Western Electric Co., Inc.

National Labor Relations Board - Board Decisions

Feb 18, 1947

72 N.L.R.B. 738 (N.L.R.B. 1947)

In the Matter Of WESTERN ELECTRIC COMPANY, INCORPORATED and
UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
In the Matter Of WESTERN ELECTRIC COMPANY, INCORPORATED and
UNITED ELECTRICAL, RADIO- & MACHINE WORKERS OF AMERICA,
AFFILIATED WITH THE CONGRESS OF INDUSTRIAL ORGANIZATIONS
Cases Nos . 2-C-408 and 2-C-5069, respectively .Decided February
18,1947
Messrs . James C. Paradise and Leon Novak , for the Board.
Messrs. Wilkie B'ushby, William J. Butler, William J. Kridel, and
Howard J. Snyder , of Root, Ballantine , Harlan, Bushby cC Palmer,
of New York City; and Messrs . Walter L. Brown and Carl K. Rang,
of New York City, for the respondent.
Messrs. Frank Scheiner and Morton Stavis, of New York City, for
the Union.
Messrs. Henry Mayer, Alexander Eltman, Irwin Panken, and
Howard P. Feinberg, and Mrs. Ruby Mayer, of New York City, and
Mr. Al. Philip Kane, of Washington , D. C., for the Association.
Mr. Ralph Winkler, of counsel to the Board.
DECISION
AND
ORDER
On September 27, 1945, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled consolidated proceed-
ings, finding that the respondent had engaged and was engaging in
certain unfair labor practices, within the meaning of Section 8 (1),
(2), and (3) of the Act, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto.
On October 12, 1945, the Board denied a motion, filed by Western
Electric Employees Association, Inc., "To Return the Intermediate
Report and Findings of the Trial Examiner for Reconsideration."
Thereafter, the respondent, the Union, and the Association each filed
72 N. L. R. B, No. 134.
738
WESTERN ELECTRIC COMPANY, INCORPORATED 739
exceptions to the Intermediate Report, and the respondent and the
Association also filed supporting briefs. The respondent, in Decem-
ber 1945 and September 1946, and the Association, in September 1946,
filed applications with the Board requesting that the record be re-
opened for the purpose of taking further testimony. In September
and October 1946, respectively, the respondent filed a motion and a sup-
plemental motion to dismiss the complaint, renewing therein similar
motions previously made. The respondent requested separate oral
argument on its motions to adduce additional testimony and to dis-
miss the complaint; and, on October 9, 1946, the Association also re-
quested separate oral argument on its motion to reopen the record.
The Union filed a statement in opposition to these various motions.
On October 25, 1946, the Board issued an order denying the requests
for separate oral argument on the motions mentioned above, but stat-
ing that the parties would have an opportunity to present oral argu-_
ment"on these matters during the argument before the Board on the
merits of the case. In view, however, of our decision herein, and inas-
much as the record adequately presents the issues and the respective
positions of the parties, the requests of the parties for oral argument on
the merits of the case, as well as the various motions to reopen the
record and dismiss the complaint and the motions for separate oral
argument thereon,l are hereby denied.
At the Union's request, the Board issued an order on April 22, 1946,
permitting the Union to withdraw, without prejudice, those portions
of the charges alleging violations of Section 8 (2) bf the Act, and
dismissing, without prejudice, the corresponding allegations of the
amended complaint. In essence, this removed from the case the issue
of whether the Association was a "company union" as ordinarily un-
derstood in cases arising under Section 8 (2).
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs and all other papers filed herein, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner, to the limited
extent that they are adopted below.
1. The Trial Examiner found, among other things, that the re-
spondent dominated and interfered with the formation and adminis-
tration of the Association and its predecessor, the Employees Repre-
' The Association ' s exceptions and motions to reopen the record were, in effect , directed
against invalidation of the Association ' s representative status, as was a substantial portion
of the respondent 's similar papers The Order herein does not invalidate the Association's
contract or require the respondent to withdraw recognition from the Association.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation Plan ; that the respondent contributed support to the Asso-
ciation since 1937 by recognizing and contracting with the Association,.
by coercing union adherents, by directly assisting the Association, and
by discriminating against the Union and in favor of the Association by
permitting the Association to solicit mmembers, collect -union dues, dis-
tribute Association literature, and engage in other organizational ac-
tivities on company premises while at the same time denying similar
privileges to employees in behalf of the .Union; and that the respond-
ent thereby engaged in unfair labor practices within the meaning of
Section 8 (2) of the Act. The Trial Examiner further found that,
by engaging in the afore-mentioned conduct, the respondent also inter-
fered with, restrained, and coerced its employees within the meaning
of Section 8 (1) of the Act.
The complaint no longer alleges that the respondent dominated or
-Interfered with the formation or administration of the Association or
contributed financial or other support to it, within the meaning of
Section 8 (2) of the Act, in view of the Union's withdrawal of its
charge in that respect and our consequent dismissal of the allegations
thereupon. However, we find, in accordance with the findings and
conclusions of the Trial Examiner, that, by engaging in all the afore-
mentioned conduct, as more fully set forth in the Intermediate Re-
port, the respondent violated Section 8 (1) of the Act.
Where we find that a labor organization has been thus assisted, we
normally require the employer affirmatively to withdraw recognition
from the assisted organization and to cease giving effect to any con-
tracts made therewith. In the present case, however, there are circum-
stances, occurring since the issuance of the Interniechate Report herein,
which we deem to be of such moment as to render inappropriate the
normal remedies.
After the issuance of the Intermediate Report in September 1945, the
Association and the respondent entered into negotiations for a new
agreement. The negotiations were fruitless, with the result that the
Association called a strike that had been previously authorized by the
employees, in order to strengthen its bargaining position. This strike
lasted 65 days, from January 1946 until March 1946, and was not ter-
minated until the parties finally agreed upon the terms of a new agree-
ment which was executed by them on March 9, 1946.
The Union itself participated in and otherwise publicly supported
the strike. And on April 13, 1946, the Union requested leave to with-
draw its 8 (2) charges against the Association because of the vigor
WESTERN ELECTRIC COMPANY, INCORPORATED 741
and the bona fides of the Association's dealings with the respondent.'
Leave Was granted by the Board.
In view of all the circumstances herein, we do not believe that it
would effectuate the policies of the Act in the present case to require the
respondent to withdraw recognition from the Association or to cease
giving effect to the contract it secured. in 1946.
2. The Trial Examiner found that the respondent violated Section
8 (1) and (3) of the Act by refusing to grant an upgrading to Sally
Konigsberg because of her union membership and activities. The
complaint did not particularize this conduct, nor was the respondent
specifically charged at the hearing with having committed it, and for
that reason, among others, the respondent excepts to the Trial Ex-
aminer's findings and recommended order as to Komgsberg's up-
grading. A lack of specificity does not, of itself, preclude the Board
from making appropriate findings and an order thereon in a proper
case. However, we are not satisfied that the matter of Konigsberg's
upgrading was fully litigated. We, therefore, do not affirm the Trial
-Examiner's findings and recommended order in this respect.
The Trial Examiner's remaining findings with respect to alleged
discrimination against other employees are affirmed.
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, Western Electric Company,
Incorporated, New York City, and Kearny, New Jersey, and its offi-
cers, agents, successors, and assigns shall :
1. Cease and desist from-:
(a) Discouraging membership in United Electrical, Radio &
Machine Workers of America, C. I. 0., or in any other labor organiza-
The Union's request stated, in part
The United Electrical, Radio & nlachme Workers of America, C I 0 , requests the
withdrawal, without prejudice, of the 8 (2) portions of its charges in the above-
entitled proceedings
The workers in the Keainy plants of the Western Electric Company have just com-
pleted a long and difficult strike against the Westein Electric Company The
UERM\IWA, CIO, wholeheartedly supported this stake because
1 The UE-CIO believed in the sincei t of the Western Electric Kearny- work-
ers' sti ike struggle against the western Electric Company
after giving the matter careful thought, the UE-CIO has concluded that the
Western Electric Iceaini workers, by their recent arduous strike struggle against
the Western Electric Company, have earned this act of grace on out part. . . .
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of its employees, by suspending, discharging, or refusing to re-
instate any of its employees, or by taking or threatening to take any
other form of economic reprisal against them, or in any other manner
discriminating in regard to their hire or tenure of employment or any
term or condition of their employment ;
(b) Denying to United Electrical, Radio & Machine Workers of
America, C. I. 0., or to any other labor organization of its employees,
the privilege of soliciting dues and members, bringing union literature
into the plant and distributing such literature, and engaging in other
similar organizational activities while, at the same time, granting
these and other similar privileges to Western Electric Employees
Association, Inc. ;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Electrical, Radio &
Machine Workers of America, C. I. 0., or any other labor organiza-
tion; to bargain collectively through representatives of their choosing,
and to engage in concerted activities for the purpose of collective bar
gaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Offer to Pearl Drinkhaus and Shirley Perhnuter immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges ;
(b) Make whole Pearl Drinkhaus and Shirley Perlmuter for any
loss of pay they may have suffered by reason of the respondent's dis-
crimination against them, by payment to each of a sum of money equal
to the amount she normally would have earned as wages during the
period from the date of her discharge to the date of the respondent's
offer of reinstatement, less her net earnings during said period;
(c) Make whole Joseph Colelli, Evelyn Da Silva, and Rebecca Horn
for any loss of pay they may have suffered by reason of the respond-
ent's discrimination against them, by payment to each of a sum of
money equal to the amount he normally would have earned as wages
during the period of his suspension, less his net earnings during said
period;
(d) Notify William Van Felix by registered mail that, upon appli-
cation by Van Felix within ninety (90) days after his separation from
the United States Maritime Service, he will be reinstated to his former
or a subs! antially equivalent position without prejudice to his seniority
or other rights and privileges; and offer to Van Felix, upon applica-
WESTERN ELECTRIC COMPANY, INCORPORATED 743
tion by him within ninety (90) days after his separation from the
United States Maritime Service, immediate and full reinstatement
to his former or a substantially equivalent position without prejudice
to It Is seniority or other rights and privileges;
(e) Make whole William Van Felix for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum of money equal to the amount he
normally would have earned as wages during the period of his sus-
pension and during the periods from the date of his discharge to the
date of his induction into the United States Maritime Service and
from a date five (5) days after his timely application for reinstatement
to the date of the respondent's offer of reinstatement, less his net
earnings during said periods;
(f) Post at its plants throughout the Kearny Area copies of the
notice attached hereto, marked "Appendix A." 3 Copies of said notice,
to be furnished by the Regional Director for the Second 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,
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;
(g) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
MR. JAMES J. REYNOLDS, JP,., took no part in the consideration of the
above Decision and Order.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not discourage membership in United Electrical, Radio
& Machine Workers of America, C. I. 0., or any other labor or-
ganization by suspending, discharging, or refusing to reinstate
any of our employees, or by taking or threatening to take any
other form of economic reprisal against our employees, or in
a In the event that this order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words , "A Decision and Order," the words , "A Decree of the
United States Circuit Court of Appeals Enforcing."
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
We will not deny to United Electrical, Radio & Machine Work-
ers of America, C. I. 0., or to any other labor organization, the
privilege of soliciting clues and members, bringing union litera-
ture into the plant and distributing suchliterature, and engaging
in other similar organizational activities while, at the same time,
granting these and other similar privileges to Western Electric
Employees Association, Inc.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay suffered
as a result of our discrimination:
Pearl Drinkhaus
Shirley Perlmuter
William Van Felix
We will make whole the following named employees for any
loss of,pay suffered as a result of our discrimination:
Joseph Colelli
Evelyn Da Silva
Rebecca Horn.
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, C. I. 0., or any other
labor organization, to bargain collectively, through representa-
tives 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 the
above-named union or any other labor organization. We will not
discriminate against any employee in regard to hire or tenure of em-
ployment or any term or condition of employment because of member-
ship in or activity on behalf of any such labor organization.
