Bailey Meter Co.

National Labor Relations Board - Board Decisions

Nov 18, 1943

53 N.L.R.B. 706 (N.L.R.B. 1943)

In the Matter of BATLEY METER COMPANY and MrcHANTCS EDUCA-
TIONAL SOCIETY OF AMERICA (CUA)
Case No. 8-C-1%65.-Decided November 18, J943)
DECISION
AND
ORDER
On September 27, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist from the unfair labor
practices found and take certain affirmative action, as set out in the
copy of the Intermediate Report attached hereto. Thereafter, the
respondent filed exceptions to the Intermediate Report and a support-
ing brief. Oral argument, in which only the respondent participated,
was held before the Board in Washington, D. C., on November 4, 1943.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's brief and exceptions, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the exceptions and
qualifications noted below :
1. The Trial Examiner found, and we agree, that the respondent
engaged in a course of conduct violative of Section 8 (1) of the Act.
As part of this conduct the Trial Examiner considered the statement
of Superintendent Sutherland to employee Baldwin, about 4 days
before the election of February 3, 1943, that "working" in the plant
would not be as pleasant if the Union should win the election, and
the statement of Foreman Whitely to employees Ferraiuolo and
Chekemian, on the occasion of their inquiry several days after the
election as to why they had not received wage increases, that they had
"stuck out" their necks. We find that Superintendent Sutherland's
statement before the election constituted a direct threat of economic
reprisals should the employees disregard the respondent's wishes and
vote for the Union; and that Foreman Whitely's statement, after the
Union had lost the election, indicated that such reprisals were being
53 N. L. R. B, No. 126.
706
BAILEY METER COMPANY 707
effected for past activity in behalf of the Union, and would continue
to be effected against employees engaging in further attempts at self-
organization. These coercive statements, coupled with the respond-
ent's other acts and conduct, as set forth in the Intermediate Report
and adopted herein, demonstrate clearly the coercive nature of the
respondent's whole course of conduct.
2. Contrary to the Trial Examiner, we find that Works Manager
Barnes' refusal, after the Union had lost the election, to entertain the
request of the committee of employees to establish a grievance pro-
cedure for members of the Union only, and his further refusal to
discuss grievances with a committee other than one composed only of
employees of the respondent, did not constitute an attempt by the
respondent "to induce its employees to forego further efforts to secure
unionization"; nor, in our view of the case, do we deem it necessary
to consider and make any finding with respect to Foreman Zappala's
remarks to employee Hunter, made in response to the latter's inquiry
of Zappala.
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, Bailey Meter Company,
Cleveland, Ohio, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right -to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities, for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in the respondent's
plant at Cleveland, Ohio, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, notices to its em-
ployees stating that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraph 1 of this Order;
(b) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
INTTERMED [ATE REPORT
Mr. John A. Hull, Jr., for ]he Board.
Spieth, Taggart, Spring & Annat, by Mr. L. C. Spieth and Mr. Paul H Keough,
of Cleveland, Ohio, for the respondent.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Messer$: William L. Brooker and William Bullock, of Cleveland, Ohio, for the
Union.
STATEMENT OF THE CASE
Upon amended charge duly filed on June 14, 1943, by Mechanics Educational
Society of America (CUA), herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by its Regional Director for the Eighth
Region (Cleveland, Ohio), issued its complaint, dated August 2, 1943, against
Bailey Meter Company, Cleveland, Ohio, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices, within
the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, ac-
companied by notice of hearing, were duly served upon the respondent and the
Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent had interfered with, restrained, and coerced its employees
by: (1) questioning its employees with respect to their union membership, and
ordering and directing its employees to engage-in espionage among their fellow
employees; (2) warning its employees that selection of the Union as their col-
lective bargaining representative would be detrimental to them, and making
derogatory and disparaging remarks about the Union; (3) urging, persuading,
and warning its employees to vote against the Union in a consent election con-
ducted by the Board on February 3, 1943; (4) promising wage increases to its
employees prior to the election and attributing the failure of certain employees
to receive promised wage increases to their union membership and activity; (5)
attempting to discourage membership in or activity on behalf of the Union after
the said consent election by ridiculing and deriding the Union and its mem-
bers; and (6) questioning employees as to whether they had talked with and
given sworn statement to agents of the Board.
