Electrical Testing Laboratories, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1946

65 N.L.R.B. 1239 (N.L.R.B. 1946)

In the Matter of ELECTRICAL TESTING LABORATORIES , INC. and FEDERA-
TION OF ARCHITECTS, ENGINEERS, CHEMISTS AND TECHNICIANS,
C. I.O.
Case No. 2-C-,5731.Decided Febnwry 20,1946
DECISION
AND
ORDER
On June 19, 1945, the Trial Examiners issued their Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the United and the respondent filed
exceptions to the Intermediate Report, and the respondent filed. a
brief in support of its exceptions. No request for oral argument
before the Board at Washington, D. C., was made by any of the
parties, and none was held. The Board has reviewed the Trial Ex-
aminers' rulings made at the hearing and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
The Board 'has considered the Intermediate Report, the Union's
exceptions,' the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiners.
THE REMEDY
Having found that the respondent has engaged in conduct violative
of the Act, we shall, in agreement with the Trial Examiners, order
it to cease and desist not only from such conduct, but also, for the
reasons hereinafter, set forth, from in any manner interfering with,
restraining, or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act. The respondent's interference,
domination, and support in violation of Section 8 (2) and (1) of the
Act has been complete in its intensity. Before the formation of the
1 In its exceptions to the Intermediate Report, the United states that its true name Is
"United ETL Employees" rather than "United Employees ." Our order shall be applicable
to this organization by either or whatever name it may be known.
65 N. L. R. B, No. 211. 1239
I240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United, the respondent's opposition to the organization of its em-
ployees in the Union was shown by Assistant Treasurer Thompson's
warning to Milous that employees who favored the Union risked the
danger of having their job security impaired. Shortly after the Union
had filed a petition with the Board for an investigation and certifica-
tion of representatives, the idea of forming the United was conceived,
primarily for the purpose of suppressing the Union, by a group of em-
ployees which included a supervisor for whose activities the respond-
ent is responsible. When this matter, was submitted to Attorney
Lothrop, a representative of management, he promptly undertook to,
and did, direct and guide the formation of the United, and thereafter
continued to play a dominant role in its administration. In addition
to Lothrop, other representatives of management became members of
the United, and some' of them in other ways participated in its forma-
tion and administration. The respondent further supported and
assisted the United by permitting it to carry on its organizational
activities openly and exhaustively during working hours and to hold
its meetings on the respondent's property. We are convinced that the
respondent's unlawful conduct, described more fully in the Intermedi-
ate Report, is closely related to the other unfair labor practices pro-
scribed by the Act and discloses an attitude of opposition to the policy
embodied in Section 7. The warning that employees who favored
the Union risked the danger of having their job security impaired
indicates the threat of future violation of Section 8 (3). The respond-
ent's various acts of domination, interference, and support which
followed the effort of employees to organize and bargain with the
respondent through the agency of the Union manifest a desire to
frustrate self-organization and its objects, and thus to avoid the
obligation imposed by Section 8 (5) to bargain collectively with a rep-
resentative of the employees' free choice. Indeed, we are of the opinion
that there is no more effective method of impeding the exercise by
employees of the rights guaranteed in Section 7 than the maintenance
of a labor organization dominated and supported by their employer.2
We are satisfied and find that the respondent's unlawful course of
conduct discloses a threat of continuing and varying efforts to obstruct
Y The Report of the House Committee on Labor with respect to Section 8 ( 2) of the
Act points out that "It is of the essence that the right of employees to self -organization
and to join or assist labor organizations should not be reduced to a mockery by the imposi-
tion of employer -controlled labor organizations ," and that "collective bargaining is
reduced to a sham when the employer sits on both sides of the table by supporting a
particular organization with which he deals , . . H R Rep No 1147 , 74th Cong, 1st
Sess . ( 1935 ) 17-18. And the Supreme Court of the United States has recognized that
the maintenance of a `company union,' dominated by the employer may be a ready and
effective means of obstructing self -organization of employees and their choice of their own
representatives for the purpose of collective bargaining . ' N. L. R. B. v. Pennsylvania
Greyhound Lines, Inc., 303 U. S 261, 266.
f,^
ELECTRICAL TESTING LABORATORIES, INC. 1241
the employees' statutory rights.3 Unless our order is coextensive with
the threat, the purpose of the Act to protect the rights of the employees
generally will be thwarted. In order, therefore, to make effective the
interdependent guarantees of Section 7, to prevent a recurrence of un-
fair labor practices, and thereby to minimize 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 other manner
infringing upon the rights guaranteed in Section 7 of the Act.
