Imperial Lighting Products Co.

National Labor Relations Board - Board Decisions

Jun 30, 1942

41 N.L.R.B. 1408 (N.L.R.B. 1942)

In the Matter Of IMPERIAL LIGHTING PRODUCTS COMPANY and UNITED
ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA, AFFILIATED
WITH THE C. I. O.
In the Matter Of IMPERIAL LIGHTING PRODUCTS COMPANY and UNITED
ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA, AFFILIATED
WITH THE C . I. O. and LOCAL UNION 1278, INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, PARTY TO THE CONTRACT
Cases Nos . C-1960 and C-2088, respectively.-Decided June 30, 1942
Jurisdiction : electrical lighting fixtures manufacturing industry.
Unfair Lzbor Practices:
In General: employer held responsible for the activities of an employee who em-
ployer transferred from a prior position of foreman in charge of night opera-
tions to different work on day operations without announcing to employees
at large that the transfer in any way affected his prior intimate identity with
the management.
Interference, Restraint, and Coeicwn: anti-union statements by supervisory em-
. ployees; unlawful assistance to favored organization
Company-dominated Union: committee of six employees named by employer
to act on behalf of employees.
Disci imination: discharge of two employees pursuant to closed-shop contract
with employer-assisted union
Remedial Orders : employer ordered to withhold recognition from employer-
assisted union until it is certified by the Board; employer ordered to withhold
recognition from defunct dominated organization; closed-shop contract with
employer-assisted organization abrogated; reinstatement and back pay
awarded employees discriminated against.
Mr. Harry Brownstein, for the Board. _
Mr.-Donald W. Ebbert and Mr. Charles C. Hewitt, of Pittsburgh,
Pa., for the respondent.
Mr. Lawson Wimberly, of Washington, D. C., for the I. B. E. W.,
and Mr.. A. R. Johnson, of Pittsburgh, Pa., for Local 1278 of the
I. B. E. W.
Mr. Robert C. Davis, of Pittsburgh, Pa., for the United.
Miss Marcia Hertzmnark, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Electrical, Radio
& Machine Workers of America, affiliated with the Congress of In-
41 N. L. R. B., No. 250.
1408
IMPERIAL LIGHTLNG PRODUCTS COMPANY 1409
dustrial Organizations, herein called the United, the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Sixth Region (Pittsburgh, Pennsylvania), issued its com-
plaint dated June 9, 1941, against Imperial Lighting Products Com-.
pany, 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) and (2) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by notice.
of ' hearing, were duly served upon the respondent, the United, and
the Committee of Six, herein called the Committee, a labor organiza -
tion alleged to have been .dominated, interfered with, and supported
by the-respondent. .
Concerning the unfair labor practices, the complaint alleged in sub.
stance (1) that from and after November 15, 1940, the respondent-
had interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7, of the Act by advising
its employees to withdraw from the United and cooperate with the
respondent in forming and administering the Committee; threatening,
employees with' loss of employment if they joined or remained mem-
bers' of the United and failed to support the Committee; and. by
other statements' and acts tending to discourage- membership in
the United and to encourage membership in the Committee; and (2)..,
that on, and' after. December,2, 1940, the respondent, had dominated
and interfered with the formation and- administration of- the Com-
mittee and had contributed financial and other support thereto. In
its answer to the complaint, the respondent denied that it had engaged
in the unfair labor practices alleged.
Pursuant to notice, a hearing was held' on June 23, 1941, at Greens-
burg, Pennsylvania, before Horace A. Ruckel, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board and the
respondent were represented by counsel and participated in the hear
ing. 'Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the issues was afforded
all parties. At the close of the Board's case, the Trial Examiner
reserved ruling on motions of the respondent to dismiss the 'com-
plaint for failure of proof. The motions were thereafter denied in
the Intermediate Report of the Trial Examiner. After the motions
were made, the Trial Examiner recessed the hearing from 3:50 p. in.
until 6 :30 p. in. to allow the respondent to proceed with its case. The
hearing reconvened at 6:30 p. in., but counsel for the respondent did
not appear. Accordingly, at•6:47 p. in., the Trial Examiner closed
the hearing. Thereafter, the Trial Examiner reopened the record
to allo'w' the respondent to enter' its 'objection' to the closing of the
453392 \42-vol 41---89
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-hearing. The Trial Examiner overruled the objection. His ruling
is hereby affirmed.- During the course of the hearing, the Trial
Examiner made rulings on other motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On August 23, 1941, the Trial Examiner filed his Intermediate
Report, copies of which were served upon the respondent, the United,
and the Committee. The Trial Examiner found that the respondent
had engaged in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
Act. He recommended that the respondent cease and desist there-
from and also withdraw recognition from and completely disestablish
the Committee as a representative of the employees for collective
bargaining purposes.
Thereafter, the 'respondent filed exceptions to the Intermediate'
Report and requested permission to argue orally before the Board.
Pursuant to notice, a hearing for the purpose of oral argument was
held on October 23, 1941, before the Board in Washington, D. C.'
The' respondent was represented by counsel and participated in the
argument. The Board has considered the exceptions of the respondent
and, insofar as they are inconsistent with the findings, conclusions,'
and order'set forth herein, finds them to be without merit.