On August 17, 1943, the respondent filed its answer' in which it denied that
it had engaged in the unfair labor practices alleged, and in addition set forth cer-
tain affirmative averments by way of defense.'
Pursuant to notice, a hearing was held at Cleveland, Ohio, on August 19 and
20, 1943, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel
and the Union by its ,attorney and its representative. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties.
At the commencement of the hearing, the respondent moved to dismiss the com-
plaint with respect to allegations of unfair labor practices committed prior to the
consent election conducted by the Board on February 3, 1943. The motion was
denied. At the close of the Board's case and at the conclusion of the hearing, the
respondent renewed the motion to dismiss which it had made at the commence-
ment of the hearing and further moved to dismiss the remaining allegations of the
complaint.. Rulings on these motions were reserved. The motions are hereby
denied. At the conclusion of the Board's case and again at the conclusion of the
I Counsel for the Board conceded at the hearing that no question was being raised with
respect to the time within which the answer had been filed.
2 The respondent pleaded by way of affirmative defense that the Board was estopped
from proceeding in the present case by reason of the fact that certain of the acts alleged
in the complaint as unfair labor practices had occurred prior to the consent election
conducted by the Board on February 3, 1943, and that no objections based thereon had
been filed in connection with the certification of the result of said election.
BAILEY METER COMPANY 709
hearing, counsel for the Board moved to conform the complaint to the evidence
adduced at the hearing, insofar as formal matters were concerned. At the con-
clusion of the case, respondent made a similar motion with respect to the answer.
These motions were granted. The parties were granted an opportunity, which
they waived, to present oral argument before the undersigned at the close of the
hearing. All parties were afforded an opportunity of filing briefs with the under-
signed. On August 27, 1943, the respondent filed a brief with the Trial Examiner.
Neither the Board nor the Union filed a brief.
On September 3, 1943, counsel for the Board and for the respondent entered
into a stipulation to correct certain errors in the transcript of testimony. On
September 8, 1943, the undersigned issued an order directing that the corrections
be made pursuant to the foregoing stipulation.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Bailey Meter Company, a Delaware corporation having its principal office and
place of business in Cleveland, Ohio, is engaged in the manufacture, distribution,
and sale of meters and automatic control apparatus for power plants, industrial
plants, and ships. All of the respondent's stock is owned or controlled by Bab-
cock & Wilcox Company, New York City, and General Electric Company, Schenec-
tady, New York. During the year 1942, raw materials' purchased by the
respondent were valued in excess of $200,000, and approximately 40 percent of
such raw materials were secured from points outside the State of Ohio. During
the same period, the respondent's sales of its finished products amounted to a sum
in excess of $3,000,000, and approximately 90 percent of such finished products
were shipped to points outside the State of Ohio.' The respondent is engaged
almost entirely in war work. It employs a total of approximately 450 persons.
The respondent admitted at the hearing that it was engaged in commerce within
the meaning of the Act. -
U. THE ORGANIZATION INVOLVED
Mechanics Educational Society of America, affiliated with Confederated
Unions of America, is a labor organization, admitting to membership employees
of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
On January 21, 1943, the Union filed a Petition for Investigation and Certifica-
tion of Representatives in the Regional Office of the Board located in Cleveland,