As recommended in the Intermediate Report, we shall also order
the respondent to take certain affirmative action designed to effectuate
the policies of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Electrical Testing Labora-
tories, Inc., New York City, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of United
Employees, by whatever name known, or with the formation or admin-
istration of any other labor organization of its employees, and from
contributing support to the said organization, or any other labor organ-
ization of its employees;
(b) Recognizing United Employees, by whatever name known, or
any successor thereto, as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Federation of Architects, Engi-
neers, Chemists, and Technicians, C. I. 0., or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities, for the purpose of col-
lective bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withhold or withdraw all recognition from United Employees,
by whatever name known, or any successor thereto, as the representa-
3 See System Federation No. 40, etc. v. Virginian By. Co, 11 F. Supp . 621 (D C. Va ),
aff'd 84 F. (2d) 641 (C. C A. 4), 300 U. S. 515 . See also N . L. R. B. v . Express Publishing
Company, 312 U. S. 426; May Department Stores Co. v. N. L. R. B., 66 S . Ct. 203.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive of any of the respondent's employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or other conditions of employment,
and completely disestablish the United Employees, by whatever name
known, as such representative;
(b) Post at its plant at New York City copies of the notice attached
hereto, marked "Appendix A." Copies of said notice, to be furnished
by the Regional Director for the Second Region, shall, after being
duly signed by respondent's representative, be posted by the respond-
ent immediately upon receipt thereof, and maintained by it for sixty
(60) consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. 1Zeason-
able steps shall be taken by the respondent to insure that said notices
are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Second Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
Mn. GERARD D. REILLY took no part in the consideration of the above
Decision and Order.
APPENDIX•A
No PTCE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and' in order to effectuate the policies of the National Labor
'Relations Act, we hereby notify our employees that :
We hereby disestablish United Employees, by whatever name
known as the representative of any of our employees for the pur-
pose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, and we will not recognize it or any successor thereto
for any of the above purposes.
We will not dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support to it.
We will not in any manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist Federation of Architects, En-
gineers, Chemists and Technicans, C. I. 0., or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection. All our em-
ELECTRICAL TESTING LABORATORIES, INC. 1243
ployees are free to become or remain members of this union, or any
other labor organization.
ELECTRICAL TESTING LABORATORIES, INC.,
Employer.
Dated---------- By-------------------------------------------
(Representative ) (Title)
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. Cyril W. O'Gorman, for the Board.
Sullivan & Cromwell, by llr Charles S. Hamilton, Jr, of New York City, for
the respondent.
Mr. Thomas R Sullivan , of New York City, for the Union.
Mr. Carl P. Lathrop , of New York City, for the United.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Federation of Architects, Engineers,
Chemists and Technicians, C. I 0., herein called the Union, the National Labor
)relations Board, herein called the Board, by the Regional Director for the Second
egion (New York City), issued its complaint dated March 22, 1945, against
E1c ctrical Testing Laboratories, Inc, New York City, herein called the respond-
ent, alleging that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (1) and (2)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act Copies of the complaint, accompanied by notice of hear-
ing, were duly served upon the respondent, the Union, and United Employees,'
herein called the United.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent : (1) on or about December 10, 1944, initiated, formed,
sponsored, and promoted the United and from December 10, 1944, to March 22,
1945, assisted, dominated, contributed to the support of, and interfered with
,the administration of the United; (2) from about September 1, 1944, to March
22, 1945, vilified, disparaged, and expressed disapproval of the Union; interrogated
its employees concerning their union affiliations; urged, persuaded, and warned
its employees to refrain from assisting, becoming members of, or remaining
members of the Union ; urged, persuaded and warned its employees to assist,
become members of, or remain members of the United; and kept under observa-
tion the meetings and activities of the Union or the concerted activities of its
employees; and (3) by the foregoing conduct engaged in unfair labor practices
within the meaning of Section 8 (1) and (2) of the Act.
