Stow Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 31, 1953

103 N.L.R.B. 1280 (N.L.R.B. 1953)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
STOW MANUFACTURING Co. and INTERNATIONAL ASSOCIATION OF
MACHINISTS , AFL. Case No. 3-CA. 531. March 31, 1953
Decision and Order
On December 15, 1952, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Respondent's request for oral argument is denied. The record,
including the exceptions and brief, adequately presents the issues and
positions of the parties.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings of the
Trial Examiner are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 2 except insofar as they are inconsistent
with our findings and order as herein set forth.
The Trial Examiner found that certain statements and actions of
the Respondent, set forth in paragraphs numbered 1 through 6 on
pages 1298-1299 in the Intermediate Report, whereby the Respondent
initiated and sponsored the Monthly Meeting of All Departments as
an alternative to collective bargaining constituted independent viola-
tions of Section 8 (a) (1) of the Act. We are of the opinion, how-
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Members Houston , Murdock,
and Styles].
2 In view of the Trial Examiner's findings , with which we agree, that no genuine question
concerning representation was raised in the representation proceeding, Case No. 3-RC-834,
and that therefore such proceeding was void ab snitio, we find it unnecessary to adopt the
Trial Examiner 's observations, set forth in footnote 35 of the Intermediate Report, con-
cerning the effect of a certification of the results of an election on the right of employees
to choose a collective-bargaining representative during the 1-year period immediately fol-
lowing the date of the issuance of the certificate.
Consistent with his dissenting opinion in M. It. Davidson Company, 94 NLRB 142, Mem-
ber Murdock would be disposed to dissent from the Trial , Examiner 's finding of a violation
of Section 8 (a) (5), but considers himself bound by the majority decision in that case. -
103 NLRB No. 121.
STOW MANUFACTURING CO. 1281
ever, and find that the above conduct of the Respondent was an in-
tegral part of its violations of Section 8 (a) (2) and 8 (a) (5) of the
Act and as such, rather than independently, constituted a further
violation of Section 8 (a) (1).
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Stow Manufac-
turing Co., Binghamton, New York, its agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Association
of Machinists, AFL, as the exclusive representative of all production
and maintenance employees, employees of the shipping, inspection, and
heating departments, and janitors at Respondent's plant in Bingham-
ton, New York, but excluding all office and clerical employees, guards,
professional employees, and all supervisors as defined in the Act, with
respect to rates of pay, wages, hours of employment, and other condi-
tions of employment.
(b) Dominating and interfering with the administration of the
Monthly Meeting of All Departments, or with the formation and ad-
ministration of any other labor organization of its employees, and
contributing financial or other support to said Monthly Meeting of All
Departments or to any other labor organization of its employees.
(c) Recognizing the Monthly Meeting of All Departments, or any
successor thereto, as the representative of any of its employees for the
purpose of dealing with Respondent concerning grievance, labor dis-
putes, rates of pay, wages, hours of employment, or other conditions
of employment.
(d) Interrogating employees regarding their union activities; or-
dering or directing employees during an organizing campaign of an
affiliated labor organization that they form, join, or assist an unaffili-
ated labor organization; forming and establishing, or assisting, con-
trolling, or guiding the administration of such unaffiliated labor
organization during such campaign; collective bargaining and adjust-
ment of grievances with such unaffiliated organization, and promising
or granting wage increases, increased incentive rates, Christmas
bonuses, enlarged vacations with pay, and other economic benefits to
employees through such organization, during an organizing campaign
of an affiliated labor organization and before a Board-conducted elec-
tion, for the purpose of defeating the right of self-organization, or
while such affiliated organization represents a majority of employees
in the unit aforesaid; individual bargaining with, or promise or uni-
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lateral grant of benefits to, employees during such organizing cam-
paign before a Board-conducted election, for the purpose of defeating
the right of self-organization , or while an affiliated labor organization
represents a majority of employees in said unit; making antiunion
speeches to its employees during working hours on its premises in
the course of an organizing campaign by a labor organization , without
according, upon reasonable request, a similar opportunity to address
the employees to such labor organization against which such speeches
were directed.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations , to join or assist International Association of
Machinists, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain from any or all
of such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Associa-
tion of Machinists, AFL, as the exclusive representative of all its
employees in the appropriate unit found above, with respect to rates
of pay, wages, hours of employment, and other conditions of employ-
ment, and if an understanding is reached, embody such understanding
in a signed agreement.
(b) Withdraw and withhold all recognition from, and completely
disestablish, the Monthly Meeting of All Departments, or any successor
thereto, as the representative of any of its employees for the purpose
of dealing with Respondent concerning grievances, labor disputes,
rates of pay, wages, hours of employment, and other conditions of
employment.
(c) Post at its plant in Binghamton, New York, copies of the notice
attached to the Intermediate Report and marked `Appendix A." 3
Copies of said notice, to be furnished by the Regional Director for
the Third Region, shall, after being duly signed by Respondent's
authorized representative, be posted by Respondent immediately upon
receipt thereof and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to
3 This notice , however , shall be, and it hereby is, amended by striking from the first para-
graph thereof the words "The Recommendations of a Trial Examiner " and substituting in
lieu thereof the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals , there shall be substituted for the words
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
STOW MANUFACTURING CO. 1283
employees are customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Third Region in writing,
within ten (10) days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This case arises upon a complaint issued July 30, 1952,1 by the General Counsel
of the National Labor Relations Board (herein called the General Counsel and
the Board) through the Board's Regional Director for the Third Region (Buffalo,
New York), against Stow Manufacturing Co. (herein called the Respondent),
which, as amended at the hearing, alleges in substance, that Respondent (1)
since September 10, 1951, by various types of conduct dominated and interfered
with the administration of, and contributed support to, an employee committee
known as Monthly Meeting of All Departments (herein called the Monthly
Meeting), in violation of Section 8 (a) (2) of the National Labor Relations Act,
as amended, 61 Stat. 136 (herein called the Act), and (2) since September 18,
1951, has refused to bargain with the Union as the exclusive representative of
its employees in an appropriate unit, and has bargained directly and individually
with employees in the unit, and granted wage increases to them, in violation
of Section 8 (a) (5) of the Act, and (3) since September 10, 1951, has coerced
its employees by interrogation, by refusal to grant the Union opportunity to
address employees on company property before a Board election under conditions
similar to those attending Respondent's antiunion speeches to employees, by
forming and establishing the Monthly Meeting in said unit, and recognizing,
bargaining, and interfering with, and assisting it, by raising a question concern-
ing representation before the Board in bad faith in order to defeat the Union's
organizational efforts, and by ordering employees not to engage in union activity
at any time on company premises, all in violation of Section 8 (a) (1) of the
Act, and (4) that the above conduct constituted unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act. Copies
of the charge, complaint, and notice of hearing thereon, were duly served on
Respondent and the Union. Respondent's answer, as amended at the hearing,
admitted the jurisdictional allegations of the complaint and the Union's request
to bargain, but denied the commission of any unfair labor practices. As affirma-
tive defenses, Respondent stated the history of a representation proceeding in
Case No. 3-RC-834, alleged that the Union was estopped by its invocation of the
Board's election machinery from charging Respondent with a refusel to bargain
prior to the election, that the Board's Regional Director improperly tried to
persuade Respondent to settle this case by recognizing the Union notwithstanding
his certification in the representation proceeding that the Union did not represent
a majority of the employees, and that the complaint was issued in bad faith to
compel Respondent to recognize the Union contrary to the wishes of the employees.
Pursuant to notice, a hearing was held on August 18, 19, and 20, 1952, at Bing-
hamton, New York, before the undersigned Trial Examiner, in which all parties
1 Based upon a charge filed by International Association of Machinists, AFL (herein
called the Union ), on March 6, 1952.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
participated, the General Counsel and Respondent being represented by counsel
and the Union by an international representative, and were given full oppor-
tunity to be heard, to examine and cross-examine witnesses, to introduce evi-
dence bearing on the issues, to argue orally, and to file briefs, proposed findings
of fact, and conclusions of law, or both. General Counsel and Respondent pre-
sented oral argument and have filed briefs with the Trial Examiner.
After General Counsel opened his case and introduced in evidence the charge
and complaint, with proof of service, and copies of the formal papers filed in
representation proceedings Nos. 3-RC-834 (initiated by the Union's petition)
and 3-RM-67 (initiated by Respondent's petition), Respondent moved for "judg-
ment on the pleadings" (including the formal papers in the two representation
cases) on the ground that the certificate of results of election issued on March
20, 1952, in the consolidated representation cases was conclusive as to the Union's
lack of majority status as of the date of the election and for a year after the
date of the certificate. The motion was denied. Respondent's similar motion
at the end of the General Counsel's proof was also denied, but decision was
reserved on the same motion when repeated at the close of the case; that motion
is now denied for reasons set forth in this report. At the outset of the case, Gen-
eral Counsel's motion to strike all allegations in Respondent's answer relating
to the representation proceedings and the Regional Director's conduct therein
and in this case, was granted with respect to paragraphs 10 and 11 thereof,
charging the Regional Director with improper conduct, and denied otherwise.
Respondent's motion at the close of General Counsel's case to dismiss the com-
plaint on the merits was denied, except as to paragraph 12B of the complaint,
on which decision was reserved ; the motion as to that portion of the complaint
is now denied for reasons set forth in this report. At the close of the whole case,
General Counsel's usual motion to conform the pleadings to the proofs in matters
of minor variance was granted over objection.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation with its principal office and place
of business located in Binghamton, New York, where it is engaged in the
manufacture, sale, and distribution of machine tool accessories, flexible tool
shaftings, and related products. During the year 1951, Respondent purchased
over $500,000 worth of raw materials, of which approximately 90 percent was
received from points outside the State, and in the same period it sold over $800,000
worth of finished products, of which more than 25 percent was shipped to points
outside the State. I find that Respondent is engaged in commerce within the
meaning of the Act?
II. THE LABOR ORGANIZATIONS INVOLVED
The Union is a labor organization within the meaning of Section 2 (5)
of the Act, which admits to membership employees of Respondent. As will
appear hereinafter in this report, the employee committee known as Monthly
Meeting of All Departments also constitutes a labor organization within the
meaning of the Act, which admits to membership employees of Respondent.
2 ,Stanisiaus Implement and Hardware Company , Ltd., 91 NLRB 618.
STOW MANUFACTURING CO . 1285
M. THE UNFAIR LABOR PRACTICES
A. The Union's organizing campaign, the result thereof, and Respondent's
knowledge thereof
About the middle of September 1951, the Union began a membership drive
among employees of Respondent. Union-authorization cards were distributed
in the plant by several employees, and by September 19, 1951, 41 production
and maintenance employees had signed such cards' As there were 70 produc-
tion and maintenance employees on Respondent's payroll in the workweek end-
ing September 22, 1951,' it follows that on September 19, 1951, a majority of
such employees had chosen the Union as their bargaining agent.
The complaints alleges, Respondent admits, and I therefore find, that all pro-
duction and maintenance employees, employees of the shipping, inspection, and
heating departments, and janitors, employed at Respondent's plant, but excluding
all office and clerical employees, guards, professional employees, and all super-
visors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act .5
The parties having stipulated that the 70 employees listed on the payroll for
the week ending September 22, 1951, were all employees in the appropriate unit
aforesaid during that week, I find that on September 19, 1951, a majority of
the employees in said unit had designated the Union as their collective-bargaining
representative and, by virtue of Section 9 (a) of the Act, the Union was on
that date the exclusive representative of all employees in said unit for purposes
of collective bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.' The issue raised by Respondent as to
8 According to Exhibits Nos. GC-5 through GC-45, 28 employees signed cards on or
before September 17, 6 more signed up September 18, and 7 more on September 19. On
the latter date, employees Larsen and Tokos gave the 41 cards to Lisenby, the union agent.
4 Exhibit GC-4, the payroll of that week, contains 71 names but Charles W. Bennett must
be excluded as a supervisor.
5 This is the unit upon which Respondent and the Union agreed in their agreement for
a consent election in the representation proceeding referred to hereafter.
6 Respondent argues strongly that the 41 signed authorization cards were Improperly
received in evidence to prove the Union's majority status, because the Union accepted
them from the employees "for the purpose of securing Union representation ... by means
of a National Labor Relations Board election which will be held in the near future," and
upon the representation that "the names of all signers of I. A. of M. authorization cards
are kept in strict confidence. Neither the Company nor anyone else will ever know who
have signed" (form letter, exhibit R-1). The objection Is without merit, and the cards
are admissible , for several reasons. In the first place, the claimed confidential relation-
ship embodied in the cards does not make them privileged communications within any of
the accepted classes of privileged communications recognized by the law of evidence. Sec-
ondly, even if the privilege were binding on the Union, It would not necessarily bind the
Board. As an administrative agency charged with enforcement of a statute involving the
public interest, the Board cannot be bound by a promise made by a union In securing
authorization cards, where compliance with that promise would nullify the very purpose
of the cards stated therein, and would deny employees the right of choice of their own
bargaining representative guaranteed to them by the Act, or would prevent the Board from
giving due consideration to their exercise of that right , and from enforcing concomitant
rights granted to employees and obligations Imposed upon employers by the Act. Thirdly,
the record shows that, despite the broad scope of the restriction against disclosure prom-
ised by the Union's letter, the Union clearly intended to disclose the cards to the Board
to secure an election , and so advised the employees before they signed them. According
to the credited testimony of Larsen, Hayes, Charles Brown, Cacyuk, Todd, and Gaza, the
workers were told by Charles Tokos, the employee who handed them the cards, that they
were needed in order to get an election and have the Union represent them ; Larsen, Hayes,
and Brown were also told by Lisenby that the Union needed 51 percent or a majority of the
workers for that purpose ; and the first paragraph of the form letter confirmed that pur-
257965-54-vo I. 103-82
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether the Union's status has continued since that date, and the effect of the
pendency of the representation proceeding on that status, will be considered in
my discussion of the 8 (a) (5) charge hereafter.
