certain affirmative appropriate action. The respondent
and the S. R. W. filed their exceptions to the Intermediate Report on
February 6, 1942.
Pursuant to notice, a hearing for the purpose of oral argument
was held on February 24, 1942, before the Board at Washington, D. C.
The respondent and the S. R. IV. were represented by counsel and,
participated in the hearing.-
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the exceptions and briefs and, save as
the exceptions are consistent with the findings, conclusions, and order
set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
The respondent, a New Jersey corporation engaged in the manufac-
ture of reclaimed rubber, has its principal office and plant in Butler,
New Jersey, and maintains sales offices in Massachusetts, Indiana,
Canada, and England. The materials used by the respondent in its
manufacturing processes are rubber scrap, sulphuric acid, alkali, fillers,
carbon black, and coal. Millions of pounds of these materials are
used annually by the respondent, a substantial percentage of them
being shipped to it from places outside New Jersey. The respondent
manufactures and sells annually about 29,000,000 pounds of reclaimed
rubber, of which about 84 percent are shipped to States other than
New Jersey and to foreign countries.
The respondent concedes that it is engaged in commerce within the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Rubber Workers of America, Local #163, is a labor organ-
ization affiliated with the Congress of Industrial Organizations. It
admits to membership employees of the respondent.
Independent Rubber Workers of Butler, Inc., was, and Soft Rubber
Workers, Inc., is, an unaffiliated labor organization admitting to mem-
bership only employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Independent
Prior to the latter part of 1937, there appears to have been no labor
.organization among the employees of the respondent. About that
time the Union started its organizational activities; and in or about
January 1938, it received its charter and started a membership drive.
On May 7, 1938, Frank Seeley, who had been elected recording secre-
tary of the Union, and other union representatives called upon the
respondent's superintendent, Howell, to negotiate a contract. They
left a copy of their proposed contract with Howell, who agreed to give
them an answer the following week. Within a few days Howell
returned the proposed contract unsigned. About a week later the
union representatives called upon him again for the purpose of further
PEQUANOC RUBBER COMPANY 545
contract discussions, but Howell refused to negotiate unless the Union
proved that a majority of the employees were paid-up union members.
According to the uncontradicted testimony of Howell, the union rep-
resentatives stated that they would attempt to obtain a certification
from the Board. The record fails to disclose any further attempts by
the Union to obtain recognition, or any further organizational activi-
ties by the Union among the respondent's employees.
- The first step in the organization of the Independent appears to
have been taken in August 1938 by Lester Becker, an employee of the
respondent. Becker spoke to a few other employees about the desir-
ability of organizing an unaffiliated union and asked a fellow employee
to obtain the name of the attorney who had helped organize, such a
union at another plant in the vicinity. As a result, Becker was referred
to John F. Dumont, with whom he conferred in August 1938. He
asked Dumont for advice concerning the technique for organizing an
unaffiliated `union and was told to bring a committee of five or six
employees to Dumont's office.
The record does not disclose what, if anything, was done by Becker
following this conference, except that shortly before October 25, 1938,
Becker had a conversation with Mace, the respondent's assistant super-
intendent, regarding the organization of an independent union. The
testimony concerning the substance of this conversation is conflicting
and inconclusive.'
On October 25, 1938, Becker, accompanied by William Kimble,
Stanley Tintle, Henry McConnell, and two other employees, conferred
with Dumont. The latter advised them as to the procedure to be
followed in organizing an independent union. According to the
uncontradicted testimony of the above-named employees, Dumont gave
them petitions to be signed by the employees, and cautioned them not
to circulate them during working hours.2 He told them to return the
petitions to him after they had been signed.
Shortly after October 25, notices were posted in the plant by the
committee which had conferred with Dumont, inviting the employees
to attend a meeting on November 1, to discuss any questions concern-
ing the organization of "a union to assure themselves of their inde-
pendence." One slick notice was posted on the bulletin board at the
i Becket first testified that he never talked to Mace about the Independent He then
testified that be asked Mace whether "if I started a union it would be all right," to which
Mace ieplied, "I don ' t know I couldn ' t say one way or the other " There was also
testimony to the effect that Becker told it fellow employee, Sehulster, that Mace had
told him that "it (an independent union) would be a nice thing Go see what You can do
with it " Mace did not deny having spoken to Becker on this occasion, but testified that
he could not recall whether or not he had any such conversation
2 Despite Dumont ' s admonition the petitions were to some extent circulated during
working hours The Union also solicited members among the respondent ' s employees during
working hours
455771-42-vol 40-35
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entrance, to the plant and another on the bulletin board in the acid
department.