Ohio.` On January 27, the respondent and the Union entered into a consent
election agreement. _ Pursuant to the agreement, an election was held on Febru-
ary 3, 1943, and the report on the results of the election was issued by the Re-
gional Director on February 8. The report showed that the Union lost the
3 Such raw materials include iron, steel, brass, monel, nickel aluminum, and mercury.
4 The foregoing facts are based on a stipulation entered into at the hearing between
counsel for the respondent and for the Board. -
5 Regional Case No. 8-R-1027.
710 DECISIONS OF NATIONAL LABOR RELA(PIONS BOARD
election by a vote of 204 to 184. Thereafter, the Union initiated proceedings in
this case upon filing charges, as above noted.6
B. Interference, restraint, and coercion
1. The activities of Superintendent Sutherland
About 3 weeks before the election Carl Sutherland, Factory Superintendent,
approached employee Martin Stamp while the latter was at work and told him
that the "dagoes and niggers" were organizing a union in the plant , that if
lie were Stamp he would not join, and that the Union had nothing to offer him,
especially since he was an apprentice . About 1 week before the election , Suther-
land again approached Stamp while he was at work , advised him not to vote for
the Union, and asked him if he was a member and if he knew whether other
apprentices had joined."
Approximately 2 weeks before the election," Sutherland called apprentice Robert
Ponsart to his office. There, in the presence of Foremen Gordon David and
Arthur Wandersleben, Sutherland asked Ponsart how he stood in the Union,
stated that he was going to try to get an increase for the apprentices soon, further
stated that there were about 11 apprentices whose votes would mean quite a bit
either way, and told Ponsart, "Well, of course you know bow to vote."'
A week or two before the election, employees Frances Ferraiuolo and Florence
Chekemian were called to the office of Sutherland who told them that he had
The respondent in its answer at the hearing and in its brief filed with the undersigned
contends that the Board is estopped from considering such of the unfair labor practices
as are alleged in the complaint to have occurred prior to the election on the ground that
no objections with respect to the unfair labor practices so alleged were filed within the
5-day period following the election , as provided in the Board ' s Rules and Regulations,
Article III , Section 10. This contention is without merit. It fails to recognize the dis-
tinction between the administrative discretion vested in the Board to issue rules and
regulations with respect to procedural matters, as provided in Section 6 (a) of the Act,
and the exclusive jurisdiction conferred upon the Board to prevent the commission of
unfair labor practices, as set forth in Section 10 (a) of the Act. See Amalgamated Utility
Workers v. Consolidated Edison Company of New York , et al., 309 IT. S. 261 ; Magnolia
Petroleum Company v. N. L. R. B ., 115 F. ( 2d) 1007 ( C. C. A 10 ) ; N. L. It. B s. McKesson &
Robbins, Inc , et al., 121 F. (2d) 84 App. D. C.
" The above findings are based upon the credible testimony of Stamp Sutherland ad-
mitted having conversations with Stamp about the Union on the occasions in question,
but denied having made any of the remarks attributed to him by Stamp except his refer-
ence to the fact that the Union would be of no benefit to the apprentices . In view of
Sutherland ' s partial admissions , the Tiial Examiner does not accept as true either his
denials or his testimony that Stamp asked his opinion of the Union.
•In its brief the respondent points to the fact that the Union did not file its petition
in the representation proceeding until January 21 and that notice thereof was not served
upon the respondent until January 25 , and takes the position that Ponsart was mistaken
in testifying that the conversation in Sutherland 's office occurred 2 weeks before the
election of February 3, because at that time the respondent had no way of knowing that
an election was to be held . The undersigned does not agree with this contention . Ponsart
testified that the conversation in question occurred "approximately" 2 weeks before the
election and did not attempt to fix the time with certainty.
9 Sutherland , David, and Wandersleben each denied that any such meeting occurred,
as Ponsart had testified about. David admitted , however , being present in Sutherland's
office about the middle of January when Ponsart was also present ; and Sutherland
admitted having talked to Ponsart about the Union on several occasions , but denied having
made the remarks attributed to him by the employee beyond saying that the apprentices
would not benefit by the Union . Ponsart never became a member of the Union. In view
of Sutherland 's admissions , in view of the fact that Sutherland and David made other
anti -Union statements to employees , as noted hereinafter , and in view of the respondent's
continuous attempts to defeat the Union , the undersigned does not credit the denials of
Sutherland , David, and Wandersleben.