The respondent, on April 2, 1945, and the United, on April 6, 1945, filed answers
denying that the respondent is engaged in interstate commerce and that the
respondent committed any of the unfair labor practices alleged. On April 19,
1945, the United filed a Demand for a Bill of Particulars with the Regional
Director who denied the Demand without prejudice to its renewal before the
Chief Trial Examiner. On May 5, 1945, the Chief Trial Examiner issued an
I Near the beginning of the hearing, a motion to amend the complaint was granted so
that the name of the United should appear as stated above.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, denying the Demand for a Bill of Particulars but permitting the United
to intervene in the proceeding to the extent that its interests might appear.
Pursuant to notice, a hearing was held at New York City on May 15 and 16,
1945, before Arthur Leff and Frederic B. Parkes, 2nd, the undersigned Trial
Examiners, duly designated by the Chief Trial Examiner. The Board, the re-
spondent, and the United were represented by counsel and the Union by an official
representative. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all parties.
At the opening of the hearing, the United renewed its Demand for a Bill of
Particulars, previously filed with, and denied by, the Regional Director and the
Chief Trial Examiner Upon denial thereof by the undersigned, the United
moved that the complaint be dismissed The undersigned denied the motion.
At the close of the hearing the undersigned granted, without objection, a motion
by counsel for the Board to conform the pleadings to the proof as to dates and
minor variations. At the same time, counsel for the United moved that the
complaint be dismissed on the ground (1) that the Board was lacking in juris-
diction, (2) that the evidence adduced by the Board failed to sustain the allega-
tions of the complaint, and (3) that the Board had failed to comply with the
provisions of Section 1 of the Act. The undersigned reserved ruling on the
motion. It is hereby denied. All parties waived oral argument before the
undersigned. On May 30. 1945, the respondent filed a brief
Upon the entire record in the case, and from their observation of the witnesses,
the undersigned make the following : d
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Electrical Testing Laboratories, Inc., a New York Corporation with its principal
office and place of business in New York City, is engaged in the business of elec-
trical research, testing, and inspection of electrical equipment, appliances, and
related products. It performs such services on a fee basis for manufacturers
whose plants are located in nearly every State of the United States. Many of
the respondent's clients, such as the Westinghouse Electrical Manufacturink
Company and the General Electric Company, operate on a nation-wide basis,
shipping finished products in interstate commerce. A substantial part of the
respondent's testing and research services are performed for these clients by
inspectors who are employed by the respondent but who are stationed at the
clients' plants. The respondent employs 177 employees in all. Of these, between
30 and 35 are inspectors, 27 of whom are residents at clients' plants located in
States other than New York. The inspectors transmit reports of the results of
their testing and inspection to the respondent's laboratories in New York City,
where such results are analyzed, verified, and consolidated with other informa-
tion. Reports thereon are prepared at the laboratories in New York and are
communicated to the clients by mail, railway express, telephone, or telegraph.
The respondent performs in its laboratories in New York City other testing and
research services for clients who forward to the respondent specimens of their
products. During 1944, the total gross fees received by the respondent for its
'services, was in excess of $100,000. The income derived by the respondent for
the services rendered by its inspectors resident at clients' plants outside the
State of New York also exceeded $100,000. In certain instances completed ship-
ments of goods are made through the respondent's laboratories by manufacturers
for the purpose of testing en route. It was stipulated at the hearing that approxi-
mately 84,000 pounds of rubber matting, valued at approximately $33,600, was
ELECTRICAL TESTING LABORATORIES, INC . ' 1245
thus shipped annually by the manufacturer from points either outside or within
the State of New York to the respondent's laboratories for the purpose of testing
and thence was shipped to the purchaser of such matting outside the State of
New York. In 1944, the respondent purchased equipment and supplies, valued
at approximately $12,000, which were shipped to it from points outside the State
of New York.
The respondent and the United contend that the testing services rendered by
the respondent do not affect commerce within the meaning of the Act and that
the respondent therefore is not subject to the jurisdiction of the Board. The
contention is clearly without merit. The facts set forth above establish that of
the respondent's 177 employees, 27 are employed outside of the State of New York,
and that products tested, reports made, and supplies and materials used by the
respondent are transported in interstate commerce. It is also clear that the
respondent performs a vital service, closely allied to the manufacturing process,
for clients who are directly and extensively engaged in interstate commerce and
that a labor dispute limiting the respondent's testing and inspection services
would necessarily tend to curtail and disrupt the interstate shipments of its
clients' products It is found that the respondent is engaged in commerce within
the meaning of the Act a
II THE, ORGANIZATIONS INVOLVED
Federation of Architects, Engineers. Chemists and Technicians is a labor or-
ganization affiliated with the Congress of Industrial Organizations, admitting to
membership employees of the respondent
United Employees is an unaffiliated labor organization admitting to member-
ship employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and ad»ainistlation of the
United; tntel ference, restraint, and coercion
Organizational activities of the Union among the respondent's employees were
begun in the fall of 1944, according to Preston S. Millar, president of the
respondent.
