Emerson Radio & Phonograph Corp.

National Labor Relations Board - Board Decisions

Aug 24, 1942

43 N.L.R.B. 613 (N.L.R.B. 1942)

In the Matter of EMERSON RADIO & PHONOGRAPH CORPORATION and
LOCAL 430 , UNITED ELECTRICAL , RADIO & MACHINE WORKERS OF
AMERICA , C. I. 0. -
Case No. C--2022.Decided August 24,1942
Jurisdiction : radios, phonographs, and related products manufacturing industry.
Unfair Labor Practices
In General: employer held responsible for activities of its working supervisors
despite their admission to membership in union and agreement of parties to
include them insproposed consent election ; activities of a person who was not
a supervisor in distributing certain literature held attributable to employer.
Interference, Restraint, and Coercion: attempting to discourage employees' in-
terests in union by promising wage raises and other personal gains; arranging
meeting of union employees to discuss possibility of raises without the neces-
sity of having the union ; demoting a supervisory employee after his refusal
to remove union button; assigning difficult work to another union employee;
attempts to initiate an "inside" organization ; organizing a "social club" to
divert the attention of employees from the union; interference through super-
visory employees with impending consent election.
Company-Dominated Union: formation as a result of employer' s long campaign
against the "outside" union from loosely organized group formed to combat
"outside" union during election campaign when consent election was called
off, and when such transformation appeared necessary for recognition, as
opponent of the "outside" union-support through assistance from supervisor
who: assisted in the preparation and distribution of leaflets ; wore buttons
bearing "inside" union insignia ; and engaged in arguments with employees on
its behalf.
Remedial Orders : employer ordered to cease and desist unfair labor practices
and to disestablish dominated organization.
Practice and Procedure : agreements pursuant to which charges were withdrawn
held not binding upon the Board.
Mr. Frederick R. Livingston, for the Board.
Mr. David B. Williams and Mr. Jacob Krisel, of New York City,
for the respondent.
Mr. Frank Scheiner and Miss Ruth Roemer, of New York City, for
the Union.,
Muccia & Muccia, by Mr. Carrol A. Muccia; of New York City, for
the Independent.
Miss Marcia Hertzmark, of counsel to the Board.,
43 N. L. R. B., No. 90.
613
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by Local 1206, United Electrical, Radio
& Machine Workers of America, C. I. 0., which, together with Locals
434 and 430 of the same union, is herein called the Union,' the Na-
tional Labor Relations Board, herein called the Board, by the Regional
Director for the Second Region (New York City), issued its complaint
dated March 12, 1942, against Emerson Radio & Phonograph Co,r-
poration, New York City, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor prac-
tices 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, • accom-
panied by notice of hearing, were duly served upon the respondent,
the Union, and Independent Employees Association of Emerson
Radio, herein called the Independent.
The complaint alleged- in substance that the respondent initiated,
sponsored, and dominated a labor organization known variously as the
Fleeting Hour Club, herein called the Club, and the Independent; and
that the respondent expressed disapproval'of'the Union, interrogated
employees concerning their union affiliation, urged its employees to re-
frain from assisting the Union, urged them to assist and joint the Club
and the Independent, urged its employees to vote against any union in
a certain scheduled election, and kept under surveillance the activities
of the Union.
On March 21, 1942, the respondent filed its answer denying the
commission of any unfair labor practices. On March 30 and again
on April 9 the respondent filed at the hearing additional answers
alleging an agreement between the respondent and the Union for the
withdrawal of certain charges which were similar to, or the same as,
the charges in this case and a further agreement, by which the Union
allegedly agreed not to assert any claims regarding acts prior to
May 10, 1941. The answers asserted that the Union was estopped
from prosecuting its charges in this proceeding by reason of the al-
leged agreements. On motion by counsel-for the Board, at the hear-
' The charge in this case ' as filed by Local 1206, which started the organizational
campaign at the respondent 's plant It was shown at the healing that ' Local 1206 and
Local 434 have since merged with Local 430 of the sane union -
EMERSON RADIO & PHONOGRAPH CORPORATION 615
ing, these supplemental answers were stricken as irrelevant.2 On
March 21 the Independent filed its answer denying the allegations
of the complaint insofar as they referred to the Independent. It
also alleged that it represented a majority of the workers and re-
quested that it be certified as their exclusive representative. On mo-
tion by counsel for the Board, at the hearing, these affirmative allega-
tions were stricken as irrelevant.
Pursuant to notice , a,hearing was held in New York City, from
March 23 through April 18, 1942, before Tilford E. Dudley, the Trial
Examiner duly designated by the Chief Trial Examiner . The Board,
the respondent , the Independent , and the Union were represented by
counsel and participated in the hearing . Full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce evidence
bearing on the issues was afforded all parties .3 At the close of the
Board's case , the respondent and the Independent moved to dismiss
the complaint . The Trial Examiner denied the motions. At the
close of the hearing, motions were granted to conform the allegations
in the pleadings to the proof . Motions were again made by the re-
spondent and the Independent for the dismissal of the complaint.
These motions were denied in the Intermediate Report. During the
course of the hearing , the Trial Examiner made rulings on other mo-
tions and on objections to the admission of evidence . The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed . The rulings are hereby affirmed.
On May 21, 1942 , the Trial Examiner filed his Intermediate Report,
copies of which were served upon all parties , finding that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce , within the meaning of Section 8 ( 1) and (2)
2 The respondent ' s amended answer of March 30, 1942 , alleged that following the filing
of a charge by the Union on August 13, 1940, the parties entered into an agreement
for a consent election on March 19 , 1941, and that the Regional Director had advised
the respondent by letter dated Maicli 22, 1941, that pursuant to the terms of the settle-
ment the charge had been withdrawn with pieludice by the Union. It alleged further
that the charges in the present pioceeding , filed on April 10, 1941, are similar to the
previous charges , and that the Union is estopped fi oni litigating any of the charges
ieferied to in the prior case.
The supplemental answer, filed on April 9 ,'1942 , alleged that , in consideration of the
respondent ' s enteiing into an agreement with the Union on May 10, 1941 , the Union
agreed to withdraw the piesent charges and agreed not to prosecute them nor assert any
claims with respect to acts occurring - , prior to May 10, 1941. It also alleged that in
view of these facts the Union is estopped from prosecuting the charges upon which the
present proceeding is based , and asked that the complaint be dismissed
we shall dispose of these contentions after our discussion herein of the unfair labor
practices.
