Hill Independent Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 22, 1943

50 N.L.R.B. 768 (N.L.R.B. 1943)

In the Matter of HILL INDEPENDENT MANUFACTURING CO. and INTER- NATIONAL METAL ENGRAVERS UNION MARKING DEVICE WORKERS, LOCAL 12, A. F. L. Case No. C-577.-Decided June 22,1943 DECISION AND ORDER On April 5,1943, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had not engaged in any unfair labor practices affecting commerce and recom- mending that the complaint be dismissed, as set forth in the copy of the Intermediate Report annexed hereto. Thereafter the Union filed ex- ceptions to the Intermediate Report, and-briefs were filed by the Union and the respondent. Oral argument was held before the Board in Washington, D. C., on May 27, 1943, in which the Union, the respond- ent, and the Independent participated.' The Board has considered the rulings of the Trial Examiner at the hearing, and finds that no preju- dicial error was committed. The rulings ara hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the additions noted below : , 1. The Trial Examiner has found that, by various alleged anti- union acts including the unilateral granting of a large-number of individual wage increases, the respondent did not engage in unfair labor practices between December 2, 1941, and November 24, 1942, al- though the Union then represented an unquestioned majority and was contractually recognized by the respondent. The Union excepts to this finding, on the ground that the respondent, by denying the Union an opportunity to discuss the individual increases before they were put into effect and by temporarily refusing to grant the second wage increase provided for in the contract because of the wage in- J i On May 29 , 1943, the Board received a letter from the Union 's counsel , setting forth an argument of law inadvertently omitted from oral argument , and advising the Board that copies of the letter were being sent to the other parties . On June 5, 1943 , the Board re- ceived a letter from respondent ' s counsel , acknowledging receipt of a copy of the Union's letter and stating that the respondent did not wish to present any answering argument. 50 N. L. R. B., No. 107. 768 k HILL INDEPENDENT MANUFACTURING CO. 769 creases theretofore granted, disregarded the Union' s status as the em- ployees' exclusive bargaining representative. While the respondent's conduct might constitute unfair labor practices under other circum- stances, here there is no evidence to show either that the Union pro- tested against such unilateral increases, or that it asked to be consulted before further individual increases were granted. Accordingly, we agree with and adopt the Trial Examiner's finding. 2. The Trial Examiner has found that the respondent' did not im- properly refuse to bargain with the Union on and after November 24, 1942, because a question concerning representation existed at that time. The Union excepts to this finding on the ground that by that date its contract with the respondent had been automatically renewed for an- other year, ending December 1, 1943. However, the contract had been opened up for renegotiation by mutual agreement of the parties, and the negotiations had not actually begun when the,Iiidependent's repre- sentation claim was made. Thus, there was no contractual stabilization of labor relations to bar the Independent's claim. Accordingly, we agree with and adopt the Trial Examiner's finding. 3. While the record does not show that the respondent has engaged in any unfair labor practices, it does show that the respondent is on notice of the existence of rival labor organizations claiming to repre- sent its employees. To avoid any possible future charge of unfair labor practices, it would be advisable for the respondent not-to bargain with either organization as the exclusive representative of its employees unless and until that organization is certified as such representative by the Board. ORDER Upon the basis of the foregoing findings of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board, hereby order's that the complaint against the respondent, Hill Independent Manufacturing Co., Philadelphia, Pennsylvania, be, and it hereby, is, dismissed. INTERMEDIATE REPORT Mr. Harry G. Carlson, for the Board. Mr Harry Shapiro, of Philadelphia, Pa. for the respondent.- Mr. Louis H. Wilderman, of Philadelphia, Pa., for the Union. Mr. James C. Duffy, of Philadelphia, Pa., for the Independent. STATEMENT OF THE CASE Upon a second amended charge duly filed January 23, 1943, by International Metal Engravers Union, Marking Device Workers, Local 12, A. F. L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fourth Region (Philadelphia, Pa.), issued its complaint dated January 23, 1943, against Hill Independent Manufacturing Co., 770 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2) and (5) and Section 2 (6) and (7) of the National Re- lations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, ac- companied by notice of hearing, were duly served upon the respondent, the Union, and Germantown Marking Devices, Machine Tool and Die Workers of Germantown, herein called the Independent. f With respect to the unfair labor practices the complaint alleged in substance that the respondent's employees, exclusive of office workers, persons in su- pervisory capacity, watchmen, engineers, and foremen who were not on 'December 2, 1941, members of the Union, constitute a,unit appropriate for the purpose of collective bargaining, 'that the respondent on or about December 2, 1941, entered into and executed a written agreement with the Union wherein it recognized the Union as the exclusive bargaining representative of its em- ployees in the appropriate unit hereinbefore described; that the respondent: '(1) since on or about November 14, 1942, dominated and interfered with the formation and administration of the Independent and contributed support thereto, by, among other things, permitting the posting upon the respondent's bulletin board of a notice calling for a meeting of the respondent's employees, shutting down its plant earlier than was customary for the purpose of en- couraging and persuading its employees to attend the said meeting; extending unlimited time and use of its premises during working hours to officials and agents of the Independent for the purpose of soliciting, permitting its super- intendent, foremen and supervisors to encourage and solicit its employees to become members of the Independent, and permitting the posting of notices on its bulletin board appealing to pits employees for approval- and support of the Independent in opposition to the Union; and (2) since on or about November 14, 1942, refused and continued to refuse to bargain collectively with the Union as the exclusive representative of the respondent's employees in the unit -hereinbefore described, concerning rates of pay, wages, hours of employment, and other conditions of employment. In its answer to the complaint, on February 16, 1943, the respondent admitted that it was engaged in commerce within the meaning of the Act, but denied that it had engaged in the unfair labor practices alleged. No answer