Sperry Gyroscope Co., Inc.

National Labor Relations Board - Board Decisions

Nov 27, 1941

36 N.L.R.B. 1349 (N.L.R.B. 1941)

In the Matter of SPERRY GYROSCOPE COMPANY, INC. and LOCAL No. 1202
'OF THE UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF• AMERICA,
C. 1. 0. -
Case No. C-19-32.-, Decided November 27',1941
Jurisdiction : aeronautical and marine-navigational instrument industry.
Unfair Labor Practices - -
Company-Dominated Union • held: organization is successor to an admitted domi-
nated organization formed by the officers and attorney of the predecessor;
predecessor transferred its funds which were accumulated with company
assistance'; predecessor disestablished only after the successor was formed;
stipulation providing for disestablishment of predecessor and non-recognition
of successor violated by company; recognition and granting of membership
maintenance contract to successor under changed name.
Discrimination: discharge pursuant to illegal membership maintenance contract
with company-dominated union.
Remedial, Orders : employer ordered- to disestablish successor dominated organi-
zation and cease giving effect to contract with it; reinstatement and back
pay awarded.
Mr. Mark Lauter, for the Board.
Chadbourne, Wallace, Parke c0 Whiteside, by Mr. Horace G. Hitch-
cock and Mr. Howard F. Fisher, Jr., of New York City, for the
respondent.
Mr. Frank Scheiner and Miss Ruth Roemer, of New York City, for
the Union.
Math c0 Glassman, by Mr. N. W. Math and "Mr.' Richard R. Glass-
man, of New York City, for the Brotherhood.
Ann Landy Wolf, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges 1 duly filed by Local- No. 1202
of the United Electrical, Radio & Machine Workers of America,
V. 1."0. '&rein called the Union, the National Labor Relations Board,
herein called the Board, by its Regional Director for the Second
i The original charge was filed June 16, 1939, the amended charge, 'September , 7, 1939,
and the second amended chaige November .7,•1940.
36 N. L. R. B., No 264. • - . -
1349
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region (New York City), issued its complaint dated February 19,
1941,2 against Sperry Gyroscope Company, Inc., Brooklyn, New York,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (2) and Section 2 (6)
and (7) of the-National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing thereon
and two notices of postponement of the hearing were duly served
upon the respondent, the Union, Sperry Hourly Employees Associa-
tion, herein called the S. H. E. A., Independent. Instrument & Me-
chanical Workers Union, herein called the Independent, and Brother-
hood of Scientific Instrument Makers of America, herein called the
Brotherhood.
With respect to the unfair labor practices, the complaint alleged
in substance that the respondent (a) in 1933 and thereafter initiated,
dominated, and supported a labor organization known- variously as
the S. H. E. A., the Independent, and the Brotherhood, and has con-
tinued said domination and interference to date, inter alia, by enter-
ing into a contract with said Brotherhood on or about June 21, 1939,
governing wages, hours, and working conditions of its employees;
and (b) from about November 1937 to date discouraged membership
in the Union by various specified acts.
On March 1, 1941, the respondent filed its answer admitting execu-
tion of the contract with the Brotherhood as well as certain. other
allegations of the complaint but denying that it had engaged in un-
fair labor practices. On March 7, 1941, the respondent filed a motion
that the complaint be amended to snake it more definite and certain
in respect to certain allegations.
Pursuant to notice, a hearing was held in New York City from
March 24 to April 12, 1941, before J. J. Fitzpatrick, the Trial Ex-
aminer duly designated by the Chief Trial Examiner. At the open-
ing of the hearing the Brotherhood filed a motion to intervene. The
motion was granted and the Brotherhood was permitted to intervene,
but only for the purpose of meeting the allegations respecting the
respondent's initiation, domination, and support of it. The Board,
the Union, the respondent, and the Brotherhood were represented by
counsel and participated in the hearing. Full opportunity to be
heard, to examine, and cross-examine witnesses, and to introduce evi-
On September 13, 1939 , the Regional Director refused to issue a complaint and after
the Union appealed , the Board on December 20, 1939, sustained the action of the Regional
Director . Reconsideration Sias requested by the Union and on January 26, 1940, the
Board denied the request . On May 1, 1940 , the attorney for the Union filed a document
entitled "Resume of Facts Establishing the Charge of Local 1202 . . ." and on July
31. 1940, a motion , again asking for reconsideration of the Board 's refusal to issue a
complaint. On August 7, 1940, the Board issued an order granting the motion and
authorizing the issuance of the complaint.
SPERRY GYROSCOPE COMPANY, INC. 1351
dente bearing upon the issues was afforded all parties. At the open=
ing of the hearing the Trial Examiner instructed counsel for the
Board to prepare 'and read into the record the names of the re-
spondent's officers and agents,referred to in certain paragraphs of the
complaint, but otherwise denied the respondent's motion to make the
complaint more definite and certain.'
During the course of the hearing, on April 3, 1941, a third amended
charge was filed by the Union with the Regional Director. On April
9, 1941, an amended complaint, incorporating the new charges, was
issued and duly served upon the parties. The Trial Examiner, over
the respondent's objection, permitted the amended complaint to be
filed. The new matter set forth in the amended complaint alleged
that the respondent, on or about September 14, 1939, had discharged
one Otto Ehren because of his failure to pay dues to the Brotherhood,
and that the respondent had thereby engaged in an unfair labor prac-
tice in violation of Section 8 (3) and (1) of the Act. Thereafter the
respondent denied on the record any allegations charging it with vio-
lation of Section 8 (3) of the Act.
At the close of the hearing a motion was granted to conform the
allegations in the amended complaint to the proof. During the
course of the hearing, the Trial Examiner made it number of 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 error was committed. The rulings are hereby
affirmed. The parties did not avail themselves of an opportunity to
argue orally before the Trial Examiner, but pursuant to leave granted
to all parties, the respondent filed a brief with the Trial Examiner
after the termination of the hearing.
On July 19, 1941, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served on all of the parties. In his
Intermediate Report the Trial Examiner found that the respondent
had engaged in unfair labor practices affecting commerce, within the
meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the Act. He recommended that the respondent cease and desist
therefrom, and that it take- certain affirmative action designed to
effectuate the policies of the Act. On August 23 and on August 26,
1941, the Brotherhood and the respondent, respectively, filed excep-
tions to the Intermediate Report, and thereafter both the Brother-
hood and the respondent filed briefs in support of their exceptions.
