Hershey Metal Products Co.

National Labor Relations Board - Board Decisions

Mar 16, 1948

76 N.L.R.B. 695 (N.L.R.B. 1948)

In the Matter of PAUL H. HERSHEY AND MARY J. R. HERSHEY, CO-
PARTNERS DOING BUSINESS AS HERSHEY METAL PRODUCTS COMPANY,
and ANSONIA BRASS WORKERS UNION , LOCAL 445, INTERNATIONAL
UNION OF MINE, MILL AND SMELTER WORKERS (CIO)
Case No. 1-C-2735.-Decided March 16, 1948
Mr. Leo J. Halloran, for the Board.
Mr. William F. Healey, of Derby, Conn., for the respondents.
Messrs. John Porcu and Thomas J. Cooke, of Ansonia, Conn., for
the C. I. O.
Mr. Harold Yudlcin, of Derby, Conn., for the Employees Repre-
sentative Association Independent Union Local #1.
DECISION
AND
ORDER
On November 22, 1946, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto.
Thereafter, the respondents filed exceptions to the Intermediate
Report and a supporting brief.
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 respondents'
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, but with the exceptions, modifications, and additions noted
below.'
' Sections of the original Act alleged in this case to have been violated , namely, Section
8 (1), 8 (2 ) and 8 ( 3), are continued without material amendment, so far as their appli-
cability to the facts here involved is concerned , in Section 8 (a) (1), 8 ( a) (2), and 8 (a)
( 3) of the Act , as amended.
76 N. L . R. B., No. 105.
695
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner's finding that the respondents
violated Section 8 (1) of the Act by the statements and conduct of
Paul H. Hershey in questioning employees Salerno and Coppola
concerning CIO activities,2 and by Hershey's discriminatory applica-
tion of the respondents' rule against solicitation during working
hours. The discrimination in application of the rule lay not in the fact
that it was invoked to forbid Coppola from soliciting for the CIO
during working hours, but rather in the disparity between the re-
spondents' application of the rule to Coppola and their subsequent
failure to apply the rule to other employees who openly engaged
during working hours in solicitation against the CIO.
2. The Trial Examiner found that the respondents dominated and
interfered with the formation and administration of the Employees
Committee and contributed support to it, in violation of Section 8 (2)
and 8 (1) of the Act. He based his finding largely upon the re-
spondents' conduct in knowingly allowing members of the Employees
Committee to organize, meet, and circulate an anti-CIO petition in
the plant during working hours without deductions from their pay;
upon Hershey's action in making available to the Employees Com-
mittee the respondents' pay-roll lists in order to facilitate complete
circulation of the anti-CIO petition, his offer of legal assistance to the
Employees Committee, and his other words of encouragement to it;
and upon the respondents' grant of the demand by the Employees
Committee for a general pay increase. The foregoing conduct of the
respondents occurred, as is set forth more fully in the Intermediate
Report, after the CIO had claimed bargaining rights and filed a peti
tion with the Board under Section 9 (c) of the Act and after Hershey
had engaged in hostile questioning of employees concerning CIO ac-
tivities and applied a strict rule against solicitation on behalf of the
CIO during working hours.
Under the foregoing circumstances, we agree with the Trial Ex-
aminer that by their above conduct the respondents interfered with the
formation and administration of and contributed support to the Em-
ployees Committee in violation of Section 8 (2) and 8 (1) of the Act.
It was clearly the respondents' purpose to encourage and assist the
Employees Committee as an organization of the employees which held
promise of thwarting the efforts of the CIO to regain bargaining
status. t
We do not agree, however, that the respondents' conduct amounted
to domination of the Employees Committee within the meaning of
Section 8 (2). Indeed, the record affirmatively shows that, although
the Employees Committee accepted and used for its own purposes the
2 See Matter of Amea Shot Welder Co., Inc., 75 N. L. R B. 352.
HERSHEY METAL PRODUCTS COMPANY 697
assistance extended by the respondents, it was free from control by the
respondents. The Employees Committee had its inception in a general
dissatisfaction among the non-supervisory employees with an apparent
deadlock between the respondents and the CIO on questions of pay
increase and bargaining status. Non-supervisory employees, includ-
ing dissident members of the CIO, organized and determined the
policies of the Employees Committee with a view to breaking this
deadlock and obtaining an immediate general pay raise. On February
16, 1946, when the respondents requested delay before grant4ng a gen-
eral pay increase, the Employees Committee threatened to lead a
strike unless the pay increase were immediately forthcoming. About
the same time it rejected Hershey's offer of the services of the re-
spondents' attorney to assist it in forming an unaffiliated union. The
Employees Committee subsequently consulted with another attorney of
its own choice in the face of Hershey's specific advice against such
action.'
Having found that the respondents' unfair labor practices did not
constitute domination of the Employees Committee, we would not
,order its disestablishment even if it were still functioning' However,
since the respondents extended illegal support to the Employees Com-
mittee, which tended to interfere with and coerce the employees in the
exercise of their rights under the Act, and because the Employees Com-
mittee may resume functioning, we shall order that the respondents
refrain from recognizing it or dealing with it unless and until it shall
have been certified by the Board as the collective bargaining repre-
sentative of their employees.
3. The Trial Examiner also found that the respondents dominated
and interfered with formation and administration of the Independent
Union and contributed support to it, in violation of Section 8 (2) and
8 (1) of the Act. He based this finding upon the ground that the
Independent Union was initiated and sponsored by the Employees
9 As the Trial Examiner found, Pay Mistress Green, who supervised two or three
assistants, was a member of the Employees Committee All other members were rank-
and-file employees The Trial Examiner relied upon Green ' s membership as evidence of
illegal domination and support by the respondents of the Employees Committee The
evidence shows that Green had no connection with the Employees Committee until after
it was formed and embarked upon its program of ousting the CIO and securing a general
pay raise . Then , in mid -February of 1946 , Green attended one or possibly two meetings
of the Employees Committee at the request of Chairman Kusako, who invited her to
be present as a member of the office force. What part, if any , Green took in the meeting
or meetings of the Employees Committee which she attended is not clear However, at
the meeting of employees which the Employees Committee called on February 18, 1946,
for consldeiation of an independent union, GreenTspoke against employing an attorney
and her advice was disregarded. Under these circumstances , we do not rely upon
Green's limited membership upon the Employees Committee as an element of illegal inter-
ference with or support of that organization by the respondents and we find that it does
not establish illegal domination.
4 Matter of The Carpenter Steel Company , 76 N L. R B. 670.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Committee, without any disavowal by the respondents of their illegal
conduct with respect to the latter organization and without any clear
line of fracture between the two organizations.
We agree that the respondents' illegal acts with respect to the _
Employees Committee extended in their effect to the Independent
Union and that, for the reasons given by the Trial Examiner, the
Independent Union succeeded to the disabilities of the Employees
Committee. We conclude, therefore, that the respondents' actions
referred to in the section above interfered with the formation and
administration of, and contributed support to, the Independent Union
in violation of Sections 8 (2) and 8 (1) of the Act. However, since
we do not agree that the respondents dominated the Employees Com-
mittee in violation of the Act, we also do not agree that they illegally
dominated the Independent Union. We shall therefore dismiss the
allegation of the complaint, as amended, that the respondents violated
Section 8 (2) of the Act by dominating the formation or administra-
tion of the Employees Committee and the Independent Union.
Under these circumstances, we do not believe that it would effectuate
the purposes of the Act, as amended, to follow the Trial Examiner's
recommendation that the Independent Union be disestablished .5 In-
stead, we shall order the respondents to withhold recognition of the
Independent Union and to refrain from dealing with it unless and
until it shall have been certified by the Board as the collective bargain-
ing representative of their employees.,,
4. The Trial Examiner found that the respondents discharged
Lester Helm on November 12, 1945, in violation of Section 8 (3)
of the National Labor Relations Act. We do not agree.
The respondents contended that, during a period of slack em-
ployment requirements, they selected Helm for discharge because of
his "lack of interest," as shown by his habitual tardiness, occasional
intoxication on the job, and unwilling obedience to orders.7 The
Trial Examiner found that these reasons were only "justification in
retrospect" and that the respondents' real reason for discharging Helm
5 Matter of The Carpenter Steel Company, supra
6 The Trial Examiner found that the respondents assisted the Independent Union by
deducting from employees' pay, upon voluntary written authorization by the employees
involved, moneys for the purchase by them of shares of stock in the Employees Repre-
sentative Association Credit Union, Inc , a separate corporate entity which was initiated
by the Independent Union We do not rely upon this finding, nor is our order herein
intended to affect the operation as a credit organization of the Employees Representative
Association Credit Union, Inc
7 The respondents did not contend that Helm's production or workmanship, standing
alone, were unsatisfactory, though they claimed that others who were retained after
him were better workmen on both counts.
HERSHEY METAL PRODUCTS COMPANY 699
was his activity on behalf of the CIO. Although the case is not free
from doubt, we do not believe that the evidence sustains such a
conclusion.
In the first place, the record supports the respondents' contention
that they did, in fact, have a reduced need for employees in
Helm's department at the time of his discharge.8 Secondly,
Helm admitted that before his discharge he had a bad record
of tardiness. The respondents introduced uncontradicted evidence
which we credit, that Helm was tardy on 72.8 percent of the days
upon which he worked between April 1, 1945, and the day of his
discharge. Although other employees in the department also had
poor records for punctuality, Helm's record was by far the worst.'
Moreover, Helm testified that 3 days before his discharge his fore-
man, Rivnyak, warned him that he would be discharged if he were
late or absent thereafter or if he did not do his work properly 10 In
addition, although Helm denied that he was ever intoxicated on the
job, he admitted that on several unspecified occasions before his dis-
charge, he drank excessively during his lunch period and notified his
foreman that he could not work for the balance of the day. We do
not consider it necessary to resolve the conflicting testimony as to
whether Helm's obedience to orders was unwilling. In view of the
showing that the respondents were in a position to thin out their
less satisfactory workmen and in view of Helm's clearly unsatisfactory
attendance record, we are unable to agree that the record proves that
he was discharged for his union activity, rather than for the valid
reasons asserted by the respondents. We shall dismiss the complaint
as to Helm.
8 Thus , on V-J Day , in August 1945, there were 28 employees in the department. By
November 8, 1945, this number was reduced, with corresponding reductions in other
departments , to 12 . On November 9, employee Sherwin , not shown to have any connection
with the CIO , was discharged for "lack of work " Helm was discharged on November 12,
the same reason being given to him . Thereafter , there were various other transfers in
and out of the department , discharges , hirings, and resignations , so that from the time
of Helm 's discharge until the hearing , employment in the department fluctuated between a
low of 10 and a high of 17 There were 13 or 14 employees in the department at the
time of the bearing.