During the course of the foregoing proceedings, further charges
were filed by the United against' the respondent. On November 19,
1941, acting pursuant to Article II, Section 36 (b), of National Labor
Relations Board Rules and Regulations-Series 2, as amended, the
Board issued an order reopening the record in Case No. C-1960, in
which the foregoing proceedings had been held, for the purpose of
conducting a further hearing, and consolidating that case with Case
No. VI-0-631 (herein numbered C-2088), in which the further charge
had been filed. On November 28, 1941, upon an amended charge
duly filed in Case No. VI-C-631, the Board, by the Acting Regional
Director for the Sixth Region, issued its complaint, alleging that the
respondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent,
the United, and Local Union 1278, International Brotherhood of
Electrical Workers, herein called the I. B. E. W.
Concerning the unfair labor practices, the complaint in Case No.
C-2088 alleged in substance (a) that from and after June 15, 1941,
' The respondent had full opportunity to, and did , present its evidence at the second
hearing, mentioned below.
IMPERIAL LIGHTING -PRODUCTS COMPANY - 1411
the 'respondent sponsored and assisted the I: B. E. W., and unlaw-
fully encouraged membership therein and discouraged membership in
the United by advising its employees -to withdraw or refrain from
membership in the United and to join the I. B. E. W.; by threatening
employees with loss of employment if they joined or remained mem-
bers of the United -and refused to join the I. B. E. W.; by stating
that it would cease to operate if the United organized its employees;
by authorizing and permitting the I. B. E. W. to solicit- members in
the plant during working hours, and by denying' such privilege
to the United; by declaring to employees that it preferred the
I: B. E. W. to the United; and by other acts and conduct tending
to discourage membership in the United and encourage membership
in the I. B. E. W.; (b) that the respondent entered into a closed-
shop contract with the I. B. E. W., which did not come within the-
proviso of Section 8 (3) of the Act and was void because of the
unlawful assistance rendered the I. B. E. W. and because, also, that
organization did not represent a majority of the employees' in an
appropriate unit at the time the contract was made; and (c) that
pursuant to said contract, the respondent discharged two employees,
Howard E. Watts and Thomas Reilly, because of their failure to
join the I. B. E. W. and to relinquish membership in the United.
On December 11, 1941, the respondent filed an answer denying that
it had engaged in the unfair labor practices alleged.
Pursuant to notice, a hearing in the consolidated cases was held
from December- 11 through 17, 1941, at Greensburg, Pennsylvania,
before Samuel Edes, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board, the respondent, the I. B. E. W.,
and the United were represented by counsel or by representatives,
and participated in the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. At the close of the hearing,
the Trial Examiner, without objection, granted a motion to conform
the pleadings- of the Board to the proof. The Trial Examiner re-
served decision on various motions by the respondent to dismiss the
complaints of the Board and by the I. B. E. W. to dismiss the
allegations of the complaint as to it. The motions are hereby denied.
During the course of the hearing the Trial Examiner made rulings
on other motions and on objections to the admission of evidence.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On February 9, 1942,' the Board issued an Order directing that,
pursuant to Article II, Section 36, of National Labor Relations
Board Rules and Regulations-Series 2, as amended, Case No.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VI-0-631 be transferred to and continued before the Board as Case,
No. C-2088; that no Intermediate Report be issued by the Trial Ex-
aminer in the further hearing; that, pursuant to Article II, Section,
37 (c) of said Rules and Regulations, Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order should be issued;
and that, pursuant to Article II, Section 37, of said Rules and Regu-
lations, the parties shall have the right to file exceptions and briefs
within 30 days and to request oral argument within 20 days from
the date of said proposed findings, conclusions, and order.
On March 13, 1942, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, copies of which
were duly' served upon all parties. Exceptions thereto were filed by-
the respondent and the I. B. E. W., and the I. B. E. W. filed a brief
in support of its exceptions., The respondent and the I. B. E. W.
also requested permission to argue orally before the Board.
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board in Washington, D. C., on May 28, 1942.'
The respondent and the I. B. E. W. were represented by counsel.
The Board has considered the exceptions-to the Proposed Findings
of Fact, Proposed Conclusions of Law, and Proposed Order and, in-
sofar as they are inconsistent with the findings, conclusions, and
order set forth'below; finds no merit in them.
Upon the entire record,in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Pennsylvania corporation, having its principal
office and place of business in Greensburg, Pennsylvania, is engaged
in the manufacture, assembly, and sale of electrical lighting fixtures.
The principal materials used by. the respondent in the course of its
operations consist of glass, wire, and electrical fixtures. During 1940
the respondent purchased over $400,000 worth of such materials for
use at its plant in Greensburg. Of this amount, approximately 50
percent by value was shipped to the plant by railway and other car-
riers from points outside the Commonwealth of Pennsylvania. In
the same period, the respondent assembled lighting fixtures of a value
in excess of $700,000, of which approximately 95 percent by value
was sold and shipped by the respondent to purchasers located outside
the Commonwealth of Pennsylvania.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America is a labor
organization affiliated, with the Congress of-Industrial Organizations,
admitting to membership employees of the respondent.
IMPERIAL LIGHTING PRODUCTS COMPANY 1413
The Committee of Six is an unaffiliated labor organization of the
respondent 's employees.
Local Union-1278, international Brotherhood of Electrical Workers
is a labor organization affiliated with the American Federation of
,Labor, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; domination; assistance;
discrimination
1. The period from November through December 1940; Case No.
C-1960 '
In November 1940 the United initiated an organizational drive
among the employees of the respondent. Application cards were dis-
tributed and a substantial number of employees joined. Although
the testimony is in-conflict as to the extent, if any, to which activity
on behalf of the United was conducted during working hours in the
plant, it is undisputed that the respondent had full knowledge of
the movement to organize the employees.