After all parties had completed the presentation of testimony , the Trial Examiner
requested the respondent to produce certain witnesses and documentaiy evidence con-
ceining pay rolls The respondent refused to accede to the request and the Trial Exam-
iner issued subpoenas , in response to which one witness testified . The respondent, in
protest against the action of the Trial Examiner in calling for witnesses and requesting
evidence , withdrew and did not participate in the final day of the hearing
0
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a
and Section 2 (6) and (7) of the Act. He recommended that the
respondent cease and desist therefrom, that it withdraw all ' recog-
nition from and disestablish the Independent, and that it make whole
William Santora for loss of pay by reason of two discriminatory
lay-offs.
The respondent and the Independent filed exceptions to the Inter-
mediate Report and briefs in support of the exceptions, and requested
permission to argue orally before the Board. Pursuant to notice, a
hearing for,the purpose of oral argument was held on July 9, 1942, be-
fore the Board in Washington, D. C. The respondent, the Independ-
ent)/and the Union were represented by counsel and participated in
the argument. The Board has considered the briefs and exceptions
and, insofar as the exceptions are inconsistent with the findings, con-
clusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
. Emerson Radio & Phonograph Corporation, a New York corpora-
tion with its principal office in New York City, is engaged in the,manu-
facture, sale, and distribution of radios, phonographs, and related'
products., It purchases processed materials consisting of condensers,
coils, and chassis pans. During the year 1941 its purchases and sales
each exceeded $5,000,000. Seventy-five percent of its processed mate-
rials was purchased outside.the State of New York and seventy-five
percent of its finished products was sold and shipped to places outside
the State of New York. The respondent concedes that it is engaged
in commerce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, and
Locals 430, 434, and 1206 thereof, affiliated with the Congress of In-
dustrial Organizations, and Independent Employees Association of
Emerson Radio, unaffiliated, are labor organizations which admit to
membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In the fall of 1939 employee Anne Glaser commenced talking with
other workers in the respondent's plant about improving their work-
ing conditions. On about October 23, 1939, Glaser joined the Union.
EMERSON RADIO & PHONOGRAPH CORPORATION 617
She mentioned this fact to several employees, including Lillian Clinch
and.Grace Costa, working supervisors whose status will be discussed
hereinafter. On Monday, November 6, Glaser was requested by her
foreman to go to the office of John J. Catalano, the respondent's plant
manager. According to the uncontradicted testimony of Glaser, which
we credit, Catalano, in.a friendly manner, told Glaser that he under-
stood that she was quite dissatisfied with things in the plant. Glaser
replied : "That is very funny. I have been working here for a little
over five years and you have never noticed my dissatisfaction be-
fore.... Don't tell me that it is a secret that I joined the C. I. 0."
Catalano suggested that they "put that aside for a while" and stated,
"Perhaps there is some way we can-fix this. We don't need any unions
to fix it; we know each other well enough to discuss this by our-
selves . . . I think I, can arrange to see that you might get a raise."
Glaser replied that "if the worst came to the worst we needed some sort
of organization," but that if the company wanted to avoid outside,
influence, she thought something could be worked out. Later that
day, her foreman sent her back to see Catalano who repeated that.
he thought something could be worked out. When Glaser told him
that'there were approximately one hundred girls in her category, who
had worked at least 4 years and could not receive more than 40 cents
an hour, Catalano said that' if Glaser would forget those people, he
would see that they received a raise, and asked if she would then
"forget everything else." Glaser said that she would not give Catalano
any promise but that if things could be straightened out, they would
"let everything else go at that."
During the first part of 1940 a number of additional employees
,joined the Union, among them Robert Vlack, Winchard Dee, William
Santora, and Domeneck Farraro. Vlack testified, without contradic-
tion,' and we credit his testimony, as did the Trial Examiner, that on
July 25, Catalano called him into the office, conversed with him briefly
about his work, and asked Vlack if it was true that Vlack was trying
to organize the shop against him. Vlack replied that he was trying
to organize the shop to get better wages. Catalano asked why Vlack
had not seen him about the wages, and then inquired about the Union
and about the number of employees who had joined it, volunteering
that he-had heard-the Union was "going strong in the shop" and had
a "definite membership." He asked if Vlack could get together the
union people from the test department, where Vlack worked, so that
Catalano could talk with them and see if he could not work out some-
thing with them. Vlack replied that he would do his best. Catalano
added that if an outside union came in, it would take control of the
'Except as otherwise indicated , the findings hereinafter made are based upon uncon-
troverted testimony , which we credit , as did the Trial Examiner.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop and the employees trying to organize the Union would find
themselves "out in the street." He suggested that Vlack reconsider
before going any further' with his union activity, s' id that the Union
was not necessary in the shop and he would like to ."squash" it, that
he could perhaps work out some means of increasing the wages of the
employees in the test department without the necessity of having a
union, and asked Vlack to mention this possibility to the "boys" when
lie suggested the meeting.
4 That afternoon, while Vlack was working at his bench, Catalano
came to hifn and asked if he had arranged the meeting with the union
employees. When Vlack replied that he had not had a chance to see
all thepeople, Catalano suggested that Vlack see them by the follow-
ing lunch period and try to arrange a meeting for the evening of the
next day, Friday. On Friday morning Catalano again approached
Vlack about the meeting and was informed that the men did not want
to speak with Catalano.
Friday afternoon Vlack was approached by John Avezzano, whose
job at the plant was variously characterized by the respondent's offi-
cials as safety director, chief monitor, and recreational advisor.5
Avezzano told Vlack that he was "a very good friend" and was going
to give Vlack "a straight tip about some things." He mentioned, ac-
cording to Vlack's uncontradicted testimony, that Vlack was wasting
his time trying to organize the shop and that he might get a better
job at the plant, paying up to $30 a week, if he ceased his union activ-
ity and listened to what Catalano had to sty. He added that a job
might even be made for Vlack, that he realized Vlack was not satis-
fied with his superior, Shannon, and that he [Vlack] might be able to
get a department of his own. Avezzano added that Vlack should look
out for himself, rather than worrying about other people, and that
he would get nothing for his effort to organize the ship. ,
Prior to that time the Union had been distributing outside the
plant various mimeographed leaflets, entitled "Plain Talk," all of
which were unsigned. However, on that day, the Union distributed
a leaflet entitled "Plain Talk-Extra" which was signed by Vlack
as chairman, pro ten, and by six other employees. This leaflet an-
nounced that the Union had a majority in the respondent's two key
departments, test and final test, and urged all employees to join. On
the following Monday, July 29, Avezzano asked.Vlack to form a union
in the shop which would have no outside connections. Vlack re-
IAvezzano was on a salary basis, "was in change of the safety measures that had to
be taken in the place, . . . saw to it that the aisles were kept clear [and] told the line
foreman about anything that may be jutting out into the aisles and jeopardizing the
safety of people walking in the aisles " He also arranged games and other athletic
and social activities for the respondent's employees we find that Avezzano occupied
a' position in which he represented the respondent in its relations with employees.
