H. J. Heinz Company

National Labor Relations Board - Board Decisions

Jan 5, 1939

10 N.L.R.B. 963 (N.L.R.B. 1939)

in the Matter of H. J . HEINZ COMPANY and CANNING AND PICKLE
WORKERS, LOCAL UNION No. 325, AFFILIATED WITH AMALGAMATED
MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA, AMER-
ICAN FEDERATION OF LABOR
Case No. C-3041.-Decided January 5, 1939
Food Products Industry-Interference, Restraint, and Coercion: derogatory
statements concerning the union and union activities - Company -Dominated
Union: domination of and interference with formation and administration and
contribution of support ; activities of gang leaders and other supervisory em-
ployees in activities of ; solicitation of members on Company property during
working hours ; no loss of pay to employees engaged in solicitation ; knowledge
of supervisory officials of such solicitation; disestablished, as collective bargain-
ing agent-Strike-Unit Appropriate for Collective Bargaining: production and
maintenance employees , except foremen , assistant foremen, salaried employees,
office help and outside truck drivers-Representatives: majority received by
union in consent election' presumed to continue in absence of proof to contrary-
Collective Bargaining: refusal to enter into normal form of collective agreement,
i. o., a written contract between the employer and representatives of employees,
naming parties and signed by each ; bad faith in other respects ; failure to
recognize union, refusal to enter into written agreement ; employer ordered to
embody understanding, if reached, in written signed agreement if requested to
do so by union.
Mr. Robert W. Kleeb, for the Board.
Thorp, Bostwick, Reed c6 Armstrong, by Mr. Earl F. Reed, Mr.
Donald,' W. Ebbert, and Mr. R. G. Bostwick, of Pittsburgh, Pa., for
the respondent.
Mr. J. Alfred Wilner, of Pittsburgh, Pa., for the Union.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and supplemental charges duly filed by Canning and
Pickle Workers, Local Union No. 325, herein called the Union, the
National Labor Relations Board, herein called the Board, by Charles
T. Douds, Regional Director for the Sixth Region (Pittsburgh, Penn-
sylvania), issued its complaint, dated October 26, 1937, against H. J.
Heinz Company, Pittsburgh, Pennsylvania, herein called the respond-
10 N. L. R. B., No 89
963
964 NATIONAL LABOR RELATIONS BOARD
ent. The complaint alleged that the respondent had engaged in and
was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. The complaint alleged, in substance, that the respondent
had dominated and interfered at the Pittsburgh plant with the for-
mation and administration of a labor organization known as the
Heinz Employees' Association, herein called the Association, and
had contributed financial and other support to it; had refused to
bargain collectively in good faith with the Union which had been
selected as collective bargaining agent by a majority of the employees.
in an appropriate unit'at the Pittsburgh plant; and by these and
other acts had interfered with, restrained, and' coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Copies of the complaint and accompanying notice of hearing were
duly served upon the respondent, the Union, and the Association.
On November 6, 1937, the respondent filed an answer to the com-
plaint, in which the respondent denied that it had engaged in or
was engaging in any unfair labor practices affecting commerce within
the meaning of the Act, and prayed that the complaint be dismissed.
Pursuant to notice, a hearing was held in Pittsburgh, Pennsyl-
vania, on November 15, 16, 17, 18, 22, 23, 24, and 26, 1937, before J.
Raymond Walsh, the Trial Examiner duly designated by the Board.
The respondent and the Board were represented by counsel and par-
ticipated 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.
The respondent's motion to dismiss set forth in the answer was
not renewed at the hearing and no ruling has been made upon it.
The motion is hereby denied. At the beginning of the hearing,
counsel for the Board moved to amend the name of the Union, des-
ignated in the pleadings as Canning and Pickle Workers' OrgaiZiza-
tion No. 325, to Canning and Pickle Workers, Local Union No. 325.
The record does not indicate that any ruling was made on the motion.
The motion is hereby allowed. Numerous motions and objections to the
introduction of evidence were made during the course of the hearing
by counsel for the respondent and counsel for the Board. The Board
has reviewed the rulings of the Trial Examiner on motions and ob-
jections, and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
On December 1, 1937, the Board, acting pursuant to Article II,
Section 37, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered the proceeding transferred to
and continued before the Board.
DECISIONS AND ORDERS 965
On April 9, 1938, the Board issued a Decision and Order in the
case. On May 7, 1938, the Board served notice upon the respondent,
the Union, and the Association of its intention to vacate and set
aside its Findings and Order for the purpose of further proceedings
before the Board. On May 13, 1938, the Board, acting pursuant to
Section 10 (d)' of the Act, issued an Order setting aside the Findings,
and Order' of April 9, 1938.
On July 13, 1938, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law and a Proposed Order. Thereafter,
respondent filed exceptions to the proposed findings, conclusions, and;
order. On October 20, 1938, pursuant to permission granted by the
Board, oral argument was had before the Board in Washington, Dis-
trict of Columbia, by counsel for the respondent and counsel for
the Union. The Board has considered the respondent's exceptions to
the proposed Findings of Fact, Conclusions of Law, and Order and'
finds them to be without merit save as consistent with the Findings
of Fact, Conclusions of Law, and Order hereinafter set; forth.
Upon the entire record in the case, the Board makes the following:-
FINDINGS OF FACT
1. THE BUSINESS OF-THE RESPOINDENT
H. J. Heinz Company, a Pennsylvania corporation, is engaged in,
the production, sale, and distribution of food products. The princi-
pal offices and main plant of the respondent are in Pittsburgh,,
Pennsylvania. Branch plants of the respondent are located in
Ambridge, Chambersburg, and Sharpsburg, Pennsylvania; Prince-
ton, Indiana; Muscatine, Iowa; Henderson, Kentucky,;- Holland,
Michigan; Salem, New Jersey; Medina, New York; Bowling Green_
and Fremont, Ohio; Winchester, Virginia; and Leamington, On-
tario, Canada. In addition, the respondent maintains 89 stations
for receiving food products located at various points in Colorado,
Indiana, Michigan, Wisconsin, and Canada. Fiftythree salting-
stations, where in aclclit:on to receiving food products some initial
treatment of the products takes place, are maintained by the re-
spondent at various places in Colorado, Indiana, Michigan, Wiscon-
sin, and Canada. The respondent has sales offices in 45, principal
cities of the United States and 5 cities in Canada. The respondent
is the parent of five subsidiary corporations, one of which is an
English and another a Spanish corporation.
Approximately 76 per cent of the total value of raw materials used
in the Pittsburgh plant of the respondent, where the unfair labor
practices are alleged to have occurred, originate outside the State of
Pennsylvania and approximately 78 percent of the products of the,
Pittsburgh plant are shipped outside the State of Pennsylvania.
147811-39-vo1 10--62
°966 NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATIONS INVOLVED
Canning and Pickle Workers, Local Union No. 325, is a labor
organization, chartered by the Amalgamated Meat Cutters and
Butcher Workmen of North America, affiliated with the American
Federation of Labor. Although the record is not clear, membership
in the Union is apparently limited to employees of the respondent
engaged in production and maintenance, exclusive of supervisory,
managerial, and clerical employees.
Heinz Employees' Association is a labor organization, not affiliated
with any other labor organization. It admits to membership em-
ployees in the Pittsburgh plant of the respondent, except office
,employees, foremen, department heads, or those employed in a super-
visory capacity with authority to hire and discharge.
