Ewing-Thomas Corp.

National Labor Relations Board - Board Decisions

Mar 28, 1947

72 N.L.R.B. 1450 (N.L.R.B. 1947)

In the Matter of EWING-THOMAS CORPORATION and DISTRICT 50, UNITED
MINE WORKERS OF AMERICA and EMPLOYEES COMMITTEE , PARTY TO
THE CONTRACT
Case No. 4-C-1590.Decided March 28, 1947
Messrs. John H. Garver and Paul Bisgger, for the Board.
Croskey d Edwards, by Mr. Ralph S. Croskey, of Philadelphia, Pa..
for the respondent.
Mr. Jacob P. Hizn?,y, of Philadelphia, Pa., for District 50.
Mr. Joseph Opilla, of Clifton-Heights, Pa., for the C. I. O.
Mr. Alfred J. Corkran, of Chester, Pa., for the Employees Com-
nittee.
Mr. Seymour Cohen, of counsel to the Board.
DECISION
AND
ORDER
On September 6, 1946, Trial Examiner Victor Hirshfield issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. The Trial Examiner further rec-
ommended that the complaint be dismissed insofar as it alleges that
the respondent engaged in unfair labor practices by questioning its
employees concerning their activities on behalf of labor organizations
and by making disparaging and derogatory remarks to its employees
concerning District 50 and the C. I. O. Thereafter, the respondent
filed exceptions to the Intermediate Report and a supporting brief.
On February 4, 1947, the Board at Washington, D. C., heard oral argu-
ment in which the respondent, the Employees Qommittee, and District
50 participated.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the re-
spondent's exceptions and brief , and the entire record in the case, and
hereby adopts the findings , conclusions, and recommendations of the
72 N. L . R. B, No 264
1450
EWING-THOMAS CORPORATION 1451
Trial Examiner, with the modifications and additions hereinafter set
forth.1
1. We agree with the Trial Examiner that the respondent, by its
course of conduct described in the Intermediate Report, interfered
with the formation of the Employees Committee and thereafter domi-
nated and interfered with its administration and contributed support
to it, in violation of Section 8 (2) of the Act. In its exceptions to the
Intermediate Report, the respondent apparently alludes to certain
testimony of members of the Committee to the effect that the respond-
ent at no time interfered with or dominated the Committee in its or-
ganization or activities. We have considered this subjective testi-
mony and find that it does not outweigh the positive evidence of
domination and interference upon which the Trial Examiner based
his findings.
2. We also agree with the Trial Examiner that the respondent vio-
lated Section 8 (1) of the Act by entering into the contract of Decenl-
her 17, 1945, with the Employees Committee and thereafter crediting
to the Committee further wage increases granted to its employees,-'
all in the face of a representation proceeding then pending before the
Board.-'
3. We find no merit in the respondent's contention that its speeches
and letters were constitutionally privileged and that, therefore, no
inferences of domination or interference may properly be drawn from
them. The speeches and letters were merely verbal aspects of a con-
temporaneous course of conduct 4 whereby the respondent dominated
and interfered with the formation and administration of the Employ-
ees Committee and contributed support to it, and, by unlawfully assist-
ing the Committee, interfered with, restrained, and coerced its enm-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.•5
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
1 On page 2 of the Intermediate Report, the heating dates are erroneously stated to be
July 25 and 26, 1945 The dates are hereby corrected to read July 25 and 26, 1946
ewe do not find the granting of the wage mcieases to be per se unlawful It is the
dealing with, and crediting, the Committee in regard to the wage increases which consti-
tute interference and support in violation of the Act See Matter of La Salle Steel Com-
pany . 72 N L B B 411 , of Matter of S Frieder If Sons, 62 N L R B 880, enf'd
155 P (2d) 266 (C C A 3)
3 See Mattel of Midwest Piping and Supply Co, Inc, 63 N. L R. B 1060, 1071 , cf Mat-
ter of Flotill Products, Inc , 70 N L R B 119
4 "* * * in determining whether a course of conduct amounts to restraint or coercion,
pressure exerted vocally by the employer may no more be disregarded than pressure exerted
in othei ways * * * The mere fact that language merges into a course of conduct
does not put that ishole course without the range of otherwise applicable administrative
power " N L R B v Virginia Electric if Power Company, 314 U S 469, 477-478.