--------------------------------------
(i;mptoy er)
By --------------------------------------
(Representative ) (Title)
Date------------------------------
NOTE.-'This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
WESTERN ELECTRIC COMPANY, INCORPORATED 745
TABLE OF CONTENTS
rage
'Statement of the Case______________________________________________ 747
Findings of Fact-------------------------------------------------- 750
1. The business of the respondent_________________________________ 750
II. The organization involved_____________________________________ 750
III. The unfair labor practices_____________________________________ 750
A. Setting in which relevant events occurred_________________ 750
1. Kearny Works Area________________________________ 750
2. Officials and supervisors involved -------------------- 752
B. The Employees Representation Plan_____________________ 752
1. Its formation and principal features------------------ 752
2. Conclusions as to nature of the Plan ----------------- 753
3. Alleged termination of the'Plan in April 1937 ---------- 754
4. Conclusions as to the alleged termination of,the Plan___ 756
C. The Western Electric Employees Association, Inc --------- 758
1. Formation of the Association________________________ 758
2 Recognition of the Association by the respondent------ 761
3. Special leave privileges given organizing committee---__ 762
4. Other assistance from the respondent during the Asso-
ciation's formative stage__________________________ 764
(a) Use of company property______________________ 764
(b) Safeguarding of Association funds--------------- 764
(c) Concessions granted by management before major-
ity representation check_____________________ 764
(d) Delay in checking majority representation----___ 765
5. Organization and administration of Association after
recognition____________________________ _ 765
(a) Solicitation of members________________________ 765
(b) Job representatives appointed before any general
membership meeting________________________ 766
(c) First general membership meeting on June 4, 1937_ 766
(d) First election held in August _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 767
(e) Du Val president throughout history of Association- 767
6. The respondent's continued support of the Association
since 1937_____________--------------------------------------- 767
(a) Through coercion by supervisors of union ad-
herents ------------------------------------ 767
(b) Through direct assistance by supervisors--------- 774
(c) Through discrimination against the Union and in
favor of the Association- 775
(1) By disparity of treatment in permitting
organizational activities on company prop-
erty----------------------------------- 775
a. Privileges accorded the Association-____-_ 775
1 Solicitation of members and collection
of dues_________________________ 775
2. Elections and circulation of pre-election
petitions- _ 780
3. Distribution of Association News and
other literature__________________ 781
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Findings of Fact-Continued
III. The unfair labor practices-Continued
C. The Western Electric Employees Association, Inc.-Continued
6 The respondent's continued support, etc.-Continued
(1) By disparity of treatment, etc.-Continued Page
b. Restrictions placed upon, and privileges
denied to, Union employees ----------- 783
c. Conclusions as to disparity in treatment-- 790
(2) By laying off union employees-------------- 793
a. The discriminatory lay-offs of Rebecca
Horn, Evelyn Da Silva and Joseph
Colelli ------------------------------ 793
1. Events leading up to their lay-offs--_- 793
2. Conclusions as to the lay-offs-------- 796
(3) By refusing to up-grade a union employee---_ 796
a. The case of Sally Konigsberg ------------ 796
b. Conclusions as to Konigsberg ------------ 800
(4) By discharging union employees_____________ 802
a. The discriminatory discharge of Pearl
Drinkhaus-------------------------- 802
1. Events leading up to her discharge on
February 12, 1943_______________ 802
2. The respondent's contentions as to
the discharge____________________ 803
3. Conclusions as to the discharge-_---_ 805
b. The discriminatory lay-off and discharge
of William Van Felix----------------- 805
1. Events leading up to his lay-off in
March 1943, and his discharge in
November 1943------------------ 805
2. The respondent's contentions as to the
discharge_______________________ 808
3. Conclusions as to the lay-off and the
discharge----------------------- 810
c. The discriminatory discharge of Shirley
Perlmuter--------------------------- 810
1. Events leading up to her discharge on
December 24, 1943_______________ 810
2. The respondent's contentions as to
Perlmuter's discharge ------------- 813
3. Conclusions as to the discharge------ 814
7.!History of collective bargaining between the respondent
and the Association, 1937-1945 ------------------ 815
(a) Local and National Committee negotiations------ 815
(1) Nature and function of the National Com-
mittee--------------------------------- 815
(2) Negotiations locally with the Association--__ 816
(3) Negotiations with the National Committee-- 818
(4) Nature of negotiations and disputes-------- 818
(5) Association dues check-off ------------------ 819
WESTERN ELECTRIC COMPANY, INCORPORATED 747
Findings of Fact-Continued
III. The unfair labor practices-Continued Page
D. The Association 's affiliation with the NFT W - - - - - - - - - - - - - 819
1. The issues as raised by the Association --------------- 819
2. Formation and function of the NFTW ---------------- 819
3 Du Val participates in forming federation of "Bell
System" employee organizations ------------------- 821
4. Association votes to affiliate with American Telephone
Federation -------------------------------------- 822
5. National organization becomes N FTW--------------- 822
6. Association applied for NFTW membership----------- 822
7. Charter issued to Association------------------------ 823
8. Subsequent relationship between Association and NFTW_ 823
E. Conclusions as to issues_________________________________ 824
1. As to successorship--------------------------------- 824
2. Conclusions as to the effect of NFTW affiliation ----_-_ 826
3. As to the respondent 's domination and support of the
Association-------------------------------------- 828
4. As to "militancy " of the Association ----------------- 829
5. As to the check-off --------------------------------- 830
IV. The effect of the unfair labor practices upon commerce ------------ 831
V. The remedy ------------------------------------------------- 831
Conclusions of law__ _______________________________________________ 833
Recommendations _________________________________________________ 833
Appendix -------------------------------------------------------- 835
INTERMEDIATE REPORT
Messrs. James C. Paradise and Leon Novak, for the Board.
Messrs. Wilkie Bushby, William J. Butler, William J. Kridel, and Howard J.
Snyder, of Root, Clark, Buckner ti Ballantine, of New York City ; and Mr. Carl K.
Rang, of New York City, for the respondent.
Messrs. Frank Scheirer and Morton Staves, of New York City, for the Union.
Messrs. Henry Mayer, Alexander Eltman, Irwai Panken, Howard P. Feinberg,
and Mrs Ruby Mayer, of New York City, and Mr. Al. P& hp Kane, of Washington,
D. C., for the Association.
STATEMENT OF THE CASE
Upon a fourth amended charge filed July 20, 1944, in Case No 2-C-4508, a
fourth amended charge filed January 4, 1944, in Case No. 2-C-5069, by United
Electrical, Radio & Machine Workers of America, affiliated with the Congress
of Industrial Organizations, herein called the Union, and upon charges filed by
two employees of the Western Electric Company, Incorporated, in Case No.
2-C-4508, on July 19 and 24, 1944, respectively, and pursuant to an Order Con-
solidating cases, issued on August 31, 1944, by the National Labor Relations
Board, herein called the Board, the Board, by its Regional Director for the
Second Region (New York, New York), issued its complaint, dated September
1, 1944, against Western Electric Company, Incorporated, herein called the re-
spondent, alleging that the respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the meaning of Section 8 (1),
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(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 notice of con-
solidated hearing thereon were duly served upon the respondent, the Union, and
Western Electric Employees Association, Inc, herein called the Association.
With respect to the unfair labor practices the complaint, as amended during
the hearing, alleges in substance: (1) that in 1933 the respondent initiated,
formed, sponsored and promoted the Employees Representation Plan, hereinafter
called the Plan; (2) that in April 1937, the respondent initiated, formed, spon-
sored, and promoted the Association, the Association being the successor to the
Plan, and that since the respective dates the respondent has continued to dom-
inate, contribute to the support of, and interfere with the administration of
the Plan and the Association; (3) that in May 1937 the respondent entered
into an agreement with the Association recognizing it as the exclusive bargain-
ing representative of certain of its employees, and in September 1937, and at
various times thereafter entered into collective bargaining agreements with.
the Association concerning terms and conditions of employment and requiring
the deduction by the respondent from employees' pay of dues levied by the
Association and the payment of such monies to the Association ; (4) that such
agreements were invalid and in violation of the Act; (5) that on or about the
dates set opposite their names the respondent discrimnnatoiily discharged the
following named employees because they joined or assisted the Union or because
they refused to join or assist the Association:
William Van Felix --------- November 1, 1943
Dorothy Lloyd_____________ February 11, 1943
Pearl Drinkh.ius----------- February 12, 1943
Shirley Perlmuter---------- December 24, 1943
(6) that on or about the dates set opposite their names the respondent dis-
criminatorily laid off the following named employees because they joined or
assisted the Union or because they refused to join or assist the Association :
Rebecca Horn______________ February 9, 1943
Evelyn Da Silva ----------- . March 27, 1943
William Van Felix March 26, 1943
Joseph Colelli______________ November 29, 1944
(7) that from June 1937 to the date of the complaint the respondent has
vilified, disparaged and expressed disapproval of the Union, has interrogated
its employees concerning their union affiliations, has warned its employees to
refrain from assisting or becoming members of the Union, has urged its em-
ployees to assist and become members of the Association, has threatened its
employees with discharge or other reprisals if they joined or assisted the Union
or refused to join or assist the Association, and has kept under surveillance
the meeting places and activities of the Union ; and (8) that by these acts the
respondent -has interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
In its answer, dated September 12, 1944, and amended during the hearing,
the respondent denies that it engaged in the alleged unfair labor practices, except
that it admits that it initiated, formed, sponsored and promoted the Plan.
As to the Plan, the respondent's answer affirmatively alleges, in substance, (1)
that following the Supreme Court decisions of April 12, 1937, holding that the
Act was applicable to manufacturing operations the respondent terminated the
WESTERN ELECTRIC COMPANY, INCORPORATED 749
Plan ; (2) that the i espondcnt's recognition of the Association followed its
receipt of "prima facie proof" that the Association represented a majority of
employees in a certain unit; and (3) that Association dues are deducted from
the pay of the respondent's employees folloN^ing the voluntary written applica-
tion of Association members.
In its answer, dated September 8, 1944, the Association denies that the
respondent has dominated, contributed to the support of, and interfered with
the formation or administration of the Association
On September 9, 1944, the Regional Director issued an order granting a
motion, filed by the Association on September 8, 1944, permitting the Association
to intervene in these proceedings.
Pursuant to notice, a hearing was held in New York City from December 12,
1944 to June 27, 1945, and in Washington, D C on July 27, 1945, before the
undersigned Trial Examiner, duly designated by the Chief Trial Examiner.
The Board, the respondent, the Union and the Association were represented
by counsel All parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing upon the issues
At the opening of the heating, the Trial Examiner granted a motion, made
without objection by council for the Board, to amend the complaint by adding
the name of Joseph Colelli to the list of alleged discriminatory lay-offs and by
correcting certain typographical errors in the original complaint A motion
was likewise granted to deem the respondent's answer, as previously filed, as
an answer to the complaint as amended During the course of the hearing the
Trial Examiner granted a motion by counsel for the Board to dismiss the com-
plaint as to Dorothy Lloyd At the completion of the taking of evidence, a
motion was granted by the Trial Examiner, made by counsel for the Board
without objection, to conform the pleadings to the proof, in minor particulars
The Trial Examiner denied a motion by counsel for the Association to hold the
hearing open for the receipt of evidence as to the result of a strike vote by
Association members Also at the completion of the taking of testimony, ruling
was reserved upon motions made by the respondent and by the Association to
dismiss all of,the allegations relating to unfair labor practices in the complaint
The motions pre disposed of by the findings and conclusions hereinafter made.
During the hearing ruling was reserved upon a motion by counsel for the Union
to strike from the record certain documents and evidence, mainly iclating 10
the Association's internal functioning and to the nature and activities of the
National Federation of Telephone Workers The motion is hereby denied.
Reasonable opportunity was afforded to all patties to file briefs with the Trial
Examiner after the taking of testimony and other evidence. Briefs were filed by
all patties On July 27, 1945, all parties participated in oral argument before
the Trial Examiner in Washington, D. C. The oral arguments appear in the
official transcript of the proceedings.
Upon the entice record in this case,' including the briefs and oral arguments,
and from his observation of the witnesses, the Trial Examiner makes the
following :
I Subsequent to the hearing, all pasties entered into stipulations piovnhng for the cor-
rection of errors in the transcript The stipulations aic hereby made a part of the recoil,
as a part of Board Exhibit 1, and the transcript is ordered corrected in accordance there-
with
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Western Electric Company, Incorporated, is a New York corporation, having
its principal office and place of business in New York City. It is engaged in
the manufacture, sale and distribution of communication equipment at plants
in various parts of the United States, including certain plants, hereinafter set
forth, collectively referred to as the Kearny Area plants, situated in the States
of New York and New Jersey.
In the coui se and conduct of its business at its Kearny Area plants, the re-
spondent causes a substantial amount of materials and supplies to be purchased,
transported and delivered in interstate commerce from and through States of
the United States, other than the States of New York and New Jersey, to its
Kearny Area plants, and causes a substantial amount of finished products manu-
factured, sold and distributed by it to be transported and delivered in interstate
commerce from its Kearny Area plants to and through States other than the
States of New York and New Jersey, and to foreign countries?
The respondent is an almost wholly owned subsidiary of the American Tele-
phone and Telegraph Company.
II THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, and Western Electric Employees Associa-
tion, Inc., are each labor organizations, and Employees Representation Plan
was a labor organization, admitting to membership the respondent's employees
at its Kearny Area plants
III THE UNFAIR LABOR PRACTICES
A. Setting in which i elevant events occili i ed
1. Kearny Works Area
The issues in this case involve the respondent's operations in what is commonly
called the Kearny Area or Kearny Works Area, synonymous terms which em-
brace not only the plant at Kearny, New Jersey, but also many other plants in
New Jersey and New York. As hereinafter referred to, the "Kearney plant,"
"Kearny plants," or "Kearny Works," all mean the respondent's operations
situated specifically and only at Kearny, New Jersey. In 1937 the Kearny Works
Area consisted of plants located at Kearny, New Jersey, and the Tube Shop on
Hudson Street in Manhattan, New York. Since 1937 the Kearny Area has
expanded in Dumber of operating plants and warehouses, and in number of em-
ployees. There is listed, below, all of the respondent's locations outside of the
plant at Kearny, but included in the Kearny Works Area.
r
2 The findings as to the business of the respondent rest upon admissions in the respond
ent's answer.
WESTERN ELECTRIC COMPANY, INCORPORATED 751
Location Designation Used for
Roselle, 647 N Gland Ave__________________ Roselle----------------------- Storage
Newark, 591 Feiry St___________________ ---- Ferry St____--___-____-___- Mfg and storage
Clifton, 1000 Main Ave______________________ Clifton---------------------- Manufacture
Bayonne, 717 Ave A______-_____________-_ Bayonne--------------------- Manufacture
New York, 350 Hudson St___________________ -------------------------------- Mfg -Stge -Lab.
New York, 305 Hudson St- Tube Shop-------------------- Mfg
Jersey City, 1501 Hudson Blvd Jeiscy City ------------------ Storage
Clifton, 954 Main St Clifton ----------------------- Mfg -Office-Stole
Jerse\ City, 346 Claremont Ave_____________ West side -_____-_-_-_-_______ Mfg and Store
Kearny, Tomkms Tidewater________________ -------------------------------- Store-Distr
Newark, 110 Edison PI______________________ Newaik Central Wlise___-_-__ Storage
Newark, 23 Centre St_______________________ Centre St Whse__-___-_-____ Storage
Jersey City, 430 Commmupaw Ave ---------- Coniniun ipaw----- ---- -- -- -- -- Storage
New York, 787 11th Ave_____________________ 11th Ave ---------------------- Mfg -Storage-Office
New York, 233 Spring St -------------------- Spring St----------------- Mfg -Storage
Bayonne, 1345 Fludson St ______________-___ City Line--------------------- Mfg -Storage
New York, 570 W 42nd St__________________ 42nd St ----------------------- Mfg -Storage
Passaic, 122 8th St___________________________ Passqic Anne\________________ Mfg
New York, 345 Hudson St___________________ Tube Shop -------------------- Mfg
New York, 529 W 42nd St__________________ 42nd St ----------------------- Mfg
Newark, 110 Edison Pl______________________ Newink Cen Whse___________ Storage
711 the period from 1937 to July 1944, the total number of employees at the
var:mis Kearny Area locations had increased from about 7.000 to more than
36,000, 1111(1 the tot:11 number of supervisors curl espoidingly increased from about
600 to more than 3,000. All the plants listed were operating at the tile of the
hearing
Also at the time of the hearing, it majority of the respondent's employees, about
21,000, were employed at the Kearny plant in Kearny, which is about 7 miles
from the, Tube Shop on Hudson Street in New York The working force at
Kearny is recfnited from about 4S5 ditfetent communities, most of them from
places it ithin a radius of 20 miles of the Kearny Works.
