Bird Machine Co.

National Labor Relations Board - Board Decisions

Jan 9, 1946

65 N.L.R.B. 311 (N.L.R.B. 1946)

In the Matter of BIRD MACHINE COMPANY and UNITED STEELWORKERS
OF AMERICA (C. I. 0.)
Case No. 1-C-2443.Decided January 9,1946
DECISION
AND
ORDER
On May 23, 1945, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had en-
gaged in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. He also recommended that the complaint be dismissed insofar
as it alleged a violation of Section 8 (5) of the Act. Thereafter, the
Union and counsel for the Board filed exceptions to the Intermediate
Report and supporting briefs, and the respondent filed a "Brief in
Support of Respondent's Contentions" which the Board has accepted
as exceptions and supporting brief.
The Board has reviewed the rulnigs of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the modifications and additions noted
below :
1. The respondent contends that it is not responsible for the anti-
union activities of its supervisory employees, more fully set forth in the
Intermediate Report, because such activities violated instructions of
neutrality issued to the supervisory employees by President Dennett
at the beginning of the Union's organizing campaign. The respondent
admits that such instructions were not posted or otherwise publicized
to the employees as a body. Inasmuch as the respondent failed to com-
municate its alleged neutrality to its employees, we find that the em-
ployees were justified in believing that the supervisory employees were
65 N. L. R B., No. 61.
311
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acting as the respondent's representatives, and that the respondent is
responsible for their activities.'
2. We find, as did the Trial Examiner, that on April 28, 1944, when
the Union requested recognition, the Union did not represent a ma-
jority of the respondent's employees in an appropriate unit.2 There-
after, on June 3, 1944, when the Board held a conference between the
respondent and the Union, the Union had deposited with the Board
129 authorization cards.3 At the hearing, the respondent checked the
original cards' against admittedly authentic signatures of employees
and made the following objections to 33 of the 129 cards : namely, that
,8 were unsigned, 4 bore printed signatures, and 21 bore questionable
handwritten signatures. As to the 129 cards, the Trial Examiner
found that 6 were signed by persons who terminated employment. with
the respondent before June 3, 1944, 6 bore signatures "not proved
genuine," and 117 were valid designations. He further found that
inasmuch as there were 233 employees in an appropriate unit on June
3, 1944, the Union on that date represented a bare majority of the
respondent's employees in such unit 4 A comparison of the disputed
signatures with the admittedly authentic signatures reveals that the
Trial Examiner was justified in rejecting as "not proved genuine" at
least 6, if not more, of the cards submitted to the Board by the Union.
We reject, in addition thereto, the 8 unsigned cards, which were among
those submitted, inasmuch as the record does not establish that the
employees named in the unsigned cards intended by such cards to
authorize the Union to represent them.5 Accordingly, we find that, on
June 3, 1944, the Union represented at most 109 employees, and that,
on July 14, 1944, the date of the hearing in the representation proceed-
ing referred to in the margin, and thereafter, so far as appears, the
Union represented at most 111 employees of the respondents Conse-
I See , for example , H G Heinz et Co v. N L R B, 110 F ( 2d) 843 , 847 (C C A 6),
affirmed 311 U . S 514 Employee LoDico testified that , in the presence of four or five
shop employees and several high ranking supervisors , President Dennett assured LoDico
that his activity in the Union was "perfectly all right" and that Dennett "couldn't stop
[him] or interfere with [him] in any way." LoDico further testified that Assistant Super-
intendent Lindsay, on another occasion , told LoDico that Lindsay had no right to interfere
with LoDico' s union activities in any way. Contrary to the respondent 's argument, we find
that such limited declarations of neutrality did not effectively notify the employees as a
body that the supervisors ' activity in discouraging union membership did not reflect the
respondent 's policy.
7 To establish such majority , the Union relied in substantial part on oral promises by
employees to vote for the Union in an election . Such a promise does not constitute a
designation of a representative within the meaning of Section 9 (a) of the Act.
3 The Trial Examiner 's statement in the Intermediate Report , preceding his tabulation
of the cards , that the Union had submitted 124 cards is erroneous . His tabulation agrees
with the figure above.
4 The unit referred to was found to be appropriate by the Board in a prior representa-
tion proceeding Matter of Bird Machine Company , 57 N L R B 1112.
5 Cf Matter of Kiddie Kover Manufacturing Company , 6 N. L R B. 355
6 Between June 3 and July 14, the Union had obtained 2 additional authorization cards:
On July 30, 1944, the closest pay -roll date , the respondent had 240 employees in the unit
which the Board found to be appropriate in the representation proceeding
BIRD MACHINE COMPANY 313
quently, we find that the Union, at no time pertinent to this case,
represented a majority of the respondent's employees in an appropriate
unit. On the basis of this finding, we shall dismiss the complaint
insofar as it alleges a violation of Section 8 (5) of the Act. In view
of such determination, we deem it unnecessary to pass upon the validity
of the ground relied upon by the Trial Examiner in recommending
dismissal of such allegation of the complaint.
THE REMEDY
Having found that the respondent independently violated Section 8
(1) and 8 (3) of the Act, we must order the respondent, pursuant to
the mandate of Section 10 (c), to cease and desist therefrom. We also
predicate our cease and desist order upon the following findings: The
respondent's whole course of conduct discloses a purpose to defeat
self-organization among its employees. As we have found, since the
inception of the Union in the respondent's plant, the respondent inter-
fered with, restrained, and coerced its employees by various acts and
statements. Moreover, the discriminatory discharge of Favor "goes
to the very heart of the Act." 7 Because of the respondent's unlawful
conduct and its underlying purpose, we are convinced that the unfair
labor practices found are persuasively related to the other unfair labor
practices hereinafter proscribed and that danger of their commission
in the future is to be anticipated from the respondent's conduct in the
past." The preventive purpose of the Act will be thwarted unless our
order is coextensive with the threat. In order, therefore, to make more
effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce and thus effectuate the policies
of the Act, we shall order the respondent to cease and desist from
in any manner infringing upon the rights guaranteed in Section 7
of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Bird Machine Company,
Walpole, Massachusetts, and its officers, agents, 'successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of Amer-
ica, affiliated with the Congress of Industrial Organizations, or any
IN. L. R. B. v. Entwistle Manufacturing Company, 120 F. (2d) 352, 356 (C. C A 4) ;
see also, N. L. if. B. v. Automotive Maintenance Machinery Company, 116 F. ( 2d) 350 (C.
C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed • "No more
effective form of intimidation nor one more violative of the N L. R . Act can be con-
ceived than discharge of an employee because he joined a union. . . .
8 See N. L. if. B. v Express Publishing Company, 312 U. S. 426.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization, by discharging or refusing to reinstate any
employee, or by discriminating in any other manner in regard to their
hire, tenure, or any term or condition of their employment;
(b) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form,
join, or assist United Steelworkers of America (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 pur-
pose of collective bargaining or other mutual aid or protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Gilbert I. Favor immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority or other rights and privileges ;
(b) Make whole Gilbert I. Favor for any loss of pay that he may
have suffered by reason of the discrimination against him, by payment
to him of a sum of money equal to the amount that he normally would
have earned as wages from the date of his' discharge to the date of
the respondent's offer of reinstatement, less his net earnings during
such period ;
(c) Post at its plant at Walpole, Massachusetts, copies of the
notice attached hereto, marked "Exhibit A." Copies of said notice,
to be furnished by the Regional Director of the First Region, after
being signed by the respondent's representative, shall be posted by
the respondent immediately upon the 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. Also, publish a copy of said notice in the next issue of
the plant paper, the "Bird's Eye-View," and distribute such issue
through the usual channels of circulation;
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondent refused to bargain
with the Union within the meaning of Section 8 (5) of the Act.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
BIRD MACHINE COMPANY
EXHIBIT A
Noi ICE TO ALL EMPLOYEES
315
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 in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist United Steelworkers 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.
We will offer to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously en-
joyed, and make them whole for any loss of pay suffered as a result of
the discrimination.
Gilbert I. Favor
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate in
regard to hire or tenure of employment or any term or condition of emply-
ment against any employee because of membership in or activity on behalf of
any such labor organization.
BIRD MACHINE COMPANY,
Employer.
Dated ---------------------------------- By ---------------------
(Representative ) ( Title)
NOTE.-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act after discharge from the armed
forces.
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Mr. Leo J Halloran, for the Board.
Mr. Allan Sesserman, of Boston, Mass, and Warren, Stackpole, Stetson, anal
Bradlee, Attorneys, of Boston, Mass., for the Respondent.
Air .Harold B Roitrnan, in behalf of the firm of Grant and Angoff, Attorneys,
of Boston, Mass, for the Union.
STATEMENT OF THE CASE
The National Labor Relations Board, herein called the Board, by its Regional
Director for the First Region (Boston, Massachusetts), issued its complaint
dated January 13, 1945, against Bird Machine Company, herein called the Re-
spondent. The complaint alleges that the Respondent had engaged in and was
engaging in unfair labor practices within the meaning of Sections 8 (1), (3),
and (5) of the National Labor Relations Act, 49 Stat. 449, herein called the Act;
and that it was issued on charges made by United Steelworkers of America
(C. I. 0.), herein called the Union Copies of the complaint and notice of hearing
thereon were duly served upon Respondent and the Union.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices the complaint in substance alleges
that the Respondent: (1) refused to bargain collectively with the Union on May
2, 1944, and at all times thereafter, including particularly June 3rd and July 14th,
during all of which time the Union represented a majority of the Respondent's
employees in an appropriate unit described in the complaint; (2) discouraged
membership in the Union by the discriminatory discharge of Gilbert I. Favor on
September 11, 1944; (3) interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act, from about May
1, 1944, until the date of the complaint, (a) by the aforesaid refusal to bargain
collectively with the Union, (b) by the aforesaid discriminatory discharge of
Favor to discourage union membership, (c) by discouraging union membership
in stating the Respondent was not in favor of the Union, (d) by disparaging and
ridiculing the Union and its purposes, (e) by threatening economic reprisals to
employees who engaged in union activities, (f) by interrogating employees rela-
tive to their union membership and activities, (g) by publishing in its paper
circulated among employees a verse which disparaged the Union, the authorship
of which was falsely attributed to a union adherent, (h) by threatening that less
favorable working conditions would exist in the plant if the Union represented
the employees, (i) by making obscene and derogatory remarks relative to the
Union and its members, (j) by sending to each employee before an election con-
ducted to determine the collective bargaining representative, a coercive letter
which in effect urged each employee to vote against the Union, (k) by notifying
employees the Respondent was opposed to the Union in its plant, (1) by threaten-
ing employees with the loss of established privileges if the Union became their
representative, (in) by marking, or allowing to be marked, an official notice of
election *posted before the election date, to indicate Respondent's opposition to
the Union, and (n) by accusing union adherents of being trouble makers, because
of their organizational efforts in the plant.