On November 1 a meeting of the employees was held in a meeting
hall hired for the purpose. About 200 employees attended. They
voted on the name of the organization, adopted bylaws, elected officers,
discussed the provisions of a contract to be submitted to the respondent,
and agreed, in general, upon the provisions to be incorporated in such
a contract.
Although the bylaws provided that department foremen, super-
visors, and executives should be ineligible to membership, the record
discloses that supervisory employees signed the petitions and became
members and 1 became an official of the Independent. Thus, the peti-
tions bear the names of Joseph Storms and Richard DeGraw, line
supervisors. During the year commencing November 1, 1938, the fol-
lowing supervisory - employees were members of the Independent :
Chester Roff, Richard DeGraw, Edward Ditzler, Martin Marion, and
James Mooney.8 Tlius, it appears that all the line supervisors, with
the single exception of Fred Ricker,4 gave their support to the Inde-
pendent. Walter Miller, then a shift supervisor over about 20 men,
also joined the Independent. In addition to being a member, Mooney
was chosen as delegate from his department.
The respondent denied that the line supervisors, so designated by
the respondent and its employees, were, in fact, supervisory employees.
Although they had no power to hire or discharge, they received from
15 to 25 cents per hour more than the men under them and were
charged with the duty of overseeing the work done in their depart-
ment, checking its quality, directing changes if the work done was not
as required, and reporting incompetency and breaches of discipline
or plant rules to the general production foreman or one of his two
assistants. They were regarded as supervisors by the other employees.
We find that they were supervisory employees; that the employees had
just cause to believe that they were acting for and on behalf
of the management; and that the respondent is responsible for their
activities.5
The day after the November 1, 1938, meeting, the representatives
of the Independent met with the respondent and asked for recognition
and the negotiation of a contract. Superintendent Howell testified
that the Independent representatives presented the petitions men-
tioned above, containing 178 names. This was more than a majority
e DeGraw and Ditzler had been members of the Union . They became line supervisors in
August 1938. Because of their promotion they were asked to take and were given with-
dranal cards terminating their membership in the Union.
4 Recker, too, became a member of the Independent in November 1939.
5 National Labor Relations Boai d v . Link-Belt Go, 31-1 U, S 584 ; International Associa-
tion of Machinists v. National Labor Relations Board, 311 U. S. 72.
PEQUANOC RUBBER, COMPANY 547
of the 304 employees then working. Howell then asked for a photo-
static copy of the petitions, which was thereafter furnished him. The
signatures on the petition were checked against those of the em-
ployees on file in the pay-roll department. There is no evidence that
Howell, who had asked the Uriion in May 1938, for proof that a
majority of the employees were paid-up members, made a similar
demand of the Independent in November.,, He testified that "proof,"
in the form of an oral statement by the Independent representatives,
was given him that the signers of the petition-were paid-up members.
This statement, according to Howell, was unsupported by documentary
evidence.'
Howell proceeded to bargain with the independent and, on No-
vember 8, 1938, entered into a contract with it, -retroactive to Novem-
ber 1. This contract contained no provisions concerning wages, hours,
holidays, vacations, or preference in employment for members of the
Independent, nor does it appear that the Independent made any de-
mands with respect to these matters. The only benefits provided for
the' employees under the contract were a flexible system of depart-
mental seniority and arbitration of grievances. In return for these
the Independent agreed not to strike for the duration of the contract.
The term of the contract was "from November 1, 1938 until further
notice."
According to the uncontradicted testimony of Joseph H. Banta,
then secretary of the Union, on an occasion in November or, Decein-
ber 1938, he was passing through the department of Shift Supervisor
Walter Miller, Sr. As Banta came by, one Pollick, an employee, called
,to Miller, "Hey, Walter; here comes a CIO guy. Do you suppose
we can sign him up in our union?" Thereupon, Miller approached
Banta and asked him to join the Independent. When Banta de-
clined, Miller stated: "What do you want to belong to the CIO for?"
and made various derogatory remarks about that organization. As
the conversation ended, Miller stated, "Well, you will be damn glad
to join our shop union, or get the hell out of our mill eventually." A
short time later Miller came to Banta and told him not to "get mad"
or to feel that Miller had called him any names, adding, "I know you
are a representative of the CIO and I don't want any trouble on the
place." Despite Miller's effort to soften the effect of his anti-union
remarks, his statements to Banta show clearly his active support of the
Independent and his opposition to the Union.