During the membership drive, employee Tokos and others openly solicited
other employees in the plant during working hours to sign authorization cards,
and there was continuous talk throughout the shop pro and con the Union and
labor organizations in general, in the presence of supervisory officials. As a
result, Respondent's officers learned about the union campaign almost from its
inception, and took immediate steps in opposition to it.
B. Respondent 's order prohibiting union discussion
On the morning of September 18, 1951 , J. B. Dickinson , vice president and
general manager of Respondent , told Charles R. Webber , plant superintendent,
and Sales Manager William W. Rappman that he understood there was union
activity in the shop . Just before noon, Clarence F. Hotchkiss , president of
Respondent , was told by Leon Allen, an employee in the engineering department,
that there was union activity in the shop and that union cards were being passed
around . Hotchkiss at once discussed the situation with Dickinson , George G.
Eisenbeis , vice president in charge of engineering , and Louis Staude, Jr., secre-
tary-treasurer . He instructed each of them to refrain from any discussion of
union activities with employees during the union campaign, and told them to give
similar instructions to men under their supervision . Eisenbeis held a meeting
the same day with John DeWees, John Edgecombe , Leon Allen , and Gordon
Wells, who worked under him, and gave them the same instructions. In the
engineering department , John DeWees was in charge of the product design sec-
tion, supervising 1 employee ; Edgecombe was in charge of the tool design, meth-
ods, and time-in-motion study section, supervising 1 employee ; Leon Allen super-
vised the experimental and plant engineering section with 4 men under him ; and
Gordon Wells was in charge of the special machinery design section with no
employees working under him directly or regularly. All 4 men are professional
employees , and all but Allen work in the -,ame office with Eisenbeis 7 General
Counsel contends that Respondent violated Section 8 ( a) (1) of the Act by thus
ordering Gordon Wells, a professional employee not in the appropriate unit, to
refrain from discussion of union activities with plant employees in the unit; he
makes no such contention with respect to the other 3 section heads. Respondent
contends that the order to Wells was not a violation because he is a supervisor
Wells is known as a project engineer . His duties involve the layout, design,
and engineering of special machinery to perform special processes in the plant,
and engineering work in the alteration , repair, and improvement of all plant ma-
chinery. When Respondent desires to make a new or changed product involving
special production processes , the project for the design and manufacture of the
pose, clearly implying that the cards would be disclosed to the Board to invoke its processes
(as required by Board Rule 102.54, and the 30-percent representation policy stated in
Sections 101.16 and 101.17 of its Statements of Procedure). From all of the testimony
on this subject, it is clear that the confidential character imposed by the Union on the
cards was for the limited purpose of keeping knowledge thereof from the Employer or
other sources, which might lead to possible employer reprisals ; and the reason for that
protection no longer obtains, after the cards have been disclosed to the Employer in the
record of a Board proceeding, for the employees who signed them have the protection of the
Act against any reprisals which might follow disclosure of their union activity and
affiliation.
4 These findings are based on credited testimony of Hotchkiss, Elsenbeis , Webber, Rapp-
man, DeWees, and Wells.
8 An employer has a right to order super%isors to refrain from participating in union
activities of the rank-and-file employees . El Dorado Limestone Company, 83 NLRB 746.
STOW MANUFACTURING CO. 1287
necessary machinery is given to Wells by his superior, Eisenbeis, who outlines the
process involved and gives Wells the responsibility of devising and making the
requisite machine. Wells then designs the machine, supervises its manufacture
either in the plant or by an outside contractor, supervises its installation, and
controls its operations during a trial period until it is ready to go into produc-
tion. In carrying out these duties, Wells has no employees regularly assigned to
him or working under his supervision, but is authorized to secure the services of
employees in other departments to perform certain phases of his work or assist
him therein. Thus, when he needs detail drawings of a design made by him, he
gets permission from DeWees, head of product design, to have a draftsman
regularly working under DeWees make the drawings when he can be spared
from his regular work ; on securing such permission, Wells gives the draftsman
the necessary instructions, and the latter makes the drawings at his desk in
DeWees' department. If a special machine designed by Wells is being made in
the plant, he arranges to have component parts manufactured in the machine
shop. When the machine is being installed, or altered, in a department, Wells
borrows employees from Allen's plant engineering section who work under his
direct supervision in making the installation or change. Thereafter, Wells ob-
serves the trial run of the machine, closely supervising the operator, showing
him how to set up and adjust it for the new production, until it is satisfactory for
regular production. In the course of this work, Wells has complete control of
the building, alteration, installation, and adjustment of the machine, until it
is ready to produce and is turned over to the head of that production depart-
ment. Wells also borrows employees from production departments whenever he
desires to carry out an experimental change in a production process, giving these
employees orders during the actual operation of the process until the experiment
is finished. During installation of machinery, Wells at times has 4 or 5 men
working under his direct supervision. When a special machine is built outside
the plant under contract, Wells prepares a requisition for the machine, giving
the detailed requirements and data including delivery schedule, which, after
approval by Eisenbeis, is forwarded to the purchasing department for issuance
of a purchase order. After the contract is let, Wells explains the contract, with
plans and specifications, to the contractor, and assists in the initial layout of the
job ; during manufacture, he acts as liaison with the contractor, checking the
progress of the work, explaining drawings and specifications where necessary, and
suggesting changes of components or substitutions of material where necessary or
advisable to insure manufacture in accordance with the contract. Wells makes
the initial inspection and accepts the completed machine, subject to final ap-
proval by Eisenbeis. Payment for the machine is made on the basis of Wells'
approval thereof. When the machine is delivered, Wells supervises its installa-
tion and trial run, using employees from other departments as outlined above.
In the course of his work, Wells is empowered to make occasional small emer-
gency purchases of material on his own initiative. He is paid a weekly salary.
There is no proof that he is a graduate of an institution of higher learning, nor
of the extent of his technical or scientific background. He is a member of the
American Society of Mechanical Engineers and the American Society of Tool
Engineers, both organizations which require some experience in the supervision of
men as a qualification for membership.'
As there is no proof that Wells has authority to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline employees, or adjust
their grievances, or effectively to recommend such action, the only question is
9 The above findings are based on credited testimony of Elsenbeis , DeWees, and Wells,
and stipulations of counsel.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whether he has, and exercises, authority responsibly to direct them, and uses in-
dependent judgment in the exercise thereof.30 It is clear that when Vice-Presi-
dent Eisenbeis assigns Wells to a project for the design and manufacture of
a special machine, Wells is given full responsibility for the achievement of the
end result desired, and if left largely to his own devices and use of independent
judgment in carrying out the project, including choice of design, method of opera-
tion, and all other factors involved. At various stages of the project, he is
authorized to borrow the employees he needs from any department to assist him,
and to keep them until the stage of the work for which they are needed is done ;
after they are assigned to him, he gives them orders on his own initiative for the
performance of whatever work he deems necessary to accomplish the proper
manufacture or installation of machines; and during trial runs, he gives the
operators similar orders regarding the proper operation, adjustments, and set-
tings of machines to achieve satisfactory production. In the supervisory stages of
the project, Wells is not subject to detailed supervision from Eisenbeis, other
officers, or department heads ; he is governed only by the broad requirements of
the project. While there is no clear proof of the comparative amounts of time he
spends in personal work on a project and in supervision of others, the record
shows that he spends some time almost daily in supervisory work, and upon
occasion such supervision may run for several weeks, as in the installation and
trial runs of large special machinery, and the alteration and improvement of
plant machinery during plant shutdown periods. Upon all of the above facts and
circumstances, I am of the opinion, and therefore find, that Wells has authority
responsibly to direct, and actually exercises responsible direction over, other
employees, and uses independent judgment in the exercise of such authority to a
degree sufficient to make him a supervisor within the meaning of Section 2 (11)
of the Act. I further conclude that by its issuance of the prohibitory order
aforesaid to Wells and the other section heads in the engineering department,
Respondent has not violated Section 8 (a) (1) of the Act. I shall recommend
dismissal of the amended complaint in this respect u
C. Respondent's meetings with employees
1. The September 18 Monthly Meeting
Shortly after Hotchkiss learned on September 18 of the union activity in the
shop as found above, he discussed the situation with other executives, and at
his suggestion they decided to assemble the workers so that Hotchkiss could
give them company views about unions. Hotchkiss called Superintendent Web-
ber into his office about 10 minutes before 3: 30 p. m., the usual quitting time,
that afternoon, and directed him to gather representatives of all departments
together in the conference room at 3: 30, so that Hotchkiss could talk to them.
Webber at once toured the departments, telling the employees in each to have
a representative attend a meeting at the above time and place, stating that the
Company had learned there was union activity and Hotchkiss would like to
talk to them. The workers in each department at once chose a representative
by voice vote, and the nine employees thus chosen met with Hotchkiss, Dickin-
son, Louis Staude, and Webber about 3: 35 p. m. The meeting lasted about an
hour, and the employee representatives were paid time and a half pay for the over-
10 Under the amended Act, an employee is a supervisor if, although he satisfies none of
the other uusual criteria applied by the Board, he has authority "responsibly to direct"
other employees. John Deere Hi.llefer Company, 86 NLRB 1073.
11 While the order in terms was broad enough to prohibit discussion of the Union on the
employee's own time and anywhere on company property, and was to that extent an illegal
restraint on employees' rights under settled law, there is no substantial proof that the
order was actually issued to any other employees , professional or otherwise.
STOW MANUFACTURING CO. 1289
time spent in attendance. The above findings are based on credited and mutu-
ally corroborative testimony of Paul H . Larsen, Charles W. Bennett, Webber,
Hotchkiss , and General Counsel 's Exhibit No. 50-A.
Hotchkiss opened the meeting by stating "we" had heard there was a "certain
amount of grievance in the plant . It just came to us this afternoon and that
you are considering forming a union ." He disclaimed any attempt by Respond-
ent to tell them they could not have a union , because the Company could not
stop them if it wanted to, that was against the law, but said he would like to
state "our side of the case, or rather alternative ideas that we might have." He
then said :
I thought that maybe you would like to try something different first,
before you got tied up with an outside union, with dues, and having to have
someone else talk for you. Maybe you would rather talk for yourself. Now,
we are always glad and always have been glad to meet with anybody, indi-
vidually or collectively, I don't know whether we have ever put up any
signs to that effect around the place. I don't believe we have, but the
fellows that have been here a long time all know that they can come to
me or Jim or Bobbie anytime they want to with any kind of a grievance
they've got and give it consideration, but if we don't know what the griev-
ances are , if we don't hear about them, there isn't much we can do about
it. That's the reason why we asked you to come in this afternoon so that
we would have a chance to tell you what we thought about it.
Hotchkiss then expressed his views about unions, and the disadvantages of
union affiliation, and his opinion that the advent of a union makes a different
feeling in the plant "when you are dealing with outsiders," but emphasized that
management always tried to be fair about grievances and was always open to
suggestions , and employees had nothing to fear if they presented grievances,
whether they had a union or not. In closing, he noted that there was "quite a
little" sentiment among the men in favor of the Union, and said "if that's what
you want, that's what you can have. Particularly, if you don't feel that the
other idea would work, but I do think it might be a good idea to give it a try
for a while, and if you don't like it, why then organize." Dickinson, the general
manager , then said that "if you fellows have a union we lose the family effect.
I think that we have a family effect here in the plant. Of course, we are
getting bigger than a family affair, but I still like the idea of a family and all
working together . I think we have done it in the past."
Staude then suggested that the employee representatives state their griev-
ances and "see if we can't work out an equitable basis for adjusting grievances."
