Marks Products Co., Inc.,

National Labor Relations Board - Board Decisions

Oct 9, 1941

35 N.L.R.B. 1262 (N.L.R.B. 1941)

In the Matter of MARKS PRODUCTS Co. INC., and LOCAL No. 3,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L.
Case No. C-1878.-Decided October 9, 1941
Jurisdiction : electrical wiring device manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements; threat to remove
plant ; discriminatory prohibition of legitimate union's activities in plant,
under threat of discharge.
Company-Dominated Unions: first organization : infirmities therein admitted
by employer ; shut-down of plant to permit employees to attend
meeting for its formation ; participation and assistance of supervisory
employees ; use of company time and property-successor organization :
formed largely by persons identified with first organization, whose conduct
is held attributable to employer ; same attorney who received no fee in
addition to that paid by first organization ; substantially identical consti-
tution and bylaws; overlapping in existence of two organizations;
entrenched prior to employer's notification to employees, under settlement
agreement, refusing to recognize first organization and guaranteeing rights
under the Act ; held to be a superficial transformation of first organization
formed in response to employer's interference with and domination of first
organization.
Remedial Orders : employer ordered to refuse to recognize either dominated
organization and to cease and desist.
Practice and Procedure : agreement settling charges only regarding first domi-
nated organization held to have been entered into in bad faith by employer
in that it failed, prior to execution of settlement agreement, to disclose to
the Board's Regional Director or to the charging union its knowledge that
successor organization had been formed ; latter formed as result of employ-
er's illegal conduct immediately after agreement was reached verbally and
before settlement was executed and agreed notices pursuant thereto were
issued; held that the policies of the Act would not be effectuated by giving
effect to the settlement agreement.
Mr. Millard L. Midonick, for the Board.
Whitman, Ransom, Coulson, ct Goetz, by Messrs. William L. Ran-
som, Jacob H. Goetz, and Robert G. Miller, of New York City, for
the respondent.
Ashe and Rifkin, by Mr. David I. Ache, of New York City,
for Local 3.
Mr. William D. Huston, of New York City, for the Union.
Miss Edna Loeb, of counsel to the Board.
35 N. L. R. B., No. 220.
1262
MARKS PRODUCTS CO. INC.
DECISION
AND
ORDER
STATEMENT OF THE CASE
1263
Upon charges and amended charges duly filed by International
Brotherhood of Electrical Workers, Local No. 3, herein called Local
3, affiliated with the American Federation of Labor, the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Second Region (New York City), issued its com-
plaint dated March 4, 1941, against Marks Products Co. Inc., Brook-
lyn, New York, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices 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, accom-
panied by notice of hearing, were duly served upon the respondent,
Local 3, and Union of Factory Employees of Marks Products Co.
Inc., herein called the Union.
With respect to the unfair labor practices, the complaint alleged
in substance: (1) that the respondent on or about September 13,
1940, initiated, formed, and sponsored Marks Products Employees
Association, herein called the Association, a labor organization, that
on or about October 7, 1940, it initiated the formation of the Union,
and since September 13, 1940, has dominated, supported, and inter-
fered with the administration of both the Association and the
Union; (2) that the respondent, through its officers and agents, has
since September 1, 1940, warned its employees not to join or remain
members of Local 3, threatened its employees with discharge, lock-
out, the removal of its plant, and other reprisals if they aided Local
3 or its members and by other acts has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
On March 14, 1941, the respondent filed its answer to the com-
plaint. Therein it admitted the jurisdiction of the Board, denied
that it had engaged in or was engaging in the alleged unfair labor
practices, and urged certain defenses, inter alia, that the respondent
on or about October 10, 1940; entered into a stipulation and notified
all its employees in writing that it would not recognize the Asso-
ciation as the collective bargaining agent for its employees and that
the Board by its Decision and Direction of Election of December 5,
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1940, directed that an election be held to enable employees to
choose as between Local 3, the Union, or neither.'
Pursuant to notice, a hearing was held on March 20, 24, 26, 27, 28,
29, and 31, and April 2 and 3, 1941, at New York City, before
Mortimer Riemer, the Trial Examiner duly designated by the Chief
Trial Examiner. ,The Board, the respondent, and Local 3 were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
Throughout the hearing the respondent objected to the introduc-
tion of any testimony concerning alleged acts or conduct of the
respondent prior to September 1, 1940, the date when the complaint
alleged that the respondent began to warn its employees not to join
or remain members of Local 3. The Trial Examiner permitted this
testimony to be introduced solely for the purpose of showing the
background of the respondent's alleged unfair labor practices after
September 1, 1940. The respondent, at the hearing, also objected
to and moved to strike testimony concerning the Association as an
attempt on the part of the Board to litigate matters governed by
a stipulation of settlement previously entered into by the respondent,
Local 3, and the Regional Director, and as a repudiation by the
Board of its own settlement agreement. The objections were over-
ruled and the motion to strike denied by the Trial Examiner.
At the opening of the hearing and at the close of the Board's
case the respondent moved that the complaint be dismissed. These
motions were denied by the Trial Examiner. At \the close of the
hearing the respondent renewed its motion to dismiss and the Trial
Examiner reserved his ruling thereon. On the last day of the hear-
ing, counsel for the Board moved to amend the amended complaint
to conform to the proof in so far as it related (1) to matters of form
and (2) to the testimony adduced concerning alleged violations of
the Act in August 1938 and January 1940. The Trial Examiner
granted the motion to conform in so far as it related to matters of
form. He reserved his decision with respect to that portion of the
motion seeking to bring within the scope of the complaint, alleged
violations occurring prior to September 1, 1940, and in his Inter-
mediate Report subsequently filed, he denied the motion to conform
in the latter respect. The Board has reviewed the rulings of the
Trial Examiner on the foregoing and. other motions and objections
to the admission of evidence and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
I Matter of Marks Products Co., Inc. and Union of Factory Employees of Marks Products
Co Inc., 28 N L R B 334
MARKS PRODUCTS CO. INC. 1265
Local 3 and the respondent filed briefs with the Trial Examiner.
On May 14, 1941, the Trial Examiner filed his Intermediate Report,
copies of which were duly served on all the parties. He found that
the respondent engaged in no unfair labor practices subsequent to the
above-mentioned -stipulation of settlement entered into by the
respondent, Local 3, and the Regional Director, recommended that
the entire complaint be dismissed, and granted the respondent's
motion to dismiss made at the close of the hearing. On May 23,
1941, Local 3 filed exceptions to the Intermediate Report and on
June 19, 1941, filed a brief in support of its exceptions. On the
latter date the respondent also filed a brief.
Pursuant to notice, a hearing for the purpose of oral argument was
held on July 1, 1941, before the Board at Washington, D. C. The
respondent and Local 3 were represented by counsel, the Union by a
representative, and all participated in the oral argument.
The Board has considered the exceptions and the briefs *filed by the
parties and, in so far as-the said exceptions are consistent with the
findings, conclusions, and order below, finds that they have. merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Marks Products Co. Inc., is a New York corpora-
tion with its principal office and plant in Brooklyn, New York, where
it is engaged in the manufacture, sale, and distribution of electrical
wiring devices. From May 1, 1940, to October 31, 1940, the respond-
ent received raw materials from points outside the State of New
York valued at approximately $503,000. During the same period the
respondent sold and shipped finished products to points outside the
State of New York valued at approximately $715,000. The respond-
ent distributes and sells finished products under trade marks which
are registered in the United States Patent Office. For purposes of this
proceeding the respondent admits that it is engaged in commerce
within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Local No. 3, International Brotherhood of Electrical Workers, is a
labor organization affiliated with the American Federation of Labor.
It admits to membership employees of the respondent.
Marks Products Employees Association was, and Union of Factory
Employees of Marks Products Co. Inc., is, an unaffiliated labor or-
ganization admitting to membership employees of the respondent.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
The record does not disclose that there was any labor organization
among the respondent 's employees prior to November 1939, when Local
3 began its organizational campaign at the plant . That campaign
was of brief duration and Local 3 did-not recommence its organiza-
tional drive until early in September 1940.
In the latter part of August or the first part of September 1940
Ben Norkus , an employee in the respondent's bakelite department,
had a conversation regarding Local 3 with his foreman, Charles E.
Carlson. The latter is a salaried supervisor whose only superior is
F. E. Guinther , general superintendent and engineer for the entire
plant. Carlson is in charge of the entire bakelite department and
its complement of 30 employees , is assisted by 3 assistant foremen
assigned , respectively , to 3 shifts operated in that department, and
he has plenary supervisory powers to hire, discharge , and discipline
employees . According to Norkus ' testimony , on the above occasion
Carlson approached him in the plant during working hours , began to
talk about the strike of Local 3 at another company not connected
with the respondent , and stated that Local 3 was not going to win the
strike because that company had 3 months ' supplies . Norkus testified
further that Carlson warned, "If I hear of anyone in this plant ever
signing with the union , they will be thrown out on their ear ," and told
Norkus to pass this on to the rest of the employees in the depart-
ment.' Norkus also testified that Carlson said that he knew who had
signed up with Local 3 before, that they were not "putting anything
over on him ," and that "there was never going to be any union in
Marks," and warned "that if there ever was," that if the respondent
had "any kind of labor trouble ," the plant would be moved to Con-
necticut , "where the Chamber of Commerce would guarantee them no
labor trouble ." Norkus, according to his further testimony , inquired
how this could be guaranteed , and Carlson replied that "they have
ways of doing it, and beating the Wagner Act," that there were
"technicalities" in it for the benefit of the employer . Carlson testi-
fied that he did not recall the above conversation and denied that he
made the above statements and threats . Upon appraisal of all the
testimony , we do not credit his denial but find that he made sub-
stantially the statements attributed to him above.