was filed by the Independent. Pursuant to notice, a hearing was held from February 18 to 20, 1943, and from March 11 to 13, 1943, at Philadelphia, Pa., before Ralph A. Newman, the under- signed Trial Examiner duly designated by the Chief Trial Examiner. At the opening of the hearing theTrial Examiner granted a motion to intervene made by the Independent. The Board, the respondent, the Union and the Independent were represented-by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. During the hearing the Trial Examiner granted, over objections by counsel for the respondent, motions by counsel for the Board to amend the complaint so as to allege that the respond- ent's refusal to bargain commenced on December 2, 1941, the date of the execu- tion of the contract, and continued thereafter to the date of the issuance of the complaint, and that the respondent commencing on December 2, 1941, interfered with and dominated the formation and administration of the Independent by bar- gaining individually with its employees with respect to wage rates and condi- tions of employment, during the period of the contract with the Union, and in violation of the terms thereof, for the purpose of discouraging membership in the Union and encouraging its employees to organize in opposition to the Union. At the close of the hearing the Trial Examiner granted, without objection, a motion i HIII INDEPENDENT MANTJFAC'TURINGi CO. 771 by Board's counsel to conform the pleadings to the proof as to names grid dates. The parties were advised that they might argue orally before the Trial Examiner and might file briefs with the Trial Examiner. None of the parties argued orally. No briefs were filed. Upon the record thus made, and from his observation of the witnesses, the Trial Fixaminer, in addition to the above, makes the following : FINDINGS OF FAOP 1. THE BUSINESS OF THE RESPONDENT The respondent is a Pennsylvania corporation having its principal plant and place of business at Philadelphia, Pa. It is engaged in the manufacture, sale and distribution of marking devices and metal parts for bombs and aircraft, and other articles used in the national defense. During the 12-month period from January 1, 1942, to December 31, 1942, it sold and shipped approximately 100 percent of its finished products, valued at over $100,000, to points outside the Commonwealth of Pennsylvania. The respondent admits that it is engaged in commerce within, the meaning of the Act. - II. THE ORGANIZATIONS INVOLVED International Metal Epgravers Union, Marking Device Workers Local 12, A. F. L, and Germantown Marking Devices, Machine Tool and Die Workers Union of Germantown are labor organizations admitting to membership em- ployees of the respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES, A. The alleged refusal to bargain 1. The appropriate unit A contract between the Union and the respondent executed on December 2, 1941, covered all employees except "office workers, persons in supervisory ca- pacity, watchmen, engineers and foremen, who are not now members of the Union."' The constitution of the Independent provides that all employees are eligible for membership including working foremen, steam boiler firemen and watch- men, and, excepting office, employees and employees whose duties are essen- tially of, a supervisory or managerial character. All foremen are working- foremen, and all foremen who were employed by the respondent at the time of the hearing were members of the Union on December 2, 1941. On that date only two supervisory employees of. higher rank than foremen were em- ployed by the respondent, neither of whom became members of the Union. One of them, John Murphy, is deceased. The other,-Joseph Galvin, is assistant superintendent. The only supervisory employee besides Joseph Galvin, other than officers of the respondent, is Harry Smallman, superintendent, who was a foreman on December 2, 1941, but who did not join the,Union. The respondent employs three watchmen aid one engineer, who fires the boiler and attends to the boiler and steam pipes. The foremen physically arrange the adjust- ment of machines but do not operate them, spending the rest of the time in supervision. Six foremen were at the time of the hearing members of the Independent. All foremen work personally on occasion, and are considered eligible to join the Independent. By reason of the foregoing facts the Trial Examiner finds that all the em- 0 1 772 DECISIONS OF 'N'ATIONAL LABOR RELATIONS BOARD ployees of the respondent , including working foremen , but excluding office workers, supervisory employees other than working foremen, engineers and watchmen , constitute a unit appropriate for the purposes of collective bar- gaining and that such unit will insure lto employees of the respondent the full benefit of,their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act Since all foremen employed by the respondent are working foremen and since all persons who were at the time of the hearing employed by the respondent as foremen were members of the Union on December 2, 1941, the Union 's provisions concerning eligibility for, membership exactly coincide- with the unit hereinbefore found to be appro- priate. i 2. Alleged representation of a majority within the appropriate unit There are 138 employees of the respondent engaged in production.' The number was never higher than 143. It is not disputed that on December 2, 1941, the Union represented between 115 and 120 of such employees. By enter- ing on December 2, 1941, into a collective bargaining agreement with the Union, providing for a union shop, the respondent recognized it as the representative at that time of a majority of the employees within the appropriate unit At the hearing, counsel for the Board expressly rested the Board's case squarely upon the theory that the aforesaid agreement determines the question of majority representation, and refrained from offering other proof of representation by the Union of a majority of the employees in the appropriate unit On November 24, 1942 the Independent filed with the Board a petition for a certificate of repre- sentation, and exhibited signatures purporting to be those of 61 or 62 members. There were received in evidence at the hearing designations of the Independent as bargaining agent purporting to bear the signatures of 36 employees. The Trial Examiner finds that the Union represented, on December 2, 1941, a ma- jority of the employees within the appropriate unit • The evidence is insuffi- cient to support a finding that, absent any element of unfair labor practice on the part of the respondent since December 2, 1941, the Union represented at the time of the hearing a majority of the employees within the appropriate unit. 3. The early history of labor relations between the respondent and the Union In August, 1941 the Union was organized in the respondent's plant. Recog- nition was at first refused by the respondent, which questioned the authority of the Union to represent the employees. In September or October a strike was called, which lasted 11 weeks, during the course of which 4 or 5 working fore- men, who had participated in the strike, were