0 The employee having the next highest number of tardinesses was Young , who was
late on 41 5 percent of the 183 days during which he woiked between April 1 and November
12, 1945 However , Foreman Rivnyak testified without contradiction that most of Young's
tardinesses , unlike Helm ' s, were authorized Other employees in the department , during
the same period, had tardiness records as follows • Sherwin, 24 3 percent , German, 17.7
percent ; Aversano, 15 2 percent ; Klik, 11 1 percent , Balusek 8 0 percent ; and Kevalas
6 2 percent Employees Cobo, Davis, Laraghan and Stachelezyk had no tardiness
"The Trial Examiner appears to have viewed this warning only as a coercive notice by
Rivnyak that be was looking for some pretext for which to discharge Helm discriminatorily.
We believe that it should more logically be viewed as a final admonition with respect
to punctual attendance and performance of the job . Helm admitted that theretofore, on
several occasions , Foreman Rivnyak , upon observing Helm come in late, would shake his
head and comment , "What a guy. What a guy."
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondents, Paul H. Hershey
and Mary J. B. Hershey, individually and as co-partners, doing
business as Hershey Metal Products Company, and their agents, succes-
sors, and assigns shall:
1. Cease and desist from :
(a) Questioning their employees concerning their union affiliations,
sympathies or activities;
(b) Discriminatorily applying plant rules with respect to employee
conduct;
(c) Interfering with the administration of Employees Committee
or Employees Representation Association Independent Union Local
No. 1, or with the formation or administration of any other labor or-
ganization, and from contributing support to either of the above-
named labor organizations, or to any other labor organization;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist Ansonia Brass Workers
Union, Local 445, International Union of Mine, Mill and Smelter
Workers (CIO), or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranted in Section 7 of the
Act, as amended.
Take the following affirmative action, which the Board finds will
effectuate the policies of the Act;
(a) Withhold all recognition from the Employees Committee as
the representative of any of their employees for the purposes of
dealing with the respondents concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, unless and until the said Employees Committee shall
have been certified as such representative by the Board;
(b) Withhold all recognition from Employees Representative As-
sociation Independent Union Local No. 1 as representative of any of
their employees for the purposes of dealing with the respondents con-
cerning grievances, labor disputes, rates of pay, hours or conditions
of employment, unless and until the said Employees Representative
Association Independent Union Local No. 1 shall have been certified
as such representative by the Board.
HERSHEY METAL PRODUCTS COMPANY 701
(c) Post at their plants at Ansonia and Derby, Connecticut, copies
of the notice attached hereto, marked "Appendix A." 11 Copies of said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the respondents or their repre-
sentative, be posted by the respondents immediately upon receipt
thereof and maintained by them for sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the respondents to insure that said notices are not altered, defaced,
or covered by any other materials;
(d) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
AND IT Is FURTHER ORDERED that the complaint, as amended, be, and
it hereby is, dismissed insofar as it alleges that the respondents domi-
nated the formation or administration of the Employees Committee
and Employees Representative Association Independent Union Local
No. 1 in violation of Section 8 (2) of the Act, and insofar as it alleges
that the respondents discharged Lester Helm in violation of the Act.
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 WILL NOT
(a) Question our employees concerning their union affiliation,
sympathies, or activities;
(b) Apply our plant rules so as to discriminate for or against
any labor organization;
(c) Interfere with the administration of EMPLOYEES COMMIT-
TEE or EMPLOYEES REPRESENTATIVE ASSOCIATION INDEPENDENT
UNION, LOCAL No. 1 or with the formation or administration of
any other labor organization, or contribute support to either of
the above-named labor organizations, or to any other labor
organization ;
(d) In any other manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist ANSONIA BRASS
n In the event 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."
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WORKERS UNION, LOCAL 445, INTERNATIONAL UNION OF MINE, MILL
AND SMELTER WORKERS, CIO, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection.
WE WILL
(a) Withhold all recognition from EMPLOYEES COMMITTEE as
representative of any of our employees for the purposes of col-
lective bargaining unless and until the said organization shall
have been certified as such representative by the National Labor
Relations Board;
(b) Withhold all recognition from EMPLOYEES REPRESENTA-
TIVE ASSOCIATION INDEPENDENT UNION LOCAL No. 1 as repre-
sentative of any of our employees for the purposes of collective
bargaining unless and until the said organization shall have been
certified as such representative by the National Labor Relations
Act.
All our employees are free to become or remain members of the
unions named above, or of any other labor organization.
----------------------------------
( Employer)
By ----------------------------------
(Representative ) ( Title)
Dated ------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr. Leo J. Halloran, for the Board.
Mr. William F. Healey, of Derby, Conn ., for the respondents.
Messrs. John Porcu and Thomas J. Cooke, of Ansonia, Conn., for the C. I. O.
Mr. Harold Yudkin, of Derby, Conn ., for Employees Representative Association
Independent Union Local #1.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Ansonia Brass Workers Union, Local 445,
International Union of Mine, Mill and Smelter Workers (CIO), herein called
the CIO, the National Labor Relations Board, herein called the Board, by its
Regional Director for the First Region ( Boston, Massachusetts ), issued its com-
plaint dated May 27, 1946, against Paul H. Hershey and Mary J. R. Hershey,
co-partners , doing business as Hershey Metal Products Company, herein called
the respondents , alleging that the respondents had engaged in and were engaging
in unfair labor practices within the meaning of Section 8 ( 1), (2), and (3) and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, 49 Stat . 449, herein
called the Act. Copies of the complaint together with notice of hearing thereon
HERSHEY METAL PRODUCTS COMPANY 703
were duly served upon the respondents , the CIO, and Employees Representative
Association Independent Union, Local No. 1, herein called the Independent Union.
With respect to the unfair labor practices, the complaint as amended at the
hearing alleged in substance that the respondents: (1) by statements, inquiries
and threats of discharge , expressed disapproval of the CIO and discouraged mem-
bership therein ; (2) permitted certain employees to leave their work to circulate
a petition in the presence of supervisors, renouncing the CIO, and paid said
employees for the time so lost from their work; (3) by various acts initiated,
formed, and sponsored labor organizations known, successively, as the Employees
Committee and the Employees Representative Association Independent Union
Local No. 1; (4) on or about November 12, 1945, discharged Lester Helm, their
employee , and thereafter failed and refused to reinstate him, because of his CIO
membership and activities; and (5 ) by such acts interfered with, restrained, and
coerced their employees in the exercise of the rights guaranteed in Section 7 of
the Act.
The respondents duly filed their answer admitting the nature and interstate
character of their business and the discharge of Lester Helm, but denying all
allegations of unfair labor practices.
Pursuant to notice, a bearing was held at Derby, Connecticut, from June
10 to June 28, 1946, before the undersigned, Sidney Lindner, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the respondents, the
CIO, and the Independent Union were represented at, and participated in, the
hearing At the opening of the hearing a motion to intervene by counsel for
the Independent Union was granted without objection. The Independent Union
filed an answer to the complaint at the hearing denying that it was initiated,
formed and sponsored by the respondents . Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing on the
issues was afforded all parties. At the close of the hearing the undersigned
granted without objection a motion of counsel for the Board to conform the
pleadings to the proof. Oral argument in which counsel for the Board, the
respondents, and the Independent Union participated, was had before the under-
signed at the close of the hearing. Thereafter briefs were filed with the under-
signed by counsel for the Board, the respondents, and the Independent Union.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Paul H. Hershey and Mary J. R. Hershey, co-partners doing business under
the firm name and style of Hershey Metal Products Company, own and operate
plants at Ansonia and Derby, Connecticut, where they are engaged in the manu-
facture, sale, and distribution of screw machine products. The respondents'
annual purchases of raw materials consisting of brass, copper, and steel, are in
excess of $50,000, more than 25 percent of which is purchased and shipped to
the plants from points outside the State of Connecticut. Annually, the respond-
ents' sales of finished products amount to more than $100,000, more than 80
percent of which is shipped and transported from their Connecticut plants to
points outside the State of Connecticut. The respondents stipulated and the
undersigned finds that they are subject to the Board's jurisdiction.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Ansonia Brass Workers Union, Local 445, International Union of Mine, Mill
and Smelter Workers, affiliated with the Congress of Industrial Organizations,
and Employees Representative Association Independent Union Local No. 1, un-
affiliated, are labor organizations admitting to membership employees of the
respondents. Employees Committee, unaffiliated, was a labor organization ad-
mitting to membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES 1
A. The contract with the 010; events prior to 1946; Interfelenee, restraint, and
coercion
On August 21, 1941, the CIO and Hershey Metal Products Incorporated,'
entered into a collective bargaining contract which provided among other things
for the recognition of the CIO as exclusive representative for all the production
and maintenance employees. The contract was for 1 year, and from year to
year thereafter unless either party gave the other notice in writing 30 days
prior to any and all expiration dates, of their desire to alter or amend the
contract.
In July 1942, the CIO notified Hershey Metal Products Incorporated of its
desire to reopen negotiations on a possible renewal of the contract.' The parties
were unable to come to terms and under (late of September 2, 1042, they jointly
requested the appointment of a 3 man arbitration board to decide the issues of
wages, union security, check-off, and the establishment of a minimum wage.
The parties agreed to abide by the decision of the arbitrators as reviewed by the
National War Labor Board. In accordance with this request of the parties,
arbitrators were designated by the company, the CIO, and the War Labor Board.
The arbitrators met on October 26 and 27, 1942, and again on January 25,
1943. The arbitrators' findings which were issued on January 20, 1944, pro-
vided for minimum wages for learners, for a general increase of 5 cents per
hour for all other production and maintenance employees retroactive to August
21, 1942, and for union security and check-off. Thereafter respondents requested
the War Labor Board to order a further hearing, with the result that the findings
of the Board of Arbitrators were never put into effect 4
On May 25, 1943, a conference relative to employee vacations was held. Pres-
ent were Paul Hershey, William F Healey, the respondents' attorney, Tom Grady,
the respondents' then general superintendent, John J. Mankowski, International
1 The findings in this division of the report are made upon the undersigned ' s evaluation
of all of the evidence , due consideration having been given to the credibility of witnesses
and the weight of the evidence . While the record as a whole casts some doubt as to the
absolute accuracy of the testimony of a number of witnesses called by the Board, the
respondents, and the Independent Union , in the undersigned ' s judgment no purpose would
be served by an extensive discussion of credibility , since an obvious emotional intensity
has operated rather generally to color memory and to accentuate rationalization In some
instances , where especially sharp contradictions exist, conflicts in the evidence are dis-
cussed. On other matters , even where there is considerable variation in the evidence, the
findings are made without specifically detailing all the factors of credibility considered.
3 This was the name of the predecessor firm to the iespondents herein. The partnership
was organized in July 1942
3 John Porcu, International representative of the CIO, testified that he was not in office
in 1942 and for that reason could not state that the CIO had notified Hershey Metal Products
Incorporated to this effect . This finding is based on an exhibit introduced in evidence by
counsel for the Board.