Employee Pauline Milous testified without contradiction, and it is found, that
on November 22, 1944, she had the following conversation with Gordon Thompson,
assistant treasurer and chief engineer of the respondent : ' Milous initiated the
colloquy by requesting that her job classification of clerk be changed to that of
technical assistant. After briefly discussing the request, Thompson alluded to
rumors that Milous was a paid union official and said, "Well . . . your in-
sistence on this is very suspicious in view of the rumors that have been circu-
lated." After Milous denied the authenticity of such rumors, Thompson Con-
tinned talking about unions and repeatedly asked, "Well, iNhat do the employees
believe they can gain by a union, and why do you think that they are trying to
organize a union?" Thompson further stated that the employees "who were
agitating for the union and complaining about conditions were . . . people who
were riot very dependable in their work and they were not very well qualified,
2 Cf Consolidated Edison Co v. N. L R B, 303 U S 197 N L R B y Bradfoi d Dyeing
Association, 310 U S 314; N L R. B v Maynard K Van Deusen, 138 F. (2d) 893
(C. C A 2), enf'g 45 N L R B 679; Matter of U. S Testing Co , Inc, 5 N L R B 696.
3Milous testified that the conversation occurred in the latter Hart of Novembei How-
ever, counsel for the respondent and for the Board stipulated that the conversation be-
tween Milous and Thompson, as testified to by Milous, occurred on November 22, 1944
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and ... were not very efficient, and they had to be supervised at every step of
the work they did as contrasted with others in the place who were not union-
minded, who could be given a job and they just didn't have to be supervised at
all." Thompson went on to say that after the governmental restrictions upon
wages and manpower were removed at the conclusion of the war, the respondent
would hire and retain only those technicians who possessed the highest qualifica-
tions and efficiency and that although the respondent would be willing to pay
"top salaries," it would be "very, very particular about the qualifications of the
people that they would employ." The conversation concluded by Thompson's
saying that in his opinion, "The union would destroy the harmonious relations
between the employees and the employer that had hitherto existed" in the
respondent's laboratories and that "a union might be suitable and justifiable in
a production organization where the workers were driven very hard and had
grievances, . . . but that in an organization" such as the respondents "which was
very specialized and more of an ethical institution, . . . a union simply didn't
fit ...,and would destroy all the very special kind of relations that had existed
between the employees and the employer."
On November 30, 1944, the Union filed a petition for investigation and certifi-
cation of representatives, pursuant to Section 9 (c) of the Act` The respondent
was notified of the filing thereof by a letter, dated December 1, 1944, from the
Board's regional office.
On December 12 or 13, 1944, in the laboratory during working hours, Daisy
Bell,' assistant to Department Bead William F. Little, discussed with the em-
ployees Sophie Shimkin, Miriam Palatnick, and Frances Rutigliano the possi-
bility of forming an independent labor organization.
Following this discussion, Shimkin, who testified at the hearing that to her
a union signified "coats and suits" and had no place in a dignified office such
The bargaining unit claimed to be appropriate in the petition was "all technical
employees including engineers, chemists, technicians, and laboratory assistants working in
the New York City laboratory and excluding clerical, service and maintenance employees
together with supervisory personnel."
6 Bell has been in the employ of the respondent and its predecessor for 25 years. The
radiometric and photometric department, under the general supervision of William F.