admitted to the Union An agree- ment was entered into on December 2, 1941, and the employees resumed work. The agreement provided, among other things, for a union shop and for minimum hiring wages, but not for departmental or job rates of wages, and contained no express provision requiring the respondent to negotiate wage increases with the Union. It provided specifically however for two wage increases for all em- ployees covered by the.contract ; an immediate increase of 7 cents an hour-on returning to work, and an additional 2 cents an hour on June 2, 1942 The respondent declined to grant the 7-cent increase to,certain of the employees on the ground that the effect of the provision was nullified by an order of the Wage and Hour Administration requiring an increase in the wages of those employees Pursuant to arbitration procedure established in the contract, a compromise award was made, with which the respondent complied retroactively. In the meantime the-period fixed in the contract for the additional 2 cent increase had I The total number of the respondent 's employees is 144. HILL INDEPENDENT MANUFACTURING CO.'' 773' arrived. The respondent objected to the granting of that increase on the ground that it had been included in the former award. A further arbitration, this time before an arbitrator designated by the United States Conciliation Service re- sulted in an award in favor of the Union, with which award the i espondent com- plied, also retroactively. 4. The request and alleged refusal to bargain The contract entered into'was for a period of one year from December 2, 1941, and provided for its automatic renewal unless either party notified the other, at least 30 days prior to the expiration date, of desired changes. Under date of November 2, 1942, the Union notified the respondent by telegram that the Union desired changes in the contract, and that the desired changes would be set forth in detail in a proposal to be submitted. On November 3, the day fol- lowing, the respondent notified the Union by telegram that the respondent de- sired changes in the contract, which would be set forth in detail in a proposal to be submitted! It is to be noted that the respondent did not initiate the request for change. Since the contract terminated at midnight on December 1, the 30 day period for notification of desired changes expired on November 1' Siiice on that day neither party had notified the other of any desire to change the contract, in the absence of which notification the contract would, in accordance with its terms, automatically renew itself for another year, it is reasonable to infer, and the Trial Examiner finds, that the respondent was on November 1, 1942, willing that the contract be renewed, and was willing to thereby recognize the Union for another year as the bargaining representative of the employees. No statement of proposed changes was submitted by either party. Under date of November 29, 1942, the Union wrote the respondent from New York that a negotiating committee had been elected and requested a meeting at the Hotel Essex in Philadelphia at 11 a. in. on December 1. The respondent did not appear at the designated meeting place. Under date of December 7 it wrote the Union, referring to the filing by the Independent, on November 24, of a petition for certification; stating that the respondent had no objection to dealing with which- ever union represented the employees, and affirming that the respondent did not refuse to bargain but only wanted to know with whom it was legally required to do so. Since the Union never submitted a statement of proposed changes, as it had stated on November 2, in its first notification, that it would do, the respondent was obviously not required to bargain prior to November 24, when the,Inde- pendent' filed with the Board a petition for certification as the proper bargain- ing representative of the respondent's employees, implemented by a showing of at least 61 purported signatures of employees who at that time had designated the Independent as their bargaining agents The respondent was apprised of the filing of the petition by a notice posted by the Independent the same day on the plant bulletin board stating that the Independent was about to file a petition for an election and requesting the respondent not to execute any new Union contract The respondent's subsequent refusal, on December 7, 1942, to bargain with the Union was clearly justified by reason of the foregoing facts, unless the respondent was responsible for the defection in the Union's membership out of 2 No request was ever made orally by the Union that the respondent bargain over new terms 9 The respondent makes no point that the Union's, notification was late. 4 The Independent had been organized in the respondent's I plant a few days before No- vember 24 . 1942. The circumstances attending the organization of the Independent will be discussed in a following section of this report. The Board dismissed the petition on February 6, 1943, without prejudice. 536105-44-voI 50-50 ^. J - 774 DECISIONS O' 'NATIONAL, LABOR RELATION'S BOARD which arose the Independent 's representation of a substantial number • of the employees! ^ 5. The contentions of the parties The`Board contends that the respondent, by refusing to enter into negotiations with the Union for a new contract shortly prior to or immediately following December 2, 1942, the termination date of the contract, and also by granting unilateral wage increases since the contract was executed, has violated Section 8 (5) of the Act. The Board further contends that the respondent since De- cember 2, 1941, the date of the execution of the contract, has, through unfair labor practices, including domination and interference with the formation and ad- ministration of the Independent, precluded itself from placing in issue the right' of the Union to represent the employees in negotiations for a new contract. Im- plicit in the Board's position is the contention that any loss of majority repre- sentation by the Union is immaterial to the obligation of the respondent to rec- ognize the Union as the proper representative of the employees for the purpose of collective bargaining. Consistently' with its foregoing contentions, the Board has refrained from offering proof of majority representation at the time of the respondent's refusal to enter into negotiations. The res ondent ass rts th t it f l t b i itp e a s re argausa o n w h, the Union is justified both by the filing, on November 24, 1942, of the petition by the Independent for certification, and by the Independent's demand, supported by a showing of sub- stantial representation and of a substantial diminution in the membership of the Union, that the respondent recognize the Independent as the proper representative of the employees for the purpose of collective bargaining. The respondent denies that it has been guilty of any unfair labor practices as a result of which the Union may have lost, since December 2, 1941, the date of the execution of the contract, the majority which it then possessed. The `respondent asserts that on the con- trary the loss of membership by the union is due to resentment on the part of certain of the employees against practices of the Union itself, especially an increase in the initiation fee, and that the organization of the Independent was the result of a reaction on the part of•the members of the Union against those practices. 