4 The record does not indicate whether a further hearing in this matter was ever held.
HERSHEY METAL PRODUCTS COMPANY 705
Representative of the CIO, and a shop committee. As a result of this conference
the employees were granted vacation pay.
It appears that subsequent to May 1943, there was a lull in CIO activities at
the respondents' plant,' with the result that the employees became delinquent
in their dues payments to the CIO. In October 1943, the CIO sent a registered
letter to the respondents asking them to cooperate in the enforcement of the
maintenance-of-membership clause in the contract .No reply was received by
the C10, and according to Porcu, the CIO's International Representative, the
matter was not pressed because of the war.
Thereafter, and until May 1945, the CIO distributed leaflets at the respond-
ents' plant but it does not appear from the record that any collective bargaining
activities were engaged in with the respondents subsequent to May 1943. In
May 1945, a concerted effort was made by the CIO to reactivate its organization
at the respondents' plant.
On July 19, 1945, the CIO notified the respondents by registered mail of its
desire to open negotiations for a new contract ° This letter and registered
return receipt were returned to the CIO marked "Refused " On July 21, 1945,
the CIO telegraphed the respondents requesting a meeting to reopen contract
negotiations. The respondents did not reply.
At or about this time, Hershey, while walking through the plant, noticed that
Anthony Salerno, an employee in the Brown and Sharpe department, was
operating only two machines insead of five.' Hershey asked Salerno why he
did not tell "Porky"' lie was running only two machines. Hershey, according
to Salerno, whom the undersigned credits, then asked him if he had signed up
with the CIO, and also accused Salerno of starting the CIO in the plant.
Hershey then walked away from the machines with Salerno following, and
attempted to tell him that lie was not a CIO organizer. Hershey thereupon
pushed Salerno slightly on the shoulder telling him to go back to his machine.
James Coppola, a former employee of the respondents, testified credibly that
in the latter part of July 1945, while he was working at his machine, Hershey
asked him about a CIO meeting which had taken place several nights previous.
Hershey also inquired of Coppola how he liked Porky, and stated that he
understood that Coppola was signing up members for the CIO on the respond-
ents' time. When Coppola denied that he was engaged in this activity, Hershey
said that he knew differently, and warned Coppola that this practice was against
the respondents' rule.' As is found hereinafter, employees who were opposed to
the CIO were not only granted permission by Hershey to solicit in the plants
during working hours, but did so in the presence of the respondents' supervisors.
° Porcn testified that although individual members of the CIO came to the union office
with grievances, they were not successful in getting the whole committee together at one
time to discuss the grievances and did not present any to the respondents.
° No new contract had been entered into between the respondents and the CIO since the
signing of the original contract on August 21, 1941
4 Salerno was then active in the CIO campaign. He testified that the other three
machines were not set up and ready to operate.
8 Porcu, the International Representative of the CIO, was commonly referred to as
Porky
°In substance Hershey admitted this conversation with Coppola. Hershey testified that
he was told by Rivnyak that Coppola was signing up employees in the plant on the respond-
ents' time Hershey testified further that the respondents had a no-solicitation rule as it
applied to the respondents' time since 1941. Although no written notice of the rule was
ever posted, the foienien weie instructed to notify the employees of the existence of the
rule and according to Hershey, it was his belief that they did so. Coppola testified that
he had never heard of the no-solicitation rule.
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Assuming that the respondents did have a no-solicitation rule, the undersigned
finds that it was discriminatorily applied when Hershey warned Coppola to
desist from engaging in CIO activities on the respondents' time lest he lose his
job.
On September 7, 1945, the CIO filed a petition under Section 9 (e) of the
Act. According to Porcu, the parties in the presence of a Board Field Examiner
orally agreed on a consent election to be held on October 26, 1945. The election
was not held on that date and the parties proceeded to a formal hearing on
December 11, 1945.10 During the course of the hearing in the representation
ease, the evidence revealed that the corporate entity, Hershey Metal Products
Incorporated, had been dissolved as of July 1, 1942, and that since that date
Paul H. Hershey and Mary J. R. Hershey as co-partners were doing business
under the firm name, Hershey Metal Products Company.11 As a result of this
disclosure it was necessary to conduct a second hearing on March 7, 1946, at
which time Employees Representative Association, Independent Union, Local
No. 1, intervened in the proceeding. By order of the Board dated June 18, 1946,
the CIO was granted permission to withdraw its petition in the representation
proceeding.
The undersigned finds that by the statements and conduct of Paul H. Hershey
in questioning Salerno and Coppola concerning CIO activities and the dis-
criminatory application by Hershey of the respondents' no-solicitation rule, the
respondents have interfered with, restrained, and coerced their employees in the
exercise of the rights guaranteed in Section 7 of the Act.
B. Domination and interference with the administration of the Employees
Committee
1. Inception of Employees Committee ; meetings with the respondents
In the latter part of January 1946, the employees of the Brown and Sharpe
department requested Allan Raeburn, the respondents' superintendent, to get
Paul Hershey to meet with them to discuss an increase in wages. Raeburn
arranged the meeting which was held in the plant cafeteria during working
hours. After listening to the employees' demands, Hershey told them that he
was unable to grant a wage increase because it would be in violation of the
National Labor Relations Act.' During the discussion, one of the employees
asked Hershey's permission to circulate a petition among the employees in the
plant and Hershey answered, "I am not saying a word." Hershey also told
the gathering that he should not be conferring with them since the CIO was
then attempting to organize the plant, and any conference that he participated
in with the employees might be construed as an unfair labor practice.i3 The
meeting disbanded and the employees returned to their machines. They did
not suffer any loss of earnings as a result of their attendance at the meeting.
Within several days after the above-noted meeting, Hershey was told by Mary
O'Connell, his secretary, that a committee of employees wanted to meet with him.
The record is not clear as to the origin of or the precise manner in which the
10 Case No. 1-R-2661
11 The evidence reveals that Paul H. Hershey and Mary J R Hershey, the respondents
herein, were the majority stockholders and controlled Hershey Metal Products, In-
corporated.
12 Hershey was so advised by his attorney since at the time of this meeting, there was
pending before the Board the representation petition of the CIO.
13 This finding is based on the uncontradicted testimony of William McAlister, an
employee of the Brown and Sharpe department.
s
HERSHEY METAL PRODUCTS COMPANY 707
membership of the committee, hereinafter referred to as the Employees Committee,
was selected. The ecidence reveals that in several instances employees of differ-
ent departments were asked by Forest Blair and William Kusako, employees of
the Brown and Sharpe department, and co-chairmen of the Employees Committee,
to represent their departments;4 and in other instances the employees of the
department chose their representative. The Employees Committee was made up
of 18 employees,10 two of whom represented the Derby plant, and the remainder the
various departments of the Ansonia plant. In addition to the production and
maintenance employees of the Employees Committee, the office staff was repre-
sented by Mildred Green, the paymistress.'°
Hershey met with the Employees Committee, '7 as requested, (luring the morning
in the plant cafeteria and was told that they represented the employees.18 Kusako,
acting as spokesman for the Employees Committee, told Hershey that it was their
purpose to get increases for all of the employees. There was then a general
discussion, with questions to Hershey by the different committeemen. Hershey
took the same position with the Employees Committee that he had previously taken
with the employees of the Brown and Sharpe department.
Oa February 1, Hershey again met with the Employees Committee in the plant
cafeteria, during working hours. O'Connell was present to take notes only of
what Hershey said. In fact Hershey opened the meeting with the following
remarks : "The other day when we were down here, I said I should have had
O'Connell here to take notes of everything I said so that at some future date I
could look back and see what I did and did not say. This is why I brought her
down this morning. I don't want her to take notes on what anyone else has to say
unless I tell her to. I do want on record what I have to say to you people."
Among other things discussed at the February 1 meeting were : starting rates
for nicw employees ; increases in wages for all employees, bonus ; a shop union ;
and a petition that was being circulated in the plant by Employees Committee
members According to the record of Hershey's remarks made at the meeting, he
had the following to say with respect to a shop union :
Someone said something about a shop union. I am not in a position or will
not answer whether you should have this or not because as I said, and as I
think you all know, I have no right to be talking to you. I do not care
whether you people have the CIO, AF of L, Steel Workers, if you have no
union at all or if you have a shop union-that is your prerogative. Now
there may come a time, and I hope it does come in the near future, when
we can sit down and say what we think would be best for everyone concerned.
Have I answered your question-I talked but I have not said anything. You
14 Blair testified that he and Kusako spent several hours of each of 2 days in choosing
committeemen . When they left their machines at the Ansonia plant to go to the Derby
plant to select committeemen , they told their foreman , Whelan, where they were going.
Whelan did not say anything to them and they were paid for the time spent away from
their machines.
11 The committee is referred to in the record and in this report alternately as the
Employees Committee and the Committee of 18.
18 Green was in charge of preparing the respondents ' production and maintenance pay-
roll and of paying off employees. She had two assistants under her supervision. The
undersigned finds that Green was a supervisory employee.
17 This meeting took place the last part of January . Employee members of the Com-
mittee were notified of meetings by Blair who called the Derby plant on the respondents'
telephone after receiving Raeburn's permission , and told the Ansonia members by going
from department to department in the plant.
18 It appears from the record that Hershey accepted this statement and did not question
the right of the Employees Committee to represent the employees.
781902-48-vol. 76-4G
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
can only take inference of what we might be able to do but I will not give
you a direct answer nor can I on account of the NLRB. When we are in
a position where we can sit down and talk freely, then I will answer any
questions or do anything that the majority of our people feel is to be to the
best interest of the majority of our people.
* * * * * * *
The only summary I can give you on this is that I believe you and I can run
the job better than any outsider and I can run it. Now take out of that
what you want to. You asked me a question earlier in the meeting which
I said I would not answer.'0 You know what the conditions are here, you
know that we have decent toilets and decent this and that. * * * You are
better able to come to me about conditions than Jimmie Jones,20 who is not
acquainted with them. If you actually want to see them you can go in and
look at them because you are employed here and can go in and see for
yourself.
Prior to the February 1 meeting, Kusako and Blair, upon the request of the
Employees Committee, prepared a petition which bore the following heading :
To: Hershey Metal Products Co.
The undersigned, all employees of the Company, respectfully request that a
general increase be put into effect at once. We have noticed that practically
every other concern in Derby, Ansonia, and Shelton, has given their employees
a general increase. We also give you notice that we do not desire any
outside bargaining agencies, and especially the American Brass Workers
Union-Local 445 CIO of Ansonia, Connecticut, to act for us.
Kusako and Blair testified that they took the petition around the plants in
Derby and Ansonia and solicited the employees for their signatures.' They
showed the employees the heading on the petition set forth above, and told them
that the petition was to be used for the dual purpose of getting rid of the CIO and
getting a raise for the employees. These activities were carried on during work-
ing hours in both plants.