Little, is divided into two sections, photometric C and photometric D. Bell. who accord-
ing to her testimony is "in charge of the commercial and photometry rooms under the
direction of William Little," is responsible for the work performed by the photometric C
section, in which five other employees work. Bell's subordinates perform routine woik all
day on photometers and other instruments. If the results of their tests appear to be incor-
rect, Bell oiders that the tests be made again. Bell performs "special testing" on pho-
tometers, assigns work to the five employees of the section, instructs them in their work,
examines their work, analyzes the results of the tests performed by them, and writes
reports based upon such analyses Requests for leaves of absences are granted or denied by
Bell. Her salary is "quite a little bit more" than that of her subordinates Although
Bell is not consulted with regard to wage increases of employees in her section, she has
spoken, on occasion to Little, "highy of some of the people who have been particularly
good workers " Bell is "expected to report any infraction of rules any place in the build-
ing, in [her] department or any place else." Bell initially interviews applicants for
employment in her section and then reports the details of the interview to Little, who
makes the final decision to hire the applicant However, Bell makes, in effect, recommen-
dations concerning the applicants interviewed by her Generally, she informs the appli-
cant that lie has been hired and instructs him as to the date to report for work The
testimony of employees indicates that they regard Bell as being a supervisory employee.
It is found that Bell occupies a supervisory status and that her activities are attributable
to the respondent. The respondent points to the fact that Bell's job classification is
"technical laboratory assistant" and that the Union included technicians and laboratory
assistants in its bargaining unit The contention that Bell would have been included in
the unit claimed to be appropriate by the Union is clearly without merit, since supervisors
were specifically excluded from that unit.
ELECTRICAL TESTING LABORATORIES, INC. 1247
as the respondent's, took up the matter with Carl P. Lothrop on the afternoon
of December 13.
Lothrop, an attorney, has been employed by the respondent on a part-time
basis since April 1, 1942. His principal duty is to advise the respondent and
its executives in connection with all matters pertaining to governmental agencies
or regulations. Among other things, he advises and consults the officers of the
respondent with respect to matters pending before the New York Labor Depart-
ment, the National War Labor Board, and the Salary Stabilization Unit of the
United States Treasury Department. All correspondence between the respond-
ent and such agencies is directed to his attention. He is permitted to engage
in the private practice of law provided that his practice does not obstruct his
work for the respondent or conflict with the respondent's interests. He is paid
a regular salary for his services to the respondent, is furnished an office on the
fifth floor of the respondent's laboratory on which several of the executive
offices are located, and is entitled to the services of the respondent's steno-
graphic staff for his private practice. It is clear that the employees regard
him as the respondent's attorney. It is found that Lothrop was a management
representative and that his statements and activities are attributable to the
respondent°
According to Lothrop's testimony, Shimkin informed him that "she and a
small group of like minded employees were disturbed at hearing that a minor
group had organized themselves under the auspices of the CIO organization,"
and inquired whether it would be possible "to form . . . an employer union."
Lothrop replied in the affirmative and suggested that the employees interested
in forming an independent organization call a meeting and appoint a temporary
chairman. He also offered to attend and give his "opinion on what I believe the
law involves." Following Shimkin's interview with Lothrop, Shimkin, Palat-
nick, Rutigliano, and Bell discussed the formation of an independent organiza-
tion with other employees. On December 13, Bell asked employee George R.
McNally,? in the laboratory during working hours, if he would be interested
in the "formation of an Employees' Group." At the time of the conversation,
Bell had a list of employees whom she intended to approach with regard to the
formation of an independent organization. It was decided to hold a meeting of
employees, pursuant to Lothrop's suggestion, on December 14.
The meeting on December 14 was held at the close of the working day in
the lunch room in the respondent's laboratory. McNally, who had been re-
quested by Bell to act as temporary chairman, opened the meeting and explained
that its purpose was 'to formulate an employees' group for the purpose of col-
lective bargaining." He then introduced Lothrop to the assembled employees.
Lothrop, as appears from his testimony, read "the essential parts of the Act
and the various interpretations" thereon, and suggested that the organization
"would be viewed in best faith if every employee of the company, including any
employee that might even be among management, it even might be the president,"
were invited to become a member. Lothrop suggested, apparently at this meet-
9 See Matter of Fletcher Paper Company, 27 N. L. R. B 1274; Matter of Merit Clothing
Company, 30 N L. R B. 1201.
' McNally is "clerical assistant and assistant to the general superintendent . . . Peter
Garms." In general, McNally's testimony indicates that he performs supervisory duties
On the other hand, Garms specifically denied that McNally possessed any supervisory au-
thority. It is found unnecessary to resolve this conflict in testimony The findings made
herein concerning the respondent's participation in the formation of the United are not
predicated in whole or in part upon the respondent's accountability for McNally's activities
arising from any supervisory status which he may possess.
