Picker X-Ray Corporation, Waite Manufacturing Division, Inc.

National Labor Relations Board - Board Decisions

May 31, 1939

12 N.L.R.B. 1384 (N.L.R.B. 1939)

In the Matter of PICKER X-RAY CORPORATION, WAITE MANUFACTURING
DIVISION, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS
Case No. C-682-Decided May 31, 1939
X-Ray and Electrical Medical Equipment Manufacturing Industry-Inter-
ference, Restraint , and Coercion : anti-union statements by supervisory employees,
interference with consent election-Company-Dominated Union: supervisory
participation in soliciting membership in and organization of inside union ;
urging employees to form and join inside union ; expressed opposition to outside
union ; evidence that inside union was not intended to function as instrument
for effective collective bargaining ; employer ordered to disestablish-Discri-m-
ination: discharge of one employee for union membership and activity-
Settlement : agreement to cease prosecution between union filing charge and
respondent, no bar to present decision-Reinstatement 01 dered: discharged em-
ployee-Back Pay: awarded from date of discharge to date of Intermediate Re-
port and from date of Order to offer of reinstatement.
Mr. Max Johnstone and Mr. Harry Lodish, for the Board.
Mr. W. K. Stanley and Mr. Harry E. Smoyer, of Cleveland, Ohio,
for the respondent.
Mr. Irving G. Whitman, of Cleveland, Ohio, for the Association.
Mr. Guy Farmer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists, herein called the I. A. M., the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Eighth Region (Cleveland, Ohio), issued its com-
plaint, dated February 19, 1938, against Picker X-Ray Corporation,
Waite Manufacturing Division, Inc., Cleveland, Ohio, herein called
the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices within the meaning of Section
8 (1), (2), (3 ), and (5), and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act.
In respect to the unfair labor practices the complaint alleged in
substance (1) that the respondent had dominated and interfered with
12 N. L. R. B., No. 134.
1384
PICKER X-RAY CORPORATION 1385
the formation and administration of a labor organization known as
Employees' Welfare Association, herein called the Association; (2)
that the,respondent refused to bargain collectively with the I. A. M.
as the exclusive representative of its employees; (3) that the respond-
ent discharged Arthur Watson for union activities, thereby discourag-
ing membership.in the I. A. M.; and (4) that the respondent, by the
above and other acts and conduct specifically set forth therein, inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed by Section 7 of the Act. Copies of the complaint,
accompanied by notice of hearing, were duly served upon the re-
spondent, the I. A. M., and the Association. Pursuant to a petition
filed by the Association before the hearing, the Regional Director
granted the Association permission to intervene in the proceedings.
On February 26, 1938, the respondent filed its answer admitting
the allegations of the complaint concerning the interstate character
of its business but denying that it had engaged in any unfair labor
practices.
Pursuant to notice, and after a postponement, notice of which was
duly given, a hearing was held on March 21, 22, 23, 24, 25, 28, 29,
30, and 31, 1938, at Cleveland, Ohio, before James L. Fort, the Trial
Examiner duly designated by the Board. The Board, the respond-
ent, and the Association were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the hearing, counsel for the Board
moved that it be noted on the record that the allegations of com-
plaint charging an unfair labor practice within the meaning of Sec-
tion 8 (5) of the Act were withdrawn. The Trtal Examiner granted
this motion. At the conclusion of the Board's case, counsel for the
respondent and for the Association moved that the complaint be
dismissed. The Trial Examiner denied these motions, except in so
far as the allegations under Section 8 (5) of the Act were concerned,
no ruling being made on the motion in that respect. These rulings
are hereby affirmed. During the course of the hearing the Trial
Examiner made several other rulings on motions and objections to
the admission of evidence. The Board has reviewed these rulings
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. At the close of the hearing, counsel for the re-
spondent renewed the motion to dismiss the complaint made at the
conclusion of the Board's case. The Trial Examiner reserved decision
on this motion for his Intermediate Report.
On May 28. 1938, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all parties, in which he
found that the respondent had engaged in unfair labor practices
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of Section 8 (1) and (2) and Section 2 (6) and
(7) of the Act, and recommended that the respondent cease and
-desist therefrom and also take certain specified affirmative action.
He also found that the respondent had not engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act, and recom-
mended that the allegations to that effect be dismissed. The Trial
Examiner in his Intermediate Report also ruled on the motion to
dismiss the complaint upon which he had reserved decision at the
close of hearing. He granted the motion in so far as the allegations
under Section 8 (5) of the Act were concerned but denied it with
respect to all other allegations of the complaint. On June 11 and
June 16, 1938, respectively, the Association and the respondent filed
their exceptions to the Intermediate Report, and on June 11, 1938,
the respondent requested opportunity for oral argument before the
Board. On December 12, 1938, the respondent filed a motion with
the Board for an order that during the oral argument, counsel for
the Board should state his position with reference to certain issues,
and that the respondent be granted 2 hours for oral argument. On
December 14, 1938, the Board issued an order denying this motion.
Pursuant to the request for oral argument, and to notice, a hearing
for the purposes of oral argument was held before the Board in
Washington, D. C., on December 29, 1938. The respondent and the
I. A. M. were represented by counsel and participated in the argu-
ment. The Board has considered the exceptions to the Intermediate
Report and the arguments advanced by the respondent at the hear-
ing before the Board and, in so far as they are inconsistent with
the findings, conclusions, and order set forth below, finds them to
be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation with its principal place of
business at Cleveland, Ohio, and is engaged in the manufacture and
sale of X-ray and electrical medical equipment. About 50 per cent
of the raw materials used in the respondent's plant and about 90
