Neptune Meter Co.

National Labor Relations Board - Board Decisions

Oct 21, 1944

58 N.L.R.B. 1240 (N.L.R.B. 1944)

In the Matter of NEPTUNE METER COMPANY and UNITED ELECTRICAL,
RADIO & MACHINE `YORKERS OF AMERICA, C. I. O.
Case No. 2-C--5445.-Decided October 21 , 1944
DECISION
AND
ORDER
On September 6, 1944, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto. None of the parties has filed exceptions to the In-
termediate Report, or briefs, or requested a hearing before the Board
for the purpose of oral argument.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, Neptune Meter Company, Long
Island City, New York, and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Dominating or interfering with the formation or administra-
tion of Employees' Representative Organization, or any other labor
organization of its employees, and from contributing support to Em-
ployees' Representative Organization, or any other labor organization
of its employees;
(b) Giving effect to any and all contracts, supplements thereto or
modifications thereof, with Employees' Representative Organization;
(c)' In any other manner interfering with, restraining or coercing
its employees in the exercise of the rights to self-organization, to form
58 N. L. R B., No. 226.
1240
NEPTUNE METER COMPANY 1241
labor organizations, to join or assist United Electrical, Radio and
Machine Workers of America, affiliated with the C. I. 0., or any other
labor organization, to bargain collectively through representatives of
their own choosing, or to engage in concerted activities, for the pur-
pose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Employees' Representative
Organization, 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, or other conditions
of employment, and completely disestablish said Employees' Repre-
sentative Organization as such representative;
(b) Post immediatgly in conspicuous places throughout its plant
at Long Island City, New York, and maintain for 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 paragraph 1 (a), (b), and
{c) 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 writing
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
INTERMEDIATE REPORT
Messrs. Leon Novak and Martnr. Rose, for the Board.
Messrs. Simpson Thacher, and Bartlett, by DMr Edward L Coffey, of New York,
New York, for the respondent.
Mr. Frank Schemer, and Mr Sidney Gilbert, both of New York, New York, for
the Union.
Mr. Alexander Landi, of New York, New York, for the Intervenor.
STATEMENT OF THE CASE
Upon a charge duly filed on March 1, 1944, by United Electrical, Radio and
Machine Workers of America, affiliated with the Congress of Industrial Organ-
izations, herein called the Union, the National Labor Relations Board, herein
called the Board, by its Regional Director for the Second Region (New York,
New York), issued its complaint on June 8, 1944, against Neptune Meter Com-
pany, Long Island City, New York, herein called the respondent , alleging that
the respondent had engaged and was engaged in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (2) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint
and the charge, together with notice of hearing thereon, were duly served upon
the respondent, the Union, and Employees' Representative Organization, herein
called ERO , a labor organization in the plant alleged to be existing in violation
of the Act.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent (1) on or about January 1, 1920, initiated, formed, sponsored,
and promoted a labor organization known as Congress of Neptune Meter Com-
pany, herein called the Congress; and (2) on or about August 1, 1985, initiated,
formed, sponsored, and promoted a labor organization known as the ERO, being
the successor to the Congress, and, since the formation of the Congress and ERO,
dominated, contributed to the support of, and interfered with the administra-
tion of both organizations. The respondent's answer admits the allegations of
the complaint as to the corporate existence of the respondent and the nature,
character, and extent of thg business transacted by it, and certain allegations
with respect to the Congress and ERO, but denies the commission of the alleged
unfair labor practices.
Pursuant to notice, a hearing was held on July 10, 11, and 12, 1944, at New
York, New York, before Howard Myers, the undersigned Trial Examiner, duly
designated by the Chief Trial Examiner. At the opening of the hearing, ERO
moved to intervene. The motion was granted without objection. No answer
was filed by ERO. The Board, the respondent, and the Union were represented
by counsel ; ERO by its president. All parties participated in the hearing Full
opportunity to be heard, to examine and to cross-examine witnesses, and to intro-
duce evidence bearing upon the issues was afforded all parties. At the conclusion
of the Board's case the respondent's counsel moved to dismiss the complaint for
lack of proof. The motion was denied. At the conclusion of the ERO case and
again at the conclusion of the entire case, the respondent's counsel renewed his
motion to dismiss the complaint for lack of proof Decision thereon was reserved.