Hotchkiss demurred at settling any grievances at that meeting, suggesting that
they be listed so that the executives would know what the men wanted, could
discuss them later and have a chance "to see what we can afford." He then
recounted the Company's struggles to remain solvent during the past 4 years
after the reduction in business following its wartime expansion, expressed his
conviction that the Company was recovering and was better off financially
than in the past, and then reminded the men who had worked for Respondent
during the war that "when we were making money we were pretty generous
with it, and if we get in that position again, there is, no doubt that we will
feel the same way again." He then suggested that they hear the employees'
grievances . Employee Charles Brown, representing the shipping and stores de-
partment, complained about the operation of the incentive system in his depart-
ment, and said the employees wanted 2 weeks' paid vacation, like the office
force ; there were also complaints about the need for better ventilation in some
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments. Webber said that he had also heard complaints about seniority
rights upon layoffs. Hotchkiss then explained why the office force received 2
weeks' vacation with pay and said, "I cannot promise you today without doing
a little figuring whether we can increase the vacation time for the men in the
plant." He expressed doubt whether he could legally promise them anything
at the time, but said "we will give it very careful consideration." Regarding
the incentive system, Hotchkiss said , "we will try to do the best we can with it,"
and "if any of you have had any short answers on it, ... we want to know
it because we are trying to be in there pitching to make it right for the men
and the company." He then explained the purpose of the system and various
inequities which had developed in its operation, and said the Company could
not afford to hire personnel to time-study every operation. He then said that
if some jobs were particularly "bad and are not making money right along, why
we want to know about (it) and if you don't get action immediately I want
to know about it personally, because that way we can get the pressure on to
get that particular job done." 12 At some time during the meeting, Joseph Mer-
rette, representative from department 22, said he thought it was a good meeting
and that there should be more such meetings with departmental representatives
so that management and the workers could "get together again" as in the past.
The company officers agreed, and all present agreed that meetings should be
held the last Friday of each month to discuss grievances. At the close of the
meeting, the conferees fixed September 25, 1951, as the date for the next meeting
with departmental representatives13
2. The September 25 meeting
This meeting was attended by the same management and employee representa-
tives who comprised the September 18 meeting. Hotchkiss announced that the
Company had received a letter from the Union claiming to represent a substan-
tial majority of the production and maintenance employees," and stated that
management could not say much at the meeting because "until we have made
the official arrangements for an election, we can't start doing very much elec-
tioneering," but that the Company did intend to "electioneer" and try to show
the workers that "we can do as good a job for you as the Union can." He then
said :
I think that if we take all of the complaints and add them all up, the
main complaint, although it wasn't expressed as such, but I think the main
complaint was that you felt that when you did make a beef, it wasn't getting
any attention and it wasn't getting to the Management. I think that the
meeting that we suggested might take care of that.13
1' In stating his recollections of this meeting, Webber testified credibly that the com-
pany officials said they would try to get a time-study man, if possible, to study rates on
these jobs.
13 The above findings are based on the transcribed minutes of the meeting contained In
General Counsel's Exhibit No. 50-A, as corroborated by the credited testimony of
Hotchkiss , Charles Brown , Webber, and Larsen . The minutes of the meeting are incom-
plete, in that the remarks of the employee representatives, and the full discussion of their
grievances , were not recorded.
a* Letter of September 20, 1951 , part of General Counsel 's Exhibit No. 2, which will be
discussed below.
'6 Hotchkiss testified that this quotation of his remarks in the minutes of the meeting
was incorrect , in that the reference in the last sentence was to a "meeting that he sug-
gested ," meaning Merrette , not the Company . The correction appears credible , in view of
Merrette's suggestion at the earlier meeting found above ; but whether Merrette or the
Company suggested further meetings becomes immaterial in the light of the findings and
conclusions I reach below regarding the nature and effect of the meetings.
STOW MANUFACTURING CO. 1291
With regard to the incentive grievance, he said :
Another thing I want to get on the record is to state that we have put in
an application at the Employment Office for an additional time study man
so that we can do a better job on time study.
The meeting was then thrown open to discussion of grievances voiced by the
employee representatives, but neither the minutes of the meeting nor the record
discloses the exact nature of the problems considered or the company attitude
thereon." These findings are based on the minutes of the meeting dictated by
either Hotchkiss or Staude from notes made by them during its course (General
Counsel's Exhibit No. 50-B), and credited testimony of Hotchkiss and Larsen.
3. The departmental meetings of October 15 through 18, 1951
On September 26, 1951, Respondent filed its petition for certification in Case
No. 3-RM-67 simultaneously with the Union's petition in Case No. 3-RC-834.
On October 11, 1951, Respondent and the Union executed an agreement for con-
sent election in the latter case, providing for an election to be held on October
25 and 26, 1951 (General Counsel's Exhibit No. 2). Thereafter, Respondent
called and held nine meetings with the employees by departments and shifts
October 15 through 18, 1951, on company time and premises, for the purpose
of electioneering against the Union and hearing and considering employee griev-
ances. Hotchkiss spoke for the Company at all the meetings. He opened each
meeting by giving the speech set forth in the next paragraph, and then con-
ducted a question-and-answer period in which he considered and discussed ques-
tions, suggestions, and complaints of the employees.
Hotchkiss met with the seven employees of the shipping and stores depart-
ment at 9: 30 a. in. on October 15, 1951. He opened the meeting by stating he
knew there was union activity in the plant and that if the men wanted a union,
it was up to them, he had nothing to say about whether they could or could not
have a union. He then said that if they did not want a union, it was "up to
you to help persuade other people," that they could "help a great deal by per-
suading other people the same way," and that he could stand any help he could
get in the campaign against the Union. He then stated reasons why he thought
a union was not needed in the plant : He said the men could get anything from
management by "direct contact" that they could get through a union, that "the
Union can't get you anything you can't get for yourself. They must bargain with
management the same as you." He argued the Union's only interest was to
get dues from the workers, and to promise them anything in order to get the
dues. He cited experiences of workers in other plants with unions, emphasizing
the time consumed in Respondent's dealings with the Union at the Halstead
plant, and the loss to employees through strikes at another concern. He also
adverted to the meeting of September 18, 1951, with the departmental represent-
atives, at which future monthly meetings had been suggested, as another rea-
son why the Union was not needed. He also cited several personal reasons why
he disfavored a union in the plant. He then listed past benefits which the Com-
pany had given its employees voluntarily, such as an increasing number of paid
holidays, free turkeys at Thanksgiving, clambakes, several types of insurance,
a pension trust plan, profit-sharing plan, personal loans to employees, and other
benefits. Regarding Christmas bonuses, he listed the substantial bonuses paid
16 Hotchkiss testified that in the case of minutes of meetings dictated up from notes kept
by him, the minutes contain only the statements that he thought it important to record,
but that all the minutes placed in evidence were substantially correct and accurate, except
for omission of matters he considered unimportant.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the war years, explaining their discontinuance after the war due to a
drop in business, and noted the Company had resumed the practice by payment
of a small bonus in 1950 when the Company had shown a profit ; in this con-
nection, he said he could not promise any additional bonuses or wage raises, but
read to them the letter the Company sent the employees with the 1950 bonus,
in which it advised that that small bonus was the best it could do at that time
but expressed the hope it would be larger. With regard to wages, he reminded
the employees of two pay raises given to them, in September and December
1950, just before the wage freeze, and also pointed out that when the Company
had to curtail its staff , cut salaries , and retrench in other ways after the war,
it did not reduce employees' wages. In citing benefits paid under the profit-
sharing plan, Hotchkiss told the employees of improved payments during 1951,
and said the Company was considering further improvements therein. Referring
to the incentive system, he explained how much it had cost to install it, said it
was working good on the average, but that the Company was working on its
improvement. After this speech, Hotchkiss answered questions and complaints
of the employees. When asked about a 2-week paid vacation, he replied he
could not talk about it or make any promises under the law. He gave the same
reply to a query about wage increases , merely referring the men to the record
of what the Company had done for them in past years of prosperity. When
the incentive system and ways of improving it, were brought up, he said the
Company was trying its best to make a workable system in this department and
he thought it could improve the system considerably, but he could not state
what definite ideas the Company had in mind for its improvement because of
the Act ; he also opined that he did not think any union man smart enough to
figure out a better system than the Company could. He also reminded the men
that the Union could only make promises, and emphasized that the Union could
not do any more for the men than they could do for themselves. This meeting
took about 2 hours.17
Hotchkiss held a 1-hour meeting at 3: 30 p. in. on October 15 with 10 employees
of the inspection and hardwire departments. In the question period after his
speech, in response to a suggestion for better inspection of machine shop parts
before they reached the assembly lines, Hotchkiss agreed with the complaint,
saying "perhaps" there should be an additional inspector so that the complainant
would get parts that fit properly ; Webber added that many parts had recently
been returned to the shop for reworking, and felt that if this were continued,
it might result in a better job being done there. To a request for more pay for
inspectors, Hotchkiss refused any promise of raises, but agreed that inspectors
should be well paid. When one employee questioned the necessity for an election,
Hotchkiss said the election was "now in the bag," meaning it was already agreed
upon, and told the men to make sure they voted in the election, and that he was
interested in their voting "No."
Hotchkiss held a 2-hour meeting with 7 employees in the maintenance depart-
ment starting at 9: 30 a. in. on October 16, 1951. In the discussion period fol-
lowing his speech, Hotchkiss promised to look into and correct any error in
a 1950 Christmas bonus payment to 1 employee, on his complaint that the amount
17 The above findings are based on General Counsel 's Exhibit No. 50-C, as supplemented
by credited testimony of Hotchkiss . His minutes of the meeting , contained in the above
exhibit, are , in the forepart , an outline , prepared by him beforehand , of the topics he
intended to cover in his speech. He enlarged on those topics in the actual address. The
questions and answers at the end of the minutes were dictated by Hotchkiss from memory
and notes after the meeting . The same procedure was followed in the makeup of the
minutes of the seven following departmental meetings, set forth in General Counsel's Ex-
hibits Nos . 50-D through J.
STOW MANUFACTURING CO. 1293
had been less than that justified by his years of service. He refused to make
any promises on a request for more pay for watchmen who were required both
to keep boilers fired and punch clocks on rounds of the plant, but to a sugges-
tion that another man be hired at night to keep up the fires, Hotchkiss promised
to give it "very careful consideration," saying the Company should be able to
work out a way of keeping another man busy. On a complaint about new grates
for boilers, Hotchkiss agreed to order them and install them later. When the
men asked for 4 specific machines to enable them to carry out the work of their
department promptly, Hotchkiss said the Company had been considering that
for some time, but did not know where to put the equipment. Webber sug-
gested a specific building, and then Hotchkiss agreed to the employees' sug-
gestion, saying the Company would find out what equipment it could get, and
that R. F. C. approval would be required if the purchase ran into much money.
These findings are based on General Counsel's Exhibit No. 50-E, and credited
testimony of Hotchkiss.
In discussing grievances at an hour-and-a-half meeting with seven employees
of the automatic core winding department at 2 p. in. that day, Hotchkiss answered
a complaint about the hazards of storage of steel on the floor of the machine shop,
by saying the Company realized the situation needed correction and had already
ordered steel racks for storage of steel off the floor. To a suggestion that a
chute be installed in the machine shop to facilitate disposal of waste metal,
Webber said the Company expected to put another man on night shift to tend
boilers, who could also remove the waste material. Hotchkiss agreed the chute
idea was a good one and would make for efficiency, and promised to give the
suggestion careful consideration. He also said the Company expected to remedy
the lack of heat at night by hiring another boiler tender, and would consider
relocation of the heater unit in that department, or installation of additional
units. These findings are based on General Counsel's Exhibit No. 50-F, and
Hotchkiss' testimony.
In a meeting of more than an hour, starting at 3: 30 p. m. the same day, with
14 employees in the wart and sears department, after the usual speech as above,
Hotchkiss considered grievances. He agreed with 1 man that the time-study on
his work should be made on larger quantities of products, to increase the incentive
pay he was then receiving. He outlined a new method of handling repairs in
order to save money, in answer to a complaint about the length of time re-
quired for repairs under the present system. Employee Paul Larsen then said
the "whole union business" would not have started if management had given
more consideration to a petition circulated among employees in June. Hotch-
kiss and Webber professed ignorance of the petition. Larsen then remarked
that "the thing was squashed at that time and I think all of this would have
been avoided if it hadn't been." Hotchkiss replied :
Hotchkiss-I agree with you. I just want to emphasize that with your
monthly meetings of representatives from each department all of your com-
plaints could be taken care of in an orderly manner. Naturally, I am not
promising you that every complaint brought up is going to be answered in
favor of the complainant. We still have to make money in the plant. On
the other hand, I know you will find us entirely reasonable. We will do
the best we can for you. Certainly, we will do as well as any union can.
Hotchkiss then questioned whether a union could improve the incentive system,
arguing that the system as a whole was working well for both Company and the
workers, and added, "It is only the isolated cases where complaints are justi-
fied. That is why we want to have the meetings in order to bring these to light.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We can't adjust a complaint if we never hear about it. I appreciate you fellows
coming here and I know you can help keep the union out. I can't keep it out,
but you fellows can. Any help you can give us will certainly be appreciated."
The above findings are based on General Counsel 's Exhibit No. 50-G and credited
testimony of Hotchkiss.