EMERSON RADIO & PHO N OGRAPH CORPORATION 619
plied that he did not believe an inside union would be any good; that
it'-would be wasting time and effort to organize such a union "if the
boss had his fingers in it."
Shortly thereafter, Bernard Frank, the respondent's assistant fac-
tory manager, sent employee William Santora, who was at work in
the final test department and whose name was carried on the union
leaflets distributed on July 26 , to see Catalano . Santora went to
Catalano's office where Catalano said to Santora, "Bill, I hadn't real-
ized you were here so long. I looked up your record and you have
a pretty good record . . . What do you want to do in life? .. .
What are 'our ambitions? Santora said his ambitions were rather
vague. Catalano then went on: "Did you ever go to college? .. .
Are you interested in engineering?" Santora replied that he had
not gone to college but-that he was interested in engineering. Cata-
lano said that he might see Santora later. Although he did see him
later , there was no further conversation of this nature . We find that
Catalano's conversation with Santora was for the purpose of holding
out to him promise of personal advancement as an inducement to
abandon the Union.
At about the same time Mario Thomas " Bellavia, a department
foreman , spoke to employee Frances Santora , the wife of William
Santora, as she was leaving work for that day, and according to her
testimony, said that she was well dressed but that the union button
she was, wearing did not, "suit" her. Santora replied that she "loved"
it and was "crazy" about it. Bellavia testified that at that time
he did not know whether it was legal for the employees to wear union
buttons and that he talked with his employees about a "lot of things,"
including union affairs . Although he denied expressing "any
opinion" regarding unions and denied telling any girl "to take off
a C. I. O. button," he was not asked about the statement attributed
to him by Santora . The Trial Examiner found Santora to be a
credible witness, and we find that Bellavia made the statement at-
tributed to him.
One morning during July or August a sheet of paper was circulated
among the employees by Josephine Usenza, a working supervisor,
and her brother-in-law, Dominick Usenza, who was an assistant to
the foreman, for the purpose of obtaining signatures of those who
favored an inside union. After lunch on that day, Josephine Usenza
told employee Florence Weiss that "they were thinking about making
a company union," or an inside union, without any "outside influ-
ences," and that she wanted Weiss to sign a paper to indicate that she
was in favor of a company union. Usenza said she knew that Weiss
was a friend of the Santoras and that they were active in the Union,
but that Weiss should nQt be influenced by what they told her and
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that she would come back the next day for. the signature . Weiss also
testified without contradiction that after she had joined the Union
on August 6, Mario Catalano , John J. Catalano 's brother , a working
supervisor who "was running a cabinet line," assigned Weiss to dif-
ficult. work rarely given to girls . When Weiss complained about the
assignments , Mario Catalano asked why she was angry and also
teased her about a large white button she wore which bore the inscrip-
tion "Emerson Organizing Committee ." Weiss demonstrated the
difficulty of her job, showed Catalano how both her arms were very
badly scratched, and told him that she had been placed there to be
punished because she had joined the Union . Catalano walked away
but returned in a few minute 's and said that Weiss should transfer that
afternoon to' different work at the packing table . During the after-
noon Catalano told Weiss that he was surprised to know that she
had joined the Union , that he did not think she would get anything
through the Union , and that he hoped she would get out of it,. He
also told her to take off the button she was wearing.
About July 1940 Anne Glaser was made a , working supervisor under
Mario Bellavia. Shortly thereafter , Lillian Clinch , another work-
ing supervisor , told Glaser she could ' not understand the sudden out-
burst of C. I. O. activity in the-plant and asked Glaser how she felt
about it. Glaser answered that she did not have much to say. Clinch
then asked Glaser to "listen in" on the girls that worked under her,
watch the ones that belonged to the Union, and see how many were
signing up . Glaser replied that she would do so. Subsequently
Glaser told Clinch that she did not think it advisable for either of
them, to speak to the girls about the Union since they were both in
supervisory categories and that she thought any conversations that
were , held should be in the girls ' homes rather than in the , plant.
As noted above , Glaser had been a union member since 1939. One
day in August 1940 she procured a large C. I. O. organizing committee
button and wore it into the plant . Her foreman , Bellavia , said that
she would have to take it off. When Glaser refused , Bellavia said,
"You know I am going to get in trouble over this . . . Wait here, I
will be right back. " He returned about 10 minutes later and said :
"Look, Anne , I have strict orders to get that button off you or you
won't be able to be working here any more . You will have to be
sitting down at an operation ." Glaser still refused to remove the
button. The next morning Bellavia told Glaser that, upon orders
from John Catalano, Glaser should thereafter work for Clinch, and
stated that somebody else would take her place as a working , super-
visor . A few days later Clinch commented to Glaser , who was then
an ordinary worker , that she was "really getting scared " because the
employees were signing up for the Union and that she believed the
EMERSON RADIO & PHO\OGRAPH CORPORATION 621
respondent would' either go out of business or move its operations
elsewhere if the Union ever came into the plant. Glaser said that she
did not think that the respondent was ready to go either out of busi-
ness or out of town. Clinch replied : "Well , I am just telling you and
wait and see . . . I have heard it from a good source."
Employee Lillian Weiss likewise started to wear her , union button
at the plant in August . When she first did so, Clinch said that she
was very surprised to see that Weiss was a member , asked Weiss why
she had joined, and told her that the plant would move from the
city rather than have the C. I. 0., and that she and iilany others would
then lose their jobs. Commencing in July or August and continuing
for several months, Clinch spoke repeatedly along the same line to
employee , O'Connell , telling her that if the Union came in the em-
ployees would have to pay dues and would work for only 6 months;
and that Catalano and Abrams, the respondent 's president; would see
to it that employees who "were mixed up in the union would be got-
ten rid of ." About the end of August Clinch asked O'Connell if she
would be satisfied with a 2-cent raise. O'Connell received the raise
2 weeks later.
During this campaign by the Union and the counter-drive by the
respondent's supervisors and working supervisors, a different kind
of button appeared at the plant. It was about 2 inches in diameter
and bore the designation, "I Am Neutral." Working Supervisors
Costa, Potenza, and others wore this button while at work.
In September, Mario Catalano asked employee Domeneck Farraro
if he had heard about the Union and about a statement of President
Roosevelt that employees were to have some protection through unions.
When Farraro answered in the affirmative; Catalano said "We don't,
want that union. We want our own union." He-then asked Farraro
to sign a piece of, paper for an independent organization. Farraro at
first refused but later signed the piper when some of his coworkers
said that there was "nothing to it."