The motion is hereby denied. The motion by Board's counsel to conform the
complaint to the proof and the motion by respondent's counsel to conform the
answer to the proof were granted without objection. Oral argument, in which
all parties except the Union participated was heard at the conclusion of the taking
of the evidence and is part of the record The parties were granted leave until
July 22, to file briefs with the undersigned. A brief has been received from the
respondent's counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Neptune Meter Company is a New Jersey Corporation having its principal
office at New York, New York , and its plant at Long Island City , New York,
where it is engaged in the manufacture , sale, and distribution of liquid meters
and certain war materials . During the year ending March 13, 1944 , the respond-
ent purchased raw materials valued in excess of one million dollars, of which
approximately fifty percent was shipped to its plant from points outside the
State of New York. During the same period , the respondent's sales of finished
products amounted to more than one million dollars , fifty percent of which were
shipped from its plant to points outside the State of New York. The respondent
concedes that it is engaged in commerce within the ' meaning of the Act.
II THE ORGANIZATIONS INVOLVED
United Electrical, Radio and Machine Workers of America, affiliated with the
Congress of Industrial Organizations, and Employees' Representative Organiza-
tion are labor organizations admitting to membership employees of the respondent.
Congress of Neptune Meter Company was a labor organization admitting to mem-
bership employees of the respondent.
NEPTUNE METER COMPANY 1243
III. THE UNFAIR LABOR PRACTICES
A. Domination of, intt;rferenee with, and support of the Congress and ERO;
interference, restraint, and coercion
1. Events prior to July 5, 1935
There is no evidence of the existence of any labor organization in the plant
prior to 1919. In the early part of that year, the respondent's officials called
all the employees together. At this meeting, Mr. John Leitch advised the em-
ployees to organize a union of their own.' After the employees had signified that
they were in accord with Leitch's suggestion, he formed a labor organization
among the respondent's employees and called it Congress of Neptune Meter Com-
pany. Leitch then prepared the constitution and by-laws under which the
Congress functioned. For his services the respondent paid him $5,000.
The Congress, in brief, consisted of a House of Representatives, Senate, and
Cabinet. The House was composed of representatives of nonsupervisory em-
ployees. The Senate was composed of representatives of the foremen and other
supervisory employees. The Cabinet was composed of representatives of the
directors and officers of the respondent. The constitution provided that repre-
sentatives of the House should be elected annually by and from among the non-
supeivisory employees of the various departments, American citizens, at least
21 years of age,2 employed by the respondent for a continuous period of at least
six months immediately prior to their election, and that they should be deemed
to have vacated office upon being transferred from one department to another
or upon severance of connection with the respondent. Membership in the
Senate required the recommendation of the Cabinet and a majority vote of the
Senate. The executive power of the Congress was vested in the Cabinet. The
Constitution could not be amended except with the approval of the Cabinet.
Membership in the Congress was automatic. Furthermore, membership did not
carry with it the obligation to pay initiation fees or membership dues and, in fact,
none were asked or paid. The constitution did not provide for meetings of the
membership. In fact, no meetings of the membership were ever held.
The representatives elected to the House, and not the employees, selected
the officers of the House which consisted of president, vice-president, secretary,
and sergeant-at-arras. The president appointed the personnel of the various coin-
mittees. The most important committee, in fact the House's governing body,
was the Ways and Means Committee. This committee met jointly with the Senate
Ways and Means Committee to iron out differences between the houses and to
expedite the passage of bills. Whenever the House passed a bill, it could not be-
come effective without the concurrence of the Senate and the approval of the
Cabinet. The bills passed by the House pertained mainly to matters concerning
grievances, wage disputes, rates of pay, hours of employment, and other con-
ditions of employment.
The representatives were not only paid by the respondent for the time spent
attending meetings of joint House-Senate committees and meetings of the
House, but also for other time used in connection with the business of the Con-
gress. All meetings and other business of the Congress were conducted on the
respondent's premises, with the respondent's permission. Elections of representa-
tives were conducted on company time and property with the knowledge and con-
sent of the respondent. The respondent permitted the use of its printing and
mimeographing machine and supplied the necessary paper and other equipment
I Leitch was not an employee or an official of the respondent
2 Female representatives had to be at least 18 years of age.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary for the preparation of ballots and the minutes of meetings Liken ise
the respondent permitted the 'posting of notices of •meeti ngs, copies of the
minutes of the various meetings, and other Congress notices on its bulletin
boards. By these and in other ways the respondent contributed support to and
interfered with the administration of the Congress.