On October 17, 1951, Hotchkiss and Webber conferred with three third shift
employees of the automatic core winding department , in a meeting lasting from
7 to 8: 45 a. m. After making the usual speech , Hotchkiss heard and adjusted
individual personal grievances . When one man complained of his temporary
transfer from third to a fourth shift, without regard to seniority , Webber ex-
plained the shift was temporary , and Hotchkiss indicated the Company ought to
install a weekend "swing shift" in its place, and was receptive to a suggestion
of running a 6-day week instead of a 5-day week , with the same crew working
fewer hours per shift . When another employee complained that his seniority
was not recognized in rehiring after a layoff , Hotchkiss indicated the Company
should keep better records on layoffs so that they could be sure this situation
did not occur again. Hotchkiss indicated the Company would look into a com-
plaint that other plants were paying higher shift bonuses, saying they wanted
to keep good men on the job but could not make any promises about changes in
bonus because of the Act. Regarding complaints requesting repairs of spooling
machines , Hotchkiss said the Company now had more men on the maintenance
crew, and these machines should receive priority in repair if they were as badly
in need of repair as indicated. He also agreed to purchase wire in smaller
bundles, at the request of one worker (presumably for easier handling). In
response to a suggestion , he indicated the Company would give the employees
a formula from which to determine the amount of various sizes of wire to be
left on spools, in order to prevent waste. In closing the meeting , Hotchkiss said,
"You fellows can help a lot in keeping the union out. I am sure you don't want
it, and I wouldn't like it. I would rather talk with you fellows than wrangle
with outsiders ." These findings are based on General Counsel's Exhibit No. 50-H.
Hotchkiss followed the same routine in a 2-hour meeting that afternoon with
14 day-shift employees of the machine shop. In making the usual opening speech,
he discussed and presented counterarguments to statements by the Union in a
recent handbill regarding the advantages of union membership , and comparing
unions in that respect to commercial , civic, and professional associations and
societies . Most of the grievances stated by the men involved individual complaints
about incentive rates fixed on specific jobs. Employee Sutliff asked how the union
propaganda got started in the shop , and Hotchkiss said he thought it was due
to an accumulation of individual complaints , for which the men felt they could
not get effective consideration . Sutliff disagreed , opining that it was due to
resentments arising from the incentive system. Hotchkiss acknowledged that
the system had faults but felt it worked well for both sides on the average. He
also said, "there are and always will be individual complaints . The meeting that
we tried to set up before the union activity started gave a vehicle for handling
complaints and I think the system would be greatly improved thereby." He then
asked if the men thought the Union could do anything to improve the incentive
system. Sutliff answer , "No," said he did not favor a union , and thought 99 per-
cent of the employees felt the same way. Hotchkiss replied , "I certainly hope
you are right. I am sure that this plant doesn't need a union and we will be much
happier without it." Hotchkiss accepted one suggestion for the installation of
an air line into the machine shop to blow chips off the machines, by saying the
Company had the capacity , and it would not be too much of a job to do it. These
findings are based on General Counsel 's Exhibit No. 50-I.
STOW MANUFACTURING CO. 1295
Hotchkiss followed the same schedule in his final meeting of about an hour on
the afternoon of October 18, 1951, with 5 day-shift employees of the automatic
core winding department . In his opening speech , he enlarged on the past business
history of the Company during and after the war and its struggle to achieve
financial stability up to 1950 . When the men voiced complaints about irregulari-
ties in the supply of spooled wire, which affected their production and incentive
pay, Hotchkiss suggested a remedy which they considered acceptable ; he also
agreed to consider suggestions for Saturday maintenance of machines , and for
a 6-day workweek instead of running four 12-hour shifts . These findings are
based on General Counsel 's Exhibit No. 50-J.
4. The November Monthly Meeting
On Tuesday , November 27, 1951 , Respondent called a meeting of representatives
of all departments , which ran several hours and was attended by the same com-
pany representatives as at the September 18 meeting ; 8 departmental representa-
tives attended , of which only 2 had attended the earlier meeting. Hotchkiss
asked at the outset for suggestions as to a name for the organization . The con-
ferees decided that it would be called the "Monthly Meeting of All Departments."
Hotchkiss then suggested the meetings should cover constructive suggestions or
criticisms , and that in the future the representatives could "work in" some recrea-
tional activities . Hotchkiss then announced that Respondent was seeking Wage
Stabilization Board approval for increased benefits involving a 6-cent an hour
increase in base pay across the board , an increased Christmas bonus for 1951, an
increase in shift differentials from 5 to 9 cents per hour , and a 2-week paid vaca-
tion similar to that enjoyed by the office force. In the discussion of grievances
thereafter , the company officials agreed to put the following "suggestions" into
effect : The Company would hold grievance meetings with each department to
iron out difficulties , rather than having all grievances presented by the depart-
mental representative at the Monthly Meeting ; the Company would make a survey
of a smoke condition in the wart department to ascertain how to remedy it; an
adequate supply of transportation ( tote ) boxes for machined parts would be pro-
cured for the machine shop to facilitate handling and protection of parts ; the
work of Merrette , in the hardwire department , would be removed from the super-
vision of Supervisor Merle Ellsworth and placed in a new department, with Mer-
rette reporting directly to Superintendent Webber ; additional equipment would
be made or bought to transport "tote" boxes ; and other suggestions for improve-
ment of working conditions were adopted. Still other suggestions were taken
under consideration by the Company . ( None was turned down or rejected.)
These findings are based on General Counsel's Exhibit No. 50-K.
5. The December Monthly Meeting
At the Monthly Meeting held December 28, 1951 , seven complaints or sugges-
tions considered at the November meeting and taken under consideration by
management were again discussed , with management reporting steps had been
taken to have a survey by an expert of the smoke condition in the wart de-
partment , to secure new racks for steel , to procure new transportation equip-
ment either by purchase or in-plant manufacture , and to correct other shop
conditions . Nine new suggestions or complaints were made, and management
agreed to take action on three, and to consider several others . These findings
are based on General Counsel 's Exhibit No. 50-M.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Later departmental meetings
By notice of December 13, 1951, posted in the plant (Exhibit No GC-50-L),
Hotchkiss announced that departmental meetings scheduled for December to
discuss the incentive wage system would he postponed to specified dates in Jan-
uary 1952 because of the December workload ; he also requested that all questions
or complaints be delivered in writing to the foreman of the department or John
Edgecombe, before December 21, 1951, to permit company consideration of them
beforehand, and thus speed up the meetings. The meetings were held in the
week of January 7, 1952. At each meeting, Edgecombe explained the operation
of the incentive system in that department, and management then considered
employee grievances regarding the operation of the system, and on other subjects.
At the January 7 meeting with the shipping and stores department, management
adjusted complaints involving the number of overtime hours considered at time
and a half instead of straight time under the incentive system, and agreed to
purchase new trucks and improve an existing truck ; a request for a fork-lift
truck was taken under advisement. At the January 8 meeting with the ma-
chine shop employees, the Company agreed to start a project for modernization
of machine tools, and to run air lines into the shop for cleaning chips off machine
tools ; three other suggested improvements were taken under consideration. In
the meeting with the hardwire department on January 9, management agreed
to initiate a project for general repair and improvement of machinery and fix-
tures, to be handled by the maintenance department, but also arranged for im-
mediate repair of specific machinery on individual complaints by operators. In
the meeting with the automatic winding department on January 10, company
officials discussed at length employee proposals for leveling off the incentive
system in that department, rejecting some ideas, and finally agreeing to make
special rates for certain operations; they also agreed to make suggested im-
provements in the machines and changes in operations, and arrange for general
repairs of machinery and fixtures. In the meeting with the long shop and wart
and sears department on January 11, after considerable discussion of incentive
rates on specific jobs, management agreed to run time-studies on several of these
jobs to correct the incentive rates ; the company officials also agreed to procure
needed machinery and other equipment, and to investigate complaints about
defects in the tubing used to transfer wire from one department to another. The
above findings are based on General Counsel's Exhibits Nos. 50-N through 50-R.
7. Monthly meetings in 1952
During the early part of 1952, Respondent held the Monthly Meeting of all
departments on the last Friday of each month. At each meeting, complaints and
suggestions of employees from each department regarding improvement of work-
ing conditions, changes of operations, repair, adjustment, and procurement of
machinery and other equipment, and similar subjects, were stated by the de-
partmental representatives , and considered and discussed by management. Some
complaints were adjusted and suggestions adopted by management at once;
others were carried over to later meetings pending investigation or to allow man-
agement time to comply with them. Thus, at the January 27 meeting, 17 com-
plaints or suggestions were considered and only 8 were carried over to the Febru-
ary 29 meeting, indicating that 9 were adjusted in the preceding month ; 4 more
were taken care of before the March 28 meeting. Of 17 items of new business con-
sidered at the February meeting, 8 had been adjusted before the March confer-
ence, and the 9 remaining were reduced to 4 by the April meeting. Ten new
complaints registered at the March meeting had been reduced to 5 at the end
STOW MANUFACTURING CO . 1297
of April, and to 4 at the end of May; and in like manner , of 8 new complaints at
the April meeting, only 3 were carried over to the May 27 meeting . The above
findings are based on General Counsel 's Exhibits Nos. 50-S through 50-W, and
credited testimony of Hotchkiss.
8. Conclusions regarding monthly and departmental meetings
It is clear from the facts set forth above, and I conclude and find, that the
Monthly Meeting of All Departments was an organization of employee repre-
sentatives conceived and created by Respondent on September 18, 1951, on com-
pany time and property, for the purpose of inviting, considering, discussing,
and adjusting employee grievances with the employees through representatives
chosen at the instigation of Respondent ; that Respondent has designated and con-
trolled the time and place of the meetings, the subject matter discussed at the
various meetings, the method of presentation of grievances by employees, and
has furnished company property and time for the consideration and adjustment
of grievances at said meetings ; and that Respondent in such meetings actually
adjusted grievances," and thereby bargained collectively with the employees
regarding grievances, changes in their rates of pay, wages, hours of employment,
and other conditions of employment. As the Monthly Meeting was created for
the purpose of and actually engaged in collective bargaining with the Employer,
I further conclude and find that it was and is a labor organization of Respond-
ent's employees existing for the purpose of dealing with Respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment, and other
conditions of work, within the meaning of Section 2 (5) of the Act." I further
find that said labor organization was initiated and created by Respondent on
September 18, 1951; that Respondent has since that date dominated and guided
its operations and interfered with its administration, by fixing the time and place
of its meetings with management, designating the nature and scope of the
subject matter to be discussed and procedure to be followed in its bargaining
sessions with management, the mode of procedure to be followed by employee
representatives in presenting grievances to management, and has furnished
financial and other support to it by permitting the employees to elect their repre-
sentatives to said Monthly Meeting on company time and property, by furnish-
ing company property for its collective-bargaining sessions with Respondent, and
paying the employee representatives for time spent outside their regular working
hours in such collective bargaining, all in violation of Section 8 (a) (2) of the
Act" I further find that by such conduct during the course of the Union' s organ-
Is Hotchkiss admitted the monthly meetings were held , in part , to "air" grievances so
that the Company could take them into consideration , and that , as a result of the "gripes"
expressed by the men, the Company gave priority to the correction of certain plant and
operation conditions which were already on its agenda for investigation . Charles Brown
of the shipping and stores department testified credibly that most of the "gripes" coming
from his department were adjusted by management.
3" Indiana Metal Products Corporation , 100 NLRB 1040 , and cases cited in footnote 14
of that decision.
_" Duro Test Corporation, 81 NLRB 977 ; Rehrig-Paeifle Company, 99 NLRB 163 ; Same-
Glassman Shoe Corporation, 97 NLRB 332.
Other indicia of the subservient character of the organization are the circumstances
that (1) so far as the record discloses, the employee representatives held no meetings
among themselves or with the employees ( other than the initial hasty election of the
representatives on orders from Webber ), but only appeared and functioned as such
representatives at the meetings called and attended by managenrent ; (2) the organiza-
tion never adopted any constitution or bylaws , or engaged in the usual internal activities
which denote an independent labor organization , and (3 ) membership in the Monthly
Meeting was apparently limited to employees of Respondent . See Rehrig-Pacific Com-
pany, supra.
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izing campaign , Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and other rights guaranteed by Section 7 of the Act, in viola-
tion of Section 8 (a) (1) of the Act.
I have found above that the Union' s organizing campaign was well under way
on September 18, 1951, and that Respondent was aware of it when Hotchkiss
called the first meeting of employee representatives that afternoon. Hotchkiss
admitted, and I find, that he conceived and called the meeting immediately after
he became aware of the union activity, because he knew "that the Union can
make persuasive arguments," and "I did not want to see any more people sign
up." It is clear, and I find, that Respondent called and held the September 18,
1951, meeting of employee representatives on company time and property, during
the union campaign, for the sole purpose of instigating and forming an inside
union, in order to thwart the union campaign and restrain its employees from
adhering to or joining it. This conduct is in itself a violation of Section 8 (a) (1)
of the Act n
I further find that the following conduct of Respondent during these meetings
constituted independent violations of Section 8 (a) (1) of the Act:
(1) Hotchkiss' suggestions to the employees at the September 18 monthly
meeting that they "try something different first," to "talk for yourself, before
you got tied up with an outside union, with dues, and having to have someone
else talk for you," and the following suggestions of Hotchkiss and Staude that the
men state their grievances for consideration by the Respondent, preliminary to
collective bargaining thereon later. Coming at the very first meeting of the inside
labor organization set up by the Employer during the union campaign, these
remarks constituted individual bargaining with employers which encouraged the
acceptance by the employees of the inside, dominated labor organization, and
was calculated to discourage their adherence to or continued affiliation with
the Union.