Shortly after the appearance of the United at the plant, Marion
Neilson, the plant superintendent, advised Donald Tourney, one of
the employees, according to Tourney's uncontradicted testimony,
which we credit, that he had had dealings with unions before and
that "they had never done anybody any good." In this period too,
as Donald Lambert, another employee, testified, several of the men
were invited into the office of P. D. Wilson, the respondent's president,
and told by Wilson that if a union were established at the plant it
would create a "wall" between the men and the management, but
that if the employees had to have a union he would prefer the
A. F. of L to the C. I. 0., since the installing electricians who pur-
chased lighting fixtures from the respondent' s customers were mem-
bers of the A. F. of L. and would not buy or install fixtures made by
C. I. 0. labor. Wilson testified that he spoke to three different
groups of employees, at about this time, each of which approached
-him on the subject of union organization. The first two groups
according to Wilson, told him that they did not want any organiza-
tion and were desirous of keeping the United out of the plant.
Wilson testified that he. advised the two groups that this was a
matter for the men to decide and that there was nothing he could do
about it. The third group contained some members who favored
organization . Wilson told them, according to his testimony, that the
business of the respondent would suffer if the plant were organized
under the C. I. 0., since the installing electricians in the industry
`1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were members of the A. -F. of •L. ; that the men -were free to join
any union they desired, but that he believed that they should have this
information because it was "vital" to their jobs. Wilson testified
further that Lambert *as present at one of these three group meet-
ings. It is not, however, clear from the record whether Lambert-'s
testimony had reference to any of these three meetings or to some
other meeting. In either event, we are satisfied with the substantial
accuraby of Lambert's testimony, and to the extent that it may be
viewed as being in material conflict with that of Wilson, we do not
credit Wilson's testimony.
On November 29 a meeting of the United was scheduled for the
purpose of electing temporary officers. That day, as employees
Tourney and Foreman testified, Neilson instructed Tourney during
working hours to get several of the employees together to meet with
Wilson, who was at his home ill. When Tourney, following instruc-
tions, had gathered four other employees for the proposed visit,
Neilson, without disclosing the purpose of the meeting, drove all five
to Wilson's home. There Wilson declared that activity, on behalf of
.the United was seriously interfering with production in, the plant,
and that if matters did not improve by the,following week, the re-
spondent would probably. have to discontinue operations. Further,
Wilson admittedly advised the men that if the plant were organized
by a union affiliated with the C. I. O. the respondent's-business would
be affected since it would be unable to sell its products in sections
of the country in which the A. F. of L. was the dominant labor organi-
zation. At the conclusion of the meeting with Wilson, Neilson drove
the men back to the plant where, at Neilson's suggestion, the night
shift, consisting of some 30 employees, was,assembled. Operations
were suspended for approximately 30-45 minutes during which period
Neilson and several. of the others who had been present related what
had occurred at Wilson's home, repeating the substance of Wilson's re-
marks. The five employees called to Wilson's home were paid for
the time so spent and for at least part of the time spent at the meet-
ing with the night-shift employees. -Neilson denied that he had sug-
gested the meeting with Wilson, testifying that the meeting was
held only after Tourney- had advised Neilson that some of the em-
ployees desired to talk with Wilson. Neilson denied that he sug-
gested assembling the employees or that he thereafter addressed them.
In all of the circumstances disclosed by the record, we do not credit
,the testimony of Neilson in this regard.
The following day, Saturday, November 30, Wilson appeared at
the plant after, as he testified, Neilson called him and told him that
the men were paying little' attention to their work, but were talking
and arguing, some of them being under the impression that those
IMPERIAL LIGHTING PRODUCTS COMPANY 141-5
who had been summoned to Wilson's home the day before had "sold
them out." Shortly after his arrival, Wilson gathered all of the
,employees together and, after reviewing what had occurred at his
home, told the men that the "disturbance" in the plant would have
to stop because it was disrupting production and that if it did not
the respondent would be unable to continue operations. Wilson, how-
,ever, did not confine his address to matters of production; he was
concerned, if not primarily, at least equally with the impending or-
ganization of the employees by the United. Although stating that
the employees could join any labor organization they desired without
fear of discrimination, it is not disputed that he pointed out further
that the United would "build a barrier" between the respondent and
its employees, that the United would demand a wage scale which the
respondent would be unable to meet without curtaining production
and personnel, that the C. I. O. would be of benefit only to itself
and not to the employees or to the respondent, and that, in all events,
the business of the respondent would suffer under the United because
the respondent would be unable to sell its products in areas where
the installing electricians were members of the A. F. of L. and
would not handle goods made by C. I. O. labor. Wilson then asked
for and received a "vote of confidence" from the employees on the
question of whether they "would be willing in the future to deal and
negotiate with him as they had in the past." When one of the em-
ployers then asked Wilson whether the men might continue with the
formation of a union, Wilson replied that the matter had already
been decided by the vote of confidence. The employees were paid
for the time spent at this meeting.