Banta also testified without contradiction that in about December
IIt is well settled that designation of a labor organization as representative may be
established by evidence other than membership therein.
7 Howell testified : "I had enough confidence in my own employees to know that no
one would present to me a false statement that these men were paid -up members if they
were not paid-up members That statement was made to me, I think verbally , but I am
not positive "
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1938, Foreman John Vreeland stated that he would wager that within
6 months every employee in the factory would belong to the Inde-
pendent because it was "a good thing," controlled by the employees only.
Ronald Outer testified, without contradiction, that he had joined
the Independent, then dropped out; that thereafter, sometime in 1939,
James Mooney, his line supervisor and departmental delegate of the
Independent, told him, "You had better join the Independent or you
will be out of a job."
The record contains no evidence concerning the activities of the In-
dependent, if any, under its contract with the respondent. However,
the uncontradicted testimony of Superintendent Howell was to the
effect that the first "major request" made by the Independent after
November 8, 1938, was that it be permitted to install candy and cigar-
ette-vending machines in the plant. This -request was made either
late in March or early in April 1939. The respondent considered it
and, on April 8, 1939, granted the request for the candy-vending ma-
chines, on condition that (1) the company installing the machines
assume all liability for claims against the respondent, (2) the machines
be removed on request of the respondent, and (3) the respondent re-
ceive 20 percent 'of the net receipts of the Independent for the use of
the space occupied by the machines. These conditions were accepted
by the Independent and were supplemented on April 28, 1939, by a con-
tract between the Independent and the respondent. The April 28
contract provided that the respondent be reimbursed by the Independ-
ent for any working time spent by employees attending the vending
machines. Nine machines were installed and the Independent gave
Becker the task of attending them. It was his duty to accompany
the representative of the vending-machine company when he refilled
the machines, and check the receipts. This required from a half hour
to an hour's time, frequently during working hours, once or twice each
week. Becker testified that he sometimes spent so much time on the
vending machines that his foreman had to assign another man to his
job. No deduction was made from Becker's pay for these absences.
The record does- not disclose whether the Independent in fact reim-
bursed the respondent for the working time spent by Becker in tend-
ing the machines.
On March 23, 1939, at about the same time as it requested the privi-
lege of installing vending machines, the Independent asked the re-
spondent to adopt a policy of giving all extra work to members of the
Independent. At this time the plant was operating only three shifts
per week, but there was considerable maintenance work and various
odd jobs to be done after working'hours and on days when no regular
work was available. This additional work was required to be done
outside the regular shifts. On April 10, 1939, the respondent granted
PEQUANOC RUBBER COMPANY 549
the request of the Independent and posted a notice advising its
employees that :
Hereafter, all extra work, whatever the same may consist of out-
side of regular shift work, shall be given to Union [Independent]
members in good standing.
Howell testified that he had heard rumors in the plant and had
been informed by his foremen, Mace and Taylor, that there would be
"trouble" if the request of the Independent were not granted. Al-
though both Mace and Taylor testified, neither of them mentioned
this matter. Howell did not specify the nature of the "trouble" he
allegedly feared from the Independent. The record of the latter was
one of docility, if not inertia, and it was bound by its contract not to
strike. We do not credit Howell's testimony, nor did the Trial
Examiner, that Howell granted the request of the Independent because
he believed "trouble" would ensue if he did not.
Although Production Foreman Taylor testified that even after
April 10, 1939, he made no distinction as between members and non-
members of the Independent in selecting men for extra work, the rec-
ord establishes that the respondent generally observed the policy con-
tained in the posted notice. Thus, Laurence Marion was told by his
line supervisor, Richard DeGraw, to join the Independent in order
to save his job and get extra work. He was also refused extra work
by John Decker, night foreman, on the express ground that he did
not belong to the Independent. Marion was unable to obtain extra
work before lie joined the Independent, but was given such work after
he became a member.8 Edward Barnes, a member of the Union, testi-
fied without contradiction that he was deprived of extra work to which
he had been assigned on April 11, 1940, because "the boys" were "kick-
ing." Other uncontradicted testimony by Kenneth Heady and Banta
establishes that Line Supervisor Ditzler and Foreman Vreeland made
statements to the effect that only members in good standing of the
Independent would receive extra work.