2 According to the transcript, on direct examination Norkus testified that lie replied
that he "would" (pass it on), while on cross-examination, that he "would not" do so
because he was not a "stool pigeon " When this contradiction became apparent, Norkus
claimed that he in fact testified on direct examination that he had replied that he would
not do so, and that his testimony was misunderstood We are satisfied that Norkus
intended to say "would not" on direct examination
MARKS PRODUCTS CO. INC. 1267
On or about September 4, 1940, Local 3 recommenced its organiza-
tional activities and began to distribute union literature openly in
front of the plant. Such activities were admittedly observed by of-
ficials of the respondent, including the respondent's president, Jacob
J. Grossman, and Plant Superintendent Guinther.
Shortly thereafter, on or about September 13, Thomas Murphy,
the respondent's only electrician, and William Tinkham, another em-
ployee, had a discussion at the plant, apparently during working
hours, about forming an unaffiliated organization at the plant. That
conversation and the ensuing events will be discussed below, after
an examination of Murphy's employee status, as well as that of Tink-
ham. Counsel for the Board and Local 3 introduced evidence tend-
ing to show that Murphy was a minor supervisory employee or at
least occupied a more favored position at the plant than ordinary
production employees. The respondent denied that Murphy was a
supervisor and did not list him as such on the charts of its super-
visors and their duties, which were introduced into evidence herein.3
Unlike ordinary production employees who receive hourly or piece-
work wages, and even unlike one assistant foreman 4 who is paid on
an hourly basis although he is admittedly regarded as a "Boss,"
Murphy earns a weekly salary which exceeds that of most of the re-
spondent's foremen. Personnel Director Arthur Langer testified that
the reasons for his superior salary were that most of the foremen were
"mere boys" while Murphy was a seasoned, licensed electrician, and
that the latter had been with respondent for "a good many years."
Murphy was put on the pay roll in October 1939 but had previously
worked for the respondent as an electrical contractor. Murphy regu-
larly has one assistant, James Summers,5 and when he needs addi-
tional help secures it upon request of Guinther. Murphy directs the
work of his helper or helpers and they follow his orders. DeGenova,
a machine-shop employee, testified that some time in the summer of
1940 Murphy told Summers that if he did not do more work, "we
will have to get somebody else around here to work." Murphy contra-
dicted that testimony, but admitted that he could complain to his su-
perior that the work of his helper was poor and suggest that he be
discharged. We find his testimony as a whole of dubious credibility
and do not credit his denial of DeGenova's testimony. Murphy is
friendly with Superintendent Guinther and has known him about 17
years. The respondent's salaried employees are in a better position
8 These charts were originally prepared for and introduced into evidence at the repre-
sentation hearing held on November 22, 1940, to determine the collective bargaining
representative of the respondent 's employees . See footnote 1, supra. Sketches of the
duties of various supervisors-referred to herein are drawn from these charts except where
otherwise indicated.
4 Walter Rachwalski.
s Murphy has not had a helper since the strike of Local 3, commencing October 8, 1940.
451270-42-vol 35-81
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than other employees for they are paid during sickness, holidays, and
Qther absences unless "wilful or unexplainable," and Personnel Di-
rector Langer testified that never in his experience with the respond-
ent has any deduction been made from the pay of a salaried em-
ployee for absences from work. While Langer testified that salaried
employees are not at liberty to leave the plant without excuse during
working hours, and that he assumed that when they, as well as hourly
paid employees, left the plant, they secured permission to do so, the
record shows that salaried employees actually left the plant without
securing permission, as will appear herein. The record does not
convince us that non-salaried employees, who were paid only for the
time they were present in the plant, enjoyed equal latitude. Because
of the nature of his position as electrician and maintenance man,
Murphy has unusual freedom to visit all parts of the plant, and his
immediate superior is Plant Superintendent Guinther, who usually
deals with supervisory employees who in turn supervise production
employees. In the course of performing some maintenance and electri-
cal work during the plant vacation period in July 1940, Murphy
recommended to Guinther the hiring of three employees for whose
ability he vouched, and suggested that several regular employees who
were not entitled to vacations with pay be assigned to assist him.
Guinther followed his recommendations, hired the men recommended
by Murphy, assigned from six to nine regular employees to that work,
and Murphy was partly in charge of the project. As will be noted be-
low, although Murphy was active in forming the Association on Sep-
tember 13 and 16, he did not attend the October 4 meeting because
Association committeemen called him a "company stooge," told him
he had "no right to belong in there," and, despite his protests, told
him that they would not admit him to the meeting "under any condi-
tions." Prior to that meeting Local 3 had filed with the Regional
Director charges alleging that the respondent was "attempting to
form a Company Union" s and Local 3 contends that Murphy's ex-
clusion from the meeting indicated that the employees considered him
,a supervisory employee and desired to obviate further suspicion of
company domination.' Upon all the evidence we find that Murphy is
a supervisory employee, having powers and privileges not accorded
to ordinary production employees.
Tinkham, with whom Murphy discussed the formation of an un-
affiliated organization, was a tool maker under J. Werckman, sal-
aried foreman of the respondent's machine shop, and had officially
O Filed September 21, 1940, Case No. II-,C-3196. The disposition of these charges is
discussed below.
7 The Union , second unaffiliated organization formed in October 1940, as described
below, sought to exclude Murphy along with other supervisory employees from the bar.
gaining unit in the representation proceeding instituted by it. See footnote 1, supra.
MARKS PRODUCTS CO. INC. 1269
no supervisory authority. DeGenova testified that on four or five
occasions Tinkham substituted for Werckman in the shop during 1
and 2 day absences of the latter, and that on such occasions, Tink-
ham issued work orders similar to those of Werckman. Personnel
Director Langer contradicted DeGenova, testifying that if Werck-
man is absent for a day or so, Superintendent Guinther replaces him
in the shop, assisted therein by Frank Kreiger, assistant shop foreman
under Werckman, and that no authority is delegated to Tinkham.
Werckman did not testify. Upon the evidence in this record we find
that Tinkham was not a supervisory employee.
Returning to Murphy's alleged conversation with Tinkham on
September 13 regarding the formation of an unaffiliated organization
and the events that followed, we note at the outset that these matters
were related only by Murphy, that Tinkham did not appear as a wit-
ness at the hearing, that Murphy's testimony as a whole is not con-
vincing, and that his testimony as to this particular occasion and
the surrounding and ensuing circumstances is vague, contradictory,
and, in a number of respects, difficult to believe. In the course of this
conversation on September 13, Tinkham said that he knew of an inde-
pendent or unaffiliated union which was operating well at another
company, and the two employees decided to start one at the respond-
ent's plant. According to Murphy, at that time Tinkham happened
to have with him a template of a ballot for election of officers of an
independent ' association and without consulting other employees,
they agreed to have ballots printed for an organization, and to make
certain changes in the template. On the same day Murphy left the
plant, allegedly on a company errand and during working hours,
and during his trip ordered ballots containing the heading "Em-
ployees Association Ballot Sheet," stating under that, "Meeting of
Members on Sept. 17th, 1940," and providing spaces to vote for
officers. Murphy testified that he did not know where the idea of
holding a meeting originated, that an organization and a meeting
were "in the air," and contradictorily, first, that he and Tinkham
decided to have an employees' meeting on September 17, and later,
that he did not recall who set that date.
Murphy also testified vaguely and evasively that around this time
he talked with other employees who all seemed interested in an un-
affiliated labor organization, and he admitted that among the em-
ployees whose interest encouraged him to proceed was Frank Wright.
Although the latter is not listed on the supervisory chart, he has
supervisory-duties. He is a tender of machines or in one department
of the plant job setter, watches dies, makes minor repairs, stops
machines if anything goes wrong and reports to Foreman Werckman,
and has two machine "watchers" under him. While Grossman, the
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent 's president , testified that Wright had no power to super-
vise or recommend hiring, discipline, or discharge, DeGenova
testified that Wright is his immediate supervisor , that he takes orders
from Wright, and that when the latter turns off the power stopping
the machines , he, DeGenova, does not have authority to turn it on
again without Wright's permission . It may be noted that Wright
turned off the power during working hours on September 16, shut-
ting down the machines under his care when he and other employees
of the plant attended the organizational meeting of the Association,
discussed below. We find Wright to be a supervisory employee.
Also on September 13, the date on which Murphy ordered the
ballots, a paper was circulated in the plant during working hours.
This paper bore the legend "Mutual Aid Association," or "Employees
Association" and provided for the signatures of employees . Norkus
testified without contradiction and we find that he and the eight
other employees on his shift were asked to sign it by James Mastro,
assistant foreman in charge of a shift of nine employees in the Bake-
lite department . Mastro is paid a weekly salary, is regarded by the
employees as a "boss," is empowered to recommend hiring, discharge,
discipline , and promotion of employees , and has authority to disci-
pline employees in Foreman Carlson's absence. Norkus inquired
why he should sign the paper , and Mastro replied that it was for
"the Association," mentioned sick benefits and loan privileges without
interest , and said that he had obtained the paper from Murphy.