Fred German, an employee in the Gridley department, testified without contra-
diction that the employees of the Gridley and Brown and Sharpe departments
had a meeting in their department after their lunch hour, which lasted about a
half hour during which time their machines were shut down and Kusako talked
about the petition. The employees were told that the petition was to be used to
get them a raise in pay and to form a shop union. While the employees were
thus meeting, discussing, and signing the petition, the foreman of the Gridley
department, Frank Rivnyak, was in the department, but did not object to the
employees meeting at that time, nor did he say anything to them.
Anthony Kevalas, a set-up man in the Gridley department, and a witness for
the respondents, testified without contradiction that one evening after he had
punched out his time card, Kusako talked to him about signing the petition,
stating that it was for the purpose of forming an independent union of the
respondents' employees. Kevalas signed the petition several days later in his
department during working hours.
"According to the notes made of Hershey's remarks at the February 1 meeting, the
only question which he would not answer was the one relating to the shop union.
20 Hershey explained that by Jimmie Jones he meant any outsider.
21 Annamay Fogarty, an employee in the inspection department and a committee
member, also obtained a number of signatures on the petition from the employees in her
department.
HERSHEY METAL PRODUCTS COMPANY 709
George Piccolo, a key man in the buffing and polishing department 22 testified
without contradiction as a witness for the respondents that he had signed the
petition after Kusako told him that "it was for an independent union." The under-
signed credits the testimony of German, Kevalas, and Piccolo, and finds that before
they signed the petition they were told that one of the purposes it was to be used
for was to form an independent union 23
Kusako and Blair testified that they spent several hours on two successive days
soliciting employees' signatures to the petition and were paid for the time spent
away from their machines. On the first day, they did not ask anyone' s permission
to do this and their foreman, George Seaker, made no inquiry of them relative to
their absence from their machines. He (Seaker) however, was present in the
department and circulating around the machines when Kusako and Blair went to
the employees individually and asked them to sign the petition. On the second
day of this activity, Seaker was told by Kusako and Blair that they were going
around the plants to get more signatures on the petitions and he approved their
leaving the machines.
The office employees were also solicited by Kusako to sign the petition. O'Con-
nell testified that she and her assistant were called from their office into the
general office where in the presence of Arthur Al. Brown, Jr., the office manager,
the office staff was addressed by Kusako, after which they signed the petition.
As noted heretofore, the petition was one of the subjects of discussion at the
February 1 meeting. Hershey asked Kusako if he had started the petition, and
if he had the office staff signed up. When Hershey was told that all of the
employees had not yet signed the petition, he asked, "What's the matter with the
other 80 or 90 employees?" Hershey then suggested to Kusako that he get a com-
plete list of all of the employees from the office and "pick out the people who have
not signed." Subsequent to the meeting, Kusako conferred with Joseph Weller, the
then personnel manager, and obtained from him the names of the employees who
had not signed the petition. Thereafter Kusako asked these employees to sign
the petition 24
According to Hershey's admission, he had the following to say regarding the
petition when he again met with the Employees Committee on February 4: 25 "If
we did not fulfil what we have in mind, the CIO could come in, or any other body
could come in, at anytime the workers would want them to. Now, at the present
time, they [CIO] have a substantial majority, at least that is what they tell us
in Boston, and that is what this petition you are talking about is going to try and
counteract. Now, if it does not counteract it, they are still in. That would be my
thought." Hershey then told the Employees Committee that in November 1945,
the respondents "went through every step we could go through to delay an elec-
22 Piccolo resigned from the respondents ' employ in April 1946 , to go into his own
business
23 It was the contention of counsel for the Board that Kevalas , Piccolo, and John
Saukas, another signer of the petition , were supervisory employees . Although the record
reveals that Piccolo was a key man in his department and to that extent his foreman was
dependent on him to distribute and lay out work, and Kevalas and Saukas also assisted
their foreman to some degree , it will not support a finding that they were supervisory
employees as defined in the decisions , and the undersigned so finds
24 As heretofore found, Hershey in July 1945 warned Coppola that lie was violating the
respondents ' no-solicitation rule In view of the finding above, the undersigned finds
that the respondents discriminatorily applied their no-solicitation rule against the CIO
25 This meeting as well as the preceding and subsequent meetings between Hershel and
the Employees Committee were all held in the plant cafeteria , with the employees
being paid for all time spent at such meetings
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 29 . . ." but since January 1946, were anxious to have the election held, and
that the CIO was trying not to hold the election.
On February 9, the Employees Committee met with Hershey and the respond-
ents' attorney, William F. Healey, and presented the petition to Hershey. In
conformance with the promise made to the Employees Committee at their meeting
of February 1, the respondents made a photostatic copy of the petition which was
then given to Healey, who on the same day (February 9), sent the same to the
Boston Regional Office of the Board with an accompanying letter. In his letter
Healey stated that in his opinion a strike would take place in the plant, and re-
quested a Board representative to come to Ansonia to see what could be done to,
either expedite the election or speed matters in some way. On the same day the
Employees Committee sent the petition to the Boston Regional Office of the Board
with the following letter : 27
We, the undersigned Committee, representing 90% of the Hershey Metal
employees are desirous of cancelling the C. I O. applications for representing
us, and of starting our own independent union. We would urgently request
you to appear before us so we can present our case. The employees are in a
very agitated frame of mind and want immediate action
Enclosed please find signed petition.
[The names of Employees Committee members are signed to the letter.]
Kusako testified that the above letter was drawn up and signed by the Employees
Committee in the plant cafeteria.
On February 14, the Employees Committee in an "ultimatum" to the respond-
ents told Hershey that they were giving him 48 hours to grant a wage increase,
and that they were contemplating drastic measures and serious action if the in-
crease was not forthcoming
On February 16, when the Employees Committee met Hershey to receive his.
reply to the ultimatum, Healey was also present. The Employees Committee was
told that a notice would be posted in the plant before noon, and they so notified
f he employees? At or about noon, a notice was posted in the plant signed by
Hershey, notifying the employees of an average increase in wages of 162/3 percent
effective February 18.
In addition to the meetings of the Employees Committee and Hershey described
above, Hershey admitted that several meetings took place in his office with only
a few of the Employees Committee members present. It is also noted that on at
least one occasion the Employees Committee was granted the use of the plant
cafeteria during working hours, when they held a meeting without Hershey
being present.29
"Hershey had reference to the Board election to be held on the CIO's petition which
he refused to consent to in October 1945.
2' There was testimony that because of the distrust of Hershey and Healey by Employees
Committee members regarding the petition, they insisted that it be photostated so that
they could also send a copy to the Board. The photostating was done in the respondents'
plant.
28 This finding is based on the uncontradicted testimony of Stanley Civchta , a member
of the Employees Committee. Not only were the employees told of the notice to be posted
regarding the increase in wages, but according to the credible testimony of Annamay
Fogarty, an Employees Committee member representing the inspection department, at the
completion of all Employees Committee meetings with Hershey, the members of the
Committee reported to the employees of their departments exactly what had taken place-
at the meetings
29 This finding is based on the uncontradicted testimony of Fogarty which the under-
signed credits.
HERSHEY METAL PRODUCTS COMPANY 711
It is the contention of the respondents-that the Employees Committee was not
a labor organization as defined in the Act and that Hershey did not bargain
with the Committee, but rather conferred with it, tried to placate its members,
and did a lot of talking without saying anything. The Employees Committee
in exercising its functions as the representative of the employees in the respond,
ents' plant, in addition to conferring on wage demands, met with the respondents'
representative to discuss various grievances that had arisen30 Whether this
relationship is termed conferring with, dealing, requesting, or a form of co-
operation, the Employees Committee was able to present and adjust some em-
ployee grievances, make wage demands, and generally to serve employees in
a representative capacity, performing all the major functions of a labor organ-
ization. The evidence is conclusive that the Employees Committee was formed
and functioned for the purpose of "dealing with employer" within the meaning
of Section 2 (5) of the Act 31 The undersigned accordingly finds that the
Employees Committee was a labor organization within the meaning of the Act.
The evidence clearly establishes that the Employees Committee circulated its
anti-CIO, pro-shop union petitions, and generally carried on its organizing ac-
tivities, during working hours on the respondents' premises , with the respondents'
consent, and were paid by the respondents for the time thus spent; that Hershey
by meeting with the Committee on company premises during working hours, and
by remarks addressed to it during these meetings, encouraged its formation and
further organization ; that the Committee used without charge the respondents'
facilities such as telephones and meeting rooms ; that a general wage increase
was granted respondents' employees as a result of the activities of the Com-
mittee in their behalf ; and that one supervisory employee was a member of
the Committee.
In view of all of the foregoing facts and the record in its entirety, the under-
signed finds that the respondents dominated and interfered with the formation
and administration of the Employees Committee and contributed financial and
other support to it, thereby interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed them in Section 7 of the Act.
C. Inception and formation of Employees Representative Association,
Independent Union, Local No. 1
As heretofore found, the Employees Committee and Hershey discussed the
question of the formation of a "shop union" at their meeting of February 1.
While it is true that when this question was first broached, Hershey told the
Committee members that their union affiliation, or if they had a shop union
or no union at all was their prerogative, nevertheless, at a later juncture in
the meeting, while discussing another phase of the same question, he said,
"The only summary I can give you on this is that I believe you and I can
run the job better than any outsider and I can run it. Now take out of that
what you want to."
11 As heretofore found, among other things , they discussed starting rates for new
employees, incentive payments and bonus, an increase in wages for all employees, and a
shop union, all component parts of collective bargaining.
11 Section 2 ( 5) defines the term labor organization as "any organization of any kind
or any agency or employee representation committee or plan in which employees partici-
pate and which exists for the purpose in whole or in part of dealing with employers con-
cerning grievances , labor disputes , wages, rates of pay, hours of employment , or conditions
of work."
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kusako and Joseph Farley, a tool crib employee and a member of the Em-
ployees Committee, testified that the formation of an independent union at
some future date was discussed by the Employees Committee during the
course of its deliberations. Thereafter, when the employees were solicited to
sign the petition described in the prior section of this report, they were told!
that one of the purposes of the petition was the formation of an independent
union. Similarly, when the petition was forwarded to the Regional Office of
the Board, the Employees Committee advised the Board that representing 90
percent of the employees it was "desirous of cancelling the C I. O. applications
for representing us, and of starting our own independent union.""
Hershey testified that at a meeting just prior to February 16 between himself
and the Employees Committee, mention was made about forming an inside-
union and when it was stated that an attorney would be needed to take care
of the legal requirements involved, Hershey said, "All right, Bill Healey will
do that for you." 33
According to Salerno, after Hershey and Healey left the meeting of February
16 and prior to the time the notice of wage increase was posted by the respond-
ents, the members of the Employees Committee continued their meeting in the
plant cafeteria and came to the decision that they would organize an independent
union. Sam Homick, a Committee member, was authorized to look into the
question of hiring a lawyer and agreed to do so and advise the members ac-
cordingly. Salerno also testified that the fact that a notice of increase in wages
was posted on February 16 was not taken by the Employees Committee to mean
that their work was finished because they still had an independent union to
form. Kusako testified that having received an increase in wages, the Employees
Committee decided that it would enlarge into a union.