Soon thereafter Mario Catalano told Farraro: "Well, Domeneck,
we started John Avezzano's social club . . . We want you to sign
it . .. John Avezzano [is] a good man; he is good for [the] company,
he is honest." Catalano said that the dues for the club were 10 cents
and that it provided dancing and sick benefits. Farraro refused to
join. During that month Avezzano organized a social club, named
the Fleeting Hour Club, in connection with his duties as recreational
advisor. He testified that he had had it in mind a long time. The
Club rented some quarters near the plant and acquired some second-
hand furniture. There it held meetings, parties, and dances, and
offered continual opportunity for drinking and various social func-
tions. People who were not employees of the respondent were per-
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mitted to join, 'as well as all of the employees. The Club was fre--
quented by supervisors and working supervisors, as well as by non-
supervisory employees. We, find that the Fleeting Hour Club,
although not a labor organization, was formed by a representative of
the respondent to divert the attention of employees from the Union.
In September or October of 1940, Frank Leslie, foreman in charge
of the final test department, asked William Santora why lie insisted
on causing a "lot of commotion." Santora said that he was not inter-
ested in causing commotion but was interested in forming a legitimate
organization by which the employees could improve their conditions.
Leslie said that most of the people in the plant did not want a union,
that he had belonged to a musicians' union at one time, and that all
unions were rackets. At various times thereafter, Leslie wore buttons
or signs saying "Committee" or "Disorganizer" in caricature of union
buttons.
In March 1941, Louis Russo, an'assistant to Foreman Bellavia and
a working supervisor, told employee Debra Shapiro that he had defi-
nite information that if the Union succeeded in getting into the plant,
the respondent would move.' He said that Abrams, the respondent's
president, was then out of town looking for i new location. At about
the same time, Clinch asked employee Carmella Bullara what the girls
in the C. I. O. wanted. Bullara told her that the girls wanted better
conditions. Clinch replied that she thought they had very good con-
ditions and that she did not see why Bullara had joined the Union.
On February 27, 1941, the Union filed a petition with the Board's
Regional Office asking for an investigation and certification as exclu-.
sive representative of the- respondent's production employees. On
March 19 the respondent, the Union, Wand International Brotherhood
of Electrical Workers, herein called the I. B. E. W., which had filed
a petition for certification in October 1940, signed an agreement by
which they consented to the coi duct of an election by the Board's
Regional Director on April 2, 1941.
On about March 19, Jack Lankes, a working supervisor, ordered some
buttons from a firm recommended to him by Avezzano. The buttons
so ordered were 21/8 inches in diameter, with an orange background and
black letters thereon. Each button bore in large capital letters the
words "Vote for Neither." Underneath this caption there was a slogan
which varied as between buttons. The different slogans were : "No Out-
side Union Influence," "Raises Without Strikes," "I Can Think For
Myself," "A Steady Job is My Security," and "Don't Double Cross Our
Jimmy." Lankes distributed the buttons among various employees,
including working supervisors, asking each person to sell the buttons
throughout the plant for 10 cents each. He explained that he did not
want either the Union or the I. B. E. W. to get in the plant and pre-
EMERSON RADIO & PHONOGRAPH CORPORATION 623
ferred, in case any union was necessary, an inside group consisting only
of employees of the respondent. Several hundred buttons were thus
distributed. Among those who sold or wore them were about 18
supervisors and working supervisors.
When Clinch asked employee O'Connell if she would wear one of the
i buttons, and O'Connell hesitated, Clinch said that if the Union won
the election, the respondent was going to move out of New York City
to Brookline, Massachusetts, and that those employees who wore the
buttons would be given raises and better jobs while those who refused
would be "pushed around" and eventually "they would get rid" of
them. O'Connell nevertheless refused. When employee Brannigan
likewise refused, Clinch said to her : "Well, if you do not wear the
button the manager and the Company will think that you are in the
Union." Clinch also told Brannigan that if the Union won the elec-
tion, the respondent would move away and the employees would all
lose their jobs. Potenza , a working supervisor, left her place on the
subassembly of Unit No . 1 and went into the cabinet department of
that unit, where she asked those employees to buy buttons. While she
thus sold her buttons and collected the money , Foreman Blumenfeld
was standing about 10 feet'away in the center aisle.
When working supervisor Joe Piagintini asked employee Kiernan
to wear a button, he told Kiernan ,, "We do not want to see any out-
siders or C. I . O. come in here ," and asked Kiernan if lie wanted to "see
the C. I. O. in." When employee Medici was given a button one morn-
ing by a coworker and commenced to wear It, Mario Catalano told her
to take it off "because they had designated a certain time in the after-
noon at which 'ev'er'yone was going to put their buttons on." Medici
did as requested. That afternoon Catalano and about 20 other em-
ployees in the department simultaneously started wearing their but-
tons. When Russo was selling buttons, employee Shapiro, a member
of the Union, called him over and said she wanted to buy one. Russo
said he could not sell her any because she belonged to the C. I. O.
Also in March , after some of the "Neither" buttons had been dis-
tributed, Tom Chiavolino, an employee in the stockroom and Ben-
jamin Rothstein, a working supervisor, had some leaflets multigraphed
on orange paper in order to attract the interest of the people wearing
the orange "Vote For Neither" buttons. Rothstein paid for them
personally, but was partially reimbursed by Lankes out of funds
realized from the sale of the "Neither" buttons and contributions re-
ceived as a result of a' request made in one of the leaflets . The leaflets
were distributed outside the plant at different times by Rothstein,
Lankes , Russo, Potenza , Mario Catalano, and other working super-
visors, as well as by ordinary employees.
624 1 DECISIONS
I
OF NATIONAL LABOR RELATIONS BOARD,
The leaflets so 'distributed consisted of anti -union propaganda 6
They raised the fear of excessive union dues , assessments , and strikes,
and suggested that the respondent 's employees already received unusu-
ally steady employment , and enjoyed good working conditions, auto-
matic raises , training , and special work for those who became in-
capacitated . They repeated some of the phrases on the orange but-
tons, urged the employees to vote "Neither ", in the coming election,
and said : "Contact your `orange ' button salesman or salesgirl and
make further small contributions in order to spread the truth."
During the late afternoon of April 1 , representatives of the Union,
the I. B . E. W., and the Board 's Regional Office met in the office of
the respondent 's president to arrange the details of the election to be
held on the following day. A few minutes after 5'o'clock , during the
regular working time for the factory, Vlack and Barnett, the repre-
^entatives of the two unions , left the office to go to the men's room
near the unit - supervised by Foreman Blumenfeld. While en route
they saw a group of girls , wearing the orange "Neither" buttons,
hastily leaving the plant . The girls left their work- without punching
the time clock . The union representatives returned to the meeting in
Abrams' office and reported _ the occurrence to Abrams and to the
Board representative . Abrams thereupon excused himself from the
meeting and did not return . The representatives of the unions and the
Board then went downstairs to the street where they saw the girls,
whom the union representatives had previously observed leaving work,
in the process of distributing to the departing employees copies of
the above - described orange leaflets containing anti-union propa-
ganda: They returned to Abrams' office where the -Board 's representa,
tive telephoned the Board's Regional Director . - After informing her
of the events just witnessed , he told the union representatives that
the election was being called off. It is clear from the record, and we
find, that the respondent had excused these girls from work to allow
them to arrive early at the exit and distribute the "Vote Neither"
propaganda described above.