III. THE UNFAIR LABOR PRACTICES
A. Background of the unfair labor practices
In January 1937, a group of employees in the respondent's Pitts-
burgh plant requested the Amalgamated Meat Cutters and Butcher
Workmen of North America, herein called the Amalgamated, to aid
them in forming an organization within the plant. No organization
existed among these employees prior to this time. Conferences and
secret meetings were held by the interested employees until April
1937, when an open drive for organization began and public meet-
ings were held. On May 11, 1937, the Amalgamated granted a
charter to the Union.
During April and May 1937, coincident with the open drive for
membership by the Union, an organization known as Heinz Em-
ployees' Association also began a drive for members. Bitter rivalry
existed between the two factions in the plant.
On May 21, 1937, Frank Kracik, international representative of
1 he Amalgamated, met with H. N. Riley, a director of the respond-
ent in charge of manufacturing. Kracik gave Riley a copy of a
-contract proposed by the Union and asked for a further meeting for
the purpose of negotiating a contract. Riley agreed to meet with
the representatives of the Union for this purpose on May 24, 1937.
On the morning of May 24, representatives of the Association
called Riley and also asked for an appointment to negotiate a con-
tract. Riley met both groups during that day.
At the meeting with the Union, which was the first of the two
meetings, Riley demanded proof of the Union's claim that a majority
of the employees at the Pittsburgh plant had chosen the Union to
represent them and that it was entitled, therefore, to act as the sole
collective bargaining agent. No method of determining this fact
DECISIONS AND ORDERS 967
was decided upon since the Union was unwilling to reveal the
identity of its members to the respondent. The meeting adjourned
upon Riley's acceding to the Union's request that it be given 24 hours
to show the extent of its membership.
At the meeting with the Association, Riley likewise demanded
proof from the Association to substantiate its claim that the Associa-
tion had been selected collective bargaining agent by a majority of
the employees at the Pittsburgh plant. The Association offered to
show the respondent petitions authorizing the Association to act as
collective bargaining agent which, it alleged, had been signed by a
majority of the employees at the Pittsburgh plant. Riley refused to
examine the petitions, stating that he did not wish to know which
employees had joined either group. Riley informed the Association's
representatives that the Union likewise claimed to have been se-
lected as collective bargaining agent by a- majority of the employees
and suggested the advisability of a secret election, a method which
had been discussed with the representatives of the Union. The meet-
ing adjourned without any decision being made upon how the con-
flicting claims of the two organizations should be resolved.
On the same night, the Union voted to strike; the strike being put
into effect immediately. During the following 4 days the mayor of
the City of Pittsburgh attempted to settle the strike by securing the
consent of the respondent and the two organizations to an election.
The Union, claiming that the respondent had dominated and interfered
in the formation and administration of the Association contrary to the
provisions of the Act, was unwilling to consent to an election if the
name of the Association was put on the ballot.
At the end of 4 days, when an apparent impasse had been reached,
the respondent requested the Association to present its petitions for
examination. On the morning of May 29, 1937, the respondent issued
a public statement, announcing that it had examined and counted the
signatures on the petitions; that the petitions had been signed by
1,383. employees, which constituted more than a majority of the ap-
proximately 2,000 persons employed at the Pittsburgh plant; and
that the respondent would enter into collective bargaining with the
Association as the sole representative of the employees in the plant.
Negotiations between the respondent and the Association for the
following 3 days resulted in an agreement being reached between
the parties concerning wages, hours, and working conditions. The
terms of the agreement were incorporated in a bulletin which was
mailed by the respondent to each of its employees on June 1, 1937.
The strike, however, continued and prevented the resumption of
operations within the plant.
Shortly thereafter, the Union sought the aid of various Federal
.and State mediators. On June 4, 1937, all parties agreed in writing
968 NATIONAL LABOR RELATIONS BOARD
to an election to be conducted by the Regional Director of the Na-
tional Labor Relations Board for the Sixth Region. Under the,
terms, of the agreement both the Union and the Association were to
be on the ballot, the respondent agreeing that it would recognize the
organization receiving a majority of 'the votes cast and within '10
days after announcement of the results of the election commence,
negotiations with such organization for the purpose of reaching an,
agreement relating to wages, hours, and working conditions. The
Union's consent, however, was qualified by a stipulation simultane-
ously entered into by all the parties that the holding of the election
would not prejudice the rights of any party who had filed "affidavits"
before the Board. This stipulation was intended to allow the Union,
to continue 'the prosecution of charges which had been filed by it
with the Regional Director for the Sixth Region on May 27, 1937,
and which alleged, inter alia, that the Association was a company-
dominated union.
The election was held on June 8, 1937. Out of 1,930 votes cast, the
Union received 1,079, the Association' 803; 3 ballots were void and 45
challenged. The plant was reopened shortly after the holding of the
election.
Pursuant to its agreement the respondent entered into negotiations
with the Union, the first meeting being held June 17, 1937. Nu-
merous conferences between the parties culminated on August 15,
1937, in the posting of a bulletin on bulletin boards throughout the
respondent's plant stating that an "understanding" had been reached
concerning enumerated provisions relating to wages, hours, and work-
ing conditions.
B. Interference, restraint and coercion
Five employees 1 testified that Heinrich, superintendent of the
Pittsburgh plant, talked to them during April about unions. Hein-
rich is alleged to have told three of the witnesses that lie had been
informed they had attended a Union meeting, and to have' then
pointed out to them the benefits they had received in working for the
respondent. In the case of another of the five, Heinrich is alleged
to have stated, in addition to pointing out the benefits of working-
for the company, that the employee would not fare so well if a union
came into the plant. While Heinrich admits that he had some con-
versation with each of these employees at the time indicated by the
employees' testimony, and likewise admits that in each instance he
sought the interview, he denies that he made any of the anti-union
statements attributed to him by these witnesses. Heinrich did not
deny that unions might have been discussed during these conversa--
1 Canjar, Frank and' John Koontz, Kuss, and Favlakovick.
DECISIONS AND ORDERS 969
tions, but states that if they were, the subject was brought up by the
employee. We feel that in each instance mentioned, the testimony
of the employee witness seems more plausible than the consistent pat-
tern of Heinrich's explanation of these interviews. In addition, the
fact that the superintendent of the plant sought interviews with the
witnesses mentioned and several other union members at a time when
such intense rivalry and bitterness existed in the plant, and on mat-
ters, which, even accepting Heinrich's own explanation of the pur-
pose, appear to be trivial, convinces us that Heinrich engaged in the
activities alleged.
Locke, foreman of the bean building, and Vajentic, a foreman of
one division of the bean building, are also charged with expressing
sentiment against the Union. Locke is alleged to have stated to Mat-
ernick, an employee, that he understood Maternick was "one of these
Bolshevists"; to have asked Maternick and Ahel, another employee,
what they would "get from a union"; and to have told Ahel that he
would be sorry he had joined the "outside" union. Locke's denials, in
the light of his other activities set forth below, are likewise unconvinc-
ing. Vajentic was not called by the respondent; there is, therefore, no
denial of testimony, which seems credible to us, that Vajentic asked
Canjar what he was trying to do to the respondent by attending a
Union meeting the night before, that the company had always been
good to him and that if the Union came in he would lose his insurance
and social security; that Vajentic told Maternick that if the Union
came in, Howard Heinz would shut down the plant rather than deal
with it; and that Vajentic told Vilha, another employee, that if a
union was organized in the plant it might cause all of. them to lose
their jobs.
