The Tappan Stove Co.

National Labor Relations Board - Board Decisions

Mar 15, 1946

66 N.L.R.B. 759 (N.L.R.B. 1946)

In the Matter of THE TAPPAN STOVE COMPANY and UNITED ELEC-
TRICAL, RADIO AND MACHINE WORKERS OF AMERICA ( CIO) and TnE
INDEPENDENT EMPLOYEES ASSOCIATION OF THE TAPPAN STOVE COMPANY
(PARTY TO THE CONTRACT)
Ca8e No. 8-C-1649.-Decided March 15, 1946
DECISION
AND
ORDER
On April 27, 1945, the Trial Examiner 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 cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent and the In-
dependent filed exceptions to the Intermediate Report and supporting
briefs. On November 20, 1945, the Board at Washington, D. C.,
heard oral argument, in which the respondent and the Independent
participated.
The Board has reviewed the rulings on motions and on objections
to the admission of evidence made by the Trial Examiner at the
hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions and qualifications
noted below.
The Trial Examiner has found that the Relations Committee of
the TMBA was a labor organization dominated, interfered with,
supported, and assisted by the respondent in violation of Section 8
(2) and (1) of the Act, and that the reorganized Relations Com-
mittee, the Association, and the Independent were continuations of
the Relations Committee of the TMBA. Upon these findings and
the entire record he concluded that the respondent 4Ias violated
Section 8 (2) and (1) of the Act as to the successor organizations
and recommended, inter alia, that the Independent be disestablished
by the respondent. The respondent and the Independent have ex-
cepted to the Trial Examiner's findings and recommendations. They
in effect contend, among other things, that assuming that the Inde-
pendent was a successor to the Relations Committee of the TMBA,
the Trial Examiner's conclusions and recommendations respecting
the Independent are erroneous because the prior domination and
66 N. L. R. B.+ No. 100.
7S9
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assistance was overcome by evidence showing that the Independent
emerged from the transition period as a labor organization freely
designated by the respondent's employees as their bargaining agent.
In support of this contention, the Independent and the respondent
argue that there is no showing that the respondent engaged in inde-
pendent acts of domination, support or assistance with respect to
the Independent or otherwise interfered with the rights guaranteed
its employees by the Act. They also rely upon the evidence showing
that the Independent became a labor organization with a written
constitution, dues-paying membership, and a governing body elected
by and responsible to the membership at large, and that the Inde-
pendent and its predecessors secured to the employees substantial
benefits.
We have carefully considered the above contention, as well as the
other contentions of the respondent and the Independent, and are
satisfied that the Trial Examiner's conclusions and recommendations
are correct. In so'concluding, we rely upon all the findings of the
Trial Examiner and especially upon the circumstances discussed
below.
Absence of fracture. In a situation of this type, our first inquiry
is whether or not the labor organization which purports to act as
the employees' bargaining agent is a successor to or a continuation
of the labor organization dominated and assisted by the employer.
For the effect of an employer's coercion inherent in the maintenance
of a dominated union ordinarily survives the illegal organization.
To dispel this coercive effect, if a succeeding organization is set up,
there must be a complete break or fracture between the two organiza-
tions . No such fracture between the Independent and the dominated
Relations Committee of the TMB A has ever occurred. The Relations
Committee of the TMBA was neyer disestablished by the respondent.'
1 The respondent contends that, assuming that the Relations Committee of the TMBA
was a dominated labor organization , it was disestablished by the respondent on May 13,
1937 , and immediately thereafter. We do not agree. The notice given by the respond-
ent to the committeemen on May 13 was clearly insufficient . The respondent did not un-
equivocally tell the committee that the respondent was completely severing its relation-
ship with the Independent . The respondent's attorpey in substance stated, and com-
mitteemen , to w om this notice was given , understood him to mean that, with certain
operational and personnel changes , the committee could continue to represent the em-
ployees. Indeed , the information which was relayed by these committeemen to their
constituents was to this effect Although no particular form of notice is required under
the Act, yet the notice, to be valid, must unequivocally repudiate the dominated organiza-
tion and be addressed to the employees at large. (Matter of Keystone Steel & Wire Com-
pany, 62 N. L R B. 683; Matter of Western Electric Company, Incorporated, 57
N L. R. B. 1777, enf'd 147 F. (2d) 519 (C C. A. 4), cert. den. 65 S. Ct. 1014) No such
notice was given in the instant case. Nor was the respondent's conduct subsequent to the
meeting of May 13 consistent with its theory of disestablishment Whatever appearance
of neutrality might have arisen from the respondent 's announcement was promptly over-
come by its support to, and encouragement of, the "new" Relations Committee in its
formative period. We find, as did the Trial Examiner, that the Relations Committee of
the TMBA was not disestablished on May 13, 1937, or immediately thereafter.
THE TAPPAN STOVE COMPANY 761
It is also clear that the Independent was not a new labor organization
distinct from the Relations Committee of the TMBA, but was merely
a successor to or continuation of the Relations Committee of
the TMBA.
This successorship is amply demonstrated by the record. Im-
mediately following the respondent's abortive attempt to disestablish
the Relations Committee of the TMBA, its members took immediate
steps to reorganize the committee. Foreman Craig, who was the
chairman of the committee, actively participated in this reorganiza-
tion. With the exception of Chairman Craig and Secretary King,
who resigned from the Committee because of their supervisory
status, and Wilhelm, who replaced Craig as chairman,2 the member-
ship of the "new" Relations Committee remained the same as before.
After these changes, the Relations Committee continued to represent
the employees and handle grievances in the same manner as the Re-
lations Committee of the TMBA had done in the past. Except for
the omission of the words "The Tappan Mutual Benefit Association,"
the name of the organization remained the same. The structure of
the Committee and the method of selection or election of the com-
mitteemen also remained the same. All employees of the respondent,
by virtue of their employee status, could participate in the election
of the committeemen. While the Relations Committee and the Tap-
pan Mutual Benefit Association severed their relationship, the "new"
Committee to all intents and purposes succeeded to all the functions
and rights of the Relations Committee of the TMBA.
In February 1940, the Relations Committee caused to be prepared
and circulated among the employees a constitution changing the
name of the organization from the Relations Committee to the Tappan
Stove Company Association. This constitution was adopted by a
majority of the employees by signing their names thereto. All em-
ployees who signed the constitution then became members of the
Association. That the Association was but a continuation of the
Relations Committee appears from the following : (a) the constitu-
tion of the Association was prepared and adopted at the instance
of the Relations Committee; (b) in its preamble, the constitution
recited that "the Association has been organized and in existence
since 1926 and has been operating under the name of Tappan Stove
Company Relations Committee and without a written constitution,"
and that the reason for the adoption of the constitution was the
desire to formalize the rules and regulations under which it has
7 At the preceding election held in April 1937 , Wilhelm was nominated for the office
of chairman of the Relations Committee of the TMBA, but was defeated by Craig, the
other nominee . Because Wilhelm was the employee who had been nominated to the
office of chairman of the Relations Committee of the TMBA , and had received the next
highest number of votes after Craig , he was asked by Craig and the Committee to assume
the chairmanship in the "new" Committee after Craig's resignation from his office.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been operating; (c) the governing body of the Association retained
the name of the Relations Committee; and (d) after the adoption
of the constitution in February 1940, the committeemen of the Re-
lations Committee remained in office and continued to manage the
affairs of the' Association until the annual election of April 1940.
At this election Chairman Farley and some other committeemen were
reelected.
It is also clear that the Independent was a continuation of the
Association. The Independent came into existence on December 13,
1941, as the result of an amendment to the constitution of the
Association. The amendment, in addition to the change in the name
of the organization, also repealed the above-mentioned preamble to
the constitution, and effected various other changes in the structure
of the organization. The name of the governing body of the organ-
ization, however, remained the same, i.e., the Relations Committee.
That the Independent was not a new organization appears also from
the fact that the chairman of the Association, Farley, and the other
committeemen continued in office and managed the affairs of the
Independent until the annual election in April 1942, at which time
Farley again was elected chairman of the organization. The consti-
tution of the Independent was amended in April 1944. This amend-
ment changed the name of the governing body of the organization
from the Relations Committee to the Executive Committee, and
made other changes in the structure of the organization.
Thus, it is plain, as we have found above, that the Independent
is merely a successor to or continuation of the Relations Committee
of the TMBA, which was dominated and assisted by the respondent
and never disestablished by it.
Assistance to and support of the Independent: Another important
consideration which impels us to reject the contention that the Inde-
pendent became, with the passage of years, an untrammeled, free
bargaining agent is to be found in the circumstance that the Inde-
pendent was the recipient of assistance, which in the circumstances was
unlawful and which belied the respondent's contention that it remained
neutral in the contest between the Independent and the Union. We
refer to the contract of January 17, 1944, between the respondent and
the Independent providing, among other things, for maintenance of
membership in the Independent as a condition of employment.