The respondent went beyond the bounds of the extra-work agree-
ment in encouraging membership in the Independent by favoring
members of that organization and discriminating against non-mem-
bers. Thus, Grover Angle testified without contradiction that in
October 1939, he was working on the washrolls under Supervisor
Martin Marion, having been transferred to that job from his regular
job of back tending. It appears that there were more hours of work
per week on the washrolls than there were on back tending. Marion
asked Angle to join the Independent, saying that if he did he would
be kept on the washrolls if the work increased there, but would be
"The findings concerning Marion are based upon his uncontradicted testimony.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sent back to tending if he failed to join. Denton Lund, an employee
of the respondent for more than 3 years, also testified without con-
tradiction- that he - was instructed by his supervisor to report for
work as regular,sticker on January 2, 1940. This meant an increase
of 5 cents per hour to Lund, who had theretofore been an extra sticker.
When Lund reported for work, he found that another man, who had
been employed by the.respondent for only 3' months, had been given
the job. Lund went to see Taylor, and asked whether it was neces-
sary to "join some union, or something" in order to be promoted.
-Taylor replied "Well, we have got to take care of our. union [Inde-
pendent] men."
On June 5, 1940, the respondent entered into a new contract with
the Independent. This contract contained provisions for a general
wage increase of 6 cents per hour coupled with discontinuance of the
.production bonus system theretofore in effect, clarification of the sen-
iority system, new provisions 'covering lay-offs, and other provisions
of substantial value to the employees.
In the meanwhile, the Union had filed charges and the Board had
issued a complaint, alleging that the respondent was engaging in
unfair labor practices. Following a hearing, the Trial Examiner
therein issued an Intermediate Report, dated July X30, 1940, wherein
he found, among other things, that the Independent had been created
without any support or assistance by the respondent, and had entered
into a valid contract with the respondent on November 8, 1938; but
that after that date the respondent dominated and interfered with
the administration of the Independent, contributed financial support
to it, and interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed under the Act. He recommended
that the respondent cease and desist from (1) dominating and inter-
fering with and contributing support to the Independent, (2) recog-
nizing the Independent as the representative of any of its employees,
(3) giving effect to the contract of November 8, 1938, or any renewal
or extension thereof and (4) in any manner interfering with, re-
straining, or coercing its employees in the exercise of the rights guar-
anteed them in Section 7 of the Act. He also recommended that the
respondent take the following affirmative action in order to effectuate
the policies of the Act :
(a) Withdraw all recognition from Independent Rubber
Workers of Butler, Inc. as the representative of any of its em-
ployees . . . unless and until that labor organization shall have
been certified by the National Labor Relations Board.
(b) Immediately post in conspicuous places for a period of at
least sixty (60) days notices to its employees, stating:
I
PEQUANOC RUBBER COMPANY 551
(1) That respondent will, cease and desist in the manner afore-
said, and that it will take the affirmative action set forth in .: .
this recommendation ...
(2) That respondent's employees are free to become or remain
members of the United Rubber Workers of America-, Local No.
163, affiliated with the C. I. 0., and that respondent will not dis-
criminate against, any employee because of membership or activ-
ity in that organization.
B. The S. R. W.
The Intermediate Report of the Trial Examiner in that case was
received by the parties on August 6 or 7, 1940. Chandler, president
of the Independent, then conferred with Dumont, its attorney, with
reference to what steps should be taken in view of the recommenda-
tions contained in the Report. Dumont suggested that a meeting of
the Independent be called, and prepared notices of a meeting to be
held on August 12.
This meeting was held in a meeting hall hired and paid for by the
Independent. Two hundred and fifty to 300 employees of the re-
spondent attended. Dumont came to the meeting with a certificate
of incorporation, blank as to the name of the corporation and the
names of_ the incorporators, and with 300 printed membership cards
in an organization entitled "Soft Rubber Workers, Inc." Dumont
testified that it was not unusual for him, as one who organized many
unaffiliated unions, to come to a meeting with a blank certificate of
incorporation ready for use, and he admitted that he expected the
respondent's employees to undertake the creation of another labor
organization. We find, as did the Trial Examiner, that Dumont
came to the August 12 meeting with the preconceived plan of dis-
solving the Independent and replacing it with another organization
named "Soft Rubber Workers, Inc."
Dumont addressed the meeting, explained the Intermediate Report,
recommended dissolution of the Independent and abrogation of its
contract with the respondent, and presented a resolution, which he
had prepared before the meeting, embodying his recommendations.