Norkus refused to sign because he believed it to, be for a "company
union." Other employees were solicited to sign the same or a like
paper on company time and property by non-supervisory employees.
On September 14 Samuel Dobbins, a Local 3 representative, met
with Grossman and told him that Local 3 was organizing the em-
ployees. Grossman replied that the industry needed Local 3 and
assured Dobbins of full cooperation with him.
On September 16 Murphy again left the plant, apparently during
working hours , to get the ballots which he had ordered from the
printer, and he allegedly paid for them out of his own pocket.
According to his testimony , when he returned to the plant from the
printer it was again "in the air" that the date of the meeting had been
changed from September 17 to 16 and that it was scheduled to be held
at 3 p. m., an hour and a half or 2 hours before the end of the work-
ing day. Although he was sponsoring the meeting and the formation
of an association , he denied knowledge of, and the record does not
show, how the date was changed or the hour fixed. That afternoon,
for the first time in the respondent 's history, the 'plant shut down
almost completely at 3 p. m., an hour and a half or 2 hours before the
MARKS PRODUCTS CO. INC. - 1271
end of the working day, during a busy production season, in order
that the employees might leave the plant to attend a meeting regard-
ing the formation of the Association. About 90 per cent of the
employees, 300 or 325 of them, went to that meeting, which is
described below after a review of the circumstances surrounding the
shut-down and the general exodus.
The record does not show how notice of the meeting was com-
municated to all the employees who attended it. The 'evidence does
indicate, however, that a number of the employees were informed
thereof by supervisory employees who assured them that they could
make up the working time lost because of the meeting. The record
shows that they in fact recouped much of that time during the same
week. According to DeGenova, Murphy asked him whether he
would attend the meeting. DeGenova inquired whether it was in
regard to the petition passed around on September 13, and Murphy
replied in the affirmative. Murphy did not specifically deny this
testimony, merely stating that he did not discuss the September 16
meeting in advance with DeGenova. We credit DeGenova's testi-
mony in this regard. DeGenova and all the other machine-shop em-
ployees made up the working time lost because of the meeting by
working on Saturday of that week. DeGenova testified that this
was the first time in his entire 2 years' service that they had done
production work on Saturday. Personnel Director Langer testified
that production work had been done on other Saturdays, giving one
example, September 7, 1940. We conclude that Saturday production
work was not customary in the shop, and it is notable that the
respondent did not explain why such work took, place that week.
Although Langer was associated with production, he professed
ignorance as to whether or not the reason therefor was to make up
the lost time, stating that such problems were left to Plant Super-
intendent Guinther. The latter did not testify in this regard.
William Huston, an employee actively associated with the subse-
quent formation of the Union, was informed of the meeting by J.
Dreyfuss, assistant foreman of the packing department, a salaried
supervisory employee similar to the other assistant foremen men-
tioned above. Dreyfuss told Huston that the purpose of the meeting
was to form an association. Dreyfuss accompanied Huston to the
meeting place, but was not permitted to enter. Ann Hydock and
other employees in the packing department were told to go to the
meeting by Lily Marrione, who is not listed by the respondent as a
supervisor but who admittedly acts as a supervisor over approxi-
mately 19 employees during Dreyfuss' frequent absences from the
department, transmits work orders to employees, and reports to
Dreyfuss regarding them. We find Marrione to be a supervisory
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee. Hydock asked Dreyfuss about the time to be lost at the
meeting, and he assured her that it would be "made up" somehow .8
Neither Marrione nor Dreyfuss testified at the hearing.
Assistant Foreman Maresca told Cono Vertuccio, an employee
under-his supervision in the assembly department, to leave his work
at 3 p. m. and go to the meeting, assuring him that he could' make
up later the hour and a half of working time lost thereby. Jean
Redmond, another assembly-department employee, asked her supe-
rior, Assistant Foreman Znojemsky, a salaried employee with powers
and duties like those of Mastro and Maresca, whether she could make
up the time lost in attendance at the meeting, and he assured her
that she could. Neither Maresca nor Znojemsky testified at the hear-
ing. The record shows that Vertuccio and Redmond actually made
up the lost time.
The meeting on September 16, which was heralded by the unprece-
dented 'shut-down of the plant, was held across the street from the
plant in a building in which the respondent rented some storage space.
A vacant portion of the building was used for the meeting. This
place had been used previously for parties given by an existing social
organization at the plant, which promoted social and sporting events.
That organization, known varyingly as "Mutual Benefit Association"
and "Marks Products Employees Association," as well as by other
names , was participated in alike by employees, supervisors, and
company executives and carried on its activities openly on company
time and property.9 Murphy testified that he had previously secured
carte blanche from the owner of the building to use the vacant space
at any time free of charge.lo
Among the approximately 300 persons present at the meeting were
several supervisory employees : Mastro, Edmund Binkowski, and Wal-
ter Rachwalski ,11 all assistant foremen regarded as "bosses" accord-
ing to the respondent's supervisory chart; Murphy and Wright,
minor supervisors; and Assistant Foreman Frank Krieger and As-
sistant • Forelady Ann Sweeney. The two latter are hourly paid
employees who are not regarded as "Bosses" according to the super-
visory chart. Both of them have the power to recommend the hiring,
discharge, promotion, and discipline of employees, however, and
8 Despite this assurance , the lost time was not recouped by these employees.
8It did not purport to be a labor organization and had no constitution, bylaws, or definite
panel of officers .' Its membership was voluntary and 5-cent weekly dues were collected.
io Murphy testified that he had done most of the electrical work in that building for
the past 8 or 10 years , that the engineer of the building had let him use the space for a
party shortly before September 16 and that the owner of the building came to see him
2 days later and told him that he could use that space any time if he kept it clean
11 Binkowski and Rachwalski denied attending the meeting but we do not find their testi-
mony or denials credible , particularly in view of the straight-forward testimony of
DeGenova that both were present , and Cono Vertuccio 's corroborative testimony as to
Rachwalski 's prenence.
. MARKS PRODUCTS CO. INC . 1273
Krieger has the power himself to discipline employees. Both Krieger
and Sweeney give orders and direct workers, sometimes after con-
sultation with their supervisors, and, in the absence of the latter,
both -take charge of the departmental divisions or sections to which
they are assigned. Krieger is in charge of one of 3 sections of the
machine shop which has a total of 24 employees, and spends approxi-
mately 60 per cent of his time exclusively in supervisory work.
Sweeney is in charge of a section of 3 workers in the inspection
department, and spends from 10 to 20 per cent of her time exclusively
in supervising them, sometimes more. Both Sweeney and Krieger do
additional supervisory work in conjunction with manual work. We
find that they are supervisory employees.
The ballots which Murphy had printed were distributed at the
door of the hall by Krieger and Wright. Murphy opened the meet-
ing, allegedly for the reasons that nobody else did so, that the em-
ployees were getting restive, and that he feared that they would
leave without forming an association as he desired. According to
the testimony of DeGenova and Cono Vertuccio, Murphy told those
present that they had to do something quickly to prevent Local 3
from making any progress, that if they did not act quickly, Local 3
would have them on strike, and that by having a shop union they
would not have to pay dues to racketeers or suffer the fate of the
striking employees of another named company. Murphy and Huston
contradicted this testimony but admitted that Murphy stated in sub-
stance that they were meeting to form an independent organization,
that the employees were entitled to do so for their joint betterment,
and that they could get what they wanted without outside help or
organizations. Upon our appraisal of the testimony, we find that
the testimony of DeGenova and Vertuccio is more worthy of credence
than that of Huston or Murphy, who on the record was a particularly
vague and evasive witness, and we find that Murphy made the state-
ments regarding Local 3 attributed to him. Tinkham also made an'
address about British labor organization. Murphy then set an elec-
tion in motion by nominating Tinkham for president of the new
organization being formed. The employees present used Murphy's
printed ballots to elect Tinkhaln as president 12 and to elect other offi-
cers; Joseph Kolinsky, as treasurer, Andrew Sabol as vice president,
and Marie Kanehl as secretary. By oral vote they elected depart-
mental delegates, including Tinkham and Murphy.1' DeGenova and
Vertuccio, who left before the meeting was over, were stopped at the
door by Assistant Foreman Krieger and warned by him that they
12 It appears that he resigned from the office shortly after the meeting.
's Other delegates were Patterson , Wittman, Moscatti , Caesar, Wulff, Sabol, Kolinsky,
Kanehl , Summers ( Murphy's assistant ), Miscione , and IEdres . Kolinsky is also referred
to in the record as Kolinski, while Sabol is also referred to as Sabel.
1274 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
I
would get into trouble if they left. The meeting adjourned there-
after.