The respondent's Kearny Works is situated on what is referred to as the
peninsula of the Kearny Meadows It is bounded on the East by Central Avenue
in Ken'iy, on the south by the Central Railroad of New Jersey, on the west by
the Passaic River, and on the north by Highway No. 1 It covers about 135
acres, all of the manufacturing properties and parking spaces being fenced in,
with a number of gates for ingress and egress. In the vicinity of each of the
gates are gn:u•d houses, where company guaids are on duty at all times These
guaiUS, employed by the company, are militarized, and in matters of plant pro
tection are under the supervision of the Second Service Command, U S Artily
A number of bus lines bring employees to and from the Keainy Works, and
for the purposes of picking tip and discharging such passengers diive through
the plant gates to loading platforms. About one-third of the employees use the
buses Some use trolleys or railroads, although neither come into the plant
enclosure. Since the plant is not located near a residential area, very few
employees live near enough to walk to the plant Practically all the employees
731242-47-vol 72-49
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either bring their lunches or use the company's cafeteria facilities One 'uch
cafeteria occupies an entire floor of a building in which manufacturing operations
are also carried on. Another shares space on a floor with manufacturing
operations.
2. Officials and supervisors involved
Front 1933 to July 1935 , F W. Bierworth was assistant works manager at
the respondent ' s Kearny plants During that period he exercised authority
delegated to him of supervising all operating problems at the Kearny Works, and
was a member of the "top management organization " which directed labor rela-
lions From July 1935 to July 1939, Bierworth was a vice-president and works
manager at the Kearny Works From 1939 to the time of the hearing he has
been vice -president in charge of the telephone sales and distribution , with his
headquarters at the respondent 's main offices in New York City.
Succeeding Bierworth as Works Manager at Kearny have been b' J Feely
and Reece Clifford , the latter holding that position at the time of the hearing.
Under Clittord are 5 division managers , to whom 14 superintendents report Un-
der the superintendents are division chiefs or general foremen . Following gen-
eral foremen in a descending scale of authority are foremen or department chiefs,
section chiefs or sub -foremen , and group chiefs or assistant sub-foremen All
such supervisors have the authority to recommend discharge or other discipline
of employees , although no supervisor lower in rank than a division chief or
general foreman may actually discharge in employee Foremen may suspend or
up-grade employees . Group chiefs are management representatives and interpret
company policies to employees . None of the supervisors described above are
eligible to membership in the Association.
Since 1942 F. J Hammel has been the personnel relations manager at the
Kearny plants , and has been responsible for labor relations , according to his
testimony, "with all labor unions and for entering into all agreements between
the company and the recognized unions of hourly and certain salaried employees."
He is the "bargaining agent of the company," he testified , and his jurisdiction
covers all plants in the Kearny Area
B. The Employees Representation Plan
1. Its formation and principal features
Before 1933 there was no labor organization of employees at the Kearny Works.
The complaint alleges and the respondent's answer admits that in August
1933, the respondent initiated, formed, sponsored, and promoted the Employees
Representation Plan. The answer further admits that the respondent furnished
certain space and facilities for the use of its employees in conducting their
activities under the Plan, and paid the wages of such employees while so engaged.
The stated purpose of the Plan was to afford "means whereby employees,
through representatives of their own choosing, may deal collectively with man-
agement." It provided, among other matters, for meetings of reps esentatives of
employees and of management "to develop the facts relating to wages and
working conditions."
The Plan functioned through three separate levels of joint committees, each
committee being composed of an equal number of elected employee representa-
tives and appointed management representatives Employee representatives serv-
jug on "first level joint committees" were elected by employees in the various
voting districts. Employee tepieseniatives on the "second level joint commit-
WESTERN ELECTRIC COMPANY, INCORPORATED 753
tees" were selected from and by employee representatives on the first level com-
mittees. Employee representatives on the Kearny Works Joint Committee-Rank-
ing Joint Committee, were selected from and by employee representatives on
the second level committees. The Kearny Works Manager served as one of
management's representatives on the Kearny Works Joint Committee
The last-mentioned committee determined :
(1) the number and nature of voting districts,
(2) the number of representatives for each district,
(3) the group of voting districts to be represented by first level joint
committees,
(4) the number of higher level joint committees,
(5) the number of employee representatives from each joint committee
to serve on the joint committee of the next higher level.
The same committee also considered matters referred to it by joint committees
of lower levels. Problems not settled by the top committee were then referred
to higher officials of the respondent. Under the Plan no authority was accorded
to any joint committee to bind management, the function of the committees
being merely advisory.
No employee not in the continuous employ of the respondent for one year or
more was eligible for nomination or election as an employee representative. The
respondent bore expenses of operating the Plan. No dues were charged All
employees, except those in certain management positions, could participate,
there being no membership lists or requirements. Voting was conducted and
all committee meetings were held on company property and at company expense
In 1934 the Plan underwent certain minor revisions, principally to integrate
its operations in the respondent's four plants, as well as its Distributing and
Installation departments Two new higher level joint committees were pro-
vided for: (1) a, Works Master Joint Committee, which was comprised of em-
ployee representatives selected from the ranking committees of the individual
plants, and representatives of management; and (2) a Labor Board, made up
of selected members of the Works Master Joint Committee and of Master
Committee members of the distributing and installation departments, and
management representatives
Both management and employees approved the revision of 1934, and the Plan
thereafter functioned unchanged until April 1937.
2 Conclusions as to the nature of the Plan
Although neither the respondent's formation nor domination of the Plan
was illegal before July 5, 1935, the date of the passage of the Act, the respondent's
activities connected therewith and recited above are material and relevant to
any appraisal of its subsequent conduct with respect to the Plan and the
Association.
The respondent's answer admits, however, and the Trial Examiner finds, that
the respondent formed, established, sponsored and supported that Plan. It is
also found that after July 5, 1935, the Plan "violated both the language and the
purpose of the Act." 3
3 The quotation is from the Court ' s decision in Wastes a. Electric Company , Inc v. N L
R B, and Point Breeze Employees Association, Inc. v N L. R B., 147 F (2d) 519
(C C A 4), cert den 324 U S 870 The same Plan was set up by the respondent at its
Point Breeze plant
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Alleged termination of the Plan in April 1937
The above-described Plan remained in effect, with full participation by the
respondent, until a few days after the Supreme Court's so-called "validation"
of the Act, on April 12, 1937. Although Bierworth testified that he "assumed" lie
heard of the Court's decision on the day or day after it was issued, no action
was taken by him until some days later with respect to the Plan
The testimony of Bierworth and many former Plan representatives was vague,
evasive and inconclusive as to the exact date when Bierworth first told them
that the respondent could no longer participate in the Plan. No document
bearing upon the point was produced by the respondent except a letter from
Vice President Hosford, at the main office in New York, dated April 21, 1037,
and addressed to Bierworth and certain officials at other plants.
That letter reads :
Following the advice given you a few days ago that there was doubt as
to the propriety of further participation by the Company in the present
Representation Plan and our suggestion that you so inform the Elected
Representatives, counsel now advise that because of recent decisions under
the National Labor Relations Act it will be necessary for the Company to
discontinue participation under the Plan Moreover, no expense either
direct or indirect (subject only to the exceptions noted hereinafter) can be
met or other support given by the Company in connection with the forma-
tion or operation of any organization of employees the purpose of which
is to deal collectively with Management Representatives should be in-
formed immediately of this decision.
In giving notice to this effect, it should be made plain that the Company
recognizes the right of employees to organize and select representatives of
their own choosing for collective bargaining: but local management should
be careful not to offer any suggestions or assistance or make any r-econn-
mendations in regard to the formation or operation of any employes or-
ganization that might subsequently be taken to indicate influence, donnna-
tion or support on the part of the Company.
There follows, in the letter. a listing of various items of organizing expenses
and collective bargaining expenses which counsel advised Bierworth the re-
spondent could not pay for.
It is reasonable to infer from Bierworth's testimony that he took no formal
action with respect to all employee representatives, until lie received the advice
quoted above.4 Since the letter places April 21 as the date of the first definite
4 The inference follows from certain testimony quoted below There follows a colloquy
between counsel for the respondent and Bierworth
Q Mr Bierworth, from whom at headquarters had you received priAr instructions,
if any'
A Piior to the ieceipt of this letter'
Q Pi for to the receipt of the letter
A Oh, we were in constant discussion a couple of dais with several executives.
Thereafter, in reply to questioning by counsel for the Board, Bierworth stated .
A No, I did not improvise any policy at Kearny
Q You followed the instructions you received, is that correct 9
A That is right
Of further bearing on this point is Bierworth's testimony
In the varied stages of these discussions I am not too sure that we had definitely
concluded immediately what should be done These legal fellows were thrashing
WESTERN ELECTRIC COMPANY, INCORPORATED 755
issuance of advice to Bierworth that "representatives should be informed im-
mediately" of the necessity for the Company to discontinue participation under
the Plan," the Trial Examiner has grave doubts that any action, of a formal
nature and predicated upon this advice, was taken by Bierworth before April 21,
as urged by counsel for the respondent in their brief
In any event, within 10 days after April 12, Bierworth summoned the 22
Plan-elected representatives to his office and told them that because the Wag-
ner Act had been upheld by the Supreme Court the company could no longer
deal with or suppoit the Plan, either financially or otherwise. He also told
them that from then on they were on their "own," and would "get no more
services" from the company.'
Despite this announcement by the works manager, the representatives were
permitted to go directly from his office to a nearby room where, according to
the testimony of Sub-Foreman W. J. Perry, in 1937 an elected representative,
,.we normally met," and made plans and arrangements which led to the forma-
tion of the Association.
Bierworth testified and the Trial Examiner finds that following his meeting
with the representatives he caused no notice to be issued for the information
of all employees advising them' (1) that the Plan was disestablished and that
they were free to take such action as they saw fit with regard to the forma-
tion of labor organizations, or (2) of the action he had taken in his meeting
with the elected representatives Furthermore, not until September 21, 1944,
after the complaint was issued in this case, was any notice posted by the re-
spondent stating its policy regarding its employees' rights to join or not to
join any labor organization e
this thing around and tr3ing to make up their mind definitely just where the coin-
pany stood in this matter.
Bierworth was asked
Q Mr . Bierworth , are You in a position to testify categorically that your meeting
with the representatives took place prior to the receipt by you of Respondent's
Exhibit No 69
A I have already testified in a number of ways. I believe , that to the best of my
knowledge the meeting did take place prior to that date
Q. You are not sure of that, are you'
A Well, I said yesterday that I would think that the meeting took place on
such and such a date, or in the neighborhood of such and such a date That is as
far as I can account for the meeting time This thing happened seven years ago,
and many things have happened since then
Bieiwortli ' s testimony however also warrants it reasonable inference that before April
21 he may have told certain representatives that the respondent was considering the
possibility of withdrawing its support from the Plan He testified
There was some discussion as I recall with the elected representatives , some little
discussion in which they were made acquainted with the fact that this matter was
under consideration in the company , or by the company, and that later on we would
give them a definite answer as to just exactly where the company stood
5 The finding as to Bieiworth ' s statements to the representatives is based upon the
testimony of Assistant Sub-Foreman Charles Kroessig , when questioned by counsel for the
Board, and upon the testimony of Sub -Foreman W J Perry Both were, in 1937,
employee representatives
e The notice posted in September 1944 , stated in part as follows
This notice is to advise employees that the Company denies these charges and has
so informed the Board
The Company is not and never has been concerned as to whether its employees
join or do not loin an} labor union Furthermore, no employee has been or will be
discriminated against or has suffered or will suffer any penalty because of the
exercise of any tight secured to employees by the National Labor Relations Act
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Conclusions as to the alleged termination of the Plan
At the hearing Bierworth testified and in their brief counsel for the respondent
contend: (1) that Bierworth "definitely and unequivocally" told the representa-
tives that the Plan was "at an end"; (2) that he instructed them to "inform
their constituents that the Plan was out" ; and (3) that "this news was fully
circulated throughout the plant" and "all the employees were fully advised as to
what Bierworth had said." (The testimony of several witnesses for the respond-
ent, as well as surrounding circumstances established by other testimony of Bier-
worth and by letter of April 21, deprive the above contentions of merit.)
As to (1), the claim that Bierworth, told the representatives definitely that
the Plan was terminated, or "out," his own testimony, previously quoted, makes
plain the fact that he indulged in no improvisation of policy as to disposition of
the Plan, but followed instructions received from headquarters The letter of
April 21 merely instructed Bierworth to tell the representatives that the com-
pany must "discontinue participation in the Plan." There is no credible evi-
dence, documentary or otherwise, showing that Bierworth ever received instruc-
tions to inform the representatives that the Plan was terminated Thus the
respondent's claim lacks the foundation of reasonable probability. More direct
refutation is continued in the following excerpts of. testimony given by the
respondent's own witnesses.
From the testimony of W. J. Perry, identified above as a subforeman :
Q He [Bierworth] did not say, however, that the E. R P. was terminated
by him?
A. I can't remember those words, no.
Q. You don't remember him saying that, do you?
A. No.
)
From the testimony of Group Chief S P. Nippins, in 1937 an employee represent-
ative of the Plan.
Q. Did he use the words "You have no more Plan", or did lie say that
the company could not have anything to do with the Plan anymore?