On Monday, December 2, 1940, Wilson again called a meeting of
the employees in the plant. This time, after referring to the vote of
confidence given him the preceding Saturday, Wilson told the men
that he.was especially pleased with the amount of production that
day and that in appreciation of their efforts he was putting into effect
an immediate wage increase. Wilson then announced the appoint-
ment of a Committee of Six, one from each of the departments in
the plant. The announced purpose of the Committee, as various of
the employees called both by the Board and the respondent testified,
was to meet and take up with Wilson matters relating to` wages,
hours, and grievances of all kinds in connection with working con-
ditions on behalf of the employees, in addition to ways and means
of improving production. Although the Committee purportedly was
formed to represent the employees in matters so vital-to their welfare,
Wilson never consulted with the workers prior to naming the mem-
bers of the Committee. After he announced their selection, Wilson
asked the men if they approved of his choice. The employees ex-
1416 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
pressed- neither approval nor disapproval. Wilson denied that he
appointed the Committee for any purpose' other than to discuss meth-
ods of improving production. We, do not credit the testimony of
Wilson' in this connection.
2. The period from July through September 1941: Case No. C-2088
On July 16, 1941, the United called a strike of , the respondent's
employees which effected a complete cessation of operations. During
the course of the strike, several of the employees who were opposed
to the United were instrumental in bringing the I. B. E. W. upon
the scene and in securing the signatures of a substantial number of
the workers to I. B. E. W. membership application cards. On July
23, the United presented the respondent with a demand for recognition,
.and on the following day the I. B. E. W. made a like demand. The
respondent rejected both demands.
The same . day 'that' the I. B. E. W. presented its demand for
recognition it also invited.the respondent to attend a "special open
meeting" of all the employees, scheduled to be held on Saturday, July
26, at the Central Hose House Auditorium in Greensburg. Wilson
attended the meeting with his attorney, Ebbert, because, as he testi-
fied; he believed he "definitely had an interest there." A substantial
number of the employees was present. Representatives of the United
and the I. B. E. W. spoke, as did various of the employees, address-
ing themselves to the relative merits of the rival organizations.
During the course of the discussion, Wilson was allowed to
take the platform and address the meeting over the protest of mem-
bers of the United, most of whom left because, as several of
them testified, they believed it inappropriate for their employer to
interject himself in the campaign between the competing unions.
Wilson told the employees who remained that, contrary to the claims
of organizers for the United, none of the installing electricians in
the industry belonged to any local of the C. I. 0., that the organizers
were unable to name any competitor of the respondent which had a
contract with the C. I. 0., and that more than 90 percent of the
respondent's competitors were under contract with the I. B. E. W.
To prove his point, Wilson then read various letters which he hat
received from his customers recounting the difficulty of selling the
respondent's products because they did not bear the I. B. E. W. label
which certified they were made by I. B. E. W. labor. Wilson then
advised the workers to "think it over" and left the letters at the
meeting for their inspection.
The respondent, on August 5, 1941, entered into an agreement foi
a consent election under Board auspices to determine whether the
United or the I. B. E.' W. represented a majority of the employees.
IMPERIAL LIGHTING PRODUCTS COMPANY 1417
One of the terms of the agreement was that "if either the United
or the L. B. E. W. receives a majority of the valid votes cast in^
said election , such labor organization will be recognized by the Com-
pany as the exclusive representative of all the employees . . . for the
purpose of collective bargaining . . ." The election results disclosed
that each of the organizations had received 46 votes, and the Acting
Regional Director accordingly advised the parties that no collective
bargaining representative had been selected.2
On August 7, immediately after the close of the balloting in the
election, the United called off its strike, and operations at the plant
were resumed. In the period that followed, the exponents of the
I. B. E. W. made full use of the respondent's time and property, to
extend its membership and to make 'inroads upon the ranks of the
United. The leading participants in this activity included Donald
McCarthy, J. H. Kunkle, Don Sillaman, Jack Wright, Daniel
Sprockett, Albert Little, Robert Kemmerer , and Victor Joseph. In-
dividually and in groups, all approached and engaged various of the
employees during working hours in an effort to induce them to join
the I. B. E. W. McCarthy, Sillaman,, Sprockett, Little, Kemmerer,
and Joseph in varying degrees, so admitted.
The activity on behalf of the I. B. E. W. became intensified on
and after August 13, when the I. B. E. W. circulated petitions in
the plant calling for the designation of the I. B. E. W. as sole
bargaining agent and the withdrawal of affiliation from any other
labor organization. Various, of the employees, including Hale John-
ston, William Altman, Howard Watts, and George Lute, testified that
they were solicited to sign the petitions during working hours and
that in this period they saw the proponents of the I. B. E. W. engage
in such activity throughout the plant in wholesale fashion. De-
scribing this activity, Johnston testified : "Sometimes they was in
groups and sometimes by themselves, but nearly ' every time you
turned around somebody would stick a card or paper in front of
you down there." Although several of the men charged with having
circulated the petitions during working hours sought to have it
appear that this activity was confined to rest and lunch periods, we
do not credit their testimony which in large part is contradictory.-
Thus, although Wright and Sillaman testified that the petitions were
circulated and signed during rest and lunch periods only, McCarthy
and Sprockett testified that the petitions were circulated in the plant
2 Counsel for the respondent and the I B 'E.t w. contended at the oral argument that
the I . B E. W. had been "counted out" in the election because of the rulings of the
Regional Director on objections to the Election Report. Although the election was held
pursuant to an agreement providing that the Regional Directoi's rulings should he conclu-
sive, we have carefully investigated the procedure followed at the election of August 7,
1941, and the conduct of the Board's agents in connection therewith, and find that there
is no merit in the contention of the respondent and the I. B E. W.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "employees solicited to sign during working. hours, although the
"actual" signing did not take place except, during' 'rest' and lunch
periods, •a; refinement having little significance in our view. Wore--
over, Joseph, after categorically denying that the petitions were
passed about during working hours, admitted that the, organizing
committee of the I. B. E . W. solicited members during working hours,
that' the "petition was circulated throughout the shop," and that on
one occasion he himself asked one of the employees to sign the peti-
tion while at work. We credit the testimony of Johnston, Altman,
Watts, and' Lute.