The Respondent filed an answer to the complaint dated January 18, 1944,
denying generally and specifically the commission of any of the alleged unfair
labor practices. Pursuant to notice, a hearing was held at Boston, Massachu-
setts, for 16 session days between January 29 and February 17_1945, before
Melton Boyd, the undersigned Trial Examiner designated by the Chief Trial
Examiner. The Board, the Respondent, and the Union were each represented by
counsel All parties participated in the hearing, and each was afforded full
opportunity to introduce evidence, to examine and cross-examine witnesses, and
to be heard on matters in issue.
At the opening of the hearing the Respondent moved to dismiss parts of the
complaint which alleged matters not contained in the copy of the second amended
charge attached thereto. This motion was denied then, and again was denied
later in effect when the Respondent moved to exclude testimony relating to such
allegtitions.' At the conclusion of the presentation of evidence by the Board, and
again at the conclusion of the entire case, the Respondent moved to dismiss the
complaint in its allegation of a violation of Section 8 (5) of the Act. The Trial
Examiner reserved his ruling on this ifiotion ; his ruling is made herein. The
Respondent then moved to strike from the record the evidence relating to mat-
ters alleged in a protest to an election conducted by the Board on August 25,
1944,2 filed by the Union but later withdrawn by it when it filed its charge in
the instant case. The Trial Examiner denied this motion. The Respondent then
moved to strike from the record the evidence on all matters not specifically put
i See National Licorice Company v . N L. R B , 309 U. S . 350, at 368-369; also, Con-
sumers Power Conipanp v N. L R B., 113 F (2d) 38 , at 42-43 ( C. C. A 6).
9 In the Matter of Bird Machine Company and United Steelworkers of America ( C. 1 0.),
1-R-1896, in which a direction of election issued August 5, 1944, 57 N . L. R. B. 1112.
BIRD MACHINE COMPANY 317
in issue by the allegations of the complaint. The Trial Examiner denied this
motion. The Respondent then moved to dismiss the complaint with respect to
allegations in paragraphs which it specified, which motion was made in the
alternative, and on which the Trial Examiner reserved his ruling and makes his
ruling herein. At the conclusion of the case, the Board's counsel moved to con-
form the pleadings to the proof with respect to formal matters, and without
objection this motion was granted.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following : 3
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Bird Machine Company is a Massachusetts corporation, and has its plant and
principal place of business in Walpole, Massachusetts. It is engaged there in the
business of manufacturing centrifugal machines and machine assembly parts,
valued in excess,of $2,800,000 in 1944, almost all of which was used in the war
effort and about 90 percent of which was shipped outside the State of Massa-
chusetts. In these operations it used iron, steel, copper alloy and other raw
materials, costing approximately $1,000,000 in 1944, about 25 percent of which
was purchased outside the State of Massachusetts
The Company concedes that it is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZA1ION INVOLVED
United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, is a labor organization within the meaning of the Act.
III. THE 'UNFAIR LABOR PRACTICES
1. Background ; the job evaulation plan
On April 20, 1944, the Respondent announced to its employees by lettei the
inauguration of a practice that would govern wage increases thereafter. The
announcement stated that a plan had been adopted, which was referred to in the
testimony as the "job evaluation plan", by which all jobs were classified and given
a comparative rating with relation to other jobs, with a wage range established
for each scaled job. The plan had been prepared by the National Metal Trades
Association, of which the Respondent was a member, following a survey made
by the Association's staff engineers which began in November 1943; and the wage
structure set up under it was approved subsequently by the National War Labor
Board, with some modifications. The announcement stated further the Respond-
ent would follow a practice of adjusting wages according to a "merit rating"
procedure ; and those whose rating had entitled them to an increase when the
plan went into effect, would receive the increase in their wage rate retroactively
to January 1, 1944
During the period of the survey and preparation of the plan, employees' wages
had remained unchanged. When put into effect, the wages of some were unchanged
and of others were increased. Those denied an increase were disappointed and
those who thought their increase insufficient were dissatisfied.
3 All dates given are in 1944, unless otherwise specified. Except where otherwise noted
or iwhele conflicts in testimony are discussed, the following findings of fact are made on
evidence that was undisputed or that was at variance only in immaterial details , and the
next following sections, I and II, are based on admissions in Respondent's answer and on
stipulations of the parties.
4 The complaint does not allege that either the inauguration or administration of the plan
was an unfair labor practice ; the alleged unfair labor practices began "about May 1, 1944.",
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Inception of the Union ; its demand for recognition
Immediately after the announcement of the plan, a number of employees
sought representation by the Union in dealing with the Respondent All organ-
izer for a textile union affiliated with the C. I 0, Joseph Drummey, then Ill.
contact with the employees, distributed among then( inembershtp-application
cards of the Union which he had secured from Daniel F Murray, the union
organizer. On April 25th, Murray held a meeting which was attended by about
75 employees. At this meeting he distributed additional cards for signature,
and he testified that he received approximately 80 to 85 cards of employees then
present and of others who had signed cards distributed by Drummey At this
meeting it was reported to Murray, according to his testimony, that 30 or
40 other employees "secretly promised the ones who were soliciting mem-
bership of them that they would vote for the Union if they had a chance to do
so on a secret ballot." A couple of days after this meeting, according to Murray,
he again saw Drummey and received from him an additional 26 or 27 cards.
Murray conducted another meeting on Sunday, April 30th. There was put in
evidence a total of 92 cards bearing dates in April,' and 6 additional undated
cards received by Murray in April
Under date of April 2Stb, the Union directed to the Respondent a letter, in
its material parts as follo« s :
This is to advise you that a majority of the production, maintenance, and
shipping employees of the Company have designated the United Steelwork-
ers of America to act for them as a collective bargaining agency on all
matters relating to wages, rates in pay, hours, and other conditions of
employment.
Will you please set a date at your earliest convenience at which time collec-
tive bargaining negotiations may get under way
Sent in the course of registered mail, the letter was noted as received by the
Respondent on April 29th. On May 2nd, the Respondent responded as follows:
This will acknowledge receipt of your letter of April 28th.
We are not in a position to set a date for collective bargaining negotiations
because of the fact that we are neither sure nor able to determine that you
represent a majority of our employees.
When questioned concerning the basis of the Union's claim that it had, at this
time, been designated by a majority of the employees, Murray testified it was
"by the'number of cards that were signed, plus the assurance of active people
who were active in signing up workers in the shop that additional cards were
going to be signed, and by an estimate about the investigation [sic] to determine
about how many employees in the shop approximately would be in the bargain-
ing unit." 6
3. Representation proceeding
On May 4th, the Union executed a Petition for Investigation and Certification
of Representative, pursuant to Section 9 (c) of the Act, naming the Respondent as
Of the 92 cards , 3 bear names of employees who left Respondent ' s employ before April
30th, to-wit Dennis McCarthy and Clarence J. Budroe on April 27th , and Manuel 0 Souza
on April 29th
6 Above the signature , date, and information identifying the employee and his job, the
card provided
I hereby accept and request membership in the UNITED STEELWORKERS OF
AMERICA , C I 0, and of my own free will hereby authorize the United Steelworkers'
of America , its agents or representatives , to act for me as a collective bargaining
agency in all matters pertaining to rates of pay, wages , hours of employment, or
other conditions of employment.
0
BIRD MACHINE COMPANY 319
employer, describing the unit which it then claimed appropriate as "production,
maintenance and shipping room employees", and alleging it represented "a ma-
jority" of the employees in such unit which contained approximately 230 out of a
total of 2d0 or 270 employees in the plant The Union cited the exchange of
correspondence as giving rise to a question concerning representation. This
petition was received and filed in the Regional Office of the Board in Boston, on
May 5th, and docketed as Case No. 1-I{-1890, and herein is referred to as the "R"
case. -
On May 5th, by handbill, the Union announced to the employees the substance
of its letter of April 28th and of the Respondent's response on May 2nd, stated
that on the preceding day it had petitioned for certification, and referred to its
prediction, made at its meeting, of this action by the Respondent. In conclusion
the handbill stated:
The Labor Relations Board will soon call a conference of both groups for
the purpose of finding a way to determine whethel that [sic] Union repre-
sents a majority. We will keep you informed of developments as soon as
they occur.
The contemplated conference was held on June 3rd in the Regional Office of
the Board. The Board's agent inquired whether the participants would enter
into an agreement providing for an election by consent The Respondent ques-
tioned the appropriateness of the bargaining unit described in the petition, and in
particular requested that certain "fringe" classifications of employees be included
and excluded The Union, desiring a consent election, offered to accept the-
Respondent's proposals ; but the Respondent desired the case to 'proceed to a
Board determination Following the conference, the Union filed an amended
petition wherein it amended its definition of the proposed unit, describing it as
follows :
All employees of the Company except for executives. office and clerical em-
ployees, employees of the Experimental and Test Laboratory, draftsmen,
nurses, foremen and assistant foremen.
On July 14th. a formal hearing was conducted by the Board ° During the
course of the hearing the Respondent and the Union agreed upon a statement
of fact that, by reason of the exchange of correspondence in which the Respond-
ent questioned whether the Union represented a majority of the employees and
by reason of the disagreement at the June 3rd conference concerning what was
an appropriate unit, a question of representation then existed. They further
stipulated, after an off-the-record conference and a renewed proposal by the Union
that they agree to a consent election, that in the proceeding before the Board it
might find an appropriate bargaining unit to be composed substantially as follows :
All production and maintenance employees of the Company including shop
clerks, shipping room clerks, tiuck drivers, and the watchmen, but exclud-
ing office and clerical employees, technical employees of the Experimental
and Test Laboratory, pattern makers, draftsmen, nurses, guards, executives,
foremen, assistant foremen, and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action
i All parties in the present case entered into a stipulation, accepted by the Trial
Examiner, to incorporate in the evidence all the formal documents , including the transcript
of the formal proceedings , in the "R" case.