BAILEY METER COMPANY 711
heard they were dissatisfied with their wages and working conditions, that if
they had grievances they should tell him about them, and that as they went along
they would get wage increases.
About 4 days before the election, Sutherland stopped George Baldwin, an ap-
prentice, as the latter was passing his office, and told him that the Union
would not help the apprentices, that the Union would cause hard feelings
between himself and the employees, and that working in the plant would not
be as pleasant if the Union should win the election. During this conversation,
Sutherland asked Baldwin if he would speak to the other apprentices and let
him know how they felt about the Union.'0
Shortly before February 18, 1943, Sutherland told employee Edward Has-
padura that he had worked in many shops, that he had been in unions before;
and that he did not see where a union would do any good for the emplyees."
A week or two after the election, after Haspadura had begun to wear a Union
steward's button, Sutherland came to him, flipped the button on the employee's
collar, and asked how much he would take for it, at the same time drawing
some coins from his pocket. The employee replied that the superintendent
did not have enough money to buy it, whereupon Sutherland declared that he
could get a bushel of them for $5.12
Two or three weeks after the election, Florence Chekemian made out an
affidavit concerning the events in this case for an agent of the Board. A week
or two thereafter, Sutherland informed her that he knew of the existence of
the affidavit, stated that apparently she was not satisfied with the way the
company was run, and asked her why she had made it out'2
2. The activities of Foremen Whitley, David and Zappala
Several days after the election, employees Ferraiuolo and Chekemian ap-
proached their foreman, William Whitley, and asked why they had not re-
ceived wage increases since other employees in the department had Whitley
replied that they had "stuck out" their necks. When Chekemian observed
that "the Union didn't go through," Whitley replied that they might try
again. Ferraiuolo was active in the affairs of the Union and Chekemian's
name, as a member of the union shop committee, was printed on handbills
which were circulated by the Union about the plant"
10 These findings are based upon the credible testimony of Baldwin , who was not a
member of the Union , was reluctant to testify , and did so under subpoena by the Board.
Sutherland made the same admissions and denials concerning Baldwin 's testimony as
he had as to the testimony of Stamp and Ponsart. Sutherland 's denials are not credited
by the undersigned.
11 Sutherland 's version of the above incident ,' the finding as to which is based upon the
credible testimony of Haspadura , was that he told one of the apprentices that from
previous experience in other factories he had understood that the union "as a rule left
the apprentices alone , that they didn't try to get them in as members ." The undersigned
is not convinced by, nor does he credit , Sutherland 's explanation.
12 Sutherland admitted that the above conversation occurred substantially as Haspadura
testified , except that he denied having said that $5 would buy a bushel of union buttons.
Sutherland 's denial is not credited by the undersigned , in view of his admissions and
his manifest antipathy to the Union , as herein noted.
13 Sutherland denied Chekemian ' s testimony as to this incident. The undersigned does
not credit his denial.
1* Whitley admitted that Ferraiuolo and Chekemian spoke to him with reference to
securing wage increases , as they had testified, but denied their further testimony to the
effect that he had stated that they had stuck their necks out or that he had said that
the Union might come back again. Both Ferialuolo and Chekemian impressed the under-
signed as credible and truthtul witnesses . The undersigned finds that Whitley's denials
are not entitled to credence.
712 DECISIONS OF NATIONAL LAJBOR RELATIONS BOARD
About a week before the election, Foreman Gordon David asked employee
Robert Ponsart how the latter stood in the Union and if Al Gazelle, a member
of the union shop committee, had talked to him about the Union. In April
1943, Ponsart, while at work, wore a shirt on the back of which were the
initials of the Union. During the morning, David approached' him and said,
"Well, I see you have the shirt now. Now you are going to walk out on the
boys." As noted above, Ponsart was not a member of the Union. David
denied Ponsart's testimony concerning the first conversation, and explained
that on the second occasion he merely asked Ponsart whether he was getting
a shirt out of the boys. The undersigned does not credit David's denial of the
first conversation or his explanation of the second.