At about 7 : 50 on the morning of April 2, Avezzano , several work-
ing supervisors , including Joe and Irene Piagentini , Chloe Potenza,
9 what appeals to be the first leaflet commenced • ,
"Did you ever watch a little boy blow up a balloon? He blows and blows and blows
and blows and each time he blows lie holds it away from him smiles , and invariably is
tempted to blow just once more. What happens-the balloon bursts , the hot air is gone
with the wind, and the little boy sits down and cries." _
Another leaflet commenced . -
"And when the balloon burst, the little boy sat down and cried-and how he cried . . .
Yehudi wrote the famous proverb-By their hot air ye shall know them .' 11 ( Three
cheers for Yehudi ) The beautiful orange buttons are replacing many union buttons.
The third leaflet was entitled : "Who Has the 'Crying Towel .' " The draftsmanship of
the leaflets suggests that they were prepared by propagandists rather than by inexperi-
enced waiters such as Chiavohno and Rothstein.
I
EMERSON RADIO & PHONOGRAPH CORPORATION. 625
Grace Costa, Benjamin Rothstein, and Louis Russo, and a number of
reject; relief, and repair girls appeared at the entrance to the respond-
ent's plant carrying signs bearing some of the anti-union slogans pre-
viously publicized by the orange buttons and leaflets. Later that morn-
ing,, the Board's Regional Director sent a telegram to the respondent
asking that a notice be posted to inform employees that the election
scheduled for that day had be6n postponed by the Regional Director.
The respondent maintained at the hearing that it was not respon-
sible for the anti-union conduct of its working supervisors, such as
Clinch, Irene Piagintini, Costa, Usenza, Potenza, Mario Catalano,
Russo,'Lankes, Joe Piagintini, and Rothstein. • The position of these
and similar working supervisors in the respondent's plant will there-
fore be considered. The respondent's production department consists
of six units or lines, each of which contains about 135 employees. Over
each unit is a foreman who is responsible directly to the plant manager
for the operation of his unit. The units are similar, each consisting of
a subassembly, a main line, a cabinet department, a test department,
and a packing department. Over each of these subunits there is usu-
ally a working supervisor who is directly responsible to, the foreman
and who does both supervisory and manual work in his or her subunit.
Under the working supervisors there are relief girls, repair girls, and
reject girls who relieve the employees on the line, repair broken parts,
and help salvage materials. These jobs involve some moving about in
the subunit. They are sometimes combined with each other and, in
part, with the job of a working supervisor. The majority of the em-
ployees have stationary positions at the benches which form the major
line in each unit. -
Working supervisors each day take the attendance of employees in
their respective units and maintain a place either at the main bench,
or,on a separate bench, where they keep the books necessary for such
clerical work. They also pass on to the employees orders received from
the foremen, which include orders determining the rate of production.
In addition, the working supervisors instruct'new employees in-the
performance of their operations. They keep a general watch over all
the employees and suggest corrections or improvement in the various
operators' manner of work. If they are unable to handle a problem,
they go to the foreman of the unit for assistance. The working super-
visors are generally responsible for the flow of work and in particular
for the maintenance of materials and supplies. This includes ordering
materials, sometimes going after materials, and frequently placing
niaterials near the operators who are using them. When a change in
models is made, the working supervisors sometimes make sample sets
which the girls on the line follow as models. The respondent's pro-
duction manager testified that a working' supervisor is a "trouble
481039-42-vol. 43-40
9
'626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shooter of the line when something is wrong" and that "he sits there
and sees that the line runs smoothly . . . . He sees that the partic-
ular group of people are fed right" with materials , but he does not
have any authority . Although working supervisors have on occasion
recommended employees for raises or transfers , they do not have au-
thority to grant raises or make transfers out of their own subunits.
In addition to their supervisory work, they also do manual work in
substituting when necessary for absent employees , in giving relief to
employees who need rest periods in addition to the regular 10 -minute
rest periods , and in assisting with the repair work and salvage of
materials . Such, work takes a substantial part of . their time but varies
considerably in different - situations . In-the spring of 1941, girls com-
menced work on the benches at 36 cents per hour, and it was possible
for them to attain a maximum of 44 cents per hour through automatic
increases . Relief, repair , and reject girls usually received 46 cents an
hour during this period, and working supervisors began at 48 cents an
hour.
It thus appears that the working supervisors perform both manual
.and supervisory work. - They are the management 's first contact with
the general employees and are regarded by the latter as supervisors.
They are part of the'rather familiar category known not only'as work-
ing supervisors but also as leaders , pushers , crew foremen , and straw-
bosses. It is clear that the working supervisors in this case have much
more supervisory authority than the "lead men" who "by reason of
long experience were skilled in handling new jobs and hence directed
the set-up of the work ," and for whose actions management is respon-
sible.7 Furthermore , in this case , the acts of the respondent 's factory
manager , assistant factory manager, and various foremen clearly re-
vealed to all employees the anti-union program which the respondent
,espoused . The working , supervisors , in performing similar acts , merely
emulated the example set by the management , and, in doing so, thus
acted for the respondent .8
The respondent contends that because the working supervisors were
eligible to membership in the Union and because they were not ex-
' eluded from the unit agreed upon ' in the consent election agreement,
the respondent is not responsible for their conduct. There is no merit
in this contention . Unions may admit supervisory employees to mem-
bership if they so desire , but this does not alter the relationship of the
supervisory employees to the employer and to the other employees.
( International A iociation of Maclaniists, Tool and Die Maters Lodge No. 3T, etc V.
National Labor Relations Board , 311 U S 72 'Cf. Wilson & Co, Inc V National Tabor
Relations Board , 120 F (2d) 411 (C C _A 8) . Matter of Tennessee Copper Company and
Textile Workers Organizing Committee , 9 N. L. It. B 117 ; Matter of Ward Baling Company
and Committee for Indust) ial Organization , S N L R 13 558
8 Neie Idea, Inc v National Labor Relations Board, 117 F ( 2d) 517 (C C. A. 7).
EMERSON RADIO & PHONOGRAPH CORPORATION - 627
The employer escapes no responsibility, by virtue of such membership,
for acts performed by its employees when acting as management repre-
--entatives.9 Nor does the agreement of the parties to include super-
visory employees within a unit of non-supervisory employees for the
purpose of the consent election relieve the respondent of liability for
the unfair labor practices committed by such supervisory employees.