Hayes, also a foreman, is alleged to have told Frank Koontz, "Don't
be like that dumb brother of yours. If anyone asks you to join the
outside union, tell them to go to hell"; to have told John Koontz that
the union president was getting "$5 a head" for every member signed
up in the Union; and to have asked John Warnick, what he thought
of his "dumb buddy" who "after having 13 years of service with the
H. J. Heinz Company, he turns around and signs up with an outside
union" which "is led by a foreigner that hasn't even got a citizen's
paper." Hayes' denials of having made each and every one of the
numerous statements are particularly unconvincing.
Brooks, a foreman, and Schirer and Fisher, foreladies, were not
called to deny that they had engaged in similar anti-union activities
attributed to them by witness at the hearing.
We find that Heinrich, Locke, Vajentic, Hayes, Brooks, Schirer, and
Fisher engaged in the activities attributed to them in the testimony
discussed.
970 NATIONAL LABOR RELATIONS BOARD
The above instances are cited merely as examples of the respondent's
interference, restraint, and coercion of employees in their rights of
self-organization. Many other instances, even though denied, are
clearly proved by the testimony.
We find that the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
C. Domination of and interference with the formation and adminis-
tration of the Association
During the time this coercion and interference with the right of
employees to self-organization was being exercised, the Heinz Em-
ployees' Association first appeared in the plant. Bennett, a mechanic
in the can department, testified that he conceived the idea in January
1937, of forming an "inside" organization for the purpose of keeping
any other organization out of the plant and to prevent strikes. Ben-
nett testified that at that time he solicited and secured aid in form-
ing the organization from Frank Kirschner, William Ubrey, and John
Ubrey, all machinists, and Eddie Grznkowski,2 an inspector and re-
pairman. However, the record does not indicate a single instance in
which any other person was solicited to join the Association prior to
April 1937.
Beginning in April and continuing in May, petitions, in which the
signers authorized the Association to act as collective bargaining agent,
were circulated among the employees while at work in the plant. The
five employees named as the originators of the organization were ac-
tive in circulating the petitions. Other employees, many of them
group leaders or departmental timekeepers, were also active in solicit-
ing signatures.
It is not contended that departmental timekeepers occupy super-
visory positions. Much testimony was adduced by the Union and the
respondent as to the character of the position of group leaders, the
Union contending that they are supervisory employees, the respond-
ent that they are not. The evidence shows that each main division of
the Pittsburgh plant has a foreman. Each subdivision, in turn, has
foremen and foreladies who are directly responsible to the foremen
of the main divisions. Groups of employees in each subdivision are
further supervised by group leaders. All foremen and foreladies re-
ceive a salary and devote themselves exclusively to supervisory work.
Group leaders are paid hourly, do not attend foremen's meetings,
and work with the employees whose work they supervise. The re-
spondent contends that group leaders are not supervisory employees
2 Known as Eddie Kranz.
DECISIONS AND ORDERS 971
whose activities would bind the respondent because they have no
authority to hire or discharge employees. This criterion is not con-
clusive in determining the supervisory character of the position of
group leaders under the system of operation employed. The record
indicates that all hiring in the Pittsburgh plant is done through the
employment office and that even foremen of main divisions cannot
discharge an employee without authority, in each instance, from the
superintendent. More significant is the testimony of employees who
state that group leaders are their "bosses", because they give orders
which must be obeyed. Certain group leaders testified that the fore-
man held them responsible for the work performed by their groups.
Significant also is the testimony of Greenier, a group leader who was
active in soliciting members for the Association, who testified that
when Frank Koontz asked Greenier to join the Union, Greenier
"ordered" him back on the conveyor. Heinrich, likewise, admitted
the supervisory character of group leaders by testifying:
Offhand I would say [there are] probably 250 that you would
call supervisors in a sense . . . just the foremen and fo'reladies
are salaried; the others are all hourly workers.
We find that group leaders are supervisory employees whose actions
are binding upon the respondent. However, our conclusions with
respect to the respondent's relationship to the Association are not
predicated upon the actions of group leaders alone. There is evidence
in the record of illegal activities by employees whose supervisory
capacity is not denied.
It is not denied by the foremen and foreladies of some departments
that they knew of the activities carried on during working hours in
behalf of the Association. In other departments, whether or not
knowledge is denied by the supervisors, it is apparent that they could
not have been unaware of what was being done. The activities of
Armstrong, an employee, in addition to showing the participation of
one foreman in the affairs of the Association, may be cited as an
example of how openly these activities were carried on. On April
27 Brooks, foreman of the main division in which Armstrong worked,
assembled 40 to 50 employees in the division and addressed them for
20 to 30 minutes during working hours. Brooks announced that he
was not speaking for the company, that his remarks represented his
personal opinion. He pointed out the amount of money collected by
the American Federation of Labor and the salary paid to President
Green and stated that the employees should not. join that type of
union. Brooks also stated, "Now, I am not trying to influence you
in any way, but why not have a union of our own here?"
The following morning Brooks sent for Armstrong and asked Arm-
strong what he thought of unions. Armstrong replied that he was
972 NATIONAL LABOR RELATIONS BOARD
not in favor of them, and Brooks expressed pleasure at his attitude.
In the afternoon of the same day, Grznkowski, previously mentioned
as one of the five originators of the Association, gave Armstrong
several petitions and directed him to begin getting signatures im-
mediately. When Armstrong protested that he was supposed to be
working, Grznkowski replied that his foreman would let him go.
Armstrong on that day and for about 2 to 3 hours per day for several
days circulated throughout the entire building getting signatures.
Armstrong's work required his presence constantly at a machine.
He testified that not only did Mozeyka, his immediate foreman, not
object but that Mozeyka placed another employee on the machine to
substitute for Armstrong while he was securing the signatures.
Neither Armstrong nor other employees engaged in soliciting mem-
bers for the Association were docked for the time spent in these
activities.
On the second day during which Armstrong solicited members for
the Association, he was stopped in another department by a foreman
who asked whether Brooks knew what he was doing. Armstrong
then went to Brooks and told him that he was getting signatures to
the petitions. Brooks examined the petitions and remarked, "Yes,
I have seen them. All right." Three or four days later Brooks
called Armstrong into the office, and stated, "This thing isn't moving
fast enough. The names aren't coming in fast enough. Why don't
you get some help? For instance, get Andy Hubstenberger from
the first floor and Louis Beniquista and Andy Porack from the
seventh floor." Armstrong, who testified that he considered he had
been given a promotion by being requested to secure signatures to
the petition, requested at least one of the three employees suggested
to aid him. The respondent failed to call Brooks or Mozeyka to the
stand, and Armstrong's testimony is undenied on the record.