9 This is the definition of the appropriate unit as found by the Board in its Decision and
Direction of Election , which issued August 5, 1944 Bird Machine Company, 1-R-1896,
57 N. U. R B. 1112. In the present case, the complaint alleges the Respondent 's refusal
670100-46-vol. 65-22
.32O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the June 3rd conference , the Union had submitted to the Board 's agent
a total of 124 cards, in the form described above, to substantiate its claim made in
its petition in the "R" case that it had been designated by a majority of the em-
ployees in the unit described therein as appropriate . Following this conference,
it submitted 0 additional cards. At no time did the Union offer to submit this
,evidence of its authority to the Respondent ; and at no time did the Respondent
make any request of the Union that it submit for the Respondent ' s examination
proof of the Union 's authorization as bargaining agent.
Evidence was submitted to the Trial Examiner , including the cards which had
been submitted to the Board 's agent , upon which he finds the Union held authori-
zations as bargaining agent for Respondent 's employees , according to the follow-
ing tabulation:
Number of Number of Number Cumul t
Execution date of card authorizations i authoriza - genuine
voided by
cessation
a ive
total of
bons sub - authoriza - of employ- authoriza-mitted 2 tions merit bons
April 22 to April 28---- --------------------------------- 3 91 86 2 84
April 29 to April 30------------------------------------- 7 7 1 90
May 1 to May 2--------------------------------------- 7 7 1 96
May 2 to May 4---------------------------------------- 0 0 0 96
May 4 to June 3---------------------------------------- 424 23 2 117
June 4 to July 14--------------------------------------- 3 3 1 119
132 126 7 119
i As noted above, the Union request for recognition as bargaining agent was dated April 28th, it was ac-
knowledged on May 2nd, the Union again alleged its majority representation status in its petition executed
May 4th The complaint alleged a refusal to bargain "on or about May 2, 1944, and at all times thereafter,
including June 3, 1944 and July 14, 1944 "
2 Written and printed signatures on Union cards were compared with signatures and other writing on
employees' records in the possession of the Respondent, both of which were received in evidence. The Re-
spondent conceded the apparent genuineness of all but 34 of the signatures
3 Included are 6 undated cards all of which were turned in to the Union before April 28th. Also included
in this column , but excluded from the next , are 5 cards the signatures of which were not proven genuine.
4 One card of a person who executed an earlier card, counted above , is omitted here
The list of shop pay-roll employees for the week ending April 30th contained
253 names, excluding employees whom the Company conceded to be supervisory.
This list, however, contained an undetermined number of employees in classifi-
cations other than "production, maintenance, and shipping employees" as referred
to in the Union's letter of April 28th, and other than "production, maintenance,
and shipping room employees" as referred to in the Union's petition filed May 5th.
Another list of employees on the pay roll for the week ending May 28th, prepared
after June 3rd and presumably in conformity with the unit definition in the
Union's amended petition, contained a total of 233 names. The eligibility list used
in the election conducted on August 25th, taken from the pay roll of July 30th and
presumably prepared in conformity with the unit approved by the Board in its
Direction of Election, contained 240 names.
Incidents relating to the conduct of the election on August 25th will be re-
counted in connection with the sequence of events which occurred in the plant,
leading up to that date.
to bargain with reference to this unit . The Board 's trial counsel did not desire to amend
the complaint to allege the Respondent ' s refusal to bargain with the Union with respect
to the unit as defined either in its April 28th letter, its petition filed May 5th, or its
amended petition filed June 3rd. The Trial Examiner would find , if it were a material
issue herein, that the unit proposed at each of these stages was appropriate for purposes
of collective baigaining, and does find, as did the Board in the "R" case, that the fore-
going unit likewise is appropriate.
BIRD MACHINE COMPANY 321
4. Union discussions in the plant
The union meetingg held on April 2l th and 30th, together with a series of hand-
bills issued by it, gave impetus to discussions at the plant of union affairs. After
the Union began its campaign Phillips Dennett, the Respondent's president, called
a meeting of the supervisory personnel and, according to his testimony, he in-
structed them "not to interfere in ans way with the right of the employees to
choose a bargaining agent of their own selection, and that the privilege of the
men was to have the right to choose their bargaining agent." The testimony of
several shop foremen was mutually corroborative that Dennett impressed upon
them to "keep [your] mind on [your] work and not to interfere with the gentle-
men who work for us," "not to interfere with the men in their efforts to establish
a union of any kind," "not to interfere in any way, to give the boys a free hand,"
"to keep away from the Union." There had been no plant rules governing em-
ployees' discussions while at work ; and plant practices permitted them to leave
their places of work occasionally to brew and drink coffee, make purchases at
various vending machines, and attend to other personal matters that did not
interfere substantially with their work.
Among the employees, an assemblyman in Department 14, Gilbert I. Favor,
distinguished himself by his zeal and advocacy for the Union, and was the recog-
nized leader of the union movement in the plant" In his activity Favor was
joined by James LoDico, delivery clerk in the storeroom department, whose work
required him to go to various departments throughout the plant. Favor and
LoDico comprised the infbrmnal campaign committee in the plant. Other em-
ployees also assisted them, talking for the Union and distributing union cards.
Several employees testified credibly that the widespread dissatisfaction with the
job evaluation plan prompted many workmen to sign union caids.
On the day following one of the first meetings of the Union, Julius Yankee,
the plant superintendent, approached Favor at his job and asked him about the
union meeting on the preceding evening, then engaged him in a conversation
lasting 20,or 30 minutes concerning the Respondent's beneficent labor policy and,
with reference to union representation of employees, asked Favor "What do you
folks expect to accomplish'?" Responding to this, Favor pointed out the general
dissatisfaction with the job evaluation plan. Yankee answered by saying there
was no dissatisfaction, and added, "You don't need the Union. You don't need
anything. We are good to you." This conversation turned into an argument over
the merits of the plan, which commanded the attention of nearby employees and
reached a conclusion in opprobrious remarks of both participants 10
AfterLoDico became active in the union campaign, and on occasions when he
was delivering materials to department 10, Foreman Swanson frequently ad-
dressed him as "Mr . C. I. 0 ", told him the Union was "no good", and offered to
bet that the Union would not "come in". On one occasion, Swanson told LoDico
that he did not want the latter to come into his department and talk about the
Union to his employees, although before the union campaign he had not com-
mented on LoDico's discussions with them. In one instance he told LoDico that
the assistant superintendent, Lindsay, wanted to see him and had criticized
0 Favor's termination on September 11th is hereinafter recounted.
10 Yankee , admitting he inquired about the union meeting , denied most of this incident,
and testified there was an earlier conversation when Favor asked Yankee whether he should
join the Union Favor was corroborated by a witness who overheaid the opprobrious re-
marks, by Yankee's testimony that he talked with Favor about union affairs on two occa-
sions and by Yankee's admission of discussing with Favor in July a rumored charge of
coercion growing out of this conversation The Trial Examiner credits Favor ' s version of
this incident as substantially correct.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LoDico's "talking Union"; which Lindsay denied when LoDico asked him if he
had made such remark. In talking with LoDico and other employees , Swanson
said that if the plant were to be unionized , they would lose certain privileges
and benefits such as the bonuses paid by the Respondent , and the permission to
take time off for drinking coffee and to make purchases at the vending machines.
He frequently engaged LoDico and other employees in arguments pertaining to
the Union . Swanson testified he had ordered LuDlco out of his department "two
or three times , when he was passing around cards," and stated he (lid not permit
cards to be passed out during working hours . He testified , when he received a
union handbill handed out at the plant gate, he "tore it up in front of them ""
There was considerable evidence of general talk among employees that the
unionization of the plant would result in the Respondent discontinuing its policy
of paying bonuses, as well as withdrawing privileges which had been accorded -
them . The evidence does not disclose the origin of such talk . but does disclose
that various foremen gave currency to it by questioning employees under them
whether such benefits and privileges would be at risk if the plant were unionized.
In department 1, according to employee John King, assistant foreman Leon Fisher
frequently participated in workers ' conversations concerning the Union and the
benefits it might bring them, and stated that their coffee privilege would be taken
away, they would lose their bonus and their paid vacation , they would be limited
to specific operations in their work and denied the opportunity of lightening their
work by using labor -saving tools , they would be kept at their job until the whistle
blew at quitting time, and they would lose money by paying it out to the Union
without gaining anything In department 3, according to employee James Griffen,
when lie had appealed his "merit rating", foreman Ulderico Santoro said, "Do
you think , if you get an organization in this plant , you would be allowed to have
those privileges and the bonus ?" In department 14, according to employee Ralph
Welch, either foreman Albert Forsyth or his assistant , Francis Cosgrove." on
the day preceding the election , "kidded" with him and Favor about the Union
coming into the plant , saying the workmen might lose their privileges and bonus,
and would be limited to a single operation in their work Welch testified that
both Forsyth and Cosgrove made similar statements several times before. and
added : "In fact , the bonus talk was something that went all over the shop and
people would say, `Gee , if I vote for the Union . I will lose my bonus ', and the
fear went throughout the shop that they would lose it if they got the Union in."
11 Except for ordering LoDico out of his department Swanson denied the other incidents
testified to by LoDico Weighed in relation to Swanson's admitted anti-union animus,
his sheer denials are disci edited by the forthiight testimonv of LoDico, whom the Trial
Examiner found credible As later recounted, Swanson's flat denial of another incident
is discredited by the mutually corroborative testimony of two employees
12 Evidence disclosed that Cosgrove was classified as a leadman at tines material to the
issues, and the Respondent contends his conduct is not chargeable to management Welch
testified credibly that the assembly department originally was under foreman Frederick
Gould, but was divided, with one division under Albert Forsyth as foreman and Francis
Cosgrove as his assistant. Forsyth confirmed this in part when lie testified he formerly
had been a service engineer, but was put in charge of this assembly section (later designated
as department 14) iahen the Respondent began work under a war contract on what was
called a Cramp mechanism used on submarines Forsyth was specially trained to super-
vise this assembly, and after the contract was cancelled and the department disbanded he
resumed his position as service engineer Favor testified that Forsyth once told him that
Cosgrove was his assistant, in distinguishing his authority from that of headman Bonney
in the same department Although not denying this statement, Forsyth testified he did
not recall it Forsyth testified his work, while foreman, required him to be out of the
department about half of the time Evidence disclosed that several employees in this
department were inexperienced production workers Employees were mutually corrobora-
tive in testifying that Cosgrove acted in the place of Forsyth in his absence, and the Trial
Examiner finds he was an assistant foteman in fact while employed as a working leadman.