679100--46-vol. 65-80
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, that the nascent organization be called the United ETL Employees.' He
further suggested that the employees circulate a notice inviting all employees to
join the United as well as a subscription petition for membership in the United.
Lothrop informed the employees that "it would be quite all right to circulate
freely throughout the laboratory to solicit signatures for membership" in the
United. When, according to McNally's credible testimony, one of the em-
ployees asked whether they would be permitted to solicit signatures during work-
ing hours, Lothrop replied, "Isn't my presence at this meeting sufficient enough
for you to know that you have company approval " s
Lothrop, the next day, composed the notice and subscription petition and had
copies of the notice mimeographed, and of the subscription typed, by the respond-
ent's stenographic department. The subscription petition read as follows :
Without financial obligation, we individually and collectively, hereto sub-
scribe for membership in UNITED ETL EMPLOYEES.
UNITED ETL EMPLOYEES is an organization of employees of Electrical
Testing Laboratories, Inc voluntarily initiated and formed solely at the
instigation of, for and by its members and is free from domination or con-
trol, directly or indirectly by any affiliated body or our employer. All em-
ployees of Electrical Testing Laboratories, Inc. are eligible for membership.'
Until later revoked we individually and collectively hereby appoint Carl P.
Lothrop to appear, represent and intervene on our behalf in a proceeding
predicated on a petition filed by International Federation of Architects,
Engineers, and Chemists, Chapter 31, C I 0, now pending before the
National Labor Relations Board in and for the New York Region.
On December 15 or 16, 1944, in the laboratories during working hours in the
presence of supervisors, McNally openly distributed to all employees, including
supervisors and officers of the respondent, copies of the notice. At about the
same time, copies of the subscription petition were distributed to key employees
who circulated them in their departments. The subscription petition was cir-
culated and signed during working hours without restraint, except in one in-
stance when Herman Koenig, head of the electrical measurement and testing
department, refused to permit the circulation of the petition in his department
during working hours. Shortly thereafter, Bell went to Lothrop's office and
asked him to call Koenig. In Bell's presence, Lothrop called Koenig, asked,
"What are you holding these people up for'?" and told him that "it was all
right . . . that we had permission to solicit signatures."
As the petition states, all employees were originally eligible to membership
in the United. No eligibility restrictions were imposed with respect to super-
visors.10 The subscription petition was signed by Lothrop ; Carolyn E. Slocum,
secretary of the respondent and head of the stenographic department; George
L Diggles, in charge of the lamp inspection department; Daisy Bell; Caroline E.
8 The name of the United appears on the original subscription petitions as United ETL
Employees Apparently , it was subsequently changed to United Employees
9 Lothrop testified, with regard to the statement attributed to him by McNally, that when
someone at the meeting asked, "Does this meet with company-does the company object to
this meeting9" Lothrop replied , "If I thought they did, I would not be present" Thus,
the only essential difference between Lothrop s and McNally's version of the statement is
the nature of the question to which the statement was an answer McNally 's version, set
forth above, is accepted
10 Lothrop testified that, as the United was originally constituted, everyone on the
respondent 's pay roll, even the respondent 's president "as- far as we were concerned."
might become members of the United. However, supervisory employees were subsequently
deemed to be ineligible to membership.
ELECTRICAL TESTING LABORATORIES, INC. 1249
Horn ; " Anna M. Primont, in charge of the lunch room ; and William F. Little,
head of the radiometric and photometric departments, all of whom the under-
signed find were supervisory or managerial employees identified with the re-
spondent. The day after Slocum signed the subscription, McNally eradicated
her signature from the subscription petition at her request. Little's name was
later removed from the subscription petition at his request. Lothrop testified
that Diggles asked that his name be also obliterated but that Lothrop inad-
vertently failed to do so. Lothrop further testified that about March 15, 1945,
supervisory employees resigned from the United. It appears, however, that
Lothrop, Bell, Horn, and Printout have continued their membership in the
United to date.
Following the formation of the United, Lothrop continued to act as its at-
torney and to attend its meetings When, at a meeting of the United held about
May 15, 1945, Lothrop's attention was directed to the fact that employees who
were not members of the United were in attendance, Lothrop requested that
they leave, saying "I don't think it is a place where a non-member should be
and they should be requested to leave." The United did not have a constitu-
tion or bylaws at that time, and hence there was no rule in existence limiting
United meetings to members only At the time of the hearing, a committee was
then engaged in drafting a constitution and bylaws Lothrop lent them assist-
ance by submitting copies of two or three constitutions and bylaws of other
organizations for their consideration.'
