Aeolian-American Corp.

National Labor Relations Board - Board Decisions

Sep 8, 1938

8 N.L.R.B. 1043 (N.L.R.B. 1938)

IN THE MATTER OF AEOLIAN -AMERICAN CORPORATION and AMALGA-
MATED PIANO WORKERS OF AMERICA
Case No. C-508.-Decided September 8, 1938
Piano and Piano Parts Manufacturing Industry-Interference, Restraint, or
Coercion : charges of , dismissed-Company-Dominated Union: charges of, dis-
missed ; neutral position on part of company between plant union and outside
union-Discrimination : charges of, dismissed ; employees discharged pursuant
to valid closed -shop agreement with union-Contract : closed-shop , with inde-
pendent union , valid.
Mr. John H. Dorsey, for the Board.
Mr. Percival D. Oviatt and Mr. Harold H. Barnsdale, of Roches-
ter, N. Y., for the respondent.
Mr. Addis V. Adams, of Rochester, N. Y., for the Independent.
Mr. Joseph Kovner, of Washington, D. C., for the Amalgamated.
Mr. Lewis M. Gill, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Amalgamated
Piano Workers of America, herein called the Amalgamated, the
National Labor Relations Board, herein called the Board, by the
Regional Director for'the Third Region (Buffalo, New York), issued
its complaint and notice of hearing dated December 14, 1937, against
Aeolian-American Corporation, East Rochester, New York, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce,
within the meaning of Section 8 (1), (2), and (3), and Section 2
(6) and (7), of the National Labor Relations Act, 49 Stat. 449,
herein called the Act.
The complaint alleged in substance that on or about August 13,
1937, the respondent terminated the employment of Walter Vicinus
and John Christof, and since has refused to reinstate them, because
of their membership and activities in the Amalgamated; that on
or about May 10, 1937, and thereafter, the respondent dominated
and interfered with the formation and administration of a labor
organization known as Independent Union of Piano Employees,
8 N. L. R B., No. 127.
1043
117213-39-vol. 8-67 -
1044 NATIONAL LABOR RELATIONS BOARD
herein called the Independent, and contributed support thereto.
The complaint and accompanying notice of hearing were duly served
upon the respondent and upon the Amalgamated.
On December 20, 1937, the respondent filed an answer to the com-
plaint denying that it had engaged in or was engaging in the unfair
labor practices as alleged. On or about January 3, 1938, the Inde-
pendent filed a petition requesting permission to intervene. An
order granting such intervention on the issues relating to the Inde-
pendent was entered on January 7, 1938, by the Regional Director.
Pursuant to notice, a hearing was held in Rochester, New York,
on January 10,'11, 12, 13, and 14, 1938, before William P. Webb,
the Trial Examiner duly designated by the Board. The Board,
the respondent, and the Independent were represented by counsel
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. During the course of
the hearing, the Trial Examiner made various rulings on motions
and on objections to the admission of evidence. The Board has
reviewed the Trial Examiner's rulings and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On March 24, 1938, the Trial Examiner filed his Intermediate
Report, in which he found that the respondent had engaged in and
was engaging in the unfair labor practices alleged in the complaint,
and recommended that the respondent cease and desist its unfair
labor practices, reinstate Vicinus and Christof with back pay, and
disestablish the Independent as a bargaining representative of its
employees. He also overruled certain motions to dismiss the com-
plaint. Thereafter, the respondent and the Independent filed excep-
tions to the Intermediate Report. On May 5, 1938, oral argument
was had before the Board at Washington, D. C. The respondent,
the Independent, and the Amalgamated participated in the argu-
ment. Briefs have been submitted by the respondent and the
Independent.
The Board has considered the exceptions to the Intermediate
Report. As indicated by our findings, conclusions of law, and order
set forth below, we sustain the exceptions to the findings of the
Trial Examiner that the respondent engaged in unfair labor
practices.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a New York Corporation with its plant and
principal offices in East Rochester, New York. It manufactures
DECISIONS AND ORDERS 1045
(b) From in any, manner interfering with, restraining, or coercing
parts. Approximately 72 per cent of the materials used by the
respondent in the course of manufacture, including piano actions
and keys, lumber, veneer, hardware, felts and cloths, oils and var-
nishes, glue, brass, steel, electric motors, piano strings, and other
supplies, are obtained and shipped to the plant from outside the State
of New York. Approximately 74 per cent of the respondent's
finished products are shipped out of the State of New York, going
to every State of the United States and to certain foreign countries.