According to the uncontradicted testimony of employee Lorraine Hunter,
about 3 or 4 weeks before the election, she asked her foreman , Ross Zappala,
what he thought about the Union. Hunter testified that the respondent's plant
was the first factory in which she had ever worked, that she' did not know
whether a union would be desirable in a factory, and that she therefore asked
Zappala about it. Zappala told Hunter that the respondent had gotten along
for more than 20 years without any union, that he did not see why they could
not continue to do so, but that the employer should not be allowed to tell the
employees whether or not they should vote for a union. At the conclusion of
the conversation, Zappala patted Hunter on the shoulder and stated, "We know
you will do the right thing."
3. The Meeting with, Works Manager Barnes
On February 18, 1943, employees Peter Haspadura, Edward Haspadura, and
Dan Fulganzi met with Frederick Barnes, works manager, and Mercia Sagili,
assistant personnel director of the respondent. The two Haspaduras and Ful-
ganzi comprised a committee of the Union which had been established for the
purpose of obtaining a grievance procedure for union members. Barnes refused
to recognize the committee and refused to establish a grievance procedure. He
told the employees that he believed that he could do more good as far as wage
increases were concerned than any one; that there was no Union in the plant,
since the Union had lost the election ; and he compared the election to a ball
game, stating that one team is bound to lose, and that when it does it walks off
the field without any hard feelings and forgets about the whole thing. Barnes
also told the employees that there had only been about 30 members present at the
last meeting of the Union,' and that he had been present at a meeting in the
offices of the Board at which the union representative had in his possession a
packet of union membership cards, that Barnes at that time had in his pocket a
stack of cards containing the names of employees proposed to receive wage in-
creases, and that the number of cards in Barnes' possession was twice the number
of union membership cards."
16 The union meeting referred to had occurred about 2 weeks previously.
10 The above findings are based on the testimony of Peter Haspadura , which was cor-
roborated by Edward Haspadura . Barnes testified that he had stated that he was willing
to discuss grievances so long as the committee was limited only to employees of the re-
spondent . He admitted that he refused to establish a grievance procedure for union
members, and that he had compared the election to a ball game, but he denied that he
had said anything about "walking off the field" or that he had said that there was no
union because it had lost the election, or that he could do more good with respect to
wage increases than any one . Barnes also admitted saying that the number of cards
providing wage increases for the employees each pay day was as great or greater than
the number of union membership cards, and testified that he could not recall whether
he had referred to the number of persons who had attended the last union meeting.
BAILEY METER COMPANY
CONCLUSIONS
713
The record in this case contains cogent and convincing evidence that the re-
spondent was antagonistic to the Union, and that it demonstrated its antagonism
in unmistakable terms to its employees. -
Sutherland , superintendent of the respondent , was the leading figure and most
ardent advocate in the respondent 's campaign to defeat the Union . But Fore-
men Zappala , David and Whitley, before the election , and Works Manager Barnes,
after the election , also made efforts to discourage the respondent 's employees in
their efforts to attain self-organization.
Sutherland , by his own admission , informed the employees that the Union
would be of no benefit to them . His interrogation of Stamp , Ponsart, and Bald-
win as to their membership in the Union ; his questioning of Stamp and Baldwin
as to the union membership of the other apprentices ; and his attempt to induce
Baldwin to inquire as to the attitude and affiliations of the other apprentices
constituted a clear attempt to secure information as to the union affiliations of the
employees and the relative strength of the Union prior to the election.