Locke, a foreman previously mentioned as having expressed antip-
athy to the Union, likewise assembled the employees in his depart-
ment. Locke read them a prepared statement in which he stated that
the petitions which most of them had signed the day before express-
ing their willingness to join the Association had been stolen. Locke
stated that he was speaking "as an individual of H. J. Heinz
Company"; that he had heard many rumors, among others, that if
the Association gained a majority, wages would be cut; that such
a statement was untrue, wages depended largely "on how profitable
business was." Locke also stated that he considered it only fair that
the employees "should all be again given the opportunity to show
that you want to join the Association of Heinz Employees," and
announced that a petition would be placed on the timekeeper's desk
"where all of you who signed before may now sign again in perfect
DECISIONS -AND ORDERS 973,
confidence that you will be protected in your right to express your
opinions as you see fit" and where "anyone of you who did not sign
may also sign at this time if you wish." Locke's sentiment was not
obscured by his statements that the employees ' wishes "will be pro-
tected, whether you want to join the Heinz Association or the
A. F. of L., some of the men are interested in" and "if there are any
who wish to join the A. F. of L., I am sure there are men here
who will take care of them and see that they get signed up." Locke
made no effort to secure someone to take signatures for union mem-
bership, but he did stand near the timekeeper 's desk while the
Association 's petition was being signed.
Andy Vajentic, foreman in the bean-baking department, solicited
Belovitch, Martof, and Marine to join the Association. Vajentic was
not called as a witness and accordingly did not deny this solicitation.
Maurice Shindler is a highly skilled machine designer who, al-
though not shown to have any supervisory power, occupies a position
of such character as entitles him to eat in the cafeteria reserved for
officers and foremen. Shindler testified that on the evening of May
20 while he was having dinner in the cafeteria , Hayes, general fore-
man, came in and sat down beside him. Shortly afterwards Palivoda
and Skertish , and two other foremen whose names he did not know,,
came in and joined Hayes. Shindler testified :
After being seated and greetings exchanged , Hayes said to
Palivoda "How did you make out?" Palivoda began to enu-
merate that he spoke to a certain girl, and she informed him that
she had signed up with the outside union , wouldn't have any-
thing to do with the inside union. He talked to her, he said, the
best he could. And he said, "Hayes, do you remember how she
came and begged for a job, and the father also implores us to,
put her on, and now she shows her gratitude by joining the,
outside union ." And the whole tone of the conversation was that
Mary this or Molly this, "I saw her. She has joined the outside'
union. I have talked to her. I did the best I could. I couldn't
do anything. Others I have neutralized. Others have paid their
initiation fee." And during the course of the conversation he
mentioned that he had seen all of the 26 names on the list that
Hayes gave him and had talked to them.
Mr. Skertish also reported in the same vein.
Hayes, Palivoda, and Skertish each denied that this conversation
took place . Shindler seems a very credible witness, however. Pali-
voda is unconvincing . Skertish testified he could not have made-
such a report, "because Mr. Heinrich , the superintendent , wanted me-
"' 974 - -NATIONAL LABOR RELATIONS BOARD
not to talk unions or to have anything to do with them." We con-
sider Hayes' denial, viewed in the light of his consistent denials that
he engaged in any of the activities to which numerous witnesses tes-
tified, unconvincing. We find that the events occurred in the cafe-
teria as related in Shindler's testimony.
It is clearly established that Hargraves, a salaried employee who
is described as the respondent's "good will man," was active in the
Association during this time, although he resigned from membership
when the Association's constitution and bylaws, which exclude sal-
aried employees from membership, were adopted. The respondent
admits that Hargraves was engaged in personnel and welfare work,
such as visiting the homes of the employees in cases of illness or
death and that on some occasions at least, he attended foremen's
meetings. We find that Iargraves was the representative of the
respondent in the performance of the duties incident to his position
and that his activities in connection with the Assocation are binding
,on the respondent.
Shindler also testified that he overheard Hargraves asking one
of the stenographers in the respondent's office to take the minutes
at an Association meeting, and that when she refused, Hargraves
stated he had absolute proof that the Union "was organized by
Croatian Communists who are getting orders from Moscow." Har-
graves was not called as a witness by the respondent. We find that
Hargraves engaged in the conversation testified to by Shindler.
The record shows that at some date prior to the strike, Heinrich
instructed the foremen and foreladies that they were not to take
part in any of the union activities of the employees and that they
should practice no discrimination between employees belonging to
one or the other group. These instructions were apparently given at
the request of Riley, a director of the respondent. Substantially
the same instructions were given to the foremen and foreladies at
two or three different times after the strike by various supervisors or
officials of the respondent. It is apparent from the facts set forth in
this decision that the respondent's supervisory staff failed to follow
the instructions given during the period prior to the strike if, in
fact, Heinrich intended them to be followed, which seems doubtful in
view of Heinrich's own participation in such activities. The in-
structions given after the strike, even if followed, came after the
anti-union statements and acts of the supervisory staff which are
complained of, had been consummated. Under these circumstances,
the respondent is not relieved from liability for the acts of its super-
visory employees as stated above, by showing that such instructions
were given.
Although there is additional evidence, the testimony discussed
shows that the respondent through the activities, set forth above, of
A AO , wDEC1SIONS AND ORDERS 975
Brooks, Mozeyka, Locke, Vajentic, Hayes, Palivoda, Skertish and
Hargraves, has dominated and interfered with the formation and
administration of the Association and contributed support to it ; and
we so conclude.
The respondent excepts to our failure to find in our proposed find-
ings that the Union also solicited members during working hours.
The respondent cites only the testimony of Catherine Hildebrand to
the effect that she was solicited to join the Union during working
hours by Andy Porack. The record also contains testimony by Jo-
seph Greenier that lie was solicited to join the Union while at work
by Frank Koontz. We have considered this testimony, but it does
not cause us to reach a different conclusion. Even if such solicita-
tion occurred, it was negligible as compared with the solicitation en-
gaged in by members of the Association. In addition, it is not the
bare fact that solicitation by Association members occurred during
working hours which is significant but rather the fact that this solici-
tation was with the approval, expressed or implied, of the respondent.
The record does not show, and the respondent does not contend, that
any supervisory employee knew of or approved of, the solicitation
which may have occurred by members of the Union.
The respondent also excepts to our failure to find that members
,of the respondent's supervisory force stopped employees who were
circulating Association petitions during working hours and forbade
them to do so. The respondent cites two such incidents. We have
also considered this evidence, but it does not alter our conclusion
that the respondent's supervisory staff in general did not actually
stop solicitation. After Dominic Vajentic had secured "about two"
signatures to the petition, he was stopped by his foreman brother,
Andy Vajentic, who stated, "You are not going to sign up anybody
during working hours. . . . You could do it dinner time, if you
want to. I don't like to see you go around and ask anybody to sign
up." Catherine Hildebrand testified that she was stopped from circu-
lating the petition. In her direct examination Hildebrand testified
that after she had spent about 45 minutes circulating the petition
she was stopped by Heinrich. On cross-examination Hildebrand
testified that Ann Trasiack, her forelady, stopped her from circu-
lating the petition. There is no explanation of the apparent incon-
sistency and under the circumstances we consider this testimony
unreliable. Even assuming that Vajentic, Heinrich, and Trasiack'
did not allow the circulation of the Association petitions, the re-
pondent is responsible for the acts of other supervisors who did
allow and in some instances aided in the circulation of these petitions
in the plant during working hours.
We find that the respondent has dominated and interfered with
the, formation and administration of the Association and contributed
976 NATIONAL LABOR RELATIONS BOARD
support to it; and that by these activities the respondent has inter-
fered with , restrained , and coerced its employees in the exercise of
the rights guaranteed to them in Section 7 of the Act.
D. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that all of the employees at the Pittsburgh
plant, except foremen, assistant foremen, salaried employees , office
help, and outside truck drivers , constitute a unit appropriate for the
purposes of collective bargaining . This is the unit which , by agree-
ment of the respondent , the Union , and the Association , was used
as the basis of the consent election held on June 8, 1937 . Super-
visory, clerical or office help, and salaried employees are normally
excluded in an industrial unit; their exclusion , therefore , needs no
further comment. Outside truck drivers were excluded on the grounds,
that they are members of Local 249 of the International Brother-
hood of Teamsters , Chauffeurs , Stablemen, and Helpers of America,
likewise affiliated with the American Federation of Labor, and have
dealt with the respondent as a separate unit. We see no objection
to their exclusion for these reasons.
We find that all of the employees at the Pittsburgh plant of the
respondent , except foremen , assistant foremen, salaried employees,
office help , and outside truck drivers , constitute a unit appropriate
for the purposes of collective bargaining , and that such a unit insures
to the respondent 's employees the full benefit of their rights to self-
organization and otherwise effectuates the policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
As previously stated, the Union received 1,079 votes out of a total
of 1,930 ballots cast in the consent election held on June 8, 1937, by
the Regional Director for the Sixth Region. There is no evidence
in the record as to the desires of a majority of the employees after
that time, except the statement that at the time of the hearing the
Association had approximately 1,050 dues-paying members. We can-
not consider membership in the Association as a free-will act because
of our finding that the Association was dominated, interfered with,,
and supported by the respondent.3 In the absence of evidence to the
contrary, there is a presumption that a majority of the employees
continued to desire the Union to repi esent them, particularly during
3Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal-
gamated Association of Iron, Steel , and Tin Workers of North America, Lodges Nos 64,
1010, and 1101, 9 N L It. B 783
4Mattei of United States Stamping Company and Enamel Workers Union No . 18630,
5 N. L. R. B. 172.
DECISIONS AND ORDERS 977
the period from June to August 1937, when it is alleged the re-
-spondent failed to bargain collectively with the Union.
We find that on June 8, and at all times thereafter, a majority of
the employees in the unit which we have found appropriate had
designated and selected'the Union as their collective bargaining agent
.and that, pursuant to Section 9 (a) of the Act, the Union was the
'exclusive representative of the employees in the appropriate unit
for the purposes of collective bargaining in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
As previously indicated, negotiations between the Union and the
respondent looking to an agreement concerning wages, hours, and
conditions of employment began on June 17, 1937. At the six or
-seven meetings which were held between June 17 and 28, the respond-
ent was generally represented by Riley, by Robert G. Shinabarger,
a director who is assistant to S. Mueller, one of the vice presidents
of the respondent, and by Donald W. Ebbert, an attorney. At these
conferences the subject matter of discussion between the groups was
largely confined to the provisions of a proposed contract which had
been submitted by the Union to the respondent on June 17.
The first paragraph of the proposed contract provided :
This agreement, dated the ------ day of -----------------
1937, between the H. J. Heinz Company (hereinafter referred
to as the "Employer"), and the Canning & Pickle Workers
Local Union No. 325 of the Amalgamated Meat Cutters and
Butcher Workmen of North America, or its successor (herein-
after referred to as the "Union"). . . .
Thus the Union in this paragraph and by virtue of the form of the
entire agreement indicated its desire for a signed agreement between
the parties. During the negotiations each paragraph of the pro-
posed agreement was discussed. The respondent's only expressed
objection to the introductory paragraph was to the words "or its
successor" which the Union agreed to eliminate. At no time during
this period did Riley or Shinabarger indicate to the Union com-
mittee that the respondent would not enter into an agreement in the
form proposed, although they unqualifiedly stated that other provi-
sions of the agreement, such as the closed-shop, would not be
accepted by the respondent.
The one issue on which the parties were furthest apart during
these discussions related to wage increases. The Union had demanded
a 20-per cent increase, with certain minima for men and for women.
The respondent had offered an increase of 10 per cent, with lower
978 NATIONAL LABOR RELATIONS BOARD
minima. Although the proposed contract submitted by the Union
on May 21 had only asked for a 10-per cent increase, the Union
felt that a larger increase was justified in. view of the events that
had transpired. since May 21, the most important of which was that
the respondent had agreed with the Association to a 10-per cent
increase on June 1, which increase, however, had never been put into
effect. The position of Riley and Shinabarger from the beginning
of the negotiations was that the respondent would not agree to any
increase in excess of 10 per cent.
. t the meeting of June 26, neither the Union nor the respondent
having receded from their respective positions in respect to wage
increases, Wilner, the attorney for the Union, proposed that some
higher official of the respondent be present at the next meeting. The
proposal was the outcome of statements by Riley and Shinabarger
that their actions were subject to the approval of the other directors
of the respondent.
In accordance with the suggestion, Hugh C. Anderson, a vice
president of the respondent, attended the meeting of June 28.
Anderson sat throughout the meeting, which lasted about 1 and a half
hours, without speaking. Wilner then asked Anderson for a state-
ment. Anderson replied that nothing had been stated which had
not been previously discussed according to the reports which he had
received; that the directors had full confidence in Riley and Shina-
barger; that the respondent's offer was a 10-per cent increase and
that the Union could "take it or leave it." Wilner and other mem-
bers of the Union who were present testified that Anderson, in
addition, stated that Riley and Shinabarger had full authority to
act for the respondent. Although this is denied by the respondent's
witnesses, we believe that events which followed reasonably indicate
such authority.
The Union, feeling that an impasse had been reached, again solic-
ited the aid of State and Federal mediators. The respondent there-
after agreed to meet again with the Union representatives on July 1.
Again the respondent failed to offer any increase in excess of its
original counterproposal. The Union representatives left this
meeting with the intention of submitting the respondent's proposals
concerning wage increases, hours, and vacations to the union member-
ship at a meeting to be held that night. Shortly after the repre-
sentatives of the Union had left this conference, Riley sent for
Kracik, the international representative of the Amalgamated. Kracik
returned to the plant, where Riley. bluntly informed him that the
respondent did not intend to enter into any signed agreement with
the Union.
DECISIONS AND ORDERS 979
The union membership, at the meeting that night, agreed to accept
the respondent's counterproposals, which, pursuant to a previous
understanding, went into effect in the plant on July 2, the following
day, but as of July 1. At a meeting between representatives of the
respondent and the Union on the following day, Wilner voiced vio-
lent objection to the respondent's position that it would not enter
into a signed agreement with the Union. Riley stated that it was the
policy of the respondent not to enter into signed agreements with
unions and that the respondent did not consider the Act required
it to do so. It was finally agreed at this meeting that Wilner and
Ebbert should incorporate the terms on which an understanding hadj
been reached in a memorandum.
Some time before July 14, Ebbert prepared such a memorandum,
and submitted it to Wilner, who made certain corrections. On July
14, Riley, Shinabarger, and Ebbert, representing the respondent, met
with Wilner and other representatives of the Union to discuss the
draft which Wilner and Ebbert had agreed correctly expressed the
terms on which an understanding had been reached. The committees
made certain other changes and all present agreed that Ebbert should
prepare a final draft including such agreed changes and that this
draft should be posted on the respondent's bulletin boards on the
following day. It was' also agreed that a copy should be sent by
Ebbert to Wilner. While Riley denies that such arrangements had
been made, Wilner received a copy of a corrected memorandum
from Ebbert on the following day. This fact clearly indicates that
Ebbert likewise understood at the meeting of July 14 that Riley and
Shinabarger had agreed to the form of the memorandum and estab-
lishes the fact that no indication had been given that their agreement
was subject to further action by other directors of the respondent.