BIRD MACHINE COMPANY 323
The discussion with Favor of like import by Albert Hammond, laboratory techni-
cian, is recounted below
According to Favor, whose testimony corroborated that of Welch above,
Cosgrove told women eniplol ees that their work in department 14 was slackening,
that they might be laid off, and that they would gain nothing by joining the Union.
Favor also testified that Forsyth, when asked by employee frank Spelman
whether he should join the Union, said to Speinitin, "Right now the Union cannot
do anybody any good They are under the saute restrictions of the War Labor
Board . . as we are . . You are an old man The Union can't do you any
good anyhow "
Foremen Fisher, Santoro. Forsyth, and Cosgrove, as well as Superintendent
Yankee and Foreman Swanson, flatly denied making remarks of this character.
The Trial Examiner found LoDico, Griffen, Welch, and Favor to be honest and
credible witnesses whose testimony stood the test of extended and careful cross-
examination. and believes and finds on the totality of the evidence that such
remarks were made by foremen to their employees in the course of daily discus-
sions of the union campaign.
5. Publications in Bird's Eye-View
The Respondent printed each month a four page paper entitled "Bird's Eye-
View," which it distributed by mail to each employee. Material printed therein
was contributed bI the Company and by the employees The paper carried a
masthead vvliich listed a purchasing department clerk as editor, and various
supervisory and non-supervisory employees as associate editors. The so-called
associate editors served to report news items in their respective departments, and
to tiansmit employees' ctnitiibutions. The selection of material to be printed, the
ariangement of it in the format of the paper, and the supervision of printing, was
done by an advertising agency which attended to the Respondent's publicity.
Norman Viele, assistant maintenance foreman, who served as an assistant editor,
in May showed to Anita Marie Latclue and another employee while at work a
long hand copy of a verse which later he admitted having prepared The acrostic
of the verse spelled out TO HELL WITH THE CIO" The verse was printed in
the June issue of the Bird's Eye-View in a regular column captioned "Nuts and
Bolts " It appeared with a leading paragraph whn< h rend:
In closing, here is a little verse, or what have you, submitted by J. LoDico,
our genial casting shed operator:
When the paper WW as distributed, the acrostic was observed by several employees,
some of -whoui speculated upon the Respondent's responsibility for its publication.
33 As printed, it read as tolloti s
Three }cats ago this Summer
On a vacation I planned
Happy and carefree but not careless
Enthused by the road neaps I scanned
Little thinking about the future
Looking ahead with delight
Wishing that I night leave at once
Instead of waiting till it got light
The places we planned to visit
Hoping to see them soon
Thinking of old friends and relatives
Hoping they'll have a spare room
Early the next morning, we started
Cheered by the clear molting air
Inspired by the things we saw
Only a fond recollection as we sit in our favorite chair!
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some spoke derisively of LoDico for having written the verse LoDico, when he,
learned of it, immediately protested to the editor the unfairness both of publish-
ing the verse and of attributing it to him saying "I felt that it hurt the Union
and myself by that appearing in the paper." Editor Bussey denied any knowledge
concerning the contribution or who sent it in, but offered to investigate the matter.
In the July issue of the paper appeared a paragraph introductory to a joke in,
prose previously submitted by LoDico, under a caption "Correction," which read as,
follows :
The poem attributed by Jim LoDico in the NUTS AND BOLTS column last
month was not written by Jim or by the NUTS AND BOLTS editor (we don't
know who did write it). The Eye-View's make-up man mixed it up, unin-
tentionally, with Jim's contribution which appears below. Accept our apol-
ogies, Jim. Our intentions were good."
The Company contends the attribution of this verse to LoDico was inad-
vertant. The Trial Examiner believes and finds it was intended and de-
liberate, absent any testimony of Assistant Foreman Viele who composed the
verse that he had not attributed it to LoDico.
6. Specimen ballot
About a week before the election scheduled for August 25, the Regional office,
of the Board sent to the Respondent a number of election notices, each bear-
ing a facsimile copy of the ballot to be used in the election. In keeping with
previous arrangements, copies of the notice were posted on the bulletin boards
in the plant 3 or 4 days before the election. One was posted in the glassed-in
board opposite the time clock in the entrance way. It was put there by a
timekeeping clerk at about 7:30 in the morning, on orders from the Respond-
ent's president transmitted through the personnel manager. When seen by
employees as they entered the plant at 8 o'clock, the specimen ballot was
marked in the place indicating a "No" vote on the issue "Do you wish to,
be represented for purposes of collective bargaining by UNITED STEEL-
WORKERS OF AMERICA (C. I. O.) ?" The timekeeping clerk testified the
door had no lock, that he used no key, and that he posted a notice with
no mark on it. The Respondent offered no other testimony as to the condi-
tion of the board at that time, although it called as witnesses the persons
who had authority over the use of the board. Various employees testified that
in practice the door was kept locked,-although differing oo the type and the
place of the lock thereon, and was opened only by persons authorized by
management. Employee King testified "I am pretty sure I tried [the door
of the board to determine] if it was locked" on that particular day, and he
recalled that it was locked.
When Favor discovered the mark on the notice, he protested to his fore-
man, Forsyth, bringing to his attention the instructions on the notice against
marking or defacement. Forsyth ignored this protest.15 The notice remained
posted, and marked, until the following day when Favor reported the matter
to the Regional Office, and the Respondent was requested to correct the sit-
uation and it did so. The Trial Examiner believes and finds, in view of
the testimony on this and other incidents, that someone possessing the pre-
rogative of management had gained access to the board and had made the
mark on the specimen ballot.
14 This "Correction" was composed by the advertising agent of the Respondent. The
Union points out that no apology was extended to it.
11 Forsyth's denial that Favor made such protest is rejected.
BIRD MACHINE COMPANY
7. Discussions on eve of election
325,
On the day preceding the election when Forsyth and Cosgrove, his assist-
ant, were engaging employees Favor and Welch in the discussion concerning
the risk to their privileges if the plant were unionized, as related above,
Cosgrove stated if they could show him one good reason for voting for the
Union he would vote for it Favor then told him his vote would be challenged,
if he appeared to vote. Foreman Gould, of department 16, passed by them
Without any statement being directed to him and without stopping to par-
ticipate in their discussion, Gould denounced the Union in a bawdy, jesting
remark, accompanied by a suggestive gesture. A few minutes later, when
he returned and passed them again, he again made the remark. Foreman
Forsyth, who found amusement in it, in turn repeated the remark as a jest
in his discussion with Favor and Welch.16
The Respondent endeavored to prove that such remarks as made by Fore-
man Gould, and the discussion of the possible loss of benefits and privileges
described above, were casual and were conducted generally in the shop in a
bantering and jesting manner. The evidence clearly established that banter-
ing and jesting did occur frequently in the shop, but it disclosed that the em-
ployees did not talk about the Union derisively, but viewed the issue of se-
lecting a union with seriousness, and resented the jesting attitude of their
supervisors with reference to it The Trial Examiner believes and finds that
the supervisory personnel, in this incident and in the instances related above,
attempted to engender among the employees contempt for the Union, appre-
hension concerning their privileges if it were selected, and skepticism concerning
benefits which it might afford.
8. President Dennett's letter
On the evening before the election, each employee received at his home in the
mail a letter from the Respondent's president, Phillips Dennett. The letter
reads as follows :
August 23, 1944
This letter goes to you, as to all the people of the Bird Machine Company,
for the purpose of telling you the Company's position and my personal views
on the important question that will be decided next Friday. It has always
been our practice, as you know, to tell you where we stand on matters which
concern us all and my job as well as privilege to make such statements.
In the present case I shall do so as frankly and simply as I can.
On Friday there will be an election to determine whether you want the
United Steel Workers of America C I. 0 to have the right to represent you
on such matters as wages, hours, and working conditions, or prefer to con-
tinue dealing between ourselves as we have always done. The choice is
wholly one for you to make. The Company recognizes your right to join
this or any Union of your choosing and to select a Union as your bargain-
ing agent if you so desire. Membership in any Union will not affect your
position or your prospects in the Company.
On the other hand I feel it my duty to make it just as clear to you that
it is not necessary to join any Union if you do not want to. In spite of
anything that may be said or implied to the contrary no Union can compel
you to join it nor is there any law which would compel you to join. Your
10 Foreman Gould, Forsyth, and Cosgrove each deny that Gould made this remark In,
view of the testimony of Favor and Welch, both of whom the Trial Examiner credits in,
relating this incident, these denials are rejected.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
position and prospects in the Company are likewise not affected if you do
not join a Union.
The election on Friday will be by secret ballot and as nearly as possible
will be conducted like our town and city elections. There will be voting
booths and printed ballots. An official of the United States Government
will be in charge. No one can possibly know how you vote.
If you wonder if you have to vote in accordance with some preference
expressed in the past, as, for instance, if you have signed some card or paper
distributed by the Union, the answer is that you do not You have the right
to vote in accordance with your own desire at the time you vote regardless
of anything else. No one but you iw ill know how you vote and no one has
the right ever to question it.
The outcome of the election will be determined by a majority of those
who vote, not by a majority of those eligible to vote, so the most important
thing for you, as for all, is to vote The question of whether or not you
have a Union is of such importance that you and everyone should arrange
to be here during the voting hours. 4 to 7 P M on Friday, August 25th, and
vote, even if you are off duty or on vacation If you do not vote you are
letting others decide the question for you and perhaps make a choice you
,do not want.
I do not know what is claimed for and expected of a Union if you choose
one as your bargaining agent but I do know that for the thirty years I have
been employed by the Company we as a -group of people have succeeded in
getting along together pretty well. As human beings we have had our minor
differences but we have always been willing and able to adjust these and
I have never heard anyone seriously question the intention of the Company
to be honest and fair. I know also, because I exchange facts and views
with other Companies, that we have usually been ahead of others rather than
behind in our policies and our methods.
We have always had a liberal wage policy and tinder this we have con-
sistently paid the highest possible wages which business and competitive
conditions would allow. Usually our rates have exceeded those paid by other
shops in the vicinity and by our competitors. Today our rates are job for
.job higher than the average for the Boston area and as high as we are allowed
to pay by the War Labor Board under the Wage Stabilization Law Also
it has always been a definite part of our wage policy to advance wages volun-
tarily as conditions permitted.
Among other matters with which a Company and its people are concerned
are working conditions, human relations, rules for promotions, privileges, and
lay--offs, and benefits beyond the scope of usual requirements. We have always
tried and always will try to make this as clean and safe and attractive a
place to work as the kind of work we have to do permits. In dealing with
our people we have always been willing to listen and to adjust our differences
whenever possible. The door of my office has always been open to everyone.