At the hearing, respondent's counsel conceded that the respondent's connection
with the Congress was a violation of the Act.' Of course, such violations could
begin only with the time the Act became effective on July 5, 1935. It was under-
stood at the hearing, moreover, that evidence concerning events preceding July
5, 1935, would be admitted only as showing background circumstances relevant
to the unfair labor practices which' were alleged in the complaint. Accordingly,
the undersigned does not find that the incidents recited above which took place
prior to the effective date of the Act were unfair labor practices, but does find
that they are indicative of the respondent's attitude prior to the effective date
of the Act and cast light upon its motives in connection with the activities alleged
in the complaint.4
2. Events subsequent to July 5, 1935
On August 1, 1935, the respondent's then vice-president and manager, Mr. A. H.
Rickett appeared at a meeting of the House and, after reading certain sec-
tions of the Act to the representatives present, made the following statement:
The National Labor Relations Board has the right when the question arises
to ascertain whether the representatives dealings with the employer are truly
representatives of the majority of the people, and is also empowered to super-
vise an election thereof. Due to the ruling that an employer has no right to
contribute financial or other support to an organization, Industrial Democracy,
as it has been in practice since 1919, is therefore discontinued. The'SENATE
will now become a Foreman's Meeting. The employees have a perfect right, if
they so desire, to continue the representative plan as it is now being carried
on ; the representatives dealing directly with the Management on any question
on grievance, etc. If the majority of employees so desire, they can continue this
representative plan and the Company will allow them to meet in the regular
meeting room once every two weeks and on the Company's time This, how-
ever, is to be decided upon by the majority of the employees.
As a further explanation of the above, I am having posted on the Bulletin
Boards some printed questions and answers on the Wagner Bill. Should any
employee or group of employees not understand the explanation, as given, if
he or they will so notify me I will be only too glad to have them come to my
office or I go to their departments any day during lunch hour and answer their
questions 5
The "questions and answers" referred to by Rickett clearly indicated tp the
employees that the respondent was not desirous of abandoning the Congress
but wanted that organization to revise its structure in order to comply with the
3 were it not that the complaint alleged that in August 1935 , the ERO became the
successor to the Congress , it would have been unnecessary to go into detail with reference
to the latter, the concession of respondent ' s counsel and other admissions of sponsorship,
support , domination of, and interference with the Congress being sufficient
4 Cf. N. L R B v. Pennsylvania Greyhound Lines, Inc, 303 U. S. 261; N. L. R. B. v.
Pacific Greyhound Lines , Inc, 303 U. S 272; N. L R B . v. Newport News Shipbuilding &
Dry Dock Co., 308 U S 241.
Copies of the minutes of the August 1 meeting , which contained the quoted portion of
Rickett ' s speech , was posted on the respondent ' s bulletin boards located throughout the
plant In fact, copies of the minutes of all meetings of the House , and later of the ERO,
were likewise posted on the bulletin boards The respondent permitted such posting.
The respondent also allowed the ERO to post notice of meetings , election notices, and other
similar notices
NEPTUNE METER COMPANY 1245
Act's provisions. The above quoted statement of Rickett conveyed that impres-
sion in no uncertain terms The representatives so accommodated the respondent.
The representatives and the officers did not resign their positions. They became
the organizing committee of the ERO The following is an excerpt from the
minutes of the meeting of the House on August 26, 1935:
There was a resolution passed to have a secret ballot passed throughout the
shop, with the following questions:
1. Are you satisfied with the present form of Representation?
Yes
No
2. Or, do you wish to join some Labor Organization?
Yes -
No
3. Are you satisfied with your present Representative?
Yes
No
If dissatisfied with any Representative write his name and put NO
after it.
Shortly thereafter the above questions were submitted to the employees. The
representatives of the House distributed ballots among the employees during
working hours ° After marking their ballots the employees were directed to
deposit them in the ballot boxes which were in the office of respondent's personnel
manager. The tally sheet of the balloting shows that question #1 received
525 "Yes" votes against 26 "No" and that question #2 received 468 "No" votes
against 56 "Yes". The tally sheet also shows that all but four representatives
of the House were satisfactory to the employees.? On September 9, the president
of the House appointed a committee to draft a constitution. The committee
prepared a constitution which was adopted by the representatives ' The members
were not given an opportunity to consider, adopt, or approve the constitution.