'i B. Alleged domination and interference 1. The increase in the Union's initiation fee At the Union's inception in August, 1941, its dues were $1.50 monthly and its initiation fee $500. 'On February 13, 1942, the initiation fee was raised, on vote of the members, to $15.00.° The latter charge was thereafter exacted from all new members 8 except two employees in the toolmaking department, in whose case the charge was remitted upon their threat to leave the respondent's employ unless this was done. Lennington Keller, an employee,' who came to work for the respondent in 8 The respondent placed in evidence 36 designations of the Independent as bargaining agent,.signed since November 19, 1942. 7 Throughout the hearing the old and new initiation fees were referred to as $5 00 and $15 00 respectively. The original fee included the first month's dues of $1 50 * It is rea- sonable, therefore, to infer that the raised initiation fee also included the first month's dues, and. the Trial Examiner so finds. The figures used by the witnesses throughout the hearing in referring to the old and new initiation fees, $5 00 and $15 00 respectively, will be used in this report. 8 Members transferring from other unions affiliated with the A. F. of L. were not required to pay the initiation fee ' I_ Keller is a set-up man. He has no supervisory, authority. i HILL INDEPENDENT MANUFACTURING CO. \ •775 August; 1942 , refused at first to pay the $1500 initiation fee because the tool- makers, members of a C. I. O. union; who were being paid more than he, had been excused from paying , and because he himself was then a dues paying mem- ber of a C. I. O . union. Dominick Lonzi, the Union's business agent, ' called on Keller at-the plant shortly thereafter and told him , as he was working at a machine, that he would have to pay the $15.00, to which Keller replied : "Why should I pay it, and why should people that are hired for forty cents an hour pay $15 if the toolmakers , who are the highest paid people in the place, don't have to pay it? That is not being union; that looks like you want the dough, nothing else." Keller finally agreed to pay the $15 .00 in installments , but said to Lonzi : "It is going to be the dearest $15 you ever collected." A number of other employees objected to the increased fee. John Galvin, an employee, whose testimony is credited , testified that a number of employees told him that they were dissatisfied . Hugh Delaney, another employee, heard members complain to the shop steward about the high initiation fee. At lunch on one occasion "the talk was", in Keller's words, that the older employees wanted another organization . Other employees told Keller that they were not. getting enough for their money. , Several employees expressed to Galvin , before the Union meeting of November 6, hereinafter discussed , dissatisfaction with having in Galvin's words , " to give the assessment to Mr. Lonzi for his wages." 10 Another ground of dissatisfaction was the Union ' s practice , adopted in Jan- uary, 1942 , of imposing a fine of 50 cents for unexcused absences from regular meetings. - Lonzi , the Union 's business agent, has received , except for a period of about 3 months during which his salary was raised to $1500 a week , a salary of $5.00 a week from the Union . 11 Much of the time which he spent at the plant on the occasions of his weekly visits was' devoted to collecting dues.12 At least one of his visits was made solely because the members were not paying tl eir dues. 2. The Union meeting of November 6, 1942 At a meeting of the Union on November 6, 1942, Galvin asked for a financial report of the International, to which part of the Union's dues was contributed. He also inquired how much salary Lonzi was getting. Lonzi then , stated, and repeated twice, that if the members did not want him as business agent, they could get someone else , to which Galvin replied that the members did not want Lonzi and did want a new business agent.13 Lonzi became indignant, left the ,rostrum and strode to where Galvin was sitting , and threatened to strike him. Lonzi then announced that he would call Galvin before the Executive Committee of the International and have him "thrown out." 14 10 Lonzi's proposed increase in salary was also discussed at the meeting of November 6 II Lonzi also is business agent of Sheet Metal Workers Local No. 194. Since February, 1943, he has had a full-time job, from 8 a in. to 4: 30 p in, in a local factory. 12 Lonzi could tell little of what he did during his weekly visits other than to collect dues. Since the arbitrations, he has never inquired in the plant concerning wage increases. He was uncertain who the Union's shop stewards were. 1 Keller, whose testimony is ci edited, stated that Galvin's words were : - "Get out, we think we will be better off without you." 14 The foregoing findings as to the discussion between Galvin and Lonzi are based on the testimony of Board witness James McNally, a union member, corroborated by Keller. Lonzi admitted that he had been "burned up" by Galvin's remark, but denied that he had threat- ened to strike him. McNally's and Keller's testimony of the incident is credited. The decision to call Galvin before the Executive Committee appears to have been Lonzi's own, as the minutes contain no record that any resolution to the foregoing effect was passed by the members present. The minutes contain, however, an entry that Galvin was to be called before the Executive Committee to answer charges. Martha, Raid, the Union see- 1 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In yiew of the union shop contract then in existence , the seriousness of the effect of possible expulsion from the Union, is manifest 15 After the meeting several of the employees told Galvin, in the tatter's words, "If you can't give your opinion,'we have no Union " Among those who had attended the meeting of the Union on November 6 were .Keller and Hugh Delaney." Keller, whose, testimony is credited in all respects, stated on the witness stand that he particularly resented Lonzi's action in threatening to bring Galvin before the Executive Committee because Galvin had taken Lonzi at his word and had asked him to "get out " On Saturday, November 14, 8 days after the Union meeting, Keller talked with Delaney and asked the latter if he thought they should let Galvin "take the rap for what everybody in the place practically has been kicking about." This was the first occasion on which Keller had talked to anyone about the definite step of forming a new union. Keller discussed the same subject with Galvin that same afternoon. Keller stated on the witness stand that Lonzi's action at the meeting was what clinched his determination to organize an opposition union. Following those discussions Keller and Delaney canvassed some 50Lor 60 of the employees who had been com- plaining