The respondent knew of the activity on behalf of the I. B. E. W.
in this period. Although Wilson, Neilson, and Lovera, a "follow-up
man" having authority to recommend the discipline and dismissal of
employees," testified that they had no knowledge of the I. B. E. W.
activity, they admitted that it became necessary to initiate a no-talk-
ing rule in the plant for the very reason that the men were not
attending to their work. Moreover, it scarcely seems credible that
the respondent's officials and supervisory employees should not have
known of the union activity which was being carried on. Not only
did various of the employees called by the Board testify that Neilson
and Lovera were in a'position to. and did in fact observe the solicita-
tion on behalf of the I. B. E. W., but McCarthy, a. witness called by
the respondent, admitted that "it was no secret that there was union
activity going on within the shop," and Lovera plainly indicated, if
perhaps inadvertently, that he knew that, the activity in the plant
concerned unions when he testified that after the strike the "groups
did not feel like working and all they wanted to do was talk union."
Moreover, since the no-talking rule was only directed against activity
by the employees which did not concern their work, it was necessary,
as Lovera testified, "to find out what they were talking about and
make them quit."
The respondent was responsible for direct participation in the cam-
paign on behalf of the I. B. E. W. by reason of the important part
therein played by Victor Joseph. Joseph admittedly was active in
soliciting employees to join the I. B. E. W. and in procuring their
s Although there was some attempt by the respondent to show that Lovera was not a
supervisory employee , Lovera admittedly was Neilson 's chief assistant , and on December
1, 1941 , was made assistant superintendent As "follow-up man," Lovera was responsi-
ble only to Neilson and , under instructions from Neilson, followed the progress of work
in the various departments to see that the production' needs of the respondent were
met. As he, himself, put it, he was authorized to "watch production and . . . to tell
the fellows what to do and when to do it." While attempting at one point to have it
appear that he had no recommendatory power with respect to discipline and discharge,
Lovera thereafter conceded the correctness of the testimony of Wilson and Neilson in
this regard . Lovera admitted that he was in charge of the plant in Neilson 's absence.
The employees , moreover , regarded Lovera as their superior and as a representative of
the respondent . We find that Lovera was a ranking supervisory employee of the re-
spondent and that the conduct of Lovera was fully attributable to the respondent.
IMPERIAI; =LIGHTING PRODUCTS COMPANY 1419
signatures to one- of the petitions. According to his own testimony,
Joseph "talked to at least 50" employees during and outside of working
hours in an effort to win them over to the I. B. E. W.; he spoke to
some of the employees "maybe five or six times a day." In this
period, Joseph occupied, a position of authority in the respondent's
supervisory hierarchy: It is undisputed that for a considerable period
prior to July 1, 1941, Joseph had been foreman of the night shift,
in full.charge of night operations and with authority to discharge the
employees working under him, and that on December 1, 1941, Joseph
was made assistant superintendent of the plant. However, the re-
spondent at the hearing disavowed responsibility for Joseph's activity
on the ground that in the period in which it occurred the night shift
had been discontinued and Joseph had been demoted to the position
of bench boss with no greater authority than the five other bench
bosses in the plant, each of whom worked on an assembly bench with
from 5 to 8 other employees and was eligible for membership in both
the United and the I. B. E. W. Joseph's position in the plant,
however, may not be viewed in terms which are applicable alone to
the other bench bosses. By reason of his prior position as foreman
in complete charge of night operations, Joseph occupied a special
and superior status. The respondent at no time undertook to an-
nounce to the employees at large that the shift of Joseph from night
to day operations in any way affected his prior intimate identity with
the management, although there was testimony that during the strike
a committee of the United was told by Neilson that Joseph was not
a supervisory employee. In these circumstances, it would be normal
to expect that the employees should continue to view Joseph as a
representative of the,respondent. In fact, the record discloses that-
many of the employees did so regard Joseph in this entire period.
We find that the participation of 'Joseph in the efforts to establish
the I. B. E. W. over the United in the plant is attributable to the
respondent.4
Consistently with the position of the respondent repeatedly an-
nounced prior to the election, Wilson and Lovera, in the period im-
mediately following the election, continued to let it be known that-
the management favored the I. B. E. W. over the United, and that
it would be to the interest of the employees to capitulate to the re-
spondent's wishes in choosing representatives for collective bargain-
ing. Thus, on one occasion, Wilson, in a voice admittedly loud
enough for other employees working in the plant to hear, told Watts,
' Cf. Matter of Merit Clothing Company and Amalgamated Clothing Workers of Ame, aca,
Western District, affiliated with the C I. O , 30 N . L R. B. 1201 ; and International
Association of Machinists v. National Labor Relations Board, 311 U. S. 72, affirming 110
F. (2d) 29, and enf 'g Matter of The Serrick Corporation and International Union, United
Automobile Workers of America, Local No. 459, 8 N. L. R B. 621, rehearing denied, 311