B Conclusions
Prior to the formation of the United, the respondent's opposition to the organ-
ization of its employees into the Union was exposed by the conversation between
Gordon Thompson, the respondent's assistant treasurer and chief engineer, and
employee Milous. In that conversation, Thompson deprecated the desirability of
union organization in the respondent's laboratories, and inquired concerning
Milous' connection with the Union, matters of no concern to the respondent.
Thompson interfered even further with the self-organizational rights of em-
ployees, by stating that the respondent viewed its union minded employees as
less dependable and less qualified than its employees who were not so disposed
and by adding that during the post-war period the respondent would be "very
very particular about the qualifications of people [it] would employ." The
respondent through Thompson thus voiced a warning that employees who favored
the Union risked the danger of having their job security impaired.
The United first came into existence shortly after the Union had filed a petition
with the Board for investigation and certification of representatives. It is clear
from the entire record that the United was conceived, not so inuch out of a desire
to form a labor organization as such, but primarily for the purpose of suppressing
the Union Of the four employees who originally projected the idea for the
formation of the United, one, Bell, was a supervisory employee for w=hose actions
the respondent must be held accountable Another, Shimkin (the only other
employee in this group who testified), accepted the view, expressed by Thompson,
that a labor union had no place in the respondent's laboratories. Although con-
n Caroline E. Horn is in charge of photometric D section of the radiometric and photo-
metric department . Her duties are identical to those of Bell. Horn supervises approxi-
mately 8 employees. The undeisigned find that Horn is a supervisory employee and that
her activities are attributable to the respondent.
"The above findings of fact are based upon the mutually corroborative testimony of
Shimkiii, McNally, Lothrop. Bell, and Millar.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceiving the plan for an organization of their own, the originating group withheld
action thereon until the matter was submitted to Lothrop, the respondent's house
attorney, for his advice and approval. Lothrop, found above to be a manage-
ment representative, not only welcomed the proposal, but promptly assumed
control of an 1 gave impetus to the movement by himself undertaking to direct
and guide the formation of the projected organization At Lothrop's suggestion
a meeting was held the next day on the respondent's property. At this meeting,
presided over by a temporary chairman selected by Supervisor Bell, Lothrop
advised the assembled employees concerning the organizational steps to be taken,
assured them that the organization had the approval of the respondent and that
solicitation activities would be permitted on company time, and suggested a name
for the nascent organization. Thereafter Lothrop continued to interfere with
the formation of the Union by drafting, at his own suggestion, notices inviting
employees to join the United and membership subscription petitions , both of
which were prepared in quantity by the respondent's stenographic department
upon paper from the respondent's stationery supplies
The notices and petitions, prepared by Lothrop, were circulated and member-
ships in the United were solicited during working hours openly and without
restraint. When Department Head Koenig attempted to prevent the circulation
of the membership petition in his section of the plant, Lothrop'at once remon-
strated and informed hun that the United had permission to solicit signatures
during working hours By permitting the United to carry on its organizational
activities openly, exhaustively, and without restraint during working hours, the
respondent not only made clear to its employees its favor of the United, but lent
the United invaluable assistance and support at a particularly strategic time
when it was seeking to establish itself in opposition to the Union Further
assistance and support was extended to the United through the lunch room facil-
ities which were allowed it by the respondent for the purpose of holding meet-
ings on the respondent's property 13
In addition to Lothrop, other employees identified with the respondent's man-
agement participated in the formation of the United. Supervisor Bell, one of
its original sponsors , took a leading part in the initial stages of its organization.
She, as well as Lothrop, Secretary Slocum, Department Heads Diggles and Little,
and Supervisors Hoi n and Primont became members of the United by signing
the petitions which were circulated to all employees including those in super-
visory capacities . Although Slocum, Little, and Diggles subsequently withdrew
from the United, they had already clothed that organization with prestige which
the respondent never later repudiated. Furthermore, the aura of company
approval and support established by their identification with the United was
maintained after their withdrawal by the continued membership and activity
in the United of Lothrop, Bell, Horn, and Primont. Lothrop, who played a
dominant role, in the formation of the United, continued to guide the United in
its administration, as revealed by his insistence that non-members leave the
United meeting of April 15 and his submission of copies of constitutions and by-
laws of other organizations for the consideration of the committee appointed to
draft the United' s constitution.