On October 9, 1941, pursuant to notice duly served upon the parties,
8 After a short adjournment on the first day of the hearing , the Board ' s counsel prepared
and read into the record the names of the respondent 's officers and agents who would be
referred to in the testimony of the witnesses for the Board At the beginning of the
session the next hearing day, the names of other officers and agents of the respondent
involved in the testimony of the Board's witnesses were read into the record in conformity
with , the ruling.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oral argument was had before the Board at Washington, D. C: Tho
respondent, the Union, and the Brotherhood were represented by
counsel and all participated in the oral argument.
The Board has considered the exceptions and the briefs filed by
the respondent and the Brotherhood and finds the exceptions without
merit in so far as they are inconsistent with the findings, conclusions,
and order sdt forth below.
Upon the entire record in the case, 'the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Sperry Gyroscope Company, Inc., is a New York
corporation having its principal office in Brooklyn, New York. It
has plants in Brooklyn'and Garden City, New York, and is engaged
in-the manufacture, sale, and distribution of aeronautical and marine
navigational instruments. The principal materials used are aluminum,
brass, copper, steel stock, alloy castings, electrical accessories, and
various-plastics. ' Materials purchased during 1940 amounted to more
than•$100,000 in value, of which over 20 percent was obtained from
sources outside the State of New York. For the same period gross
sales amounted to over $100,000 in value, of which over 75 percent
was' shipped to points outside the State of New York. The re-
spondent concedes that it is engaged in commerce within the meaning
of the Act.
H. THE ORGANIZATIONS INVOLVED
Local 1202 of the United Electrical, Radio & Machine Workers of
America, affiliated with the Congress of Industrial Organizations, is a
labor organization admitting to membership employees of the
respondent.
Sperry Hourly Employees Association, and Independent Instru-
ment & Mechanical Workers Union were unaffiliated labor organiza-
tions and Brotherhood of Scientific Instrument Makers of America
is an unaffiliated labor organization admitting to membership em-
ployees 'of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination-of and interference with the formation and adminis-
tration of labor organizations
(1) Chronology of events -
(a) History of -Sperry Employees Industrial Association
Beginning about 1918 and continuing to the fall of 1933, there was
in existence in the respondent's plant a labor organization kridwn' as
` I SPERRY GYROSCOPE COMPANY, INC. 1353
Sperry Employees Industrial Association, herein referred to as the
Association. All regular employees of the respondent automatically
became members when they were employed, and lost their member-
ship on leaving the respondent's employment. The Association func-
tioned through a council, consisting of about 26 elected employee
representatives, including a representative of the foremen, and a cab-
inet composed of 4 council representatives and 4 representatives of the
management. There were no dues or initiation fees. Funds were-
obtained from social activities. The respondent financed dinners
and luncheons for the Association and in one instance donated $500
for its relief committee. In addition, the respondent paid council
representatives or alternates for time spent on Association business,
and furnished the organization with free meeting space within the
plant. Nominations and elections to the council were held on coin-
pany property and time. Mimeographed copies of minutes of coun-
cil meetings were prepared on the respondent's equipment and
distributed to the representatives during working hours. -
(b) Formation of the Sperry Hourly Employees Association
In the fall of 1933, the Association membership divided into two
groups, the Sperry Salaried Employees Association, made up of
salaried employees of the respondent, and a larger group, Sperry
Hourly Employees Association, composed of hourly paid employees.
Funds of the Association, amounting to approximately $3,000, were
divided between the two new organizations, the major portion there-
of going to the S. H. E. A. The Sperry Salaried Employees As-
sociation has no connection with the present case and no further
-reference will be made to it.
The S. H. E. A. functioned along lines similar to the Associa-
tion. It had a council consisting of members elected to represent
employees in different departments of the plant. The cabinet was
abandoned and instead, there was set up by the council an executive
committee consisting of the five officers of the council and one other
council member. As in the Association, membership in the S. H. E. A.
was automatic. -No dues or initiation fees were collected. The ex-
penses of the organization were met by the profit from social activi-
ties and revenues from vending machine concessions permitted in
,the plant by the respondent. The respondent furnished without
charge a meeting place for the council in the plant. It paid the
council representatives or their alternates for time spent on S. H.
E. A. business. At an undisclosed -time, meetings of the council,
which had formerly been held during working hours, were shifted
to after working hours, and the respondent paid for the overtime-and
'gave the representatives their supper. Aid was given to the S. H.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. A. in the collection of its relief loans to employees by making de-
ductions in wages to pay such debts when authorized by the employees.
Matters taken up with the management by the S. H. E. A., either
through the council or its executive committee, concerning wages,
hours, and working conditions, appeared in council minutes in the
form of reports or answers from the management and the action
if any, taken by the council thereon.4 The respondent permitted the
minutes of council meetings to be mimeographed on its equipment,
and allowed the minutes to be posted or distributed in the plant
during working hours. The S. H. E. A. had no written contract,
but the respondent and the S. H. E. A. did have an oral understand-
ing governing.wages, hours, and working conditions.
From 1936 to 1938 Clarence Sylvester was president of the S. H. E. A.
and George Temme, one-time president of the Association, was the vice
president of the S. H. E. A. Both Sylvester and Temme had limited
supervisory duties. Sylvester was made an assistant foreman on Jan-
uary 12, 1939, and as such gives instructions, assigns and supervises the
work of about 50 employees subject to the directions of his foreman, and
acts as foreman in the latter's absence. He testified that while in 1938
there were no assistant foremen in the plant, his work at that time was
comparable to his present duties and that he was "on supervision" in-
termittently. The respondent admits that Sylvester, prior to March 16,
1938, performed certain functions which "for purposes of his own pay
record alone" were classified as supervisory. On March 16, 1938, the
respondent issued instruction that only persons on a stated list were
allowed to charge time to supervision. Sylvester was not included on
that list. Since prior to 1938 Temme was senior clerk in one of the
storerooms. As such, he coordinated the work, and signed requisition
slips. Temme became an assistant storekeeper on January 14, 1940.
(c) Efforts to modify and reorganize the S. H. E. A.
In the spring of 1937, organizational activities for the Union started
in the respondent's plant and attacks were made upon the validity of
the S. H. E. A. Shortly after the Supreme Court of the United States
had upheld the constitutionality of the Act, the S. H. E. A. council,
becoming doubtful that the organization existed in conformity with
the requirements of the Act, requested the respondent that payments
to representatives or their alternates for "supper, and overtime pay for
Council work" be discontinued. In May, the respondent complied with
this request. The respondent, however, continued to pay the repre-
sentatives for council work at the regular rate of pay until March 1938.