A. That the company couldn't have anything to do with the Plan anymore.
From the testimony of Group Chief J. J. Reidy, Jr, in 1937 an employee repre-
sentative under the Plan :
Q. Do you recall that in the course of his remarks Mr. Bierworth said to
you gentlemen that in view of the decisions of the Supreme Court which had
recently been rendered, that the Company could no longer give any financial
or other assistance to the Plans
A. That is right.
Q. Do you recall him saying that as of that time forward the company
was withdrawing all support or assistance of any kind from the Plan?
A. Substantially, yes, that is what he said
Q. And do you recall him saying that from that time on the representatives
were entirely on their own, or that they could not look to the company for
any more support or assistance?
A. That is right.
Q That was about all lie said that day, isn't it?
A. In substance, yes, that practically covers it.
The testimony of Joseph A. Greer, at the time of the hearing holding a man-
agerial position of "inspector engineer," and in 1937 an employee representative,
was similar in substance to that of Reidy.
WESTERN ELECTRIC COMPANY, INCORPORATED 757
As to (2), the claim that Bierworth instructed the assembled representatives
to tell their constituents that the Plan was terminated, the instruction he
had received from headquarters called for no action of this nature. Further-
more, as with the preceding claim, the testimony of witnesses holding supervisory
positions with the respondent refutes it.
For example, Assistant Sub-Foreman Kroessig flatly denied that Bierworth
told the representative to "do anything " Engineering Analyst George Loughlin,
in 1937 a representative, testified that he recalled nothing "like" being instructed
by Bierworth to inform his "people" what the works manager had said. Reidy
recalled no instructions of that nature. And Greer denied that he was told
by anybody to go to his constituents
As to (3), the claim that "this news was fully circulated throughout the plant"
and "all employees were fully advised as to what Bierworth had said," it is
plain from the context that counsel refer to the alleged statement that the
Plan was "terminated." As found heretofore, Bierworth did not make this state-
ment at the meeting Furthermore, the testimony of many piesent or former
supervisors who were present on the occasion as employee representatives
establish that not all the employees were told anything about the meeting, at
any time, by them.
For example, Greer admitted that he did not know how many of his con-
stituents he spoke to at any time following the meeting, and that lie spoke
only to those whom he happened to "run into " He further testified that he
did not recall telling them that Bierworth said it made no difference what they
did about Eoiining or joining a labor organization Group Chief Reidy testified
that while he had about 150 constituents, lie could not recall how many he talked
to following the meeting Sub-Foreman Fi aney testified that he told only a
"few" individuals about the meeting, although lie represented about 200 employees.
Group Chief Nippins testified that he told some of his constituents :
Well, you boys saw in the paper that the Wagner Act has been upheld, and
that the company cannot support the Association (sic) anymore, and that we
have to form one of our own. We would like to get 50 cents a piece off of
each one of you so that we can rent a hall and get an association started
Engineering Analyst Loughlin testified that he could not recall going around
among his constituents telling them what had happened in Bierworth's office.
Assistant Sub-Foreman Helen T. Ryan testified that she told only about "a
dozen" of her "80 or 90" constituents during a two-week period that they had
no more Plan Sub-Foreman Chester A. Root testified that he "didn't tell ever-
one" among his constituents what Bierworth had said, and that he did not recall
being informed as to whether his job representatives passed on the word. Section
Chief Reid N. Harris testified that he did not, and did not have time to, tell
all his constituents what Bierworth had said. Sub-Foreman Periy testified that
be spoke only to 10 or 15 individuals about the meeting And Kroessig testified :
I don't remember in what manner I spoke to them or contacted them in
relation to the information received from Mr. Bierworth
In summary, the Trial Examiner is convinced that the testimony of witnesses
called by the respondent itself completely refutes the claims made by it, and finds
that there is no merit to the contentions : (1) that Bierworth told the representa-
tives that the Plan was terminated; (2) that he instructed them to inform their
constituents to this effect ; and (3) that all employees were so informed.
On the contrary, a substantial amount of evidence, some of which is quoted
above, establishes the following facts: (1) that Bierworth did not tell the rep-
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentatives that the Plan was terminated; (2) that he did not tell the repre-
sentatives to so inform their constituents; (3) that all of the constituents were
not so informed by the representatives; (4) that Bierworth at no time caused
any notice to this effect to be published or announced to the employees generally;
and (5) that the respondent did not, either by oral or written statement, convey
directly to its employees as a whole, as distinguished from the Plan represent-
atives, its intention no longer to support or recognize the Plan or to meet with
its representatives.
C The Western Electric Employees Association, Inc.
1. Formation of the Association
Immediately after the meeting at which Bierworth told the representatives
that they were "on their own," they pioceeded during working hours to their
regular conference room near the offices of Bierworth and the superintendents.
There they unanimously decided to set up an " independent" organization' Their
time at this meeting was paid for by the respondent .' George Du Val, chairman
of the representatives , announced himself and three other leading committee-
member representatives as an organizing committee and urged the others to
"hustle" and "get some money together ." ° The other three were Charles Kroes-
sig Joseph A. Greer , and Harold B. Isaacson 10 At the time he announced the
personnel of the "organizing committee ," Du Val had been chairman of the elected
representatives at least since 1935. He was on the Works Master Joint Com-
mittee , and a member of the Labor Board, according to his own testimony
7 The fact that the representatives discussed only the forming of an independent organ-
ization was developed by counsel for the respondent from John Whiteford, a witness for
the respondent His testimony was corroborated by other witnesses for the respondent.
That there was no disagreement among them was established by the testimony of Assistant
Sub-Foreman Kroessig
s This finding rests upon the testimony of Assistant Sub-Foreman Ryan.
D The finding is largely based upon, and the quotations ate from, the testimony of
Sub-Foreman Franey. The substance of his testimony was corroborated (1) by a state-
ment given to a Board agent by Kroessig in 1942 which, at the hearing, he testified he
would "stand by" , and (2) by the testimony of Greer, who stated that the committee
was "delegated" to take the lead in the formation of such an organization
10 Of the four above-named, only Isaacson claimed that in April, 1937, he was not a
representative He testified that he had been a representative from 1935 to the latter
part of 1936, when he submitted a written resignation because he had been promoted.
He further claimed that upon his resignation he was "entirely disconnected" from the
Plan. Later in his testimony, however, lie admitted that he was a Plan "member" in
April, 1937, but thereafter denied that he was a member then At another point in
his testimony he declared that it had been "months and months and months" before
April, 1937, when he had last attended a Plan committee meeting When confronted
with records of Plan meetings, however, Isaacson admitted that he attended a committee
meeting as late as March, 1937, and further admitted that his previous testimony had
been "in error" Other records produced at the hearing by the respondent show that
Isaacson attended a representatives' meeting in February, 1937, and on this occasion
was selected to serve as an alternate on the Ranking Joint Committee The same
minutes bear his typed signature as a member of the Ranking Works Committee Min-
utes of the monthly meeting in March not only show that he was present, but that
he also conducted a "discussion" on "self-improvement" Although his name does not
appear as having been present at the April 6 meeting, the last monthly gathering of
the representatives under the old Plan set-up, there is no notation upon them either as
to his absence or as to his having resigned These documents and his own admissions
of being in error discredit Isaacson's testimony generally, and in particular to the effect
that lie was not a Plan representative in April, 1937
WESTERN ELECTRIC COMPANY, INCORPORATED 759
"the highest office" under the Plan. Kroessig was acting secretary of the em-
ployees-represencative group, while he and Isaacson also were on the Ranking
Works Committee. Greer and Isaacson were on the Works Service and Industrial
Relations Committee.
Immediately after this meeting in their regular conference room many of the
representatives went directly to the employees in their districts, during working
hours, and solicited contributions from them and obtained their signatures upon
blank pieces of paper. Section Chief Reid N. Harris testified that on the same
day of the meeting with Bierworth he gathered together a number of "leaders"
or job representatives among the employees he then represented, and
told them that Mr. Bierworth said that the Plan had to end, and that any
minute we would find that we could not make any contact at all, and I wanted
them to go around to the people and get a quarter from everyone, so that we
could put something together quick in the way of a new union.
The "quarters," Harris testified, were solicited, and money was handed to him
from each "location." He admitted that all his "contacts" were made during
working hours. As the job representatives returned with the money they gave
him a list of the contributors There were five or six hundred employees in his
district, and all but three or four were "signed up," on blank pieces of paper, that
same afternoon between 2.00 and 4 :15 o'clock. He was not stopped while engaged
in this work by any supervisor, and he testified that he "assumed that the super-
visors in the plant still thought I had freedom of movement," as a Plan repre-
sentative. Many other present supervisors and witnesses for the respondent
testified to the same effect '1
On the evening of the same clay, or shortly thereafter, the same representa-
tives met in an office in one of the Kearny plant buildings." Rental of this
space was arranged between Du Val and Bierworth
This office, although partitioned off, was located on one of the manufacturing
floors and, according to Bierworth's testimony, "right in the heart of the plant."
It was furnished, and provided with a telephone operated through the respond-
ent's switchboard In a letter from Bierworth to Du Val dated April 21, the
Works Manager stated that he was "confirming our conversation in regard
to office space * ' * to be used by you and certain of your associates in con-
nection with plans which you have for lornung an Employees Association."
[Italics supplied ]
it For example, Whiteford testified that he "got a dollar off each man" and "I had
a piece of paper that they wrote their own names down on " Group Chief Nippins
testified that he had no special "petitions", but had his "people" sign their names on
"white -sheets of paper," when obtaining money from them. Sub-Foreman Franey testi-
fied that lie had no petition signed, but only obtained signatures to a blank sheet of
paper. Gioup Chief Reidy also testified that lie solicited contributions and obtained
signatures to blank pieces of paper, from about 150 employees in his district
"The exact date is not fixed by any documentary evidence in the record and the testi-
mony iegarding it is varied and confusing Although Kroessig stated in his memorandum
submitted to a Board agent in 1942, and previously referred to, that minutes of all such
meetings were kept, no minutes of the first meeting were produced by the Association.
There is, however, a document in evidence dated April 22, covering a subsequent meeting.
It appears reasonable, therefore, that the first meeting in the rented space was not later
than April 21 That it was not eaiher than April 21 is indicated by the fact that on that
date Bierworth wrote to Du Val "confirming our conversation" concerning rental of the
office Furthermore, testimony quoted heretofore establishes that representatives were
instructed, at the meeting after their conference with Bierworth, to "hustle". It is rea-
sonable to believe that the organizing committee also "hustled" and held its first meeting
that night
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same letter also states :
The Company will be willing to rent you this office for $50.00 per month,
on a month-to-month tenancy. This figure includes light, heat, local tele-
phone service, janitor service and the use of general building facilities,
such as elevators, toilet rooms, etc
This letter shows that Du Val and Bierworth made arrangements for the
former's use of company property not only before any Association was formed,
but also for the specific purpose of "forming an Employees Association"
Although the testimony as to what occurred at the first meeting in this office
is confused and contradictory, it appears that on this occasion some of the 22
representatives were provided with "petitions," previously prepared by the four
members of the "organizing committee," for circulation among the employees.
Although its production was repeatedly requested at the hearing, no copy of
the petition was forthcoming."
According to Kroessig's recollection at the hearing, the text of the petition
was to the effect that "the undersigned supported the Organizing Committee in
the formation of an independent union," and contained the names of the four
Plan officials Also according to Kroessig, only 15 copies of this petition were
drawn up. After the first meeting, and for a period variously estimated by
witnesses for the respondent as extending up to two months, some representa-
tives obtained signatures to these petitions The evidence plainly establishes;
however, that no general circulation of the petition was ever made.
The first meeting of the 22 representatives for which any purported minutes
were produced at the hearing was held on April 22. The minutes, as introduced
into evidence, after stating that the meeting was called to order by "acting
Chairman Du Val," and naming the representatives present and the districts
they represented, continue :
Miss Ryan moved that the name of the Association shall be the Western
Electric Employees Association. Motion carried. Mr. H. Parsons moved
that the Organizing Committee consisting of G. Du Val, H. Isaacson, J. Greer
and C. Kroessig, who were petitioned by 4,500 hourly rated employees to
organize an Employees Association, to engage the seivices of a legal advisor
to draw up a Constitution and By-Laws for the Association. Motion carried.
The statement contained in the purported minutes as to the petitions is clearly
inaccurate, since credible testimony establishes that no petitions were distributed
even to the representatives until that meeting."
The names of the individuals present, however, and the locations they were
then representing, correspond in detail with records produced at the hearing
by the respondent reciting the personnel of the employee representatives for the
same districts under the Plan.
Credible evidence in the record shows, and the Trial Examiner finds, that the
only actual authorization given by April 22 to Du Val and the other three repre-
"Early in the hearing counsel for the Association stated that when Du Val later took
the stand he would testify that the last copy available had previously been turned over to
a Board agent. Counsel for the Board replied that the Board files contained no record
of the receipt of such a document. Although Du Val was later a witness, he was not
questioned about this matter. Under the circumstances, the Trial Examiner is convinced
that counsel for the Association was misinformed, and that no copy of that petition was
turned over to the Board.
11 Isaacson testified "I wouldn't say we had 450 or 4 500" names on Apiil 22.
WESTERN ELECTRIC COMPANY, INCORPORATED 761
sentatives, to organize an "Employees Association," had come (1) from the repre-
sentatives themselves immediately after the Bierworth meeting, and (2) from
Works Manager Bierworth who, in his letter to Du Val of the preceding day,
had granted the latter the privilege of renting company 'space for the purpose
of "forming an Employees Association."
Nor is there evidence in the record to show that the individuals named in the
minutes of April 22 had been chosen, selected, or asked by any employees in
the respective districts they purported to represent, either to attend the meet-
ing or to represent them at it. It is plain, and the Trial Examiner finds, that
they were continuing to act as representatives chosen under the Plan. Substan-
tial support for this finding was developed by counsel for the respondent through
Whiteford, in the following colloquy:
Q. (By Mr. BusHBY.) Well, [did] you have any understanding among
the organizers of the Association as to who was to run the Association in
the beginning?