The circumstances under which this contract was executed were
as follows : Although the Independent and its predecessors, includ-
ing the Relations Committee of the TMBA, had been successively
recognized by the respondent as the representative of its employees
since 1926, none of these organizations became a party to a collective
bargaining contract with the respondent, nor did any of them make
THE TAPPAN STOVE COMPANY 763
any effort to obtain such a contract, until shortly after the Union
began what Farley ( a witness for the respondent who between April
1937 and April 1944. was successively the chairman of the Relations
Committee of the TM BA, the Association and the Independent),
characterized as the "first campaign" or "the first drive that ever
was put on.' 13 During this campaign the Union solicited member-
ships of the employees, distributed its pledge cards, and, on four
or five different occasions, distributed to the employees its handbills
in front of the entrance to the plant. That the campaign was making
progress appears from a remark of Supervisor Durig to employee
Linn 4 in January 1944 that "The reason a lot of [ employees] taken
to the CIO was because the TMBA had become so inactive that it
was dead." In September, while the Union' s campaign for member-
ship was still in progress, the Independent served upon the respondent
its first request for a written contract. The respondent then asked
for proof of the Independent's majority status. Sometime before
December 15 the respondent and the Independent reached an agree-
ment- as to "check" of the Independent's pledge cards by a firm of
accountants. On December 17, the accountants reported to the re-
spondent that a majority of the employees had signed the pledge
cards of the Independent. No mention was made of the dates of
the issuance of these cards. Thereafter, the respondent and the
Independent met on a number of occasions to discuss the terms of
the contract. The terms of the contract were agreed upon and the
contract was signed on January 17, 1944. It is clear that the re-
spondent was aware of the union campaign when it received and
assented to the request of the Independent for a contract. Thus,
Superintendent Lamb testified that he "knew in 1943 that the CIO
was attempting to organize the plant."
From the foregoing, and upon the entire record, we are satisfied
that the respondent and the Independent were influenced in their
decision to enter into a signed agreement by the organizational
activities of the Union, and that the purpose of the contract was
to strengthen the position of the Independent and to frustrate the
organizational attempt of its rival. As stated above, although the
Independent and its predecessors had been recognized as the repre-
sentative of the respondent's employees for nearly 20 years, no col-
lective bargaining agreement was requested or executed until the
Union began its effort to organize the employees. Still more re-
vealing of the respondent's purpose to assist the Independent, in
the circumstance that, pending an organizational campaign by its
8 There is evidence that prior to the summer of 1943 there was some union activity
among the respondent 's employees . Such activity , however, never assumed the proportion
of a campaign or drive.
* 1 mnloyee Linn had joined the Union in September or October 1943.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rival, the respondent agreed to the inclusion in the contract with
the Independent of a provision requiring maintenance of member-
ship in the Independent as a condition of employment. By thus
enhancing the prestige of the Independent and freezing the employees'
union affiliation as of a time shortly after the execution of the con-
tract, the respondent conferred upon the Independent a material
advantage and assisted the Independent in perpetuating its status
as the bargaining representative of the respondent's employees. It
is, furthermore, not without significance that the respondent was
willing, and did in fact, accept as proof of the Independent's majority
status its pledge cards, without first satisfying itself as to whether
these cards were issued prior or subsequent to the Union's campaign
of 1943, or as to their possible duplication by the cards issued to
the Union.
Conclusion: We are convinced that, in the circumstances of this
case, the respondent's attitude and conduct following the reorganiza-
tion of the Relations Committee of the TMBA, and the accomplish-
ments of the Independent in obtaining for the employees substantial
benefits, did not neutralize or overcome the coercive effect of the
respondent's prior domination of the Independent's predecessors and
restore to the employees that freedom of choice which the Act con-
templates. In the absence of the respondent's disestablishment of
the Relations Committee of the TMBA, and in view of the fact that
the Independent was a successor to or a continuation of the Relations
Committee of the TMBA, the employees still could reasonably be-
lieve, despite the respondent's forbearance for a time from acts of
domination or interference, that the respondent favored the Inde-
pendent, as it did its predecessor , the Relations Committee of the
TMBA, and, therefore, be reluctant to repudiate the Independent
and form or join any other labor organization.5 Moreover, by
51n Westinghouse Electric and Mfg. Co . v. N. L. R. B., 112 F. ( 2d) 657 (C. C. A. 2),
aff'd 312 U. S. 660, the Circuit Court of Appeals said :
The theory is that in cases such as this, where an unaffiliated union seems to the
employees at large to have evolved out of an earlier joint organization of employer
and employees , the Board may take it as datum, in the absence of satisfactory
evidence to the contrary, that the employees will suppose that the Company approves
the new, as it did the old, and that their choice is for that reason not as free as
the statute demands.
In N. L. R. B. v. Link-Belt Co., 311 U. S. 584, where it was argued that the subse-
quent conduct of a successor demonstrated its independence , the Supreme Court said :
The Board , however , was not forced to conclude that the subsequent activities of
Independent erased the effects of the employer 's earlier discrimination any more
than it was compelled to believe that the employer's later showing of impartiality
obliterated the consequences of its prior interference with the employees' freedom
of choice . We cannot assume that the employees will be free from improper re-
straints and will have complete freedom of choice which the Act contemplates where
the effect of the unfair labor practices is not completely dissipated.
See also N . L. R. B v. Standard Oil Company, et al, 138 F. (2d) 885 (C. C. A. 2) ;
N. L. R. B v. Southern Bell Telephone and Telegraph Co, 319 U. S 50; Locomotive
Finishing Material Company v . N. L R. B., 142 F. (2d) 802 (C. C. A. 10 ) ; and Sperry
Gyroscope Co., Inc. v. N. L. R. B., 129 F. (2d) 922 (C.-C. A. 2).
THE TAPPAN STOVE COMPANY 765
executing a maintenance-of-membership contract with the Inde-
pendent, at a time when the Union was attempting to organize the
employees, the respondent rendered valuable assistance and support
to the Independent and further demonstrated its approval of the
Independent as the employees' bargaining representative.
Upon the entire record we find, as did the Trial Examiner, that
the respondent dominated and interfered with the formation and
administration of the Relations Committee of the TMBA, the Re-
lations Committee, the Association and the Independent, and con-
tributed support and assistance to them, within the meaning of
Section 8 (2) and (1) of the Act; that the contract of January 17,
1944, between the respondent and the Independent was and is invalid;
arid that the respondent, by discharging James Sposito, Wayne
Kellogg, Frank Wolford, and Donald Heppinger on July 12, 1944,
and thereafter refusing to reinstate them, because of their failure
to maintain membership in the Independent pursuant to the terms
of the contract of January 17, 1944, discriminated in regard to their
hire and tenure of employment, and thereby encouraged membership
in the Independent, discouraged membership in the Union and any
other labor organization, and interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
THE REMEDY
Having found that the respondent has engaged in certain conduct
violative of the Act, we shall order it to cease and desist from en-
gaging in such conduct. We shall also order the respondent, for
reasons hereinafter set forth, not to recognize or deal with any labor
organization unless and until such labor organization shall have
been certified by us as the statutory representative of the employees.
Beginning with the formation of the Relations Committee of the
TMBA in 1926, the respondent has manifested an intent to recognize
and bargain with organizations dominated, interfered with, and
supported by it or their successors. Thus, until May 1937 the re-
spondent recognized and dealt with the Relations Committee of the
TMBA, and successively thereafter with the Relations Committee,
the Association, and the Independent, all of which we have found
to be successors to or continuations of the Relations Committee of
the TMBA. Finally, in 1944 the respondent, by executing a mainte-
nance-of-membership contract with the Independent, at a time when
the Union was attempting to organize the employees, rendered
valuable assistance and support to the Independent in perpetuating
its status as the recognized representative of the employees. Because
of the respondent's persistent predilection for treating with organiza-
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions existing in violation of Section 8 (2) of the Act and thereby
thwarting attempts at self-organization for collective bargaining
among its employees, we are convinced that, in order to protect the
employees' rights guaranteed by Section 7 of the Act, we must order
the respondent to cease and desist from recognizing or dealing with
any labor organization unless and until such labor organization
shall have been certified by us as the collective bargaining representa-
tive of the employees.