In June or July 1937, the respondent terminated the free use of the
4 The S. H. D A. constitution as revised in April 1935, provided that arbitration was
"permissible," but it does not appear that any matters were arbitrated.
SPERRY GYROSCOPE COMPANY, INC. 1355
-council room in the respondent's plant: The S. H. E. A. thereafter paid
the respondent a nominal rental of $4 a month for the use of this room
for its council meetings.5 In November 1937 the constitution and by-
laws of the S. H. E. A. were amended to provide that membership be
restricted to those hourly employees who had been approved for mem-
bership by the membership committee,6 and provision was made for
clues and assessment of its members.7
About December of 1937, the respondent discontinued the free use
of its mimeograph equipment to the S. H. E. A., and sold an old mimeo-
graph machine to the organization for $10. At that time it also rented
to the S. H. E. A. for $5 a month a small office in which to keep the
machine and certain of its records.
On February 19, 1938, the Union filed with the Board a charge alleg-
ing violations of Section 8 (1) and (2) of the Act in that the respond-
ent had dominated and interfered with the administration of the
S. H. E. A. and contributed support thereto. On February 28, 1938,
at the request of J. M. Hetherton, Field Examiner for the Second Re-
gional Office of the'Boa'rd, James E. Webb, at that tiine assistant to the
president and also personnel director of the respondent, called at Heth-
erton's office relative to the charge. Webb admitted the assistance by
the respondent to the S. H. E. A. as heretofore detailed, but claimed
that it had been discontinued and that the respondent was not at that
time giving the S. H. E. A. financial aid of any kind. Hetherton sug-
gested that the fact that the respondent continued to permit the
S. H. E. A. to hold meetings in its plant might be interpreted by the
employees as indicating that the respondent favored the S. H. E. A.
On March 3, 1938, by letter, the respondent notified the S. H. E. A. to
vacate the rooms rented in its plant and that in the future the respond-
ent would discontinue honoring authorizations for wage deductions on
the S. H. E. A. loans to its members. The same day the respondent
sent memoranda to all its division heads, foremen and supervisors,
calling, attention to-the filing of the charge by the Union and setting
forth instructions in regard to its relations with employees and labor
organizations." On April 8, 1938, the respondent revoked its permis-
ion to the S. H. E. A. to maintain vending machines in the plant.
6 The council room was a large, general , all-purpose room on the tenth floor of the
Sperry Building It was furnished as a meeting room and also as a restaurant . It served
regularly as the executives ' lunch room and it was also used freely for the activities of
all types of employee organizations In May 1937 Sylvester , president of the S. H E. A.
council, interviewed a representative of the Second Regional Office in New York and was
advised to pay rent for facilities given the S H. E. A. by the respondent and to cease
accepting payments for supper for council members. /
6 This membership committee never functioned or passed on membership applications.
All hourly employees continued automatically as members of the organization. '
4 The Council did not provide for the collection of dues until April 1, 1938. Thereafter
dues of 25 cents were collected for the second quarter of 1938 from many of the S. H. E. A.
members.
There is no evidence that these memoranda were posted or brought to the attention
of the employees.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 3, 1938, Webb, accompanied by Superintendent Malkovsky
and another official of the respondent by the name of Withers, met
Hetherton at the latter's office. Clarence Sylvester, George E. Temme,
and Mel Walters, president, vice president, and secretary, respectively,
of the S. H. E. A., also were present. Webb gave Hetherton copies of
the memoranda sent to supervisors and a copy of the letter of March 3
sent to the S. H. E. A. Hetherton stated that he would report to the
Regional Director and would thereafter get in touch with Webb. On
March 14, at a conference attended by counsel for the Union, Hetherton
advised Webb that the respondent would have to withdraw all recog-
nition from the S. H. E. A. or the Regional Director would recommend
that a complaint be issued on the Union's charges.
On March 17, Webb reported to Hetherton that the respondent was
willing to post a notice in its plant withdrawing recognition from the
S. -H. E. A., provided that the notice was accompanied by a letter of
explanation from the respondent. On March 24, the Regional Director
advised the respondent that the posting of an explanatory letter with a
disestablishment notice was a matter to be passed on by the Board.
- In the meantime, notice of a special -S. H. E. A. council meeting at
the Livingstone Manor Hotel on March 21, 1938, for "the purpose of
changing'the constitution to conform with the opinions of the Na-
tional Labor Board," was given the representatives by the S. H. E. A.'s
secretary, Walters, during working hours. At the hotel meeting, Syl-
vester, president of the council, introduced N. W. Math, an attorney,
whom he and Temme had previously retained." Some discussion was
had as to whether a new organization was contemplated. Sylvester
stated that the new organization would be exactly the same as the
S. H. E: A. except that it would have a new constitution and a new
name. This was reiterated by Temme and Attorney Math. Temme
stated that it'would be an independent union like "we had been having
all along" and that he was "quite sure that men in the shop didn't
want the C. I. 0." Math spoke about the "high pressure methods" of
the C. I. O. and suggested that cards, stating that the employees did
not want to be represented by the C. I. 0., be printed and circulated.
Although objection was voiced to a motion to this effect, it passed.
Sylvester appointed a committee consisting of the officers of the S. H.
E. A. and some others to draw up a new constitution and change the
name.'"
Following this meeting, the S. H. E. A., as suggested by its attorney,
caused cards repudiating the C. I. O. to be printed. Employee repre-
sentatives circulated the cards'and obtained signatures thereto in the
9 Sylvester' testified that be engaged, Math upon the suggestion of a taxi driver who
overheard his discussion with Temme about independent unions.
10 The findings in this paragraph are based on the uncontradicted testimony , of George
Berlant, an employee. '
SPERRY GYROSCOPE COMPANY, INC. 1357
respondent's plant during working hours.11 On March 26, Math wrote
the respondent that the S. H. E. A. was about to reorganize "to remove
any possible suspicion that may rest in anyone's'mind that the S. H.
E. A. is a Company Union." He asked the respondent not to bargain
with the Union "as we have obtained 762 cards signed by the employees
stating they are not members of the aforementioned Union and do not
wish them to be their collective bargaining agent. A copy of the card
is being sent along with this letter."
On April 4, 1938, Hetherton advised Webb that the respondent's
proposed explanatory letter was inadequate to meet the issues raised
in the case.
(d) Formation of the Independent
On April 7, 1938, an S. H. E. A. council meeting was held at which
the proposed constitution and bylaws were discussed, ratified, and
declared ready for approval by the general membership. The new
name adopted was Independent Instrument &, Mechanical Workers
Union. Mimeographed copies of the minutes ,were thereafter dis-
tributed to the employees on company time.