The WITNESS. Yes, that is right; it was like an agreement that we could
be under the Plan until the new union was organized.
On April 26 the same representatives again met.15 According to the minutes,
in evidence, on this occasion Du Val formally appointed the other representatives
as assistants to the "organizing committee" In turn, the representatives for-
mally elected the "organizing committee" as officers. Du Val thus became presi-
dent ; Isaacson, vice-president ; Greer, treasurer ; and Kroessig, financial
secretary.
At the same meeting proposed by-laws, drawn up by the "organizing commit-
tee," were read and revised.
On May 3 the four officers and another representative executed a "Certificate
of Incorporation" of the "Western Electric Employee's Association, Kearny
Area," under the laws of New Jersey. Terms of the incorporation required that
the business of the organization should be conducted by four trustees, and that
for the first year Du Val, Kroessig, Greer, and Isaacson were to be the trustees.
Other terms provided that the Board of Trustees were expressly authorized to
make and to alter the by-laws of the corporation, although a majority vote of all
members might alter or repeal by-laws thus made by the trustees.
On May 10, the organizing group of representatives adopted or "enacted"
by-laws. The by-laws provided, in part, that the "organizing committee is to
assume all the duties of the Board of Elected Representatives pending election
and the establishment of such a Board."
2. Recognition of the Association by the respondent
On May 19, Du Val, Isaacson, Greer and Kroessig submitted a written request
to Bierworth for recognition of the Association as the exclusive bargaining agent
of the respondent's employees.
The request states, among other things, (1) that the four above-named had
been "designated and selected for the purposes of collective bargaining by the"
Association at a meeting held, in April 26; and (2) that the Association on that
date had 4,207 members.
15 Apparently the single exception was the presence of an individual named Greenfield,
isho is not listed, as having previously been a Plan representative, on any document pro-
duced at the hearing.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two days later Bierworth, for the respondent, entered into a memorandum
of agreement covering recognition of the Association The agreement stated,
in part, that the respondent agreed :
To recognize the aforesaid Association as the exclusive bargaining agency
for all employees eligible for membership in the Association at the Kearny
plant and the Tube Shop, at 395 Hudson Street, New York
To recognize the foregoing four petitioners in the capacity of officers, agents
or representatives of the aforesaid Association.
To meet with the properly accredited representatives of the Association
for the purposes of collective bargaining.
The agreement also specifically stated that the recognition was being granted
upon the claim made by the four above-named of 4,207 members in the Association.
It also includes a statement that recognition was subject to "verification" of the
Association's membership which the respondent might wish to make through
public accountants. No time limit was placed upon such recognition. It was to
continue until the respondent had received "evidence" requiring a redetermination
of the Association's majority representation.
There is no credible evidence in the record that the Association had 4,207, or
any, signed applications for membership on May 19, 1937. Isaacson, one of the
signers of the request, testified that he had no idea when applications were
circulated, but that it might have been after Bierworth recognized the Asso-
ciation He further testified that he, with others on the same committee, never
counted the membership cards before asking for recognition. He further
declared that he did not consider it important, as a member of the committee,
how many membership cards they had. In any event, no evidence of actual
membership, by membership cards, applications, or otherwise, was submittted
to Bierworth before recognition was granted." Immediately after the signing
of the recognition agreement, notices announcing the fact of such recognition were
posted throughout the plant.
3. Special leave privileges given organizing committee
Immediately after Bierworth told the representatives that the respondent
could no longer support the Plan, Du Val, Kroessig, Isaacson, and Greer were
permitted to leave their work and devote their time to organizing an "employees'
association." Isaacson and Greer remained out for only a few weeks Kroessig,
however, was off the job for two years without losing his benefits as an employee
of the company, and up to the time of the hearing Du Val had not yet returned
to work.
The testimony of management officials as to the status of the four organizers
while off the job is confused, evasive, and in some details contradictory. Accord-
ing to Employment Manager Fountain, leaves of absence were granted to
employees in order to preserve for them their continuity of service, thus protect-
ing their pension rights as well as rights under an existing disability pension
plan. In general, written rules of the company provided for two types of leaves,
those of less than one month in length and those of more than one month. All
such leaves (except disability leaves) "regardless of length, shall be applied for
16 The finding is based upon Isaacson 's testimony :
Q Did you show him any evidence
A. No
Q That you represented a majority of his employees?
A We did not show any evidence.
WESTERN ELECTRIC COMPANY, INCORPORATED 763'
before the absence begins " Personal leaves of more than one month required
the employee to sign a special form, and approval was to be given by both a
Division Chief and also a special management committee. Such personal leaves
also required written approval, and permitted of no eligibility to sickness benefits
during the absence. Moreover, Bierworth testified that the respondent has
always had a rule prohibiting the granting of leaves of absence to permit an
employee to take employment elsewhere than with some other company of the
Bell Telephone System. Yet he also admitted having "probably" been informed in
1937 that both Du Val and hroessig were devoting all their time to the Association
and none to production work for the company.
No records were produced by the respondent to show what types of leaves were
actually granted to any of the four Plan representatives, except as to Du Val
in 1940. It is plain, nevertheless, from the testimony of both management
officials and the representatives, and the Trial Examiner finds, that leaves of a
nature in direct violation of the rules of the respondent were accorded to them.
Although Kroessig, a supervisor at the time of the hearing, testified: (1) that
under the rules of an employee does not call in after a three-or-four-day absence
he is dropped from the rolls, and that he would not consider assisting an outside
union's activities as being a "justifiable excuse" for granting an employee time
off from work, both he and Greer were given such permission upon merely telling
their respective supers isors that they were going to organize an "independent."
Also according to Kroessig's testimony, during the two-year period he punched
no time card. did no production work, never returned to report to his supervisor,
gave him no estimate of the time he would be off, and never submitted a written
application for leave According to Bierworth's testimony, however, Kroessig
continued to be carried as an employee during these two years, and Du Val until
June, 1940.
Kroessig received $81.72 in disability funds from the respondent during the
latter part of 1937, establishing the fact that, contrary to the rules, he was
receiving sickness benefits
Records produced at the hearing by the respondent also show that between
April, 1937 and June, 1940, when Du Val finally went on a formal leave of absence,
the respondent paid to these two organizers and officers of the Association a total
of more than $1200 According to the records, this total was paid to them for
time spent "conferring with management " These and other records show, and
the Trial Examiner finds. that Du Val. Kroessig, Greer, and Isaacson, were paid
b^ the respondent for time spent in confeirmg with management in April and
May, 1937, not only while the Association was in its formative stage, but before
any senii,lance of a contractual relationship had been entered into between the
two parties These payments, the Trial Examiner concludes, constituted financial
support of the Association
Other monetary advantages accrued to both Kroessig and Du Val. Bierworth
admitted that Kroessig's term of service continued during his two years' absence.
It is likewise clear from his testimony that the same benefits applied to Du Val
from 1937 until June. 194(114 Furtherniore, (luring the period they were being
carried on the pay roll of the respondent.but doing no production work for it,
both Kroessig and Du Val received merit increases in rates of pay, thus increas-
ing the amount of money they received from the respondent for the time they
spent in conferring with management.
14 Such accruals of service are applicable to the eventual granting of pensions as well as
to sick and death benefits
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 Other assistance from the respondent during the Association's formative stage
(a) Use of company property
On May 17, 1937, even before the Association had asked 'for or was granted
formal recognition by the respondent, Bierworth for the respondent and Kroessig
for the Association entered into a rental agreement coveting the Association's
use of a construction building, near one of the gates and on company property.
This space was thereafter used as the Association's headquarters until the
summer of 1944
Furthermore, on May 21, 1937, the same day Bierworth formally recognized
the Association, he agreed with Du Val to sell to the Association a 15-piece set
of office furniture, including a conference table, chairs, desks and steel lockers, for
a total of $38 00. On Jilne 23, the purchase was consummated.
A company extension telephone was installed in the new quarters, and re-
mained until the Association relinquished the quarters in 1944 The respondent's
telephone number was published as the Association's official number in the
monthly issues of the Association News, which was distributed throughout the
plant as described hereinafter. The Association used the respondent's telephone
extension not only for inside calls, but for both incoming and outgoing calls as
well.
Before the construction building was suitable for occupancy by the Association,
the respondent made many and extensive alterations and installations in the
building.
(Ii) Safeguarding of Association funds
Although the Association opened its bank account in May, 1937, the respondent
permitted the Association to use its pay-roll department for the deposit and safe-
keeping of Association funds until the latter part of June 1937.
(c) Concessions gianted by management before malorrty rep)esentation check
At the organizing committee meeting of June 2, an agenda of matters to be
submitted to the respondent was discussed The agenda was drawn up by
Du Val, Kroessig, Isaacson , and Greer. On June 4, before the first general mem-
bership meeting was held, these four and others of the general organizing
committee met with a management committee composed of Bierworth and other
plant officials. Of the 17 points relative to wages and working conditions the
respondent granted the organizing committee's proposals as to some, and agreed
to consider others further. Among other concessions granted, on June 4, was the
Association's request for the use of the company bulletin boards for posting of
information having "mutual interest."18
Other negotiating conferences were held on June 14, 25, and Ju;y 7, on matters
relating to wages. All of such conferences were held, and concessions made
by management, before the respondent had received any evidence that the As-
18 The claim of counsel for the respondent in their brief that no "commitments" were
made at the "discussion" of June 4 is refuted by documentary evidence The Association
minutes of June 4 show that, among other items, management agreed on that day (1) to
notify the Association when it places a job on a piece -work basis, (2) to notify the Asso-
ciation when shift arrangements were to be altered; ( 3) to prepare a revised procedure
for upgrading , ( 4) to notify the Association when a labor-"grade" was to be assigned;
and (5 ) to permit the Association to have access to its rules governing employees Kroes-
sig, one of the respondent ' s supervisors at the time he testified, stated that these minutes
correctly set forth what had happened at the meeting with management earlier the same
day.
WESTERN ELECTRIC COMPANY, INCORPORATED 765
sociation represented a majority of the employees, and during the period of the
Association's membership campaign.
On July 2 the respondent agreed to furnish, without charge, typing service
for all items of "mutual interest." Items of "strictly Association nature" were
to be typed by the respondent at rates to be "mutually agreed upon."
(d) Delay in checking majority representation.
As noted heretofore, the respondent on May 21 recognized the Association as
the exclusive bargaining agent for its employees without requiring any proof of
majority. On June 21, one month after the exclusive bargaining right had been
accorded to the Association, the respondent requested a firm of public ac-
countants to check the Association membership in the unit "for which the right
to bargain exclusively is sought." [Italics supplied.]
The letter to this firm requested, in part:
If the Association's records are capable of disclosing the membership as
of May 19th, we should like to have the check made as of that date; if not,
then as of the date at which you can undertake the work.
On July 12 the accountants reported to the respondent the results of a check
which had been made as of June 22. As of the latter date, according to the
accountants' report, the Association had as members a majority of the employ-
ees in the unit previously agreed upon in the recognition agreement.
No evidence was adduced to show why the accountants did not make a check
of the membership status of May 19. In view of the specific request made by the
respondent, however, the Trial Examiner is convinced and finds, that the Asso-
ciation records were not "capable of disclosing the membership as of May 19."
When asked why an interval of a month was allowed to pass before ascer-
taining whether or not the Association actually represented a majority of his
employees, Bierworth replied :
No, I don't recall why that interval was there.
In view of other items of assistance rendered by the respondent to the Asso-
ciation during the same period of its formative stage, the Trial Examiner con-
cludes that the delay was designed to, and effectively did, assist the Association
in its membership campaign During the period, notices to the effect that the
respondent had already tecognized the Association had been posted throughout
the plant. By posting these notices the respondent effectively deprived its em-
ployees of their freedom to form or join an organization of their own choice
5. Organization and administration of Association after recognition
(a) Solicitation of members
According to the testimony of Whiteford, a witness called by the respondent,
the Association had no membership cards until after it had been recognized by
the respondent and had moved into its new headquarters in the construction
building. The same representatives engaged in getting membership cards signed,
as members of the "general organizing committee," although none of them had
been elected by the employees themselves to engage in this work, or to be oar
this committee
Sub-Foreman Perry testified and the Trial Examiner finds that he took time
off from his work to circulate the membership cards. He obtained what he
termed "blanket" permission from his supervisor to leave his "area" by telling
him that he was not going to "bother" him every ten minutes when he wanted to
go out on union business. At the end of the week he told his supervisor how
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
much time he had spent away from his work on Association affairs. He was
paid, as were other representatives, by the Association for such time. Perry was
permitted by his supervisor to go not only through his own department, but
into other departments as well, during working hours, and he freely and openly
engaged in such activities. Accompanying Periy on these trips through the
plant soliciting members was John M. Bodner, a section chief at the time of the
hearing and in 1937 a Plan representative.
Isaacson testified, with respect to his organizing his fellow employees :
Hell, I talked to them the first opportunity I had Working hours, lunch
hers, it did not make a damned bit of difference to me:
At the time he thus testified, as a witness called by the respondent, Isaacson
was a Section Chief. He further testified and the Trial Examiner finds, that
he had his "company credentials," which authorized him to go into the plant
"at any time of day," even though he was then on "leave." Du Val, according
to Isaacson's testimony, accompanied him on some of these trips, as did Kroessig
and Greer"
Other present supervisors, witnesses called by the respondent, who testified
that they obtained signatures to membership cards during working hours in the
plant while serving on the organizing committee, include Sub-Foreman Parsons
and Group Chief Nippins.
When questioned as to whether he had knowledge of the activity of Association
organizers in the plant, Bierworth replied :
No, and I didn't want anybody to bring it to my attention.
(b) Job representatives appointed before any general membership meeting
At another meeting of the Plan representatives on June 2, 1937, the organizing
committee of four, although they themselves had been authorized by no election
among employees, appointed 23 individuals to serve as "job representatives."