The testimony of the respondent's witnesses regarding the unique
shut-down and exodus for the above meeting was inconsistent, con-
tradictory, and patently incredible. For example Foreman Carlson
and Gustave Nafzieger, another salaried foreman with powers similar
to those of Carlson, testified that employees requested permission to
leave at 3 p. m. and that they granted such permission in the midst
of a busy season without consulting their superior, Superintendent
Guinther, or anyone else, and without questioning the men as to
where they were going or as to the purpose of the meeting. Carlson
admitted that the bakelite department was shut down, but Binkowski,
one of Carlson's assistant foremen, made the incredible and contra-
dictory assertion that nothing out of the ordinary happened, that
that department was not closed down. Assistant Foreman Rachwal-
-ski testified that his men left without asking his permission, which
was, not customary for non-salaried employees such as they, and that
he made no attempt to stop them, only consulting two other assistant
foremen as to whether their men were likewise departing. Plant
Superintendent Guinther testified that all the supervisors came to
consult him regarding the employees' desire to have a meeting that
afternoon, without disclosing the purpose of the meeting. That a
number of the supervisors did not consult him has already been indi-
cated. Guinther testified further that he consulted President Gross-
man regarding the matter and that the latter said, "Well, what can
we do? If they want to have a meeting, they will have to have a
meeting." Grossman testified that under the circumstances he be-
lieved that if the respondent did not give the employees permission
to leave for the meeting, they would probably leave anyway, and
further, that he did not have the slightest idea where they were go-
ing. When asked why he thought that the employees would walk out
against instructions, Grossman referred to the pamphlets being dis-
tributed in front of the plant. He claimed that he did not know
that those papers were being issued by Local 3, although he had had
a conference with a Local 3 representative on September 14. Finally
'Grossman admitted that he had an idea that the meeting had to do
with labor unrest, and when asked whether he did not know that it
was not a Local 3 meeting, he replied that "it was just a meeting."
Upon all the evidence we are unable to credit the respondent's
contradictory explanations. We have found that Murphy, a super-
visory employee, sponsored the meeting. Further, we have found that
not only did the respondent's officials and supervisors make no
attempt to hinder or halt the exodus of employees, but that super-
visory employees actually notified employees of the time and place
MARKS PRODUCTS CO. INC. 1275
of the meeting, advised them to attend it, and assured them that
they would lose no working time thereby. Finally, supervisory
employees attended and participated in the meeting. Upon all the
evidence, we conclude that the shut-down, exodus, and meeting
on September 16 were instigated and sponsored by the respondent
in an effort. to form an intramural organization to forestall and
destroy Local 3's organizational drive. This finding is further sup-
ported and corroborated by subsequent conduct of the respondent's
supervisors, particularly their conduct on the night after the meet-
ing, described below.
-In the bakelite department at that time, there were three shifts,
each headed by a . salaried assistant foreman and under the general
supervision of Foreman Carlson, who was present only during the
day. Binkowski headed the shift which worked from 4 p. m. to
midnight, Rasdall, the one from midnight to 8 a. in., and Mastro,
that from 8 a. in. to 4 p. m. On the night of September 16 Norkus,
-an' employee who had not attended the meeting that afternoon, came
to the plant about 11:30 p. m. to go on the midnight shift. Both
Binkowski and Rasdall were present at that time since the shifts
were about to change. Norkus testified as follows regarding the
events of that night : Binkowski approached him with printed bal-
lots already containing the names of officers elected that afternoon;
told him that he was supposed to sign one for the Association and
turn it in to Binkowski or Rasdall; and stated that Norkus did not
have to fill in names of officers since the balloting was "only tem-
porary for thirty days, to get things started and to keep Local 3
away from the doors." Norkus asked whether the Association was
a "company union" and Binkowski replied, "Yes, if you want to put
it that way." 14 Rasdall then joined the discussion, and the two
supervisors told Norkus about the meeting that afternoon and the
election of officers for the "company union," using those words.
Norkus asked who attended the meeting and they told him that all
the employees had attended, including Binkowski. Norkus asked
why he, as an employee, did not know about the meeting, and they
replied, " . . . it had to be done in a hurry; it was very urgent.
Local 3 men were outside and they would pull us out on strike and
we would lose our jobs. That's why we had to do it in a hurry."
Norkus asked whether the respondent's executives knew about the
meeting, and Binkowski replied that they did but that it was "not
supposed to be known that they know it." Norkus refused to sign a
ballot. He also saw one of the printed ballots on the bulletin board
in the bakelite room, which is generally used for posting work orders
"It appears from Norkus' testimony that the Association was commonly called the
"company union" by the employees.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and also notices of bowling , probably sponsored by the old social
organization . Rasdall argued with Norkus on several occasions
during the remainder of the night , trying to show him the value of
the Association . At about 7 : 45 a. in . on September 17, just before
quitting time, Rasdall again asked Norkus and the other eight men
on the shift to sign ballots and when all refused , Rasdall said that
Foreman "Carlson wanted everybody in the Bakelite department
to sign the ballots one hundred per cent. " When Norkus asked
what Carlson had to do with it , Rasdall replied , "Well , he knows
about, it and wants everyone to sign it . . . all the bosses know
about it ." Mastro then entered to take over the next shift and
Rasdall told him that "the boys do not want • to sign." Mastro
replied that the only thing to do was to call Carlson at his home,
and he picked up the telephone to do so. Most of the men thereupon
stated that they would sign "to keep out of trouble with, the bosses"
and to retain their jobs, and Mastro did not call Carlson.
Binkowski and Rasdall controverted the above testimony, but, we
do not credit their denials , since their testimony was on the whole vague
'contradictory, and difficult to believe. Rasdall, while denying that
he said anything to Norkus that night other than "hello," testified
that- he did not remember telling Mastro that the men did not want
to sign ballots, or telling Norkus that Carlson wanted all of them
to do so, and admitted that he may or may not have said that.
Later Rasdall claimed never to have seen such an Association ballot.
He testified further that Mastro actually called Carlson about a
production matter. Mastro did not controvert any of Norkus' testi-
mony, merely testifying about one morning when he telephoned
Carlson about the work but not fixing the date as ' September 17.
Upon the entire record we credit Norkus' testimony regarding the
events of the night of September 16-17, and find the facts to be in
accordance with his testimony.
Norkus testified further that every day from September 17 to
October 1 Rasdall spoke with him during working hours, stating that
Norkus and the other employees "would be better off ... by having
a company union, not an outside union which was dominated by
racketeers and gangsters , taking enormous dues from [ them], and
that [Norkus] should join the company union along with the rest
of them." Rasdall contradicted the above testimony. He admitted-
having sociable chats with Norkus every day before work, however,
but claimed that their only conversation about unions was one -regard-
ing whether Norkus was actually a Local 3 member if he had no card.
Rasdall testified -that he did not "believe" that that subject arose in
connection with his saying something about joining the Association
but that he did not recall. Norkus testified that Rasdall used
MARKS PRODUCTS CO. INC. 1277
profanity freely in his reference to Local 3 leaders. Rasdall merely
testified that he was not in the habit of using profanity and that he
did not call Norkus names. We do not credit Rasdall's denials.
We find that he made the above statements substantially as Norkus
testified.
On September 17 or 18 a Local 3 representative telephoned Gross-
man and complained that a company union was being formed.
Grossman claimed not to be aware of that fact but we cannot credit
such a claim in view of our findings above and below. On Septem-
ber 21 Local 3 filed charges with the Regional Director alleging that
the respondent had engaged in and was.engaging in unfair labor
practices within the meaning of Section 8 (1), (2), and (5) of the
Act, specifically stating that the respondent was "attempting to form
a Company Union" and had refused to meet with Local 3 "for
collective bargaining,"
On or about September 21, Kolinsky, the Association's newly
elected treasurer, telephoned James V. Connelly, an attorney, and
asked him to represent the Association.15 On the same day Kolinsky
and other Association officers and delegates to conferred with Con-
nelly and submitted to him a tentative constitution and bylaws which,
Connelly testified, they claimed to have prepared themselves. Con-
nelly agreed to revise this document and did so. Connelly requested
a fee of $75, and the Association representatives said that they would
find out whether the Association could pay such an amount. On
September 23 or 24, Kolinsky telephoned Connelly to tell him that
the $75 fee would be forthcoming. It was allegedly paid from 25-
cent dues collected from employees, at least partially-on company
time and property, as will appear below.
After the organizational meeting on September 16, various activi-
ties were carried on in the Association's behalf on company time
and property. Shortly after the meeting, Hydock, an employee, was
openly solicited by another employee from a different department,
to sign a sheet of paper for "our company union." She took the
matter up with Lily Marrione, who, as found above, is a supervisory
employee, and when Marrione stated that she was not going to sign,
Hydock did not sign. Thereafter, one Josephine, another non-
supervisory employee, asked Hydock openly during working hours
to pay 25 cents for an Association card before noon that day "because
they were going ahead to form a company union so theft Local 3
would not come in." Hydock consulted Assistant Forelady Sweeney,
who was a friend of hers, and Sweeney said that she was undecided
15 Connelly testified that Kolinsky had heard of him in connection with his forming an
independent union at another company.
1° Robert Patterson , Charles Wittman , Andrew Sabol , Marie Kanehl , and one Wulff.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to what she would do. Hydock paid 25 cents and received a
printed membership card in "Marks Products Employees Association"
with her name typed thereon. Josephine had a number of cards
which she had to go through to find the one made out for Hydock.
At about the same time Jean Redmond and four other employees
also received similar cards bearing their names typed in advance,
from an Association committeeman, a non-supervisory employee, in
the plant during working hours. The record does not disclose who
had these cards printed or the names of employees typed thereon,
Murphy disclaiming knowledge thereof. Another Association com-
mitteeman told Cono Vertuccio while he was at work, "You better
sign for [the shop union], if you know what is good."