The memorandum received by Wilner is dated July 15 and entitled
"NOTICE TO ALL EMPLOYEES." The first paragraph states:
Following the recent election held under the supervision of
the National Labor Relations Board, in which the Canning
and Pickle Workers' Local Union No. 325 was selected as the
collective bargaining agency for our employees, we have had
meetings with a committee from that organization and after
several weeks of negotiation, have agreed with them as follows :
The agreement then set forth certain provisions relating to wages,
working hours, vacations, seniority, adjustment of grievances, dis-
charges, safety, and health, and concluded with the provision,
The wage rates and other matters hereinabove set forth shall
remain in effect until further notice.
`980 NATIONAL LABOR RELATIONS BOARD
The copy received by Willer contained at the end the typewritten
signature of the respondent.
Wilner, upon being notified during the day that the memorandum
had not been posted in the plant, called Ebbert for an explanation.
Ebbert stated that Anderson had objected to certain phrases in the
memorandum and, in addition, felt that it should be submitted to
Howard Heinz, president of the respondent, who was then out of the
city, before it was posted.
On July 23 or 24, Ebbert informed Wilner that Heinz had seen the
memorandum, and wished to rewrite it in its entirety and that no
further action could be taken at that time.
On July 29 or 30, Ebbert submitted to Wilier a bulletin which had
been prepared by Heinz. This bulletin differed materially from the
memorandum which had been agreed upon on July 14. It was
entitled :
Labor Relations Bulletin
Pittsburgh Factory, H. J. Heinz Company
The opening paragraph read :
According to the provisions of the National Labor Relations
Act, we have bargained with the certified collective bargaining
agency for our employees (not including, however, foremen,
assistant foremen, who are paid on a monthly basis, policemen,
outside truck drivers, office employees, or factory employees paid
on a monthly basis) and the following understanding has been
reached :
In no place in the bulletin was the Union named nor did the signa-
ture of the respondent appear at the end. The body of the bulletin
constituted a complete rewording of the memorandum of July 14.
Material changes had been made, also, in the substantive provisions.
The bulletin eliminated all details concerning the procedure to be
followed in the handling of grievances, eliminated the right of the
Union to aid in the determination of wage rates for certain employees
excepted from the standard rates, made overtime payable for time
worked in excess of 44 hours a week, instead of after 40 hours as
stated in the memorandum, provided that overtime rates should not
apply to the handling of perishable products, an exception which
the memorandum of July 14 stated had not been "agreed" to by the
Union, and made rates for beginners payable for 3 months instead
of for 1 month as provided in the memorandum.
On July 31, 1937, Wilner met with Ebbert and Bostwick, attorneys
for, the respondent. Wilner protested against the procedure which
had been followed by the respondent throughout the negotiations and
the bulletin as prepared by Heinz in particular. Wilner stated, how-
DECISIONS AND ORDERS 981
ever, that the decision would be up to the Union and that he would
refer the bulletin prepared by Heinz to the Union.
The next meeting held between any of the interested parties oc-
curred on August 11. Riley, Shinabarger, and Bostwick represented
the respondent at this meeting. The representatives of the Union
voiced great dissatisfaction with the bulletin on several grounds, par-
ticularly the elimination of the name of the Union in the introduc-
tory paragraph and elimination of the details concerning the pro-
cedure to be followed in the handling of grievances. Representatives
of the respondent stated that both changes had been made by Heinz
because he wished to reduce the length of the bulletin. Although
it was pointed out that the name of the Union was no longer than
the phrase "certified collective bargaining agency for our employees,"
the respondent's representatives refused to agree to the change. In
only two material particulars did the respondent's representatives
agree to a revision. The payment of overtime for work in excess of
44 hours a week was changed to payment for work in excess of 40
hours, and the name of the Union was put in the paragraph relating
to grievances. At the conclusion of the meeting, the -representatives
of the Union agreed that the bulletin should be posted on the bulletin
boards of the respondent. The bulletin was posted by the respondent
on August 15. On August 17, Tasker, business agent of the Union,
wrote the following letter to Riley :
This is to advise you that the notice you have posted on your
bill-board does not in our opinion constitute an agreement within
the intent of the memorandum of understanding entered into
by and between our Union and you on June 4, 1937, nor is it evi-
dence of bona-fide collective bargaining within the meaning of
that understanding or the National Labor Relations Act.
Nevertheless, we realize that the concessions gained for the
employees.of the H. J. Heinz Company were the direct results
of our efforts and we are anxious to conserve for the Heinz
employees the benefits which they so richly deserve and for
which we strove so hard.
We, therefore, do not object to you [sic] posting of the notice
but intend to lay this matter before the National Labor Rela-
tions Board in order to have that impartial agency determine
whether or not you have bargained in good faith and whether
you have done what our memorandum of understanding of the
4th of June, 1937, and the law requires of you.
Upon the above recital of facts it is not entirely clear whether,
although an accord on terms was reached, the respondent was will-
ing to embody those terms in an agreement binding upon the parties.
147841-39-vol 10--S3
982 NATIONAL LABOR RELATIONS BOARD
The respondent contends that there was such an agreement. The
Union in its letter of August 17 apparently thinks that there was not.
If there was no such agreement, there was, of course, a violation
of Section 8 (5) within the principles set forth in Matter of St.
Joseph Stock Yards Company and Amalgamated Meat Cutters and
Butcher Workmen of North America, Local Union No. 159.6 How-
'ever, it is not necessary to decide this question here, since we think
it clear that the respondent did not fulfill its obligation under Section
8 (5) in other vital respects.°
Section 8 (5) of the Act requires an employer to accept the
procedure of collective bargaining. That procedure not only in-
volves meeting and discussion with the representatives of employees,
but also contemplates the making of a collective agreement if an
understanding is reached on terms. As the -Supreme Court of the
United States recently declared in Consolidated Edison Company v.
National Labor Relations Board (decided December 5, 1938) :
The Act contemplates the making of contracts with labor
organizations. That is the manifest objective in providing for
collective bargaining.'
We take judicial notice that historically this collective agree-
ment has normally taken the form of a written contract between the
employer and the labor organization, naming the parties to the agree-
ment and signed by the parties.8 The obligation of the employer
under Section 8 (5) is to accept this procedure in full. The purpose
of the Act is to encourage "the practice and procedure of collective
bargaining" and the employer may not decline to afford its em-
ployees the full rights and advantages of collective bargaining as
historically practiced.