As recommended in the Intermediate Report, we shall also order
the respondent to take certain affirmative action designed to effectuate
the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Tappan Stove Com-
pany, Mansfield, Ohio, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
Relations Committee of the Tappan Mutual Benefit Association, the
Relations Committee, The Tappan Stove Company Employees
Association, or The Tappan Stove Company, or any other organiza-
tion of its employees, and from contributing financial or other support
to said labor organizations, or to any other labor organization of its
employees;
(b) Recognizing The Independent Employees Association of The
Tappan Stove Company, or any successor thereto, as the representa-
tive of any of its employees for the purpose of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment;
(c) Giving effect to any and all agreements and contracts, supple-
ments thereto or modifications thereof, or any superseding contract,
with The Independent Employees Association of The Tappan Stove
Company or any successor thereto;
(d) Recognizing or dealing with any other labor organization as
the representative of its employees concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment unless and until such labor organization shall have
been certified by the Board as such representative ;
(e) Encouraging membership in The Independent Employees
Association of The Tappan Stove Company, or any other labor or-
ganization of its employees, and discouraging membership in United
THE TAPPAN STOVE COMPANY 767
Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, or any other labor organiza-
tion of its employees, by discharging any employees pursuant to any
contractual provision requiring, as a condition of employment, mem-
bership in any labor organization which has been established, main-
tained, or assisted by any action defined in the Act as an unfair labor
practice or in any successor thereto, or in any labor organization
which has not been certified by the Board.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from, and completely disestablish
The Independent Employees Association of The Tappan Stove Com-
pany, as the representative of any of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment and refrain from recognizing the Relations Committee of
the Tappan Mutual Benefit Association, the Relations Committee or
The Tappan Stove Company Employees' Association in the event any
of said organizations return to active existence;
(b) Offer to James'Sposito, Wayne Kellogg, Frank Wolford, and
Ronald Heppinger immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges;
(c) Make whole James Sposito, Wayne Kellogg, Frank Wolford,
and Ronald Heppinger, for any loss of pay they may have suffered
by reason of the respondent's discrimination against them, by pay-
ment to each of them of a sum of money equal to the amount which
each normally would have earned as wages from the date of his
discharge to the date of-the respondent's offer of reinstatement, less
his net earnings during said period;
(d) Post at its plant at Mansfield, Ohio, copies of the notice at-
tached hereto marked "Appendix A." Copies of said notice, to be fur-
nished by the Regional Director for the Eighth Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(e) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"APPENDIX A"
NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER
of the National Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, we hereby notify
our employees that :
WE HEREBY DISESTABLISH The Independent Employees Associa-
tion of The Tappan Stove Company as the representative of any
of our employees for the purpose of dealing with us concerning
grievances , labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and we will not recog-
nize it or any successor thereto for any of the above purposes.
WE WILL NOT dominate or interfere with the administration of
any labor organization or contribute financial or other support
to it.
We WILL NOT give effect to any and all agreements and contracts,
supplements thereto or modifications thereof, or any superseding
contract with The Independent Employees Association of The
Tappan Stove Company or any successor thereto.
WE WILL NOT recognize or deal with any other labor organization
as the representative of our employees concerning grievances,
labor disputes , wages, rates of pay, hours of employment, or
other conditions of employment, unless and until such labor or-
ganization shall have been certified by the Board as such repre-
sentative.
WE WILL NOT encourage membership in The Independent Em-
ployees Association of The Tappan Stove Company, or any other
labor organization of our employees, and discourage membership
in United Electrical, Radio & Machine Workers of America.
affiliated with the Congress of Industrial Organizations, or any
other labor organization of our employees, by discharging any
employees pursuant to any contractual provision requiring, as a
condition of employment, membership in any labor organiza-
tion which has been established , maintained, or assisted by any
action defined in the Act as an unfair labor practice or in any
successor thereto, or in any labor organization which has not
been certified by the Board.
WE WILL OFFER to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions without prejudice to any seniority or other rights or priv-
THE TAPPAN STOVE COMPANY 769
ileges previously enjoyed , and make them whole for any loss of
pay suffered as a result of the discrimination.
James Sposito
Wayne Kellogg
Frank Wolford
Ronald Heppinger
THE TAPPAN STOVE COMPANY,
. Employer.
Dated .................... By ..........................
(Representative ) (Title)
NoTE: Any of the above-named employees presently serving in
the armed forces of the United States will be offered full reinstate-
ment upon application in accordance with the Selective Service Act
after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Thomas E. Shroyer , Esq., and Frank L. Danello , Esq., of Cleveland, Ohio,
for the Board.
Maurice F . Hanning, Esq ., of Cleveland , Ohio, and J. H. Gongwer, Esq., of
Mansfield, Ohio, for the respondent.
Mr. Henry Chessin, of Mansfield, Ohio, for the Union.
Daniel E. Bevis , Esq., of Columbus , Ohio, for the Independent.
STATEMENT OF THE CASE
' Upon an amended charge filed on October 23, 1944, by United Electrical,
Radio & Machine Workers of America, affiliated with the Congress of Industrial
Organizations , herein called the Union , the National Labor Relations Board,
herein called the Board , by its Regional Director for the Eighth Region ( Cleve-
land, Ohio), issued its complaint dated October 23, 1944, against The Tappan
Stove Company, herein called the Respondent, alleging that the Respondent
had engaged in and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (2), and (3), and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint and the amended charge, accompanied by a notice of hearing,
were duly served upon the Respondent , the Union, the Independent Employees
Association of The Tappan Stove Company, herein called the Independent.
an organization alleged to have been formed and dominated by the Respondent,
and to be a successor to other organizations and committees which preceded it
in the Respondent's plant.
With respect to the alleged unfair labor practices the complaint, as amended
at the hearing , in substance states that the Respondent : (1) in 1926 initiated,
formed, sponsored , and promoted the Relations Committee of the Tappan
Mutual Benefit Association and thereafter to on or about May 13, 1937 , assisted,
dominated, and contributed support to the Committee; ( 2) on or about May 13,
1937, initiated, formed, sponsored , and promoted the Relations Committee, which
686572-46-50
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was a continuation of and a successor to the Relations Committee of the Tap-
pan Mutual Benefit Association and thereafter to sometime in 1940, assisted,
dominated, and contributed support to that Committee; (3) in 1040, initiated,
formed, sponsored, and promoted the Tappan Stove Company Employees Asso-
ciation, herein called the Association, which was a continuation of and a
successor to the Relations Committee and until sometime in 1941, assisted,
dominated, and contributed support to the Association; (4) in 1941 initiated,
formed, sponsored, and promoted The Independent Employees Association of
The Tappan Stove Company as a continuation of and a successor to the organi-
zations heretofore named and from that date to the present has assisted, domi-
nated, and contributed support to the Independent; (5) on about July 22, 1944,
discharged and refused to reinstate four named employees because they were
members of the Union and were not members of the Independent; (6) pur-
portedly discharged these employees pursuant to an alleged agreement dated
January 17, 1944, which in part provided that all employees must retain their
membership in the Independent, and that the agreement is illegal and void as
it was made with a labor organization assisted by the Respondent and not the
representative of the employees pursuant to Section 9 (a) of the Act; and
(7) by the foregoing acts in its Mansfield plant, has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed to them
in Section 7 of the Act.
The Respondent in its answer dated November 1, 1944, admitted the juris-
dictional allegations of the complaint, and that the Union and the Independent
are labor organizations within the meaning of the Act, but denied that it had
committed any of the alleged unfair labor practices. The Respondent averred,
with respect to the alleged discharge of the four named employees, that the
Independent was a properly designated exclusive bargaining agent of its
employees and that on January 17, 1944, it entered into a contract with the
Independent, which provided for a maintenance of membership with a so-called
"escape clause" ; that the four named employees failed, neglected, and refused,
although members of the Independent, to advise the Respondent that they had
withdrawn therefrom and that thereafter they refused to pay their dues and
maintain their membership in the Independent ; and that subsequently the
Respondent, in accordance with the terms of the contract and at the request
of the Independent, discharged the four named employees.
Pursuant to notice, a hearing was held on November 16, 17, 28, 29, and 30,
1944, at Mansfield, Ohio, before the undersigned Trial Examiner, James C.
Batten, duly designated by the Chief Trial Examiner. The Board, the Respond-
ent, and the Independent were represented by counsel, and the Union by its
representative. All participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all the parties. At the opening of the hearing, counsel
for the Board moved to amend the complaint by deleting therefrom all refer-
ence to the Respondent's Marion plant.' The motion, without objection, was
granted. The Respondent, prior to the taking of testimony, objected to the
Board taking jurisdiction in this proceeding upon the grounds: (1) that there
had been no disruption of interstate commerce at the plant of the Respondent,
'The motion of the Board to amend the complaint by deleting any reference to the
Marion plant was based upon the fact that the plant had been discontinued, all the em-
ployees had been discharged, and the employer-employee relationship had been terminated.
Board's counsel on behalf of the Union also moved to amend the second amended charge,
to delete therefrom any reference to the Marion plant. The undersigned reserved
decision upon this motion. The motion is hereby denied.
THE TAPPAN STOVE COMPANY 771
because of any labor dispute; and (2) that there was no potential interference
with interstate commerce by reason of any dispute of any kind, or any dis-
agreement, or any misunderstanding with any labor organization. The under-
signed overruled the objection and stated that the Respondent would not under
the Rules of the Board be prejudiced by proceeding with the hearing. At the
close of the Board's testimony the Respondent moved for a dismissal of the
complaint. The Independent joined in the motion of the Respondent to dismiss
the complaint. The undersigned denied the motions of the Respondent and
the Independent, insofar as these motions were based upon the grounds that
there was no showing of a disruption of or a potential interference with inter-
state commerce and otherwise reserved decision thereon. At the close of the
testimony the Respondent and the Independent renewed their motions for a
dismissal of the complaint. The undersigned reserved decision thereon and,
except as hereinafter indicated under Section III hereof, the motions are
denied. Also, at this time, Board's counsel moved to conform the pleadings to
the proof as to minor details. Without objection, the motion was granted.
At the conclusion of the hearing the parties informally discussed the issues
herein. Briefs were filed by the Board, the Respondent, and the Independent.