The name of the Association as it appears on the printed member-
ship cards and in its constitution, subsequently adopted, is identical
with one of the names of the social organization of which practically
the entire supervisory and executive staff of the respondent were
members, and which operated openly on company time and property.
According to Norkus' testimony, about a week after the September
16 meeting, during working hours in the bakelite department, As-
sistant Foremen Rasdall and Binkowski summoned him and told him
to go to the back of the machine shop with the rest of the men to
select a new Association committeeman for the bakelite department,
since the one elected on September 16 had resigned. Norkus did
not want to go but they persuaded him to do so "just to please the
rest of the boys," even if he did not vote. By oral vote in the
presence of the two supervisors, some 20 employees selected one
Auber, a non-supervisory employee, as committeeman. Binkowski
denied telling Norkus to attend such a meeting and, testified that he
did not recall observing such a meeting. Rasdall did not refer to
this meeting ih his testimony. We find that the meeting took place
as testified , by Norkus.
In the latter part of September supervisors of the respondent
commented to Anthony Vertuccio and Andrew DeGenova , employees,
about the Local 3 activiti 's of the latter. DeGenova had secured his
job with the respondent in February 1940, under the following cir-
cumstances ; Vertuccio recommended him to A. E. Troy, salaried fore-
man of the assembly and inspection department, where some 218
workers are employed. Troy promised to speak to Superintendent
Guinther about DeGenova. On the following day Troy informed
Vertuccio, "Mr. Guinther said it was all right to hire him on, provid-
ing he does not start no labor trouble ." Vertuccio gave his word
that DeGenova would not do so; and the latter was hired the next
MARKS PRODUCTS CO. INC. 1279
day.'7 On September 5, DeGenova enrolled as a Local 3 member.
On or about September 23, Murphy approached Vertuccio during
working hours and told him that his friend DeGenova was starting
labor trouble in the machine shop. Vertuccio testified that a day or
two later, also during working hours, Personnel Director Langer
made a similar statement to him regarding DeGenova, and shortly
thereafter told him that DeGenova had been talking and waving to
Local 3 men in front of the plant at 5':30 p. m. the previous day.
Langer controverted the above-recited testimony stating that Ver-
tuccio requested that DeGenova's activities not be held against Ver-
tuccio, and that he, Langer, assured him that they would not be.
Under all the circumstances, we do not credit Langer's denial.
At about the same time DeGenova asked Superintendent Guinther
whether his Local 3 membership was being held against him and
why Vertuccio was being disturbed about his actions. Guinther
replied that he had nothing against DeGenova and asked who was
annoying Vertuccio. DeGenova named Murphy, Personnel Director
Langer, and others, who were complaining about DeGenova's "cutting
up" and. saying that he should not talk to the organizers outside.
Guinther said that he would take care of that, but, according to
DeGenova's testimony, stated that if the latter were caught organiz-
ing on company time, he "would be fired for some reason or other."
At the hearing DeGenova admitted talking of Local 3 on company
time but testified that no Local 3 cards or leaflets were circulated in
the plant to his knowledge. Guinther admitted telling DeGenova
definitely not to organize on company time or property but denied
making the alleged threat. Guinther admitted further that he did
not so curtail activities on behalf of any organization other than
Local 3 but claimed that he knew of no other organization. That
claim is clearly unfounded for Guinther himself admitted learning
on September 17 that the September 16 meeting concerned the forma-
tion of a union. Under all the circumstances, we find that Guinther
discriminatorily prohibited Local 3 activity under penalty of dis-
charge while failing to issue any ban against like activities by the
Association.
According to Norkus' testimony, on or about September 25, when
he was conversing with several Local 3 representatives who were dis-
tributing pamphlets in front of the plant, Assistant Foreman Mastro
called him inside the plant door, asked him why he was standing
there with Local 3 men, and told him that he would get himself in
"hot water" if he continued to do so. Norkus asked 'what he meant,
and Mastro replied that "others have been on the carpet . . . by Mr.
Guinther." Norkus asserted his right to do as he liked on his own
17 Troy was not a witness at the hearing.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, and Mastro repeated; "Well, I am telling you for your own good,
don't get caught out there. I don't want to see you get into trouble."
Mastro denied uttering the above warnings attributed to him by
Norkus, but, although he recalled the occasion, he was unable to state
what he said to Norkus. His testimony on the record was vague,
and under all the circumstances we cannot credit his denial. We find
that he made the statements attributed to him by Norkus.
According to Norkus' further testimony, about the end of Septem-
beror first of October, Auber, the committeeman elected in the shop
in the presence of Supervisors Rasdall and Binkowski, approached
Norkus and other employees while at work and asked them to pay 25
cents each for their cards "for the company union." Norkus refused
to do so, and Auber said, "I have your card with your name on it."
Norkus' name was typed on the card. Norkus asked whether "the
bosses" printed them. Anther said that he did not know but that
"they wanted, to get all the money they can in order to get a lawyer
to fight this case in the Labor Board." Rasdall, who was present,
told Norkus, "You couldn't lose much. It is only a quarter. That
won't hurt anybody. Pay it. See what happens. If it is no good,
you are only losing a quarter." Most of the employees paid for
cards but Norkus did not. Auber did not testify. Rasdall testified
that he did not see Auber distributing cards and collecting quarters
in the bakelite room." Although Rasdall claimed never to have seen
an Association card, he testified that he did not recall whether or
not he urged Norkus to pay for a card, admitting that he might have
done so. We find that Norkus was solicited by Auber and Rasdell
as described above. •
Meanwhile, Connelly had learned from the Board's Regional Office
of the charges of company domination filed by Local 3. On Septem-
ber 28, Connelly had another conference with Association represen-
tatives,19 apparently regarding the proposed constitution for the As-
sociation , another general meeting scheduled for October 4, and a
new election of officers to be held under the constitution. On October
3, the Board's Regional Office notified Connelly that a conference
had been 'scheduled for October 7, to attempt to settle Local 3's
charges.
On October 4, the second meeting of the Association took place.
The record does not show how this meeting was called, but indicates
that it was held outside working hours in a different hall from that
According to the transcript , Norkus referred to the above Association committeeman
as "Al" Auber . In examining Rasdall regarding the same incident counsel for the respond-
Put referred to Auber as "Harold" Auber. "Harry" Auber is also mentioned in the record
and upon all the evidence we find that the varying designations refer to the same em-
ployee , Harold Auber , particularly since the name "Al " could easily be a nickname for or
mistaken transcription of "Harold" or "Hal," the common contraction thereof
19 Kolinsky , Wittman, and Sabol.
MARKS PRODUCTS CO. INC. 1281
of the September 16 meeting. As already noted, Murphy was not
present at the meeting because in advance thereof, Association com-
mitteemen called him a "company stooge," told him that he had no
right to attend, and despite his protests, refused under any conditions
to allow him to attend. Norkus was not permitted to enter the meet=
ing place because he did not possess a pass or card required for
entrance. He testified that he observed three supervisors enter the
meeting, Foreman Nafzieger, Assistant Forelady Sweeney, and As-
sistant Foreman Rachwalski. Nafzieger and- Rachwalski denied at-
tending the meeting but we do not credit their denials. Sweeney
did not testify.20 Mimeographed copies 21 of the proposed constitu-
tion and bylaws, as revised by Connelly, were circulated at the meeting
and were adopted by vote of the employees. Although certain
changes were discussed, they were not physically embodied in the
constitution prior to the settlement of October 9, discussed below.
Tinkham, Sabol, and Connelly presided over the meeting in rotation.
The latter told the employees of the pending charges attacking the
legitimacy of the Association. He caused the employees to nominate
new officers 22 under the constitution, but postponed the election be-
cause of his anticipation of the Association's dissolution under a
settlement agreement. Apparently no other business was transacted
at the meeting.
On October 7, the scheduled conference for the purpose of settling
Local 3's charges was held at the Board's Regional Office. It was
attended by Board representatives, J. J. Steinharter and Charles
Horowitz, the respondent's treasurer and attorney respectively, Con-
nelly, and representatives of Local 3. At the conference the
respondent, Local 3, and Board representatives agreed upon the
terms of a settlement agreement whereby Local 3 would withdraw
its charges and the respondent would post in its plant and mail to, all
its employees notices stating that it recognized and would not
infringe the employees' rights under the Act, that it would not at
any time recognize the Association as representative of any of its
employees, and that it would not dominate, interfere with, or sup-
port the formation or administration of any labor organization.
Upon learning of the agreement, Connelly remarked in the presence
of Board and company representatives, "Well, we will have to form
a new organization." The said agreement was not executed at that
20 Huston , who was present , testified that employees protested the presence at the meet-
ing of one Weglarz, whom they claimed to be a supervisor . Such a protest appears unlikely
for Weglarz was only a "floor boy," was not named on the supervisory chart, and the two
other "floor boys" who are listed thereon appear to have no supervisory powers or duties.
21 The record does not show who had the mimeographing done. ,
12 The nominees were Wittman and Cybula for president ; Sabol and Valee for vice presi-
dent ; Patterson , Kanehl, Kelsey , Wulff, and Endres or Edres for secretary ; and Kolinsky
and Sokolowski for treasurer.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time but was deferred until October 9, to allow time for preparation
of formal typewritten copies thereof.