(2) Respondent's promise at the same meeting , in response to complaints about
incentives on particular jobs, to try to get personnel to time-study those jobs, and
Hotchkiss' suggestion to the men that "if you don't get action immediately I
want to know about it personally, because that way we can get the pressure on
to get the particular job done," were in effect individual bargaining on grievances
and improvement of rates on certain jobs, which were calculated to lead the
employees to believe that their grievances would be promptly settled through the
Monthly Meeting or by individual bargaining, thus demonstrating to them that
resort to an outside union as their representative was unnecessary.23
(3) Hotchkiss' statement at the September 25 meeting of representatives
(after the Union had attained majority status and Respondent had received
notice of its claim to such status),24 that Merrette's suggestion of continuance
21 See Marr Knitting, Inc., 90 NLRB 479. The antiunion purpose of the meeting is
further pointed up by the circumstance that Respondent had never before adjusted
grievances with groups of employees or their representatives. At his meeting with em-
ployees of the inspection and hardwire department on October 15, 1951, one Joseph
Merrette, an antiunion employee, asked Hotchkiss whether a group of employees had
ever come to him before to suggest improvements or make complaints about grievances.
Hotchkiss replied, "No, we never had any such meeting and I wish we had." (See Gen-
eral Counsel's Exhibit No. 50-D.)
22 See Harr Knitting, Inc., supra.
22 Cf. Eastman Cotton Mills, 90 NLRB 31.
21 As found hereafter, the Union notified Respondent on September 21, 1951, of its claim
to majority status and requested recognition as the sole bargaining representative of the
employees in the unit found above.
STOW MANUFACTURING CO. 1299
of the Monthly Meetings "might take care of the employees' main- grievance" (as
he saw it), i. e., that their grievances were not reaching management and receiv-
ing consideration, followed by his announcement that Respondent had taken steps
to secure another time-study man in order to do a better job on time-study of
certain jobs. These remarks were calculated to show the employees that Re-
spondent's creation of the Monthly Meeting would result in prompt and effective
consideration and adjustment of grievances, and that Respondent was in fact
taking steps to adjust the widespread grievances regarding the incentive system.
Such conduct was not only an independent violation of Section 8 (a) (1) of the
Act,z but was also a flagrant attempt to bypass or subvert the majority repre-
sentative of the employees by direct dealings with individual employees in viola-
tion of Section 8 (a) (5) of the Act ; 2' and this violation of the Act is all the
more apparent where the employer bargains with the employees through repre-
sentatives selected at the instigation of the employer and comprising an employer-
sponsored, -dominated, and -assisted labor organization.
(4) Hotchkiss' reference at each of the departmental meetings in October to
the September 18 meeting as another reason why a union was not needed in the
plant, was a reminder to the employees that they did not need an outside
collective-bargaining representative, such as the Union, because they already had
an organization set up for that purpose by Respondent, with which Respondent
was actually bargaining and adjusting grievances. As the Monthly Meeting
was an illegal labor organization, Hotchkiss' allusions to it as set forth above
further evidenced Respondent's refusal to bargain with the Union, as they were
clearly designed to demonstrate to employees that resort to self-organization or
choice of an outside bargaining agent was unnecessary, and to wean them away
from the Union, in violation of Section 8 (a) (5) and (1) of the Act.
(5) Hotchkiss' statements to employees of the wart and sears department
on October 16, 1951, and to machine shop workers on October 17, 1951, that the
Monthly Meetings of representatives could take care of all their complaints in an
orderly manner as well as any union could, and that the meetings had been set
up by Respondent as a "vehicle for handling" individual complaints about the
incentive system, in order to bring those complaints to light so that they could be
adjusted, and that the incentive system would be greatly improved by this
procedure, were likewise coercive. As they were made in response to Larsen's
comment that the union activity arose from management's failure to give con-
sideration to prior employee grievances, and during the course of Hotchkiss'
actual adjustment of individual grievances, they clearly indicated that Respond-
ent was satisfying the main employee grievances which had resulted in their
affiliation with the Union, by substituting the Monthly Meetings for the Union
as their bargaining representative in the adjustment of grievances. The re-
marks were thus calculated to discourage further affiliation with the Union.
In addition, they further evidenced Respondent's determination and plan to
bypass the Union and undermine its status as the statutory collective-
bargaining agent by direct bargaining with representatives of the employees
foisted upon them and dominated by Respondent. I find that these remarks
constituted further violations of Section 8 (a) (5) and (1) of the Act.
(6) I have found, above, that the Union attained majority status on September
19, 1951. Absent substantial evidence to the contrary, it must be presumed
that such status continued at least to the election of October 25-26, 1951. It
follows that when Hotchkiss, from the September 25 monthly meeting onward,
25 See footnote 23, above.
26 Reeder Motor Company, 96 NLRB 831; N . L. R. B. Y. Crompton -Highland Mills, Inc.,
337 U. S. 217.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
invited, considered, and adjusted grievances, including the actual grant of benefits
in the form of improved working conditions and promises to take steps to
increase incentive rates on specific jobs, Respondent was thereby engaging in
actual and effective collective bargaining with the employees' representatives
in the dominated monthly meetings, and in individual bargaining with employees
in the departmental meetings, in derogation of the Union's rights as the exclusive
bargaining representative, and in violation of Section 8 (a) (5) and (1) of the
Act. It is well settled that such conduct is calculated to entice employees away
from their freely chosen bargaining representative. That it actually had such
effect in this case is shown in striking fashion by the fact that employee Paul H.
Larsen, who was a leader in securing members for the Union during the drive,
and who attended the September 18 and 25 monthly meetings as representative
of his department, was wavering in his loyalty to the Union during October, for
at the October 16 meeting of Hotchkiss with his department, Larsen suggested
"this whole union business wouldn't have started if we had a little more consid-
eration on a petition" regarding grievances circulated by employees some months
before. (See General Counsel's Exhibit No. 50-G.)'r
The record shows, as found above, that Respondent followed the same pattern
of collective bargaining on employee grievances and working conditions at all
later monthly and departmental meetings in 1951 and 1952 as in the meetings
before the election. Since the earlier meetings in their various aspects have
been found violative of Section 8 (a) (1), (2), and (5) of the Act, the conclusion
is inescapable that the later meetings and Respondent's conduct therein con-
stituted similar violations of the Act. However, Respondent vigorously contends
that the election of October 25-26, 1951, which the Union lost, and the Regional
Director's certification of March 20, 1952, that the Union was not the majority
representative of the employees in the unit, is a complete defense to the charge
of refusal to bargain, not only as regards Respondent's acts subsequent to but
-Respondent argues that the Union lost the election , not because of Respondent's
unfair labor practices but by its own tactics, the antiunion activities of some employees,
and legitimate antiunion arguments and opinions advanced by the Company. I find from
credited testimony of Charles Brown, Maney, Pallady, Hayes, Hall , and other employees,
that in the preelection period , the campaign waxed warm , with some employees arguing
vigorously against the Union on the basis of their experience with it at the Hallstead,
Pennsylvania, plant in 1944; some employees sided with them, and still others dis-
approved of the Union on the basis of the written propaganda issued by it before the
election. It is a fair inference that the arguments of these workers carried weight and
may have had some part in the Union's defeat. However, it is also clear that Respond-
ent's numerous unfair labor practices before the election, as outlined above, particularly
its sponsorship and domination of the Monthly Meetings , and the coercive remarks of
Hotchkiss in his speeches , were calculated to and did exert a telling effect in turning the
men against the Union, and created an atmosphere in which a completely untrammeled
choice by the employees as to their bargaining representative was impossible. See Int.
Association of Machinsats v. N. L. R. B. 311 U. S. 72, 78, where the Supreme Court said
"slight suggestions as to the employer's choice between unions may have telling effect
among men who know the consequences of incurring that employer' s strong displeasure."
Here, Respondent's strong bias in favor of the dominated Monthly Meeting as the bar-
gaining agent , and against the outside Union, was much more than "slight."
I find no violation of the Act in other statements of Hotchkiss and other company
officials at th i September and October monthly and departmental meetings as found above,
as I consider them to be legitimate expressions of facts, views, arguments, and opinions,
containing no definite promises of benefit or threats of reprisal , within the purview of
Section 8 (c) of the Act. I reach the same conclusion as to circulars ( Respondent's
Exhibits Nos. 3-A through 0) posted in the plant by Respondent during the campaign.
Other remarks of company officials contained in the minutes of the above .meetings are
not made the subject of specific findings because of their immateriality to the issues or
general lack of substance.
STOW MANUFACTURING CO. 1301
also prior to the election . Respondent argues that the certificate here, by
analogy with the rule of presumptive 1-year status applied to certificates estab-
lishing a majority status, speaks not only as of the date of the election but for
the period of pendency of the representation case, and for at least a year after
the date of the certificate ; that if a certificate of status stabilizes the representa-
tive status for at least a year for the benefit of both union and employer, a
certificate of nonstatus places a corresponding duty on the employer for a like
period not to bargain with the unsuccessful union . It is also claimed that the
certificate of nonstatus stands unrevoked and is presumed to be valid and to
establish the Union 's lack of status until set aside by the Board in a proper
proceeding , and, until set aside , the Board cannot go behind it , and that the
charge of refusal to bargain must fall for lack of the essential element of the
Union's majority status.
General Counsel argues, on the other hand , that there is nothing sacred about
a certificate of results of an election which protects it from revocation or inde-
pendent review of the proceedings in which it was issued ; that the Board can
revoke a certificate at any time for proper cause, particularly where fraud or
bad faith induced the representation proceeding ; and that in this case, in the
light of Respondent 's prior unfair labor practices which had the purpose and
effect of thwarting the Union 's membership drive and undermining its majority
status, Respondent 's filing of a representation petition and consent to an election
were steps taken in bad faith to induce the Union to initiate , and the Board
to process , the representation proceeding , as though a genuine question con-
cerning representation existed , and thereby to gain time within which Respondent
could weaken the employees ' loyalty to the Union and coerce them into voting
against it at the election , and thereby destroy its existing majority status ;
that by such conduct Respondent raised a question concerning representation in
bad faith , and the subsequent representation proceedings were a fraud upon the
Board's processes and a nullity ab initio , under the doctrine laid down by the
Board in The M. H. Davidson Company, 94 NLRB 142 , and Rehrig-Pacific Com-
pany, 99 NLRB 163; and that Respondent cannot take advantage of its own
unfair labor practices which started before and affected the outcome of the
representation election , to justify its refusal to bargain , under the doctrine of
Franks Brothers Company v . N. L. R. B ., 321 U . S. 702. To resolve these con-
l entions, I must turn to a consideration of :
D. The refusal to bargain
1. The unit , majority status of the Union , and its request to bargain
I have already found the appropriate unit above , and that the Union acquired
majority status in said unit on September 19, 1951 , which status continued in
fact until the election of October 25 and 26, 1951 . The record further shows, and
I find , that the Union by letter of September 20, 1951 ( General Counsel 's Exhibit
No. 2), which was received by Respondent on September 21, 1951 , notified
Respondent that a majority of the production and maintenance employees in the
Binghamton plant had designated the Union to represent them "in all matters
pertaining to collective bargaining" under the Act, requested that Respondent
recognize the Union as the exclusive bargaining agency for said unit of employees,
and asked Respondent to advise when it could meet with Lisenby , the union
agent signing the letter, "to discuss recognition of the Union ." I conclude and
find that the Union thereby requested Respondent on September 21, 1951, to
257965-54--vol. 103-83
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain with it as the exclusive collective-bargaining agent of the employees in
the appropriate unit 28
2. The representation proceedings and their effect
By letter of its counsel dated September 25, 1951, the Respondent promptly
replied to the Union's request, advising that it had decided the best thing to do
was to ask the Board to conduct an election to determine whether the Union
was the proper representative of the employees ; it enclosed a copy of the peti-
tion which it was mailing that day to the Board. The petition was filed Septem-
ber 26, 1951, in Case No. 3-RM-67. The Union filed its petition for certification
in Case No. 3-RC-834 on the same date. On October 11, 1951, Respondent and
the Union executed an agreement in the latter case for a consent election which
was held on October 25 and 26, 1951. The tally of ballots indicates 52 votes
cast against the Union and 16 in its favor. On October 29, 1951, the Union
filed objections to the conduct and result of the election, charging that Respond-
ent had called meetings of employees on company time without affording the
Union on its request the same opportunity to address the employees, and that
Respondent had worked employees overtime on the day of a union meeting in
derogation of the employees' rights to select their own bargaining agent. The
Union requested permission to withdraw the objections on March 6, 1952, the
same day it filed its original charge herein ; the Regional Director for the Third
Region granted the request on March 19, 1952, without ruling on the objections,
and on March 20, 1952, issued his certificate that a majority of ballots had not
been cast for the Union at the election, and that the Union was not the exclusive
bargaining representative pursuant to Section 9 (a) of the Act. The above
findings are based on General Counsel's Exhibits Nos. 2 and GC-3.