From the entire record thus made and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent, The Tappan Stove Company, an Ohio corporation, with its
principal office and place of business at Mansfield, Ohio, is engaged during
the war emergency in the manufacture of self-assemblies for aircraft and other
war items. During the year 1943, the Respondent purchased raw materials
valued in excess of $2,032,000, practically all of which were shipped to its
plant in Mansfield, Ohio, from points outside that State. During the same
period, the Respondent's total value of production was approximately
$5,900,000, the greater part of which was sold to customers outside the State
of Ohio.
The Respondent admits that it is engaged in commerce within the meaning
of the National Labor Relations Act'
II THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America is a labor organiza-
tion, affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the Respondent.
The Independent Employees Association of The Tappan Stove Company is
an unaffiliated labor organization, limiting its membership to employees of the
Respondent'
Relations Committee of the Tappan Mutual Benefit Association, Relations
Committee, and The Tappan Stove Company Employees Association, unaffili-
ated, were labor organizations which have represented employees of the
Respondent.4
g The facts herein are based upon a stipulation of the parties.
3 The parties stipulated that the Union and the Independent are labor organizations
within the meaning of the Act
4 The undersigned describes these organizations in greater detail hereinafter and finds
that they were labor organizations within the meaning of the Act.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference , restraint , and coercion
While the complaint alleges that the Respondent, since 1935 and before, has
through its officers, agents, and employees, engaged in a plan and continuous
course of conduct which has interfered with, restrained, and coerced its
employees in the exercise of their rights under the Act, there is no so-called
"independent" interference with the rights of the employees under Section
8 (1) of the Act.5 The unlawful conduct of the Respondent, hereinafter found
to be a violation of the Act, is directly related to the issue of the Respondent's
interference with the rights of the employees through the formation and
domination of certain labor organizations. In the interest of brevity and
orderliness these activities of the Respondent will be developed in the dis-
cussion of the Respondent's denial to the employees of their rights to self-
organization and to form, join, or assist labor organizations.
B. Organizational sequence of events
1. In 1926, the Respondent, by means of the formation of the Relations Com-
mittee of the Tappan Mutual Benefit Association, initiated in its Mansfield
plant an organization which functioned as a labor organization.
2. On May 13, 1937, the Respondent notified the Relations Committee of the
Tappan Mutual Benefit Association that the Respondent, in order to comply
with the Wagner Act, would withdraw support from the Committee.
3. On May 28, 1937, the organization of a Relations Committee was
completed.
4. In 1940, The Tappan Stove Company Association was organized, whicn
continued the Relations Committee as the governing body of the Association
5. In 1941, The Independent Employees Association of The Tappan Stove
Company was organized. Until the spring of 1944, it continued the Relations
Committee as the governing body of that organization.
6. In the spring of 1944, The Independent Employees Association of The
Tappan Stove Company, revised its constitution, which made no mention of
a, Relations Committee, but substituted therefor an Executive Committee.
7. On January 17, 1944, after recognition by the Respondent as the exclusive
bargaining agency for all employees, except molders,° The Respondent entered
into a contract with The Independent Employees Association of The Tappan
Stove Company, which provided, among other things, for maintenance of mem-
bership in the Independent as a condition of employment.
8. On July 22, 1944, the Respondent discharged four employees, pursuant to
the maintenance of membership clause of the contract.
5 The Board concedes this fact, except for one or two isolated instances.
6 For 35 years the Respondent, as a member of the Stove Manufacturers Association,
has recognized the International Molders Union (A. F L ) as the representative of the
molders employed in the foundry . The parties are agreed that the status of the molders
is not in issue herein. The Independent and the Union have neither solicited the
molders to join their organizations nor received them into membership.
THE TAPPAN STOVE COMPANY 773
C. Domination and interference with the formation, administration of, and
contribution to labor organizations ; the Relations Committee of the Tappan
Mutual Benefit Association , the Relations Committee, The Tappan Stove
Company Employees Association , and The Independent Employees Associa-
tion of The Tappan Stove Company '
1. Origin of the Relations Committee ; its structure and administration
In 1926 ,8 the Tappan Mutual Benefit Association of The Tappan Stove Com-
pany, hereinafter called the TMBA , originally organized and incorporated on
September 14, 1895, to alleviate distress among its members, was reorganized
and revitalized . The constitution and bylaws as revised on April 30 , 1926, and
presently in effect provide that "Any person 9 in the employ of The Tappan
Stove Company , between the ages of 16 and 50 , and who at the time is actually
at work , shall be eligible to membership upon petition to the Board of Direc-
tors * * *" This document also provides that the Board of Directors of
the TMBA may appoint such committees as they deem necessary and prescribe
their qualifications and duties . In accordance with this provision the Board
of Directors established six committees : Safety, Fire Prevention , Recreation,
Improvement , Loss and Waste and Relations Committee . One of the reasons
for the reorganization of the TMBA and the formation of these committees,
was to provide the employees , in addition to the benefit features , with an
organization capable of handling all problems arising in the course of their
employment in the plant In this proceeding, the functions and duties of the
first five committees, above named, are not in issue.
The question as to the status of the Relations Committee of the TMBA
arises through the fact that the Board contends it is a labor organization,
unlawful in nature and the predecessor of the Relations Committee , The Tap-
pan Stove Company Employees Association , and The Independent Employees
Association of The Tappan Stove Company. The Respondent asserts that the
Relations Committee of the TMBA was not a labor organization, and that if
it is found to be such , it was not dominated by the Respondent . The Respond-
ent further asserts that , in any event , the Committee was completely disestab-
lished on May 13, 1937.
The facts concerning the origin of the TMBA in 1895, due to the lapse of
time and incomplete records, are not clear . While it cannot be said that the
Respondent originated the idea of such an organization , it is clear that from
the beginning and at all times material herein , the Respondent 's officers, man-
agerial staff, superintendents, foremen, and supervisory employees were eligible
for membership in and members of the TMBA . In 1926 when the TMBA
was reorganized , members of the managerial and supervisory staff were in
attendance at the annual meeting, which approved of the proposed reorgani-
zation including a Relations Committee. The Relations Committee was com-
posed of seven employees . The chairman was elected by the members,
T The findings of fact herein, unless otherwise indicated, are undisputed and supported
by credible testimony.
8 Although July 5, 1935, was the effective date of the Act, the Respondent' s activities
prior thereto are relevant to a consideration of its subsequent acts. The undersigned
finds that the Respondent 's activities prior to July 5, 1935, did not constitute unfair
labor practices . See N. L. R. B. v. Falk Corp , 308 U. S. 453, 460.
9 Lamb, Superintendent of the plant since 1930, and secretary of the TMBA from 1926
to 1930, testified that the Respondent 's officers , foremen, and supervisory employees were
eligible for membership in TMBA, and as members attended the annual meetings, held
for the purpose of electing the officers and Board of Directors of that organization
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including managerial and supervisory employees, at the annual election held
In April each year; the six other committee members were in the beginning
selected by the chairman, one from each of the six voting groups that had
been defined in the TMBA constitution for the purpose of electing its Board
of Directors. This method of selection was later changed to provide for the
election by the employees in each voting group, of a member of the committee
to represent them. Managerial and supervisory employees, at times, were
elected either as chairman or members of the committee. Superintendent Lamb
testified that "the whole purpose of the committees at the start was to give
the employees an opportunity to have a voice in whatever they wanted to do
about their working conditions * * *"
The Relations Committee, in exercising its functions as the representative
of the employees in the Respondent's plant, at regular intervals met with
representatives of the Respondent to discuss grievances that had arisen in the
various departments.1° The Relations Committee, in the presentation of griev-
ances to the Respondent at these meetings, discussed wages, hours, and working
conditions. Whether this relationship is termed dealing, requesting, recom-
mending or a form of cooperation, the employees through this form of repre-
sentation were able to present and adjust these matters, all basic factors,
commonly accepted as an essential part of the duties of labor organizations.
An important incident, details of which are related below, that indicates that
the Respondent considered the Relations Committee functioned, in part at least,
as a labor organization, occurred on May 13, 1937, when it notified the Rela-
tions Committee of the TMBA that the Respondent, because of the Act, would
discontinue the relationship theretofore existing between it and the Committee.
The evidence is conclusive that the Relations Committee of TMBA was formed
and functioned for the purpose of "dealing with employer" within the meaning
of Section 2 (5) of the Act.
The undersigned finds that the Relations Committee of the TMBA was a
labor organization within the meaning of the Act: Section 2 (5) defines the
term labor organization as "any organization of any kind or any agency or
employee representation committee or plan in which employees participate and
which exists for the purpose in whole or in part of dealing with employers
concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment or conditions of work." 11
10 The Respondent asserts in its brief that "The function of this Committee was to
Improve relations between the Company and employees," and "As a national incident, the
committee presented grievances to the company." In this connection Respondent asserts
that no one ever authorized the committee "to act as a collective bargaining agency,"
that It could only "recommend," "request," and "suggest." The undersigned rejects this
latter assertion. See footnote 11, infra.