This is especially true since the employees in question were carrying
out the policies of the respondent, as expressed by its factory'manager,
assistant factory manager, and foremen. The non-supervisory em-
ployees were never informed of any limitation upon the authority of
the working supervisors whom they considered to be representatives
of the respondent and whose actions conformed to the pattern estab-
lished by the respondent.10
The events related above reveal the respondent's policy toward
the Union. As early as November 1939, Plant Manager Catalano
attempted to discourage Glaser's interest in the Union by promising
to get her a raise and by urging her to forget the other employees
who were similarly situated. Some months later, after more em-
ployees had joined the Union, Catalano utilized the same tactics with
Vlack, requesting that the latter arrange a meeting of the union em-
ployees in his department so that Catalano could discuss with them
the possibility of raises without the necessity of having a union.
When Catalano's efforts failed, Avezzano undertook to convince
Vlack of the futility of belonging to the Union and suggested per-
sonal gains which Vlack might obtain if he withdrew from the Union.
After Vlack's name had appeared on a leaflet distributed by the
Union, Avezzano suggested to him that he form an "inside" union to
replace the Union. Shortly thereafter, the respondent's assistant
factory manager sent William Santora, whose name had also ap-
peared on the leaflet, to Catalano, who evinced an unprecedented
interest in Santora's welfare and future plans for the purpose, as
we have found, of discouraging his interest in the Union..
When these measures failed to stem the interest of 'employees
in the Union, certain of the respondent's working supervisors at-
tempted to initiate an inside union by obtaining signatures of em-
ployees who favored such an organization. Employee Florence
Weiss, who had been asked to sign the paper and who thereafter
wore a large union button in the plant, was assigned to difficult work;
and-Glaser, who had been made a supervisor, was demoted after
9 See International Association of Machinists and Matter of Tennessee Copper Company
cited in f n 8 supra; Matter of Swift it Company and Amalgamated Heat Cutters and
Butcher Woilmen of North America, 30 N. L. R B. 550; Matter of Decatur Iron it Steel
Company and Steel Workers Organizing Committee, 29 N. L R. B. 1044
10Cf. Matter of Iowa Electric Light and Power Company and International Union of
Operating Engineers, Local 275, affiliated with the A. F. of L , 38 N L It B 1124
628 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD
refusing to remove a union button she was wearing. Working super-
visor Clinch urged Lillian Weiss to withdraw from the Union, after
she appeared wearing a union button, and repeatedly warned O'Con-
nell of the dire results she might expect if union activity continued.
The Fleeting Hour Club, although falling short of the intended
"inside" labor organization, was designed, as the Trial Examiner
found, to "make the employees happy" and to serve as a substitute
for the Union.
The action of the working supervisors in wearing the z"I Am
Neutral" buttons during the summer of 1940, and in wearing and
selling to other employees the orange colored "Vote For Neither"
buttons immediately after the agreement for the election of April 2,
1941; was consummated, constitutes a clear form of interference by
the respondent with the rights of its employees, as does its action
in permitting employees to leave the plant early to distribute anti-
union literature. , The latter two incidents were especially coercive
since, because of the impending election, the strictest impartiality
was required of the respondent and its supervisory employees for
whose acts it must be held accountable.
It is clear, and-we find, that the respondent, by the above-described
course of conduct, interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of
the Act.
B. Domination of and interference with- the formation and admin-
istration of 'the Independent
During the morning of April 2, 1941, a group of anti-union em-
ployees, Frank Curcio, William Jerlat, Charles Schusteritch, Robert
Curcio, Pat DeMarco, Gregory Riglizio, John Cardello, ' and Pat
Cardello, met in the respondent's maintenance department on the
second floor and decided to get petitions signed which they could
present to the factory manager in an effort to obtain information as.
to why the scheduled election had been called off. A number of em-
ployees, including Margaret Ritz, a stock clerk ; Helen Ehrgott
[Neustadt], a relief-repair-clerical girl who ranked slightly above
line employees ; Piagentini, formerly a working supervisor but at'
this time an ordina'ry' worker; Curcio; Pat Cardello, and others,
circulated petitions during the rest of the morning and 'requested
that as many employees as possible meet near Catalano's office at
noon. They secured more than 370 signatures which they later pre-
sented to Catalano and-then to Abrams, who read to them the tele-
gram from the Regional Director. That afternoon 25 to 40 em-
ployees left the plant, with Abrams' permission, and conferred with-
i
EMERSON RADIO & PHONOGRAPH CORPORATION 629
the Regional Director. She made an appointment for them to see
a Field Examiner on the following day, and they returned to the
plant. On the same day, Rothstein, and others associated with the
"Vote For Neither" group, distributed one of their orange circulars
urging opposition to the Union.
When Curcio and his associates left work that afternoon they
assembled in a bakery shop across the street from the plant where
they had refreshments and discussed their plans. About 30 em-
ployees were thus assembled, including Ritz, Ehrgott, and Jerlat.
The group discussed what they would say at the coming meeting
with the Board's Field Examiner and also considered the question
of leadership among themselves. Curcio said that since he had thus
far taken the initiative, he would volunteer to act as president. Ritz,
Ehrgott, and Castine likewise volunteered to act as secretary, vice
president, and treasurer, respectively.
The next morning, April 3, this group conferred with Pomer-
ance, a Field Examiner, at the Board's Regional Office. The em-
ployees expressed their disappointment that the election at the re-
spondent's plant had been called off and stated that their group
had wanted to vote "neither" at the election, and still wanted to do
something about it. Pomerance replied that a "neither group"'would
have no status as an organization before the Board. When Curcio
asked how they could be recognized by the Board, Pomerance sug-
gested that they give themselves a name. Ritz suggested the name
of "Independents," and Curcio enlarged it to "Independent Em-
ployees of Emerson Radio." That night Curcio, Ritz, Castine, and
John Cardello met at the Fleeting Hour Club. They approved plans
made by Curcio and Ritz for the borrowing of money in the names
of those two individuals from the National City Bank and for' the
holding of a raffle among the respondent's employees to repay the
loan.
On April 4, Curcio and Ritz returned for a second conference with
Pomerance. Curcio asked if they did not need a charter, since they
were going to be a club.11 Pomerance replied that they should ask
an attorney about the charter, but refused to recommend one. Cur-
cio stated that they planned to hold meetings and asked if they
could hold them at the Fleeting Hour Club. Pomerance replied that
it was immaterial where they met as long as there was no company
'interference. He also gave them a copy of the Act and answered
affirmatively when they asked if it was proper for employees to
resign from membership in the Union and to join their organization.