The respondent's gross annual sales exceed $1,000,000.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Piano Workers of America is a labor organization
affiliated with the Committee for Industrial Organization, herein
called the C. I. O. It admits to membership production employees
of the respondent.,
Independent Union of Piano Employees is an unaffiliated labor
organization admitting to membership all employees of the respond-
ent except those with supervisory functions.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged domination and support of a labor organization
Prior to April 1937 no labor organization existed at the respond-
ent's plant. During that month a group of the employees formed the
Amalgamated and commenced organizational activities among their
fellow workers. They were assisted by one Plati, a representative
of the Amalgamated Clothing Workers of America, a labor organ-
ization affiliated with the C. I. O.
In the middle of May 1937 the Independent appeared on the scene
as a counter movement to the organizing drive of the Amalgamated.
There is no evidence that the forming of the Independent originated
with, or was inspired by, the respondent. Three employees, none of
whom was identified with the management, appear to have started
-the movement. Beginning about May 20 these persons, assisted by
1 In April 1937 representatives of the Amalgamated Clothing Workers of America, a
labor organization affiliated with the C I. 0 , assisted a group of the respondent 's employees
in the formation at the East Rochester plant of a labor organization for piano workers,
affiliated with the C. I O. Although the issuance of a charter to the new organization by
the C. I. 0., and the adoption by it of a constitution and bylaws had not yet occurred at
the time of the hearing , the new organization nevertheless at all times material herein
constituted a labor organization , within the meaning of Section 2 (5) of the Act. Mem-
bership of the respondent 's employees in the new organization -was first signified by signed
membership cards issued by the C. I. O. There was later added to these cards in an ap-
propriate blank space the chosen name of the new organization, Amalgamated Piano
Workers of America.
1046 NATIONAL LABOR RELATIONS BOARD
others, circulated a petition among the employees for the signatures
of those favoring an independent organization. Later membership
cards of the Independent were distributed. The record shows that
this organizational activity occurred in large part during working
hours in the plant, frequently in the presence of foremen and man-
agerial employees, and that the respondent took no steps to check
the activity. On the other hand, it also was established that members
of the Amalgamated during this period likewise circulated member-
ship cards and pamphlets in the plant during working hours without
restraint. Thus both groups solicited memberships on company time
with impunity. Certain of the proponents of the Independent in-
cluded in their arguments to employees assertions to the effect that
the president of the respondent proposed to close the plant if the
Amalgamated came in, and that the general superintendent favored
their organization. However, both these officials testified, and we
believe, that they had never so expressed themselves, and there is no
proof that they or other supervisory officials knew at that time that
the Independent was thus making claim to the respondent's support.
Meetings of the Independent were held outside the plant, at the Odd
Fellows hall in East Rochester. Guidance in formal matters attend-
ant upon organization was furnished by an attorney retained by the
Independent.
Until June 8, 1937, no meeting between the respondent and the
Independent appears to have occurred. On that date, a committee of
the Independent met with the respondent's president, Kavanaugh, and
requested recognition of the Independent as the sole bargaining agency
for the respondent's employees. The committee presented the mem-
bership cards of their organization as proof of majority representa-
tion. A check of the cards was then made by the respondent's super-
intendent and assistant treasurer, against the respondent's pay roll.
A comparison of names and signatures revealed that 326 cards ap-
peared to bear the names and authentic signatures of persons employed
by the respondent. At that time there were 615 employees in the
plant, 24 of whom were supervisory. The respondent, through Kava-
naugh, then granted the desired recognition to the Independent.
Between June 8 and 14 the Independent was busy formulating
demands to be made upon the respondent. Some 30 additional mem-
bership cards were signed by employees and found satisfactory upon a
check by the respondent against the pay roll.