Other statements on the part of Sutherland were made for the purpose and
were calculated to have the effect of discouraging union membership , as shown
by his undenied statement to Ferraiuolo and Chekemian shortly prior to the
election that they would receive wage increases ; his remarks in derogation of the
Union and his expressions that the Union had nothing to offer the employees
made to Stamp , Ponsart, Baldwin ," and Edward Haspadura ; his interrogation
of Chekemian with respect to the affidavit she had made out for an agent of the
Board; and his obviously derogatory remarks to Edward Haspadura concerning
the union button worn by that employee.
Of similar purpose and effect were the statements of Foreman David in ques-
tioning Ponsart about his union membership and about conversations Al Gazelle
may have had with Ponsart about the Union, and David 's statement to Ponsart
concerning the shirt which the latter received from the Union, "Now you are
going to walk out on the boys," thereby implying that Ponsart was breaking
faith with the non -union employees in the plant.
Illustrative of the respondent 's anti-union animus and its intention of con-
tinuing in its efforts to discourage the employees from union affiliation, even
after the election, were the statements of Foreman Whitley to Ferraluolo and
Notes of the meeting with the committee were taken under Barnes' supervision. The
respondent did not offer these notes in evidence, nor did it call Sagin, who was present
at the meeting, as a witness . In view of these facts and of Barnes' partial admissions
as to what he stated at this meeting, the undersigned does not credit his denials.
11 In its brief, the respondent points out that' Sutherland "expressed certain views of
his own in reference to the union" in the course of his conversation with Baldwin. In
recounting the details of Sutherland's conversation , Baldwin testified that Sutherland pointed
out the disadvantages of the Union for apprentices, and then "expressed one or two
views of his own" with respect to the feeling which would exist between the respondent
and the employees, if the Union should win the election. The fact that some of the anti-
union statements made on this occasion by Sutherland purported to be personal expres-
sions of opinion did not relieve his statements as a whole of their coercive effect. Cer-
tainly, Sutherland's attempt in this conversation to induce Baldwin to speak to his fellow
apprentices about the Union and report to Sutherland how they felt about it could not
be regarded as an expression of personal opinion. Moreover, any doubt as to the effect
of Sutherland's statements is dissipated by the following testimony of Baldwin on cross-
examination by counsel for the respondent :
Q. Then, in his talk with you, he was not urging you not to join the Union?
A. He was advising against it. He was not telling me how to vote. He was just
advising me what the best policy would be.
Q. You just said that he told you It was a matter for you to decide?
A. That is right , but he tried to influence me towards a decision.
714 DECISIONS OF NATIONAL LABOR RELA(MONS BOARD
Chekemian to the effect that they had jeopardized their chances to secure wage
increases because of their union membership and activities.
Zappala's statement to Hunter that, "We know you will do the right thing,"
after he had told her that the respondent had gotten along for more than 20 years
without a union, and that he did not see why they could not continue to do so
was a clear and unmistakable indication that the respondent wished Zappala to
vote against the Union. Nor was the coercive effect of Zappala's statements dissi-'
paced by the qualified declaration that the employer should not be allowed to
tell the employees whether or not they should vote for a union, after he had al-
ready expressed the respondent's preference for a continuation of non-union
relations.'
The meeting after the election between Works Manager Barnes, Assistant
Director of Personnel Sagin , and the grievance committee of the Union con-
stitutes additional evidence of the respondent's attempts to induce its employees
to forego further efforts to secure unionization. Barnes' statements that no union
existed at the respondent's plant, and his reference to the election as being
similar in effect to a ball game where the losing side forgets about the whole
thing were unmistakable indications that the employees should reconcile them-
selves to the fact that it would be useless to continue any further attempts to
affiliate with the Union. The respondent's position in this respect was em-
phasized by the refusal of Barnes to discuss grievances with a committee other
than one composed only of employees of the respondent and his refusal to enter-
tain the committee's request to establish a grievance procedure for members of
the Union alone. Barnes' reference to the fact that only 30 members had attended
the last meeting of the Union, and his further reference to the fact that the
number of cards concerning wage increases for the employees which the respond-
ent considered each pay day exceeded the total number of union membership
cards which Barnes had seen in the offices of the Board were intended to convey
the idea that the Union had lost its support and had but a small following among
the employees, and that the continued efforts of its adherents were futile. His
statement that he could do more good than anyone as far as wage increases
were concerned was obviously designed to inform the employees that the Union
was ineffectual and that Barnes, as representative of the respondent, could alone
secure for them an increase in wages.