On April 27, 1938, a meeting of the rank and file membership of the
S. H. E. A. was held at a local hotel .12 About 700 employees attended
the meeting. The proposed constitution was read and discussed sec-
tion by section. Some changes were made and the proposed con-
stitution as changed was ratified at this meeting. It was decided that
the old officers of the S. H. E. A. would function until new officers were
elected for the Independent.12 At a meeting of the membership held
on May 11, nominations were made from the floor for all offices provided
for by the constitution and bylaws, including shop stewards14 Reso-
lutions were adopted providing (a) that each member be assessed $1
payable in 5 days; (b) that each member pay his May and June dues
of 50 cents per month by May 16; and (c) that the management be
"Foreman Candida was present in department 11-N when the cards were distributed
and, according to witness Berlant, Candida « as standing nearby and "could not fail
to see" it.
13 This was the only membership meeting ever held by the S. N. E. A. The post-card
notices sent to,the members by the secretary of the S H. E A announced that the pur-
pose of the meeting was to adopt the new constitution and requested each member to bring
his dues book and the notice to the meeting. -
13 The constitution and bylaws as finally ratified and adopted provided for an Executive
Board of not less than 25 members . It also provided for dues and assessments . Member-
ship was limited to production workers "in the scientific industry ." There is no evidence
or claim that anyone outside the respondent ' s hourly paid workers were members at
this time.
14 Thereafter ,, the results of the election were posted'on the time clocks in the respond-
ent's plant .' The four officers elected were all prominent members of the S. H E A
George Temme, vice president of the S. H E. A ., and one time president of the Association,
was elected president of the Independent . C. Doak , former councilmen and member of
the constitution committee of the S -FI E. A., was elected vice president ' W. Hergenhan,
also ^ an 'S.. H. :E. A. councilman ,. was elected secretary , and Robert G. Brass continued in
office as treasurer.
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requested to recognize the Independent as the "sole bargaining agency."
The assessment and the dues were later credited to all members from
the S. H. E. A. assets, however.
On May 19, and again on May 27, 1938, the Independent, by letter
to the respondent, stated that it represented a majority of the re-
spondent's hourly employees and demanded recognition as the exclu-
sive bargaining agency.15 On May 19 the Union filed an amended
charge with the Regional Director alleging that the Independent was
a company-dominated union.
On or about May 23, 1938, all property of the S. H. E. A. including
a bank account of $1,472, was transferred to the Independent." Each
S. H. E. A. member in good standing was given a dues book and his
name was carried on the records of the Independent under the same
folio number as he had had in the S. H. E. A. Sylvester and two
others were appointed trustees to liquidate all outstanding S. H. E. A.
loans. This fund when collected was distributed in 1939 in the form
of a 12-cent dividend to the S. H. E. A. members.
On June 13, 1938, the Independent filed a charge with the Regional
Director alleging that the respondent had refused to bargain col-,
lectively' with the Independent in violation of Section 8 (5) of the
Act. On July 27, 1938, the Regional Director refused to issue a
complaint and after the Independent appealed, the Board on August
4, 1938, sustained the action of the Regional Director.
(e) The agreement to disestablish the S. H. E. A. and not to recognize
the Independent
On July It, 1938, a conference took place at the- Regional Office
of the Board, participated in by the Regional Director and the
Regional Attorney for the Board, and representatives'and officials of
the respondent, the Independent, and the Union, relative to disposing
of the Union's charges by stipulation. The Board representatives
stated that they did not regard the Independent as a bona fide labor
organization and considered it a successor to the S. H. E. A. Drechs-
ler, special counsel for the respondent, suggested that there be a
suspension period in which no union should be recognized by the
respondent and that -there be an election among the employees.
u The respondent did not answer either of these letters
10 No formal action appears to have been taken by the S. H. E. A relative to this
transter The witness , Frank P . Dyer, testified that the matter was discussed at the
May 11 meeting , and at that time it was agreed , or at least discussed , that the $1,472
should be turned over and credited to the Independent bank account and that each
member of the Independent be credited with the payment of $ 1 assessment and $1 on dues.
He also stated that at that time there was some discussion and an understanding that
if any S H E . A. member desired the $2 in cash he could get the money instead of the
credit in the Independent on his dues and assessment , but that no one made such request.
The minutes make no reference to the subject . I ; AA :u
SPERRY GYROSC'OPE--COMPANY, INC. - 1359
Scheiner, attorney for the Union, objected to an election if the Inde-
pendent appeared upon the ballot. The Regional Director concurred
in this position. Scheiner t tatecl that if the respondent would post
notices disestablishing both the S. H. E. A. and the Independent, the
Union would file a petition for investigation and certification of
representatives. Math, representing the Independent, insisted that
his organization vas created free from domination, but.finally agreed
that if the Independent Were not required to sign the stipulation he
would recommend to the membership of his organization that they
agree to an election with only the C. I. O. on the ballot. It was
finally agreed that a stipulation should be drafted and signed by
representatives of the Board, the respondent, and the Union. On
July 20, 1938, a stipulation was signed by the respondent, the Union,
and the Regional Attorney for the Board?' On July 19, the night
before the stipulation was signed, the Independent held a mass meet-
ing for the purpose of showing "that the best interest of our Workers
can only be served, through the Independent . . ." The em-
ployees on the night shift left the plant to attend the meeting with
the knowledge and permission of their foremen.
14 It provided:
It is hereby stipulated and agreed by and between the undersigned, that the Sperry
Gyroscope Company, 40 Flatbush Avenue Extension, Brooklyn, New Yolk.
1. Recognizes the right of its employees 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, and will not in any manner interfere with, restrain,
or coerce its employees in the exercise of such rights
2 Will not dominate or interfere with the formation or administration of any labor
organization of its employees, or contribute financial or other support thereto
3.. Withdraw all recognition from the Sperry Hourly Employees Association as the
representative of its employees for the purpose of dealing with the company concerning
grievances, labor disputes, wages, rates of pay, hours of employment or conditions of
work and completely disestablish said organization as such repiesentative
4 Will not recognize the Independent Instrument & Mechanical Workers Union, as
representative of its employees for the purpose of dealing with it concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or conditions of
work, and completely disavows any relationship with said organization as such
representative
5 Post and keep this stipulation posted in conspicuous places throughout all de-
partments of the plant for a period of at least 60 consecutive days from the date
of posting.