The demands of the Independent were presented by an Independent
committee to Kavanaugh, acting for the respondent, on June 14. They
included a request for a general increase in wages of 10 cents an hour,
the abolition of piece work, and a closed shop. The closed-shop
demand was not included in the written list of demands as submitted
DECISIONS AND ORDERS 1047'
by the committee, but the testimony of those present shows that it was
added orally. Kavanaugh told the committee he would call them in
later after the demands had been considered. The next morning he
summoned the committee and granted in substance the demands,
except for an 8 rather than 10 cents an hour increase in pay. There
were several conferences during the day concerned with meeting cer-
tain difficulties with respect to the abolition of piece work, and a con-
tract was finally signed that evening. As concluded, the contract pro-
vided, among other things, for an 8 cents an hour wage increase and a
closed shop. Kavanaugh testified-that he saw no particular advantage
or disadvantage to the respondent in the closed-shop provision, that it
was agreed to because of the insistence of the Independent committee.
On June 18 the contract was ratified at a meeting of the Independent.
On June 17 Plati, the organizer for the Amalgamated, telephoned
Kavanaugh at the plant. Kavanaugh was not in, and Plati talked
with the superintendent, Hill, who suggested that Plati telephone
Kavanaugh at his home. Plati was seeking recognition of the Amal-
gamated, which had a number of members in the plant at that time.
However, Plati did not telephone Kavanaugh, and both Kavanaugh
and Hill testified that this was, to their knowledge, the only attempt
ever made on the part of the Amalgamated to deal with the respond-
ent. While at the hearing Plati placed the date of this telephone call
as sometime in the latter part of May, Hill's testimony that it was
June 17 appears to us more reliable. Moreover, Kavanaugh testified
that Hill telephoned him at his home on June 17 and told him that
Plati had called that day. In any event, the Amalgamated made
no serious effort to present to the respondent, and support, any claim
of majority membership in the plant.
Finally, it is shown that certain circulars and notices of the Inde-
pendent were printed on the respondent's mimeographing machine
during working hours by one Hayes, a woman operator of the ma-
chine in the employ of the respondent. She testified that she cus-
tomarily printed short documents for employees upon request, that
she would have accommodated members of the Amalgamated had
they asked her to print notices for their organization, and that the
circulars and notices in question had been printed at the request of
one Davis, a personal friend of hers and president of the Inde-
pendent. Her supervisor did not occupy the same room as she, and
there is no showing in the record that this assistance to the Inde-
pendent was with the knowledge or approval of the respondent.
We are of the opinion that the evidence does not sustain the allega-
tions of the complaint that the respondent supported, dominated,
and interfered with the formation and administration of the Inde-
pendent and contributed support thereto. It is true that the respond-
1048 NATIONAL LABOR RELATIONS BOARD
ent granted recognition to the Independent without an inquiry into
the numerical strength of the Amalgamated, at a time when it knew
that the Amalgamated also was organizing at the plant. However,
the Amalgamated had made no effort to establish any claim of repre-
senting a majority, and the Independent had presented membership
cards, apparently valid, totalling a clear majority. No evidence was
brought out at the hearing tending to disprove the Independent's
majority or to contest the appropriateness of the bargaining unit
which it claimed to represent. There is no proof that at that time the
respondent had reasonable cause to believe that a substantial contro-
versy existed between the two unions concerning majority representa-
tion or the appropriate unit. In view of these facts, we do not feel
that the respondent's recognition of the Independent can be held so
precipitous as to show a design to grant that organization a favored
position over the Amalgamated. While the circumstances surround-
ing the respondent's ready concession of a closed shop are somewhat
suspicious, they are insufficient in the situation before us to upset the
conclusion we have reached. The contract is a valid one.
The fact that the respondent permitted solicitation of membership
by the Independent on company time would of course be strong proof
of domination and interference with that organization, if the Amal-
gamated had been denied similar privileges. However, since members
and adherents of the Amalgamated were treated equally and afforded
full opportunities in this regard, we cannot say that sponsorship and
support of the Independent are shown, within the meaning of the
Act.
The preparation of Independent circulars and notices on the re-
spondent's mimeographing machine would evidence support by the
respondent, had this assistance been sanctioned by the respondent,
but there is no such proof. Similarly, we do not have before us the
question of a duty on the part of an employer to disavow known
claims of company support by one of two or more competing unions,
since there was no showing that Kavanaugh, Hill, or any other
supervisory official of the respondent was cognizant of the assertions
of Independent organizers that the Independent enjoyed the favor of
the respondent.