It is clear that the respondent engaged in a conscious and calculated effort to
defeat the Union and to discourage its employees from becoming or remaining
members of the Union, and that its activities constituted a "whole course of
conduct" '9 designed to effectuate its purpose. The- undersigned finds that by the
ze The respondent in its brief contends that Hunter's testimony lends no support to the
allegations in the complaint by reason of the fact that Huntei approached Zappala volun-
tarily. The mete fact that an employee requests a representative of management to
express his opinion or to tender advice about a union does not justify such representative,
under the guise of asserted expressions of opinion, from making statements for the pur-
pose and reasonably calculated to have the effect of discouraging union membership. See
Matter of Norman H. Stone , et al. and International Printing Pressmen and Assistants'
Union, Box and Carton Local #415, 33 N. L. R. B. 1014 and cases therein cited, enforced
as modified in other respects . N. L R. B . v. Stone, 125 F (2d) 752 (C. C. A. 7). The exercise
of self-restraint required of employ are by the Act is not relaxed, but is indeed increased, under
such circumstances . An employer , if he is acting in good faith in such a situation, will
clearly inform the employee that he cannot give him the advice or guidance requested
and that the employee must seek an answer to his problem elsewhere. Moreover, Zap-
pala's statements did not occur, nor can they properly be considered, as an isolated inci-
dent. Under the circumstances shown in this record, they were made , and are to be re-
garded, as an integral part of the respondent 's entire campaign to defeat the Union in its
attempt to enlist the support of the employees,
19 V. L. it. B. v. Virgn.naa Electric and Power Company 314 U. S. 469.
BAILEY METER COMPANY 715
above-described activities , the respondent interfered with, restrained , and'coeiced
its employees in the exercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8 (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above , occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate , and substantial relation to trade, traffic , and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices , it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , the undersigned makes the following:
CONCLUSIONS OF LAW
1. Mechanics Educational Society of America ( CUA) is a labor organization
within the meaning of section 2 (5) of the Act.
2. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law,
the undersigned recommends that the respondent , Bailey Meter Company,
Cleveland , Ohio, its officers , agents, successors , and assigns shall:
1. Cease and desist from interfering with, restraining , or coercing its em-
ployees in the exercise of the right to self-organization , to form, join, or assist
labor organizations , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
2. Take the following affirmative action which the - undersigned finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in its plant at Cleveland, Ohio,
and keep posted for at least sixty ( 60) consecutive days from the date of
posting, notices to its employees stating that the respondent will not engage in
the conduct from which it is recommended that it cease and desist in paragraph
1 of these recommendations ;
(b) File with the Regional Director for the Eighth Region in writing, on
or before ten (10 ) days from the date of the receipt of this Intermediate Report,
a report in writing setting forth in detail the manner and form in which the
respondent has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate -Report, the respondent notify said Regional Director
in writing that it will comply with the foregoing recommendations , the National
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Relations Board issue an order requiring the respondent to take the
action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within ten (10) 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 Building,
Washington , D. C., an original and four copies of a statement in writing setting
forth such exceptions to the' Intermediate Report or to any other part of the
record or proceeding ( including rulings upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof. As further provided in said Section 33, should any party desire permis-
sion to argue orally before the Board, request therefor must be made in writing
to the Board within ten (10) days after the date of the order transferring the
case to the Board.
Davin KAR,AsIcK
Trial Examiner
Dated September 27, 1943.