It The Respondent, In its brief, contends that the Relations Committee did not exist foi
any of the purposes defined in the Act, but for the purpose of "promoting filendly re-
lations between the employees and the employer, and the welfare of the employee " In
the brief, the Respondent lays particular stress upon the fact that there was no "deal-
ing" in the relationship, for the reason that this word implies a "process of bargaining."
The fact that the Relations Committee did not actually function as a bargaining agency
is immaterial to a consideration of the undersigned' s findings that the Committee was
a labor organization, for a contention similar to that advanced by the Respondent was
rejected in the case of N. L. R. B. V. J. Freezer ct Sons, Inc., 95 F. (2d) 840, 841
(C. C. A. 4), in which the Court enforced the disestablishment of an organization al-
though there was no evidence according to the Court that it " has ever functioned as a
bargaining agency." To the same effect is N . L. R. B. v. Wallace Mfg. Co., 95 F. (2d)
818 (C. C. A. 4) Indeed, a mere unsuccessful attempt to set up a labor organization
has been held to violate Section 8 (2) of the Act. N. L. R. B. v. Crystal Spring Finish-
ing Co., 116 F . ( 2d) 669 (C. C. A. 1 ). The undersigned rejects the Respondent's con-
tention that the Relations Committee was not a labor organization.
THE TAPPAN STOVE COMPANY 775
The evidence is undisputed that managerial and supervisory employees were
members of the Relations Committee of the TMBA12 and that from time to
time such employees voted in the elections for the purpose of selecting the
members of the Committee; that the Committee held its meetings on the
Respondent's premises and were paid for the time spent in Committee activi-
ties; and that the Committee used without charge the Respondent's facilities
such as paper, typewriters, telephones, and meeting rooms."
The Relations Committee of the TMBA operated, as heretofore described,
in the Respondent's plant for almost 11 years and for the period from July 5,
1935, the date of the passage of the Act, to May 13, 1937, without any change
in its functions or structure.
In view of all the foregoing facts and the record in its entirety, the under-
signed finds that the Respondent, since July 5, 1935, dominated and interfered
with the administration of the Relations Committee of the TMBA and con-
tributed financial and other support to it, thereby interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed them in
Section 7 of the Act.
2. The meeting of May 13, 1937; purported disestablishment of the Relations
Committee of the TMBA
On May 13, 1937, the Respondent called a meeting of the Relations Committee
of the TMBA and several management representatives, for the purpose of
having Veach, an attorney, explain the Wagner Act. The Committee was
represented by Foreman Craig and employees Pollack, Wentland, Huffman,
Marker, Gray, and Gross," the Respondent by President R. P. Tappan, A. P.
Tappan, Superintendent Lamb, and Attorney Veach.
Superintendent Lamb testified that Veach, in his talk, stated that the Re-
spondent, at that time, could have no further dealings with the Committee ;
that it would have to hold committee meetings and elections outside the plant;
and that the Committee was now "entirely on their own." Lamb, who also
attended a later meeting at which Veach spoke to the supervisory employees,
testified that, at this meeting, Veach explained the Wagner Act and stated
during the course of his remarks that "the Company could have no further
dealings with the Relations Committee as it was at that time." Foreman
Craig, who attended the meeting as chairman of the Committee, testified that
Veach, in explaining the Act, told the Committee that employees closely con-
nected with the Respondent were not "eligible to act on this committee" ; that
the Respondent could not contribute to or support the Committee ; and that
"the Company couldn't have anything to do with [the Committee] as it [then]
existed." Committeeman Pollack testified that Veach, in the course of his
talk, stated that, "[the Company] could deal with the Relations Committee as
12 For instance, Foreman Craig and Assistant Treasurer Ring were, respectively, chair-
man and member of the Committee in 1937, and as hereinafter related, resigned from
the Committee because of their managerial and supervisory status.
13 Employee Eichof, a witness called by the Respondent, testified that he was told by
a committee member in May 1937 :
That we had-according to the Wagner Act we had to make a new set-up, some-
body that acted for the employees, and it couldn't be controlled by the Company,
and a lot of people at that time May 13, 1937] had that feeling that the Relations
Committee was controlled by the Company
14 Assistant Treasurer King , a member of the Committee, was represented by Gray,
who later, when King resigned from the Committee because of his managerial position,
was selected to replace him.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long as [the Committee] came to the Company with a grievance or something
they could meet us on the Company property," but that the Committee would
have to hold its meetings outside the plant. Committeeman Gray, according
to his testimony, recalled that Veach told the Committee that, "[the Committee]
couldn't have any more of [its] meetings in the shop, and that the Management
wouldn't have anything to do with the committee at all." Gray further testi-
fied that he understood this statement to mean that the Respondent would
continue to meet with the Committee in the plant to take up grievances, if the
'Committee held its meetings outside the plant. Committeeman Gross testified
that Veach in his talk said that the Committee would have to "function differ-
ently under a new name." Committeeman Huffman, according to his testimony,
understood Veach to say that, "[the Committee] had to hold all [its] meetings
outside the shop from then on," and that there would have to be a "new
committee." 16
The undersigned, upon the basis of the testimony of those who attended the
meeting, concludes and finds that the Respondent did not, although it contends
otherwise, unequivocally tell the Relations Committee of the TMBA, on May 13,
1937, that it was completely severing the relationship theretofore existing
between it and the Committee. The undersigned further finds that the Com-
mittee understood from the remarks made at the meeting that the Committee
with certain operational and personnel changes could, under the Act, continue
to represent the employees.
The Respondent contends that at the May 13 meeting the committeemen
were instructed to tell the employees in their respective departments that the
Respondent would no longer meet or confer with the Committee and that any
organization representing the employees must meet off the Respondent's prop-
erty. The evidence does not convince the undersigned that such instructions
were given at the meeting; however, Foreman Craig testified that he, as chair-
man of the Committee, requested the committeemen to convey the information
to the employees that, "the Company couldn't have anything to do with [the
Committee] as it existed." Craig also testified that he so advised the employees
he represented, but he could not say whether the other committeemen did so
Pollack testified that he did not recall being requested by the Respondent
to advise the employees that it could no longer deal with the Relations Com-
mittee, but that he did explain to the employees he represented that, "accord-
ing to the Wagner Act, the Relations Committee had no more to do inside the
factory, nothing-we could do nothing inside the factory gates on new business,
carry on anything inside the factory, anything that we did had to be did out-
side." Gray testified that he talked to the employees in his department and
told them that the Relations Committee should continue, but that it would
have to hold its meetings outside the shop Gross testified that although
Veach did not instruct the Committee to report his talk to the employees, he
did discuss the matter with a few of them and stated, "that this organization
[the Committee] can't function the way it did before " Some of the other
committeemen spoke to the employees in their department, but the number
of employees contacted were few and the information given certainly did not
lead the employees to believe that the Respondent's relationship with the
Committee was ended.
From the above, the undersigned finds that the employees were not advised
by the committeemen that the Respondent's relationship with the Relations
15 Wentland, a member of the Committee who attended the meeting, did not testify, and
Marker, a committeeman who attended the meeting, died shortly before the hearing.
THE TAPPAN STOVE COMPANY 777
l'oiniuittee had been discontinued or that it would refuse to further deal with
the Colninittee.
The Respondent contends that "the Relations Committee was thoroughly
disestablished on May 13 , 1937 and immediately thereafter ." The undersigned
rejects this contention , in view of the above findings and for the additional
reasons that the Respondent did not , by a statement of any managerial or
supervisory employee , or by written notice or otherwise , convey directly to the
employees as a whole , its intention no longer to recognize the Committee, or
to meet with its representatives . 16 As later events will show, the Committee,
after the resignation of Foreman Craig and Assistant Treasurer King, con-
tinued, with recognition from the Respondent , to represent the employees.
3. The reorganization of the Relations Committee
On May 13, 1937, the Relations Committee " of the TMBA, following the
talk by Veach, "retired to another assembly room" and with Foreman Craig
in charge, decided to circulate a petition for the signature of the employees
who desired to accept the "Relations Committee" as their representative.
The petition was as follows :
We, the undersigned, designate and appoint the Relations Committee
named below and select them as our representatives for the purpose of
collective bargaining with the Tappin Stove Company for the period of
one year. If any member of this committee ceases to serve for any reason
the next highest man in his department at the last election will auto-
matically take his place."
Prior to May 28, 1937, the date of the next meeting of the Committee, Fore-
man Craig and Assistant Treasurer King resigned from the Committee for the
reason that they were too "closely connected with the Company" and Craig
personally solicited Wilhelm," an employee who had been the unsuccessful
candidate for chairman in the April, 1937 election , to succeed him and Wilhelm
accepted membership on the Committee as Its chairman . The record is not
entirely clear how Gray was chosen to succeed King. On occasion, however,
Gray had represented King on the Committee. In any event Gray, although
ie The Board and the Courts have frequently held that an employer is not compelled to
follow any "ritualistic" form of notice ; however, they have consistently required that
the employer notify, directly, the employees as a whole.
In Western Electric Company, Incorporated v. N. L. R. B., 147 F. (2d) 519 (C. C. A
4), the Court said :
No particular form of notice is required under the Act, yet any notice, to be valid,
must constitute actual notice of the true situation, and not a statement of half
facts from which many inferences might well be drawn.