According to Kroessig's testimony, they were appointed to serve until an election
should be held for plant representatives, who then would appoint their own
job iepresentatives Most of the job representatives thus appointed were elected
representatives or alternates under the Plan.
The general organizing committee of 22 Plan representatives continued
actually to serve as elected representatives for the Association and to handle
grievances with management,20 until the first election in August, 1937.
(c) First general membership meeting on June 4, 1937
No general membership meeting was held by the Association until June 4, 1937,
after officers and representatives under the Plan had already installed them-
selves as officers and representatives of the Association Du Val presided, and
according to ferry's testimony, told the employees present "what had transpired
up to that time " Although it appears that at least part of the by-laws were
read at this meeting, there is no credibld evidence that they were ever submitted
to the employees generally for approval.
At this meeting, members were told of negotiations which had already taken
place earlier the same day at a meeting of management and members of the
19 Kroessig likewise testified that he carried a similar card permitting him, access to the
plant.
20 The finding that grievances were taken up during this interim pei lod is established by
the testimony of supervisors Ryan and Thomas, both of whom were representatives in 1937.
WESTERN ELECTRIC COMPANY, INCORPORATED 767
organizing committee At this meeting, also, members were informed by Du Val
that the organizing committee would continue to "represent the Association"
until a Board of Representatives was elected.
(d) Fist election held tin August
At the Association's first election in August, 1937, all plant representatives
elected, with but one exception, wen e former representatives under the Plan.
The Association by-laws, drawn up by Du Val and others of the organizing
committee of four, provided (1) that the number of elected representatives
should be determined by the same organizing committee, and (2) that the position
of it candidate's name on the ballot should depend upon the number of signatures
previously obtained to his candidacy petition The candidate who obtained the
greatest number of signatures had the privilege of having his name appear at
the top of the ballot
Another section of the by-laws States:
Campaigning for both nomination and election will be rigidly restricted to
peisonal contact Advertising or other methods shall be prohibited.
Since the Plan representatives and job representatives appointed by them had
the privilege_ol going freely about the plant, during working hours, they clearly
possessed a decided advantage over other employees in the election campaign
Kroessig, who had participated in the drafting of the provisions, testified:
It may possibly have resulted in their having an advantage.
(e) Du Val president thioughout history of Association
Also in August, the first election of officers was held at a special meeting.
The b) -haws required that:
Nominations for election of officers in the Association shall be made by
the Association Board of Elected Employee Representatives or from the
floor of the meeting called for the purpose.
Du Val was elected president, Isaacson, vice-president; Kroessig, financial
secretary, Greet, treasurer; and Perry, recording secretary.
At the time of the hearing Du Val was still president, as he has been since
1937. All others of the original board of officers, at the time of the hearing,
were on the respondent's supervisory of managerial staff
Furthermore, of the 21 original Plan representatives who aided Du Val in
org.uazi ng the Association, the record shows that at least 14 of them have since
then been pi omoted to supers rsory or managerial positions Of the other 7,
at least one-Whiteford-is no longer employed by the respondent, and the
record does not reveal the status of the remauung sta.
6. The respondent's continued support of the Association since 1937
(a) Through coercion by srpemvisors of union adherents
In 193S, while employee Albert G De Maio was circulating in Association
nominating petition among employees on his floor at the Kearny plant, Section
Chief Frank L Stout approached him and others, and told De Maio that h.s
father used to work in the shipyards and that lie himself "agreed with an,
union but the CIO" In 1939, when a group including De Maio wei e discussing
a raise, Stout joined them and declared that he believed that the CIO would
731242-47-vol 72-50
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not get into the plant, and that it was not a "good organization for the Westein
Electric.""
In 1941 some of the respondent's-employees became active in the Union
De Maio joined and became an active union adherent in December of that
year. As noted more fully hereinafter, he was expelled from the Association
In the spring of 1943, shortly after union leaflets were distributed, Sub-Fore-
man Anders, who had been an organizer for and representative of the Associa-
tion, came to De Maio at his work and demanded, in reference to one of the
union leaflets :
Where in hell do you guys get the nerve to piss out stuff like this
and continued:
I think you guys don't know what the score is You got a damned good
organization here I was a member of it once, and I did my share to make
it a good organization You know the CIO couldn't touch this place.
A few days later, referring to another union leaflet, Anders told De Maio:
You guys really think you can get in here? . . Well, you won't get to
first base . . . For one thing there is one fellow who had (has) been in
the employment office quite some time, and lie made damned sure none of
you CIO's got in here . . . You know, Lou Weiner ; he is a good friend of
mine.-2
Also in the spring of 1943, when De Maio asked Department Chief Gordon
Speedie for an upgrading, Speedie told him that he was a "hot potato," that
he would get in trouble with the Association if he granted it, but that if he
was a "smart boy" and "kept his nose clean" perhaps he could "fix him up."
During the same interview Speedie told him he had been "through the mill,"
had belonged to labor unions in Massachusetts, and that as far as he was con-
cerned the "CIO is a bunch of racketeers." 21
In December, 1944, shortly before the opening of the hearing, De Maio was
questioned by Department Chief N. 17. Burrington as to the number of members
the Union had in the plant and as to when an election would be held 24
At the Tube Shop during late 1942 and early 1943, Section Chief J J Buonocore
warned employee Hilda Kramer several times al?out her union affiliation He
21 Stout denied making the statements attributed to him by De Maio, upon whose credible
testimony the findings rest Although declaring that he did not iecall "telling any such
story to any production employee," lie admitted that his father-in-law woiked at the Kearny
ship-yards
22 The findings as to Anders' remaiks rest upon De Malo's ciedible testimony Anders
denied making any of the statements attributed to him Anders had been Bierworth's
chauffeur, was an active member of the Association oiganiznig committee, and one of its
repi esentatives Walter Hai tnett, another supervisor who, according to De Maio, was
with Anders on both occasions, was not called as a witness. Weiner, a department chief
in the employment office, admitted knowing Anders and although he denied ever dis-
cussing emloynient!' policies with hum. admitted that if applicants for employment
brought tip the subject of a bargaining agent in the plant, "we definitely would give them
whatever instructions we saw fit "
23 Speedie admitted that lie had refused to give De Malo an upgrading because he would
get into ti ouble with the Association if lie did He also admitted that he told De Maio
at the same interview that lie belonged to "civic' organisations in Maseaclmsetts, and
"lead learned that people many times criticized you or formed false impressions because
they knew of your activities outside the shop." He further admitted that lie used the
phrase. "if you keep your nose clean," in connection with a promise made to De Maio
that lie would see that the employee was treated fairly He denied calling the CIO
racketeers In view of Speedie's admissions, the Tiial Exauiinet accepts as tine De Maio's
vei lion of the inter vietw, upon which the abo', e findings rest.
21 Burriieioi admitted talking to De Maio at the time and place described by the em-
ployec, but testified that lie did not ienieniber asking De Maio the questions noted above.
WESTERN ELECTRIC COMPANY, INCORPORATED 769
told her, (1) that it would not he "healthy" for people to get involved in it;
(2) that she should be careful what she did; ( 3) that organizing the shop was
a "foolish idea" and would never "go" with the Western Electric Company ; and
(4) that the respondent was a good company to work for , taking care of people
who "minded their own business " zs
Section Chief A. Rushetski , a witness for the respondent , testified that in 1943
it was "general knowledge" among Tube Shop supervisors that employee Maurice
Spivack was active in the CIO Rushetski 's testimony is undisputed that during
that year Sub-Foreman W T. Durr told him that Spivack was "inclined to wander
all over" and that he believed the employee was engaged in CIO "activities "
In the summer of 1943 Spivack asked Durr for an upgrading . Durr told him that
although he had no complaint about his work, his record as to his character and
"other activities" was bad Durr further told him, when asked to explain, that
lie carried on too many outside activities , and remarked that until lie dropped
"that attitude" he would not get far. A few months later , in 1944, when consulting
Foreman D . W. Hole , Durr ' s superior , on another matter, Spivack asked him
about an upgrading . Hole replied that no recommendation for such promotion
had been submitted to him , but told him that if he would drop his outside activi-
ties , he would see that he "got somewhere with the company ." Shortly after this
interview with Hole , Spivack 's wife became ill, and he dropped his union activi-
ties He attended no meetings , although he had previously been chairman of the
union shop committee , and discontinued his distribution of union leaflets at the
plant In July his wife died , and he was absent from work July 12 to July 20
When he returned to work during the first week in August , he found he had been
upgraded during his absence. '' The Trial Examiner is convinced , and finds,
that the above-quoted remarks by Durr and Hole were intended to discourage
his union activity 27
20 The above findings rest upon Kiainer's credible testimony. Buonocore denied making
any of the quoted statements, but admitted having reported Kramer to a higher super-
visor when he saw a union pamphlet in her handbag on the bench, although, as he also
admitted, by her action Kramer was violating no company rule
2e The above findings rest largely upon the credible testimony of Spivack Both Durr
and Hole admitted that Spivack consulted them about an upgrading, but denied saying
anything about his outside activities, or "attitude " Durr admitted giving Spivack
advice as to how he could improve and advance himself with the company, but declared
that such advice was limited to matters pertaining to his work. Durr testified that
Spivack was an unsatisfactory worker, was frequently absent from his work place, that
lie reprimanded him for "roaming about the plant," that his workmanship was poor,
that on at least one occasion Spivack was abusive to his superior, and that he had shown
only "slight" improvement by April, 1944, when he, himself, left the department Durr
further declared that he turned in reports to his superior on Spivack 's "job attitude,"
and specifically stated that he turned in reports on two occasions when, he declared,
he had reprimanded Spivack Hole, however, denied he had ever received any com-
plaints about Spivack's work. No written reports were submitted at the hearing to
substantiate Durr 's claim The respondent introduced into evidence Spivack's Rate
Card, which bears upon it a notation of a "regrade rerate" as of 5/8/44 The accuracy
of this date, however, was verified by no witness nor by the offer of any pay-roll records
Hole corroborated Spivack's testimony when he stated that the employee was upgraded
in "the middle of 1944," and it was Hole who finally approved the promotion.
27 Although the evidence tends to show that a merited advance was withheld from
Spivack. until management believed he had ceased his union activities, in the absence
of any evidence that an upgrading was available and given to another employee and
which but for its withholding, would have gone to Spivack, the Trial Examiner makes
no finding of actual discrimination It is clear, however, that both Durr and Hole
caused the employee to undeistand that lie was being deprived of an upgrading because
of his union adherence
77 0 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Soon after employee Edith Sidman began wearing a union steward button is
the plant, early in 1944, her supervisor, Assistant Sub-Foreman Gene Foster told
her he was surprised to see her wearing it, and further told her that he believed
most of the girls in the Union were "down-right Reds." He also asked her why
she belonged to the CIO when there already was a union in the plant 28
Lillian Bloom, a Kearny plant employee, was approached by her supervisor,
Assistant Sub-Foreman Henry Mosciki, in April, 1944, and asked,why Association
representative Hughes was "after her " She told him that she had informed
Hughes that she was a CIO member, and asked what the representative wanted
Mosciki replied that Hughes was checking her attendance and piece work, and
further warned her to `watch" her "step," and not let Hughes get anything
on her The Trial Examiner finds that by these remarks Mosciki conveyed to
Bloom d clear warning that her union membership might lead to disciplinary
action 29
In August 1944, when his promised upgrading failed to materialize, employee
Lis was told by his supervisor, Assistant Sub-Foreman Hoegmeyer,30 that he was,
not liked in the front office because lie did not belong to the right organization °1
In the fall and winter of 1943-44 Lis had distributed union leaflets outside the
plant, openly. The Trial Examiner finds that Hoegineyer was aware of Lis' union
affiliation, and that by the foregoing remark lie was referring to the Association
In September, 1944, after employee Esther Panken had assisted the Union in
distributing literature outside the Eleventh Ave plant, and admittedly had been
seen wearing her union button by her supervisor, K. Rhinehart, she was sum-
moned to the desk of Division Chief George Rimney Association representative
Mesmer was with Rimney, and the latter introduced the representative to her.
In Rimney's presence, Messier told Panken that she was going to be watched very
carefully. She asked why. Mesmer told her she was "sticking her neck out"
by her "activities " Panken asked Rimney if he sanctioned such surveillance ;
the Division Chief said he did not think "they" were watching her. She replied
that she knew of at least two occasions when other representatives, Lowe and
Rieves, had gone to' Rinehart and questioned her whereabouts during a rest
period. Rimney laughed and said that since Rieves had not accompanied her
into the ladies' room he really was not following her. In November, after Panken
had reported to the line supervisor that she had observed Association repre-
sentative Farrell selling dance tickets on company time to other girls near her
work position, she was again called to Rimney's desk Representatives Mesmer,
Farrell, and Sofia were with him In their presence Rimney told Panken she
1-ad no right to complain to any supers isor about any of the Association activities,
and that she was being paid only to do her job '2 The Trial Examiner finds that,
28 Sidman's testimony iegardng Foster's remark is undisputed
29 Bloom's testimony as to this incident is undisputed' Mosciki, in the Armed Forces
at the time Bloom testified, died February 7, 1945 Other testimony of Bloom, to the
effect that before this incident she overheard Hughes ask Assistant Sub-Foreman Mullen
the name of her supervisor, was corroborated by Mullen
30 This spelling was used by Division Chief William Sust in his testimony The record
also contains the spelling "Hagermeyer "
31 Lis' testimony o,i this point is undisputed Counsel for the respondent introduced
a great deal of testimony through Sust, designed to show that the grading of Lis was,
in fact, not discriminatory Whatever the actual reason may have been, it is undisputed
that his immediate supervisor gave him the one found above ''lie Trial Examiner con-
siders that the record contains insufficient evidence to sustain the claim of counsel for
the Board at the hearing that Lis vas d!seriminated against
32 The above findings rest upon Panken s undisputed testimony
WESTERN ELECTRIC COMPANY, INCORPORATED 771
dry permitting Mesnicr, in his presence, to warn Panken about her union activities,
the Division Chief incurred full responsibility for the coercive act, and that by
this conduct and by instructing Panken not to report any Association activities,
Rimney not only gave open and genuine support to the Association, but made
patent orders to discourage her union membeiship and activity.