U. S. 729.
l
1420 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
according to the undenied testimony of Watts, that he did- not intend:
to discriminate against those who had engaged iri-picketing during
the strike, but that he would never recognize the United, that he
could not do business under a contract with a C. I. O. organization,
and.that,he would liquidate before attempting to do so. In frequent
conversations with Jerry Altman, admittedly known to Wilson as
leader of the United forces, Wilson, according to Altman's testimony,
which Wilson did not deny, repeated that he would not be able to
sell products made by C. I. O. labor, that he could not and would
not even attempt to operate under a contract with the United, and
that if the United were successful the men would lose their jobs,
because the respondent thereafter would remain in business only long
enough to liquidate. William Altman testified that Wilson' made
similar statements to him, and that on one occasion when Altman
asked Wilson if the latter would give him a letter of recommendation
Wilson replied that if Altman would "wise up and go along with
the rest of the boys" to make the I. B. E. W. a good union he would
not need to leave the respondent's employ. Wilson denied making
these' statements to William Altman but in view of their similarity
to undenied statements by him, and all the circumstances, we find
that he made them. According to his own testimony, Wilson on'
another occasion advised Johnston, one of the employees, that "if we
are going to have any organization at all we ought to have one that
would at least be of some benefit to us, so we could have a recognized
union label on our merchandise." In addition, at two meetings with
the organizing committee of the United, Wilson stated that he would'
not deal with that organization, and that he would not remain in
business, but would have to liquidate, if the United were successful.5
In this period Lovera approached various of- the employees in the
plant, including William Altman, Johnston, Shiley, Templeton,
and Lute, and, as they testified, advised them, in substance, that if
they did not join the I. B. E. W. the respondent would shut down
and they would lose their jobs. We do not, in view of his other
activities hostile to the United, credit Lovera's denial that he engaged
in this activity. -
On August 15, 1941, a committee of the I. B. E. W. met with
Wilson and, presenting the petitions which had been circulated in
the plant as proof of majority, requested recognition of that organi-
zation as exclusive collective bargaining representative of the em-
ployees. Wilson immediately consulted with Ebbert, the respondent's
During the course of a third such meeting,with Wilson, held shortly after the re-
spondent had recognized and entered into contractual arrangments with the I. B. B W.,
one of the I B E W officers , Wright, came in and proceeded forcibly to evict Jerry
Altman from Wilson's office . Wilson, and Neilson, who was also present, merely stood
by, voicing no disapproval of this action. --
IMPERIAL LIGHTING PRODUCTS COMPANY 1421
attorney, and thereafter advised the I. B. E. W. representatives that
he could not grant recognition on the basis of the petitions, stating
that, it would be necessary for the I. B. E., W. to submit individually
signed authorization cards in proof of its majority. On August 20,
the I. B. E. W. representatives presented Wilson with 70 individually
signed authorization cards,6 a majority of the 91 employees then in
the unit agreed upon 'as appropriate in the stipulation for _the consent
election which had been held on August 7.7 Wilson verified the
signatures on the cards, by comparison with endorsements appearing
on canceled pay-roll checks. He did not, however, make any effort
to determine whether the United had also been designated by or
claimed to represent employees whose signatures appeared on the
I. B. E. W. authorization cards, although he was well aware that
only 2 weeks prior thereto neither organization was able to obtain
a majority of the votes cast in the secret-ballot election. The follow-
ing day, August 21, Wilson granted recognition to the I. B. E. W.
After meeting with I. B. E. W. representatives on August 21 and 22,
an agreement was reached which was approved by the I. B. E. W.
membership. The contract was signed by the parties on August 23
but it was predated to August T. The agreement required member-
ship' in the I. B. E. W. as a condition of employment.
Howard E. Watts and Thomas Reilly were the only employees
in the plant who refused to join the I. B. E. W. after -the effective
date of the closed-shop provisions of the contract. On September 9,
.1941, the respondent, pursuant to the terms of the contract, dis-
charged Watts and Reilly because of their refusal to join the
I. B. E. W.
B. Concluding findings
At the hearing and again at the oral argument the respondent
contended that, because of the serious difficulty it would face in mar-
keting goods produced by C. I. O. labor, it was privileged to advise
the employees of that fact and to point out that its business would
face serious curtailment if the employees joined the United. It was
therefore urged that its conduct amounted to a mere expression of
opinion and did not contravene Section 8 (1) of the Act. Assuming
without deciding that statements of opinion are privileged, the record
shows, as is evident from the facts set forth in Section A, above,
that the respondent went far beyond this. Thus, when the United
commenced its organizational campaign in the respondent's plant in
The cards were signed by the employees on August 18, at a meeting of the I B' E W.
held at the Penn Albert Hotel in Greensburg , and on August 19, during the rest and
lunch periods in the plant.
7 This unit consisted of all of the respondent's "production and maintenance employees,
11exclusive of supervisory employees .. .
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
November 1940, the respondent told its employees that unions had
"never done anybody any good," that a union would create a "wall"
and a "barrier" between the men and the respondent , that the United
would demand a wage scale which would' result in curtailment of
production and personnel , and that the C. I. 0. would benefit only
itself . These statements were clearly aimed at discouraging any
union activity and particularly that on behalf of the United. Al-
though 'Wilson later informed the employees that they could join
any labor organization they desired without fear of discrimination,
he obtained from them, at the same meeting ,, a pledge that they
would "deal and negotiate with him as they had in the past," and
stated that such pledge decided the question of whether employees
might continue to form a union , thereby nullifying the effect of his
promise that employees were free to join a union , and binding them
to deal with him individually. Such statements and conduct do not
fall within even the allegedly legitimate boundaries of employer
action. We find that by the foregoing statements and conduct the
respondent has interfered with, restrained , and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Thereafter , Wilson appointed a committee , consisting of six em-
ployees of his own choice, to bargain with him on behalf of
employees . He thereby attempted to supply the employees with an
alternative bargaining agency-not freely selected by them, as they
are entitled to do under the Act, but chosen by Wilson and pre-
sumably conformable to his desires . We find that by the foregoing
conduct of Wilson, the respondent formed and selected the personnel
of a committee of its employees for the purpose of dealing with it
concerning grievances , wages, rates- of pay, and other conditions of
work, and that the respondent thereby dominated and interfered with
the formation and administration of the Committee and contributed
support to it. We find that by such conduct the respondent has
interfered with, restrained , and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
After the I. B. E. W . had entered the plant , the respondent con-
tinued to exceed the allegedly permissible bounds of employer action.