Respondent contends that it filed its petition in the representation proceeding
and agreed to a consent election in good faith, and that it had a legal right to
test the Union's majority claim by resort to that procedure, because it had an
28 The C. L. Bailey Grocery Company, 100 NLRB 576 ; Joy Silk Mills, Inc., 85 NLRB 1263,
1275, enforced 185 F. 2d 732 (C A. D C.), cert. den. 341 U. S. 914.
Respondent argues that the Union 's letter of September 20 does not constitute a request
to bargain because of (1) its admitted policy of seeking Board certification in all cases,
(2) Its representations to the employees that their authorization cards would be used
only to secure an election, and its subsequent filing of a representation petition, and (3)
Its failure at any time before the election to offer to prove its status by a check of the
cards These arguments are without merit. As to (1), I find from credible testimony
of D. J. Omer, a union representative, that its policy was grounded in the desire of the
Union to solidify and protect its majority status, once achieved, against raiding by other
labor organizations at least for the year following certification, during which the Union's
status is conclusively presumed to continue ( in the absence of unusual circumstances)
under settled Board policy. The record also shows that during its 1944 campaign at
Respondent 's Hallstead plant, Respondent was advised that it was the Union ' s policy
to have the question of representation handled "through the National Labor Relations
Board," and that the Union was agreeable to having the question resolved either through
a "recognition agreement , agreement for cross -check ( of cards ), or agreenrent for con-
sent election" ; the choice of method was left to Respondent, which finally chose the
consent-election method, and so advised the Union and the Board (see office memos of
Respondent 's counsel , and correspondence between Respondent and a Board agent, all
in Respondent ' s Exhibit No. 4). Thus , the union policy did not amount to a waiver of
majority status established by signed authorization cards, but was only designed to pro-
tect that status. As to (2) the policy of the Union is no inconsistent wih its repre-
sentations to the employees, which merely indicated the initial use which would be made
of the cards, 1. e , the filing of a petition As to (3), the Union's failure to offer the
cards as proof of its status after it and Respondent filed their petitions is meaningless,
for Respondent indicated by its letter of September 25 to the Union that it was choosing
the election method to determine the Union's status, and that choice made any later
offer of the cards by the Union a useless gesture.
STOW MANUFACTURING CO. 1303
honest doubt as to the claim based on (1) the fact that the Union had tried
twice before to organize the plant without success, and (2 ) the Union's estab-
lished policy and practice of seeking Board certification in all cases ,
without
relying on authorization or membership cards to prove majority status. I find
from credible testimony of management representatives29 that the Union tried
without success in 1939 or 1941 and again in 1945 to organize the Binghamton
plant, and that management considered itself justified, both by the poor attend-
ance of employees at union meetings in those campaigns and by the Company's
past liberal treatment of its employees, in believing that the present campaign
was not a serious one and would not be effective. I have found above that it
was an established practice of the Union to seek formal certification of its bar-
gaining status by the Board in all cases where it had in fact become the repre-
sentative of a majority of the employees in a plant, and that Respondent knew
of this procedure. These circumstances, standing alone, might justify the con-
elusion that Respondent was acting in good faith in filing its representation peti-
tion and electing to rely upon an election to determine the employees' desires ;
and if those were the only facts in the case, they would be a complete defense to
the 8 (a) (5) charge. It is well settled that an employer may insist upon a
Board election and a formal certification under the Act, as proof of a union's
majority, and is not guilty of an unlawful refusal to bargain where such action
is motivated by a bona fide doubt as to the union's majority ; but where his
insistence on an election is motivated by a rejection of the collective-bargaining
principle or a desire to gain time within which to undermine the union and
dissipate its majority status, such insistence amounts to an unlawful refusal to
bargain.30 There are weighty circumstances in this case which lead me to believe
that Respondent's resort to an election was not motivated by good faith.
First of all, Hotchkiss made it clear to the employees at the very first Monthly
Meeting of September 18 that Respondent was hostile to any organization of its
employees by an outside labor organization. Although Respondent had apparently
had amicable relations uu ith the Union at the Hallstead plant, Hotchkiss admitted
he had disliked the Union's presence there, saying it "didn't help." Secondly,
Hotchkiss admitted he convened the September 18 Monthly Meeting immediately,
even before the Union had achieved majority status, because he knew "that the
Union can use persuasive arguments," and because "I did not want to see any
more people sign up." This testimony strongly indicates that, despite the Union's
past lack of success at Binghamton, Respondent either knew or strongly sus-
pected on the 18th that the Union was rapidly signing up employees and approach-
ing majority status, and that this circumstance prompted and crystallized
Hotchkiss' decision and determination to stop the Union' s progress quickly by
drastic measures. These took the form of the hasty and illegal formation and
recognition of, bargaining with, and assistance to, the Monthly Meeting, and
the other unfair labor practices found above, all of which started before the
election and effectively undermined the employees' loyalty to the Union so that
it lost the election. These unfair labor practices, particularly the creation and
domination of the Monthly Meeting, are cogent evidence of Respondent's rejection
of the collective-bargaining principle, and of its purpose to thwart the Union's
campaign, undermine its strength and destroy its majority status. Their incep-
tion during the campaign and before the representation proceeding was started,
29 Hotchkiss ; Vice-President George G. Eisenbeis ; Sales Manager William W. Rappman ;
Purchasing Agent J. Frank O'Neil ; Superintendent Webber ; and Foreman Charles W.
Bennett
80 Joy Silk Mills , Inc. v. N. L. R. B., 185 F. 2d 732 (C A. D. C.), and cases cited therein,
cert denied , 341 U. S. 914 ; Everett Van Kleeck and Company, 88 NLRB 785, 787, 788;
order enforced , 189 F 2d 516 (C. A. 2).
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and their continuance throughout that proceeding, belie any contention that
Respondent chose the election procedure and participated in the representation
proceeding in good faith. From these circumstances I must conclude, and there-
fore find, that Respondent's initiation of the representation proceeding and
agreement to the consent election was part and parcel of its plan to undermine
the Union and destroy its majority status, and deny the employees their
collective-bargaining rights guaranteed by the Act, and that it took these steps
in order to gain time to accomplish this purpose, and not because of any good-
faith doubt of the Union's majority status. I further find that Respondent's
answer of September 25 to the Union's request of the 20th for recognition and
collective bargaining, in which Respondent stated its decision to resort to a
Board election, was part and parcel of its antiunion campaign of unfair labor
practices started 7 days before, and was similarly motivated by bad faith. I
find that Respondent's reply of September 25 to the union request to bargain
was in effect a refusal on that date to bargain in good faith with the Union as
the statutory representative of employees in the appropriate unit, in violation
of Section 8 (a) (5) and (1) of the Act.
In the light of Respondent's unfair labor practices prior to September 26,
1951, and its bad-faith challenge of the Union's majority on September 25, 1951,
it follows that no genuine question concerning representation was raised by
the filing of Respondent's petition in Case No. 3-RM-67 and that to the extent
that the election in the combined cases was based on that petition," the whole
proceeding must be regarded as a nullity, under the doctrines laid down by the
Board in The M. H. Davidson Company, 94 NLRB 142, and Rehrig-Pacific Com-
pany, 99 NLRB 163. n These cases, as applied to the facts herein, also preclude
any contention that the Union waived the prior unfair labor practices of Re-
spondent by the filing of its own petition (see also Squirrel Brand Co., Inc., 96
NLRB 179).
Respondent argues that these cases are inapplicable because neither involved
a certificate of the results of an election, and that the certificate of March 20,
1951, is a formal decision as to the validity of the election and the whole repre-
si The tally of ballots, certification on conduct of election, the Union's objections to
conduct of the election, and the Regional Director's certificate of results of the election,
were all filed in the combined RC and RM cases.
as The record does not warrant any finding that the Union was induced by Respondent's
letter of September 25, or by the filing of the RM petition on September 26, to file Its own
petition in the RC case, for there is no proof that the Union received the letter or was
cognizant of the RM petition before it mailed out Its own petition on the 25th ; apparently
the simultaneous filing of both petitions was a coincidence, and I must conclude that the
Union filed its own in accordance with its existing practice of seeking certification in all
cases, as found above. However, Respondent's filing of its petition was a representation
to the Board, and its execution of the consent-election agreement was a representation to
both the Board and the Union, that it considered a genuine question concerning representa-
tion to exist. The falsity of the representation is apparent from Respondent' s prior and
continuing unfair labor practices found above, and I can only conclude therefrom that
Respondent's participation in the representation proceeding was a "surface" act of appar-
ent good-faith cooperation in the use of Board procedures, indulged in by Respondent at a
time when it had already created a coercive atmosphere and made a free choice of bar-
gaining representatives impossible, which was calculated to induce the belief that a
genuine question concerning representation existed, and to gain time within which
Respondent could continue its campaign to destroy the Union' s status . See Everett Van
Kleeck & Co., footnote 30, above.
Moreover, regardless of who initiated the representation proceeding , it must still be
considered a nullity because it was started, and the election was held, in an atmosphere
of illegal interference with the employees' rights, created and continued by Respondent's
unfair labor practices, which precluded any freedom of choice by the employees in their
selection of a bargaining representative. See Howell Chevrolet Company, 95 NLRB 410.
STOW MANUFACTURING CO. 1305
sentation proceeding which stands as a bar to any charge of refusal to bargain
unless and until set aside in a proper proceeding. While it is true that in the
cases cited above, the representation proceedings were still "open of record" in
that there had been no formal certification, I do not consider that the certification
here has the preclusive effect claimed by Respondent. In the first place, it only
certifies the nonstatus of the Union as bargaining agent, based upon the vote of
the employees on October 25 and 26, 1951; and it was issued by the Regional
Director after the Union had been permitted to withdraw its objections to the
conduct of the election, which included some of the charges litigated herein;
lacking those objections and any consideration thereof, the certificate of non
status was the only decision which the Regional Director could have reached,
based on the formal record of the representation proceedings then before him,
including the tally of ballots ancf the certificate of regularity of the election
itself signed by representatives of Respondent and the Union. In the second
place, General Counsel here makes a direct plenary attack on the entire repre-
sentation proceeding culminating in the certificate, seeking to have the certificate
set aside on the ground that Respondent's bad-faith participation in the repre-
sentation proceedings, as found above, was in effect a fraud upon the Board
which induced it to proceed with an election on the assumption that a genuine
representation question existed. Having found that Respondent's purpose in
cooperating in that proceeding, and the effect of its prior unfair labor practices
thereon, rendered the whole proceeding a nullity, it follows that the certificate
itself, being merely the end result of that proceeding, is likewise of no effect or
value. This conclusion is not at variance with existing Board practice. The
Board has control over its representation proceedings at all times. It has power
to rescind a certification of a union as bargaining agent at any time upon a
showing that such agent is not according equal representation to all employees in
the bargaining unit, or where the Board finds the existence of unusual circum-
stances.` It may modify or amend its certification during the certification
period upon a proper showing." Thus, the certification of a union as a bargaining
agent is not completely sacrosanct but may be modified, amended, or even re-
scinded by the Board at any time where necessary to effectuate the policies of
the Act, even though such action involves a change or destruction of an existing
bargaining status. A fortiori, the Board should have that power in the case of
a certificate which establishes only a lack of a status, as here 96 And finally, the
88 The Coleman Company, Inc., 101 NLRB 120; Carson Pine Scott and Company,
69 NLRB 935; Jasper Wood Products Company, Inc., 72 NLRB 1306.
M Electro Metallurgical Company, 99 NLRB 514.
85 The certificate here in effect establishes a partial void in the area of collective bar-
gaining with respect to these employees, declaring that as of October 25-26, 1951, they
are without representation by an outside union by their own choice. If Respondent's
theory that the certificate must be honored for at least a year ( like the usual affirmative
certification ) Is adopted , the employees could not for a year after its date be approached
by or represented by the Union, even though they changed their minds and desired to
sign new authorization cards ; the certificate would at least limit their right under
Section 7 of the Act to choose their own representative, by denying them the right in
that period again to choose the Union as their effective bargaining agent; they might
reaffiliate with it, but Respondent would not be required to recognize or bargain with
it as their agent. I cannot conceive that this result was ever intended by Congress
or that it would effectuate the purposes of the Act. The incongruity of the result is
all the more apparent in this case where, under Respondent's theory, the employees must
continue to work for a year in an atmosphere of interference and restraint created by
the Employer which caused them in the first instance to reject the Union after they had
freely chosen it, and the Employer is free to maintain that atmosphere by continuing to
offer them, as their sole bargaining agent. the dominated labor organization which it
foisted upon them in violation of the Act. Respondent's argument would in effect
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board has exercised its power, where necessary, to completely nullify a repre-
sentation proceeding as a fraud upon its processes on the basis of findings in
complaint proceedings, as in the Davidson and Rchriq-Paciflc cases If the Board
has power to nullify an entire representation proceeding in order to expunge a
fraud upon its processes, it makes no difference whether that proceeding is still
,,open of record," as in the cited cases, or formally closed by a certification ; for
that formal closing document derives no validity except from the proceeding in
which it was issued3°
For all of the reasons stated above, I conclude and find, contrary to Respond-
ent's contentions, that the representation proceedings afford no defense to
Respondent's refusal to bargain with the Union as the statutory bargaining
agent of employees in the appropriate unit, that the Union has been the majority
representative, and by virtue of Section 9 (al of the Act, the statutory bargain-
ing agent of such employees since September 19, 1951, and that Respondent has
refused to bargain collectively in good faith with the Union as such agent since
September 25, 1951, in violation of Section 8 (a) (5) of the Act.'