11 Curcio testified "I really didn 't think it was going to be a large union as it is now."
This, however , is inconsistent with his testimony that they had already - obtained over
350 names on their petitions and had already made plans to borrow $200 which be was
sure they could repay from a raffle because he knew " it would go over big."
630 DECISIONS OF NATIONAL; LABOR RELATIONS BOARD
On April 3 or 4, Curcio asked Rothstein where he had had the "Vote
For Neither" circulars printed and was referred to the Fifth Avenue
Letter Shop. Curcio and John Cardello then went to that shop on
April 4 and had mimeographed 700 copies of a leaflet entitled EMER-
SON EMPLOYEES, choosing to use orange paper, the same as-that
used by the "Vote Neither" group, because they "figured" that the
people who had "grabbed" the orange sheets before would "grab"
them again. This policy of using orange paper for the Independent
releases was generally followed thereafter. The "Emerson Em-
ployees" leaflet was distributed by Curcio, Ritz, Ann and Margaret
Rizzo, and by Piagentini, Costa, and Potenza, working supervisors
who had helped to distribute the preceding "neither" leaflets. This
leaflet stated that after Abrams had been interrogated about the post-
ponement of the election, a group of employees had gone to the Re-
gional Office, had demanded that the election- be held as scheduled, had
convinced the Board's representatives that a great many were sincere
in not wanting outside union influence, had formed an organization
known as "The Independent Employees Association of Emerson," and
had gotten the "green light" to go ahead. , The leaflet was signed by
Curcio, Ehrgott,'Ritz, and Castine.
At about the same time, Curcio asked Lankes if he would give the
Independent group the "neither" buttons for use as their first mem-
bership buttons, since they then did not have any funds. Lankes ac-
commodated Curcio and gave him "a couple of bags" of "neither"
buttons. On April 4, Castine ordered printed 1,000 stickers on orange
paper of about the same size as the "neither" buttons. They read:
"Independent Employees Association 'of Emerson-Independent of
Outside Influence." These stickers were delivered on April 10, pasted
on the "neither" buttons, and thereafter were worn by. members of
the Independent to signify their allegiance.
Not only ordinary employees, but-also working supervisors par-
ticipated in the ^vearing of the "neither" buttons thus converted into
Independent buttons. Commencing not later than May 14, Clinch
wore such a button at the plant for at least several weeks. Likewise,
William Atkins, who was then a packer supervising several employees
and who thereafter became a working supervisor, wore one for several
days after the postponement of the election.
On April 5, employees Curcio, Ritz, Ehrgott, Castine, Jerlat, the,
two Cardellos, Robert Curcio, Alberti, Talarico, and Scavron held'
their second meeting in the Fleeting Hour Club. They ratified the
printing of the stickers for the buttons, voted to print 700 membership
cards and 500 raffle books, and made arrangements for the distribution
of cards and buttons and the waging of membership and publicity
campaigns,
EMERSON RADIO & PHONOGRAPH CORPORATION ', 631
On April 7, Curcio and Ritz applied for loans of $108 each from the
National City Bank of New York for use by the Independent. That
night the Independent had another meeting in the Fleeting Hour
Club at which Curcio read a letter proposed by the publicity committee
for distribution . It was signed by Chiavolino , Jerlat; and others.
The letter was approved , mimeographed on orange paper , and released
the next day to the employees at the factory . It stated that the
Independent was "not just another balloon full of hot air," and that
it "originated with Emerson employees . . . suggested and approved
by the Labor Board ." The letter emphasized several points, the
last of which was:
Some people might call this Association a company union. There
is no such thing as a company union . . . The Independent
Employees Association of Emerson will have all the advantages
of a union , but none of its disadvantages.
This leaflet and three others were distributed by a number of em-
ployees, including Lankes and John Carclello . The latter worked
as a 'cabinet finisher and also as a -guard or watchman for the re-
spondent . His job was to stand at the stairway exit of the plant, as
the employees left work, to see,that they departed in an orderly
manner, and also to see that no one not working for the respondent
entered the plant at that time by way of the exit. It was while
Cardello was so engaged , standing at the stairway on the respondent's
property , that he distributed these four Independent leaflets to the
employees who were leaving. Although Cardello was not a super-
visor, his distribution of the leaflets is to be attributed to the re=
spondent since he did so in the usual course of his duties on com-'
pany, time and premises , and presumably , with the knowledge of
the respondent. -
During its campaign for members, the Independent received ad-
ditional help from the respondent through the working supervisors.
Thus , one morning soon after April 2, the repairman on the 'No. 2
unit, in the presence of Schenkenberger , the line , foreman, com-
menced soliciting signatures on the Independent 's orange member-
ship cards before the employees started to work at 8:30 and'
continued thereafter while the employees were at work until about
3 o'clock that afternoon . When he asked employee D'Abelle to sign
she refused . When he again asked her , about 30 minutes later, she
again refused , - saying that she had already joined the Union and
would be a hypocrite if she signed the orange card. The girl next
to D'Abelle also' refused to sign. When she did so, not only the
repairinan , but also Working Supervisor Josephine Usenza asked
why she refused . At about the same time , Working Supervisor
Mario Catalano, on We No. 3 unit , told employee Medici that Pat
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cardello wanted to see her 'and that John Cardello would take her
place while she was gone. On thus being relieved, Medici left her
place of work and went to the other side of the line to talk to Pat
Cardello. He had some of the Independent's membership cards
with him, told Medici that everyone was signing up with the Inde-
pendent, and asked if she would care to sign one of the cards. She did
so. All other employees on the line except Ferraro, who was wearing
a union button, were similarly relieved and sent to see Pat Cardello.
On April 10 the Union called a strike which was terminated 1
month later after an agreement between the respondent and the
Union which will be discussed hereinafter.
There is considerable testimony indicating that various repair,
reject, and relief girls solicited employees on behalf of the Independ-
ent with the knowledge and acquiescence of the working supervisors
and the foremen. As noted above, these girls ranked above the
ordinary employees on the line and immediately under the working
supervisors. Their work required them to move about frequently
during working hours. Employees of this category were active in
the Independent. In particular, the evidence, indicates that Mary
Alberti Papaccio, Ann Rizzo Dell Aquila, Margie Bonaniossa, Helen
Ehrgott Neustadt, Pat Barba, and Florence De Bouno at various
times solicited memberships, collected dues, and returned dues cards
to employees while at work and in the presence of supervisors who
did nothing to interfere with this conduct. Four of these girls testi-
fied. Each admitted collecting dues but denied generally engaging
in such activity during working hours and in the presence of fore-
men. They maintained that such activity was confined to relief
periods. The Trial Examiner concluded, as do we, that these repair,
relief, and reject girls took advantage of their position and engaged
in activity for the Independent during working hours, and that such
activity was carried on with the knowledge and acquiescence of the
respondent's working supervisors and at least some of the respondent's
foremen.