On the afternoon of February 16, Homick conferred with Harold B. Yudkin,
an attorney in the city of Derby, about forming an independent union.' 4
Homick told Yudkin that a mass meeting had been arranged for the night of
February 18 to form a union, and asked Yudkin to attend According to Yudkin,
he told Homick that he would not attend the mass meeting unless some definite
plans were made for it, and suggested a conference between the employee rep-
resentatives and himself on Sunday in order to decide how the Monday night
meeting should be run. Kusako and Blair were advised of the proposed Sunday
meeting with Yudkin and they in turn contacted the other members of the Em-
ployees Committee, requesting them to attend.
On Sunday, February 17, about 10 to 15 members of the Employees Committee
of 18 met Yudkin at his law office.'" According to Yudkin, lie interrogated the
assembled employees to ascertain if the independent union they proposed would
be company dominated, because it was not his intention to participate with
33 Anthony Salerno, an employee in the Brown and Sharpe department, and an Em-
ployees Committee member, testified that the formation of an independent union was
discussed by the Committee on several occasions, particularly before they signed the letter
of February 9 to the Board.
83 Although Hershey, in answer to a leading question, subsequently testified that his
offer of Healey ' s services to the Employees Committee might have been made during the
February 1 meeting, the undersigned credits his original testimony as set forth above It
is noted and will be discussed hereinafter that the offer of Healey' s services was not
accepted by the Employees Committee
14 Homick in addition to being employed by the respondents was a hheriff of the city
of Shelton , Connecticut . It was in the latter capacity that Homick had previously met
and performed services for Yudkin.
36 Because Yadkin 's office was too small to accommodate all of the people gathered there,
the meeting was moved to a Veterans of Foreign Wars meeting room in the next building.
HERSHEY METAL PRODUCTS COMPANY 713
any dominated labor organization. He testified further that although he was
told by the employees attending the meeting that they worked in different depart-
ments of the plant, he was not aware that an Employees Committee had been
in existence and had met with the respondents on different occasions. Yudkin
then read a constitution and by-laws of a labor organization 36 and the Employees
Committee members made suggestions and proposals for amending the consti-
tution that was being read, so that when it was formally adopted it would suit
the purposes of the organization that they were forming. A name for the
independent union was adopted. There was then a discussion regarding the
appointment of three business agents to be named, who were to work with
Yudkin in expediting arrangements with the Board for the recognition of the
proposed union as the bargaining agent of the respondents' employees. They also,
talked about inviting the respondents' office employees into the Independent
Union; about requesting a check-off in the event they were named bargaining
agent ; that no committees would be able to decide or vote on any matter binding
the Independent Union, and that such matters would have to be voted on by
the entire body at a regular meeting; and that no union officer could continue
in the same office for more than 3 consecutive years, to avoid having the Inde-
pendent Union become the tool of any one person for his selfish interests.
The following morning, the employees while at work in the plant were noti-
fied of the meeting to be held that night. Thus, Farley testified that when
employees came to the tool crib for a tool he told them of the meeting. Blair
testified that he spoke to employees in his department notifying them of the
meeting and told them to spread the word around. In a like manner, Kusako,
told a number of the employees of the meeting, and to be sure to be there. McAl-
lister testified that on Monday morning he learned that a meeting was to be held
that night. Although he could not state with any definiteness who told him of
the meeting, he said that word was all around his department. O'Connell
testified that the Employees Committee through Mildred Green invited the
office staff to attend the Monday night meeting 3Y
During the afternoon of February 18, while at work, Farley testified that he
received a telephone call from Hershey asking him to come to his (Hershey's)
office and to bring along Kusako and Blair. A discussion ensued about the
Sunday morning meeting with Yudkin, and the meeting of the employees to take
place that night Hershey, according to Farley, told them that they were
moving too fast in hiring a lawyer, and that he did not think they needed a
lawyer. The men replied that they needed a lawyer because Hershey had
retained Healey, whereupon Hershey said that Healey was retained "only for
the CIO," and "there was no sense in us having a lawyer in our dealings with
him." iS
36 Yudkin testified that after talking with Homick , he contacted Professor Fred Rodelt
of the Yale University Law School and through him obtained a copy of a labor union
constitution and by -laws which was used as a model at the Sunday meeting.
34 Yudkin testified that at the Sunday morning meeting he instructed the employees
present not to perform any acts for the proposed independent union on the respondents'
time or property He stated also that he was assured that the employees would be
notified of the Monday night meeting , as they were coming in at the gate in the morning,
again at the noon hour , and when they left work at night. Despite these instructions,
the undersigned is convinced and finds that the employees were notified of the Monday
night meeting by Employees Committee members on the respondents ' time and property.
38 There is some confusion in the testimony as to whether this conversation took place
on the afternoon of February 18, or on February 9, at the time that Healey sent a letter
to the Regional Office of the Board in Boston enclosing the employees ' petition heretofore
described . After consideration , the undersigned has concluded that it occurred on the
afternoon of February 18, as set forth above.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That same afternoon, O'Connell asked Hershey if the office staff should attend
the meeting. Hershey answered that he did not think they should, because the
office was not interested in the union. O'Connell pointed out that since they
were invited they ought to go, whereupon Hershey said it would be all right.
About 100 to 150 of the respondents' employees were in the American Legion
Memorial Hall at 8 p. in., the time set for the meeting to start. The meeting
was delayed temporarily however, while John Porcu and Thomas Cooke, Inter-
national Representatives of the CIO, who had attempted to address the meeting,
were ejected from the hall 30 The meeting was then formally opened by Kusako,
who was acting as temporary chairman. One of the first subjects on the order
of business was the retention of an attorney by the Independent Union Yudkin
addressed the meeting, pointing out among other things, reasons why it was
necessary for the Independent Union to retain counsel. Yudkin then withdrew
from the meeting while the question was openly discussed. The office staff,
according to Farley, participated rather actively in this discussion O'Connell
stated that she saw no reason for the Independent Union to hire a lawyer. When
it was brought to her attention that Hershey had retained Healey as his counsel,
she said that Hershey had retained Healey "only for the CIO," and would not
use him against the Independent Union 90 Green similiarly expressed herself.
A vote was taken and Yudkin was retained as counsel on a temporary basis.
Farley also testified that in the discussion on what benefits the Independent
Union could obtain, it was pointed out that a raise in wages had been obtained
by the employees and the Independent Union could get other benefits for them.
The question of dues was taken up, and the election of temporary officers was
conducted. Of the temporary officers elected, only Dorothy King, who was elected
temporary treasurer, had not previously been a member of the Employees Com-
mittee. Thus Farley, temporary president, Salerno, temporary vice-president,
and Lillian Bell, temporary corresponding secretary, were active members of
the Employees Committee. At the conclusion of the meeting, membership ap-
plications which had previously been mimeographed in Yudkin's office were
distributed to the employees.
The next morning O'Connell told Hershey what had transpired at the meeting,
and answered his questions regarding it.
Fred German, an employee in the Gridley department, testified creditably that
on the morning of February 19 a fellow employee, Klik, handed out Independent
Union membership applications to the employees in the department while they
were working at their machines. German was given one and was asked to
sign it. He returned the signed application to Klik the following day, paid him
the dues, and subsequently received a dues book from him. All of these activi-
ties took place during regular working hours"
During the week of February 18, two representatives of a Chicago manufac-
turer with whom the respondents did business were in the lespoudents' plant
to inspect materials42 Hershey testified that while talking to one of them,
39 Yudkin testified that he asked Porcu and Cooke to leave the hall voluntarily. When
they refused , lie explained , he put in a call for the police in order to prevent a possible
breach of the peace. They left the hall just as the police entered.
40 O'Connell in substance corroborated Farley ' s testimony in this regard . She testified
that she could not see why they needed a lawyer if they were going to have a shop union.
41 There is also evidence that Lillian Bell handed out Independent Union membership
applications to the employees in the press department on the respondents ' property but
during the lunch hour.
42 Hershey testified that it was either Tuesday , Wednesday , or Thursday of the week
of February 18 that these men were in his plants.
HERSHEY METAL PRODUCTS COMPANY 715
whose name he thought was Mole, he learned that Mole had formerly been su-
perintendent of a factory in Ohio which had dealings with both outside and in-
side unions, and since he (Hershey) knew that his employees were forming
an inside union, he called Farley and asked him to speak to Mole. Farley
testified that Hershey called him on the telephone while he was at work in
the tool crib and said that Mole had had labor difficulties in his plant similar
to those in the respondents' plant and requested Farley to go to the Derby plant
to see Mole and discuss the Independent Union's problems with him. According
to Farley, he told Hershey he did not see anything to gain in talking to Mole, and
that in any event he would not talk to him alone. Hershey told Farley to take
anyone along. Farley in the company of Salerno then went to the Derby plant
where they talked with Mole primarily about the fact that Hershey could not
see any reason for the retention of counsel by the Independent Union. Accord-
ing to Salerno, during the conversation Mole stated that his plant's problems
were straightened out by the formation of their own independent union. Upon
their return to the Ansonia plant, Farley and Salerno went to Hershey's office
and reported to him what had taken place. They were paid for the time spent
away from their work.
On February 19, Yudkin spoke with Healey on the telephone, and requested
that the respondents meet with a bargaining committee of the Independent
Union consisting of Yudkin, Farley, and Salerno, to discuss recognition of the
Independent Union as the exclusive bargaining representative of the respondents'
employees, stating that they represented a majority '
By letter dated February 21, Healey told Yudkin in effect, that since there were
claims by rival unions, Healey had advised the respondents not to deal with
either union until an election was held ; that under the circumstances, Hershey
would not meet with Yudkin and the committee to discuss wages, hours, or work-
ing conditions, and furthermore there would be no advantage in simply meeting
with the committee so that it could state that the Independent Union repre-
sented a majority of the employees, since such a meeting might be construed
by the CIO as a collective bargaining meeting.
The constitution and by-laws of the Independent Union were read and adopted
at its meeting held on Febiuary 25. These provided inter alia for an election
of permanent officers annually in April; membership qualifications limiting mem-
bership to non-supervisory employees of the respondents, excluding office work-
ers ; initiation fees and monthly dues ; and the appointment of a special committee
to investigate sponsorship of an Employees' Credit Union.
The permanent officers were elected at the April 4 meeting, Stanley Ciuchta,
a member of the Employees Committee, was elected president and Salerno was
elected vice-president. Thereafter, the Independent Union held monthly meet-
ings. All of the meetings of the Independent Union were held outside of the
respondents' plants.