Wilson appeared at a public meeting of employees and urged them to
,reject the United and to accept the I. B. E. W., thereby assisting
the I . B. E. W. in its drive for members. Wilson also told employees
that he would never recognize the United and that he would liquidate
the business before attempting to do business under a contract with a
C. I. 0. organization . Lovera, for whose acts the respondent was
responsible , told several employees that if they did not join the
I. B. E. W . the respondent would shut down and they would lose
their jobs . In addition , the respondent not only permitted wide-
IMPERIAL LIGHTING PRODUCTS COMPANY 1423
spread solicitation by I. B. E. W. members during working hours,
but also participated therein through Joseph, for whose activities
the respondent was responsible. .
Viewing the foregoing activity of the respondent in its totality,
we find that, from-the very first appearance of the I. B. E. W. in the
plant, the respondent engaged in a course of conduct designed to
establish, assist, and maintain that organization and to defeat -the
efforts of the United., We find that by such conduct the respondent
has rendered unlawful assistance to the I. B. E. W. and has interfered
with, restrained, and coerced its employees in the exercise,-of the
rights guaranteed in Section 7 of the Act. -
We find also that, in view of the acts of interference, restraint, and
coercion on the part of the respondent in its favor, the I. B. E. W.
was not a representative freely designated by a majority of the
employees in an appropriate unit. The proviso in Section 8 (3) of
the Act provides that :
... nothing in this Act ... shall preclude an employer from
making an agreement with a labor organization (not established,
maintained, or assisted by any action defined in this Act as, an
unfair labor practice) to require as a condition of employment
membership therein, if such labor organization is the repre-
sentative of the' employees as provided in Section 9 (a), in the
appropriate' collective bargaining unit covered by such agree-
ment when made.
Since the contract of August 23, 1941, was entered into with a labor
organization which had been • assisted by the respondent's unfair
labor practices and was not, therefore, a representative freely desig-
nated by a majority of the employees, the respondent may not avail
itself of the proviso of Section 8 (3) of the Act as a defense to its
execution. The contract constitutes further interference, restraint,
and coercion and is unlawful." -
Since we have found that the contract with the I. B. E. W. did
not fall within the proviso of Section 8 (3) of the Act, the discharge
of Watts and Reilly pursuant to such contract was in violation of the
Act. Accordingly, we find that by discharging Watts and Reilly
the respondent discriminated in regard to their hire and tenure of
employment thereby discouraging membership in the United and
IInternational Association of Machinists v. National Labor Relations Board, 311 U. S
72, affirming 71 App D. C 175, 110 P. (2d) 29, enf'g Matter of The Sdrrick Corporation
and International Union, United Automobile Workers of America, Local No. 459, 8
N L. R B 621, rehearing denied, 311 U S 729 ; Matter of National Electric Products
Corporation and United Electrical and Radio Workers of America, Local No. 609, 3
N. L. R B. 475; Matter of Condenser Corporation of America and Cornell- Dubilier
Electric Corporation and United Electrical and Radio Workers of America, 22 N L R. B.
347, enf'd as mod. National Labor Relations Board,v. Condenser Corp., 10 L. R R. 217
(C. C. A. 3).
1424 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
encouraging membership in the I. B. E. W. and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV.. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection,with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several. States and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. `- -
V. THE REMEDY
Having found that the respondent has' engaged in' certain unfair
labor practices, we will order the respondent- to cease and desist
therefrom and to take certain affirmative action which we find. neces-
sary to effectuate the policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Committee and contributed
support to it. Since the Committee appears not to have been in ex-
istence since December 1940, it will not be necessary to order the
respondent to disestablish that organization. However, we shall
order that the respondent refuse and withhold recognition from that
organization lest it be revived."
We have found that the respondent has engaged in unfair labor
practices which effectively discouraged its employees from joining
the United and encouraged them to join the I. B. E. W., and that
by this conduct the respondent has assisted the I. B. E. W. In order
to permit the employees full freedom of self-organization, without
hindrance by reason of the respondent's unfair labor practices, we
shall order that the respondent cease and desist from recognizing
the I. B. E. W. as the exclusive representative of its employees unless
and until that organization is certified as such exclusive represent-
ative by the Board. Having also found that the contract entered into
between the respondent and the I. B. E. W. did not fall within the
proviso of Section 8 (3) and that it was invalid and constituted
an infringement of the rights guaranteed the respondent's employees,
we shall, in order to effectuate the policies of the Act, to restore the
status quo, and to permit the employees full freedom in the exercise,
of their statutory rights, order the respondent to cease giving effect
sMatter of American Manufacturing Company, Inc . and International Association of
Machinists, Local Union No. 791, 7 N. L. R B. 375; Matter of Condenser Corporation or
America, footnote 8, supra.