There was considerable discussion from the floor regarding the cost
of contesting the Intermediate Report and other matters. Dumont's
resolution was then adopted. The assembled employees also agreed
that the funds of the Independent should be distributed proportion-
ately among its members, upon payment of outstanding bills and pay-
ment to officers of half • their annual compensation of $25. There
followed an interval which was variously characterized as an "ad-
journment" and a ,"recess." During this interval a considerable num-
ber of employees departed and, while some of the remaining ones
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought various diversions , others started to discuss what should be
done now that they no longer had a labor organization to represent
them and whether the C. I. O. might now organize the plant. Some
of these employees asked Dumont whether ;thev..,inight.--organize. an-
other union, and he replied in the affirmative . The only two persons
whom Dumont could recall as having questioned him about organiz-
ing another union were Lester Becker and Ernest Kimble, delegate
and trustee , respectively , of the Independent.
After about an hour Dumont called the employees , about 50 of
whom were still present , to order. Temby, the recording secretary of
the Independent , continued to act as secretary as a matter of course.
Dumont explained to them how they might form another union.
A motion was made by Kimble, who had also moved the dissolution
of the Independent an hour earlier , that another union be formed.
It was seconded by James Minnick, vice president of the Independent,
and was carried unanimously . The identification in the minds of the
employees of the S. R. W. with the Independent is illustrated by the
statement in Temby's minutes that a motion was adopted :
that from August 12, 1940 the name of the union shall be known
as the Soft Rubber Workers of Butler, Inc.'
Dumont then recommended the same form of organization as the
Independent had had, to which those present agreed . He then told
them that he had brought with him a certificate of incorporation, and
suggested the name "Soft Rubber Workers, Inc." as printed upon his
membership cards. The employees agreed. He recommended that
they use the membership cards, and they acquiesced.
Officers were then elected . They were Howard Chandler , presi-
dent; James Minnick, vice president ;' Harry Temby, recording sec-
retary; Ernest Kimble, financial secretary ; and AlbertWeber , treas-
urer. With the exception of Weber, all of these had held corre-
sponding offices in the Independent . Jacob Miller , treasurer of the
Independent , was nominated to the same office in the S. R. W., but
declined it. Floyd Barnes and Fred Temby , Sr., both of whom
were trustees of the Independent until its dissolution , were elected
to similar offices in the S. R. W. The third trustee, one Hopper, had
not been a trustee before . The shop committee elected for the S. R. W.
on August 12 consisted of Chandler, Minnick, and Temby, ex officio,
and Becker, Barnes, and Charles Brower, all of whom had been shop
committeemen for the Independent. The certificate of incorporation
of the S. R. W. was executed by Kimble, Chandler, Minnick, Temby,
and Hopper . Bylaws were adopted which, with a few immaterial
variances , were identical with those -of the Independent. At the
9 Temby repotted the proceedings which occurred on August 12, both before and after the
above-mentioned interval , in the minute book of the S R W.
PEQUANOC RUBBER COMPANY 553
close of the meeting, the employees signed membership cards in the
S. R. W.
On the morning of August 13, Temby delivered to Howell a copy
of the resolution passed the night before and a letter informing him
of the dissolution of the Independent and of the abrogation of its
contract with the respondent. r Howell received the letter without com-
ment. On the afternoon of the same day, the respondent posted a
notice on its bulletin board announcing its compliance with the cease
and desist provisions contained in the Intermediate Report. The
testimony of Thomas Mace, then assistant superintendent and now
superintendent of the respondent's plant, establishes that the decision
to post the compliance notice was reached a day or two before August
13. The notice remained posted for the required 60 days.
The respondent also abrogated -its vending-machine contract with
the Independent and later took over the operation of 'the machines
itself. In addition, on August 13' and 14 the respondent instructed
its foremen to refrain from any union activities and endowed the line
supervisors with the title of foremen so that there might be no doubt
that they came within the scope of the instructions.
On August 21, the respondent met with the representatives of the
S. R. W. who submitted membership cards signed by a majority of
the employees. These were checked by the employment supervisor
who reported, on August 22, that the signatures appeared to be au-
thentic, and the respondent then granted it recognition. On August'
30, a contract was signed with the S. R. W. This contract, except for
minor variations and the omission of the provision for vacations, was
identical with the Independent's contract of June 5, 1940.10 It was
signed on behalf of the S. R. W. by the same persons who had signed
the June 5 contract for the Independent.
On October 29, the Board informed the respondent that, on the
basis of reports by the Regional Director for the Second Region, the
Board was of the opinion that the steps taken by the respondent
"constituted compliance" with the Intermediate Report; and that
the Board is contemplating no further action for the present un-
less it is brought to its attention that you are not complying with
the negative portions of its [Trial Examiner Ward's] Intermedi-
ate Report.