Following the above conference Connelly left the Regional Office
and returned to his own office. There he telephoned Kolinsky, the
Association's treasurer, at the respondent's plant apparently during
his working hours, informed him that the respondent had agreed to
"disestablish" the Association, told him to "Tell the boys that," but
did not, according to Connelly, say anything to Kolinsky about
creating a new organization.
Kolinsky immediately imparted Connelly's message to William
Huston, a salaried employee at work in the plant. It should be
noted that Huston occupied a more privileged position than ordinary
production employees, and his salary of $35 per week appears to be
greater than their wages. As discussed in connection with Murphy,
he is paid during sickness, holidays, and other absences from work 23.
and like Murphy has left the plant during working-hours without
permission. He is a skilled worker with engineering training and
is employed as a tester in the testing department, which is a part
of the respondent's engineering department. The latter department
contains only two other workmen' and two supervisors, A. Grohsgal,
designing engineer and a full-time salaried supervisor, and Guin-
ther, who is general superintendent and plant engineer. Guinther,
as well as Grohsgal, supervises Huston's work to some extent
although, as noted in connection with Murphy, Guinther customarily
deals with supervisors who in turn supervise ordinary employees.
Huston and his fellow workmen enjoy the apparently unique priv-
ilege of listening to the radio at will during working hours. Huston
is friendly with Assistant Foreman Dreyfuss, who, as noted above,
visited him at work to talk with him about the September 16 meeting
to form the Association, engaged in a joking conversation with him
about that meeting, and accompanied him to the meeting place.
Huston was a member of the Association and although he was
not officially an officer or delegate thereof, certain facts militate
against the Trial Examiner's characterization of him as an "inactive
member." His first interest and participation in the Association
was prompted by the action of Supervisor Dreyfuss; he attended
both of its meetings; and he was well known to Connelly despite
the fact that the latter knew very few other employees, not even
Tinkham who was Association president and sat next to him at the
October 4 meeting. According to Connelly, Huston was outstand-
zv For example , he was paid for a full day's work on October 8, although he did no work
at the plant but engaged only in activities on behalf of the Union , the formation of which
is discussed below. Huston testified that his foreman did not see him on October 8, and
assumed that he could not get into the plant due to the picket line posted at the plant by,
Local 3 that day . But regardless of the picket line, the respondent did not pay non-salaried
employees who were absent on that day.
MARKS PRODUCTS CO. INC. 1283
ing among the other employees because of his intelligence and he
therefore made Huston's acquaintance at the October 4 meeting. It
is significant to note that both Huston and Connelly were uncertain
in their testimony as to whether Huston was among the Association
representatives who visited Connelly's office on Association business
prior to October 4. They allegedly did not "think" he was but were
"not sure." It seems unlikely that Huston himself-would not have
recalled definitely whether or not he was a part of such a delegation.
He testified that he was not "particularly" active in the Association,
and when asked to explain why, in view of that alleged fact, Kolin-
sky chose him rather than Association officers as the first to hear
Connelly's message on October 7, Huston replied that he "thought"
Kolinsky received Connelly's call on the telephone in Huston's
department and that no other persons were there.
After talking with Kolinsky on October 7, Huston left the plant
during his working hours, telephoned Connelly, and told him that
Kolinsky had informed him that the Association was to be disestab-
lished. According to Connelly's testimony, Huston said "* * * I
have spoken to the boys, and they want to know what can be done."
Connelly told Huston that they could form a new organization if
they so desired.
Following that telephone conversation with Connelly, on October
7 and 8, Huston interviewed a groap of 12 employees and suggested
the creation of a new organization. Some were approached after
working hours as they were leaving the plant. Those to whom
Huston spoke were told that the respondent "was selling [them]
out" ; that they would have to form another union, and "petition for
a vote before it was too late, * * * ". There is no evidence that
this activity on Huston's part was conducted on company time.
Aiding Huston in the task of gathering the 12 employees together
were Joseph Kolinsky, William Sinkowski, Walter Wolfe, and Alice
Valee, employees. Kolinsky had been the Association treasurer and
was a nominee to succeed himself after the adoption of its constitu-
tion and bylaws on October 4, 1940. Valee had likewise been nom-
inated for the office of vice president at the October 4 meeting.
Because of the settlement agreement the election was never held.
On October 8 Local 3 declared a strike and threw a picket line
around the respondent's plant. The cause of the strike does not
appear. Huston went to the plant that morning but did not work.
About 11' o'clock he left the plant without permission of or notice
to the respondent, to telephone Connelly. According to Houston, his
supervisor was not aware of his presence at or departure from the
plant. Huston told Connelly that he and 12 other employees had
decided to form a new organization and to meet that evening. He
asked Connelly to draft a constitution and bylaws and made an
4512 70-4 2-vol 35--82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appointment to visit him at his office that afternoon. When Huston
called,- Connelly gave him the prepared constitution and bylaws and
a form of application for membership in the new organization.
Connelly on behalf of the Union then called Horowitz and
requested that the respondent bargain with the newly created organ-
ization. According to Connelly, Horowitz replied that he would
not bargain with "anybody" and there would have to be an election
before he would "even talk with them."
That evening, without the knowledge of the rest of the employees,
the 13 employees met at the home of one of their number "to form a
Union for.the purpose of collective bargaining and for the purpose
of soliciting members." The name, Union of Factory Employees of
Marks Products Co. Inc., chosen by Connelly, and the constitution
and bylaws prepared by him were approved by the group. Member-
ship-application forms were distributed and a resolution to petition
the Board for certification as a collective bargaining agent was
adopted. Huston was elected president, Valee vice president, Robert
Patterson secretary, and Kolinsky treasurer, of the Union. We have
already noted Huston's connection with the affairs of the Association.
Huston named Andrew Sabol, Patterson, Kolinsky, Harold Auber,
Charles Wittman, and two other employees as the most active mem-
bers of the Union's council of 13. All those named had been officers
and/or delegates of the Association, and four of them were also nomi-
nees for office selected at the October 4 meeting. There were a total
of 7 Association sponsors among the Union's 13 sponsors, or 8 of 14 if
Connelly be counted. A comparative chart of Association and Union
leaders is set out in the margin 24
24 See the following table
Persons involved Role in the Union Role in the Association
Connelly ----_-------- -- Attorney------------------------ Attorney.
Valee-------------------- Vice president------------------- Nominee for vice president at October 4
meeting
Patterson---------------- Secretary, most active according Delegate, nominee for secretary at
to Huston. October 4 meeting
Kolmsky---------------- Treasurer, most active---------- Treasurer, delegate, nominee for trea-
surer at October 4 meeting
Sabol ------------------- Member of the council of 13, Vice president, delegate, nominee formost active vice president at October 4 meeting.
Auber------------------- Member of the council of 13, Delegate elected on company time andmost active. property
W ittman (or Whittman) - Member of the council of 13, Delegate, October 4 nominee for pres-
most active ident
Kanehl------------------ Member of the council of 13----- Secretary, delegate, nominee for secre-
tary at October 4 meeting.
Tmkham---------------- ---------------------------------- President-resigned, delegate
Huston------------------ President ----------------------- No office.
Murphy----------------- ---------------------------------- Delegate, excluded from October 4
meeting as "company stooge."
The following were in the Association but not on the Union's council of 13: 4 delegates :
Moscatti , Caesar, Summers (Murphy's assistant ), and Miscione ; 2 delegate's and October
4 nominee : J. Wulff and Edres ; 3 other nominees : Cybula, Kelsey , and Sokolowski.
The following were on the Union's council but held no office in the Association : 2 active :
Sinkowski and W. Wolfe ; 3 others : Garbacki , Hoffman, and Santangelo. '
MARKS PRODUCTS CO. INC. 1285
The Union's constitution adopted on October 8, 1940, was similar
in all essential particulars to the Association's constitution. Connelly
on his own initiative made a few minor changes therein, at least one
of which changes had been advocated in discussion following the
adoption of the Association's constitution on October 4 25
As already noted, those attending the Union meeting on October 8
were given membership application forms. Each form was headed :
UNION OF FACTORY EMPLOYEES OF MARKS PRODUCTS CO. INC.
I hereby apply for membership in the Union of Factory Em-
ployees of Marks Products Co. Inc., and agree to abide by its
constitution and by-laws and designate the Union to be' my repre-
sentative for collective bargaining.
On October 9 and 10 members of the Union's council of 13 circulated
the forms and obtained the signatures thereto of 179 of the re-
spondent's approximately 360 employees. Huston secured approxi-
mately 50 of the signatures. He testified that so far as he knew no
signatures were secured at the plant, that they were garnered at the
homes of employees and in other places away from the plant. Accord-
ing to Huston's further testimony, he informed the persons whom he
solicited that the respondent had disestablished the Association. The
record does not show that the approximately 129 other signers were
similarly informed by the persons who solicited their signatures.
Huston admitted lack of knowledge in that regard.
On October 9 an Agreement of Settlement was formally executed
by the respondent, through Grossman, Local 3, through Dobbins, and
the Regional Director. This Agreement embodied the terms agreed
upon on October 7, namely, that Local 3 would withdraw its charges
and that within 5 days of October 9 the respondent would post in its
plant and mail to all its employees on the respondent's letterhead
notices stating that it would not recognize the Association, dominate
any labor organization, or infringe any employee rights guaranteed
by the Act. The text of the Agreement and the agreed notice are
set forth in the appendix hereto. Although the respondent, through
its attorney Horowitz, admittedly knew of the formation of the
Union and of Connelly's connection therewith, the respondent did not,
prior to the execution of the Agreement of Settlement on October 9,
reveal those facts to Local 3 or to the Regional Director,26 and there
as One change was to eliminate from the Union's constitution a restriction in the Asso-
ciation's constitution requiring a period of service in the respondent 's employ in order to
be eligible for election as an officer of the Association.