For long years we have recognized and liberally applied a rule of seniority.
Always we make it promotion from among our people if we can and usually
we have. When our work had dropped off, either temporarily or through
long periods of depression like that of ten to twelve years ago, we have
consistently and of our own volition been guided in making necessary layoffs
by as broad a rule of seniority as we think anyone could ask Seniority has
also been applied wherever possible in the case of such privileges as choice
,of shifts-
WTe have been pioneers in two fields of benefit and importance to you both
,of which carne to you unsolicited because of the Company's interest in the
BIRD MACHINE COMPANY 327
welfare of its people and its policy of sharing with them the results of our
mutual effort. Many years ago we established VACATIONS WITH PAY
which have given you needed rest and recreation and the money to pay for
them. We likewise established SERVICE COMPENSATION and in addi-
tion the Company has frequently paid EXTRA COMPENSATION when in.
the judgment of its Directors business conditions warranted . This has mate-
rially increased the income of each and everyone.
These things I mention here because I think that this is the time for you
to think about them and to talk about them with your fellow-workers and
your family. It seems to me that they are proper matters for you to consider
before you vote on Friday. A fair question is whether you think you need a
Union as your bargaining agent in order to get along fairly and successfully
in this Company.
The decision is yours to make.
On the following morning considerable discussion among employees took place
in the plant concerning this letter. Some questioned the Company's purpose in
sending out the letter ; others remarked that the emphasis on paid vacations
and bonuses, capitalized in the letter, along with the statement that they had
been provided by the Company without solicitation, was a reminder that the'
employees' interests had been provided for by the Company without any bar-
gaining representatives ; and othei s remarked that it was possible that these
benefits would be withdrawn it the Union were voted in. is the foremen's cony
ments had indicated, and expressed uncertainty how they would vote where
previously they had been outspoken for the Union Some employees were un-
affected by the letter, although recognizing it as an eltoit to influence their
decision in the forthcoming election.
9 The election
During the after noon of August 25, the election was conducted at the plant
pursuant to the Board order, and inokeeping with arrangements made by the
Regional Office. It resulted in 100 votes cast for the Union, 108 against it, with-
6 additional ballots challenged These challenges were made by Favor, serving
as a union observer at the election, on the ground that the voters were super-
visory employees Cosgrove was one of the six whose vote Favor challenged.
On August 29, the Union filed with the Regional Office of the Board a protest
on the election, with a requrxmt for a new election. The protest stated: (1) the
letter of President Dennett to the employees pi evented their free choice in the
election by influencing them against the Union, (2) prior to and on election
day supervisors advised employees to vote against the Union. because such was
the wishes of the management, (3) the polling place was situated so as to
permit employees to be observed while voting, and (4) there were irregularities
in the handling of challenged ballots.
On September 8, the Union withdrew its protest on the election, and simul-
taneously filed in the present case a charge of unfair labor practices in violation
of Section 8 (1) of the Act" This charge reiterated the substance of the first
and second points in the protest on the election, and further specified that the
Respondent endeavored to discourage membership in the Union by having pub-
lished the verse in the June issue of Bird's Eye-View This last incident was-
brought to the attention of the union officials for the first tine after the election.
Later, on September 12 the Union amended its charge to add the alleged dis-
charge of Favor on September 11. and again on December 26 to add the alleged
14 Upon the record in the "It" case, after the protest was withdrawn, the Board dismissed,
the Union s Detition on September 12, 1944.
•328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to bargain with it "on or about June 3, 1944, and at all times there-
after."
10. Termination of Gilbert I. Favor
Favor vas notified on September 11 that he was laid off On that day the
Respondent began a planned lay-off of a number of employees, concededly for
economic reasons, hereinafter discussed Against the Respondent's claim that
Favor was included in this lay-off without regard for his union activity, the
Union claimed that Favor's employment was terminated to discourage union
membership.
Favor began his employment with the Respondent in December 1942 Prior
to that, he had been employed elsewhere as a milling machine operator for a
period of 5 months, and previous to that he had worked as a clerk in a law office.
When lie entered the Respondent's employ, he was assigned to an assembly
department, later known as department 14, wider the general supervision of
Foreman Forsyth. It was divided in two sections, under leadmen Cosgrove and
Bonney.'8 Favor was assigned to work with Bonney from whom he received
instructions. Throughout the period of his employment be usually worked with
Bonney, although at times he worked .with Cosgrove. At times, too, he was
assigned to assembly work temporarily in departments 15 and 16, and to a variety
,of unskilled jobs in other departments.
Department 14 was engaged principally in the assembly of "Cramp" mechanisms
used in operating submarine hatch covers. In addition to putting the machinery
together, this assembly work required the integral pieces to be drilled, threaded,
dressed, and adjusted in other ways, for fitting with allowable tolerance, although
not requiring fine clearance. At times other types of machines and parts were
assembled in this department When first employed there, Favor worked on the
Cramp mechanism in the assembly of cylinders This involved dressing the in-
teiior of the cylinder, by filing off burrs in the bottom and by honing the walls
to accommodate the piston, inserting and fitting the piston, then fitting and
fastening a cap with studs. This unit was then attached to another part of the
mechanism, which sometimes required additional dressing of the joining surfaces.
In beginning this work, Favor had little skill or mechanical aptitude. Later,
however, his skill improved in doing both the assembly work and the incidental
finishing work, to the extent that he was an acceptable mechanic. During 1943,
in -March, July, and September, he was granted three increases of 5 cents each
in his wage rate. When the job evaluation plan si ent into effect on April 20,
1944, he was receiving the next to the top rate within the range for his labor
grade, as a class B assembler.19 Also indicative of his improving aptitude, prior
to March 1 of 1944, five changes in shop facilities which he had suggested had
been adopted by the Respondent. In all, Favor had nine such suggestions ac-
cepted before his termination 20
is Cosgrove was the most experienced employee in the department , and received a higher
pay rate than Bonney . When department 14, as such, was disbanded Bonney was reduced
to an assembler ' s position, and Cosgrove continued as leadman in the reorganized depart-
ment His status as an assistant to Foreman Forsyth is noted above
10 Assemblers below that of leadman in all assembly departments appeared to be graded
with diminishing skill in labor grades 6, 8, and 9 Class A assemblers were in labor grade
6 The wage rate range for labor grade 6 was from 82 cents to 95 cents per hour, that for
labor grade 8 was from 72 cents to 83 cents per hour, and that for labor grade 9 from 67
cents to 78 cents per hour
20 The Respondent encouraged employees ' suggestions by rewarding them , if accepted,
with an award of $2 or $5 according to the Respondents estimate of their merit. Favor
received two $5 awards and seven $2 awards, in addition to a $10 bonus paid when a total
,of five awards had been earned by an employee.
BIRD MACHINE COMPANY 329
In midsummer of 1943, an organizer for the International Association of Ma-
,chimsts, affiliated with the A. F. of L., endeavored to unionize the Respondent's
employees and announced a mass meeting for that purpose. Gauthier, foreman
,of department 15, sent to Forsyth, foreman in department 14, a paper which the
former had circulated among employees for signatures in his department. The
paper was headed with the statement, "We, the undersigned, do not want a
union in this shop." Rumors of its circulation reached Favor before the paper
was delivered to his foreman. When Forsyth received it, he took it to where
Favor and others were working and asked them to sign it. Favor immediately
took exception to the paper, told his fellow workers not to sign it, saying it was
in infringement of employees' rights and telling Forsyth that by circulating it
he had violated the Wagner Act. Forsyth then went to the plant office con-
cerning the matter, and upon his return destroyed the paper. This incident
inspired considerable talk among employees in the plant, and -a deference to
Favor's courage in the championing of employees' rights 21
Favor was not a member of the A. F. of L., nor did he join this union. He
attended the meeting, and spoke there to urge employees to withhold in union-
izing for a while to see if shop conditions would improve.
Favor, among others, was disappointed with his rating under the job evalu-
ation plan As recounted above, on the day following one of the Union's first
meetings, he vehemently criticized the plan in his argument with Plant Superin-
tendent Yankee. He became the leader of the union campaign in the plant,
advocating its purposes, defending its reputation, speaking at its meetings,
circulating its handbills, and soliciting membership. He was the principal em-
ployee with whom the union officials consulted on the progress of the cam-
paign, and admittedly was known to be engaging in all these activities.
On one occasion Foreman Forsyth told him he went "around the shop talking
too much" and "to stay in (his] department," although Forsyth made no refer-
ence to the activity in which Favor was engaged. This remark was made when
Favor inquired why he did not get a raise, and prompted Favor to respond,
"If you would get me a raise I certainly would stay in my department." For-
syth then discussed with Favor his merit rating, elicited a pledge from him
that he would be more diligent in his work and "stay on the job," then sub-
mitted a revised merit rating sheet on Favor and secured an increase in his
wage rate to the top for his labor grade.' Forsyth testified, and Favor admitted,
that he resumed his discussions with employees in the plant after the raise went
into effect
On an occasion in midsummer, when Favor had gone to the toilet, upon his
return Forsyth told him he had been gone over a half hour, and accused him of
wasting time in talking with other employees Favor protested Forsyth's action
in timing him, and contended he did not treat other employees that way. At
that moment Assistant Superintendent Lindsay passed, and Favor asked Lindsay
to transfer him to another department, saying he felt that Forsyth was prej-
udiced against him and would hold him back from advancement. Lindsay told
Favor that he was assigned to that department, and he wanted him to remain
there. Forsyth admitted having timed Favor, but testified he timed other em-
ployees as well. He testified that Favor was the only one he ever had to
21 This incident predates the period alleged in the complaint, and no inference of any
unfair labor practice is drawn therefrom.
s Tabulations put in evidence by the Respondent disclose Favor was receiving this top
rate of 83 cents on July 1. Forsyth testified the revised rating of Favor reflected the
Improved diligence which Favor promised to make in his work, and was made without
being referring to the rating appeals committee . The increase became effective about 2
Reeks after the revision of F avoi ' s merit rating.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
speak to, and that Favor once made the accusation of "picking on him .. .
watching him all the time" He testified that other employees usually would
leave the department only once during the morning and once during the after-
noon, taking only about five minutes, whereas Favor left two or three times
and stayed much longer. He testified he frequently saw Favor talking with
other employees at various places in the shop, and repeatedly told him to
return to his job, but added he did not bear Favor engaging in any union
discussions although he knew Favor was for the Union. He testified that it
was common practice for employees to talk on the job, to leave their department
for coffee or to make purchases at the vending machines , and that there was
no company rule against such conduct.59 Other foremen also testified to incidents
when they saw Favor in conversations with their employees. Except for one
incident which occurred near a buffing machine after Favor's work hours, and
another that occurred in Swanson's department on the day before the election
when Favor was discussing arrangements with the election observer who was
employed there, the evidence did not establish definitely that his conversations
retarded the work either of himself or of other employees to any measurable
extent.