5 See Matter of Elastic Stop Nut Corporation , 51 N. L . R. B. 694, 702 , enf'd 142 F. (2d)
371 (C C A 8)
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby orders that the respondent, Ewing-Thomas Corporation,
Chester, Pennsylvania, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of, or con-
tributing to the support of, the Employees Committee, Party to the
Contract, or dominating or interfering with the formation or admin-
istration of, or contributing support to, any other laboroorgamza-
tion of its employees, and from otherwise interfering with the repre-
sentation of the employees through a labor organization of their own
choosing;
(b) Recognizing the Employees Committee, Party to the Contract,
or any successor thereof 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) Giving effect to any contract or agreement, or to any extension,
amendment, or renewal thereof, or to any other understanding, entered
into with said organization, or any successor thereto, relating to griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the Employees Committee,
Party to the Contract, 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, and completely disestablish the Employees
Committee as such representative ;
(b) Post at its plant in Chester, Pennsylvania, copies of the notice
attached hereto, marked "Appendix A." E Copies of said notice, to
be furnished by the Regional Director for the Fourth 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 Fourth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
6In the event that this order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted in the notice, before the words "A DECISION AND ORDER." the words
"A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING "
EWING-THOMAS CORPORATION 1453
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the respondent engaged in unfair labor practices by questioning its
employees concerning their activities on behalf of labor organizations,
and by making disparaging and derogatory remarks to its employees
concerning District 50 and the C. I. 0., be, and it hereby is, dismissed
APPENDIX A
NOTICE 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 Employees Committee, Party to the
Contract, 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 admin-
istration of any labor organization or contribute financial or other
support to it and will not otherwise interfere with the representa-
tion of our employees through a labor organization of their own
choosing. -
We will not give effect to any contract or agreement, or to any
amendment, extension, or renewal thereof, or to any other under-
standing, entered into with the Employees Committee, Party to
the Contract, or any successor thereto, relating to grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment.
EwING-TIIOrIAS CORPORATION,
Employer.
By ---------------------------------
(Representative ) (Title)
- Dated --------------------
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
Messrs John H. Garver and Paul Bisgyer, for the Board
Mr. Ralph S. Crosker, of Philadelphia, Pa., for the respondent.
Mr. Jacob P. Htzn y, of Philadelphia, Pa., for District 50.
Mr. Joseph Opilla, of Clifton Heights, Pa, for the C I. 0.
Mr. Alfred J. Corkran, of Chester, Pa., for the Employees Committee.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C
STATEMENT OF THE CASE
Upon an amended charge duly filed by District 50, United Mine Workers of
America. herein called District 50, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Fourth Region (Philadelphia,
Pennsylvania), issued its complaint dated July 9. 1946, against Ewing-Thomas
Corporation; Chester, Pennsylvania, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commeice within the meaning of Section S (1) and (2) and Section 2 (6)
and (7) of the National Labor Relations Act, 41) Stat 449, herein called the Act.
Copies of the complaint, together with notice of hearing theieon, were duly
served upon the respondent, District 50, the C I 0, and the members of the
Employees Committee, Party to the Contract, herein called the Committee
With respect to unfair labor practices, the complaint alleged in substance that
the respondent (1) initiated, assisted, dominated, contributed to the support of,
and interfered with the administration of the Employees Committee; (2) ques-
tioned its employees concerning their activities on behalf of labor organizations,
persuaded and warned its employees to join and assist the Employees Coin-
mittec. and made disparaging and derogatory remarks to its employees concerning
D.sti ict 50 and the C I 0 , (3) entered into a collective bargaining agreement -
with the Employees Committee on December 17, 1945, althonah at all times since
August 10, 1945, it had been on notice with respect to pending representation
proceedings before the Board; and (4) thereby engaged in conduct violative of
Section S (1) and (2) of the Act
In its duly filed answer, the respondent denied that it had engaged in the
alleged unfair labor practices. The respondent further alleged in its answer
I hat it had
Recogmze[dl and deal[t] with the Employees Committee as exclusive
bargaining agent for its employees concerning terms of employment Re-
spondent so acted because said Employees Committee was the duly authorized
bargaining agent of its employees and was lawfully acting for and on their
behalf, dealing with respondent at arms length Respondent did not deal
with said Employees Committee in order to discourage its employees from
bargaining collectively through representatives of their own choosing Its
employees were in fact dealing with respondent through representatives of
their own choosing.
Pursuant to notice, a hearing was held at Chester, Pennsylvania, on July 25
and 26, 1945, before the undersigned, the Trial Examiner duly designated by
the chief Trial Examiner All pasties were represented and participated in the
hearing Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence hearing on the issues was afforded all parties At the
close of the Board's case, the respondent moved to dismiss the complaint. This
motion was denied The respondent made a similar motion after the taking of
all testimony. Decision was reserved on that motion and it is hereby denied.
Counsel for the Board and for the respondent argued orally and the respondent
has filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
^'I'his is the correct style of respondent's firm name The respondent was named in the
first amended charge as Ewing-Thomas Company The parties stipulated that the correct
name is as above set out
EWING-THOMAS CORPORATION
FINDINGS OF FACT 2
I THE BUSINESS OF THE RESPONDENT
1455
Ewing-Thomas Corporation is a Pennsylvania corporation having its principal
office and place of business in Chester, Pennsylvania, where it is engaged in the
manufacture, sale, and distribution of mercerized cotton yarns Raw materials,
consisting principally of gray yarn, valued in excess of $100,000 annually, are
purchased by the respondent, and are delivered and transpoi ted to the respondent
at its Chester plant from and through States of the United States other than
the Commonwealth of Pennsylvania. The respondent. sells, delivers, and trans-
ports to and through States of the United States other than the Commonwealth
of Pennsylvania, 70 percent of the products it manufactures, sells and distributes,
these products having a value in excess of $100,000 annually.
The respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, Textile Workers Union of
America, Local 178, affiliated with the Congress of Industrial Organizations,' and
Employees Committee, unaffiliated, Party to the Contract, are labor organizations
admitting to inenibership employees of the respondent.
III THE UNFAIR LABOR PRACTICES
A The Employees Committee
1. Formation
Early in 19-U the C. I. O. began to organize the employees in respondent's
plant James L Rankin , president and director of the respondent , first learned
of this activity in February of the same year, and on Mascli 10, 1944 , Rankin
met Fred Muscheek and Benjamin Norwitch representing the C. I 0 Also
present it this meeting were Amos Pierce and Daniel Stokely, two members of
the C I 0 employed at the relspondent 's plant The Board, on April 25, 1944,
ordered an election ' The C I O. lost this election on May 23, 1944 , by a vote of
76 to 59.6
Very shortly after the ballots had been counted, and while the pasties were
still in the room where the election had taken place, Amos Pierce spoke to
Rankin According to Rankin ' s testimony, Pierce said - "I want to congratulate
you The majority have decided against the Textile Workers Union; that (sic)
will you set down with the employees to work out a new scale of wages ." Pierce
testified that Rankin said: "Now took , I want you to go back and I don't want
nobody saying anything to you. If anybody says to you that you are repre-
finless otherwise indicated, the following findings of fact are based upon admitted facts
or uncontradicted evidence which the undersigned credits
6 At the opening of the case, Joseph Opilla, representing the Textile Workers Union,
moved that lie be allowed to intervene on behalf of the C I 0 As will appear in this
Intermediate Repoit, the C I 0 had lost an election at this plant (Case No 4-R-1381),
and had intervened at a subsequent repi esentation proceeding in Case No 4-R-1826 The
complaint ieteis to certain situations concerning the C. I 0 The undersigned granted the
motion
4 Matter of The Ewing - Thomas Corporation , Case No 4-R-1381.
6 The number of respondent ' s employees has remained fairly constant , averaging be-
tween 130 and 140.
731242-47-vol. 72-93
1456' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
senting the C. I. O , you come to me * * *. If any time we have to negotiate
for wages I want you in there to represent your people."
The Supplemental Decision and Order by which the parties were officially
notified of the result of the election was dated June 2, 1944. Very shortly there-
after, during the first part of the same month, Rankin held several meetings
with his employees on company time and property. Rankin testified that:
Both before the election and after the election, different employees asked
me if we wouldn't sit down with the employees or some of them and set it
up in such form as the employees or a majority of them wanted it done. And
so, after the election was held and a majority voted against C. I. 0., those
inquiries were renewed. I talked to different groups of the employees.
Insofar as could be arranged all of the employees were at one of those
meetings.
_
Rankin told the employees at the meeting that a number of employees had
asked him if he would work ,out a new agreement as to wages and working
conditions e He told them that he was quite willing to discuss these subjects
"in such a way as they would want it done." He said that he would be willing
to meet all the employees of the mill at one time, or that he would meet with each
separate department, or he, would meet with representatives of the employees
"in the nature of a committee." Rankin then testified that he entered into an
agreement dated June 22, 1944, and that that agreement "was the result of the
first of those meetings I talked about where I suggested the appointment of a
committee or committees to represent the different departments and of several
meetings conducted by myself with those committees." Rankin later sought to
modify this testimony by declaring that "I made clear to them that I would
talk to anybody on any basis they wanted." On the basis of the entire record
and from his observation of the witness the undersigned credits that part of
Rankin's testimony that it was he who "suggested the appointment of a com-
mittee or committees to represent the different departments "'
Some days after this series of meetings referred to above, Rankin was told
by the foremen and George W. Fiss, the general manager, that each department
had decided to choose representatives, and had, in fact, done so. Election of these
departmental representatives was carried on on company time and property.
Ballots were distiibuted to each employee by employees within each department
where the separate elections were held. As far as the record shows these
elections were secret and conducted by the employees themselves, even though
the foremen may have been in the department at the time The foremen, the
testimony indicates, in such cases where they were physically present in the
department did not commingle with the employees at the time of voting or
counting the ballots.
After Rankin learned of the results of the elections within the departments
from his foremen, he instructed them to advise the newly elected representatives
that he was ready to meet with them. One or two meetings were held with
the entire committee consisting of fifteen persons. At these meetings there was
some discussion of vacations, wages, and other matters.
6In March 1944 , prior to the afore-mentioned election, some 84 employees in respondent's
mill distributed and signed a petition on company time and property headed as follows :
We do not desire the Textile Workers of America to represent us in any labor nego'
tiations We prefer to have a Committee of Employees chosen from all departments.
7 Rankin testified that a dozen nominations for the Committee were made at a meeting
which he attended, and that he was not surprised when notified of the employee elections
by the foremen He also testified that discussions as to how the elections were to be con-,
ducted were carried on at a meeting which he`attended.