IMPERIAL LIGHTING PRODUCTS COMPANY - 1425
to the contract signed on August 23, 1941, and dated August 7, 1941,
as well as to any extension, renewal, modification, or supplement
thereof, and any superseding contract which may now be in force.l°
Nothing in this order, however, shall be taken to require the re-
spondent to vary those wages, hours, and other such substantive
features of its relations with the employees which the respondent
may have established in performance of the contract as extended,
renewed, modified, supplemented, or superseded.
Finally, we have found that the respondent was not privileged to
discharge Howard E. Watts and Thomas Reilly pursuant to the terms
of the closed-shop provision of the contract with the I. B. E. W. and
that such dicharges were in violation of the Act. Accordingly, we
shall order the respondent to offer Watts and Reilly immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and to make them whole for any loss in earnings suffered by
them as a result of the discrimination against them, by payment to
each of them of a sum of money equal to the amount which each
would normally have earned as wages from the date of his discharge
to the date of offer of reinstatement, less his net earnings" during
said period.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board makes the following :
CONCLUSIONS OF L.,,w
1. United Electrical, Radio & Machine Workers of America, the
Committee of Six, and Local Union 1278, International Brotherhood
of Electrical Workers, are labor organizations, within the meaning, of
Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of the Committee of Six, and contributing support thereto,
the respondent has engaged,in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (2) of the Act.
10National Labor Relations Board v. J. Greenebaum Tanning Company , a Corporation,
110 F. ( 2d) 984 (C. C. A. 7), enf'g as mod Matter of dheenebaum Tanning Company
and National Leather Woikeis Association , Local No. 45, aflilaated with the C. 1. 0,
11 N L . R B. 300.
"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 else-
where than for the respondent , 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 and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590, 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. National
Labor Relations Board, 311 U. S 7.
463892-42-vol. 41-90
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discriminating in regard to the' Hire and tenure of employ-
ment of Howard E. Watts and Thomas Reilly, thereby discouraging
membership in the United and encouraging membership in the
I. B. E. W., the respondent has engaged and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing-its employees in
the exercise of the rights 'guaranteed in Section 7 of the Act, the
respondent has engaged and is engaging in unfair labor- practices,
within the meaning of Section 8 (1) 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.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, • the National Labor Relations Board hereby orders that
the respondent, Imperial Lighting Products, Company, Greensburg,
Pennsylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the formation
or administration of the Committee of Six or the formation or ad-
ministration of any other labor -organization of its employees, and
from contributing support to the Committee of Six or any other labor
organization of its employees ;
(b) Recognizing the Committee of Six as the representative of any
of its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of en
ployment, or other conditions of employment;
(c) Recognizing or in any manner dealing with Local Union 1278,
International Brotherhood of Electrical Workers, as the exclusive
representative of its employees in regard to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, unless and until that labor organizatton shall have been
certified as such by the National Labor Relations Board;
(d), Giving effect to the contract of August 23, 1941, with Local
Union 1278, International Brotherhood of Electrical Workers, or. to
any extension, renewal, modification, or supplement th eieof, or to
any superseding contract with said organization which may now be
in force; .
(e) Discouraging membership in United Electrical, Radio &
Machine Workers of America, or encouraging membership in Local
1278, International Brotherhood of Electrical Workers, or any other
labor organization of its employees, by discriminating in regard to
their hire and tenure of employment;
IMPERIAL LIGHTING PRODUCTS COMPANY - 1427
(f) In any other manner interfering with , restraining , or coercing'
its employees in the exercise of the right to self-organization , to form,
join, or assist labor organizations , to bargain collectively with repre-
sentatives of their own choosing, and to engage in concerted activities
for the purposes of collective bargaining or other, mutual aid or pro-
tection, as guaranteed in Section 7 of the Act.
2. -Take the following;aflirulative action which the Board finds will
effectuate the policies of the Act :
(a) Refuse to recognize the Committee of Six as the representative
of any of its employees for the purpose of dealing with the respond-
ent concerning grievances , labor disputes, wages, rates of pay, hours
of employment , or other conditions of employment;
(b) Withdraw and withhold all recognition from Local Union
1278, International Brotherhood of Electrical Workers, as the exclu-
sive representative of the employees for the purposes of dealing with
the respondent concerning grievances , labor disputes, wages, rates
of pay, hours o£ employment , or other conditions of employment,
.unless and until that labor organization shall have been certified as
such by the National Labor Relations Board;
(c) Offer to Howard E. Watts and Thomas Reilly immediate and
full reinstatement to their former or substantially equivalent posi-
.tions, without prejudice to their seniority and other rights and
privileges ;
(d). Make whole Howard E. Watts and Thomas Reilly for any
losses in earnings they may have suffered by reason of the respondent's
discrimination against them, by payment to each of them of a sum
of money each would normally have earned as wages during the
period from the date of such discrimination to the date of the offer
of reinstatement, less the net - earnings of each during such period;
(e) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days,
notices to its employees stating : (1) that the respondent will not
engage in the conduct from which it is ordered to cease and -desist
in paragraphs 1 (a) through 1 (f) of this Order; (2) that the
respondent will take the affirmative action set forth in paragraphs
2 (a) through 2 (d) of this Order; and (3) that the employees of
the respondent are free to become or remain members of United
Electrical, Machine & Radio Workers of America, and that the
respondent will not discriminate against any of its employees because
of their membership,in or activity on behalf of that organization;
(f) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.