In October or -November, 1944, Assistant Sub-Foreman Charles Debeny, told
employee Nathan Schnapp that it was futile for employees to try to organize the
Union at the respondent's plant, and that they were beating their heads against
.a wall 33
At the Kearny plant in July, 1944, employee Ruth Oates was told by Mary
Kelly, supervisor in the spray room, that if she would "get wise to herself" and
not belong to the Union, she "might get ahead a whole lot faster" 34 In the fall
'of the same year Group Chief Junes Connor, Jr., approached Oates, who wore it
union button on her dress, and said , "1 wouldn't belong to that phony outfit." 3:
Later during the same shift, Assistant Sub-Foreman Tliomas Mullen pointed to
her union button and said. "You don't mean to Say you belong to that?" 30
In the fall of 1944 company guards permitted distribution of anti-union leaflets
,on company property, as described more fully ]Hereinafter Following the dis-
tribution, Assistant Sub-Foreman Bierman 3, approached employee Harman
Goldin, waved a copy of the leaflet and declared, "When this war is over, your
Communist friends are going to be on the outside looking in " Before this
,occasion, Goldin had been wearing his union button The Trial Examiner finds
that Bierman knew of and was referring to his union affiliation, in his above-
,quoted remark At about the same time Bierman told employee Sam Lis "You
will never get the CIO in here anyhow, and they will never do anything for
you." " During the preceding summer, Bierman told Goldin and others, in a
group, that "it that f . CIO gets in here, you guys will have to toe the
mark." "
Even after the opening of the hearing in these proceedings, supervisoi5, a
company guard, and Association representatives engaged in a joint campaign,
at the 42nd Street plant, of harassing union adherents wh'ch continued until
the day after counsel for the Board informed counsel for the respondent, on
the record, of his intention to adduce evidence concerning the conduct of cer-
tain named representatives of management at that plant. On December 15,
1944, employee Murray Fudim was observed by his Section Chief, H N Wil-
liams, as lie distributed union leaflets in the cafeteria during his lunch period.
After lunch Williams took Fudnn to Division Chief Buttham and reported the
3' Schnapp's testimony as to this incident is undisputed
" Oates' testimony as to this point is undisputed
The finding is based upon Oates' credible testimony Although many other super-
visois readily admitted having seen union buttons worn in the plant, Connor denied ever
having seen either union or Associaion buttons at the plant
36 When first questioned about the incident, Mullen testified, "I don't remember that
No, I doubt very much if I would have said it that way."
'T Goldin referred to Bierman's title as "assistant sub-supervisor," and stated that he
was "foreman" of the lathe department The Tual Examiner infers that he meant "as-
sistant sub-foreman" Counsel for the respondent did not question, at the hearing,
the supcivisory capacity of Bieuuan, who was not a witness
13 The testn oonv of Goldin and Lie on the above matteia is undisputed
30 This finding rests upon the undisputed testimony of Leon Glasser, who stated that
he heard Bierman make the remark Goldin did not testify as to this specific incident, but
stated that in addition to the leaflet occurrence related above, lie had had other conversa-
tions with Bieunan "with reference to union affiliation
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incident. Buffham told Fudini that the only literature which could be dis-
tributed on company property "at any time" 40 was the Association news bulletin.
Fudim protested against this discrimination. Buffham told him that the Asso-
ciation had this privilege because of its contract, and warned Fudim that if he
violated the rule again disciplinary action vv ould be taken 4, Fudun's job was
testing and "trouble shooting," and the nature of his woik required occasional
consultation with other employees. Following this warning b> Buffham. Fu-
dim's immediate supervisor, Assistant Sub-Foiernau George Eisenbeig, llegai
following him around, it he spoke to another employee, it common occurrence
before, Eisenberg asked lute what he was talking about Eisenberg, Williams,
and Assistant Sub-Forenman Sherlock, vvhu replaced Eisenbeig after January 1,
1945, prohibited Fudim from speaking to other employees and othei employees
from speaking to him 42 Althou,h lie had never before been so questioned, on
three occasions between December 15 and January 15, Sherlock and Williams
asked him as to his whereabouts after lie had been to the men's room " Both
Eisenberg and Sherlock accused Fudim of being paid for assisting the Union"
Shortly after a number of employees in Fudun's department began wearing
union buttons openly, in the latter part of December, one of the company mili-
tarized guards, who was also an Association representative, was stationed on
their floor, although before this time no vuard had so been posted 4° Foi two
or three hours a day this guard, George Abramowitz, stood beside Ilndini,
watching him. During the same period Cooper. another Association representa-
tive, also appeared on this floor, stood by the time clock for ail hour at a time,
and watched Fudim. In addition to Abramowitz and Cooper, employee Jerry
Squillante, after announcing to employees on Fudim's flooi that lie had been
appointed an Association representative, began walking around the depart-
ment, calling Sherlock's attention whenever he save two employees speaking
togethei.46 On many occasions, after Squillanie had Spoken to him. Sherlock
admonished Fudim When Fnd in asked hiim if he w,i taking oilers trim
Squillante, Sherlock admitted that Squrllante had called his attention to Fudim,
and added, "After all, Fudim, you are in the limelight, and those things are
40 The quotation is from Buffhain's testinioin
41 The findings as to this interview rest upon Buffhani s testinioui
4, Fudim 's testimony on this point is undisputed Williams,uhoiievei testified that there
is "no rule that I know of, that people can't talk to each other ' Sherlock admitted that
it was not uncommon for employees to discuss their p1obleois while at woik
4° Neither Sherlock nor Williams was questioned on this matter
44 The finding rests upon Fudim's credible testinnon} Eisenberg was not .i witness.
Sherlock testified, when asked about the incident, "l don't recall the p:nticular dal- I
don t recall any conversation, I don't even remember spending any lime in that area at
that time . "
46 Sherlock admitted, as a witness, that lie had not noticed a guard stationed on this floor
before this time. He further admitted that lie had never noticed a guard even patrol the
floor before that
90The findings as to Abramowitz, Cooper, and Squillante rest upon b'uduu's uniefuted
testimony As to Abraniowitz's conduct, Sherlock testified, "I did not notice partieulaily
that there was a guard there at that time I never paid much attention to it He
admitted that Fudim complained about Abramowitz, testifying, "I remember very dis-
tinctly it struck me as being vet y funny " Larsen, supeiiisor of the guards, testified only
that Abramowitz was supposed to pati of three floors, including that where Fudim worked
He did not deny, however, that the guard spent many 11o111s on the filth floor match rig
Fudim
WESTERN ELECTRIC COMPANY, INCORPORATED 773
bound to happen." 47 Fudini similarly complained to Williams about being kept
under surveillance, and Williams likewise told him he was in the "limelight."
Fudim then complained of his treatment by guards and supervisors to Depart-
ment Chief Walter Boerner. Fudim asked if suspicion that he was sabotaging
equipment was the cause of his being watched Boerner replied, "No, Murray,
that is not the case at all. As a matter of fact, I think your record is highly
commendable and your record is a'very excellent one, and your work is one of
the best in my department." Boerner said lie would "look into" Fudim's com-
plaint. Two or three days later Fudrm repeated his grievance to Boei ner, added
that other employees resented "all this watching," and asked Boerner to make
his position clear to the employees in the department. Boerner refused to
do so, unless an Association representative was present. Fudirn objected to
this requirement, but finally agreed, whereupon Boerner declared that all repre-
sentatives were too busy to meet with then." Shortly after this, on January 18,
1945, Fudim and a dozen other employees of his department sought an interview
with Division Chief Bedell, but were told by Williams that no Association repre-
sentative was present and warned them that if they did not leave the vicinity
of Bedell's office he would have the guard put them out. The group later left
word with Superintendent Snyder's secretary that they wished to see him. Dur-
ing their rest period on January 15, while Fudim and others were in the cafeteria,
Abramowitz snatched from one of the girls a piece of paper upon which they
were noting matters they intended to discuss with Snyder. Fudirn protested to
Boerner, who agreed that Abramowitz was wrong. The guard, however, con-
tinued his surveillance of Fudirn and other union adherents On January 15,
after work, Fudim and a group of employees went to Snyder's office. They ex-
plained to him the serious state of affairs in their department, but Snyder refused
to talk with them at that time" A clay or two after this incident Williams
warned Fudim about his attendance record, although when the employee ques-
tioned him about it, Williams admitted to him that "while it is not too bad, it is
not very good, either, and you better watch your record si On January 24
Fudim and 10 other employees were admitted to Snyder's office. As they began
to present their grievances, thirteen Association representatives came into the
office and lined up against the wall. Each time Fudim and his group started
to state a grievance, the Association representatives interrupted. Fudim objected
to such treatment. The superintendent smiled and made no effort to quiet the
representatives.62 As noted heretofore on the same day cpunsel for the Board
announced his intention to adduce evidence concerning the above events, naming
"' Sherlock admitted, as a witness, that he told Fudim he was in the "limelight. '
48 As a witness, Williams admitted making this statement, but declared that he explained
to Fudim that it was because he was a "habitual breaker of the factory rules " The Trial
Examiner is not convinced that Williams gave this explanation to Fudim The only
credible evidence adduced to show that Fndim ever broke any factory rule was with
reference to the distribution of leaflets, heretofore described In tiew of all the circum-
stances, undisputed, surrounding the continued surveillance and harassment of Fudini,
the Trial Examiner is convinced and finds that Williams used the expression "in the
limelight" as a further means of attempting to discourage his union activity.
"The details of Fudim's account of these interviews were either fully corroborated or
undenied by Boerner
50 Fudim 's account of the above incident is undisputed.
ii Williams admitted that this incident occurred. No records were offered by the re-
spondent to show that Fudim's record in this respect was bad, or worse than that of any
other employee.
a Fudim' s account of this interview is undisputed
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Snyder as one of the respondent's agents involved in alleged unfair labor prac-
tices. The next morning Snyder called Fudim and others of his group to his
office, and this time they were permitted to present their grievances in an orderly
fashion Snyder agreed to look into the matters, but flatly refused, as suggested
by Fudim, to post any notice to dissipate fears aroused in employees by the
treatment which had already been accorded to union adherents On the fol-
lowing day, Abramowitz was not seen by Fudim on the fifth floor, and no guard
," as thereafter posted there.'
It is concluded and found that by the anti-union remarks and conduct of
supervisors and guards, above described, the respondent interfered with, re-
strained and coerced its employees in the exercise of rights guaranteed by Section
7 of the Act.
(b) Through direct assistance by supervisors
Soon after Nathan Selinapp was employed at the Kearny plant in May 1942,
he asked his supervisor, Assistant Sub-Foreman J B. Leonard, Miat his chances
were for advancement. Leonard told him he had nothing to worry about if he
joined the Association and let it take care of his affairs. Schnapp inquired as
to how he could join, and a few minutes later Leonard came back with an
Association representative, whom he introduced to Schnapp. While the repro-'
sentative waited, Schnapp filled out cards given him for membership application.
This incident occurred during Schnapp's working hours."
Early in December, 1944, while employee Raymond King at the Kearny plant
was discussing unions with other employees during a rest period, Assistant
Sub-Foreman M B. Marshall, standing nearby, declared, "The trouble with you
boys is, you don't know on what side your bread is buttered." Shortly before
this occasion King had become active in behalf of the Union, wearing its button
and assisting in the distribution of leaflets. The Trial Examiner concludes
and finds that Marshall made the above-quoted remark with full knowledge of
King's union affiliation and that they were intended to encourage Association
membership "
Immediately after employee N J. Minis, at the Bayonne plant, had been
solicited for Association membership during working hours by.a representative
in June, 1943, Minis' supervisor, Joe Pyet, asked him what their conversation had
been about When Minis admitted that lie had declined to join the Associaion
because he was not ,interested in company unions, Pyet said that he had be-
longed to it and had benefited by it. When Minis declared that he believed he
could gain benefits by his own initiative, Pyet said, in effect, that the Association
might deprive him of opportunities for advancement
Group Chief Louis F. Minissale, a witness for the respondent, testified that wile
he was an Association member from 1937 to 1944, at which time he became a
supervisor, it was the custom for department sub-foreman to "contact" Associa-
tion representatives concerning new employees Sometimes, according to
Minissale, the sub-foreman "would tell the representatives lie has got a new
employee on his hands," and the representative would introduce himself. This
action, particularly from 1941 to 1944, when management well knew many
53 Fudim's testimony on this point is unrefuted Snyder was not a witness
ci Leonard denied advising Schnapp to join the Association, but admitted that he might
have had a conversation about labor organizations with Schnapp soon after the latter was
hired.
55 The finding rests upon King's credible testimony.
10 Minis' testimony as to this incident is unrefuted
WESTERN ELECTRIC COMPANY, INCORPORATED 775
employees were attempting to organize the Union, constituted direct and major
support of the Association.
(c) Through disci uninatmon against the Union and In favor of the Association
(1) By disparity of treatment in permitting organizational activities on company
property
a Privileges accorded the Association
1. Solicitation of members and collection of clues
Of direct bearing upon Association activities described in this and subsequent
sections is the testimony of Hammel, that in an agreement executed September
27, 1942,
a provision was included prohibiting solicitation and distribution during
working hours, and another section prohibiting distribution of anything
except the regular monthly publication of the union [Association] at any
time on the company premises.
Similar provisions were also included in a later contract, which was in effect
at the time of the hearing Thus, since September 1942, contractual provisions
covering the above-mnentioned activities have been in continuous effect.
As noted above, Group Chief Minissale testified that it was long the custom
for sub-forenmen to introduce representatives to new employees. In August
1944, a few days after Maurice Spivack was hired, Foreman James Smith
brought Association representative McCabe to hun during his working howls.