EWING-THOMAS CORPORATION 1457
Rankin did not question the right of the Committee to represent the em-
ployees and testified that he accepted them as acting "for those who had
authorized them to act in their behalf."
2. The first contract
Although the testimony is not clear as to whether or not there was one or two
meetings with the Committee, it is clear that at one meeting held in June,
Rankin submitted a copy of an agreement to the Committee Copies of this
agreement dated June 22, 1944, were given to the Committee and then additional
copies of the agreement were given to each employee by the respondent's foremen.
After more than half of the employees had signed the agreement and returned
their copies to Rankin, the respondent filed a Form 10 application with the
National War Labor Board, on July 3, 1944. Signing the Form 10 on behalf of
the employees was one member of the Committee, Edgar H. Crow.
The contract thus drawn was purported to be between the Ewing-Thomas
Corporation "and the employees of Ewing-Thomas Corporation, acting herein by
those employees who sign one copy of this agreement (herein called Employees) "
The National War Labor Board approved the Form 10 application as it
related to vacation pay, in July or August of 1944. In October 1944, the War
Labor Board approved certain increases in hourly wages which had been agreed
upon by the parties but disapproved increases in piece-work rates. Notified of
this action a few days before October 11, 1944, Rankin posted a notice on the
latter date, in which he set forth the fact that certain parts of the application
had been denied and stated also that:
We plan to file it request for a review and at my suggestion arrangements
already have been made by a committee of our employees to engage an
attorney and through him file a protest against the action of the Labor Board
in refusing to grant the increases as to which our agreement was made. This
committee consists of Josephine Cox, Amos E. Pierce, Edgar Crow, and
George Murphy, and it was chosen at a meeting attended by representatives,
from all departments of the mill. These representatives were those who
were chosen by each department several months ago to work out the details
of the June agreement. [Italics added.]
The meeting referred to in the above notice had been held in Rankin's office a
few days previously. At the suggestion of Amos Pierce, James A. Cochrane, a
local Chester attorney, was retained by the Committee to prosecute its appeal,
after the question had already been raised by, and discussed in the presence of,
Rankin. Rankin later sent Cochrane a copy of his own appeal. The record is
barren of any reference to the manner in which Cochran was to be paid, or if
he was in fact paid The subcommittee referred to in the notice,was chosen
in Rankin's presence and in his office. _
Shortly thereafter an appeal was taken to the Regional War Labor Board in
Philadelphia This appeal was later dropped and a new Form 10 application
was filed early in January 1945.
On March 21, 1945, Rankin and Fiss on behalf of the respondent, and three
employees, Corkran,e Cox and Wilson, went to Philadelphia to follow up on the
new application. The respondent paid regular wages to these employees for time
spent in Philadelphia and also paid their fare to and from that city.
8 Not to be confused with James A. Cochrane referred to above.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The second contract
On or about May 1, 194.55, the War Labor Board approved the new application
and notified the respondent of its decision. Further meetings were held unme-
diately thereafter (the record is not clear as to whether these meetings were
with the Committee or with the employees as a whole or both) and a new contract
was drawn up. This contract was similar in all respects to the contract dated
June 22, 1944, except that it provided tot the new wage rates allowed by the
National War Labor Board This contract, although dated May 7, 1945, was to
remain in force until June 30, 1946, and was renewable from year to year unless
either party gave the other 30 days' notice in writing terminating the agreement.
Again, as in the earlier contract, the agreement was between the Ewing-Thomas
Corporation and all those employees who signed one copy of the agreement
This agreement was not discussed with the employees or with the Committee
prior to the time when it was distributed to them for signatures The agree-
ments were distributed to the employees, as in the case of the first agreement,
by the foremen, and were collected from them in the same manner No notices
were posted by the Committee in respect to the agreement, and the Committee
never met apart from Rankin to discuss it.
During the period discussed imnnediatel^ above, District 50 began to organize
respondent's employees.- A Petition for Certification of Representatives having
been filed,' a hearing was held betoie a Trial Examiner in August of 1945. The
respondent filed an answer in that proceeding in which it alleged among other
things:
Said contract (the contract of May 7, 1945, discussed above) was entered
into as a result of collective bargaining by and between representatives of
said unit of Ewing-Thomas Corporation, designated and selected for the
purposes of collective bargaining by the majority of the employees of said
unit of said employer. And Ewing-Thomas Corporation avers that said
representatives were and now are the exclusive representatives of all the
employees of said unit.