I also conclude that Respondent's continuation of the monthly and depart-
mental meetings after the election, its collective and individual bargaining with
employees, and promises and grant of benefits and adjustment of grievances
therein, as found above, are not excused or justified by the pendency of the
representation proceeding for the reasons stated above, and I find that by such
conduct Respondent has further violated Section 8 (a) (1), (2), and (5) of the
Act.
E. Respondent's denial of the union request to address the employees
On October 19, 1951, the day after Respondent concluded its nine departmentar
meetings on October 15 through 18, 1951, with employees as described above, the
Union sent Respondent a letter, dated October 18 and addressed to Hotchkiss,
in which it noted that Respondent had held departmental meetings of employees
during working hours, and requested "that you permit us to come into the plant
at such a meeting to address your employees, at which time you too could present
your side which should be fair to us all." (Exhibit No. GC-47.) The letter
was received at Respondent's plant on Saturday, October 20, when the plant
office was closed, and was delivered by Hotchkiss' secretary to Respondent's
counsel, on Monday, October 22, for reply, because Hotchkiss was out of town
on the 20th, 21st, and 22nd, and was due back on the 23rd. Respondent's coun-
establish the certificate as a shield over the effect of its own unfair labor practices,
denying the Union the right to solicit the employees for a year, leaving them defenseless
against their Employer's continuing unfair labor practices, and rendering the Board
powerless to remedy the situation ( except, perhaps , to a limited extent by reopening the
representation proceedings ). The proposition must be rejected in the light of the well-
established principle that an employer should not be permitted to profit by his own wrong,
when he pleads as a bar to a bargaining order, a loss of the Union ' s majority which
resulted from his own illegal acts . See International Broadcasting Corporation (KWKH),
99 NLRB 130, citing Franks Brothers Company v . N. L. R. B., 321 U . S. 702, 704.
36 The fact that the Regional Director did not withhold issuance of the certificate when
the charges herein were filed, and refused during the hearing to revoke it at the request
of the Union, and his reasons for these actions, are immaterial, in view of the direct
attack upon the whole representation proceeding made herein , which calls into play the
Board's inherent power of review and control over its own proceedings , which includes
the power to reverse actions of its Regional Directors
i7 In view of the extensive nature and timing of Respondent's unfair labor practices
found above, I consider John Deere Plow Company, 82 NLRB 69, Chamberlain Corporation,
75 NLRB 1188, and Roanoke Public Warehouse , 72 NLRB 1281, cited by Respondent, inap-
plicable here, as being plainly distinguishable on the facts. In the latter two cases, the
records failed to disclose prior unfair labor practices sufficient in number or scope to
warrant the Board in finding that the employer 's insistence upon an election amounted
to a bad-faith doubt of the union's majority.
STOW MANUFACTURING CO. 1307
sel replied on October 22, advising the Union of Hotchkiss' absence and his im-
pending return on the 23rd, and stating the letter would be sent by special
delivery, "so that you can phone Mr. Hotchkiss tomorrow and arrange for an
appointment and make your wishes known to him in person." (Exhibit No.
GC-48.) Lisenby, the union agent, received this letter on October 23 or 24,
and made one long-distance person-to-person call to Hotchkiss at the plant from
Sidney, New York (40 miles away), on the day he received the letter or the day
following; the long-distance operator reported that Hotchkiss was not in; Lis-
enby did not leave his name or any message, did not ask for any other officer of
Respondent, and made no further attempt to contact Respondent or its counsel.
Hotchkiss was available in the plant on October 23 and 24 but made no attempt
to contact the union agent in any way, relying upon his counsel' s letter of the
22nd as being "sufficient." 88 On these facts, General Counsel contends that
Respondent denied the Union an opportunity to address the employees under
conditions similar to those under which Hotchkiss had previously addressed them
and thereby violated Section 8 (a) (1) of the Act, under the Board's ruling in
Bonwit-Teller, Inc., 96 NLRB 608. Respondent contends that the union's request
to address the employees was not made in good faith and was never in fact
denied by Respondent, relying upon its counsel's letter of the 22nd.
I find from credited testimony of Lisenby and Larsen that Lisenby learned
on September 19, 1951, from employees Larsen and Tokos about Hotchkiss' meet-
ing of the day before with the departmental representatives, that he thereafter
received reports from employees about the later meetings as they were held, and
that he sent the request of October 18 to Respondent after a discussion that day
with D. J. Omer, another union representative, who advised him of the Bonurit-
Teller decision, and told him to send the letter. On these facts, I cannot find
that the Union's letter was sent in bad faith. Although Lisenby knew of the
Monthly Meetings held on September 18 and 25, the circumstances which prompted
the Union to make its request on October 19 were undoubtedly the series of
9 preelection meetings held by Respondent in I days ending on the 18th, in which
Respondent made concentrated, coercive, and effective efforts to wean the em-
ployees away from the Union, as found below. I therefore find that the request
sent on October 19 was both timely and made in good faith, in reliance upon the
rule enunciated in the Bonwit-Teller case.
However, on the basic issue , the pertinent facts raise a close question as
to whether Respondent's action, or inaction , after receipt of the union request,
amounted to a violation of the Act within the rule of the above case. In the
first place , I do not consider Respondent 's letter of October 22, in itself, to
be an evasion or denial of the request. It is clear from the facts found above,
and from the whole record, that President Hotchkiss was in charge of Re-
spondent 's labor policy and handled all its labor relations during the 1951
union campaign ; there is no proof that in his absence any other officer or
Respondent 's counsel had real or apparent authority to grant the Union's
request or commit Respondent on operational phases of its labor policy."
u These findings are based on the exhibits noted above , and credited testimony of Lisenby
and Hotchkiss.
ae The record shows that Respondent's counsel had handled the legal phases of its
negotiations with the same union and the Board during the 1944 representation proceed-
ings involving the Halistead, Pennsylvania, plant, and also represented Respondent in
similar manner during the representation proceedings involved herein. However I do
not consider counsel's authority in this respect broad enough to include authority to
commit Respondent to a use of its property and production time to a purpose not con-
nected with production, especially where Hotchkiss had been personally handling all meet-
ings with employees during the campaign . In the absence of such authority, I cannot
conclude that counsel 's letter to the Union was a deliberate use of Hotchkiss' absence as
an excuse to delay or avoid granting the Union 's request.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hotchkiss was out of town visiting his son at a military post in Maryland on
October 20, 21, and 22; there is no proof that he had advance notice or any
intimation of the impending request, or that he was absent in order to avoid
it. Thus, when the Union's letter was received at the plant on Saturday, a
nonworking day, it was natural for Hotchkiss' secretary to take it promptly
to Respondent 's counsel , who at once made the only reply that he could under
the circumstances, advising the Union of Hotchkiss' absence and his expected
return on the 23rd, and suggesting that Lisenby phone Hotchkiss that day
to arrange an appointment and discuss the matter with him personally. When
Hotchkiss returned on the 23rd, he elected to stand on his counsel 's letter,
making no further attempt to contact the Union but waiting for it to make
the next move . When Lisenby received counsel 's letter on the 23rd or 24th,
he adopted his suggestion by attempting to reach Hotchkiss from a nearby town
by telephone ; when that attempt was unsuccessful , he did not follow it up
in any way although, as he admitted, on the 23rd he was in Oneonta, New
York (about 63 miles from Binghamton ), about 4: 30 p. in., was present at
Respondent's plant about 6:30 p . m. handing out union leaflets, and was in
Sidney about 7: 30 p. m. ; and on the 24th he was in Sidney during the morning,
and at 4 p. m. attended a preelection mass meeting for Respondent 's employees
at a union hall 4 or 5 blocks from the plant. Lisenby offers no excuse for
his failure to attempt further to contact Hotchkiss either day. However, his
single attempt to reach Hotchkiss on the 23rd or 24th was unknown to Respondent,
for he left no message or record of his name at Respondent 's plant on that
occasion , and Hotchkiss admits he did not hear from Lisenby on either day.
Therefore, Hotchkiss did not know that Lisenby had adopted the suggestion
In the letter of the 22nd, and I must treat the situation as though Lisenby's
call had never been made, so far as Respondent's conduct is concerned, for
it cannot be said that Hotchkiss' silence from the 23rd onward was with knowl-
edge of Lisenby's attempt to reach him, or that his inaction was induced by
a belief, based on such knowledge, that the Union was not relying on its request
of October 18, but was again taking the initiative to contact Hotchkiss per-
sonally to arrange for a union address to the employees. Leaving Lisenby's
abortive call out of the picture, I am constrained to conclude that when
Hotchkiss saw Lisenby's letter on the 23rd, the onus was upon Respondent
to make sonic attempt to answer the request therein, and offer the Union
an opportunity to address the employees on company time and property under
conditions similar to those prevailing during Hotchkiss' speeches. This
Respondent failed to do. Instead, by treating his counsel' s letter as a
sufficient reply to the Union, Hotchkiss indicated that Respondent was not
required to give the Union a forthright answer to its letter , in kind or otherwise,
but that it could require the Union in effect to make another request of Re-
spondent , this time by telephoning for an appointment to "make your wishes
known to (Hotchkiss) in person ." Having once made a definite , timely request
for opportunity to address the employees , the Union was not required in reason
or by law to make a second request or even follow up the first ; rather, the
burden shifted to Respondent to take steps to grant the request, which it did
not do. There was nothing, so far as the record discloses, to prevent Hotchkiss
from attempting to contact Lisenby on October 23 at the Sidney address stated
in his letter of the 18th, by telephone, telegraph , or special delivery letter, and
making the proper offer ; a special delivery letter or telegram sent on the 23rd
might conceivably have reached Lisenby on the 24th in time for him to make
some arrangements with Hotchkiss for a speech by a union representative that
day (perhaps with Hotchkiss speaking in rebuttal, as the Union suggested in
its letter). Under all the circumstances , I am convinced that Hotchkiss' reliance
STOW MANUFACTURING CO. 1309
upon his counsel's letter of October 22, and failure to answer it, was an unwar-
ranted attempt to place the burden on the Union to make another request of
Respondent for a chance to address the employees . It was in essence an evasion
of the Union's initial and sufficient request, and amounted to a denial thereof.