that they were dissatisfied, as to whether they wanted a new union. Keller and Delaney then decided to hold a meeting to find out what union the employees wished. i 3. The employees' meeting of November 16; the organization meeting of the Independent on November 19. Following the canvass a meeting of the employees was called for November 16, at 5:30 p in. at a nearby church, pursuant to a notice posted on the plant bulletin boards that afternoon.17 The notice stated merely that a meeting of all the employees was to be held, without specifying the purpose. Keller presided at the meeting and read to those present the contract, which he criticized as not accomplishing anything substantial for the employees. He then asked for nominations for a new bargaining agent.18 A vote was taken upon ietiiy, whose testimony on this point is credited, admitted that that entry was made pur- suant to Lonzi 's direction to her to record that he was going to report Galvin to the Exec- utive Committee 18 The notice of a meeting called for November 23, posted by the Union when it learned of the proposed meeting of November 16, hereinafter discussed , after characterizing the latter meeting as "illegal" and in violation of the Union's contract with the respondent, stated that "If a member has a complaint relating to the conduct of the local union * * * or any proposal to improve the efficiency of the Union, lie or she has not only the right, but the duty to bring it to the attention of the others by discussing those problems at the regular membership meoting " This notice was posted shortly after the meeting at which Galvin had been threatened with expulsion , the consequence of which would have been the loss of his job , because of having stated his opinion that a different business agent than Lonzi should be appointed. "Keller had gone to the.meeting to find out, as he testified, where the money paid by the members was going. His statement, which is credited, is corroborated by the fact that he asked at the meeting how much was in the treasury. Keller also objected at the meeting to a 25 cent per capita assessment Lonzi, in Keller's words, "took everything personal." 17 The notice was written by Delaney in longhand in crayon, and was unsigned. The fact that it was so written negatives any implication that it might have been understood by the employees to have been a company notice ii After a nomination had been made that an independent union be foi med , Keller waited, and when no further nomination was forthcoming asked for nominations for another bar- gaining agent . One of those present praised the C . I 0 , whereupon Keller stated that he knew how good the C. I 0 was because he himself was a member , but added that since he occupied the chair he could not nominate any organization , and asked the speaker-to nominate the C. 1 O. % HILL INDEPENDENT MANUFACT'URING 'CO. 777 the bargaining agent desired, resulting in 10 votes for the C. I. O , 1 for the A. F. of L and 40 for an independent union.. 18 ballots were left blank. Keller testified that he had called the meeting for the purpose of organizing a C. I. O. local, and that it was only after the vote was taken that a decision was reached to organize an independent union; At another meeting 3 days later, on November 19, officers of the Independent were elected, consisting of Keller, president, Delaney, vice-president, John Galvin, financial secretary and Eleanor McKinley, an employee, recording secretary. After the meeting application blanks were prepared and circulated among the employees. By November 24, 1942, when the Independent filed its petition for certification, 61 or 62 of the employees'had signed designations of the Inde- pendent as their bargaining agent19 4. Incidents and circumstances claimed by the Board to constitute assistance of the Independent by the respondent The only credible evidence of assistance to the Independent by the respondent bore on the activity of two foremen, James Francis and Richard St. John. On November 24, 1942, soon after the organization of the Independent, Foreman Francis brought Keller and Delaney to James McNally, an employee, during working hours. Francis told McNally that Keller would like to talk,to him, and_ then walked away. Keller then solicited McNally's membership in the Independent. It is a reasonable inference that Francis knew the purpose of the interview, and the Trial Examiner so finds 20 The fact however that Francis was at the time a member of the Union must have neutralized any impression which might otherwise have been conveyed to McNally that Francis' favoring of the Independent reflected the attitude of the respondent. Foreman St. John attended one or two meetings of the Independent. He had, however, also attended, since becoming a foreman, at least one meeting of the Union, of which he was a member. His presence at the Independent meetings could not, therefore, have reasonably indicated to the employees that management preferred the Independent to the Union. There are seven working foremen in the respondent's plant. All were mem- bers of the Union, and six of them were members of the Independent. So far as the evidence discloses, only St. John attended meetings of either organization. Although the six foremen who joined the Independent attended the meeting of November 16, that meeting, as has been found, was not a meeting of the Inde- pendent but was a meeting of the employees to determine what rival organization, if any, was to be selected. All of the foremen have been carried on the member- ship rolls of the Union up to the date of the hearing a In the absence of any credible evidence of activity of higher supervisory officials of the respondent indicating hostility towards the Union or favoritism of the N 18 In support of its contention that the formation of the Independent was the result of dissatisfaction among the employees with the Union, the respondent elicited testimony from the Union's financial secretary to the effect that the Union's membership had dropped from between 115 and 120 members on December 2, 1941, when the contract was executed, to 81 in December, 1942, a year later, and that in February, 1943, 60 members had been delinquent in the payment of dues for from 2 to 6 months. The Trial' Examiner is not persuaded that, assuming the accuracy of the foregoing testimony, the falling off in enroll- ment or the delinquency in the payment of dues were necessarily the result of disapproval by the members of the Union of its practices The foregoing testimony, although uncon- tradicted, has therefore been disregarded by the Trial Examiner in reaching the conclusions set forth in this report. 20 McNally's testimony as to the foregoing incident was corroborated by William Baer, another employee, who was near by. Francis did not testify. 21 This finding is based on the testimony of Robert Nicholson , the Union's president. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Independent , the situation -is closely similar to that in Matter of Crown Petroleum Corporation,a where the Board said:,, "With the ranks of supervisory employees thus divided between the two higher officials refrained from interfering in theunions, the l respondent's ' er' representation dispute." The Trial Examiner finds that the activities of Foremen Francis and St. John did not lead the employees to reasonably believe that those supervisors expressed- theaattitude of management. 'I 5. Other alleged incidents claimed by the Board to have constituted interference with the Union and assistance to the Independent Testimony was offered to prove statements by Foreman St. John antagonistic to the Union . St. John's denials of those alleged statements are credited.' Other testimony was given designed to prove that Foreman Karl Hofknecht and Fore- lady Isabel Grady, and also Assistant Superintendent Joseph Galvin , knew of and took no steps to prevent Independent solicitation during working hours. There is a complete failure of proof of knowledge of such solicitations by any of those supervisors." _ Statements expressing preference for the Independent were also attributed to Assistant Superintendent Joseph Galvin , to Superintendent Harry Smallman and to Simon Donnelly, the respondent 's treasurer . John Sheridan , a Board witness, testified that Joseph Galvin had said to him early in January , 1943, in reference to a Union notice, "We don't like that stuff" and "There is likely to be trouble about that ." Galvin, who impressed the Trial Examiner as a truthful and conscientious witness, denied having made the statements . When Sheridan resumed the stand " he stated that he did not remember having so testified. Galvin 's denial of having made the alleged statements is credited." Conrad Woelfel , the International 's secretary , testified that on November 124, 1942, Galvin had said to him that after the second of the following month the Union would be "out" and that the respondent was recognizing the Independent. Woelfel also testified that Superintendent Smaliman, who was not present at 'that conversation , stated to him a few minutes later that the Union was "out" and that the respondent was going to deal with the Independent after December 2. Both Galvin and Smallman denied having made the statements attributed to them by Woelfel . Woelfel made inconsistent statements,in the course of his testimony , and on one occasion retracted a positive statement , which he had previously made. It is incredible that, Smaliman and Galvin would through coincidence have expressed within a few moments, each independently , the iden= tical sentiments , and in almost identical words. The identity of the statements attributed to both men by Woelfel creates grave doubt as to the utterance, of 22 24 N. L. R. B. 217. 22 One statement attributed to St. John, that "anything was better than the A. F. of L.," was not specifically called to his attention, and was not denied by him. The statement, even if, made, could hardly have added to the implication necessarily resulting from his having joined the Independent after he had joined the Union. The Trial Examiner is'not persuaded that the statement was made by St. John, in view of his denial of similar statements which were specifically brought to his attention. 24 The evidence shows , moreover , that Union slips and Independent applications were circulated simultaneously. Hugh Delaney, the union steward, had also handed out "delinquent" slips during working hours. 25 Sheridan stated that his purpose in resuming the stand was to clear up any errors in his former testimony. - 20 That the Union was formerly less concerned with the impression created by company encouragement is evidenced by the fact that Galvin had been asked to join the Union during the strike. HILL INDEPENDENT MANUFACTURING CO. 779 the statements by either. The statements attributed to them were moreover in direct variance with a notice of the respondent, then posted on the bulletin board which all three men were at the very moment examining , to the effect that the respondent would abide by the decision of the Board in the present proceeding. It is extremely improbable that under the existing circumstances responsible business men of sound judgment, as the Trial Examiner believes both super- visors to be, would have expressed to a Union organizer 2' at the period of the greatest intensity of rival activity of the two unions, statements of so extreme a nature'as those testified to by Woelfel. For the foregoing, reasons the latter's testimony is discredited and the Trial Examiner finds that neither Galvin nor Smallman made the statements attributed to them. Another alleged unfair labor practice is the granting by the respondent of many individual increases in wages, without notice to the Union, commencing within a few days after the signing of the contract and continuing up to within a week of the hearing. Between December 2, 1941 and November 2, 1942, the date of the Union's telegram requesting charges in the contract, 162, individual wage increases were granted. Seventeen individual wage increases were given between November 2 and November 24, when the respondent was notified by the Independent not to renew the contract with the Union. Five individual increases were granted between December 2, 1942 and the commencement of the hearing. When the respondent, pursuant to the arbitration awards previ- ously mentioned, put into effect the wage increases provided for in the contract, it also extended the increases to employees other than those whose wages had been directly involved in the disputes.28 The Board contends that the granting by the respondent of individual wage increases without prior notice to the Union or consultation with it, and the extension of the increases provided for in the contract to employees other than those involved in the arbitration, constituted interference with the Union. However, the respondent was never requested to consult with the Union con- cerning either the extension of the contract wage increases to other employees, or concerning wage increases in general„and the contract contained no provision requiring such'consultatiun. As to the extension of the contract wage increases to the other employees engaged in the same line of work, such extension, once the respondent had determined to comply with the awards in the case of the particular groups involved in the disputes, was the proper course for the respond- ent to take in the circumstances, and the Trial Examiner so finds. As to the other individual wage increases, there is no evidence whatever that the reason why the respondent refrained from consulting with the Union about them was for the purpose of impairing the Union's prestige, nor is there any evidence from which the inference could be drawn that such failure affected the Union's prestige among the employees It has already beten pointed out that since the arbitrations, Lonzi, the Union's business agent, never inquired concerning wage increases. The fact that'the Union's attorney conceded that the voluntary increases did not in themselves constitute an unfair labor practice, while not controlling, is significant of the Union's indifference to the fact that it was not consulted by the respondent. It is evident that the Union did not consider such increases to be a necessary 21 That Woelfel's attitude was known to both men to be extremely hostile is obvious from the fact that he had stated to both, earlier in the same day, that he was going to talk to anyone in the plant "whenever the hell he pleased." 