The Board in its decision dated February 20, 1946, disposed of this contention
of the respondent by deciding that the agreement i eferred to was entered into
between the respondent and the individual employees who signed the instru-
m^2nt, and that it was not therefore such a collective bargaining agreement as
would serve as a bar in that proceeding"
4. The third contract
Beginning shortly after V-J Day, August 14, 1945, the respondent's employees
began to ask Rankin whether they could not have an increase in wages. Rankin
_ostified that about December 1, 1945, lie began to work out a new agreement"
iris testimony was to the effect that his decision to write a new agreement was
made because of the fact that his competitors were paying higher wages and
thus causing some dissatisfaction among his employees, and because the Board's
decision in the pending Representation case had not as yet come down after a
lapse of about 6 months At about this time a new Committee was elected and
on December 3, 1945, Rankin again addressed his employees. In substance,
0 Matter of ETOinq -Thomas Corporation , Case-No 4-R-1826
10 The Committee was not represented at the Repiesentation proceeding Having later
been called as witnesses, members of the Committee took the position that they did not wish
to he t epresented on the ballot.
11 The agieement of May 7 , 1945, did not expire until June 30, 1946.
1
EWING-THOMAS CORPORATION 1459
Rankin told the employees that he had decided to give them a War Victory Bonus
and a 5 percent increase in wages Rankin paid "tribute to loyal workers dur-
ing the war emergency and expressed confidence that the bonus and wage adjust-
ments would not meet opposition from, the Labor Board or from any un,om."
[Italics added I
The contract entered into between the respondent and its employees shortly
thereafter on December 17, 1945, contained some provisions not previously incor-
porated in the former contracts. This contract began with the statement that
it was an :
Agreement made this 17th day of December, A D 1945, by and between
Ewing-Thomas Corporation, (herein called Employer), and the Employees
of Ewing-Thomas Corporation (herein called Employees), acting herein by
the following employees who have been duly chosen and elected by the Em-
ployees to represent them : Alfred J. Corkran, Thomas R. Fisher, Amos E.
Pierce, Samuel R. Frei, Thomas A. Carr, Ann R. Fremont, Blanche B.
Bowen, Barbara L Albanese, Edgar H Crow, Ruth E. Davis, George F.
Murphy, Joseph C Hall, Frank Al. Caidwell, John A. Carpenter, and Sidney
I Berkheinier.
Whereas, the several departments of said Employer's mill at Chester,
Pennsylvania. have elected representatives to act for them to negotiate an
agreement with said Employer dealing with pay, hours, and conditions of
employment ; -
And whereas, the said parties have held a number of conferences at which
there has been a full discussion as to existing conditions in the Employer's
business and also changes in the present wage scale, hours of employment, and
other working conditions;
And whereas, the said parties desire to reduce to writing their agreements
and understandings and also desire to have this written agreement approved
by such Employees of the Employer as desire to approve of the same ;
Now, therefore, the said parties agree with each other as follows :
The text of the agreement followed the above preamble. For the first time, it
should be noted, the respondent named as the parties to the contract the Ewing-
Thomas Corporation and the Employees Committee. It was Rankin's testimony
that he drew up the contract of December 17, 1945, in this particular form, to
conform to what he believed to be criticisms of the Trial Examiner in the Repre-
sentation hearing as to the form of the previous contracts
While 14 members of the Employees Committee signed the contract, one refused
to sign it This fact was duly noted in the contract itself, and the printed con-
tracts contain a statement that Ann Fremont refused to sign the contract.
At the same time that Rankin had his foremen distribute copies of this contract
to the employees they also distributed a small card which read:
December -, 1'945
The undersigned employee of Ewing-Thomas Corporation certifies that he
has received a copy of_,,agteement dated December 17, 1945, executed by the
Ewing-Thomas Corporation and also by employees of Ewing-Thomas Corpora-
tion chosen and elected by the several departments of said company, and the
undersigned further approves of said agreement and ratifies the signing
thereof by the duly elected employees of said company.
Rankin testified that he considered the December 17, 1945, agreement to be
between the Corporation and the Committee and that the cards were used as a
means of proving the Committee's right to act for the employees. Rankin also
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that this contract contained nothing which was proposed by the Com-
mittee and the undersigned finds that the entire instrument was his own creation.
Thus although there was no grievance procedure in the earlier contracts, and
although this contract contains a form of grievance procedure , Rankin testified
that this procedure was exactly the same as that which had always been used in
the plant and was simply incorporated into the agreement as a means of verbaliz-
ing that which had always existed. Coikran , appearing at the hearing on behalf
of the Committee as a whole , testified that he had nothing to do with inserting
the grievance procedure into this contract
5 The new wage scale
On February 19, 1946, Rankin met with the Committee and told its members
of plans which he had made to increase wages in accordance with President
Truman's Directive which had been issued shoitl.N before The Committee agreed
to meet with Rankin again on February 21, 1946, to discuss these plans further.
On February 20, 1946, the Board oidered an election to be held in the pending
Representation case. Nankin testified that he received the letter from the Board
notifying him of its decision 5 minutes before lie was scheduled to begin the
conference with the Committee on February 21, 1946.
Nevertheless Rankin met with the Committee and told them that he was
going to grant certain increases in wages On February 22, 1946, Rankin dis-
tributed a letter to his employees in which he set forth the facts just described
and added, in substance, that lie planned to meet with the Committee some time
in the week beginning March 4, 1946, "at which time" he hoped "to work out with
them the final wage adjustment."