29 Grossman denied having knowledge on October 9 of the Union 's existence , and the
Trial Examiner credited his denial. Although we entertain doubt regarding that ruling
on credibility , Grossman 's knowledge or ignorance regarding the Union is immaterial In
view of the respondent 's undisputed knowledge thereof through its attorney . Horowitz.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is no evidence that either of the latter was then aware of the existence
of the Union.
On October 9 Local 3 wrote to the Regional Director as follows :
This is to request the withdrawal of the 8 (5) portion of the
charge in the above matter with prejudice.
With respect to the 8 (1) and (2) portions of the charge, the
request is for withdrawal without prejudice for the reason that
an adjustment of said allegations has been effected by an Agree-
ment of Settlement providing for compliance by the Company
with the provisions of the National Labor Relations Act.
On October 10 the respondent mailed to each of its employees at
their home addresses and posted in conspicuous places throughout its
plant copies of the agreed notice, dated October 10- and signed by
Grossman as the respondent's president. The record does not dis-
close what proportion, if any, of the 179 employees who signed
Union application forms on October 9 and 10 signed only after see-
ing a copy of the said notice. It is not clear how many of the
employees were working at the plant on October 10 despite the pend-
ing strike and could have seen the posted notices.21 Moreover, since
even local mail normally requires at least one day for delivery, it
appears unlikely that the notices mailed on October 10 reached any
of the 179 signers before October 11, or prior to their signing up in
the Union. And on October 11 the plant was closed because of the
strike.
On October 11, after having been advised by the respondent of
the posting and mailing of the notices but still without knowledge,
so far as the record indicates, of the Union's existence, the Regional
Director advised the respondent as follows :
Re : Case No. II-C-3196. ' This is to advise you that pursuant
to the terms of the settlement, which include full compliance
with the National Labor Relations Act, investigation of the
8 (2) portion of the charge in the above matter has been
discontinued.
Re : Case No. II-C-3196. This is to advise you that the
refusal to bargain charge in the above ,matter has been with-
drawn with prejudice by the charging union .211
The Union met again on October 11. The meeting was attended
only by the original 13. Those who signed the applications,
although not present, "were accepted as members"; there was some
discussion of departmental demands regarding conditions of employ-
27 Huston estimated that 200, or four -sevenths of the approximately 360 employees, were
working
21 The Regional Director closed the case based upon the charges as adjusted as of
October 9.
11
MARKS PRODUCTS CO. INC. 1287
meat, some of which demands were formulated during the Associa-
tion's existence; and it was agreed that the 13 original members
who represented each floor of the respondent's plant would function
as a council "until the first contract was drawn up with the com-
pany." The next and only other meeting of the Union was held
on October 15.211 It appears to have been attended only by the
council of 13. The Union has never held a general membership
meeting. On two occasions between October 8 and 16, Connelly
again asked Attorney Horowitz whether the respondent would bar-
gain with the Union, and Horowitz stated that it would not do so
until there was an election. Only the 13 council members paid dues
to the Union, amounting to approximately $13. The Union paid
Connelly no fee for his services in addition to the $75 paid him by
the Association.80
B. Concluding findings
At the oral argument before the Board counsel for the respondent
did not press its denial of domination and interference with the
Association, but admitted that the Association was an organization
within the contemplation of Section 8 (2) of the Act, stating that
the Association "had some infirmities," 31 that "some of the minor
supervisory employees had undoubtedly assisted, or encouraged that
3 Since that time there have been only informal meetings between various council mem-
bers regarding organizational matters
30 On October 16, 1940, the Union filed a petition and on November 16 an amended peti-
tion for investigation and certification of representatives pursuant to Section 9 (c) of the
Act, Case No . II-R-1913. The charges in the instant proceeding were filed by Local 3
on October 31. On November 9 the Regional Director refused to issue a complaint upon
those charges and on November 18 Local 3 appealed to the Board for review of that
refusal . A bearing on the Union 's petition for investigation and certification was held
on November 22, 1940 . At the commencement of the hearing, counsel for Local 3 moved
for an adjournment on the ground that it had filed charges alleging that the Union was
company-dominated . That motion was denied by the Trial Examiner therein. The latter
ruled , however, that participation by Local 3 in the hearing would not be deemed a waiver
of its contention that the Union was a company -dominated organization . On November 30
the Board sustained the Regional Director 's refusal to issue a complaint upon Local 3's
charges
On December 5 the Board issued its Decision and Direction of Election in the repre-
sentation case, Case No. R-2163 ( II-R-1913 ), directing that an election be held within
thirty ( 30) days to determine the collective bargaining agent as between the Union,
Local 3, or neither. See footnote 1, supra. On December 11 the Board revoked its
affirmance of the Regional Director 's refusal to issue a complaint . On December 12 all
parties to the election scheduled to be held on December 13 were informed that after the
election the ballots would be impounded pending further investigation into the charges
herein. The election was held and the ballots were impounded . On December 21 the
Board reversed the Regional Director 's refusal to issue a complaint , directed the issuance
of a complaint upon Local 3's charges, and directed that the Regional Director continue
to impound the ballots in Case No . R-2163 ( II-R-1913).
At the oral argument before the Board on July 1, 1941, counsel for Local 3 stated that
its strike was still in progress . The record indicates that the respondent nevertheless
resumed operations at some time after its shut-down on October 11, 1940, and that between
October 1940 and February 1941 there were unsuccessful negotiations between the
respondent and Local 3 for settlement of the strike and execution of a members-only
contract.
31 Incorrectly transcribed In the transcript of the oral argument as "informatives."
1288 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formation" of the Association, 82 and that the respondent was "not
here to quarrel with the question, or the finding of your Trial
Examiner that a prior organization [the Association] was not an
organization with whom the employer should bargain in behalf of
the employees." 33
The respondent's domination and interference with the Associa-
tion was indeed more pervasive than the respects admitted by counsel
for the respondent. The record shows, and we find, (1) that the
respondent instigated and sponsored the Association as a means of
blocking Local 3; (2) that to achieve this objective it utilized its
supervisors to initiate 'and build the Association and to impress upon
its employees the respondent's desire to forestall Local 3; (3) that'
on September 16, two days after Local 3 had informed the respond-
ent's president of its organizational campaign and had received from
him expressions of impartiality and even friendliness, the respondent
shut down its plant, an hour and a half before the usual quitting time
and caused its employees to attend a meeting at which the Associa-
tion was formally organized and the respondent's hostility to Local 3
was made manifest; (4) that the respondent's supervisors thereafter
solicited employees on company time and property to join and par-
ticipate in the Association; and (5) that the respondent permitted
and engaged in activities in behalf of the Association on company
time and property, at the same time denying under threat of dis-
charge similar privileges to adherents of Local 3. We further find
that this course of conduct was calculated to and did impress upon
the employees the respondent's resolve to prevent Local 3 from
becoming the collective bargaining representative of its ' employees
and to install an intramural organization as a continuing obstacle
thereto.
Before the respondent posted and mailed the notices provided in
the settlement agreement, that is, between October 7 and October 10,
1940, the Union was formed and developed. That the Union is little
more than a superficial transformation of the Association is shown
88 The respondent had contended in substance that it should not be held responsible
for the actions of assistant or working foremen since the Board has included such em-
ployees within production -employee units, and since they are eligible to membership in
Local 3, as noted in the decision in the prior representation proceeding . In Its Decision
and Direction of Election , the Board excluded "all supervisory employees" from the
appropriate unit there designated . See footnote 1, supra. The respondent 's statement
at the oral argument appears to be a recognition that under the circumstances of this
case its contention was without - merit under Board and court decisions See e. g, Inter-
national Ass 'n of Machinists v. National Labor Relations Board, 311 U. S. 72 ; National
Labor Relations Board v. Link -Belt Company , 311 U. S. 584 ; H. J. Heinz Co. v. National
Labor Relations Board, 311 U. S. 514.
83 While the Trial Examiner made no specific finding that the Association was company-
dominated, the whole tenor of his report indicates that he believed that the evidence
established such company-dominat4 n and his report proceeds upon that assumption.
MARKS PRODUCTS CO. INC. 1289
by the fact that the Association was not formally dissolved; that the
Union was formed and succeeded the Association immediately after
the respondent's agreement on October 7 not to recognize the latter,
the existence of the two organizations overlapping in time ; that the
Union was formed, largely by Huston, Association member and
salaried employee, by Association representatives, and by the Asso-
ciation's attorney, without any general employee meeting; that the
attorney's only fee for serving the Union was paid from Association
funds, collected at least in part on company property and with com-
pany assistance; that the Union adopted the Association's constitu-
tion and bylaws as slightly modified by the Association's attorney;
that at least one of such modifications had previously been advocated
by the Association; that the membership of both unaffiliated organ-
izations was limited to the respondent's employees unlike that of
Local 3, against which the respondent had demonstrated its hostility;
and that the respondent did not "wipe the slate clean"-disestablish
the Association and announce its future impartiality between affili-
ated and unaffiliated unions-prior to the Union's entrenchment.