Assuming, arguendo, that the Respondent did on May 13, 1937 notify the committee-
men and through them the employees that it would no longer have any dealings
with the Committee, the Board has found in the Matter of Western Electric Com-
pany, Incorpor ated, 57 N. L. R 13. 1177, that such second-hand notice "lacked the
sanction and authority which attach to pronouncements of an employer concerning
employees." In any event, indirect and inadequate notice is not sufficient to eradi-
cate completely the effect of domination over an organization, nor does it indicate a
complete abandonment of the old, and a distinct beginning of the new. See N. L
It B. v. Moore-Loacry Flour Mills Co, 122 F. (2d) 419; and N. L. R. B V Con-
tinental Ott Co, 121 F. (2d) 120
"According to the minutes of this meeting, Foreman Craig presided and in attendance
were Pollack, Wentland, Gross, Huffman, Marker, and Gray, the latter apparently repie-
sentmng King.
Is This petition was never circulated among the employees.
Is Wilhelm, a year or so prior to 1936, had been a member of the Committee, to com-
plete the unexpired term of an employee who had left the Company.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not elected by the employees, attended the meeting as a member of the Com-
mittee and later became its Secretary. Thus the Relations Committee, after
the resignation of Craig and King, was constituted entirely of employees who
had been, prior to May 13, 1937, members of the Relations Committee of the
TMBA.
On May 28, 1937, the Relations Committee, composed of Pollack, Wentland,
Huffman, and Marker," who had been elected by the employees at the annual
TMBA election in April 1937, for a term of one year, and Wilhelm and Gray,
who had been selected to replace Craig and King, held a meeting at a cafe
near the plant. Also present at the meeting as ex officio members were Foreman
Craig and Assistant Treasurer King. The minutes of this meeting indicate
that Wilhelm and Gray were elected, respectively, chairman and secretary,
although the evidence supports the conclusion that they had already been
selected for these positions and that the election by the Committee was a
mere formality.
The minutes disclose that the "lists circulated May 13" were tabulated show-
ing that 180 employees had signed and that this represented a majority of the
employees then working in the plant 21 The Committee, after the tabulation,
adjourned to the "factory" for a conference with President Tappan, At this
conference "general matters" were discussed, including the "report" that some
of the men wanted a "chartered employee union." Tappan offered no objection
to this suggestion, if a majority wanted such an organization.
The Relations Committee of the TMBA, which had been elected at the
annual meeting of the TMBA in April 1937, with Wilhelm and Gray replacing
Foreman Craig and Assistant Treasurer King, continued to function as a
Relations Committee until April 1938.12 For 11 months, after May 1937, the
date upon which the Respondent contends it disestablished the Committee, At,
continued to operate in the plant, with recognition from the Respondent and
composed of employees all of whom had prior to that date been committeemen
on 29 the Committee existing prior thereto. In the minds of the employees and
the Respondent the Relations Committee was unchanged in its structure and
functions.
The Relations Committee, except for changes in personnel, continued to
function in the Respondent's plant until sometime in the early part of 1940.
During the period from May 13, 1937 to early In 1944, Superintendent Lamb,
who since 1930 had dealt with the Committee as the Respondent's representa-
tive, took it for granted the Committee represented the employees as it had
in the past and continued to handle grievances with it under the same pro-
20 Gross, who was a member of the Committee, left the employment of the Respondent
on or about May 20 and thereafter did not participate in Its activities.
21 The evidence with respect to the circulation of "lists" among the employees Is con-
flieting. Wilhelm, who succeeded Craig as chairman of the Committee , testified that
there was no election, after May 13, in which the employees voted to select a Relations
Committee ; that he could not recall any petition being circulated for that purpose ; and
that there was no election at which the employees selected him as chairman of the Com-
mittee. The undersigned is convinced, however, that some of the Committee members
solicited the signatures of many of the employees. Whether the employees signed blank
sheets of paper or a petition similar to the one proposed in the Committee meeting of
May 13, is found hereinafter to be immaterial to a determination of the issue herein.
However, some of the Committee members solicited the employees to sign a paper of
some sort and undoubtedly 186 signatures were obtained.
"The record discloses that after May 13, 1937, no action was taken by the TMBA, Its
Relations Committee, or the Respondent to notify the employees that the Committee was
no longer a part of or associated with the Tappan Mutual Benefit Association.
++ The undersigned rejects the assertion of the Respondent and the Independent that
the Relatigps Committee after May 13, had been elected or selected by the employees.
THE TAPPAN STOVE COMPANY 779
cedure existing prior to May 13, except that the meetings and elections of the
Committee were held outside the plant . It is unnecessary here to again set
forth the internal structure or procedure of the Relations Committee, which
has heretofore been covered. It is sufficient to say that except for holding its
elections and meetings outside the plant, it made no other changes after May 13,
1937. The Respondent continued as theretofore to pay the members of the
Committee for time spent in conferences with representatives of the Respond-
ent, in the discussion of grievances and other matters.
From the foregoing and from the record in its entirety, the undersigned
concludes and finds that the Relations Committee as it existed subsequent to
May 13, 1937 was a continuation of the Committee existing prior thereto, and
that in the minds of the employees and the Respondent, the Relations Com-
mittee was unchanged in its structure and functions.
The undersigned is of the opinion and further finds that the Respondent,
under the circumstances hereinbefore related, continued after May 13, 1937,
to dominate and interfere with the administration of the Relations Committee.
4. The Relations Committee of the Association and the Independent
In the annual election of April, 1939, Farley, an employee , was elected chair-
man of the Committee in place of Wilhelm who refused to continue longer in
that position. The Relations Committee, shortly after Farley took office for
the first time since its organization in 1926, provided for the issuance of mem-
bership cards and the payment of dues. In several of the monthly meetings
of the Committee in the fall of 1939, there was some discussion about the
advisability of having the Committee function under a constitution and bylaws
In December 1939, Farley was authorized to obtain legal advice concerning the
advisability of the preparation of a constitution to govern the Committee. Th'^
record does not disclose the names of the six members elected to serve with
him on the Committee for the ensuing year; however, Farley testified that
some of those who had served the preceding year were reelected . At the annual
meeting following the election, there was some discussion of the need for a
formal organization , since to accomplish this purpose, funds would be needed ;
it was decided to collect dues of 500 a year from the employees. Several paid
their dues at the meeting. Farley testified that by the payment of dues, the
employees became members of the Relations Committee," but that non-payment
did not bar the employees from participation in the Committee's activities.
The Committee, at its monthly meetings, during the summer and fall of 1939,
discussed "some way of getting our organization permanently set up into
something that we could read and present it to each other and know what
we had." In January, 1940, the Committee authorized Farley to employ an
attorney to prepare a constitution. Parley engaged an attorney and told him
of the history and operations of the Committee. The first draft prepared by
the attorney was unsatisfactory to the Committee and it suggested to him
several changes that should be made. When the constitution had been revised
the Committee approved the document.
The significant features of the constitution are as follows :
Preamble: Whereas, The Tappan Stove Company Employees Association
has been organized and in existence since 1926 and has been operating
24 Prior to this time all employees , except supervisory employees , after May 13, 1937,
and molders , were by virtue of their employment with the Respondent or membership
in the TMBA , entitled to vote in the elections conducted to select the Chairman and the
members of the Committee.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during all of said time under the name of The Tappan Stove Company
Relations Committee and without a written constitution ; and whereas the
membership of said Association believe that it would be to the best interest
of said Association to have rules and regulations under which said Asso-
ciation has been operating during said period of time, written into a formal
constitution.
Name: The Tappan Stove Company Employees Association.
Membership : Any employee, except officers, directors, superintendents,
foremen and supervisors of the Respondent, may become a member, by
signing the Constitution and paying dues of $1.00 per year.
Officers and Committees : The governing body of the Association is the
Relations Committee consisting of twelve members, 11 of whom were
elected and representgd a defined group in the plant and the remaining
member, who was the chairman, was elected by the employees as a whole.
The Committee selected the Vice-chairman, Secretary and Treasurer.
Meetings : The annual meeting and only regular meeting of the members
of the Association was held in April each year. Special meetings may be
called only by the Chairman or by two members of the Relations
Committee.
The Relations Committee was required to hold at least one meeting a month
and special meetings "may" be called by the chairman or by two members
of the Relations Committee.
In February 1940, the various members of the Relations Committee stationed
themselves at the plant gate outside the Respondent's property and solicited
the employees to sign the constitution. Within two or three weeks, 476
employees had signed the constitution and by signing became members of the
Association? Although the Relations Committee now became the Association
at least in name, Farley and the other members who were elected in April 1939,
continued in office and became, without an employee election, the Relations
Committee of the Association
The undersigned is convinced from the foregoing and finds that the members
of the Relations Committee who approved the constitution for an organization
that had been "in existence since 1926", believed that the Committee had
been in continuous existence since that date and that the constitution merely
formalized, under a new name, the "rules and regulations under which it had
been operating for approximately 14 years."
At the annual elections in April of 1940 and 1941, Farley and some of the
other members of the Committee were reelected. These elections were held
outside the plant, at a hall rented by the Committee for that purpose.