6 It is further stipulated and agreed by and between the undersigned that Local
No 1202 of United Electrical Radio & Machine Workers of America, affiliated with
the C I. 0 will
(a) immediately upon performance of the provisions of this stipulation by the
company ask for the withdrawal of all chaiges filed by it in this matter with the
Regional Director of the Second Region of the National Labor Relations Board so
that if approval is granted by the said Board, the case may be closed
(b) immediately after the expiration of the 60 consecutive day period of posting,
Local 1202 of United Electrical Radio & Machine Workers of America, affiliated
with the C. I 0 , will file the necessary petition for an election to be conducted by
the National Labor Relations Board in accordance with the National Labor Relations
Act, and the rules and regulations promulgated thereunder
Dated. New York, New Yoi k,
6, ; ,ii r t
July 20, 1938.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The day following the signing of the stipulation, July 21, 1938,
copies of the stipulation were posted on all bulletin boards in the
respondent's plant, as well as at other points convenient and accessible
to the employees, and kept posted for the required period. In an
attempt to counteract the effect of the 'stipulation the Independent
issued and distributed leaflets on July 22. The leaflet contained the
following statements :
This Stipulation relates to and concerns only charges filed by
the C. I. O. against the Sperry Company, specifically in relation to
the now defunct S. H. E. A. and included a disavowal by the
Company of any relationship with Our Organization, the Inde-
pendent Instrument & Mechanical Workers Union.
DO NOT LET DISTRIBUTION OF THIS STIPULATION
LEAD YOU TO BELIEVE THAT IN ORDER TO HAVE
COLLECTIVE BARGAINING YOU WILL HAVE TO JOIN
THE C. I. O.
YOU CAN CONTINUE TO BE REPRESENTED BY A
UNION OF SPERRY WORKERS FOR SPERRY WORK-
ERS AND BY SPERRY WORKERS.
(f) Reorganization of the Independent into the Brotherhood
On October 27, 1938, at a meeting of the Independent, the resigna-
tions of George T. Temme, president, and Charles Doak, vice presi-
dent, were accepted, and Frank-P. Dyer 18 and John Fanner, respec-
tively, were elected to these offices. At the same time the organiza-
tion changed its name to Brotherhood of Scientific Instrument
Workers of America. According to Dyer's testimony these changes
were made pursuant to the advice given to Math, their attorney, by
a representative of the Board that such changes would remove the
Board's objection to the Independent.19
It is.not disputed that the Brotherhood is in, f<<;,t the Independent.
The constitution of the Independent remained the constitution of
the Brotherhood. The expenses of the Brotherhood were paid out
of the funds of the Independent; the Brotherhood's bank account
18 Dyer had been an inspector for the respondent In April 1940 he took the position
of president of the Brotherhood as a full -time job and received a leave of absence from the'
respondent His work badge , which he retained, gave him entree to the respondent 's plant
at all times
19 Dyer further testified that he , together with Bronack , another representative of the
Independent , were sent to the Regional Office to verify Math ' s report and that Regional
Attorney Morse, after telling them to rely upon their'attorney 's instruction or get another
attorney in whom they had more confidence , made " fragmentary references " and gave
"sketchy information . . . indicating that these changes had been discussed and were
part of the program that had been developed at this conference " ( Dyer presumably
referred to an earlier conference between Math and Morse ) Math, in his oral argument
before the Board , stated that Dyer and Bronack were the recipients of the Board's advice
on the changes and made no reference to his own discussion of the subject.
SPERRY GYROSCOPE, COMPANY, INC. 1361
was not opened until January 4, 1939. Dyer admitted at the hearing
herein that "the only difference between the Independent and the
Brotherhood is the change of name." Math, counsel for the Broth-
erhood, stated at the representation hearing on January 5, 1939: 20
"We are the Independent. We make no bones. We changed the
name, that was all, and elected two officers."
(g) The representation proceeding and the consent election
On November 1, 1938, the Brotherhood filed with the Regional
=Office of the Board a petition for investigation and certification of
representatives. This petition was dismissed by the Board without
prejudice on December 8, 1938.
Pursuant to the stipulation of July 20, 1938, the Union, on Novem-
ber 30, 1938, filed with the Regional Office a petition for investigation
and certification of representatives and on December 21 withdrew,
"without prejudice," its charge against the respondent. On Decem-
ber 28, 1938, the Brotherhood filed a petition to intervene in said
representation proceedings. This petition was granted by the Re-
gional Director on December 29, 1938, and the hearing was held on
January 5, 1939. On or about January 20, 1939, the Union moved
that the Board set aside the ruling of the Regional Director permit-
ting the Brotherhood to intervene in the representation case and that
a Direction of Election in the case be withheld until the Board had
acted on the Union's second amended charge filed at the same time.21
The charges alleged that the Brotherhood was a continuance of; or
the successor to, the S. H. E. A. and had been assisted by the respond-
ent, and that it was the same organization as the Independent.
On April 7, 1939, a conference was held in the Board's Regional
,Office participated in by representatives of the Union, the respondent,
the Brotherhood, International Molders Union of North America, and
Pattern Makers League of North America. It was agreed at this
conference that the respondent would recognize International Mold-
ers Union of North America and Pattern Makers League of North
America as representatives of their particular crafts in the respond-
ent's plant. There was discussion as to a consent election, the unit,
and the pay-roll dates to be used. Math, representing the Brother-
hood, said that he would not sign a consent election agreement unless
Scheiner, representing the Union, withdrew all pending charges.
Scheiner agreed, upon Hetherton's suggestion, that the Union would
withdraw, without prejudice, the charges filed against the respond-
20 Case No II-R-1188, see discussion below.
21 The respondent and Brotherhood both filed affidavits in opposition to the motion.
The record does not disclose what disposition , if any, was made of this motion
433118-42-vol. 36-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent.22 Click, the respondent's assistant personnel director, testified
that Math also stated that he would not sign the agreement unless it
was understood that, if the Union lost the election, the Brotherhood
would be recognized as bargaining agency if it could prove a majority.
Scheiner denied that such statement was made by Math, who did not
testify. It is reasonable to assume that this subject was discussed at
this conference, as it was at the July 1938 conference, when the
Regional Director stated in response to a question that, in the event
the C. I. O. lost the election, any organization of the respondent's
employees representing a majority would undoubtedly be given con-
sideration by the Board on proper petition, provided that the organ-
ization was not company dominated. It is unnecessary, however, to
resolve the conflict and find exactly what was said by Math at the
April 7 conference. There is no claim that any representative of the
Board suggested that the Brotherhood would be certified if the C. I. O.
lost the election or that Scheiner for the Union agreed to what Math
said. Further, the agreement as finally drafted and signed by the
respondent and the Union, and approved by the Brotherhood, makes
no mention of the subject.