28 No employee who was not a member of the Union was granted either of the last mentioned increases. The Union's attorney conceded at the hearing that the extension of the increases to others than those who had been represented by the Union in the arbi- tration proceedings was not in itself an unfair labor practice. ~f 80 DECISIONS OF NATIONAL, LABOR RELATION'S BOARD subject of negotiation. The Trial Examiner finds this contention of the Board to be without merit" As was said by the Board in Matter of Montgomery Ward & Co., Incorporated:" We do not attach importance to the fact that the respondent effected fur- ther wage increases after November 1, 1940, without consulting the Union. However significant this might have been in other circumstances, in this case the increases were put into effect pursuant to • normal management policy and with no purpose of by-passing the Union. . . . In these circumstances the respondent was under no duty to withhold normal action respecting wages pending -consultation with the Union. The granting of wage increases prior to November 2, 1942, the date of the first request to negotiate, was clearly not in itself an unfair labor practice, in the absence of any request for prior consultation and in view of the Union's long continued acquiescence in the granting of individual increases. That the contract itself contemplated the possibility of voluntary increases other than those therein provided, is evidenced by the express provision in Article 8. Section 2 that "New Employees hired after the signing of this agreement shall receive no less than a five cent (50) increase in their hourly wage after six (6) months of their employ- ment" (Underlining supplied ) The quoted provision would be meaningless unless it was contemplated that an increase of more than 5 cents might be vol- untarily granted by the respondent. The voluntary increases between November 2, 1942, the date of the request by the Union for changes in the contract, and up to November 24, when the Inde- i pendent filed its petition for certification, are likewise free from any illegal character since, as has already been found, the only negotiations into which the respondent was requested to enter were concerning the renewal provisions of the existing contract, which was not to expire until after November 24, namely on December 1. The wage increases after November 24, the date of the Independent's petition for certification, were similarly free from the character of unfair labor practices, unless the respondent had assisted the Independent to acquire by that date its substantial representation among the employees If the respondent had not assisted the Independent and was therefore justified in its refusal to bargain with the Union, it was under no obligation to await the Board's decision before putting into effect wage increases which may well have been necessary in order to secure or retain employees a Since the granting of the increases subsequently to November 24 was not in itself an unfair labor practice, consideration must,there- fore be directed, in determining the effect of those increases, to the question of "In Matter of Consolidated Aircraft Corporation, 47 N L 'R. B. 694, the contract specifically provided for consultation with the Union committeemen before putting into effect individual wage increases In even that situation the Board found that the uni- lateral action had not been taken for the purpose of undermining the authority or prestige of the Union or evading the respondent's obligation to recognize and deal with the Union. The Board therefore held that the increases, although constituting interference, under the circumstances, with the rights guaranteed in the Act, did not constitute a refusal to bar- gain collectively with the Union. ao 39 N L R B. 229, 241. In that case, although no contract with the Union was in existence at the time of the voluntary wage increases, the Union had been certified The case is to be contrasted with Matter of Aluminum. Ore Co, 39 N.' L. R. B. 1286, where individual increases were granted after a general wage increase by the contract union had been refused, and with Matter of Appalachian Power Gbmpany, 47 N. L. It. B. 821, where the respondent effected unilateral wage increases in a discriminatory manner between two of its plants, one of which was organized. 11 The same conclusion applies to various blanket increases,, to be paid after varying periods of service, granted by the respondent without consultation with the Union and to take effect commencing in February, 1943. - , HILL INDEPENDENT MANUFACTURING CO. , 781, whether the respondent's refusal to bargain was justified. The Board cannot however utilize those wage increases to support a finding of employer domination. Karl Stanch, an employee and a Board witness, testified that he heard Joseph Galvin say -to certain employees, at 'the time of the granting, at the close of the arbitration proceedings, of the 2-cent wage increase provided in the contract, "I - got you the 2 cents, and not the Union." Gavin testified that his only statement on the subject was a remark which he had made to four women employees who had come to him on one occasion and asked him whom they were to thank, for the raise. He testified that what lie said on that occasion was that it was a voluntary raise by the company and they could thank whomever they pleased. Stanch was unimpressive as a witness and obviously anxious to assist the Board's case.` The Trial Examiner finds that Galvin made the statement as he testified and not as testified to by Stanch _ The Board also contends that the respondent shut down certain departments early, on November 16, 1942, for the purpose of enabling the employees to attend the meeting on that day, which was called for 5: 30 p. m. Of the 38 employees who ordinarily worked later than 5: 30 p m., the hour of the meeting, during the work week ending November 18, 1942, 30 left the plant at or before 5: 30 p. m. and the remaining 8 within a few minutes thereafter. There is no evidence that the respondent directed or caused any of those employees to leave early on that day. The testimony of both St. John and Joseph Galvin, which is credited, was that the men told them that they were leaving early and that Superintendent Smallman, when consulted, advised that there was nothing to do but to let them go. The respondent moreover had no right to compel the employees to work later than the termination of the 8-hour shift, which ended at 4: 45 p. m. For the foregoing reasons the Trial Examiner finds that the respondent did not shut down any of its departments earlier than usual on November 16. The Board further contends that the respondent committed an unfair labor practice in permitting Independent notices to be posted on the plant bulletin boards during the term of the contract. Nothing in the contract forbade the posting of notices by any