On March 11, 1946, Rankin distributed another letter to his employees in
which he stated that:
8 r * I have been conferring with the Employees Committee concerning
changes in our wage scale I am happy to report that the Committee and
the Company have agreed upon a new wage rate effective with pay pei nod
beginning Monday, February 25th, and hence in your next pay check you
will be paid on the basis of the new rates
We are very happy to be in this position and give a large part of the credit
for the new wage scale to the Employees Committee and the way in which
they have handled the interest of our employees.
The election was-scheduled for March 21, 1946 On March 18, 1946. Rankin
distributed another letter to his employees in which he said among other things:
* * * you are now being asked to decide whether you prefer to have
either District No. 50 or C. I. O. speak for you or whether you prefer to
discuss wages and working problems with Mr. Fiss,'2 Mr Goslin,'3 Mr. Sharp-
less, Mr. Shepard, Mr Butler," Mr Brightbill,' Mr WCilkinson. ° myself and
our associates. We have always been willing to discuss our problems fully.
Will that be possible if an outside group represents you?
On March 20, 1946, the Board issued an order amending the Direction of
Election by extending the time in which the election was to be held from 30 to
12 George W. Fiss, 3rd, general manager
13 A. J Goslin , foreman of the quilling department
"William Sharpless , Frank Shepard , and Ezekiel Butler , foiemen of the_mercerizing
department
is Harry Brightbill , foreman of the winding department
16 Wilkinson is not further identified in the record.
EWING-THOMAS CORPORATION 1461
60 days. On April 19. 1946, the Board further amended the Direction of Election
to the effect that the election was to be indefinitely postponed until such a time
as "the Board shall in the future direct, upon advice from the Regional Director
that an election may appropriately be held "
B. The issues
It is clear from the above that the Board has shown a state of facts which,
unless explained or denied by the respondent, would constitute unfair labor
practices Since the Board witnesses were presumably adverse to it, Rankin
being president of the respondent, and the other witnesses consisting of several
members of the Employees Committee, the undersigned has credited their testi-
rnony in such parts and to such a degree as seems to him warranted by the facts as
a whole. Thus, in effect, the contentions of the respondent are aimed at the ulti-
mate findings of fact and legal conclusions to be drawn from the above state
of facts, and these contentions will now be discussed.
The respondent makes three major contentions as to the allegations of the
complaint. It urges as its first point that, since District 50 did not "arrive on the
scene" until the middle of 1945, a complaint issue(?by the Board on a charge, filed
by District 50 cannot go back beyond the time when District 50 began organizing
the respondent's employees. Such a contention mistakes the whole purpose of the
Act The charging party calls the attention of the Board to an unfair labor
practice. This unfair labor practice is the concern, not only of the charging
party, but of the people of the United States as a whole. The Board is therefore
not limited in its investigation and prosecution of those who commit unfair labor
practices by any restriction as to the date when the charging party became af-
fected by these unfair labor practices. Thus, even though it is clear that District
50 did not begin to organize respondent's employees until atter the inception of
the Committee in June 1944, this fact is immaterial to any discussion of the
allegations of the complaint.
For its second point, the respondent argues that it did not interfere with the
inception of the Committee, did not dominate it, support it, or interfere with it
in any way.
The undersigned does not consider the respondent's contention to have merit.
Rankin, president of the respondent, and called as a Board witness, testified that
the first agreement, dated June 22, 1944, came about as the result of those meet-
ings at which he suggested the appointment of a committee or committees The
law is well established that an employer does not have .the right to suggest to his
employees a form of organization which he creates for them. It would make a
nullity of the purposes of the Act if the law were otherwise. The respondent's
employees had the right to create an organization of their own if they wished to do
so, unhampered by its interference. It was not entirely the employees' idea that
the Committee be formed ; it was also Rankin's idea Once the idea was broached
to the employees, and after the employees had made nominations for members of
this Committee in Rankin's presence and at a general meeting, it cannot be said
that any real degree of independence remained to the employees in making their
selection of their representatives.
The Committee of Fifteen once formed did not have any name It had no
roster of members, it collected no dues, it had no officers, it had no constitution,
it kept no minutes. The Committee never met together except when it was
called into Rankin's office. Members of the Committee made no proposals as to
the contracts which were signed, ostensibly with them as bargaining agent for
the employees. The Committee could not poll its members in the plant as to
whether they were satisfied with the terms offered them by the employer, for it
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had no members. The best that even the most independent member of the
Committee could do was to poll the employees in his own department. The
contracts were distributed on company time by the foremen Thereafter, and
again on company time, the employees, having signed or refused to sign the con-
tracts, returned/them to the foremen, who in turn returned them to Rankin.
An employee had no choice other than to accept or reject the entire agreement.
The Board has held that the first contracts were in effect contracts between the
individual employees and the corporation The Committeemen were elected
by each of the departments on company time and property, their only function
was to present to Rankin the requests for higher wages of those employees who
had elected them. They did not negotiate ; they simply presented these requests.