On June 5, Yudkin by registered mail again requested the respondents for an
appointment to discuss collective bargaining by the Independent Union for its
members, and to redress existing grievances. This was followed up by a tele-
phone call to Hershey who refused to discuss the matter with Yudkin. Yudkin then
spoke with Healey regarding such a meeting. A meeting was arranged for June
8 in Healey's office, upon condition that they would not discuss any matters that
4i This oral request to Healey was followed up by a letter dated February 21, signed
by Farley and Salerno.
44 It appears from an exhibit in evidence that at the April 4 meeting, officers were elected
to fill the positions as noted above, and an executive committee was elected.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affected the respondents' employees. Healey, according to Yadkin, acquiesced to
meeting him and a grievance committee as a matter of courtesy to a brother
attorney.
On June 8, a meeting was held in Healey's office attended by Yudkin, a grievance
committee consisting of five employee members of the Independent Union,
Hershey, and Healey. According to Yudkin, four grievances were presented to
Healey, who noted them on a sheet of paper but did not make any promises for the
redress of the grievances, and the meeting ended. Hershey did not speak during
this meeting.
Concluding findings as to the Employees Representative Association, Independent
Union Local No. 1
While it is true that the Independent Union was formally adopted by the
:respondents' employees as a labor organization to represent them in matters of
collective bargaining at the meeting held on February 18, little significant distinc-
tion can be drawn from the facts herein, between the "laying of the keel" and the
"launching" of this organization. The undersigned believes that it is clear that
the Independent Union was initiated and sponsored by the Employees Committee
heretofore found to be a dominated labor organization. At the second meeting
between the Employees Committee and Hershey, the question regarding a "shop
union" was raised Even though Hershey did not answer the question thus raised
by the Employees Committee, in a forthright manner, it appears from Hershey's
remarks on the subject, particularly when he said, "I believe you and I can run
the job better than any outsider and I can run it" that the only reasonable infer-
ence that the Employees Committee could have drawn was that Hershey favored
an inside union. Thus inspired, and without interference by management, and
.as a matter of fact encouraged by Hershey, the Employees Committee circulated
a petition among the respondents' employees informing them that one of the
future uses of the petition was to form an independent union ' That such a use
was contemplated by the Employees Committee appears conclusive, as is evidenced
from its February 9 letter to the Board in which it enclosed the petition and
stated, "We the undersigned Committee, representing 90% of the Hershey Metal
employees are desirous . . . of starting our own independent union." The
Employees Committee members continued to discuss the formation of the Inde-
pendent Union among themselves and on February 16 resolved that it would
proceed with the formal and legal requirements of organization and contacted
Attorney Yudkin with that purpose in mind. When, on February 18, members
of the Employees Committee who had previously disseminated the results of the
meetings with Hershey to the employees, went through the plant during working
hours to solicit other employees to attend the organizational meeting of the
Independent Union to be held that night," the employees would reasonably
assume a substantial identity with the Employees Committee.
The respondents neither at this time, nor at any other time, took any steps to
disestablish or disavow the Employees Committee. It made no public announce-
ment whatsoever to its employees, generally to inform them of their freedom
in self-organizational matters and of the respondents' indifference in that regard,
thus failing to provide a cleavage between the two organizations. On the con-
96 It should be noted that the decision to hold an organizational meeting on the night of
February 18 was made by the Employees Committee on February 17, while meeting with
Yudkin, and until they reported for work on February 18 and passed the word around
the plant , the other employees were not aware that such a meeting was to be held
HERSHEY METAL PRODUCTS COMPANY 717
trary , the undersigned finds that the respondents ' failure to announce its
disavowal or abandonment of the Employees Committee, and their neutrality as
regards their employees ' organizational activities , especially when viewed in
the light of the sudden and immediate formation of the Independent Union under
the circumstances hereinabove outlined , confirmed the impression and belief
which would reasonably arise in the minds of the employees that the Independent
Union was merely a continuation of and a successor to the Employees Committee.
Both the Board and the Courts have frequently enunciated the principle that the
"effects of employer coercion , inherent in the establishment and maintenance of
a company -dominated organization , can be dispelled only by the recreation of
conditions in which genuinely free choice can be exercised . To this end it is
essential if an ostensibly new organization is set up, that there be `a complete
break between the two unions and a disestablishment of the objectional union'
and that the employees be `effectively and unmistakably informed of such
action.' s 46
About 10 members of the Independent Union testified , and a stipulation in lieu
of calling other members of the Independent Union was entered into, to the
effect that the Employees Committee did not influence them to join the In-
dependent Union ; that to their knowledge the respondents did not indicate
directly or indirectly that they would be better off with an Independent Union;
that they joined the Independent Union of their own free will and accord with-
out fear of any action being taken against them by the respondents and for
their mutual benefit; that to their knowledge the respondents did not initiate,
sponsor , or promote the formation of the Independent Union; and that to their
knowledge the respondents have never controlled , affected , dominated, or in-
fluenced any act or policy or internal affair of the Independent Union. This
evidence has been considered by the undersigned , and it is found that it does
not overcome the more positive testimony in the record that the Independent
Union is the successor to the Employees Committee , and that the respondents'
conduct with respect to both organizations removed from the employees ' selection
of the Independent Union the complete freedom of choice which the Act con-
templates . Moreover , such testimony by employees concerning the effect, or
lack of effect , of the respondents ' acts on them , aside from being generally un-
reliable because of the very nature of the circumstances involved, is not probative
of whether the respondents have actually engaged in the illegal conduct found
above and upon which the unfair labor practice findings herein are predicated.."
The undersigned finds that because of the circumstances preceding and at-
tending the formation of the Independent Union, related in detail above, the
respondents ' employees would reasonably conclude " that the company approved
40 Standard Oil Company v N L. R B, 138 F. (241) S85 (C C A 2) , N. L R. B v.
Southern Bell Telephone and Telegraph Co , 319 U S 50 , Sperry Gyroscope Co , Inc v.
N. L. R B, 129 F (2d) 922 (C C A 2) In Westinghouse Electric and Mfg Co. V
N. L R B, 112 F (2d) 657 (C C A 2) aff'd 312 U. S. 660, the Circuit Court of Appeals
said
The theory is that in cases such as this, where an unaffiliated union seems to
the employees at large to have evolved out of an earlier joint organization of employer
and employees, the Board may take it as datum, in the absence of satisfactory
evidence to the contrary, that the employees will suppose that the Company approves
the new, as it (lid the old, and that their choice is for that reason not as free as
the statute demands.
41 Western Cartridge Co. v. N. L. R. B, 134 F. (2d) 240 (C C A. 7), cert. denied
320 U. S. 746.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the new, as it did the old" organization and that their choice was "for that
reason not as free as the statute demands." 98
Counsel for the Board raised the contention that the meeting of .Lune 8, de-
scribed fully hereinabove, constituted recognition of the Independent Union as
the collective bargaining representative of the respondents' employees. As
noted heretofore, the respondents at all times refused the Independent Union's
demand that it be recognized as the exclusive collective bargaining representative
of its employees. Healey, prior to the June 8 meeting, told Yudkin that he would
not discuss any matters affecting the respondents' employees. At the June &
meeting, the grievance committee presented a number of grievances, but no dis-
cussion was had on them, nor was there the usual "give" and "take" common
to most bargaining conferences. The undersigned is not convinced that this
isolated meeting, at which the respondents merely listened to employees'
grievances, constituted recognition of the Independent Union as the exclusive
collective bargaining representative of its employees, and he so finds. The fact
that the Independent Union was not granted recognition by the respondents
and accordingly was unable to function as a bargaining agency is not inconsistent
with the undersigned's findings that the Independent Union was a continuation
of and successor to the company-dominated Employees Committee 48
D. The Employees Independent Association Credit Union, Inc.
The constitution and by-laws of the Independent Union adopted by the member-
ship at its February 25 meeting, provided that a special committee shall be
appointed to investigate the sponsorship of an employees' credit union. On March
17 seven employees of the respondents included among whom were Ciuchta, Farley,
and Bell, filed an application for license as a credit union with the Bank Commis-
sioner of the State of Connecticut, setting forth among other things that the name
of the proposed credit union was to be Employees Representative Association
Credit Union Inc. In addition, the application appeared to limit the proposed
field of membership for the credit union to all of the respondents' production and
maintenance employees who are members of the Independent Union, excluding all
office and clerical employees with authority to hire and discharge.0° On April 1
the Bank Commissioner approved the license. Shortly thereafter, Yudkin con-
tacted Healey on several occasions, endeavoring to obtain Healey's consent to have
the respondents deduct from employees' pay, on authorization by the employees,
moneys for the purchase of shares of stock in the credit union. Healey indicated
to Yudkin that he would advise the respondents not to allow such pay deductions
because in his opinion they were in violation of State law. Subsequently, however,
after Healey conducted an investigation into the matter, Healey told Yudkin that
if he obtained written authorizations from the employees, he (Healey) would
advise the respondents to make deductions for the credit union. During the
month of May 1946, Green, after receiving authorization from Arthur Brown, the
respondents' office manager, started making deductions from employees' pay upon
48 See footnote 46, supra.
4° See N. L R. B v. J. Freezer i Sons, Inc, 95 F. (2d) 840 (C. C. A 4), in which
the Court enforced the disestablishment of an organization although there was no evidence
accoi ding to the Court that it "has ever functioned as a bargaining agency."
60 A partial list of credit union members admitted into evidence over the objection of
counsel for the Board revealed that employees other than Independent Union members
had become members of the credit union.
HERSHEY METAL PRODUCTS COMPANY 719
written authorization, and turning over each week to the treasurer of the credit
union the money thus deducted.
The Board in its amended complaint alleges that these deductions by the
respondents were for the purpose of assisting the Independent Union in its organ-
ization and existence. The undersigned is of the opinion and finds that the
respondents did lend prestige and added strength to the Independent Union as a
result of its deductions for the purchase of credit union shares, thereby assisting
the Independent Union
E. The discriminatory discharge of Lester Helm
Lester Helm was an employee of the respondents from August 1943 until
November 12, 1945.
Helm was a machine operator in the Gridley department ; in addition for some-
time prior to his discharge, he did some grinding of tools and setting up of less
difficult jobs on the machines." Helm received 6 increases in pay during his period
of employment and prior to his discharge was earning $1.00 per hour plus bonus 52
In or about June or July 1945, Helm became a member of the CIO and attended
meetings. After V-J day, Helm's CIO activities increased, in that he solicited the
membership of employees and endeavored to get them to attend meetings. He
wore a CIO button while in the plan t.13
During October 1945, according to the uncontradicted testimony of Helm which
the undersigned credits, Rivnyak came over to his machine with a CIO leaflet
regarding the forthcoming Board election which was to be held if the parties
consented thereto," and after talking about the leaflet's contents stated that he
did not think the CIO had any chance.