I)uring July, Favor was assigned to work in the testing laboratory on four
occasions, but on the last was called away on personal business before complet-
ing the work The laboratory was in the basement of the plant, and the work
was done there and in back of the plant Favor's work was unskilled labor,
in handling testing materials, taking apart and cleaning the testing machinery
and utensils, and cleaning the testing room The period of each assignment
was for 2 or 3 days. A laborer, who regularly worked there, was off sick when
he was first assigned there This assignment was in the testing of an analine
sludge, which was somewhat poisonous to the skin and required care in handling
and frequent washing of himself and the testing equipment. Favor suspected
he was assigned to this task, in an out-of-the-way part of the plant, to restrain
if not prevent his activities in behalf of the Union Other production workers
had been assigned there at times and one man regularly employed in depart-
ment 15, Duguay, frequently had been assigned and had a locker there in which
he kept the clothing required for that job 24 On being notified of his second,
third, and last assignments, Favor protested his selection, to Assistant Superin-
tendent Lindsay, and pointed out in one instance that Duguay could be assigned
to the job. Lindsay replied that Duguay, was needed on the job he was doing,
and told Favor that his assignment was only temporary.
In the latter part of July or about the first of August, when returning to the
shop floor from the laboratory, Favor encountered Superintendent Yankee and
asked him if he was to be kept on this laboratory assignment. Yankee told him
he would not be kept there, but told him to do the work when it was assigned
to him. Observing that Favor was wearing a union button, Yankee asked him
for what purpose he was wearing it in the shop, and whether he had paid his
dues as stated on the button. Yankee said that the management did not approve
of such union insignia being brought into the shop, and that permission to do so
should have been requested Favor told him that he was the one who had
distributed the buttons to the employees and did not think he had to have per-
mission to do so. He then explained to Yankee the "psychology" of having but-
tons worn by union adherents, both in encouraging other workmen to join and
in inducing the management to recognize the Union. Yankee then said to Favor
23 Forsyth was one of the foremen who attended the meeting with President Dennett
about May 1.
24 Duguay was an assembler in labor grade 6, rated next to the top in his wage range.
BIRD MACHINE COMPANY 331
that as a result of their earlier conversation, be had received a report that
Favor had accused him of "coercion." Favor immediately took exception to
this report, and asked Yankee who had made such report, and denied he had
made such accusation. Yankee, in his testimony, admitted some discussion
with Favor about his laboratory assignment, about the union buttons and the
"psychology" of wearing them, and about the reported "coercion." HHe testified,
"I asked him if he had' assumed the responsibilities of the Union, and was pay-
ing his union dues," but denied he had said that the company disapproved of
the buttons being worn. He testified that Favor was the only employee with
whom lie had any discussion about union buttons, and with whom he had dis-
cussed the advent of the Union.-"
On one of Favor's assignments in the laboratory, the work was suspended
for a short time while repairs.were being made by a plant electrician. On this
occasion, Albert Hammond, the technician in charge of conducting the tests,2°
discussed with Favor and the electrician his own experience in working for the
Respondent, relating how he was provided with work there during the depres-
sion years, telling them they were foolish in trying to get a union in the plant
and that the employees would lose their bonus and their shop privileges if the
Union got in. He said that the employees (lid not foresee what they were doing,
would gain nothing, and would realize their mistake too late. Hammond, admit-
ting his conversation concerning the good treatment he had received, denied
having said the employees would lose their benefits and were making a mistake.,
Following his last assignment, when Favor went clown to the laboratory to
get the job number on the test on which he had begun to work on the preceed-
ing day, his inquiry precipitated an argument with Hammond, who ordered
him out of the laboratory with the remark, "You are nothing but a trouble-
maker ; you and your union caused more .trouble around this shop than you'll
ever know." Hammond, admitting having ordered him out of the laboratory
after the dispute about the test number, denied he made the statement that
Favor was a "troublemaker" and his union activity was causing trouble:'
2' Yankee testified as follows, on cross-examination .
Q. Did You have any conversation with any other employees about the union?
A No, sir
Q Are you sure of that?
A. Yes, it
Q So Favor is the only nian you discussed the union with"
A Yes, sir.
Q Now, who was it that accused you of coercion in connection with the union?
A I don t know, sir
Q How did You know you had been accused of coercion?
A Because someone told me.
Q Who told you that?
A Air Dennett,
Q Air. Dennett told You 9
A He understood that I had been accused of coercion
From his entue testimony, it appears that the incident which followed the early union
meeting involved the reported "coercion" with which Yankee accusingly confronted Favor
on this last occasion Dennett testified, "I said to [Yankee] in a joking way that I under-
stood he was going to be accused of coercion," although denying positively that he had
received any such iepoit
'6 Hammond directed the work of the helpers, and was solely in charge in the absence of
Foreman Beach who traielled for the Respondent in seivicmg equipment leased to its
customers. The Trial Examiner finds Hammond was a supervisory employee
-' Hamnmml . testimony on the number of davs winch F,rvoi worked there on each
assignment, on the sequence of tests made, and the dates when they were conducted being
in May and June, was not supported by records which the Respondent had and could have
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In July, Favor went to the Personnel Manager, Roland Sager, to apply for a
loan from a lending organization which was a subsidiary of the Respondent.
Previously , Favor had secured a loan in this manner, and had repaid it. Sager
told hiin he would not recommend the loan, telling him that working conditions
were such as to make a loan ill-advised . Favor had heard rumors in the plant
that foremen were preparing lists of employees to be laid off. He then asked'
Sager if this was going to be done , and what factors were to be considered in
selecting the ones to be laid off Sager said the selections would be made accord-
ing to seniority , ability and merit. Favor asked if he was to be included in the
lay-off, and Sager said he did not know, and that he had not seen the lists. Sager
told him, however , that he should not worry because there were plenty of jobs
to be had, and offered to place a call at that moment to a related company, Bird
& Sons , saying , "Favor, if you want a job I can get you a job right now." Favor
refused this offer, preferring to remain with the Respondent , and telling Sager
if he was to be considered for a lay-off he,would try "to pull strings" and stay
in the shop . During the conversation , Favor asked whether it was possible to,
get an increase in wages above the range for his labor grade, and Sager replied
the only limit to where a person could go with the Company was measured by
his ability to perform his work. Sager testified that he had substantially this
discussion with Favor, although fixing it in two conversations in June and July,
The Trial Examiner does not find the variance material to the issues.
Favor 's action in protesting the marked specimen ballot to his foreman with-
out success , and on the following day to the Regional Office , is recounted above.
On election day he helped distribute leaflets before working hours , then served
as an observer for the Union during the election.
On the day following the election , Foreman Forsyth told Favor that he under-
stood how he felt over the election , that he should keep "on the ball" in his work
and not go out of the department unless he really had to do so, and remarked
that the bosses had their eyes on him Forsyth admitted these remarks , except
for the last . A few days later, Favor and Griffen were working together tem-
porarily in department 4, when Foreman Swanson passed them. Addressing
himself to Griffen, Swanson asked him if he was then working with Favor, and
said if he was he "would become a Jew and belong to the C I 0 with him."
Swanson ' s denial of this incident is rejected , in view of the credible testimony
of Favor and Griff-bn and the obvious antagonism of Swanson against the Union.
On Monday , September 11, Foreman Forsyth notified Favor he had to "let
him go" at the end of the clay. Forsyth told him that he and two women were
listed for release, referring to a list giveh him by Assistant Superintendent
Lindsay . Favor immediately endeavored to see Yankee and Sager , but both were
absent from the plant. He then talked with Lindsay , protesting his discharge.
In response to Favor 's persistent questioning whether Lindsay had recommended
his release , Lindsay admitted he made such recommendation and told him
that his attitude had been wrong all the time he was in the company's employ.
Favor packed his tools and left on that morning . Several days later Favor re-
turned to the Company 's office to get a check due him, and then asked to talk
with Sager. In a conversation with Sager , marked by asperity on the part of
Favor, Sager said to him , "You were never happy working here . . . You were
a rabid union follower." Favor took exception to the lask remark, pointing
out he never belonged to any union until he joined the C. I. O. in the shop, and
produced and was at variance with the more credible testimony of Favor and with other
incidents that confirm Favor ' s testimony. The Trial Examiner believes Hammond en-
deavored to confuse the sequence of events and discredits that part of his testimony which
conflicts with Favor s The latter ' s account of Hammond ' s conduct is credited as sub-
stantially accurate.
BIRD MACHINE COMPANY 333
did that along with the other employees. Lindsay gave no testimony concerning
Favor's protest to him, and Sager's testimony supported Favor's account of
their discussion except that Sager denied having told Favor, "You were a rabid
union follower."
Favor sought employment elsewhere. He found an opening at another plant
in a nearby town, and was given encouraging consideration by its employment
agent who asked for his references. Following a satisfactory preliminary in-
terview, and within the course of an hour to permit the investigation of one of
his references, Favor was told in effect that the job was not open to him. He
then asked with whom his interviewer had talked at Bird Machine Company,,
and was told to "never mind " Favor then telephoned the Respondent's plant,
stated to the telephone operator he was the person who had called about Favor
a short time before, and asked to be connected again with the person with
whom he had talked. Favor was then connected with a clerk by the name of
Daley, whom the Respondent disclosed was regularly employed in its purchas-
ing department. Having ascertained the source of the report made on him,
Favor made no further inquiry. The substance of the report was not disclosed,
and no attempt was made to secure the testimony of Daley or of the prospec-
tive employer's employment agent.
In addition to Favor, on September 11th the Respondent permanently laid
off 2 other employees in Department 14, both women ; and altogether 17 other
employees in 11 departments. Including all these, during that week a total of
22 employees were laid off ; and including these, during the 4 weeks following
September 11th, a total of 47 employees were laid off. This number did not
include 7 who quit a>ad 1 who was discharged. Of the total of 47, 18 were women,
being all the women employed in production work in the shop Eleven of these
women and seven of the men had signed cards with the Union; and all who quit or
were discharged had signed cards
In May and June the work on Cramp mechanisms began to slacken. At about
this time, the contract for their manufacture was cancelled, and the Respondent
did not have sufficient work to warrant the continued employment of all its pro-
duction workers In July President Dennett issued instructions to the depart-
mental foremen to list those workers who were least needed for efficient opera-
tions, and directed that all women workers be listed for lay-off. In the latter part
of July, the foremen prepared and transmitted their lists, which were examined by
Dennett, Yankee, Lindsay, and the production manager, Laird. Dennett had bad
prepared for his use a seniority list of all male employees working on June 30th.