In December 1941, Potenza asked Medici, according to the latter's
uncontroverted testimony, why she had not joined the Independent.
Medici replied that she was not interested in any union dominated
by the respondent. Potenza retorted : "Well, it can't be proven." A
few minutes later Potenza wrote a list of names on a slip of paper
which she gave to Mary Alberti Papaccio. The latter then took the
list and, in the presence of Potenza, went down the line asking various
people if they had paid their dues to the Independent.
The history of the Independent shows that it evolved from the
respondent's long campaign against the Union. In 1940, the respond-
ent had tried to prevent unionization by appeasing its leaders and
EMERSON RADIO & PHONOGRAPH CORPORATION 633.1. 1
then by forming a social club: In March and April 1941, its super-
visors spent both time and money in the loosely organized "neither"
group which fought the Union during the election campaign and took
the form of a labor organization only when the election was called off
and when such transformation appeared necessary for recognition as
an opponent of the Union. In addition to inheriting the momentum
of the "neither" group, the Independent received assistance from
supervisors in the preparation and distribution of leaflets, and from
the fact that working supervisors wore Independent buttons and dis-
tributed the "Emerson Employees" leaflet and others. Further, the
Independent received active assistance from supervisors who joined in
arguments 'with employees on its behalf, and who assisted and
acquiesced in the action of relief and repair girls in engaging in
.Independent business on company time. It is clear that the Inde-
pendent was not only created as the respondent's instrument for oppo-
sition to the Union, but has also continued to receive its support. We
find that the respondent has dominated and interfered with the forma-
tion and administration of the Independent and has contributed sup-
port thereto and has thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
As we have noted, above, the respondent contends that the present
proceedings are barred by (1) an agreement for a consent election
entered into on March 19,1941, pursuant to which the Board's Regional
Director notified the respondent that charges previously filed had been
withdrawn with prejudice; and (2) an agreement between the re-
spondent and the Union on May 10, 1941, for the settlement of a strike,
in consideration for which,- the respondent claims, the Union agreed
not to prosecute the charges upon which this* proceeding is based.
There is no merit in the contention. It has been our practice to give
effect to such agreements only where no further unfair labor practices
have been engaged in by the employer and where we were of the opin-
ion that the policies of the Act would be effectuated thereby. The Re-
gional Director's notice that charges had been withdrawn with preju-
dice contemplated that the respondent would not engage in further
unfair labor practices. Since, as we have found above, the respondent
engaged in such practices following, both agreements relied upon, we-
are free to consider events occurring prior thereto.
Moreover, the Board may, in its discretion, disregard an agree-
ment between the parties where the purposes of the Act have not been
served. . Here, the agreement of May 10, 1941, upon which the re-
spondent relies, merely purported to settle a strike. It did not pro-
vide for the disestablishment of the Independent, nor for the cessation
of any other unfair labor practices. Nor was the Board or any of its
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives a party to the agreement. Therefore, even if we as-
sume that the "Board had or should have had" notice of this agree-
ment, as the respondent offered at the hearing to prove, we do not
consider ourselves bound thereby. Such settlements clearly do not
effectuate the policies of the Act.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, oc-
curring in connection with the operations of the respondent described
in Section I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REIIIEDY
Since we have found that the respondent has engaged in, and is
engaging in unfair labor practices, we shall order that it cease and
desist therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act. . I ,
We have found that the respondent dominated and interfered with
the formation and administration of the Independent and contributed
support to it. We shall order that the respondent refrain from rec-
ognizing the Independent as a representative of its employees. for
the purpose of dealing with the respondent concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or conditions
•of work, and completely disestablish- the Independent.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF LAW
1. 'Local 430, United Electrical, Radio & Machine Workers of Amer-
ica, C., I. 0., and. Independent Employees Association of Emerson
Radio are labor organizations, within the meaning of Section 2 (5) '
of the Act. ,
i2Matter of Ingrain Manufacturing Company and Textile WoiAers Organizing Com-
mittee, 5 N L. R B 908; Matter of Picker X-Ray Corporation, Waite Manufacturing
Division, Inc- and International Association of Machinists, 12 N. L. R. B 1384 ; Matter
of General Motors Corporation and Delco-Reiny Corporation and Inteinational Union
United Automobile Workers of America, Local No. 1y6, 14 N. L R. B 113; Matter of
Allsteel Pioduats Manufacturing Company (Inc.) and International Association of Ma-
chinists Local 108, 16 N L. R B. 72 ; Matter of Sun Shipbuilding and Dry Dock Co.
and Industrial Union of Marine and Shipbuilding Workers of America, 38 N. L. It. B. 234
Ct. Matter of Godchaux Sugars, Inc. and Sugar Mill 1Vorheis' Union; Locals No.
12177 and No. 2188 affiliated with the American Federation of Labor, 12 N. L. R B. 568;
Matter of Hope Webbing Company and Textile Workers Organizing Committee of the
C I. 0 , Local No 1/i, 14 N L R B 55, Matter of International Agricultural Corpora-
tion, Wales, Tennessee, Plant and Inteinational Union of Mine, Mill and Smelter Workers,
16 N. L. R. B. 176.
EMERSON RADIO & PHONOGRAPH CORPORATION 635
2. By dominating and interfering with the formation and adminis-
tration of the Independent Employees Association of Emerson Radio
and contributing support to it, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section 8
(2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent 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
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. - -
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Emerson Radio & Phonograph Corporation, New York City, its offi-
cers, agents, successors, and assigns, shall:*
1. Cease and desist from: -
(a) Dominating or interfering with the administration of Inde-
pendent Employees Association of Emerson Radio or with the forma-
tion or administration of any other labor organization and from con-
tributing support to Independent Employees Association of Emerson
Radio or any other labor organization of its employees;
(b) In any other manner interfering with, restraining, or coercing
its'employees in the exercise of the right to self-organization, to form,
join, or assist, labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining-or other mutual aid or protec-
tion, 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 all recognition from Independent Employees Asso-
ciation of Emerson Radio as the representative of any of its employees
for the purpose of dealing with it concerning grievances, labor dis-
putes, rates of pay, wages, hours of employment, or other conditions
of employment, and completely disestablish Independent Employees
Association of. Emerson Radio as such representative ;
(b) Post immediately in conspicuous places in its plant in New York
City and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating : (1) that the
respondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a) and (b) of this Order; and (2)
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent will take the affirmative action'set forth in para-
graph 2 (a) of this Order;
'(c) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the re-
spondent has taken to comply herewith.
M.R. GERARD D. REILLY took no part in the consideration of the above
Decision and Order. _