We find that the respondent has not dominated or interfered with
the formation or administration of, or contributed support to, the
Independent. We, accordingly, will dismiss the allegations of the
complaint in this respect.
B. The alleged discriminatory discharges
Walter Vicinus and John Christo f were leaders in the organiza-
tional activities carried on by the Amalgamated at the plant. Each
DECISIONS AND ORDERS 1049
had worked for the respondent about 15 years. They were dis-
charged August 13, 1937, upon'the insistence of the president of
the Independent, Davis, that the respondent discharge the men for
refusal to pay their initiation fee in the Independent. Enforcement
of the closed-shop provision in the contract had been deferred until
Aug list 9 by agreement between the respondent and Davis. On that
date certain of the employees, including Vicinus and Christof, still
had failed to pay their' initiation fees, although they had signed
membership cards. By August 13 all but ' Vicinus and Christof
had satisfied Davis either by actual payment of the fee or by prom-
ising to pay. There is a conflict in the evidence as to whether
Vicinus and Christof categorically refused to pay or whether they
merely pleaded lack of funds at the time; at any rate, Davis reported
to Kavanaugh that they had refused, and Kavanaugh had them dis-
charged. The two men subsequently had a hearing with Kava-
naugh in Davis' presence, at which time they offered to pay Davis
their fee and reiterated that they had not refused before. However,
Davis was adamant, saying that it was a closed case since the men
had not promised to pay by the prescribed deadline. Kavanaugh
expressed his willingness to take the men back, but told them that
the decision, by virtue of the terms of the closed-shop contract, rested
with the Independent and that Davis' word was final. At the hear-
ing, Kavanaugh repeated that he had wanted to reinstate the men
but had felt that he could not interfere with the Independent's deter-
mination on the membership status of the two men. The executive
committee of the Independent ratified Davis' action.
We do not feel that the evidence sustains the allegations of the
complaint that the respondent discharged Vicinus and Christof be-
cause of their membership and activity in the Amalgamated. Of
course, had the respondent, through the cooperation of the Inde-
pendent, utilized the closed-shop provision to rid itself of the two
men because of their activities in the Amalgamated, under circum-
stances where the force of the closed-shop provision otherwise would
not have been wielded, the discrimination would be clear. However,
we find no such ulterior purpose on the part of the respondent. The
closed-shop provision being valid, the discharges were not unfair
labor practices.2 Whether or not Davis and the Independent acted
unfairly in denying to the men a full opportunity to join the Inde-
pendent and retain their jobs, which the respondent was ready and
willing to make available to them, is not before us.
2 Section 8 (3) of the Act: " . nothing in this Act shall preclude an employer
from making an agreement with a labor organization ( not established , maintained, or as-
sisted by any action defined in this Act as an unfair labor practice ) to require as a condi-
tion of employment membership therein, if such-labor organization is the representative of
the employees as provided in section 9 (a), in the appropriate collective bargaining unit
covered by such agreement when made."
1050 NATIONAL LABOR RELATIONS BOARD
Since none of the allegations of unfair labor practices has been
found to be supported by the record , the complaint will be dismissed
in its entirety.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. The operations and business of the respondent constitute a con-
tinuous flow of trade , traffic, and commerce among the several States,
and between the States and foreign countries , within the meaning of
Section 2 (7) of the Act.
2. Amalgamated Piano Workers of America and Independent
Union of Piano Employees are labor organizations , within the mean-
ing of Section 2 (5) of the Act.
3. The respondent has not dominated or interfered with the for-
mation or administration of, or contributed financial or other sup-
port to, the Independent - Union of Piano Employees , within the
meaning of Section 8 (2) of the Act.
4. The respondent has not discriminated in regard to the hire or
tenure of employment , or any term or condition of employment,
of Walter Vicinus and John Christof , within the meaning of Section
8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
complaint against the respondent , Aeolian-American Corporation,
East Rochester ,- New York, be , and it hereby is, dismissed.
MR. EDWIN S. SMITH took no part in the consideration of the
above Decision and Order.