Shortly prior to December 13, 1941, Chairman Farley and Secretary Ginnever
of the Relations Committee, issued a general notice to the employees, that there
would be a special meeting of the Association on that date to consider amend-
ments, set forth in the notice, to the organization's constitution 2'
The proposed amendments were approved at the meeting, held on December
25 The employees ii ho signed the constitution in the opinion of the undersigned were
fully aware of the fact that the document pertained to the Relations Committee , particu-
larly for the season that it was circulated by persons well known to be members of that
Committee, and for the additional compelling reason that the Respondent had not, as yet,
notified the employees generally that it had severed relations with the Committee. Fur-
ther the employees had had no advance notice of the Committee' s proposal for a consti-
tution and certainly few, if any, took the time, either upon reporting for work or leaving
the plant to read the document, which they signed.
ix The record fails to disclose how the notice came to the attention of the employees
or to what extent they were familiar with the proposed amendments , before the meeting.
THE TAPPAN STOVE COMPANY 781
13, 1941, at Liberty Park . The important changes provided that the new name
of the organization would be The Independent Employees Association of The
Tappan Stove Company ; n that the Relations Committee could , without the
approval of the members , adopt bylaws for the government of the organization ;
that special meetings of the members could be called upon a petition of 25
members ; and that members signing the amended constitution represented that
they were not members of any other organization which represents or seeks
to represent the employees , or if so, that the employee , upon signing withdraws
from any such organization . The constitution as amended , retained the pro-
vision that the Relations Committee was the governing body of the Independent
and that, except for the chairman , the Committee selected the officers.
The Committee , within 3 or 4 weeks after the meeting , obtained the signa-
tures of 458 employees to copies of the amended constitution , under the same
circumstances and in the same manner , as set forth above, when signatures
were obtained to the original constitution.
At the annual elections in April of 1942 and 1943 , Farley was reelected
chairman of the Relations Committee , which was not only the governing body
of the Independent , but was in fact as far as the Respondent knew, the repre-
sentative of the employees .' Thus Farley, who succeeded Wilhelm , was chair-
man of the Relations Committee from May 1939 to April 1944.
Farley testified that during his 5 years ' tenure as chairman of the Com-
mittee he did not notify the Respondent of the changes in the name of the
organization or that he was representing any organization , other than the
Relations Committee. The Respondent continued , during Farley 's tenure, to
recognize the Relations Committee as the representative of its employees and
dealt with the Committee concerning grievances , wages, and working conditions.
Superintendent Lamb , who represented the Respondent in most of its dealings
with the Committee, testified that he heard something about an Association
or Independent , but the Relations Committee continued , as it had since 192e,
to present to him grievances and matters pertaining to wages and working
conditions "the same as before ." The testimony of many witnesses-employees
and representatives of the management-indicates that through the years the
Relations Committee , as it functioned in the plant, no matter what the name
of the organization was, was referred to by them as the Relations Committee.
In the opinion of the undersigned, the most significant fact in the various
changes, which in general were only in the name of the organization, was
that on each occasion the action was suggested by the Committee , who secured
the approval of the employees to the change and thereafter , without a new
election, remained in office until the following annual election. To summarize:
on May 13 , 1937, subsequent to the Respondent 's purported disestablishment
of the Relations Committee of the TMBA , the Committee , elected in April 1937,
except for Wilhelm who was selected by Foreman Craig to replace him, con-
tinued in office for about 11 months ; in February 1940 , after the constitution
had been approved , the Committee , including Farley as chairman , which had
been elected in April 1939, continued in office for about 2 months; and in
December 1941, after the amended constitution changing the name to the Inde-
pendent, had been approved, the Committee , Including Farley as chairman,
which had been elected in April 1941, continued in office for about 5 months.
s'+ This is the name of the organization presently in the Respondent 's plant.
sa Since the adoption of the original constitution in February 1940, the Relations Com-
mittee managed and conducted the business and affairs of the Association and the Inde-
pendent and acted for those organizations in their relationships with the Respondent.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As heretofore related , Farley was reelected as chairman at the annual elec-
tions In April of 1942 and 1943.
In February or March 1944 , Farley appointed a special committee of the
Independent to make a study of the need for a revision in the constitution of
the Independent . It recommended several changes that would give to the
members a greater voice in the affairs of the organization , including the dis-
continuance of the Relations Committee as the governing body of the
Independent.
On April 6, 1944, the members voted in an election conducted at a filling
station near the plant, whether or not they favored the adoption of the revised
constitution. The members, by a vote of approximately 300 to 45, approved
the revised constitution . The changes In the constitution became effective a
week or so before the annual meeting and election held the latter part of April
and the election was conducted under Its requirements. The important changes
in the constitution provide that the business and affairs of the Independent
shall be managed by an Executive Committee, composed of a chairman and
six members , all elected by secret ballot by the members generally ; that the
various groups or divisions designated by the Committee , shall elect by secret
ballot an employee to serve as their representative ; that in addition to the
nominees proposed by the nominating committee, the employees by petition of
25 members may have the name of any member placed upon the ballot for
any elective position ; that regular meetings for members shall be held quar-
terly ; and that a grievance procedure will be followed, which provides for
the group representative to adjust grievances directly with the foreman, and
if a satisfactory settlement cannot be effected , then the representative shall
take the matter up with the superintendent. The procedure also provides that
if the representative cannot settle the matter, the Grievance Committee of the
Independent, shall then adjust it with the management; and that collective
bargaining shall be conducted by the group representatives and Executive Com-
mittee. The duties of the Executive Committee were similar to those of the
Relations Committee , the former governing body of the Independent.
In the April 1944 election, Kohler, a pattern maker, a member of the com-
mittee that negotiated a contract with the Respondent, which was effective
January 17, 1944, which contract, as hereinafter found, was invalid because
made'with an organization dominated by the Respondent , and a member of the
special committee to revise the constitution, was elected chairman of the
Independent. While the record is rather barren of details concerning the
functioning of the Independent after he assumed charge on May 1, 1944,
it is clear that after April 1944, the Independent continued to deal with the
Respondent In substantially the same manner as heretofore related and with
procedure for the adjustment of grievances unchanged. The Independent sub-
sequent to April 1944, continued to carry out the terms of the January 17, 1944,
contract and accepted the benefits of that document. In fact, as hereinafter
related, the Respondent at the request of the Independent discharged several
employees who failed to pay dues to the Independent in accordance with the
terms of the maintenance of membership clause of that contract. It is plain,
and the undersigned finds from the above, that the Independent after April
1944, received from the Respondent assistance and support.
In view of all the foregoing facts, the undersigned finds that the Relations
Committee, prior to February 1940, and after it became in name the Association
and the Independent , was in fact , a continuation of the Relations Committee
of the TMBA, organized in 1926.
THE TAPPAN STOVE COMPANY 783
The undersigned further finds that under the above facts and the record in
its entirety, the Respondent dominated and interfered with the formation and
administration of the Relations Committee, the Association, and the Independ-
ent, and contributed support and assistance to them, thereby interfering with,
restr) .ining, and coercing its employees in the exercise of the rights guaranteed
in Section 7 of the Act.-
D. The contract of January 17, 1944; the discharges under its terms
Although the Respondent had since 1926 dealt with and recognized the
Relations Committee as the representative of its employees, it was not until
January 17, 1944, that a written contract was consummated'°
The Respondent, according to the contract, recognized the Independent as
the exclusive bargaining agency for all employees except molders, supervisory,
pay-roll department, rate department, and personnel department employees, or
any confidential salaried employees.
With respect to the contract, the undersigned finds that it is invalid because
made with a labor organization, heretofore found to have been dominated and
interfered with by the Respondent and that the contract was an element of
assistance to that organization.
The contract provided that all employees who were members in good stand-
ing on January 17, 1944, as a condition of continued employment in the plant,
should remain members in good standing, but that present members should
have 15 days from January 17, 1944, to decide if they wished to remain
members.
On July 22, 1944, the Respondent, at the request of the Independent and in
accordance with the maintenance-of-membership clause of the contract, dis-
charged James Sposito, Wayne Kellogg, Frank Wolford, and Ronald Heppinger.
These persons were members in good standing in the Independent on January
17, 1944. It is conceded that although they knew of the 15-day escape clause.
they did not take advantage of it and that they refused after May 1944, to
pay their dues in the Independent, to maintain membership therein as a condi-
tion of continued employment in Respondent' s plant.
The undersigned finds that by discharging James Sposito, Wayne Kellogg,
Frank Wolford, and Ronald Heppinger on July 22, 1944, and thereafter refusing
to reinstate them because of their failure to maintain membership in the
Independent pursuant to the terms of the contract of January 17, 1944, here-
tofore found to be invalid, the Respondent discriminated against them in regard
to their hire and tenure of employment and thereby encouraged membership
in the Independent, and interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed them in Section 7 of the Act .31
29 The legal principles applicable to the facts in this case have been set forth in the
following decisions of the Courts : N. L. R. B. v. Unk•Belt Co., 311 U. S. 584; N. L.