The following only was submitted to the members : e
PREAMBLE
We, the employees of the NEPTUNE METER COMPANY , recognize the
necessity of establishing closer nfliliationI : and to this end, we pledge our-
selves to labor unitedly in behalf of the principles herein set forth ; to per-
petuate ' the permanency of a concrete organization which shall have for its
object the uplift of all mankind and more particularly the wealth producers,
believing as we do that our individual craft efforts are no longer sufficient
to afford us the protection necessary to our success.
PLATFORM
We recognize seven questions of general character:
1. A minimum rate of wages per hour.
2. Maximum of eight hours to constitute a day's work.
3. Maximum of forty hours to constitute a week's work.
4. Rate of pay for overtime, Sundays & holidays included, shall be
time and a half.
8 The respondent permitted the representative to use the respondent's time to distribute
the ballots and likewise permitted the employees to cast their ballots on company time.
7 Membership was automatic ; that is, all non-supervisory employees were considered to
be members of the ERO
8 At that time there were'24 House representatives.
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Standard starting and stopping time.
6 Method of handling grievances.
7. Abolishing of relay system.
The constitution of the ERO, in the main, is substantially the same as the
constitution of the Congress, except that all references to participation therein
by the respondent were deleted. It is sufficient to say here that the basis of
the Congress constitution was not materially altered. The ERO constitution,
so far as here material, in substance included the following: The offices of presi-
dent, vice-president, secretary-treasurer, sergeant-at-arms, and 2 representatives
from each department 0 were established ;10 eligibility to these positions was
limited to employees who were 21 years of age or over, American citizens or
who had applied for citizenship papers. Representatives forfeited office upon
severance of connection with respondent or by transfer to a department other
than the one he represented. Like the constitution of the Congress, the ERO
constitution does not provide for meetings of the membership or for the pay-
ment of dues or initiation fees. In fact, there were never any membership
-meetings Neither were dues or fees asked or received. Moreover, the respond-
ent permitted ERO to hold meetings on company time and property. ERO
representatives were not only paid by the respondent for the time spent attend-
ing meetings but also for other time used in connection with the business of
ERO. All meetings and other business of the Congress were conducted on
company time and property with the knowledge and consent of the respondent.
In fact, Ricketts suggested that the employees might do so, in his speech at the
August 1 meeting, hereinabove discussed. Elections of representatives were
conducted on company time and property, with the respondent's consent. The
respondent also permitted ERO to use the respondent's printing and mimeo-
graphing machine without charge and the respondent supplied the necessary
paper and other equipment necessary for the preparation of ballots and the
minutes of meetings. The respondent permitted the ERO to post whatever
notices it desired on the respondent's bulletin boards. The ERO and the re-
spondent entered into a contract covering wages, hours, working conditions
and other conditions of employment in 1937, and a new contract was negotiated
and signed by the ERO and the respondent each year thereafter until 1944; the
last contract being dated January 1, 1944 and expiring by its own terms
December 31, 1944.
3. Concluding findings
The respondent originated the Congress. It permitted organizational and
other meetings to be held in the plant. The representatives, officers, and mem-
bers were paid by the respondent for the time spent by them at Congress meet-
ings. The structure of the Congress indicated the respondent's control through
the joint House-Senate Ways and Means Committee. The employees were
limited in their free choice of representatives. Membership, which was automatic,
conferred only the right to vote in an annual election of representatives. Officers
were elected by the representatives and not by the members. Direct control over
the functioning of the organization was effected, not only through the manage-
nment representatives, but also by the respondent's power to unseat any elected
representative by transferring him to another department of the plant or dis-
charging him: Finally, since there was no provision for dues or other form of
91n some instances, several small departments were consolidated and the consolidated
department elected 2 representatives.
10 The constitution is silent as to when and how these offices were to be filled. The record
-4pre nntlincd in the constitution of the Congress was followed.
NEPTUNE METER COMPANY 1247
self-financing, the respondent was in a position to assure its domination over the
Congress by subsidizing it. This it did by permitting Congress meetings and
other business to be transacted on company time and property and by paying the
officers, representatives, and members for time spent on Congress business. The
entire record indicates that the Congress was formed, existed, and functioned only
through the respondent's control, participation, financial support, and sufferance.