He ascertained that the foremen's lists had been prepared without regard for the
relative seniority of the men, and directed that they be returned to the department
heads for reconsideration "to have any man out of turn [in seniority] compared
with all the men who were junior to him, as to their ability." The lists were
returned to the foremen with this instruction, although there is no evidence that
the foremen were provided with the seniority list. Subsequently, after the middle
of August, the lists were submitted again with a revision as to one or two men
employed in the machine shop. They were examined again by Dennett and the
supervisors , and again Dennett requested that those listed be reconsidered as
compared with junior men. No change was made in those listed this time, and
the lists were returned to Dennett. He took no action in the lay-off, pending the
election and during the period while the protest on the election was pending.
When notified on Saturday, September 9'th, that the Union had withdrawn its
protest, he issued instructions that the listed employees be laid off . Lindsay
received the list on September 11th, and as related above, gave notice to some of
the listed employees on that day.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent offered proof that Favor was included in the lay-off because
of his relative seniority, and because in ability lie slid not compare with other
employees who were retained. According to the list used by Dennett, showing the
relative seniority of men employed on June 39th, corrected to onut all separations
prior to September 11th, Favor was 54th from the last, out of approximately 215
non-supervisory male employees in all production, maintenance, and shop store-
room departments 2s Thirty-five of less seniority were retained, and 8 of greater
seniority were laid off. In departments in which the character of work done was
comparable to that done by Favor, 17 with less seniority were retained and none
with greater seniority were laid off S9 Twelve of the 17 had been in labor grade
6 on July 1st, and the remainder were in labor grade 830
Foreman Forsyth and Assistant Superintendent Lindsay testified that when
the work in department 14 began to slacken, the men in that department were
transferred from it. According to Lindsay, these transfers began in May and
June, and "most of them were transferred by the end of July." The Respondent's
employment data disclosed that there were 13 men employed in that department
on July 1st, 2 of whom were learners and subsequently were released. Except
for the 2 leadmen, and except for Favor and Leicester Willis, both of whom were
in labor grade 8, the remaining 7 were in labor grade 6 Following July 1st, Willis,
who had been eniploled 5 months betoreFavor, was upgraded to labor grade 6
and transferred to department 16. One of (lie remaining 7 was discharged, and
another quit; 4 were transferred to department 16, and 1 was transferred to
department 6. Favor had greater seniority than 4 of these 7 After the transfers,
as reflected by records of January 1, 1945, all non-snpei N isory employees in de-
partment 15 and 16 (the latter having been consolidated with department 14)
were in labor grade 6, except for the painter-sprayer in department 16 who was
in labor grade 8 The two leadmen and Favor, and Welch who quit, were the
last to work in department 14. Thereafter, Cosgrove was made the leadman in
department 16, and Bonney was reduyed in grade and wages to the status of
a non-supervisory employee and assigned to that department.
Before department 14 as such was disbanded, but following the transfers of
the other workmen, Favor was employed there on "snagging" work from other
departments, and in frame assembly for department 16. In addition, a peacetime
product of the Respondent, referred to as a Johnson screen, on which production
was being resumed, was being assembled in that department by Cosgrove, Welch,
and Favor. This same assembly work was done later in department 16, after
its consolidation with department 14. There was no specific criticism of Favor's
work in these operations.
The Respondent's evidence disclosed that the work of department 15 and 16
was maintained at a fairly constant production level during the summer months
of 1944 Foreman Gauthier testified that he had work to be done in department
15 at about September 11th on which he could have used Favor, " as a green
man . . . unfamiliar with my department . . . I couldn't use him as another
man in the department." He testified there was always rough work there for
28 Data prepared by the Respondent under a caption "Employment Dates of Shop Em-
ployees" includes the names of six who were laid off or quit before September 11 (Charles
Simmons, Jr, Manly Spear, Anthony Russetti, Ralph Welch, John Seba, James Lindsay,
Ji ), but omits the names of others who quit or weie discharged between July 1 and Sep-
tember 11 (Earl Warner, George Webb, Allan Ayer, Robert (Charles L.) Groome, Carl
McKay).
2" These were in assembly departments 6. 14, 15 , and 16 , and in the "snagging" or grind-
ing operations of department 10 (welding and boiler.hop) A substantial part of Favor's
work was in removing burrs and ridges on castings and pieces, called "snagging"
2" These last mentioned were Leicester Willis in department 14, and the "snaggers"
or rough and finish grnideis in department 10
BIRD MACHINE COMPANY 335
unskilled men, referred to as "snagging " work, and that he kept two or three
new and inexperienced men assigned to this type of work. He named three, two
of whom had less seniority than Favor. 'Previously, Favor had been sent to
his department for short intervals, and employed on what Gauthier described
as helper's assignments. In doing this, Gauthier had no criticism of his work.
On another occasion Favor was assigned to drilling and threading holes in armor
plate, in work which Gauthier described as being on the "production line." He
broke several threading taps when tried on this job, and used more time in
removing them than was required by the other experienced workers. Finding
that he was holding up the production line, and that he was inept in this operation,
Gauthier returned him to his own department.
Forsyth, who admittedly listed Favor to be laid off, testified that in his opinion
Favor was not a competent workman for general work in the shop. Both Forsyth
and Cosgrove testified concerning instances when Favor's work was unsatisfactory,
and had provoked critical comments. As an example, Forsyth described how
Favor drilled cotter-holes out of line, and Cosgrove testified to his breaking
mote drills than other workmen. However, Cosgrove admitted he was kept on
drilling operations and Gauthier testified he saw Favor engaged in this work
in department 14 several times. Forsyth and Cosgrove, in testifying with refer-
ence to Favor's work in elementary assembly operations, which consumed two-
thirds of his working time, stated that he was satisfactory. Bonney, who was
the leadman under whom Favor worked most of the time, was not called as a
witness. Favor testified he never received any criticisms on his work, although
he did describe his experience when he broke-taps in threading armor plate
when working for Gauthier.
In Forsyth's testimony relative to Favor's request for a wage increase before
July 1, when his merit rating was discussed, no mention was made of Favor
then being retarded because of incompetent work; instead, the factor on which
Forsyth expected improvement was that he "get on the ball and stay on the
job and try to work a little faster." The Respondent did not rely upon its merit
rating system, nor offer in evidence its ratings of Favor and other comparable
employees, to support its contention of his incompetence, or his comparative
ability. The Trial Examiner believes the cited instances when Favor's work
was below standard, were instances when he first was assigned to a new operation
or to work with unfamiliar tools and materials, and that the criticisms con-
cerning his work are to be appraised in that respect The Trial Examiner finds
that the Respondent considered Favoroto be a satisfactory worker in his labor
grade and group.
12 Findings in conclusion
A. Liiterfeicnce, restraint, acid coercion
Notwithstanding the instructions of President Dennett, that there be no inter-
ference in any way with the employees' rights to choose a bargaining agent,
the supervisory employees engaged in a course of conduct which served to dis-
credit and defeat the employees' purpose to engage in concerted action through
unionization." " The superintendent, and various foremen and assistant foremen,
badgered the employees in arguments concerning the benefits of unionization.
They showed hostility toward the Union and the employees who were leaders in
its campaign; they charged the leaders with making trouble and abusing ac-
customed privileges; they belittled Favor by expressions intended for insult,
"The propensity of Foreman Gauthier and Forsyth to mterineddle in the matter of
".1f-organization among enipioyees, was indicated by their circulation of the anti-union
petition in 1943.
679100-46-vol 65-23
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and discredited LoDico by falsely attributing authorship of the verse, the publi-
cation of which deprecated the Union. They attempted to inspire contempt for
the Union, and skepticism relating to its effective representation of the em-
ployees' interests They told various employees they had nothing to gain by
joining the Union; they denounced it in bawdy language; and through the
marked election notice, they publicized the Respondent's opposition to it
They engendered apprehension among the employees concerning the shop
privileges and benefits which had been gained through employer concessions. In
repeated questions and asseitions made while participating in discussions with
their employees, they posed the possible loss of these advantages. The employees,
having no bargaining agent and peculiarly dependent upon the discretion of the
employer, perceived in these persistent references a threat of economic reprisal.
Having suggested this insecurity, the Respondent impaired the independence in
judgment which employees have the right to exercise in making a choice concerning
a bargaining agent. President Dennett's letter became enmeshed in this state of
affairs by reminding the employees of these same considerations. In it he
asserted he had the duty and pi ivilege 'of presenting his views, and clearly
disclosed his preference for no union representation. He posed the election issue
as a choice between union representation and "dealing between ourselves as we
always have done " He pointed out that wages could not be increased, and that
by unilateral action the Respondent had promulgated and applied with liberality
a rule of seniority. He described the impartiality of the election procedure, and
gave assurance that no employee would be penalized for voting as he chose. He
cautioned each employee to give careful consideration to the benefits of paid va-
cations and bonus payments, gained through "our mutual efforts," before voting.
The timing, wording, and emphasis of his letter did not allay the apprehension
which the employees felt concerning their accustomed privileges and compensa-
tion ; but instead decided many of them to take no risk with the Respondent's favor.
Those employees who were sensitive to employer guidance considered the letter to
be the Respondent's imprimatur sanctioning the supervisors' conduct. Hence,
the letter drew significance from their cohduct, and became a part of and the
culmination of their campaign to defeat the Union. Integrated in this campaign,
the letter ceased to be "an argument temperate in form" within the bounds of
the employer's immunity under the free speech doctrine" but instead it imple-
mented the "pressure exerted vocally" by the supervisors who inspired among
the employees the fear that their benefits and privileges would be forfeited by
selecting the Union.' It came as a last duinute caution, and became an added
hindrance to a free determination by the employees, as to whether they should
select a bargaining agent to represent them
By this conduct of its officers and supervisors, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guar anteed
them by Section 7 of the Act.