On or about November 8, Helm after receiving permission from Rivnyak,65
attended a conference as one of three shop representatives for the CIO, in Healey's
office, to discuss the possibilities of holding a consent election. After returning
to the plant 65 Rivnyak came over to his machine and according to Helm, told him
that he (Rivnyak) was out to get him; that he should stay at the machines as-
61 Tool work and the setting up of machines was done by only a few men in the depart-
ment who had long experience. According to Frank Rivnyak, foreman of the Gridley
department, Helm was able to do some of this work for about the last year of his employ-
ment with the respondents
"Bonus payments were based on percentages of productivity of the machines operated
by the employees Helm consistently received his bonus and no evidence was offered
to show that he ever lost any bonus. According to Rivnyak, this was possible because
Helm was "doctoring" his machine time tickets Rivnyak testified further that he
warned Helm during the year 1945 against this practice, but despite the warning Helm
continued. Rivnyak reported this "doctoring" activity to Harold Haskell, the respondents'
assistant superintendent, who told Rlvnyak to reprimand Helm. Rivnyak stated that
other employees were also guilty of the same practice but the respondents offered no
evidence to prove Rivnyak's claim Helm denied ever doctoring his machine time tickets
and testified that when the particular job on the machine was completed, the machine
time ticket was placed on the foreman's desk, and not seen again by the operator.
Rivnyal{'s testimony in this regard is not credited, and the undersigned finds that Helm
earned his bonus consistently as a result of his good productivity
"In or about the end of October 1945, the CrO began a campaign for a 30-percent
wage increase and the button Helm wore bore the words "30 percent for the CIO "
54 As noted previously, the respondents did not agree to a consent election and went
to a hearing which was held in December 1945 and March 1946
55 Helm testified that he told Rivnyak that he had to attend a committee conference
in Hershey's office at 9 a. m. Because of Hershey's absence from the plant, the confer-
ence was held at Healey's office. Present in addition to Helm as shop representatives of
the Union were Kusako and Salerno, a Board Field Examiner, an International Representa-
tive of the CIO, and Healey.
Si The conference lasted about 1 hour from 10 to 11 a in.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed to him and that he would not receive any help; that if his job was not done
well and if he made any scrap he would lose his job, that if he was late or absent
he would lose his job; and that Rivnyak was not going to stab him in the back
but was giving him fair warning."
The following morning, November 9, Helm, before work, distributed CIO leaflets
in front of the plant. When Hershey drove into the plant he was handed a leaflet
by Helm. Rivnyak saw Helm distributing the leaflets as he drove into the plant,
On the morning of November 12, Helm upon approaching his machine to
go to work saw Rivnyak and Allen Raeburn, the plant superintendent, standing
there. According to Helm, when they saw him, they looked up at the clock,
separated, and walked away. That afternoon at about 4 p. in Rivnyak told
Helm that because of the lack of work, he would have to let him go. When Helm
remonstrated with Rivnyak, pointing out that there were men working there
who had less seniority than he, Rivnyak said it just had to be that way.58 Later
that week at a conference held in Healey's office to discuss Helms discharge, the
respondents in addition to the reason given Helm at the time of his discharge,
advanced as an additional reason that he was habitually late In February
1946, at a conference called by a Board Field Examiner who was investigating
the Helm discharge, the respondents in addition to the reasons given previously,
stated that Helm had been absent from his job.
At the hearing, the respondents, in addition to offering testimony to substan-
tiate the reasons set forth above for Helm's discharge, presented testimony
to the effect that he was intoxicated on the job.
It is clear from the record and the undersigned finds, that the respondents
knew of Helm's CIO activities. As found heretofore, the respondents engaged
in acts of interference, restraint, and coercion in violation of Section 8 (1) and
8 (2) of the Act. Under the circumstances, therefore, it is necessary to determine
whether the respondents discharged Helm because of his CIO activities or for
the reasons as set forth in the testimony they adduced at the hearing.
During the war years the respondents were engaged practically 100 percent in
production for the war effort In June 1945, as a result of cancellations of war
contracts, the respondents sent a letter to each employee calling attention to the
cancellations, and adi ising that if lay-offs became necessary in the future, the
respondents would make them in the order of seniority involved. It is apparent
67 Rivnyak categorically denied that he talked with Helm at all on the day he attended
the conference in Healey's Office. Rivnyak testified that about 3 months before this date
Helm had asked Anthony Kevalas, the head set-up man in the Gridley department, to help
him (Helm) set up a job on a machine he was operating. Kevalas, according to Rivnyak,
reported that the job was a simple one and since Kevalas had other rush jobs to finish,
Helm should work on his job by himself Helm then complained to Rivnyak that everybody
was trying to stab lain in the back. Rivnyak told Helm that "Nobody is trying to stab
you in back or in the front, you just have to feel better towards everybody You mis-
undeistand everybody." Rivnyak from his demeanor on the witness stand impressed the
undersigned as an unreliable and untrustworthy witness His overall testimony in the
main was marked by vague and unconvincing generalities which lie was unable to support
by detail; his memory was rather hazy in spots and he could not remember several
occurrences which happened only several months before the hearing, in a number of
respects his testimony was at variance with that of other respondents' witnesses. The
undersigned does not credit Rivnyak's denial and finds that the conversation took place
substantially as testified to by Helm.
i Rivnyak testified that he told Helm he was discharged for lack of work, lack of
interest, and latenesses As found above, Rivnyak was not a credible witness. It is also
noted that an exhibit in evidence prepared by the respondents sets forth as the reason,
for Helm's discharge "lack of work." The undersigned credits Helm's version of what
Rivnyak told him when he was discharged.
HERSHEY METAL PRODUCTS COMPANY 721
from the record that when Helm was discharged, at least three employees in the
Gridley department, with less seniority than Helm, were retained on their jobs.
With respect to the contention that there was a lack of work, the record reveals
that the respondents had a night shift consisting of three employees who were
engaged in Gridley department operations at about the time of Helm's discharge,
and continued this night shift regularly until May 1946 According to Hershey,
the only reason for discontinuing the night shift then was because the men were
producing too lnu2h scrap and the operation was unprofitable It is worthy of-
note that Wesley Ploss, one of the men laid off when the night shift was dis-
continue(], was recalled to work clays in the Gridley department a week later.59-
George Churma was transferred from another department to the Gridley de-
partment on November 26, 1945, to do the same type of work that Helm did.
The undersigned finds this contention without merit.
Helm admitted that his record of tardiness throughout his period of employ-
ment was bad.°° Helm testified without contradiction that the few minutes
tardiness in the morning was usually offset by his frequently working several
minutes after regular hours without compensation G1 He denied that he was,
ever reprimanded or warned that if his lateness record did not improve, it would
result in the loss of his job." Rivnyak testifying in contradiction to Helm's_
denial that he received warnings about tardiness, stated that almost every week
for 3 months before Helm's employment was terminated, he warned Helm about
being late. Helm's excuse, according to Rivnyak, was that he was unable to
purchase an alarm clock. Rivnyak testified further that he told Helm that since-
all of the other employees in the Gridley department came in on time, he could,
not see why Helm was unable to do the same thing. The undersigned does not
credit Rivnyak's testimony in this regard. As already indicated Rivnyak's-
testimony leas generally in conflict with other respondents' witnesses, and
unconvincing G3
Harold Haskell, assistant plant superintendent, testified that he remembered
talking to Helm on two occasions, regarding tardiness. The first time about
6 months previous to his discharge when he did not warn Helm but merely
called his tardiness record to his attention, and the second about a month previous
to his discharge at which time he told Helm that unless his record improved,
he could not be retained by the respondents.
Helm testifying in rebuttal stated that about a year and a half prior to his-
discharge, Haskell came into the Gridley department with a handful of time
cards and spoke to several of the employees. Haskell upon approaching Helm,
showed him his time card and after remarking that it was bad said, "Try to
come in a little earlier if you can." It is significant that Haskell spoke to Helm,
regarding only his tardiness, despite the fact that at the hearing he testified
11 floss was hired by the respondents in March 1946.
60 The record reveals that after his second week of employment and until the date of
discharge, Helm was late on the average of 4 times weekly
0In this respect it is also noted that if an eniploiee was late more than 1 minute,
he lost 15 minutes pay, and proportionately for every fraction of lateness over 15 minutes
i2 Helm testified that the nearest thing to a reprimand regarding his tardiness was
when Rivnyak shook his head at him and said, "What a guy, what a guy "
63 The fact is that a considerable number of the other employees in the department,
also had very poor lateness records which Rivnyak admitted under cross-examination
When it was called to Rivnyak's attention that employee Duane Young was late on 7G,
occasions from April 1 to November 12, 1945, Rivnyak stated that he always knew Young
was going to be late because he telephoned the plant and reported the same to Rivnyak
The undersigned credits Helm 's testimony that he was not warned regarding his tardiness,
by Rivnyak.
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he had seen Helm intoxicated on a number of occasions, normally a much
more grievous offense. It is also worthy of note that in spite of the alleged
warnings given Helm regarding his tardiness, Helm was retained by the re-
spondents after V-J Day, even though lie had less seniority than quite a number
of the several hundred employees whom the respondents released when it cut
its production and maintenance force. Haskell testified further that he spoke
to only one other employee of the Gridley department regarding tardiness al-
though as noted heretofore, a considerable number of the employees of the said
department, similarly to Helm, were guilty of tardiness The record reveals that
no employee other than Helm was ever discharged because of tardiness. The
undersigned does not credit Haskell's testimony that he warned Helm about the
possible loss of his job if he did not come in on time. Upon the entire record
and particularly since Helm was never warned that he would lose his job even
though he was tardy on the average of 4 times weekly during his period of
employment; other employees with bad tardiness records were neither dis-
charged nor otherwise disciplined ; and Helm's production was satisfactory
despite his latenesses, the undersigned is convinced and finds that the re-
spondents resorted to the defense of tardiness as an afterthought.
As noted previously, Helm's intoxication was raised for the first time at the
hearing. Thus Rivnyak testified that about 6 months prior to Helm's discharge,
he observed that Helirr was intoxicated while at work in the plant. Rivnyak
admitted that while it was not customary to allow an employee under the in-
fluence of liquor to operate machines, since it was not only possible that the
said employee might do serious bodily injury to himself but might also destroy
,or damage considerable amounts of valuable material, yet Rivnyak on this
occasion permitted Helm to remain on the plant premises and operate his ma-
chines 84 Haskell testified that he saw Helm in the Gridley department on
more than one occasion during the year 1945, when he had been drinking.'
Haskell did not do anything about this matter other than to discuss it with
Rivnyak.
Kevalas testified that he saw Helm come into the plant under the influence
of liquor on a number of occasions and reported these occurrences to Rivnyak.
,On these occasions Helm, according to Kevalas, did not continue operating his
machines but spent his time in the men's room with other employees who had
brought liquor into the plant, and were congregated there to drink it °6
Helm denied that he ever had been under the influence of liquor on the job.