In short, the Congress was typical of a management device which flourished prior
to the enactment of the Act as a substitute for collective bargaining, and which
has repeatedly and consistently been held by the courts to be in violation of the
Act.'1
Under these circumstances, the duty of the respondent was plain. In com-
menting upon similar cases decided by the Supreme Court." Judge Learned
Hand in Western Union Telegraph Company v. N. L. R. B 13 said :
The theory on which the Supreme Court went, as we understand it, was that
an unaffiliated union, known for long to be favored by the employer, carries
over an advantage which necessarily vitiates its standing as exclusive bargain-
ing agent. It cannot remain such until measures are taken completely to
disabuse the employees of any belief that they will win the employer's ap-
proval if they remain in it, or incur his displeasure if they leave.
The respondent's duty in connection with the formation of another organization
at the time the Congress was being dissolved was also plain. As the Court said
in the Western Union case, an "absolute and public cleavage between the old
and new" was necessary. In the Westinghouse Electric case," Judge Learned
Hand , commenting on the disestablishment order in the Newport News case, supra,
said :
The reason for this was that, although the new union would be lawful, if
freely formed, it had in fact arisen out of the earlier organization, and the
company had done nothing to mark the separation between the two, and
publicly to deprive the successor of the advantage of its apparently continued
favor. * * *
The employees at large had not been advised that the company was wholly
indifferent whether they joined the new union, and that, as it might, and
probably did, appear to be a successor of the old, the separation should have
been made plain, and with it the discontinuance of any continued counte-
nance from the employer. The theory is that in cases such as this, where an
unaffiliated union seems to the employees at large to have evolved out of an
earlier joint organization of employer and employees, the Board may take it
as datum, in the absence of satisfactory evidence to the contrary, that the
employees will suppose that the company approves the new, as it did the old,
and that their choice is for that reason not as free as the statute demands.
Here the respondent did nothing to "disabuse the employees" of their belief.
It not only made no "public cleavage" but, in other ways, conveyed exactly the
" Cf N. L R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U. S 241, 244;
N. L. R. B. v Baldwin Locomotive Works, 128 F. (2d) 39, 48 (C. C A. 3) ; Bethlehem
Steel Co V. N L. R B, 120 F. (2d) 641, 644-665 (App. D. C.) ; Bethlehem Shipbuilding
Corp. v. N. L R. B, 114 F. (2d) 930, 936-937 (C. C. A 1) ; cert. dismissed on motion of
Petitioner, 312 U. S. 710, N. L. R. B V. American Rolling Mill Co., 126 F. (2d) 38,
40-41 (C. C. A. 6) , N L R B. v. Swift cE Co , 108 F. (2d) 988, 999 (C. C. A 7).
12 N L B B. v. Greyhound Lines, supra; N. L R B. V. Newport News Shipbuilding
Company, supra; and N. L. R B. V. Falk Corp., 308 U. S. 453, 461.
33113 F (2d) 992 (C. C. A 2).
14 Westinghouse Electric Mfg. Co. V. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2), aff'd
per euriam 312 U. S 660.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposite impression. The process of transition from the Congress -to the ERO
was effected by employees who had previously demonstrated their willingness
to submit to the respondent's wishes in this connection. The significance of the
duplication of personnel coupled with substantial continuity of existence was
noted by the Court in Ifltei latioval Association of Machinists v. N. L R B. 110 F.
(2d) 29 (App D C.) aff'd 311 U S. 72, as indicative of continued domination:16
The constitution adopted by the representatives (the Congress officers and com-
mitteemen) provided the ERO with an operating structure essentially identical
with that of its predecessor, the Congress. Like the Congress, the ERO bases
its selection of representatives on departments ; provides for forfeiture of the
office of representative upon transfer from one department to another, or upon
termination of employment with the respondent. In the proceeding herein,
not only was there no interval in the transfer of allegiance, no "line of fracture",
but there was an actual overlapping between the dissolution of the Congress on
the one hand and the formation of the ERO on the other. The respondent not
only failed to disassociate itself from the Congress, but encouraged and assisted
in its revision Elections of officers and representatives were permitted on
company time and property Assistance was also furnished in other ways more
fully set 'forth above.