B. Discrimination to dlscounage union nnennbership
The Respondent's anti-union animus, although cautioned by the speech of
Dennett to the supervisors, manifested itself immediately in their treatment of
Gilbert I. Favor. Prior to the advent of the Union, he received no different
treatment from that of his fellow workers, found to be satisfactory in their
regularly assigned work. When the Union began to organize the employees, and
33 See N L. R B v American Tube Bending Co, 134 F (2d) 993 (C C A 2).
33 See N L R B v Virginia Electric cC Power Co, 319 U S 583, and compare Matter of
Virginia Electric C Power Co . 44 N. L R B 404 , also see Matter of Van Raalte Company,
hie, 55 N. 1, R B 146, at pp 150-151.
BIRD MACHINE COMPANY 337
Favor became prominent in this activity,- he became the focal point of the manage-
ment 's attention Superintendent Yankee first gave him warning that he was
under observation, when Yankee questioned him about a union meeting on the
preceding evening and contended with him that the Union would be of no benefit.
Although there was no plant rule that restrained union discussions during working
time, and President Demiett's instructions cautioned the supervisors against any
interference, Foreman Forsyth kept Favor under surveillance when lie talked
with other employees in the plant and attempted to confine Favor to his depart-
ment. Being dissatisfied with his wage rate, Favor told Forsyth that he would
refrain from discussions outside his department if he got a wage increase.
Forsyth, without resort to the procedure of appeal set out in the job evaluation
plan, immediately utilized the superior economic power of the employer to secure
Favor's abstention from further union activity However, Favor's activities were
within the ambit of his rights and did not infringe upon the employer's rules
The awarded increase in his pay rate did not obligate Favor to forego his,
activities, when granted as in this situation, to procure a forfeiture of rights.
which the Act protects in the interest of public policy. When Favor resumed,
his activities after the pay increase went into effect, Forsyth continued his sur-
veillance of Favor, and timed him while away from his department. Assistant
Superintendent Lindsay and Foreman Forsyth thereafter assigned Favor to
work in the laboratory, an unprecedented assignment for him, which segregated
him from his fellow-workers When in July he inquired of Superintendent
Yankee whether he was to be kept there, Yankee assured him that he would not
be, and took that opportunity to question Favor's right to wear a union button.
Yankee told him he was remiss in not having the management's permission before
distributing the buttons in the plant, and confronted him accusingly with a
distortion of Dennett's jest that he had charged Yankee with coercion. Yankee
admitted with singular significance that he discussed union matters only with
Favor. When in July Favor applied to Personnel Manager Sager for a loan,
Sager refused it, although he had authorized a previous loan which Favor had
repaid. When Favor inquired whether lie would be retained in the respondent's
employ, disclosing his expectation that lie would be retained, Sager forthwith
volunteered to find employment for him elsewhere When in July the "Cramp"
assembly work was diminishing, other employees were transferred from Forsyth's
department to work on other operations that were to continue ; Favor was retained
in that department, soon to be disbanded, and was listed by Forsyth for lay-off,
although there were operations comparable to his own in other departments which
Favor could capably perform. The Respondent defined a policy to govern the
lay-off which gave insignificant weight to seniority. It accorded the supervisory
.personnel the power to select the employees who were to be laid off; and with
respect to Favor, it adopted the decision of Forsyth, Lindsay, and Yankee, to be
rid of him through a lay-off, after failing through a raise in pay to procure his
abstention from union activity, to restrict him in such activity through segregation,
and to preclude his continued activity by getting him employment elsewhere.
The last remarks of Lindsay and Sager to Favor, concerning his attitude in the
plant, clearly revealed the Respondent's antagonism toward his pro-union atti-
tude This antagonism appeared as a common denominator, both in the episodes
of his treatment and in the treatment of other union adherents in the plant,
constituting the interference recounted. Favor's persistence in supporting the
Union placed him in opposition to the Respondent's efforts to frustrate the union-
ization of its employees. He was added to the list for lay-off to effect his dis-
charge. This achieved directly the Respondent's purpose to remove him as an
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agitating factor. The disbanding of his -department provided the occasion for it,
with an appearance of economic necessity.
By discharging Favor on September Ilth,'34 the Respondent discriminated in
regard to the tenure of his employment to discourage membership in the Union,
and has interfered with, restrained and coerced its employees in the exercise of
the rights guaranteed them in Section 7 of the Act
C. Refusal to baigurn
The Union demanded recognition is the exclusive bargaining representative on
April 28th, and sought to bargain with the Respondent, when in fact it did not
represent a majority of the employees in the proposed appropriate unit. The
Respondent refused to bargain with the Union until its claimed right was estab-
lished. The Union chose to invoke the Board's procedure to determine its repre-
sentative status, and to avail itself of the consequent delay to solicit additional
authorizations. On June 31d the Union had secured authorizations from a bare
majority of the employees in the unit which it then proposed, which.also was
appropriate; but it did not then offer to, nor seek to establish its representation
status in direct dealings with the Respondent; nor did it then claim the right
to, nor endeavor to bargain forthwith with the Respondent. Instead, by pursuing
the "R" case procedure which its petition had instituted, it demonstrated its
intention not to insist upon bargaining until after the question of representation
was determined by the Board. The Trial Examiner does not agree with the postu-
late of the Board's trial counsel, that the Respondent was then confronted with
the Union's continuing demand for immediate i ecogaition and bargaining, stem-
ming from the letter of April 28 and implied in the pending "R" case procedure.
The Union's overt act of pursuing the "R" case procedure, deferred its implied
request to bargain until after the election determined its status. The conduct
of employers and employees alike are to be viewed realistically. The realities
in this case are that the Union made no such demand upon the Respondent at
any time when it held authorizations of a majority. The illegal conduct of the
Respondent, found herein to have interfered with and restrained its employees
in selecting their bargaining representative, (lid not constitute a circumstance
which would make futile the Union's demand for recognition, nor operate to
charge the Respondent with knowledge that the Union then had attained the
status of an exclusive bargaining agent.
Absent an unconditional demand to bargain by the Union at the time when it
held sufficient authorizations to accord it the status of exclusive bargaining agent,
there was no refusal to bargain on the part of the Respondent. The alleged vio-
lation of Section 8 (5) of the Act contained in the complaint should he dismissed.
IV. THE EFFECT OF THE UNFAIR L-\BOR PRACTICES UPON COMMi CE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations described in Section 1, above, have a close, inti-
mate, 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.
34 The Trial Examiner finds that the evidence, relating to the report made to Favor's
prospective employer, gives strong support to speculation but fails to support a conclusion
that there was further discrimination against him in that respect after his discharge.
Blacklisting was not alleged in the complaint.
0
BIRD MACHINE COMPANY
V. THE REMEDY
339
Since it has been found that Respondent has engaged in certain 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.
With respect to the discriminatory discharge of Gilbert L. Favor, it will be
recommended that the Respondent offer him immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and that the Respondent make him whole for any
loss of pay he may have suffered by reason of his discriminatory discharge by
payment to him of a suin of money equal to the amount he would have earned as
wages from September 11, 1944, the date of his discharge, to the date of the
Respondent's offer of reinstatement, less his net earnings during such period."
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the follwing:
CONCLUSIONS OF LAW
1. United Steelworkers of America, affiliated with the Congress of Industrial
Organizations, 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 exer-
cise 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. By discriminating in regard to the tenure of employment of Gilbert I. Favor,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in any unfair labor practice within the
meaning of Section 8 (5) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law the un-
dersigned recommends that the Respondent, Bird Machine Company, and its
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Steelworkers of America, affiliated
with the Congress of Industrial Organization, or any other labor organization,
by discharging or refusing to reinstate any of its employees, or in any other
manner discriminating in regard to hire, tenure, or any term or condition of
their employment ;
(b) In any manner interfering with, restraining, or coercing its employees in
the exercise of the right to self-organization, to form, join, or assist United Steel-
workers of America (C. I. 0.), or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
86 By "net earnings" is meant earnings less expenses , such as for transportation, room,
• and board , incurred by an employee in connection with obtaining work and working else-
where than for the Respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Crossett
Lumber Company, 8 N. L. R. B 440. Monies received for work performed upon Federal,
State, county, municipal, or other work-relief projects shall be considered as earnings.
See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
a
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purpose of collective bargaining or other mutual aid
or protection.
2 Take the following affirmative action which the Trial Examiner finds will
effectuate the policies of the Act :
(a) Offer Gilbert I. Favor immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other
rights and privileges;
(b) Make whole Gilbert I Favor for any loss of pay he has suffered, or may
suffer, by reason of the discrimination against him, by payment to him of a sum
of money equal to the amount he 'would have earned as wages from the date of
his discharge to the date the Respondent offers reinstatement, less his net earn-
ings during such period ;
(c) Post at its plant at Walpole, Massachusetts, copies of the notice attached,
hereto, marked "Exhibit A." Copies of said notice, to be furnished by the
Regional Director of the First Region, after being signed by the Respondent's
representative, shall be posted by the Respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees are custom-
arily posted Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material Also,
publish a copy of the notice iri the next issue of the plant paper, the "Bird's
Eye-View," and distribute the paper through the usual channels of circulation;
(d) Notify the Regional Director for the First Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the Respondent has taken to comply herewith.
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the Respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
It is further recommended that the complaint against the Respondent be
dismissed in the allegations relating to its refusal to bargain with the Union.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may, within fifteen (15) days from the date of
the entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington 25, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any other
part of the record or proceedings (including rulings upon all motions or objections)
as he relies upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, the party or counsel for the Board filing the same shall serve a copy thereof
upon each of the other parties and shall file a copy with the Regional Director.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case to
the Board.
MELTON BOYD,
Trial Exwniner.
Dated May 23, 1945.
BIRD MACHINE COMPANY
EXHIBIT A
NOTICE To ALL EMIPLOYi,:I s
341
Pursuant to recommendations of a Trial Examiner of the National Labor Rela-
-tions Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that :
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 organiza-
tions, to join or assist United Steelworkers of America, (C. 1 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.
We will offer to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice
to any seniority or other rights and privileges previously enjoyed, and make
them whole for any loss of pay suffered as a result of the discrimination.
Gilbert I. Favor
All our employees are free to become or remain members of the above-named
union or any other labor organization We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against
any employee because of membership in or activity on behalf of any such labor
organization.
BIRD MACHINE COMPANY,
Employer.
Dated------------------------------- By -----------------------
(Representataue ) (Title)
NOTE-Any of the above-named employees presently serving in the armed
forces of the United States will be offered full reinstatement upon application
in accordance with the selective service act after discharge from the armed
forces>
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or coveted by any other material.