The domination of the Committee by the respondent is clearly shown not' only
in the testimony of Rankin, but also in the testimony of such members of the
Committee who testified at the hearing. Thus Josephine Cox testified, that she
first learned of the fact that the respondent was going to meet with the Committee,
after the first election in the departments, from her foreman, Brightbill. She
testified that she thought "it was understood that he (Rankin) would recognize
the Committee when we voted We never brought that question up." Relating
the circumstances surrounding her participation in the "negotiations" for the
June 22, 1944, contract, Cox testified that she was given a copy of the contract
just before she went into the general meeting of all the employees at which Mr.
Rankin read the terms of the contract. She did not even remember whether she
had signed her copy of the agreement. There was no employee discussion at the
meeting except as Cox testified, "One girl made a remark about another girl
* * * I thought they were talking about asking for a $5 increase. That's all
I heard."
Thus also when the National War Labor Board did not accede to all the terms
agreed upon in this contract of 1944, it was Rankin who suggested to the Com-
mittee that they retain the services of an attorney It was Rankin who paid the
expenses of the Committee including the railroad fare when they went to Phila-
delphia.
Aid and support was furnished the Committee in other ways. All meetings of
the Committee were held on company time and the members of the Committee
were paid for this time. Undenied 'and credited testimony indicated that there
was one instance of a member of the Committee who attended the appeal before
the National War Labor Board hearing in Philadelphia and who was paid for
this time although he was absent from his regular duties at the mill both before
and after that trip. In its letter to its employees dated March 11, 1946, the
respondent took the opportunity to congratulate the Committee upon its work
in the "interests" of the employees. At that time the election for which District
50 had asked was scheduled to take place in 10 days. The undersigned believes
and finds that,Rankin's letter was intended to and would have the effect of in-
fluencing the employees into believing that the Committee was a more effective
instrument for bargaining with the respondent than either of the two unions
appearing on the ballot.
Not only was the Committee born as a result of Rankin's interference in the
affairs of his employees, but its subsequent history illustrates his support and
domination of it. He "negotiated" contracts with it, praised it, paid for the time
it took to send the Committee to Philadelphia and guided its footsteps to the
point of advising it to obtain legal counsel. Such advise was questionable indeed
for a Committee which had no funds or any regular method of collecting or dis-
bursing them and thus would have no funds available for paying counsel.
For its third contention the respondent argues that allegations of the complaint
relating to the signing of the December 17, 1945, agreement are without basis.
EWING-THOMAS CORPORATION 1463
The respondent contends that since the Board took some 6 months to decide the
Representation proceeding then pending before it, the respondent had the right,
in effect, to enter into an agreement with the Committee. It also contends that
since its competitors were increasing wages, and since there was a Presidential
Directive in which employers were asked to increase wages as of that time, and
since the respondent was limited to a 30-day period in which to grant these in-
creases, it had the right to enter into the agreement. The undersigned does not
find merit in this contention. It is true that the Board took 0 months from the
date of the hearing in the Representation case until it issued its decision, but that
did not alter the fact that at that time the respondent had already entered into
a contract with if s, employees which provided for certain terms. If it desired to
raise its wages at that time, and thus take advantage of the President's Direc-
tive, there were other means open to it. It could have notified the two unions who
at that time claimed to represent a majority of its employees and have discussed
the matter with them, or it could have raised wages without consulting the Coin-
mittee or entering anew contract. Instead, it chose to institute a new contract,
with new wage provisions, the last steps in this procedure occurring only 10 days
before the scheduled election, and with a major share of the credit for these raises
being given to the Committee by the respondent.
C Conclusions
It is clear from the foregoing, and it is so found, that the respondent embarked
on a campaign of interference with its employees' rights to engage in union
activity immediately after the C I. O. lost the election in 1944 Rankin called
a meeting of the respondent's employees in which he suggested that they set up
a committee. This was done on company time and property, as were the elec-
tions that followed Thereafter Rankin drew up contracts which he distributed
to the employees by means of the foremen, and continued to recognize the Com-
mittee as the collecti' e bargaining representative of the employees although lie
had received no proof, and asked for none, of their majority status . The Com-
mittee itself was simply a shell with no power of its own It had no member-
ship, collected no dues, had no officers, had no name, and had no constitution.
But the Committee nevertheless served Rankin's purpose. He used it to foster
in the employees' minds the idea that they had some representation and that
the Committee was an effective instrument for collective bargaining Shortly
before the 1946 election was scheduled, he took the opportunity to tell the em-
ployees that it was the Committee which was in large part responsible for the
gains which they had received. It is accordingly found that the respondent
interfered in the formation of the Committee, and thereafter interfered with it,
dominated it, and contributed support to it.
It is further found that the respondent, by entering into the December 17, 1945,
contract while a Representation proceeding was pending, and thereafter granting
certain wage increases to its employees for which a large part of the credit was
given to the Committee, interfered with, restrained and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Such conduct on the respondent's part, as outlined above, was calculated to,
and did interfere with, restrain, and coerce the respondent's employees in the
exercise of the rights guaranteed in Section 7 of the Act, and it is so found.