He admitted that on a few occasions, he and some other employees worked on a
Saturday until noon, then left the plant, had a few drinks, returned to the
plant, changed their clothes, and went home. He testified that on these occa-
sions he did not think it was fair to himself to work and he reported to Rivnyak
that lie was going home.67
With respect to the contention that Helm displayed a lack of interest in his
work, the undersigned is of the opinion that much discussion on this subject is
64 Rivnyak testified that lie had another employee "keep his eye" on Helm.
"Haskell could not definitely state the number of times he had seen Helm in the plant
Under the influence of liquor , other than to state there were several occasions
66 As found heretofore , Helm never lost a bonus It seems hardly likely to the under-
signed that an employee who spent as much time drinking in the men's room , as Kevalas
claims Helm did, would consistently receive his bonus. The undersigned does not credit
Kevalas' testimony in this regard.
67 The testimony of Rivnyak , Haskell, and Kevalas regarding Helm's intoxication while
at work in the plant is conflicting and unconvincing The undersigned credits Helm's
testimony in this regard.
HERSHEY METAL PRODUCTS COMPANY 723
not warranted. Suffice it to say that it is the belief of the undersigned that
where an employee, as Helm, received six increases in pay over a two and a half
year period, consistently received his bonus, was retained when the production
and maintenance staff was cut even though he had less seniority than some em-
ployees who were terminated, and was praised by the plant superintendent for
his fine work on a particularly big and important job,' it can hardly be said
that such an employee lacked interest in his work. The undersigned finds this
contention without merit.
The respondents in their brief raise the contention that if Helm was discharged
for CIO activity, why were not Kusako, Salerno, and Coppola discharged? The
fact that other CIO members were not discriminatorily treated does not establish
absence of discrimination toward one CIO member.'
It is highly improbable that any employer would tolerate for the period of
Helm's employment an employee of the character described by the respondents'
witnesses ; it is equally improbable that an employee such as Helm would be
kept on a pay roll for two and a half years if his efficiency was impaired almost
daily because of tardiness, and if his insobriety on the job was known to the
respondents' supervisors. It is also worthy of note that in spite of the re-
spondents' advice to its employees in June 1945, that when lay-offs became neces-
sary they would be made in the order of seniority involved, Helm, who although
a CIO member had not at that time openly participated in its activities, was re-
tained after V-J Day even though he had less seniority than quite a number of
the several hundred employees who were released at that time; on the other
hand, in November 1945, after Helm had become the most active employee in
behalf of the CIO and wore his CIO button in the plant, the respondents again
cast aside their seniority policy, this time when they discharged Helm allegedly
because of lack of work, even though he had more seniority than at least three
other employees who were retained in the Gridley department. "While proof
of the presence of proper causes at the time of discharge may have relevancy
and circumstantial bearing upon what otherwise might appear as a discrimina-
tory discharge, such proof is not conclusive. The issue is whether such causes
in fact induced the °discharge or whether they are but a justification in
retrospect." 70
From the above and upon the record as a whole the undersigned is convinced
and finds that the respondents made "an obvious effort to construct a case against
Helm and to cover up the real reason for his discharge ""
The undersigned finds that Helm was in fact discharged because of his
activities on behalf of the CIO, and that the respondents by thus discharging
Helm, discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in the CIO, and interfering with, restraining, and
coercing their employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III, above, occurring in
connection with the operations of the respondents described in Section I, above,
68 ltaeburn, according to Helm's uncontradicted testimony which the undersigned credits,
praised his work on the job that the respondents did for the Bridgeport Brass Co
' See Matter of Montgomery Ward °C Co , Inc, 31 N L R B 780
70 Mattel of Kelly-Springfield Tire Company/, 6 N L R B 325, enf d 97 F (2d) 1007
(C C A 4)
"N L R B v Arcade-Sunshine Co, 118 F (2d) 49 (C A D C
781902-48-vol. 76-47
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair labor
practices affecting commerce, the undersigned will recommend that they cease
and desist therefrom and take certain affirmative action in order to effectuate
the policies of the Act.
It has been found that the respondents have dominated and interfered with
the formation and administration of, and contributed support to the Employees
Committee. Since the Employees Committee as such has ceased to function,
no order to disestablish it will be recommended ; but since this organization
has been continued and succeeded by the Independent Union, it will be rec-
ommended that in the event the Employees Committee should subsequently
resume functioning, the respondents refrain from recognizing it as the repre-
sentative of any of the respondents' employees for the purpose of dealing with
the respondents concerning grievances, labor disputes, wages, rates of pay, hours
of employment, and conditions of employment. The present and continuing
existence of the Independent Union operates to prevent the exercise by the
employees of their free choice of bargaining representatives guaranteed them
under the Act. Therefore in order to effectuate the policies of the Act, and to
free the employees from the effect of the respondents' unfair labor practices, it
will be recommended that the respondents withhold recognition from the Inde-
pendent Union as the representative of any of the respondents' employees for
the purpose of dealing with the respondents concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, and conditions of employment,
and completely disestablish it as such representative.
It has also been found that the respondents have discriminated in regard
to the hire and tenure of employment of Lester Helm. thereby discouraging
membership in the CIO. The undersigned will recommend that the respondents
offer Helm immediate and full reinstatement to his former or substantially
equivalent position,' without prejudice to his seniority and other rights and
privileges ; and that the respondents also make him whole for any loss of pay,
if any, which he suffered as a result of the discrimination against him, by pay-
ment to him of a sum of money equal to the amount which he normally would
have earned as wages from the date of his discharge to the date of the respond-
ents' offer of reinstatement, less his net earnings during such period."
The conduct engaged in by the respondents discloses a propensity and a
determination on the part of the respondents to engage in persistent efforts, but
not necessarily by the same method, to defeat self-organization by their employees.
72 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position " See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 N L. R B 827.
73 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working
elsewhere than for the respondents, which would not have been incurred but for his
unlawful discharge and the consequent necessity of his seeking employment elsewhere.
See Matter of Crossett Lumber Company, 8 N. L. R. B. 440 Monies received for work
performed upon Federal, State, county, municipal, or other work-relief projects shall be
considered as earnings See Republic Steel Corporation v. N L R. B., 311 U. S. 7.
HERSHEY METAL PRODUCTS COMPANY 725
Because of the respondents' unlawful conduct and their underlying purpose, the
undersigned is convinced that the unfair labor practices committed by the
respondents are related to other unfair labor practices proscribed, and that
danger of their commission in the future is to be anticipated from the respond-
ents' conduct in the past. The preventive purpose of the Act will be thwarted
unless the recommended order is coextensive with the threat. In order, there-
fore, to make effective the interdependent guarantees of Section 7, to prevent
a recurrence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the respondents cease and desist from in
any manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CoNcLUsIoNs of LAw
1. Ansonia Brass Workers Union, Local 445, International Union of Mine,
Mill and Smelter Workers, affiliated with the Congress of Industrial Organiza-
tions, and Employees Representative Association Independent Union Local No.
1, unaffiliated, are labor organizations, and Employees Committee was a labor
organization, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged in
and are engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
3. By dominating, interfering with, and contributing support to the formation
and administration of the Employees Committee and its successor, Employees
Representative Association Independent Union Local No. 1, the respondents have
engaged in and are engaging in unfair labor practices, within the meaning of Sec-
tion 8 (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Lester
Helm, thereby discouraging membership in a labor organization, the respondents
have engaged in and are engaging in unfair labor practices, within the meaning
of Section 8 (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondents,
Paul H. Hershey and Mary J. R. Hershey, individually and as co-partners, doing
business as Hershey Metal Products Company, their agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Employees Com-
mittee, or its successor, Employees Representative Association Independent Union
Local No. 1, or with the formation and administration of any other labor organiza-
tion, and from contributing support io Employees Committee or Employees
Representative Association Independent Union Local No. 1, or any other labor
organization ;
(b) Discouraging membership in Ansonia Brass Workers Union, Local 445,
International Union of Mine, Mill and Smelter Workers (CIO), or any other
labor organization of their employees, by discrimination in regard to hire or tenure
of employment or any term or condition of employment ;
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining or coercing their em-
ployees in the exercise of the rights to self-organization, to form labor organiza-
tions, to join or assist Ansonia Brass Workers Union, Local 445, International
Union of Mine, Mill and Smelter Workers (CIO), 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, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Withhold recognition from and completely disestablish Employees Repre-
sentative Association Independent Union Local No. 1 as the representative of
any of their employees for the purpose of dealing with the respondents concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or other
rights and privileges ; 74
(b) Offer to Lester Helm immediate and full reinstatement to his former or
substantially equivalent position without prejudice to his seniority or other
rights and privileges ; 74
(c) Make whole Lester Helm for any loss of pay he may have suffered by
reason of the discrimination against him by payment to him of a sum of money
equal to an amount determined in the manner set forth in the Section above
entitled "The remedy" ;
(d) Post at their plants at Ansonia and Derby, Connecticut, 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 First Region, shall,
after being duly signed by the respondents' representative, be posted by the
respondents immediately upon receipt thereof and maintained by them 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 respondents to insure that said notices are not altered, defaced, or covered
by any other materials;
(e) File with the Regional Director for the First Region on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the re-
ceipt of this Intermediate Report, the respondents notify said Regional Director
in writing that they will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondents to take
the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203 38 of
said Rules and Regulations, file with the Board, Rochambeau Building, Wash-
ington 25, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record or proceeding (including rulings, upon all motions or objections) as he
relies upon, together with the original and four copies of a brief in support
thereof ; and any party or counsel for the Board may, within the same period,
file an original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, the
74 See footnote 72, supra.
HERSHEY METAL PRODUCTS COMPANY 727
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. Proof
of service on the other parties of all papers filed with the Board shall be
promptly made as required by Section 203 65. As further provided in said Sec-
tion 203 39, should any party desire permission to argue orally before the Board,
request therefor must be made in writing to the Board within ten (10) days
from the date of service of the order transferring the case to the Board.
SIDNEY LINDNER,
Trial Examiner.
Dated November 22, 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 REPRESENTATIVE ASSOCIATION, INDE-
PENDENT UNION LOCAL No. 1, as the representative of any of our employees for
the purpose of dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employment, and we
will not recognize it or any successor thereto for any of the above purposes.
WE WILL. NOT dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it.
WE \ILI OFFER to the employees named below immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to
any seniority or other rights or privileges previously enjoyed, and make them
whole for any loss of pay suffered as a result of the discrimination.
Lester Helm
We will not in any manner interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist ANSONIA BRASS W'ORI{ERs UNION, LOCAL 445, INTERNATIONAL UNION OF
MINE, MILL AND SMELTER WORKERS (CIO), 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. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor organi-
zation. _
PAUL H. HERSHEY,
MARY J. R. HERSHEY,
d/b/a HERSHEY METAL PRODUCTS COMPANY,
Employer.
By -----------------------------------------------
(Representative ) ( Title)
Dated ------------------------
NOTE: Any sf the above-named employees presently serving in the armed forces
of the United States will be offered full reinstatement upon application in accord-
ance with the Selective Service Act after discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.