Two days later McCabe returned, also during working hours, solicited Spivack's
membership in the Association, and collected money from him.57
Assistant Sub-Foreman Kroessig, whose leadership in organizing the Association
has been described, testified that for the two-year period when he was off the
job, he and plant representatives were issued passes by management which per-
mitted them not only to go through the plant gates whenever they wanted to,
but also provided them with access to various departments It was not required
that they obtain anyone's permission to visit any particular department.
In the summer of 1937 a petition was circulated among employees in a Kearny
plant department, during working hours, designating. employee De Maio as
their job representative. About two hours was used in this c.rculation, which
was observed by Section Chmel Metzger His only comment was to "Hurry up "
After circulations was completed, Metzger permitted De Maio and another
employee to take it to Association headquarters, without punching out their
time. Both were gone about half an hour, neither was docked for his absence
from work About a week later De Maio was again permitted to go to the
Association headquarters on company time. He obtained a number of member-
ship books, which lie then distributed to about 20 employees in 1Metzger's
presence."
De Maio served as an Association job representative from July 1937, until
elected a plant representative in 1939. He was re-elected to this latter office
in 1940, and sea ved until expelled in 1941, when union organization began at
the plant Throughout this four-year period lie fi eely solicited membership for
67 Spivack 's testimony as to these matters is uncontradicted
"Metzger denied the occurrence of all of the above-described events except that relating
to the membership books It is hardly likely that De Maio would have been distributing
the membership books had the preliminary incidents not occurred.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
the Association among employees, not only on his floor, but in other departments
as well, during working hours. He also collected Association clues, during work-
ing hours. On one occasion, in 1937, De Maio went to the department super-
vised by Section Chief R. J. O'Rourke, where he solicited Association member-
ships among a group of girls at work. While talking to them, O'Rourke
approached and asked what De Maio was doing When the latter replied that
lie was on Association business , O'Rouike walked away' When De Maio
became a plant representative he continued such solicitation activities, but
covered "more territory," since he had six buildings under his "jurisdiction."
During this period De Maio was never stopped or i eprimanded by any supervisor
for soliciting memberships or collecting dues tor the Association during working
hours.
Soon after being employed at the Kearny plant in November 1942, and while
working at her bench, Sally Konigsberg was solicited for Association member-
ship by employee De Guida Konigsberg went to the shop clerk and requested
a dues deduction card Assistant Sub-Foreman E S Doty, whose desk was
nearby, provided the clerk with the card, which was then given to Konigsberg 60
About a week after being employed at the Kearny plant in October 1941, B T.
Bender was solicited for Association membership by Job Representative Huff.
Bender signed an application card and gave Huff his initial dues This occurred
during Bender's working hours. At various times during the next three years,
Bender saw representatives Huff, Donovan, Locke, Ross, and Maestro solicit
memberships from new employees as they came into the department. Accord-
ing to his undisputed testimony, there were "always supervisors around," and
the Trial Examiner finds that supervisors were aware of the solicitation61
In July 1942, Hilda Kramer, then a new employee, was solicited for Asso-
ciation membership during working hours at her bench, by representative Clark.
At the time Clark was engaged in distributing copies of the Association News
to employees at their work places 62
Not long after being employed in 1041, Maintenance Electrician F. M Mac-
Gregor was given Association application and dues deduction cards during
wcvoiking hours by job representative Sam Howie. A few months later, after
having resigned from the Association, he was again solicited to rejoin by
representative Marty Hughes, during working hours.63
Hughes solicited employee Ruth Oates, soon after she was hired in September
1942, while she was at work On the same occasion Hughes spent half an hour
or more soliciting memberships from several other girls working near Oates.04
In the latter part of 1943 and early 1944, at least three training classes were
held for new employees at the respondent's Eleventh Ave. plant, on different
50 O'Rourke admitted the occasion, but testified that lie told De Maio that it was against
"the agreement" to hold a meeting on company property, and that when De Maio "did not
pay much attention ," he told the group to disperse and it did On cross-examination,
however, he admitted that he did not know when any such "agreement" was signed, and
evaded a question as to whether any such agreement actually existed in 1937
00 Konigsberg's testimony as to this incident is undisputed Doty died in 1944 The
respondent offered no evidence to show, however, that either the shop clerk or De Guida
was unavailable to testify
61 Supeivisors Keller, Petry and' Mimssale denied having seen any such solicitation.
Their denials , howevei , do not affect the finding The respondent offered no evidence to
refute Bender's testimony that during this peiiod there neie about 25 supervisors in this
department
6! Kianier ' s testimony as to her solicitation is unrefuted
°a MacGregor ' s testimony as to these incidents is undisputed.
61 Oates' testimony on the above point was uncoil tradicted
`WESTERN ELECTRIC COMPANY, INCORPORATED 777
floors of the building Among the instructors in charge of such classes were
Russ Travison, W. E Calvert, J J Byrne, and M. D. Nelson It was the con-
tention of counsel for the respondent at the hearing that these instructors, or
"training assistants," wei e not supervisors and, by implication, that the respondent
may not be held accountable for any unfair labor practices they may have engaged
in. The testimony of the four above-named instructors refutes this contention.
Their testimony establishes that instructors: (1) held "management" jobs and
were ineligible for Association membership for that reason; (2) marked eni-
ployees' examinations and reported on their general attitude, tests, and classwork
averages; (3) recommended discipline; (4) had authority to discipline employees
in the class rooms; (5) told employees when they were to take up regular pro-
duction work; (6) had the responsibility of seeing that company rules were
obeyed; and (7) kept tardiness records and determined when rest periods were
to be given. New employees, assigned to these training classes, punched in and
out and were paid as regular employees Except in some instances they were
required to put in full eight hours at the classes, which were from 2 to 5 weeks
in duration. The Trial Examiner is convinced, and finds: (1) that these m-
stiuctors held management positions of such nature that new employees reason-
ably looked to them for the interpretation of company policies, (2) that such
instructors are, in effect, agents of the respondent; and (3) that the respondent
:must be held accountable for any unfair labor practices they may have engaged in.
In September or October 1943, while about 25 new employees were attending
Byrne's class, two Association representatives carne into the room while the
class was in session. They asked Byrne to leave, and he went out. For the next
20 or 25 minutes one of the representatives gave a talk about the Association,
distributed application cards and collected them after they were signed. Alter
the representatives left, Byrne came back and class work was resumed" In
December 1943, another Association representative, Bernice Lowe, spent about
15 minutes in another class room area, under the supervision of instructors
Tiavison and Nelson, soliciting Association memberships from 20 to 25 em-
ployees. The entire class was then in session; Travison was standing nearby`
In January 1944, Lowe entered the classroom of Instructor Calvert, and asked
his permission to speak to the employees Calvert protested that lie was busy, and
asked her to come back later. Lowe insisted, however, and Calvert left the room
Lowe then solicited Association memberships among the 15 employees attending,
distributed and collected application cards. Thereafter Calvert returned, and
resumed his lecture "
"These findings rest upon the credible testimony of employees Black, Panken, and
Belsky. Byrne's version is related in the footnote next but one below
86 These findings are based upon the credible testimony of Black and Belsky, both of
whom were taking more advanced courses at this time The testmiony of Travison is
summarized in the next footnote
"The above findings rest upon the credible testimony of employee Hannah i11o5 er
As to the incident in his class, Bvrne testified that one of the company representatives,
who was also a company guard, carne to him and asked when the next rest period began
At the rest period, Byrne said, he went out. Although rest periods were only of 10
minutes' duration, he admitted that on this occasion lie remained away for 15 or 20
minutes When lie returned , lie further testified, lie saw the guard and another repre-
sentative leaving the classroom He further admitted that he saw some of the girls
in the classroom with Association cards, when lie returned, but that he said nothing to
then Both Travison and Calvert recalled, as witnesses, Lowe's coming to their re-
spectile classes and asking to make an "announcement" to the employees Both, ac-
coiding to their testimonv, told her that they del not know whether she could or not
Both instructors testified that they left in the middle of their lecture, with Lowe in the
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day Salvatore 11Iistretta was hired in August 1941, he was solicited
for Association membership by Representative Ferrera, during working bouts.
Dues were collected at the same time. From January to June 1944, Mistretta
saw Representatives Raska and Frederica, on several occasions, solicit Associa-
tion memberships during working hours on the working floor On one of the
occasions Supervisors Caesar and Alphonso were standing nearby, within 10
feet's
About a month after being hired at the Bayonne plant in 1942 Leon Glasser
was solicited for Association membership by Representative Miller, during
working hours °9
As noted heretofore, employee Nathan Schnapp signed an application card
after being introduced to a representative by Supervisor Leonard On se} eral
occasions thereafter, in a department where many new employees wen e being
hired, the same representative solicited memberships from the new employees.'°
A few months after being employed in 1940, Eugene Cusanelli was solicited
for Association membership, while at work, by Representative John Zielinski"
About two weeks after being hired at the Kearny plant Herman Goldin was
solicited for Association membership by a job representative while at his work
bench '
In Januaiy, 1943, Myitle Drosin, a new employee at the Tube Shop, was
solicited for Association membership by Representative Evelyn Alessi, during
working hours"
I In January, 1942, soon niter being hired at the Kearny plant, Sani Lis was
solicited for Association membership by job repiesentative Jackson. while at
his machine After about 15 minutes of discussion. Lis agreed to join The
next night, also while Lis was at work, Jackson brought hum an application card,
which he signed On the first occasion. Group Chief Robert Scherer was seated
at his desk, about 15 feet away , on the second occasion Schei er was standing at an
classiooin' and sought the advice of the same section chief. Honilich who was not a
witness at the heal mg Both Travison and Calvert admitted being away from their
classrooms about 20 minutes, and both testified that when they returned, having been
advised by Honilich that the representative's request should be denied, they met Lowe
a few feet fi oni the classiooin door, but that they did not speak to her. Travison claimed
that he spent this period of time looking for Homlich, while Calvert said that he spent
most of that time waiting for Homlich to finish a telephone conversation Calvert ad-
nutted that IIonihich's desk, from which point he was telephoning, "was only 15 feet
from the classroom door, which was of glass, and that he could have" stood at the desk
and watched Lowe talk to the class He also admitted that he "guessed" Lowe wanted
to talk about the Association Nelson denied being present with Tiavison on the above
occasion, although lie admited that he frequently shared classes with him The Trial
Examiner accepts Nelson's denial as true, but can place no reliance upon the other in-
structors' vei sions of the incidents The spectacle of two supervisors, conveniently
absenting themselves from the classroom, to ask about a rule which it was already their
duty to enforce, defies beliel As to Byrne, it is clear that lie declared a convenient
"rest period" for himself, left the room, and waited for the representatives to complete
their solicitation
UN At the time Caesar was a sub-foreman , Alphonso was it group chief The findings
are based upon Mistretta's credible testimony, undisputed by Caesar, who was not called
as a witness Although Alplionso denied that he had ever seen any representative
solicit Association membership, Mistretta's testimony is corroborated by overwhelming
evidence that this was it common practice in the plant
19 Glasser's testimony on this point is undisputed
'0 The findings rest upon Schnapp's credible testimony Leonard was not questioned
about the representative's later activities
" Cusanelli's testimony as to this solicitation is undisputed
'' Goldin s account of this incident is uncontiadicted,
"Drosui's testimony on this point is unrefuted.
WESTERN ELECTRIC COMPANY, INCORPORATED 779
adjacent machine The supervisor said nothing to Jackson at either time. There-
after, Lis saw Jackson solicit Association memberships trom employees on at
least three occasions.'
In the spring of 19-13, employee Raymond King was appioachetl by plant repre-
sentative Fitzsimmons with Association membership and dues deductions cards,
during working hours at the Kearny plant In December, 1944, Kung observed
representative Moffat give employee Rosenstein, at it machine opposite him,
similar cards which the employee signed When King piotested to Mcffat that
lie was soliciting on company time, I lie representative laughed °fi
A few months after having been hired at the Kearny plant in October. 1942,
employee Sam Gieenbeig was solicited for Association membership by job repre-
sentative Abe Boardman, dui ing working hours at his machine
In December, 1943, new employee Rosalie Andrews was solicited for Associa-
tion membership while at work in the Kearny plant by representative John
Roma At the same time Roxni obtained a signed application card from
Crystal Alfred, working beside Andrews `°
In October, 1943, a new employee Mnuay Fudini was solicited for Association
membership during working hours by a job representative Fudim declined
The representative returned, piessing his solicitation, on later occasions, during
one of which Assistant Sub-Foreman Tonstruin was in the tool crib with Fudim,
:in enclosure about 3 yards square 17
Section Chief J W Lawson, a witness called by the respondent, testified that
before he became a supervisor he joined the Association by signing an apphc 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, Rochambeau
WESTERN ELECTRIC COMPANY, INCORPORATED 835
Building , Washington 25, D. C., an original and four copies of a statement in
waiting setting forth such exceptiims to the Intermediate Report or to any other
part of the record of proceeding (includingrulings 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 statement of exceptions and/or
brief, the party or counsel foi 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, iequest therefor must be made in writing within
ten (10) days from the date of the order transferring the case to the Board
C W. WHITTEMORE,
Trial Eaanunei.
Dated September 27, 1945.
APPENDIX A
NOTICE,io ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Rotations Act, we hereby notify our employees that:
We hereby disestablish Western Electric Employees Association, Inc, 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 employment, 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.
We will reimburse employees for the amount of dues and fees which we
have checked off their wages and paid over to the Western Electric Employees
Association, Inc., from September 8, 1937, to September 21, 1944.
We will offer to the employees named below immediate and full reinstate-
anent to their former or substantially equivalent positions without prejudice
to any seniority or other lights or privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Pearl Drinkhaus
Shirley Perlmuter
William Van Felix
We will make whole the employees named below for any loss of pay suf-
fered as a result of the discrimination.
Rebecca Horn
Evelyn Da Silva
Joseph Colelli
Sally Konigsberg
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 C I. 0., 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 employ-
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment or any term or condition of employment against any employee because of
membership in or activity on behalf of any such labor organization
WESTERN ELECTRIC COMPANY, INCORPORATED,
By ------------------------ ---------------
(Representative) (Title)
Dated------------------------
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.