I conclude, and therefore find, that by Hotchkiss' failure to make any attempt
on and after October 23 to contact the Union and offer it an opportunity to
address the employees on company time and property under the same advan-
tageous circumstances under which Hotchkiss had previously addressed them,
Respondent independently violated Section 8 (a) (1) of the Act because it
thereby denied its employees the right "to hear both sides of the story under
circumstances which reasonably approximate equality," which is a concomitant
of their fundamental right freely to select or reject union representation.'0
F. Other interference, restraint, and coercion
I find from the credited and uncontradicted testimony of Hotchkiss, Charles
Brown, and Larsen that Respondent gave all its employees a wage increase of 6
cents an hour across the board in the early part of December 1951, after securing
the requisite approval of the Wage Stabilization Board . This benefit was granted
without prior notice to or consultation with the Union which attained majority
status on September 19, 1951, as found above. I have found that such status
continued thereafter, notwithstanding the results of the election in the repre-
sentation proceedings , for reasons stated above . I also find from credited testi-
mony of Hotchkiss that : It was company policy to keep its wage scales compara-
ble to the average wages for the area in which the plant was located ; Respondent
had given 2 general wage increases in conformity with this policy in 1950, 1
in September , and 1 in December just before the impending wage freeze ; in
July 1951, Respondent was considering another blanket wage increase, and had
taken steps to make application to the Wage Stabilization Board for approval,
10 This is the "more fundamental consideration " stated by the Board in the Bonwit-
Teller case , 96 NLRB 608 , at 612 ( there is no question here of a disparate use by Re-
spondent of a plant no-solicitation rule ). Applying that rule, the Board said ( p. 612)
"that an employer who chooses to use his premises to assemble his employees and speak
against a union may not deny that union's reasonable request for the same opportunity
to present its case, where the circumstances are such that only by granting such request
will the employees have a reasonable opportunity to hear both sides." In that case, the
employer made his antiunion speech to a captive audience of his employees 6 days before
the election, and on that circumstance, the Board found that "the proximity of the speech
to the day of the election imposed a practical limitation on out-of -store contact by the
Union (with the employees) after the speech," and concluded that the only reasonable
opportunity the employees could have had to hear the union's reply was by the employer's
granting its request to address employees under the advantageous circumstances as the
employer had made available to itself . Here, Respondent 's last speech to the employees
was 7 days before the election , and I consider the Board 's conclusions in the above case
equally applicable . Moreover , I have found above that Respondent's preelection speeches
to employees by departments and through the Monthly Meetings, which contained coercive
statements , and its illegal recognition of and bargaining with the Monthly Meeting, and
with employees individually, were unfair labor practices which were having their effect
on the employees and creating a condition incompatible with their free choice as to repre-
sentation in an election In this atmosphere of restraint and coercion , it was all the
more imperative that the Union be afforded the same forum for presenting its arguments
to the employees, as the Employer had enjoyed ; and it is likewise patent that only in
this manner could the employees have a reasonable opportunity to hear both sides under
approximately equal conditions Under these circumstances, the fact that the Union
held a mass meeting for employees on the eve of the election , distributed much union propa-
ganda , and had opportunity between October 18 and the election to contact and persuade
the employees concerning the issues involved in the election through other approaches
and media , does not qualify the basic principle involved , and affords no defense for
Respondent 's conduct . See Onondaga Pottery Company, 100 NLRB 1143.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but this activity was suspended with the advent of the Union, and Hotchkiss
took pains to avoid any promises of wage increases in his September and
October speeches to the employees, as found above ; after the election, however,
Respondent proceeded to secure WSB approval and then granted the wage in-
crease. Absent the representation proceeding and the election, and Respond-
ent's preelection unfair labor practices found above, I would be inclined to
hold on the above facts that the increase of 1951, being in conformity with
company policy and having had its inception in July 1951, before the advent
of the Union, was not violative of the Act, even after the Union had attained
majority status. 41 or after Respondent had received notice of its claim of such
status." However, I have found that the representation proceedings are a nullity
for reasons stated above, and that Respondent's preelection and post-election
unfair labor practices, and its bad-faith participation in the representation
proceedings, demonstrated its rejection of the collection-bargaining principle ;
and when Respondent resumed its efforts to grant the wage increase after the
Union lost the election, it is manifest that Respondent was erroneously relying
upon the result of the election, and ignoring the Union's continuing majority
status and its prior request to bargain, in proceeding with and granting the
increase . I therefore conclude that Respondent's unilateral grant of the wage
increase in December 1951 was in derogation of the Union's status as bargaining
agent, and was per se a refusal to bargain, in violation of Section 8 (a) (5) of
the Act "
In the summer of 1952, Respondent gave all employees in the appropriate
unit substantially 2 weeks' vacation with pay, after securing approval from
the Wage Stabilization Board, but without prior notice to or consultation with
the Union. The production employees had previously received only 1 week of
vacation with pay, and the increase placed them on a par with the office
employees in this respect. The production employees first complained about
the inequality in vacation benefits during the first week of July 1951. During
July and August, company officers discussed and figured the cost of increasing
the plant vacations to 2 weeks, and on August 31, 1951, Staude, the secretary,
wrote to the U. S. Department of Labor for the necessary forms on which to
apply for approval of the proposed vacation benefit. When the Union began
its campaign and claimed majority status in September, Respondent suspended
all action on the matter, on advice of counsel, and Hotchkiss refused at the
Monthly Meeting of September 18 to make any promises about it. After the
election, and on February 4, 1952, Respondent filed the application with Wage
Stabilization Board for approval of payment of the increased benefit in 1952,
which was granted in due course." Notwithstanding that Respondent deter-
mined to grant the benefit, and took the first steps toward making it effective,
before the advent of the Union, I am constrained by the same circumstances
which applied to and colored the 1951 wage increase as set forth above, to
conclude that Respondent's unilateral grant of the increased vacation benefit in
1952 was likewise a refusal to bargain, in violation of Section 8 (a) (5) of
the Act.
Hotchkiss admitted, and I find, that in December 1951, Respondent gave all
employees a Christmas bonus which was substantially larger than that which
they received in 1950, and that in July or August 1952, it gave all employees
41 Cf Dirie Mercerizing Company, 86 NLRB 285, 297.
42 Cf. Burns Brick Company, 80 NLRB 389.
43 Louisville Container Corporation , 99 NLRB 81.
" These findings are based on credited testimony of Hotchkiss , Charles Brown, and
General Counsel 's Exhibit No. 50-A, Respondent's Exhibits Nos. 6 and 7.
STOW MANUFACTURING CO. 1311
in the unit an increased shift differential pay, after securing approval of the
Wage Stabilization Board. These benefits were likewise granted without notice
to the Union. For the reasons stated above with respect to the increased wage
and vacation benefits, I conclude that Respondent thereby further violated
Section 8 (a) (5) of the Act.45 By all of such conduct, Respondent also further
interfered with, restrained, and coerced employees in violation of Section 8 (a)
(1) of the Act.
On October 24, 1951, Plant Superintendent Webber asked employees Peter
Mastro and Fay Lindsley if they were planning on going to the union meeting
at the Labor Temple that afternoon, which had been publicized by a union
leaflet previously posted on the plant bulletin board. The employees said they
were not going. The same day he asked employees Ray Gritman and James
Maney if they were planning on doing anything after they finished work at 3: 30
p. in. that day. They said "no." 48 I find that Webber's interrogation of Mastro
and Lindsley was an illegal inquiry into their prospective union activities, and
that Respondent thereby violated Section 8 (a) (1) of the Act.47
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
I will recommend that it cease and desist therefrom and also take certain affirma-
tive action designed to effectuate the policies of the Act.
Having found that Respondent unlawfully refused to bargain collectively in
good faith with the Union as the exclusive bargaining representative of its
employees in the appropriate unit found above, I will recommend that Respond-
16 It appears from Hotchkiss' speeches to the various departments in the week of October
15, 1951 (Exhibit No. GC-50-C, etc.) that It had been Respondent's policy since 1939
to give employees a Christmas bonus each year the Company made a profit, the amount
thereof varying in general according to the Company's profits for the year, and varying in
amount for each employee based on his or her length of service. I conclude that these
year-end bonuses were not gifts, regarding which the Employer need not bargain with the
Union, but were compensation directly related in amount to their tenure and supplementary
to their wages or earnings, and were part of the employees' wage expectancy each year,
and therefore constituted "wages" within the meaning of Section 9 (a) of the Act, and
were a subject encompassed within Respondent's statutory obligation to bargain. See
Nsles-Bement-Pond Company, 97 NLRB 165.
Hotchkiss' announcement at the Monthly Meeting of November 27, 1951, that the Com-
pany was seeking WSB approval for the grant of each of the above benefits was In effect
a unilateral promise of such benefits to employees through the dominated and illegal
Monthly Meeting, at a time when the Union had majority status, and was a further illegal
recognition and support of that labor organization, In violation of Section 8 (a) (2) and
(1) of the Act.
96 Credited testimony of Webber, and Exhibit No. R-2-A.
47 Standard-Coosa-Thatcher Company, 85 NLRB 1358. The fact that Webber asked the
questions to ascertain if these employees could work overtime that day on a vital Navy
job so that material could be ready for inspection the next day, Is no defense to the
interrogation, for its legality does not turn on motivation. See The F. C. Russell Con4-
pany, 92 NLRB 206, and New Jersey Carpet Mills, Inc., 92 NLRB 604. However, I
find no violation in Webber's interrogation of Gritman and Maney, as he did not mention
the Union to them or indicate directly or indirectly that he was seeking information about
their union activity.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent bargain collectively, upon request, with the Union as such representative,
and if an understanding is reached, embody such understanding in a signed
agreement.'a
I have found that Respondent dominated and interfered with the formation
and administration of the Monthly Meeting of All Departments, and has con-
tributed financial and other support to it. That labor organization was func-
tioning at least up through May 1952. I shall recommend that Respondent with-
draw all recognition from the Monthly Meeting of All Departments as the rep-
resentative of any of its employees for the purpose of dealing with Respondent
concerning grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment, and that Respondent completely disestablish
the Monthly Meeting of All Departments as such representative.'9
Considering the nature, extent, and variety of Respondent's unfair labor prac-
tices violating Section 8 (a) (1), (2), and (5) of the Act, I shall recommend
that a broad order issue, requiring Respondent to cease and desist, not only from
the unfair labor practices herein found, but also from in any other manner inter-
fering with, restraining, or coercing employees in the exercise of rights guaran-
teed by Section 7 of the Act.
I shall recommend that the complaint be dismissed insofar as it charges that
Respondent violated the Act by ordering employees not to engage in union
activity at any time on company premises.
Upon the foregoing findings of fact and the entire record in the case, I make
the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, AFL, and the Monthly Meeting of
All Departments are labor organizations within the meaning of Section 2 (5)
of the Act.
2. All production and maintenance employees, and employees of the shipping,
inspection, and heating departments and janitors, employed at Respondent's
plant in Binghamton, New York, but excluding all office and clerical employees,
guards, professional employees, and all supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. International Association of Machinists, AFL, was on September 19, 1951,
and has been at all times since, the exclusive representative of all employees
of Respondent in the unit aforesaid for purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By its refusal to bargain collectively with International Association of
Machinists, AFL, as the exclusive representative of its employees in said unit,
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By dominating and interfering with the formation and administration of,
and contributing financial and other support to, the Monthly Meeting of All
Departments, Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (2) of the Act.
6. By its refusal to bargain with said International Association of Machin-
ists, AFL, its formation and domination of, interference with, and support of
48 To the extent that the election of October 25-26, 1951 , showed any defection of the
employees from the Union, I have found that it was attributable to Respondent' s unlaw-
ful conduct, and cannot therefore serve to bar the usual remedial order issued in cases of
this type. See Rehrig-Pacific Company, supra, and Joy Silk Mills, Inc. v. N. L. R. B.,
supra.
49 The Carpenter Steel Company, 76 NLRB 670.
STOW MANUFACTURING CO. 1313
said Monthly Meeting of All Departments, as well as by other conduct found
above, Respondent has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed to them by Section 7 of the Act, and has
thereby engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our employees that :
WE HEREBY disestablish the MONTHLY MEETING OF ALL DEPARTMENTS as
the representative of any of our employees for the purpose of dealing with
us concerning grievances, labor disputes, rates of pay, wages, hours of em-
ployment, or other conditions of employment, and we will not recognize
said organization, or any successor thereto, for any of the above purposes.
WE WILL NOT dominate, or interfere with the formation or administration
of or contribute financial or other support to any labor organization of our
employees.
WE WILL NOT interrogate our employees regarding their union activities ;
order, direct, or suggest to employees during an organizing campaign of an
affiliated labor organization that they form, join, or assist an unaffiliated
labor organization ; form and establish, or assist, control, or guide the ad-
ministration of such unaffiliated labor organization during such campaign;
bargin collectively or adjust grievances with such unaffiliated labor organi-
gation, or promise or grant wage increases, increased incentive rates,
Christmas bonuses, enlarged vacations with pay, and other economic bene-
fits to employees through such organization, during an organizing cam-
paign of an affiliated labor organization and before a Board-conducted elec-
tion, or while such affiliated organization represents a majority of our em-
ployees in the unit described below; bargain individually with our employ-
ees, or make promises or grants of unilateral benefits to employees, during
such organizing campaign before a Board-conducted election, or while an
affiliated labor organization represents a majority of our employees in the
unit described below ; make antiunion speeches to our employees during
working hours on our premises in the course of an organizing campaign by a
labor organization, without according, upon reasonable request, a similar
opportunity to address the employees to such labor organization against
which such speeches are directed.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS,
AFL, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in other concerted activities for
the purpose of collective bargaining or other mutal aid or protection, and
to refrain from any or all of such activities, except to the exent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL bargain collectively, upon request, with INTERNATIONAL AssoCIA-
TION OF MACHINISTS, AFL, as the exclusive representative of all our em-
ployees in the bargaining unit described below, with respect to rates of pay,
wages, hours of employment , and other conditions of employment, and if
an understanding is reached , embody such understanding in a signed agree-
ment. The bargaining unit is: -
All production and maintenance employees , employees in the shipping,
inspection , and heating departments , and janitors , at our plant in Bing-
hamton, New York, but excluding all office and clerical employees , guards,
professional employees , and all supervisors as defined in the Act.
STOW MANUFACTURING COMPANY,
Employer.
Dated ------------------------------ By ---------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered , defaced, or covered by any other material.
MOE SCHARFSTEIN & PHIL SCHARFSTEIN , D/B/A STEIN-WAY CLOTHING
COMPANY and UNITED TEXTILE WORKERS OF AMERICA, AFL. Case
.No. 10-CA-1380. March 31, 1953
Decision and Order
On January 12, 1953, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices within the meaning of Section 8 (a) (1) and (5) of the Act,
and recommending that they cease and desist therefrom and take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the Respondents and the charg-
ing Union filed exceptions to the Intermediate Report with support-
ing briefs.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial eiror was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
lnediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents, Moe Scharfstein & Phil
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Herzog and Mem-
bers Houston and Murdock].
103 NLRB No. 142.