In short, the Union appears to be substantially the organization
the Association would have been if it had held its election of per-
manent officers.
Under the circumstances disclosed by this record we find that the
Union is a superficial transformation of and the successor to the
Association; that the conduct of the persons who were identified with
the Association and who formed and developed the Union, is attribu-
table to. the respondent; that these persons acted in behalf of and
represented the respondent; and that the respondent, through these
persons and its domination of the Association, caused the formation
and establishment of the Union prior to the posting and mailing of
notices provided in the settlement agreement. 114
The respondent urges as, an affirmative defense that the Agreement
of Settlement between the respondent, Local 3, and the Regional
Director, executed Otcober 9, 1940, forecloses consideration of any
unfair labor practices engaged in prior to that time. We have here-
tofore held that we will not give effect to settlements if the policies
of the Act are not thereby effectuated, 85 as for example, in the case
a'Westenghouse Electric & Mfg. Co. v. National Labor Relations Board, 112 F. (2d) 657
(C. C. A. 2), aff'd 312 U . S. 660 ; Matter of New Idea Inc. and Federal Labor Union, eto.,
31 N. L. R. B 196, and cases therein cited.
a5 Matter of Duffy Silk Company and` bilk Throwster8 Union, etc ., 19 N. L. R. B. 37.
By virtue of Section 10 (a) of the Act, the Board is not bound by settlement agreements.
National Labor Relations Board v. Hawk & Buck Co ., 120 F. (2d) 903 (C. C. A. 5) ; National
Labor Relations Board v. Horace G. Prettyman , etc., 117 F. (2d) 786 (C C. A. 6) ;
Magnolia Petroleum Co v. National Labor Relations Board, 115 F. (2d) 1007 (C. C. A. 10).
But the Board, in its discretion , does give effect to settlements where, by so doing, the
Board effectuates the policies of the Act. Matter of Shenandoah -Dives Mining Co. and
International Union of Mine, Mill d Smelter Workers, 11 N. L. R. B. 885.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of settlements which do not end a course of unfair labor practices;"
and in determining whether it will effectuate the policies of the Act
to give effect to a settlement, the Board necessarily considers events
preceding as well as following the settlement."
In the instant case, the respondent dominated, interfered with, and
contributed support to the formation and administration of the Asso-
ciation. The Union was formed in response to such interference and
domination, immediately after the respondent had agreed on October
7 to the settlement. Although the respondent, through its attorney,
learned of the existence of the Union before October 9, the respondent
did not disclose this material fact to the Regional Director prior to
the execution of the settlement on that date. We are of the opinion
that the respondent, by its failure to make this disclosure, was acting
in bad faith in respect to the settlement. Upon the entire record,
including the facts that the Union was formed immediately after
the parties had agreed to execute the Agreement of Settlement, and
was formed as a direct consequence of the respondent's interference
with and support and domination of the Association; that the re-
spondent was acting in bad faith in respect to the Agreement of
Settlement; and that the Agreement of Settlement did not provide
for the disestablishment of the Union, while not purporting to estab-
lish its lawfulness, we find that it will not effectuate the policies of
the Act to give effect to the settlement and that, in order to effectuate
the policies of the Act, we must make the ultimate findings of fact'
required by the evidence and enter the orders appropriate thereto.88 -
We find that the respondent has dominated and interfered with
the formation and administration of the Association and the Union
and has contributed support to them; and that by such interference,
support, and domination and by the aforesaid threats, statements,
and acts of supervisory employees in opposition to self-organization,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of 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
88 Matter of Picker X-Ray Corp., etc . and Int'l Ass'n of Machinists, 12 N. L . R. B. 1384 ;
Matter of Harry A. Half, etc. and Int' l Ladies' Garment Workers' Union, 16 N. L. R. B,
667.
sr Matter of Sierra Madre-Lamanda Citrus Association, etc. and Citrus Packing House
Workers Union, etc., 23 N. L. It. B. 143.
as Cf. Matter of New Idea , Inc. and Federal Labor Union, etc., 31 N. L. R B. 196;
Matter of Sussex Dye & Print Works, Inc., etc. and Federation of Dyers, Finishers,
Printers and Bleachers of America, 34 N. L R B. 625.
MARKS PRODUCTS CO. INC. 1291
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 unfair labor
practice's we will order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act and to restore as nearly as possible the conditions which existed
prior to the commission of the unfair labor practices.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and the
Union and has contributed support to them. Since the Association
and the Union have never been recognized by the respondent as the
representatives of its employees for the purposes of collective bar-
gaining it will not be necessary to order the disestablishment of the
Association and the Union as such representatives. In order, how-
ever, to effectuate the policies of the Act and free the employees of
the respondent from such domination and interference and the effects
thereof, which constitute a continuing obstacle to the exercise by
the employees of the rights guaranteed them in the Act, we will
order the respondent to refuse to recognize the Association or the
Union as the representative of any of its employees for the purposes
of dealing with it concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLusIONS OF LAW
1. Local No. 3, International Brotherhood of Electrical Workers,
affiliated with the American Federation of Labor, and Union of Fac-
tory Employees of Marks Products Co. Inc., are labor organizations
and Marks Products Employees Association was a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of and by contributing support to the Association and the
Union the respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act the re=
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. 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 above findings of fact and conclusions ,of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent Marks Products Co., Inc., Brooklyn, New York, its
officers, agents, successors, and assigns, shall:
1. Cease-and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Marks Products Employees Association and Union of
Factory Employees of Marks Products Co., Inc., or the formation or
administration of any other labor organization of its employees and
contributing any support to these organizations or any other labor
organization of its employees;
(b) 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
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National-
Labor Relations Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Refuse to recognize Marks Products Employees Association
or Union of Factory Employees of Marks Products Co., Inc., as the
representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, and other conditions of employ-
ment ;
(b) Post immediately in conspicuous places in and about its plant
in Brooklyn, New York, and maintain for a period of at least sixty
(60) consecutive days from the date of posting, 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) and (b) of this Order and (2) that the respondent will take
the .affirmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Second Region in writ-
ing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
MARKS PRODUCTS CO. INC.
APPENDIX
1293
Agreement of settlement
It is hereby stipulated and agreed by and between Marks Products
Company, Inc., 80 North 9th Street, Brooklyn, New York, herein-
after referred to as the Company; International Brotherhood of
Electrical Workers, Local No. 3, A. F. of L., hereinafter referred to
as Local No. 3; and Elinore M. Herrick, Regional, Director, National
Labor Relations Board, Second Region, hereinafter referred to as the
Regional Director, as follows :
WHEREAS, on September 21, 1940, Local No. 3 filed charges with
the Regional Director in the above-entitled case, alleging, that the
Company had engaged in unfair labor practices within the meaning
of Section 5, subdivisions (1), (2) and (5) of the National Labor
Relations Act, hereinafter referred to as the Act; and
WHEREAS, the Company and Local No. 3 desire amicably to dis-
pose, as hereinafter provided, of all matters relating to the charges
above referred to;
Now THEREFORE, it is agreed :
1. The Company will, on or before five days after the effective
date of this Agreement, mail to each of its employees at their home
address, as shown on the records of the Company, as copy of the
notice attached hereto and marked Exhibit A, and will not enclose
any other matter, written or printed, together with such notice.
2. The Company will, on or before five days after the effective
date of this Agreement, post in conspicuous places at its plant at 80
North 9th Street, Brooklyn, New York, and keep posted continuously
for a period of sixty (60) consecutive days, copies of the notice at-
tached hereto and marked Exhibit A.
3. The Regional Director shall determine whether the provisions
of paragraphs 1 and 2, above, have been performed by the Company
and her determinations shall be final and binding upon the Company
and Local No. 3.
4. This Agreement of Settlement is signed in contemplation of the
performance by the Company of the provisions of paragraphs 1 and 2,
above, and is conditional upon the execution by Local No. 3 of a re-
quest, copy of which is attached hereto and marked Exhibit B, for
the withdrawal of the charges in the above case.
5. Immediately upon the execution of this Agreement of Settle-
ment, Local No. 3 will request permission of the Regional Director
to withdraw the charges in the above case in accordance with the
Rules and Regulations of the National Labor Relations Board.
6. This Agreement shall become effective as soon as it is signed
by all of the parties hereto.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The entire Agreement among the parties is contained within
the terms of this Agreement and there is no understanding of any
kind which varies, alters or adds to the terms of this Agreement.
ExmBIT A
(Letterhead of Company)
Notice to employees
This Company recognizes that under Section 7 of the National La-
bor Relations Act, its employees have "the right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities, for the purpose of collective bargaining or other
mutual aid or protection."
This Company will not interfere with, restrain, or coerce its em-
ployees in the exercise of any of the rights guaranteed by the Na-
tional Labor Relations Act.
This Company does not recognize and will not at any time in the
future recognize Marks Products Employees Association, as the
representative of any of its employees for the purpose of collective
bargaining with respect to wages, hours, or any other conditions of
employment ; and will not dominate ,or interfere with the formation
or administration of any labor organization or contribute financial
or other support to it.
This Company will bargain collectively with any labor organiza-
tion chosen by its employees in accordance with the provisions, of the
National Labor Relations Act and will reduce to writing and sign'
any agreement reached in such bargaining.
MARKS PRODUCTS COMPANY, INC.
By ------ ------ President.
Dated--------------------