IV. THE EFFEOT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operation of the respondent described in Section I, above,
have a close, intimate, and substantial relationship to trade, traffic, and com-
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action which the undersigned finds will effectuate the
policies of the Act.
It has also been found that the respondent has dominated and interfered with
the formation and administration of the Committee and has contributed to its
support The effect and consequences of the respondent's domination of, inter-
ference with, and support of the Committee, as well as the continued recognition
of the Committee as a bargaining representative of its employees, constitute a
continuing obstacle to the free exercise by its employees of the rights guaranteed
to them in the Act. Accordingly, it will be recommended that the respondent
disestablish and withdraw all recognition from the Committee as the repre-
sentative of any or all of the respondent's employees for the purpose of dealing
with it concerning grievances, labor disputes, wages, iates of pay, hours of em-
ployment, and all other conditions of employment, and cease and desist from
performing or giving effect to any contract, agreement, or understanding with
the Committee relating to grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment. Nothing herein, however,
shall be deemed to require the respondent to vary or abandon those wage, hour,
and other substantial features of its relations with its employees which the
respondent may have established in performance of any contract, agreement or
understanding, as amended, renewed, supplemented, or superseded.
The undersigned does not find that the respondent questioned its employees
concerning their activities on behalf of labor organizations nor that it remade
disparaging and derogatory remarks to its employees concerning District 50
and the C. I 0, and, accordingly, it will be recommended that the complaint be
dismissed in this respect.
On the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS of LAW
1. District 50, United Mine Workers of America, Textile Workers Union of
America, Local 178, affiliated with the Congress of Industrial Organizations, and
Employees Committee, Party to the Contract, unaffiliated, are labor organizations,
within the meaning of Section 2 (5) of the Act
2 By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and i^ engaging in unfair labor practices within the meaning of Section 8 (1) of
the Act.
3. By dominating and interfering with the formation and administration of the
Employees Committee, Party to the Contract, 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not engaged in unfair labor practices by questioning
its employees concerning their activities on behalf of labor organizations, nor
by making disparaging and derogatory remarks to its employees concerning
District 50 and the C. I. O.
EWING-THOMAS CORPORATION 1465
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Ewing-Thomas Corporation,
Chester, Pennsylvania, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the exercise of
the right to self-organization, to form labor organizations, to join or assist
District 50, United Mine Workers of America, 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 or other mutual
aid or protection ,
(b) Dominating or interfering with the administration of, or contributing to
the support of, the Employees Committee, Party to the Contract, and dominating
or interfering with the formation or administration of, or contributing support
to, any other labor organization of its employees ;
(c) Recognizing the Employees Committee, Party to the Contract, or any suc-
cessor, 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 ;
(d) Giving effect to any contract, agreement, extension, amendment, or re-
newal thereof, or to any other understanding entered into with said organization,
or any successor thereto, relating to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the Employees Committee, Party to the
Contract, as the representative of any of its employees for the purpose of deal-
ing with the respondent concerning grievances, labor disputes, wages, rates of
pay, hours of employment, and other conditions of employment, and completely
disestablish the Employees Committee as such representative;
(b) Post immediately at its Chestei, Pennsylvania, plant copies of the notice
attached to the Intermediate Report herein, marked "Appendix A." Copies of
said notice, to be furnished by the Regional Director for the Fourth Region, after
being duly signed by the respondent's representative, shall be posted by the re-
spondent immediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thefeafter. in conspicuous places, including all places where
notices are customarily posted Reasonable steps shall be taken by the respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material; ,
(c) Notify the Regional Dnector for the Fourth 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 the allegations of the complaint, that the
receipt of this Intermediate Report, the respondent notifies said Regional Di-
rector in wilting that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
It is further i ecommended that the allegations' of the complaint that the
respondent engaged in unfair labor practices by questioning its employees con-
cerning their activities on behalf of labor organizations, and by making disparag-
ing and derogatory remaiks to its employees concerning District 50 and the
C. 1 0., be dismissed
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Seues 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochainbeau Building, Washington 25, D. C, an original and four copies of ;i
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the otigiual and four
copies of a brief in support thereof Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the (late of the
order transferring the case to the Board. Any party desiring to submit a brief
in support of the Intermediate Report shall do so within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, by filing
with the Board an original and four copies thereof, and by immediately serving
a copy thereof upon each of the other parties and the Regional Director.
VICTOR HIRSIMELD,
Trial Examiner.
Dated September 6, 1946.
APPENDIX A
NOTICE To ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner 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 EMPLOYEES COMaiICIEE, PARTY TO THE CONTRACT,
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
or any successor thereto for any of the above purposes
WE WILL NOT in any manner interfere with, restrain, or coerce our employ-
ees in the exercise of their right to self-organization, to form labor organiza-
tions, to join or assist DISTRICT 50, UNITED MINE WORKERS OF AMERICA, 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 or other mutual aid or protection All our employees
are free to become or remain members of this union, or any other labor
organization.
EWING-THOMAS CORPORATION,
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.