The respondent and the ERO maintained that the ERO was a militant organ-
ization, free from company donunation or interference, and for that reason the
ERO should not be disestablished. It is true that at times the ERO did act
independently of the respondent and for the benefit of its members. The fact
that the ERO achieved a certain measure of success cannot, and does not, free
the ERO from its illegal taint '° The effects of the respondent's support have
not been dissipated and the ERO has continued to operate as a bar to the free-
dom of self-organization guaranteed by the Act. 17
The undersigned finds that the respondent, by the above-described course of
conduct, has dominated and interfered with the formation and administration
of Congress of Neptune Metei Company and Employees' Representative Organ-
ization and has contributed support thereto, and by these acts has thereby inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection with the operations of the respondent described in Section I above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor practices, the
undeisigned will recommend that it cease and desist therefrom and take certain
affirmative action designated to effectuate the policies of the Act.
The undersigned has found that the respondent has dominated and interfered
with the formation and administration of the Congress and its sucessor, the
15 See also Texas Co v. N L. R B., 119 F. ( 2d) 23 (C. C. A 7).
16 Corning Glass Works v. N. L. R B., 118 F (2d) 625 (C C A. 2).
17 N L R B v Newport News Shipbuilding, supra ; N. L. R. B. V. Link-Belt Company,
311 U S. 584; Westinghouse Electric V N L. R. B., supra; International Assn. of
Machinists v. N L. R. B., supra.
NEPTUNE METER COMPANY 1249
ERO, and has contributed support thereto. Since the Congress as such has been
dissolved and there appears to be no likelihood of its reestablishment, no order
will be herein recommended specifically directed against it. The effect and con-
sequences of the respondent's domination, interference with, and support of the
ERO, as well as the continued recognition of the ERO as the bargaining repre-
sentative of its employees, constitute a continuing obstacle to the free exercise
by its employees of their right to self-organization and to bargain collectively
through representatives of their own choosing Because of the respondent's
illegal conduct, the ERO is incapable of serving the respondent's employees as a
genuine colective bargaining agency. Moreover, the continued recognition of
the ERO would be obstructive of the free exercise by the employees of the rights,
guaranteed to them by the Act. Aecording,y, it will be recommended that the
respondent disestablish and withdraw all recognition from the ERO as the
representative of any of its employees for the purpose of dealing with it con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment.
It is clear that the respondent's contract of January 1, 1944, with the ERO,
constituted and was part of the unfair labor practices. It will therefore be
recommended that the respondent cease and desist from giving effect thereto.
Nothing herein shall be taken to require the respondent to vary those wages,
hours, seniority, and other such substantive features of its relations with the
employees themselves which the respondent has established in performance of the
said contract, or any revision, extension, renewal, modification, thereof.
-Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, and Employees' Representative Organiza-
tion are labor organizations, and Congress of Neptune Meter Company was a
labor oiganization within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Congress of Neptune Meter Company and Employees' Representative Organization
and by contributing support thereto, the respondent has engaged in and, as to the,
.11R0, is engaging in, unfair labor practices within the meaning of Section S (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 respondent has engaged is
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
-4. The aforesaid unfair labor practices are unfair labor practices affecting-
commerce Within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Neptune Meter Company, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or administration of Em-
ployees' Representative Organization, or any other labor organization of its,
employees, and from contributing support to Employees' Representative Organ-
ization, or any other labor organization of its employees;
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1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Giving effect to any and all contracts, supplements thereto or modifica-
tions thereof, with Employees' Representative Organization ;
(c) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
2' Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Withdraw all recognition from Employees' Representative Organization,
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, or other conditions of employment, and completely disestablish
said Employees' Representative Organization as such representative ;
(b) Post immediately in conspicuous places throughout its plant at Long
Island City, New York, and maintain for at least sixty (60) consecutive days
from the date of posting, notices stating that the respondent will not engage in
the conduct from which it has been recommended that it cease and desist in
paragraph 1 (a), (b), and (c) of these recommendations; (2) that it will take
the affirmative action set forth in paragraph 2 (a) of these recommendations;
and (3) that its employees are free to become or remain members of United
Electrical, Radio & Machine Workers of America, or any other labor organiza-
tion, and that the respondent will not discriminate against any employee because
of membership in such organization ;
(c) Notify the Regional Director for the Second Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply herewith
_It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that he has complied with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
(late of the entry of the order transferring the case to the Board, pursuant tc
Section 32 of Article II of said Rules and Regulations, file with the Board, Ru-
chambeau Building, Washington, D. C., an original and four copies of a statement
in writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objectives) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and- shall file a copy with
the Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before, the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board.
HOWARD MYERS,
Trial Examiner.
Dated September 6, 1944.