The agreement for a consent election under the supervision of the
Board, with only the Union appearing on the ballot, was entered into
by the respondent and the Union on April 14, 1939, and approved by
representatives of the Regional Office of the Board, the Brotherhood,
Pattern Makers League of North America, and International Molders
Union of North America, A. F. of L. On May 4 and 5, the consent
election was held. The Brotherhood campaigned against the Union
It circulated leaflets which contained a sworn statement by Dyer that
"a decisive majority of `No' votes in the election of May 6th will result
in a contract between the Sperry Gyroscope Company and the Brother-
hood" and that the contract will "result in certification of the Broth-
erhood, by the National Labor Relations Board." On May 8, 1939, the
Regional Director issued a report on the election in which she certi-
fied that of a total number of 1,386 ballots counted, 529 thereof were in
favor of the Union and 857 were against the Union. Immediately
after the election the Brotherhood solicited signatures to cards desig-
nating it as the signers' collective bargaining representative. About
May 12, Dyer informed Click of this activity and asked for an oppor-
tunity to offer proof of a majority status.
" Scheiner wrote the Regional Office stating that the Union was withdrawing the
charges in order to facilitate the holding of the election but "without prejudice and without
waiving any of the rights of the employees . . . and the Union under the stipulation
dated July 20th, 1938 .. .
SPERRY GYROSCOPE COMPANY, INC. 1363
(h) Events'subsequent to the election; the contract between the-
respondent, and the Brotherhood
On May 17, 1939, William Burke, business representative of the
Union, wrote the respondent calling attention to paragraph 4 of the
July 20, 1938, stipulation wherein the respondent agreed not to recog-
nize the Independent; and to the fact that at the representation hear-
ing on January 5-6, 1939; the attorney for and officers of the Brother-
hood testified that the Brotherhood and the Independent were one
and the same organization. The communication served notice that if
the respondent should deal with the Brotherhood at any time the
Union would consider such action a violation of the July stipulation.
About May 19, 1939, at a conference with Click, the Brotherhood
produced cards reciting that the signers had voted in the election and
authorized the Brotherhood to act as their collective bargaining
agency. These cards were counted and checked against the signa-
tures on employment application cards and also checked against the
official voting list of 1547 names used by the Board in the election.
Of 951 cards submitted, 40 were rejected and 911 accepted by the
respondent.
In the latter part of May 1939, the Brotherhood presented to the
respondent a list of demands including a closed shop, a general wage
increase of 10 cents an hour, seniority provisions, and holiday ar-
rangements. Further meetings were held but the parties were unable
to agree on these provisions and they agreed to submit the dispute to
Chairman William H. Davis, then of the New York State Mediation
Board, who conducted an informal hearing thereon in June 1939.
The Union appeared at the mediation hearing and unsuccessfully
protested against the intervention of Mr. Davis in the matter on
the ground that the Brotherhood was a company-dominated union.
As a result of Davis' mediation efforts, an agreement was reached
by the respondent and the Brotherhood, and a contract was signed
on or about June 21, 1939. In lieu of the closed-shop provision
asked by the Brotherhood, a clause was inserted that "in the event of
the suspension, expulsion, or resignation from the Union [Brother-
hood] of any employee covered by this agreement, upon notice in writ-
ing from the Union [Brotherhood] to that effect, the Employer shall
within ten days discontinue its employment of such employee." The
wage increase provided was an increase of 5 cents per hour retroactive
to May 26, 1939, to all hourly employees. This agreement was in effect
at the time of the hearing.
2. Conclusions
The Association was initiated and organized by the respondent,
which exercised complete control over activities of the Association.
1364, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent bore all expenses attendant upon its administration.
It is not denied, and we find, as did the-Trial Examiner, that the
respondent fostered, dominated, and supported the Association.
As related above, in 1933, the S. H. E. A. came into existence. Like
the Association, it was maintained and dominated by the respondent.
Until May 1937, its affairs were conducted substantially as had been
the affairs of the Association. Commencing at that time, and' con-
tinuing for a period of approximately 1 year until the transformation
of the S. H. E. A. in 1938, the respondent took various steps designed
to withdraw the more obvious elements of employer support. It is
not denied, and we find, as did the Trial Examiner, that from July 5,
1935, to April 1938, the S. H. E. A. was operated in disregard of the
provisions of the Act.
During March, April, and May 1938, the S. H. E. A., led by members
of its council who were doubtful of its validity, adopted a constitu-
tion, elected officers, changed its name, and became the Independent.
Thus the Independent was formed before the S. H. E. A. ceased to
exist. The Independent was named and its constitution was adopted
at a membership meeting of the S. H. E. A. on April 27, 1938. Pre-
viously, the details of organization had been worked out at two meet-
ings of the S. H. E. A. council, with the advice of counsel retained by
the S. H. E. A. executive committee to assist in the reorganization.
The S. H. E. A. officers served as officers of the Independent until new
elections were held. After the elections two of the S. H. E. A. officers
were continued as two of the Independent's four top officers. The
S. H. E. A.'s funds, accumulated with the respondent's assistance,
were transferred to the Independent.
It is clear that the Independent was the offspring of the S. H. E. A.
The respondent took no steps to disestablish the S. H. E. A. until after
the Independent was fully organized and functioning. Disestablish-
ment at that time could hardly serve the purpose "of wiping the slate
clean and affording the employees . n opportunity to start afresh in
organizing for the adjustment of their relations with the employer." 23
The employees could not "start afresh" : An existing, functioning
organization, evolved before any effort had been made to wipe the
slate clean, could not fail to serve as an effective curb upon their free-
dom of choice.
On October 27, 1938, subsequent to the respondent's agreement to
disestablish the S. H. E. A. and to withhold recognition of the Inde-
pendent, the Independent became the Brotherhood. The Brotherhood,
however, is not a successor to the Independent but is in fact the Inde-
pendent, under a different name and with two new officers. Further-
23 National Labor Relations Board v Newport News Shipbuilding and Dry Dock Co,
308 U. S . 241, 250.
SPERRY GYROSCOPE COMPANY, INC. 1365
more, it is clear that the respondent knew that it was dealing with the
Independent when it opened negotiations with the Brotherhood in May
1939. The respondent participated in the representation hearing where
Math, counsel for the Brotherhood, admitted that the Brotherhood
was the Independent. Personnel Director Webb, in an affidavit dated
February 1, 1939, expressly referred to Math's admission and asserted
that the charge alleging the Brotherhood to be employer-dominated
was not therefore new matter.