The record does not indicate that the Board or its agents were aware,
tit the time of this communication, that the S. R: W. had been formed
under the circumstances set forth above before the respondent posted
its notice in purported compliance with the Trial Examiner's Inter-_
10 "Supervisors" were specifically excluded from the coverage of the August 30, 1940, con-
tract , apparently as a result of the findings contained in the Intermediate Report.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mediate Report, or that the respondent had awarded the S. R. W.
exclusive, recognition and a contract.
On July 22, 1941, the respondent executed a renewal contract with
the S. R. W. which again, save for the refinement of certain provisions,
is identical with the contract of August 30, 1940.
C. Concluding findings
The evidence discloses that from the very outset supervisory em-
ployees were active in the affairs of the Independent. Their names
appear on its petitions; all the line supervisors but one became mem-
bers, several on November 1, 1938. One of them, James Mooney, was
elected on that date as departmental delegate. Thus, even before
the contract of November 8, 1938, there is evidence of support of the
Independent by supervisory employees. It further appears that the
respondent favored the Independent by dispensing with proof of
paid-up membership when the Independent asked for recognition
although the respondent had demanded such proof when the Union
made a similar request. The statements by Supervisor Miller and
Foreman Vreeland to Banta in November and December 1938 were
definite expressions of the respondent's preference for the Independent
as against the Union. Statements by other supervisory employees
thereafter, including Production Foreman Taylor, threatening em-
ployees with loss of their jobs, or with denial of promotions, or with
transfer to less remunerative jobs unless they joined the Independent,
and the discrimination against Lund on January 2, 1940, all show that
the respondent actively supported and assisted that organization 11
It is also significant that the Independent made no demands upon the
respondent as to wages, hours, holidays, or vacations, and accepted a
contract barren of provisions on these important matters. After the
contract was signed the Independent made no important requests of
the respondent until late in March 1939 when it asked for the vending-
machine privileges, and for the exclusive right to extra work. These
facts bespeak a docility or inertia not to be expected in a labor organ-
ization created for the purpose of genuine collective bargaining. More-
over, the respondent's award to the Independent of the vending-
machine privileges, under the foregoing circumstances, disclosed the
'- Although the respondent instructed its foremen not to discuss union matters with the
employees, these instructions were not brought to the attention of the employees', nor did
the respondent ever take any steps to disabuse their minds of the impression necessarily
created by the activities of the supervisory employees on behalf of the Independent. Fur-
ther, the instructions were never given to the line supervisors tinder these circumstances,
the afore-mentioned instructions cannot exculpate the respondent from liability for the
conduct of its supervisory employees, set forth above.
PEQUANOC RUBBER COMPANY 555
respondent's beneficent attitude toward the Independent and con-
stituted further support to it.12
In view of these facts, and upon the entire record, we find that the
respondent interfered with, assisted, supported, and dominated the
formation and administration of the Independent, and that therefore
the contract of November 8, 1938, the extra-work agreement of April
10, 1939, and the contract of June 5, 1940, were invalid and constituted
further support and assistance.
On the basis of the facts found above, it is clear that the S. R. W.
arose out of the Independent at a time when the respondent had done
nothing to mark a separation between the two organizations or publicly
to deprive the S. R. W. of the advantage of the apparently continuing
favor of the respondent. Assuming, arguendo, that the notice of com-
pliance posted by the respondent would, under other circumstances,
have accomplished this result, it is apparent that it did not in this
case. When the notice was posted, the S. R. W. was already in exist-
ence, with its membership drive well under way. There was no sub-
stantial differentiation between the S. R. W. and the Independent.