We think it plain that the respondent did not fulfill its obligations
under the Act in the present case. On July 1, Riley, the respondent's
representative in negotiations, flatly refused to enter into any signed
62 N. L R B 39
The respondent excepts to our failure to find in our proposed findings ( 1) that Wilner,
attorney for the Union, admitted that the respondent "by posting the agreement on its
bulletin boards on Aug 15 , 1937, became bound thereby"; (2) that the Union called a
meeting for August 20 , 1937, for the purpose of "discussing the contract that is now posted
on your bulletin board"; and ( 3) that the Union publicly stated that an "agreement be-
tween the respondent and the Union " had been reached . We find that these facts are
established by the record However, we do not regard them as determinative of the exist-
ence of an agreement between the Union and the respondent , especially in view of Tasker's
letter of August 17. -
° See also the statement of Mr. Justice Reed concurring in part and dissenting in part
in the same case :
It is agreed that the "fundamental purpose of the Act is to protect interstate and
foreign commerce from interruptions and obstructions caused by industrial strife "
This is to be accomplished by contracts with labor organizations , reached through
collective bargaining
8 Cf. Matter of Inland Steel company, supra, 9 N L R B 783
DECISIONS AND ORDERS 98
agreement with the Union. Thereafter, without waiving its right
to a signed contract, the Union went so far as to agree to the posting
of a notice which stated that, following the selection of the Canning
and Pickle Workers, Local Union No. ' 325, . as collective bargaining
agency, "we have had meetings with a committee from that organi-
zation and after several' weeks of negotiation, have agreed with them
as follows." Even this concession did not satisfy the respondent.
It insisted upon posting a notice which merely stated, "We have
bargained with the certified collective bargaining agency for our
employees ... and the following understanding has been reached."
This document was not in the form of, a contract between the parties;
the Union was not named as a party; and the document was not
signed by any party thereto. Indeed, while officers of respondent
testified that they had been advised and believed that the respond-
ent was legally bound by the provisions set forth in the bulletin of-
August 14, Riley stated that the "agreement" which exists is between,
the respondent and its employees and not between the respondent
and the Union .9
The record makes, clear that the only reason for the respondents
refusal to accept the full procedure of collective bargaining in this
case lay in its desire to deny to the Union the status and prestige to
which it was entitled as the recognized party to a collective agreement.
Riley admitted that the respondent declined to name the Union in the
bulletin, or to give it any express credit for the results reached, for
"psychological" reasons. He explained those reasons as "just a mat-
ter of trying to pound some of the boys down a bit," "a tendency to,
get this wild colt back on the reservation," and that the rights of the
minority "should be protected." The attitude of the respondent in
this matter is in strong contrast to its attitude toward the Association.
In the bulletin which the respondent had mailed to the employees-
on June 1, incorporating the agreement between the Association and'
the respondent, not only had the name of the Association been used,
but, in addition, the names of the 5 officers and the 15 representatives
of the Association had been prominently set forth. The difference in
the respondent's treatment of the two organizations must be viewed in
the light of its antipathy toward the Union, and its use of the Associa-
tion to prevent self-organization. It clearly wished to impress its
employees with the benefits of membership in the Association and to
convince them that no benefits had been gained by virtue of member-
ship in the Union.
0It is significant to note that during oral argument counsel. for the respondent referred'
to the bulletin of June 1, which contained the agreement between the Association and the,
respondent, as "a contract" between the respondent and the Association.
984 NATIONAL LABOR RELATIONS BOARD
The respondent's refusal to'accord'the Union a contract in the usual
form, signed by both the parties, cannot be dismissed as a matter of
trivial significance. On the contrary, as the testimony of Wilner
makes clear, the respondent's action deprived the, Union of highly
important advantages growing out of full recognition of the Union
as the collective bargaining agent and full acceptance of the Union
as a party to the collective agreement 10
The case is similar in all substantial respects to Matter of Inland
Steel Company." Iii that case the respondent refused in advance to
embody in a signed agreement whatever terms might be reached after
negotiations. The Board pointed out that
in circumstances like those here involved-when the bar-
gaining is directed toward a comprehensive set of terms covering
labor relations in a large in plant-the prevailing practice
is reduction of.such terms to a signed collective agreement;
that
Unions justifiably feel that full recognition of their status as col-
lective bargaining agencies on an equal footing with employers
cannot be attained if they are denied the type of contractual rela-
tionships which characterize ordinary business dealings.
and that
It is evident from the respondent's own argument that the under-
lying reason for its refusal to enter into a signed agreement was
that it was anxious to forestall the organization of its employees
into the S. W. O. C.
The Board's conclusion in the Inland case is equally applicable to the
facts of this case :
Section 8 (5) of the Act requires an employer to accept the
procedure of collective bargaining in good faith, and the nature
of this obligation must be determined in the light of the pre-
vailing practice of collective bargaining and the spirit and pur-
pose of the Act as a means of avoiding industrial strife. We
regard it as well settled that collective bargaining in good faith
requires a willingness to consummate the negotiations, if success-
ful, by entering into some sort of an agreement. And we hold
that under circumstances such as are presented here, it is the
employer's obligation to accede to a request that understandings
reached be embodied in a signed agreement. The pres
^ ----
r ent con-
10 Cf. National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U. S. 261,
267.
11 Supra, 9 N. L. R B. 783.
DECISIONS AND ORDERS 985
troversy is projected on the background of a long struggle by
labor organizations to attain full recognition of their right to
recognition as collective bargaining agencies with a dignity equal
to that of the employers with whom they deal. We take judicial
notice of the fact that today thousands of employers have ac-
corded unions their right to normal contractual relationships,
and that, as is shown by the record, the signed collective bar-
gaining agreement is the prevailing practice. From the view-
point of harmonious and cooperative labor relations, as well as
of sensible business practice, the importance of embodying under-
standings in signed agreements is obvious. Whether there may
be, in some future case, circumstances indicating that the em-
ployer there involved may under the Act decline to embody
understandings in a signed agreement, we need not here decide.
It is certain that we are not confronted with such circumstances
in this case. To say that there is something impracticable about
a signed collective bargaining agreement with a large steel manu-
facturing concern, justifying an exception from the general prac-
tice, would be to shut our eyes to facts of common knowledge
concerning recent labor history. As a matter of fact, the reasons
advanced by the respondent, considered in connection with the
factual background of the current dispute, indicate clearly that
the respondent was and is motivated in its actions by a desire
to check the progress of the S. W. 0. C. in its plants.
The respondent has sought to show, however, through an article
which was published in the "Catholic Radical Alliance" on July 8,
1937, that the Union was also unwilling to enter into a written agree-
ment. The author of the article was Father Rice, a Catholic priest
who had accompanied,the Union committee in some of its meetings
with the respondent prior to July 1. In the article Father Rice
stated that the terms offered by the respondent had been submitted
to the employees at a mass meeting the week before (apparently
referring to the meeting on the night of July 1), and that the em-
ployees, wanting peace, agreed to accept the terms offered but would
not agree to sign a contract for a term. It does not appear from
the article, however, that the Union did more than take the position
that it was unwilling to agree to be bound by the arrangements
which the Company had offered for any specific length of time.
In any event, as we have seen above, on the following day Wilner,
authorized representative of the Union, objected strenuously to the
respondent's refusal to enter into a signed written agreement. ' We
conclude, therefore, that the Union never abandoned either its demand
or its desire for a written signed agreement providing full recognition
986 NATIONAL LABOR RELATION'S BOARD
of the Union and embodying an understanding reached as a result
of genuine collective bargaining. 12
In addition to the respondent's refusal to enter into the normal
form of written agreement with the Union, the respondent's actions
throughout the course of negotiations indicate that it was not bar-
gaining in good faith. This is shown especially by the respondent's
withholding from the Union the essential status and recognition of
an equal during the negotiations, as hereinbefore discussed; by the
respondent, through Heinz, repudiating and changing the terms of
the July 14 bulletin after they had been approved as final by the per-
sons who had been represented to the Union as having full authority
to act for the respondent; by the respondent's dilatory tactics mani-
fested particularly in the refusal of Anderson to post the memoran-
dum of July •14 and in the rewriting of the memorandum by Heinz ;
and by the respondent's refusal to incorporate the procedure for
'settling grievances in the bulletin of August 15, although it had no
objection to such terms themselves.