Shortly after the consent election of May 4 and 5, at which a ma-
jority of the employees voted against representation by the Union,
the respondent accepted the documentary proof of majority status
offered by the Brotherhood, and in June 1939 entered into a contract
with that organization.
The respondent advances two basic contentions in support of its
claim that it has not violated the Act by recognizing and dealing'with
the Brotherhood : (1) its actions in these respects, whatever "purgative
or remedial weight" is given the stipulation, do not constitute unfair
labor practices and (2) the effect of the stipulation "was to obliterate
all traces of past domination, interference or control, leaving employees
free to form, and the Respondent free to recognize, the Brotherhood."
For the reasons stated below, we think the respondent is in error as
to both contentions. We turn first to a, consideration of the effect of
the settlement agreement.
The respondent correctly asserts that the purpose of the July 20,
1938, settlement agreement "was to dispose of the unfair labor practice
charges then pending" with respect to the S. H. E. A. and the Inde-
pendent. The stipulation was intended to settle these cases, the Union
agreeing to withdraw the charges in return for the respondent's agree-
ment to disestablish the S. H. E. A. and not to recognize the Inde-
pendent. By consenting to the disestablishment of the S. H. E. A. and
to the non-recognition of the Independent, the respondent, at least
for the purposes of this case, recognized the company-dominated char-
acter of both organizations.24 The obvious purpose of the settlement
agreement was to remove both these organizations permanently as
impediments to the employees' free choice of representatives. The
stipulation being in settlement of pending charges, was intended to
have the same force and effect, in so far as it affected the status of
the S. H. E. A. and the Independent as bargaining representatives, as
an order of the Board requiring disestablishment of the S. H. E. A.
and the withholding of recognition from the Independent. In short,
the stipulation forbade the respondent from engaging in further deal-
24 Matter of Hicks Body Company and Federal Labor Union, Local No. 22207, affiliated
with the A. P. L., 33 N. L. R B, No. 162.
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings with the S. H. E. A. and the Independent as representatives of
its employees.25
Notwithstanding the stipulation, the respondent recognized the
Brotherhood. The proof is clear and it is not denied that the Brother-
hood was in fact the Independent, and that the respondent knew it
to 'be such when it began to deal with the Brotherhood. We cannot
permit the respondent now to rely upon an agreement the primary
purpose of which it thwarted by engaging in conduct proscribed
therein.
. The respondent's second contention, denying domination of the
Brotherhood, is equally untenable. As we have shown above, the
Brotherhood cannot be distinguished from the Independent; it is the
same organization whose company-dominated character is clearly estab-
lished by the evidence and was so recognized by the respondent in the
stipulation.
Moreover the facts show that the events prior to the respondent's
recognition of the Brotherhood did not dispel any inference or pre-
suinption of company domination or control. The Independent's cam-
paign at the time the respondent posted notices of the stipulation served
to counteract whatever remedial effect such notices may have had.
That such efforts of the Independent had the respondent's tacit ap-
proval is shown by the fact that on the night prior to the actual signing
of the stipulation the employees on the night shift were allowed to
leave their work in order to attend the Independent's mass meeting.
Similarly, prior to the consent election the Brotherhood actively cam-
paigned for "no" votes, promising its early recognition by the respond-
ent. Such promise was made good by the respondent when within 3
weeks after the election it began negotiations with the Brotherhood.
The duplication of personnel in the leadership of the S. H. E. A.,
Independent, and Brotherhood is further proof of the absence of any
cleavage between these organizations.
We find that the respondent has dominated and interfered with the
administration of the S. H. E. A. and with the formation and admin-
istration of its offspring, the Independent, later renamed the Brother-
hood,26 has contributed support to said organizations, and has thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. We further find
that the contract entered into by the respondent and the Brotherhood
National Labor Relations Board v. Pittsburgh Plate Glass Co., 313 U. S. 146. Cf.
National Labor Relations Board v. Falk Corporation, 308 U. S. 453.
m Since the S. H. E. A. was formed prior to the effective date of the Act, no finding is
made that the respondent engaged in unfair labor practices in regard to its formation.
SPERRY GYROSCOPE COMPANY, INC. 1367
on June 21 , 1939, is invalid because it was made with a labor organiza-
tion dominated , interfered with, and supported by the respondent 27
B. The discriminatory discharge
The complaint as amended alleged that the respondent on or about
September 14, 1939, discharged Otto Ehren and has since refused to
reinstate him because of his failure to pay dues to, and his failure to
become, be, or remain a member of the Brotherhood, in violation of
Section 8 (3) of the Act.
Article Third of the contract between the Brotherhood and the
respondent provided in part that, upon notice to the respondent, any
member of that organization who was suspended or expelled or who
resigned therefrom, would be discharged by the respondent. On Sep-
tember 12, 1939, the Brotherhood advised the respondent that Ehren
had been suspended. The suspension was for a failure to pay dues.
On September 14, 1939, Ehren was called to the office of Personnel
Director Click. Ehren acknowledged that after the election of May
1939, he had signed a card authorizing the Brotherhood to bargain for
him, but insisted that he did not want to become a member of the
Brotherhood. The respondent thereupon discharged him effective
September 14, 1939. He has not been reinstated. As heretofore found,
the contract under the terms of which Ehren was admittedly dis-
charged and has since then been refused reinstatement is an invalid
contract because it was made with a labor organization dominated,
interfered with, and supported by the respondent and in furtherance
of the respondent's unfair labor practices.
We find therefore, as did the Trial Examiner, that the respondent,
by its discharge of Otto Ehren on September 14, 1939, discriminated
in regard to his hire and tenure of employment, thereby encouraging
membership in the Brotherhood, and discouraging membership in the
Union, and interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occur-
ring 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 conunerce and the free flow of
commerce.
'Hatter of Cudahy Packing Company and Local Union No 60, United Packinghouse
Workers of America, Packinghouse Workers Organizing Committee , affiliated with C. I. C.
and Omaha Cudahy Plant Workers ' Union, party to the contract, 29 N. L. R. B , No. 133.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. TIIE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (1), (2), and (3) of the Act, we
shall order it to cease and desist therefrom and to take certain affirma-
tive action which we find will effectuate the policies of the Act.