R. B. v. Southern Bell Telephone if Telegraph Co., 319 U,,, S. 50; Western Electric Com-
pany, Incorporated v N L. R. B, 147 F. (2d) 519 (C' C.'A. 4) ; Westsnghouse Electric &
Manufacturing Co. v. N L. R B , 112 F. (2d) 657 (C C A. 2) Sperry Gyroscope Co. v
N L R B, 129 F. (2d) 99'2 (C. C. A 2) ; N. L. R. B. v. Standard Otl Co, 138 F. (2d) 885
(C C. A 2) ; Roebling Employees Assn. v N. L. R. B., 120 F (2d) 289 (C C. A 3) ; and
N L R B. v. Baldwin Locomotive Works, 128 F. (2d) 39 (C. C. A. 3).
so The undersigned believes that the organizational campaign of the Union, which had
been in progress for some time prior to January 1944, influenced the Independent and
the Respondent in their decision to enter into a written contract and the undersigned
so finds.
31 N. L. R. B. v. Electric Vacuum Cleaner, 315 U . S. 685; Sperry Gyroscope Co v.
N. L. R. B ., 129 F . ( 2d) 922 (C. C. A. 2).
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since the undersigned has found that the Respondent has engaged in unfair
labor practices, the undersigned will recommend that the Respondent cease and
desist therefrom and take certain affirmative action which the undersigned
finds necessary to effectuate the policies of the Act.
The undersigned has further found that the Respondent dominated, inter-
fered with the administration of, and contributed support ' to the Relations
Committee of the TMBA, the Relations Committee, the Association, and the
Independent. Since the Relations Committee of the TMBA, the Relations
Committee, and the Association no longer exist and there appears to be little,
if any, likelihood of their reappearing under such names, the undersigned will
not recommend their disestablishment. The effect and consequences of the
Respondent's domination of, interference with, and support to the Independent
as well as its predecessor organizations and the continued recognition of the
Independent as the bargaining representative of the employees, constitute a
continuing obstacle to the free exercise by the employees of the rights guaran-
teed them in the Act, and for the additional reason that this illegal conduct
makes the Independent incapable of serving the employees as a genuine collec-
tive bargaining agency, the undersigned will recommend that the Respondent
disestablish and withdraw all recognition from the Independent as the repre-
sentative of any of its employees for the purpose of dealing with the Respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
Under the facts found by the undersigned, the Respondent's contract of
January 17, 1944, with the Independent was invalid for the reason that it was
made as an element of assistance to a labor organization that was dominated
and interfered with by the Respondent, particularly, where as here, the con-
tract providing for maintenance of membership defeats genuine collective
bargaining by the employees and frustrates their efforts toward self-organiza-
tion. Since the contract will perpetuate the Respondent's unlawful assistance,
the undersigned will therefore recommend that the Respondent cease and
desist from giving effect to any contract between ft and the Independent, as
well as to any extension, renewal, modification, or supplement thereto and
any superseding contracts which may now be in force. Nothing herein should
be taken, however, to require the Respondent to vary those wages, hours, and
other substantive features of its relations with the employees themselves, which
the Respondent established In performance of the contracts as extended,
renewed, modified, supplemented, or superseded.
The undersigned has also found that the Respondent discriminated as to
the hire and tenure of employment of James Sposito, Wayne Kellogg, Frank
Wolford, and Ronald Heppinger, because they failed to maintain their member-
ship in the Independent pursuant to the terms of an invalid contract which
required the maintenance of such membership in the independent as a condi-
tion of employment in the plant. In order to effectuate the policies of the
THE TAPPAN STOVE COMPANY 785
Act, the undersigned will recommend that the Respondent offer to these indi-
viduals immediate and complete reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and other rights and
privileges. The undersigned will further recommend that the Respondent make
each of them whole for any loss of pay each has suffered by reason of the
Respondent's discrimination, by payment to each of them of a sum of money
equal to the amount each would have earned as wages from July 22, 1944,
to the date of the offer of reinstatement, less each of their net earnings during
that period.'2
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAw
1 United Electrical, Radio & Machine Workers of America, affiliated with
the Congress of Industrial Organizations, and The Independent Employees
Association of The Tappan Stove Company, unaffiliated, are labor organizations
within the meaning of Section 2 (5) of the Act.
2. Relations Committee of the Tappan Mutual Benefit Association, the Rela-
tions Committee, and The Tappan Stove Company Employees Association,
unaffiliated, were labor organizations within the meaning of Section 2 (5) of
the Act.
3. By dominating and interfering with the administration of and contributing
support to the Relations Committee of the Tappan Mutual Benefit Association,
the Relations Committee, The Tappan Stove Company Employees Association,
and The Independent Employees Association of The Tappan Stove Company,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of
James Sposito, Wayne Kellogg, Frank Wolford, and Ronald Heppinger, the
Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
5 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that The Tappan Stove Company, Mansfield, Ohio,
and its officers, agents, successors, and assigns shall :
'2 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the Respondent, which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R . B. 440.
Monies received for work performed upon Federal , State, county , municipal , or other
work-relief projects shall be considered as earnings . See Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
686572-46-51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) In any manner dominating and interfering with the administration of,
and contributing financial or other support to, the Relations Committee of the
Tappan Mutual Benefit Association, the Relations Committee, The Tappan
Stove Company Employees Association, or The Independent Employees Asso-
ciation of The Tappan Stove Company, or to any other organization of its
employees ;
(b) Recognizing the Relations Committee of the Tappan Mutual Benefit
Association, the Relations Committee, The Tappan Stove Company Employees
Association, or The Independent Employees Association of The Tappan Stove
Company, as the representative of any of its employees for the purpose of
dealing with the Respondent concerning grievances, labor disputes, wages, rates
of pay, employment, or other conditions of employment;
(c) Giving effect to any and all agreements and contracts or supplements
thereto or modifications thereof, or any superseding contract with The Inde-
pendent Employees Association of The Tappan Stove Company;
(d) Discouraging membership in United Electrical, Radio & Machine
Workers of America, affiliated with the Congress of Industrial Organizations,
or in any other labor organization of its employees by discriminatorily discharg-
ing or refusing to reinstate any of its employees or in any other manner
discriminating in regard to their hire or tenure of employment or in any term
or condition of employment;
(e) Encouraging membership In The Independent Employees Association of
The Tappan Stove Company, unaffiliated, or any other labor organization of
its employees by according to that organization or any other organization
discriminatory privileges, and
(f) In any manner interfering with, restraining, or coercing its employees
in the exercise of the rights to self-organization, to form labor organizations,
to join or assist United Electrical Radio & Machine Workers of America, or
any other labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from The Independent Employees Association
of The Tappan Stove Company, as the representative of any of its employees
for the purpose of dealing with the Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
f
of employment and completely disestablish that organization as such
representative;
(b) Offer to James Sposito, Wayne Kellogg, Frank Wolford, and Ronald
Heppinger immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other rights and
privileges;
(c) Make whole James Sposito, Wayne Kellogg, Frank Wolford, and Ronald
Heppinger for any loss of pay which each of them may have suffered because
of the Respondent's discrimination against each, by payment to each of them
of a sum of money equal to the amount which each normally would have
earned as wages from July 22, 1944, to the date of the Respondent's offer to
each of reinstatement, less their net earnings during such period-,33
" See footnote 32, supra.
THE TAPPAN STOVE COMPANY 787
(d) Post at its plant at Mansfield, Ohio, copies of the notice attached to
the Intermediate Report herein, marked "Appendix A." Copies of said notice
to be furnished by the Regional Director of the Eighth Region, shall, after
being duly signed by the Respondent's representative, be posted by the Respond-
ent immediately upon receipt thereof, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(e) Notify the Regional Director for the Eighth Region in writing within
ten (10) days from the date of this Intermediate Report what steps the
Respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the Respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations file with the Board,
Itochambeau Building, Washington 25, D. C, an original and four copies of
a statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file
a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten (10) days from
the date of the order transferring the case to the Board.
Dated April 27, 1945 JAMES C. BATTEN,
Trial Examiner.
"APPENDIX A"
'NO11tE '10 .1Li. EVlciii FED PPR',UAN'1 TO THE RECOMMENDATIONS OF A
TRIAL. EXAMINER
of the 'National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees that:
We hereby disestablish The Independent Employees Association of the
Tappan Stove Company as the representative of any of our employees
for the purpose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employ-
ment, and we will not recognize it or any successor thereto for any of the
above purposes.
We will not dominate or interfere with the formation or administration
of any labor organization or contribute financial or other support to it.' to
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to any seniority or other rights or privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
James Sposito
Wayne Kellogg
Frank Wolford
Ronald Heppinger
We will not in any manner interfere with, restrain , or coerce our employees
in the exercise of their right to self-organization, to form labor organizations,
to join or assist United Electrical Radio & Machine Workers of America,
affiliated with the Congress of Industrial Organizations or any other labor
organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection . All our employees are free to
become or remain members of this union , or any other labor organization. We
will not discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of membership in
or activity on behalf of any such labor organization.
THE TAPPAN STOVE COMPANY,
Employer.
Dated ..................... By ..........................................
(Representative ) (Title)
NOTE : Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced, or covered by any other material.
10