13 Since its formation, the United has held regular meetings Although the record does
not specifically reveal that all meetings were held in the lunch room of the respondent's
plant , as was the first meeting of December 14, 1944, the undersigned infer, as does the
respondent in its brief, and find, that all meetings have been held on the respondent's
property The respondent's practice of permitting any employee group to hold meetings
on its property and to use any of its facilities does not mitigate the legal effect of the
assistance rendered the United by the use of such facilities See Matter of Standaid Oil
Company of California , 61 N. L. R. B. 1251.
ELECTRICAL TESTING LABORATORIES, INC. 1251
It is the contention of the respondent that the United was spontaneously formed
by its employees without any interference or support on the part of the respond-
ent. The facts outlined above, particularly those showing the active interven-
tion of certain of the respondent's managerial and supervisory employees in the
formation of the United, effectively refute that contention. It is clear that the
United came into existence and was thereafter administered under "conditions or
circumstances which the employer created or for which [it] was fairly respon-
sible and as a result of which it may reasonably be inferred that the employees
did not have that complete and unfettered freedom of choice which the Act con-
templates "" Upon the entire record, it is concluded and found that the United
is the creature of the respondent, that the respondent has dominated and inter-
fered with the formation and administration of the United and has contributed
support to it, and that the respondent thereby, and by the statements of Thomp-
son to Milous, heretofore set forth, has interfered with, restrained, and coerced
its, employees in the exercise of the 'right guaranteed in section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
It has been found that the respondent has dominated and interfered with the
formation and administration of and contributed support to United Employees.
Because of the respondent's domination, interference, and support, the United
is incapable of serving the respondent's employees as a genuine and independent
collective bargaining agency, and constitutes a continuing obstacle to the free
exercise by the employees of the rights guaranteed them in the Act. Accordingly,
the undersigned will recommend that the respondent disestablish and withhold
or withdraw all recognition from the United 16 and disestablish it as a repre-
sentative of any of the respondent's employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned make the following :
CONCLUSIONS OF LAW
1. Federation of Architects, Engineers, Chemists and Technicians, C. I. 0., and
United Employees are labor organizations, within the meaning of Section 2 (5)
of the Act.
2. By dominating and interfering with the formation and administration of
United Employees and contributing support thereto, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (2)
of the Act
14 N. L R B. v. Link Belt Co., 311 U. S. 584, 588.
'6 At the time of the hearing, the respondent had not yet recognized the United or entered
into any collective bargaining agreements with it.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices , within the
meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommend that the respondent, Electrical Testing Laboratories,
Inc., New York City, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or contributing
support to, United Employees, and dominating or interfering with the forma-
tion or administration of, or contributing support to, any other labor organiza-
tion of its employees ;
(b) Recognizing United Employees as the representative of any of its em-
ployees for the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or other conditions
of employment ;
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist Federation of Architects, Engineers, Chemists and Tech-
nicians, C. I. 0., or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purpose of collective bargaining r other mutual aid or protection, as guar-
,anteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned find will effec-
tuate the policies of the Act :
(a) Withhold or withdraw all recognition from United Employees, and com-
pletely disestablish that organization as the representative of any of the
respondent's employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment, or other
conditions of employment ;
(b) Post at its plant at New York City, copies of the notice attached hereto,
marked "Appendix A." Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted-
Reasonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Second Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent
has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
ELECTRICAL TESTING LABORATORIES, INC. 1253
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 objec-
tions) 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 parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire per-
mission 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.
ARTHUR LEFF,
FREDERIC B PARKES,
Trial Examiners.
Dated June 19, 1945.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of Trial Examiners of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We hereby disestablish United Employees as the representative of any of
our employees for the purpose of dealing with us concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment, and we will not recognize it or any successor thereto for any
of the above purposes.
We will not dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it.
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist Federation of Architects, Engineers, Chemists and Technicians,
C. I 0., or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection All our
employees are free to become or remain members of this union, or any other labor
organization.
ELECTRICAL TESTING LABORATORIES, INC,
Employer.
Dated---------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.