We, therefore, conclude that the respondent has failed and refused
to bargain collectively with the representatives of its employees with-
in the meaning of Section 8 (5) of the Act; and that by such failure
and refusal the respondent has interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
12 The respondent excepts to our failure to include in our proposed findings a finding
"that Kracik, international representative of the Union, told Riley during the negotiation
meetings that a written signed agreement was not required and agreed with Riley and
Shinabarger that the agreement between the respondent and the Union need not be a
written signed agreement." Kracik testified that after Riley announced on July 1 that
the respondent would not enter into any written agreement, he replied, "well, it's all right
with me whatever you people decide and whatever we decide is two different things"
Kracik also testified that during the negotiations prior to July 1, Riley stated to the wit-
ness personally, "It's nothing definite we are going to sign some kind of a contract but you
know the things from your other meetings and your other negotiations and you know what
to do in cases like that," and that Kracik replied, "well, that means that no agreement,
that you people still living in hopes and whatever we decide, sometime, will be perfectly
o. k. with us because we have no agreement with the company-that (suits ) me, person-
ally-I will be on your neck every week or so if you don't sign for a certain teim" We
do not agree with the respondent that the replies of Kracik constituted a waiver of the
Union 's demand for a written signed agreement. Nevertheless, whatever interpretation is
,placed on Kracik's testimony, other testimony in the record establishes that the Union's
original demand was for a signed agreement, that the respondent in the first instance
refused to enter into a written agreement, and that other representatives of the Union
objected throughout the subsequent negotiations to the respondent' s refusal to enter into
such an agreement.
DECISIONS AND ORDERS 987
tial relation to trade, traffic , and commerce among the several States,
and with foreign countries, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
• V. THE REMEDY
We have found that the respondent dominated and interfered with
the formation and administration of the Association and contributed
support to it. Comisel for the respondent takes the position that
even if such facts should be established, "it all happened in April and
May, and whatever damage, if any was done , was all cured by an
election ." We do not so view the situation . Bennett, president of
the Association, testified that at the time of the hearing the Associa-
tion had between 1,050 and 1,100 dues-paying members; that since
the election, the Association has existed for the purpose of carrying
on social functions; but as to the ,future "you can never tell." In
addition, the respondent has excepted to a proposed finding of the
Board, that
Since by the statements of the Association's president, the
Association has existed since the election solely for social pur-
poses, such membership [in the Association] is not inconsistent
with the desire of a majority of the employees to have the Union
represent them for the purposes of collective bargaining.
It seems apparent that the only reason the respondent could have for
objecting to such a finding is a belief that the Association either
exists or is capable of acting as a collective bargaining agent for
its members . The objection is clearly inconsistent with the respond-
ent's argument that the damage, if any, -was cured by the election.
The record does not indicate that the respondent has met with the
Association for the purposes of collective bargaining since the strike,
and the respondent asserts that it has not . Nevertheless , so long as
the Association continues , it remains a potential threat to - the em-
ployees' exercise of the right to self-organization and to be repre-
sented in collective bargaining by the representatives of their own
choosing . The purposes of the Act can be effectuated only by -the
removal of this threat. We shall , accordingly , order the respondent
to disestablish the Association as the represenative of any of its em-
ployees for the purposes of dealing with the respondent concerning
grievances, labor disputes , rates of pay , wages, hours of employment,
and other conditions of employment.
Since the respondent has failed to bargain collectively with the
Union as the representative of its employees , we will order the re-
spondent , upon request , to bargain collectively with the Union for
988 NATIONAL LABOR RELATIONS BOARD
the purpose of reaching an agreement covering wages, hours, and
working conditions; and, if any understanding is reached on any of
such matters, and the respondent is requested to do so by the Union,
to embody such understanding in a written signed agreement.
Upon the basis of the above findings of fact, sand upon the entire
record in the case, the Board makes the following :
CONOLusIONs OF LAW
1. Canning and Pickle Workers, Local Union No. 325, and Heinz
Employees' Association are labor organizations within the meaning
of Section 2 (5) of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed by Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of Heinz Employees' Association, and by
contributing support to the said organization, has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (2) of the Act.
4. All the employees at the Pittsburgh plant of the respondent,
except foremen, assistant foremen, salaried employees, office help,
and outside truck drivers, constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b)
of the Act.
5. Canning and Pickle Workers, Local Union No. 325, was on
June 8, 1937, and at all times thereafter has been, the exclusive repre-
sentative of all employees in such unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
6. The respondent, by refusing to bargain collectively with Can-
ning and Pickle Workers, Local Union No. 325, as the exclusive rep-
resentative of the employees in the aforesaid unit, has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (5) of the Act.
7. 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 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,
-H. J. Heinz Company, Pittsburgh, Pennsylvania, and its officers,
agents, successors, and assigns shall:
DECISIONS AND ORDERS 989,
1. Cease and desist :
(a), From in any manner dominating or interfering with the ad-
ministration of the Heinz Employees' Association, or with the forma-
tion.' or administration of any other labor organization of its
employees, and, from contributing support to the Heinz Employees'
Association, or any other labor organization of its employees;
(b) From refusing to bargain collectively with Canning and
Pickle Workers, Local Union No. 325, as the exclusive representative
of all the employees at the Pittsburgh plant, except foremen; assistant
foremen, salaried employees, office help, and outside truck drivers;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining and
other mutual aid and protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from the Heinz Employees' Associa-
tion as the representative of any of its employees for the purposes
of dealing with the respondent concerning grievances, labor dis-
putes, rates of pay, wages, hours of employment, and other conditions
of employment, and completely disestablish Heinz Employees' Asso-
ciation as such representative;
(b) Upon request, bargain collectively with Canning and Pickle
Workers, Local Union No. 325, as the exclusive representative of all
the employees at the Pittsburgh plant, except foremen, assistant
foremen, salaried employees, office help, and outside truck drivers,
with respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is reached on any
of such matters, embody said understanding in a written signed
agreement, if requested to do so by Canning and Pickle Workers,
Local Union No. 325;
(c) Post notices immediately do the bulletin boards in the Pitts-
burgh plant stating: (1) that the respondent will cease and desist
as aforesaid; (2) that the Heinz Employees' Association is dises-
tablished as the representative of any of its employees for the pur-
pose of dealing with the respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or any other con-
ditions of employment, and that the respondent will refrain from any
recognition thereof ; and (3) that, upon request, the respondent will
bargain collectively with Canning and Pickle Workers, Local Union
No. 325, as the exclusive representative of all the employees in the
990 NATIONAL LABOR RELATIONS BOARD
unit which we have found appropriate; and keep said 'notices posted
for a period of at least sixty (60) consecutive days from the date of
posting;
(d) Notify the Regional Director for the Sixth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
Chairman Madden took no part in the consideration of the above
Decision and Order.