The S. R. W. was created as part and parcel of Dumont'2 plan for the
dissolution of the Independent. The hiatus, if any, between the two
organizations was a technical rather than a substantial one. Even
before the posting of the so-called compliance notice the officers of the
Independent, excepting its treasurer, had become the officers of the
S. R. W., and' the same was true, with the unimportant exceptions
mentioned above, of the trustees and shop committeemen. Shortly
after the notice had been posted, and long before the expiration of the
60-day period during which it was required to be posted, the S. R. W.,
in effect, succeeded to the contract of the Independent. These facts
compel the conclusion that the S. R. W. was actually merely a continu-
ation of the Independent under a different name, and was so regarded
-by the employees. The respondent's domination, interference with,
and support of the Independent carried over to the S. R. W.13
Our findings with respect to the Independent are based largely on
the testimony-contained in a transcript-and exhibits, introduced at
the first hearing. The transcript and exhibits were received in evi-
12Cf. Wilson & Co Inc., v. National Labor Relations Boaid, 126 F (2d) 114 (C C A. 7)
enforcing Matter of Wilson & Co , Inc, and Local Union No 25, United Packinghouse Workers
of America, affiliated with C I. 0., 31 N. L. R B 440; Matter of The Perfection Steel
Body Co, and Local 1151, International Association of Machinists , affiliated with the
A. F of L, 36 N L R B 851 ; Matter of Sussex Dye & Print Works, Inc, and Bernard
R Armour and Federation of Dyers, Finishers, Printers and Bleachers of America, 34
N L R. B 625
13 Westinghouse Electric & Mfg Co. v. N L R B, 112 F (2d) 657 (C C A 2). affd
312 U. S 660; N L R. B v. Link-Belt Company, 311 U. S 584; N. L R. B. v. Newport-News
Shipbuilding it Dry Dock Co ., 308 U S 241 ; Marks Products Co. Inc, and Local No 3, Inter-
national Brotherhood of Electrical Workers , A F of L, 35 N. L R B 1262; Now Idea,
Inc, and Federal Labor Union No . 21218, affiliated with the A . F. of L ., 31 N. L R B. 196.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deuce in the second hearing after the following statements had been
made by counsel and the Trial Examiner :
Mr. KING [for the respondent]. If your Honor, please, I have
no objection to the introduction of the evidence with the reserva-
tion of the right on behalf of the Pequanoc Rubber Company to
amplify or supplement any evidence therein stated.
Mr. LAUTER [for the Board]. Mr' Trial Examiner, the offer
is made with that specific understanding.
Mr. DUMONT [for the S. R. W.]. That being the case, I have
no objection.
Trial Examiner PARADISE. All right, there being no objection,
the record and exhibits in the case referred to . . . are received
in evidence.
* * * * * *
Thereafter, the record shows the following :
Trial Examiner PARADISE. Let me' put a question to (the)
parties so that I will be under no misapprehension as to the
parties' intentions in the situation. My understanding is that
the transcript in the previous case is in evidence now and that
the evidence contained in that transcript is to be considered by the
Trial Examiner with the same force and effect as if witnesses
had testified to the same effect in this present proceeding.
Mr. LAUTER. That is correct.
Trial Examiner PARADISE. Is that correct, gentlemen? That
is the intention of the parties, is it not? - (No response).
When the respondent moved to dismiss the complaint at the close
of the Board's case, the Trial Examiner stated :
To the extent the allegations in those paragraphs [of the com-
plaint] may be dealt with in the hearing that was held on the pre-
vious complaint, the Trial Examiner is unable to dispose of the
motion at this time because he has not read the transcript and
does not know whether these allegations find support in the evi-
dence or not.
The respondent did not express disagreement with this statement.
At the close of the hearing, the respondent's attorney contended for the
first time that the evidence in the prior hearing should not be consid-
ered, stating erroneously: ". . . I have on the record my objection
to the receipt of the testimony, and my reasons for the objection."
The respondent and the S. R. W. also make this contention in their ex-
ceptions to the Intermediate Report. We are of the opinion, and find,
that at the hearing, the Trial Examiner made clear to the respond-
PEQUANOC RUBBER COMPANY 557
ent and the S. R. W., and they understood and agreed, that the tran-
script and exhibits in the previous hearing were to be admitted "with
the same force and effect as if witnesses had testified to the same
effect in this present proceeding." Further, the respondent and the
predecessor of the S. R. W. appeared and participated in the first
hearing through the present counsel for the respondent and the S. R. W.
Moreover, in the present hearing, the respondent and the S. R. W. were
expressly given an opportunity "to amplify or supplement" or qualify
or controvert the evidence taken from the first hearing. Although
the respondent and the S. R. W. now suggest that they should have
an opportunity to adduce further evidence, they do not reveal the
nature or relevance of this alleged additional evidence.