union or restricted the privilege to the A. F. of L. Union. The Trial Examiner finds this contention to be without merit. Another contention of the Board is that notices posted by the Independent were permitted to remain on the bulletin board after the respondent had directed on January 2, 1943, that no more union notices be posted by any organization .13 Although there is some testimony to the effect that a notice posted by the Inde- pendent remained on the bulletin board for "quite one time" after the order went into effect, such testimony is not credited, in view of the positive state- ment of-Sheridan, the Union's shop steward, who posted the last Union notice, that Galvin "did clean them all off." The Board also complains of the respondent's failure to transfer to a newly organized department, the drill press department, certain of the employees in the assembly department who had been laid off for one week in July or August 1942. The respondent contends that it was justified in hiring new employees for the i 12 Stanch at fist denied that Keller was a C I 0 member , although later admitting that he had heard Keller say at the meeting of November 16 that he was a member On one occasion in the course of his testimony he volunteered the misleading statement that on the night of the meeting of November 16 all had to leave early . The incident to which he referred is discussed in the following paragraph. as Assistant Superintendent Galvin testified that the rule was promulgated because Sheridan , the Union shop steward, had on November 24, 1942 , pasted on a notice with shellac , after a previous Union notice had been torn down, and that this had made a "mess ' on the board when it in turn had been torn off Sheridan admitted that Galvin had stated that reason to him on the particular occasion . There is no evidence connecting the respondent with the removals of the notices. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drill press department rather than transferring to it the assembly room workers who had been temporarily laid' off, on the ground that the old employees were getting from 45 to 50 cents an hour and new helpers could be'hired for the drill press department at 40 cents an hour. The respondent was clearly under no obliga- tion to pay more, in order to avert the lay-off than it would have' to,pay to new helpers.' In National Labor Relations Board -v: Sands Manufacturing Co 36 it was held by the Supreme Court that a refusal to transfer employees to avoid paying higher wages was not a refusal to bargain. The Trial Examiner accordingly finds that the respondent's refusal to trans- for older employees during the temporary lay-offs' was snot an unfair labor practice. Another alleged instances of unfair -labor practice by the respondent is its re-, fusal, on November 24, 1942, and thereafter, to permit Woelfel, the general secretary of the International Metal Engravers Union, who represented the Union, to discuss Union matters with groups of members at the plant at any time, even during the lunch period. The first denial of such a privilege oc- curred on that date, which was about a week before the contract expired. When the respondent's attitude was communicated to the Union, Woelfel was talk- ing with four of the employees during the lunch period. On that occasion Woelfel was told that he might not hold union "meetings" in the plant, but might only talk with the men individually, and that he might no longer- go through the plant unless accompanied by some foreman or company official. The only provision of the contract a6 on this point was to the effect that "the duly accredited representative of the Union carrying the proper credentials shall be allowed to visit the office of the plant for the purpose of adjusting such complaints or grievances as may arise during the term of this agreement. He shall be permitted to converse with the steward and if necessary shall be per- mitted to visit the plant of the company accompanied by a representative of the company." ' The rule imposed by the respondent was therefore strictly in accordance with the ' contract provision . There is no evidence that greater privileges were accorded to any other, bargaining agent. The Trial Examiner ' there- fore finds that the respondent 's refusal to permit Woelfel to hold conferences with groups of employees was not an unfair labor practice on its part. 6. Conclusions as to the alleged refusal to bargain and assistance to the Independent Although the fact that the Independent came into existence just before the' Union contract was about to expire might ordinarily arouse suspicion as to the possibility of participation by the respondent in its formation, the evidence is clear that the Independent was organized as the result of dissatisfaction -on the part of the employees at certain of the Union's practices, particularly the extent to which it had 'allowed Lonzi to dominate its affairs. The question of whether the respondent assisted in the formation of the Independent depends on the effect of foremen's membership therein and occasional activity on its .behalf. However, the fact that foremen also held membership in the Union neutralized any impression which the employees might otherwise have gained that the foremen who favored the Independent were expressing the views of management. Upon all the evidence it is clear, and the Trial Examiner finds, "A similar situation occurred during a temporary lay-o$ in the metal polishing depart- ment. as 306 U. S 332. 36 Article 7, Section 3. • HILL INDEPENDENT MANUFACTURING CO. 783 that the respondent has not assisted the independent or otherwise interfered with its formation or administration. It follows from the foregoing finding that the respondent has not violated Section 8 (5) of the Act. CoNerusIoNs of LAW 1. International Metal Engravers Union, Marking Device Workers, Local 12, A. F. of L. and Germantown Marking Devices, Machine Tool and Die Workers Union of Germantown are labor organizations within the meaning of Section 2 (5) of the Act. 2. The operations of the respondent occur in commerce within the meaning of Section 2 (6) of the Act. ` 3. The respondent has not dominated or interfered with the formation or ad- ministration of Germantown Marking Devices, Machine Tool and Die Workers Union of Germantown or contributed support to it within the meaning of Section, 8 (2) of the Act, as alleged in the complaint herein. 4. The respondent has not engaged in and is not engaging in unfair labor prac- tices, within the meaning of Section 8 (1) or (5) of the Act, as alleged in the 1, 1 complaint herein. RECOMMENDATION Upon the basis of the foregoing findings of fact and conclusions of law, the Trial Examiner recommends that the complaint be dismissed. As provided in Section 33 of Article II of the Rules and Regulations of.the National Labor Relations Board, series 2-as amended-any party may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with, the Board, Shoreham Building, Washington, 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. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. RALPH A. NEWMAN, Trial Examiner. Dated April 5, 1943. 0