We have found that the respondent dominated and interfered with
the administration of the S. H. E. A., and with the formation and ad-
ministration of the Independent, and the Brotherhood, and has con-
tributed support to said organizations. We have further found that
the Brotherhood is a continuation of the Independent and the S. H.
E. A. and that the Brotherhood is incapable of representing the re-
spondent's employees as their genuine representative for the purpose of
collective bargaining. Since the S. H. E. A., as such, and the Inde-
pendent, as such, have ceased to exist, it is unnecessary that any order
be made with reference to these two organizations. Having found,
however, that the Brotherhood is a continuation of and successor to the
S. H. E. A. and the Independent, and has been dominated, supported,
and interfered with by the respondent, we shall order that the respond-
ent cease and desist from recognizing the Brotherhood, or any reor-
ganization thereof, 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 conditions of
work, and that the respondent disestablish the Brotherhood as such
representative. Since the contract between the respondent and the
Brotherhood embodies recognition of the Brotherhood as exclusive rep-
resentative and "represents the fruits of the respondent's unfair labor
practices and a device to perpetuate their effects," 28 we shall order the
respondent to cease and desist from giving effect to its contract with
the Brotherhood as well as to any extension, renewal, modification or
supplement thereof or to any superseding contract which may now be
in force. Nothing in this Decision, however, shall be taken to require
the respondent to vary or abandon the wage rates or other substantive
features of its relations with its employees established in performance
of such contract, or any extension, renewal, or modification thereof.
We have found that the respondent discriminatorily discharged
Otto Ehren on September 14, 1939, and thereby encouraged member-
ship in the Brotherhood and discouraged membership in the Union.
We shall order the respondent to offer to Otto Ehren immediate and
full reinstatement to his former or substantially equivalent position
without prejudice to his seniority or other rights or privileges, and
make him whole for any loss of pay he has suffered by reason of
his discriminatory discharge by payment to him of a sum of money
28 Matter of Precision Castings Company, Inc . and National Association of Die Casting
Workers, Local No. 5, affiliated with C. I. 0., 30 N. L R B., No. 30
SPERRY GYROSCOPE COMPANY, INC. 1369
equal ,to that which he-normally would have earned as wages from
September 14, 1939, to the date,,,of the offer of reinstatement, less his
net earnings 29 during said period.
Because of the respondent's unlawful conduct and its underlying
purpose and tendency, we are convinced that the unfair labor prac-
tices found are persuasively related to the other unfair labor practices
proscribed and that danger of their commission in the future is to
be anticipated from the course of the respondent's conduct in the
past.30 The preventive purpose of the Act will be thwarted unless
our order is coextensive with the threat. In order therefore to make
effective the interdependent guarantees of Section 7, to prevent a
recurrence of unfair labor practices, and thereby to minimize indus-
trial strife which burdens and obstructs commerce, and thus effectuate
the policies of the Act, we must order the respondent to cease and
desist from in any manner infringing the rights guaranteed in Section
7 of the Act. We shall also order the respondent to take certain
-affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Sperry Hourly Employees Association and Independent Instru-
ment & Mechanical Workers Union were labor organizations and
Brotherhood of Scientific Instrument Workers of America and Local
1202 of the United Electrical, Radio & Machine Workers of America,
affiliated with the C. I. O. are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2. By dominating and interfering with the administration of the
S. H. E. A., and by dominating and interfering with the formation
and administration of the Independent and the Brotherhood, and by
contributing support to each of them, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Otto Ehren, and thereby encouraging membership in
Brotherhood of Scientific Instrument Workers of America and dis-
° By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2.590, 8 N. L R. B. 440. Monies re-
ceived for work performed upon Federal, State, county, municipal or other work-relief:
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
311 U. S. 7.
11 See National Labor Relations Board v. Empress Publishing Co, 312 U. S 426
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraging membership in Local 1202 of the United Electrical, Radio
& Machine Workers of America, affiliated with the C. I. 0., the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (3) 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 (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. ,
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that Sperry Gyro-
scope Company , Inc., its officers , agents, successors , and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with " the administration of Brother-
hood of Scientific Instrument Makers of America, or with the forma-
tion or administration of any other labor organization of its em-
ployees, and contributing financial or other support to Brotherhood
of Scientific Instrument Makers of America or to any other labor
organization of its employees ; '
(b) Recognizing or in any manner dealing with Brotherhood of
Scientific Instrument Makers of America, or any reorganization or
successor thereof, 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 contract of June 21 , 1939, with Brotherhood
of Scientific Instrument Makers of America , or to any extension, re-
newal , modification, or supplement thereof, or to any superseding con-
tract with Brotherhood of Scientific Instrument Makers of America
which may now be in force;
(d) Encouraging membership in Brotherhood of Scientific Instru-
ment Makers of America, or in any other labor organization of its
employees , and discouraging membership in Local 1202 of the United
Electrical, Radio & Machine Workers of America, affiliated with the
C. I. 0., or in any other labor organization of its employees , by dis-
charging any of its employees or in any other manner discriminating
in regard to their hire or tenure of employment or any term or condi-
tion of employment ;
(e) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self -organization , to form,
SPERRY GYROSCOPE COMPANY, INC. 1371
join, or assist labor organizations , to bargain collectively through
representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection , 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 Brotherhood of Scientific In-
strulnent Makers of America 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 , and completely disestablish said Brother-
hood of Scientific Instrument Makers of America as such
representative;
(b) Offer to Otto Ehren immediate and ,full reinstatement to his
former or substantially equivalent position , without prejudice to his
seniority and other rights and privileges;
(c) Make whole the said Otto Ehren for any loss of pay he may
have suffered by reason of his discriminatory discharge by payment to
him of a sum of money equal to that which he normally would have
earned as wages during the period from the date of his discharge,
September 14, 1939, to the date of the offer of reinstatement , less his
net earnings during said period;
(d) Post immediately in conspicuous places throughout the respond-
ent's plant in Brooklyn , New York, and maintain for a period of at
least 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 is ordered to cease and desist in paragraphs
1 (a), (b), (c ), ( d), and ( e) of this Order; (2) that it will take the
affirmative action set forth in paragraphs 2 (a), (b), and ( c) of this
Order ; and (3) that the respondent 's employees are free to become or
remain members of Local No. 1202 of the United Electrical , Radio &
Machine Workers of America, affiliated with the C. I. 0., and that the
respondent will not discriminate against any employee because of
membership in or activity in behalf of that organization;
(e) Notify the Regional Director for the Second Region in writing
within ten ( 10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
MR. WILLIAM M. LEISERSON , d issenting :
I dissent from the decision in this case and would dismiss the
complaint.