The respondent adverts to the fact that the findings and recom-
mendations of Trial Examiners Ward and Paradise differed some-
what; 14 but we do not understand how this prejudiced the respondent
or the S. R. W. As counsel for the respondent readily admitted at
the oral argument, he "conceived of the Trial Examiner's position as
. . . purely an advisory proposition." The Board gives careful con-
sideration to a Trial Examiner's Intermediate Report. In this case
we have given careful consideration to the Intermediate Reports
of both Trial Examiners, and pursuant to `the duty placed exclusively
on the Board by the Act, we have set forth our determination in the in-
stant Decision and Order. Since this is the first time we are making
our findings of fact and ,order with respect to the Independent and the,
S. R. W., no problem of res judicata is presented.
The Board's communication to the respondent, dated October 29,
1940, shows on its face that it was not a final, or indeed any, determina-
tion of the merits. Moreover, it was sent without knowledge of the
facts that the Independent had already been transformed into the
S. R. W. before the respondent had taken its action in purported com-
pliance with Trial Examiner Ward's Intermediate Report, and that the
respondent had awarded the S. R. W. exclusive recognition and a con-
tract. Clearly, under these circumstances, the policies of the Act
would not be effectuated by considering the communication of October
29, 1940, as a bar to the instant proceeding.15
In essence, the claim of the respondent and the S. R. W. is that the
evidence originally taken at the first hearing and reintroduced in the
second hearing "has no materiality in the present issue" and that the
S. R. W.\is not the successor of the Independent. We have already
discussed and rejected this contention. Upon the entire record, we
find that it is proper to consider the transcript and exhibits of the
14 It may be noted , though, that Trial Examiner Paradise accepted Trial Examiner ward's
credibility estimates, as do we
15 Cf. Matter of Mai L6 Ph oducts Co., Inc , and Lrcal No 3, International Brotherhood of
Electrical Workers, A F. of L, 35 N. L R B. 1262, and cases cited therein.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prior hearing introduced at the present hearing and that the respond-
ent and the S. R. W. are not prejudiced by the consideration which we
have given to them herein.
Upon the entire record, we find that the respondent 'has dominated
and interfered with the formation and administration of the Inde-
pendent and the S. R. W., and has contributed support to them ; and
that the respondent thereby, by the anti-Union and pro-Independent
statements and acts of Supervisors Vreeland, Taylor, Walter Miller,
Sr.; Marion, Mooney, Richard DeGraw, and Ditzler urging its em-
ployees to refrain from aiding, becoming, or remaining members of
the Union, threatening them with discharge or other reprisals if they
aided or joined the Union or failed to join the Independent, and vilify-
ing the Union and its representatives, and by the discrimination be-
tween the Independent and the C. I. 0. with respect to extra work and
job assignments, has. interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, oc-
curring 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. TILE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we will order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act and
to restore as nearly as possible the conditions which existed prior to
the commission of the unfair labor practices.
We have found that the respondent dominated and interfered with
the formation and administration of the Independent and the S. R. W.
and contributed support to them. Since the Independent has been
dissolved, it will not,be necessary to order its disestablishment., The
continued recognition of the S. R. W. as the bargaining representative
of the employees of the respondent constitutes a continuing obstacle
to the free exercise by them of their right to self-organization and
to bargain collectively through representatives of their own choosing.
Accordingly, we will order the respondent to withdraw all recogni-
tion from the S. R. W. and to disestablish it as the representative of
any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment. Since the existing
PEQUANOC RUBBER COMPANY 559
agreement between the respondent and the S. R. W. embodies recog-
nition of that organization as exclusive bargaining representative of
its employees, and since such contract represents the fruit of the re-
spondent's unfair labor practices and is a device for the perpetuation
of their effects, we will order the respondent to cease giving effect to
it, or to any contract existing between it and the S. R. W., and to any
modifications or extensions thereof. Nothing in our order, however,
shall be construed as requiring the respondent to vary those wage,
hour, and other substantive features of its relations with the employees
themselves, if any, which the respondent has established in the per-
formance of the contract as extended, renewed, modified, supplemented,
or superseded.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS or LAW
1. United Rubber Workers of America, Local 163, affiliated with the
C. I. 0., and Soft Rubber Workers, Inc., are labor organizations, and
Independent Rubber Workers of Butler, Inc., was a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Independent Rubber Workers of Butler, Inc., and Soft
Rubber Workers, Inc., and contributing support thereto, the respond-
ent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8,(2) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
Upon the basis of the foregoing findings of facts and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
respondent, Pequanoc Rubber Company, Butler, New Jersey, its offi-
cers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Soft Rubber Workers, Inc., or with the formation or adminis-
tration of any other labor organization of its employees, and from
contributing support thereto;
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. (b) Recognizing Soft Rubber Workers, Inc., as a representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(c) Giving effect to its agreement with Soft Rubber Workers, Inc.,
or to. any modification, extension, or renewal thereof;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join,-or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from and completely disestablish
Soft Rubber Workers, Inc., as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment;
(b) Post immediately, in conspicuous places in its plant at Butler,
New Jersey, and maintain for a period of riot less than sixty (60)
consecutive days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
which it has been ordered to cease and desist in paragraphs 1 (a), (b),
(c), and (d) hereof; (2) that the respondent will take the affirmative
action set forth in paragraph 2 (a) hereof;
(c) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.