per cent of its finished products are shipped in interstate commerce,
approximately three-fourths of its entire output being sold through
the Picker X-Ray Corporation, a separately incorporated sales or-
ganization with its office in New York City.
It is conceded by the respondent that its operations are within the
jurisdiction of the Board.
PICKER X-RAY CORPORATION
II. THE ORGANIZATIONS INVOLVED
1387
International Association of Machinists, Local No. 233, is a labor
organization, affiliated with the American Federation of Labor, ad-
mitting to membership the production and maintenance employees
of the respondent.
Employees Welfare Association is an unaffiliated labor organiza-
tion, admitting to membership all employees of the respondent below
the rank of foreman.
III. THE UNFAIR LABOR PRACTICES
A. The chronology of events
In the latter part of May 1937, Walter Paul, a machinist employed
by the respondent, conducted a meeting of employees at which he
stated that he had conferred with Edwin Goldfield, the respondent's
general manager, and that the latter had suggested that the em-
ployees should not join any outside union but rather should consider
participating in the formation of a labor organization whose member-
ship would be confined to the X-ray industry. The meeting was
held in the plant during the noon hour with the express permission
of Goldfield, and continued for several minutes after the end of the
lunch period.
About a week after this meeting, Paul held a second meeting of
employees at which organization of a plant union was discussed and
a committee was elected to formulate plans therefor. There were
included on the committee Wayne Turner and John Burger, super-
visory employees of the respondent. The record does not disclose
any further organizational efforts at that time.
During the early part of August 1937, the I. A. M. began to organ-
ize the respondent's employees and within a short time secured 20
applications for membership. Arrangements were made for an •
organizational meeting on August 16. On August 13, Goldfield, ac-
companied by George Watterson, plant superintendent, left Cleve-
land for a vacation, and in their absence Caperton Horsley, chief en-
gineer, and Louis Mihalka and Arthur Fingerhut, foremen, were the
ranking supervisors at the plant. Immediately upon learning of the
I. A. M. activities and the proposed I. A. M. meeting, Horsley,
Mihalka, and Fingerhut launched a campaign to halt the organizing
efforts of the I. A. M. and to foster an inside union. About August
16, Horsley, acting with the approval of Mihalka and Fingerhut, con-
ducted a meeting of employees in the plant during working hours.
Several employees who attended the meeting testified that Horsley
denounced outside unions as "rackets" which would only foment
trouble and cause expense and might even lead to the closing of the
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant, that he advocated the formation of an inside union, and
finally, that he requested them to refrain from any further organiz-
ing activities until Goldfield returned to the plant.
Shortly thereafter, on August 18, when it appeared that the pre-
vious meeting had not completely halted the organizing activities
of the employees, Horsley and the two foremen conferred with the
members of the committee elected at the meeting conducted by Paul
in the preceding May and sought their advice concerning further
measures to curb the I. A. M. Pursuant to the committee's sugges-
tion, Horsley and his fellow supervisors called a second general
meeting of the employees, which was held that same afternoon in the
plant during working hours. Horsley, Mihalka, and Fingerhut were
not present at the beginning of the meeting, having delegated its
conduct to the committee. After the members of the committee had
urged the employees to form a union of their own, a vote was taken
under the direction of the committee to determine whether the em-
ployees preferred an "outside" or an "inside" union. A majority
of the employees voted in favor of an "outside" union. Apparently
disconcerted by the results of the vote, the committee immediately
sent for Horsley. The latter then appeared at the meeting, and,
according to the testimony of several employees who attended the
meeting, repeated his derogatory statements with respect to outside
unions, advised the employees to "give an inside union a chance,"
and again requested them to cease their organizing activities until
Goldfield returned. Thereupon, in the presence of Horsley, the em-
ployees voted to accede to his request to take no further action
during Goldfield's absence, and then, pursuant to Horsley's sug-
gestion, elected a committee to discuss grievances with the respondent.
Horsley denied at the hearing that he spoke disparagingly of the
I. A. M. and in favor of a plant union at the above meetings. The
overwhelming weight and corroborative nature of the testimony of a
large number of witnesses to that effect, however, convinces us that
Horsley made such statements. Furthermore, despite his denial,
Horsley admitted that the meetings were inspired by reports of union
activities, that he expressed doubt at the meeting that an outside
union was appropriate at the respondent's plant, and that, although
stating that he had no authority to speak for the respondent, he
asked the employees to take no action while Goldfield was on vaca-
tion. Although Horsley testified that he made the latter request
merely to forestall a strike, it appears from his own testimony as
well as that of other witnesses that there was no present danger of
cessation of work on the part of the employees. -
When Goldfield returned to the plant about August 30, 1937, he
immediately discussed wages and other matters with the committee
PICKER X-RAY CORPORATION 1389
:selected at the meeting of employees on August 18, informed the
committee that he appreciated the manner in which it was "handling
things" in the plant, and asked the members of the committee not
to be too hasty about joining any union.
On August 19, the I. A. M. filed charges with the Board alleging
that the respondent had engaged in unfair labor practices within
the meaning of Section 8 (1) and (2) of the Act. The respondent
and the I. A. M. thereafter, on September 2, agreed that a consent
election should be conducted on September 10, by the Board's Re-
gional Director for the Eighth Region, to determine whether or not
the employees desired to be represented by the I. A. M. for the
purposes of collective bargaining. By the terms of the agreement
both the respondent and the I. A. M. agreed not to attempt to in-
fluence the vote of any employee in the election. The agreement
was reduced to writing on September 8, and on the following day,
pursuant to an understanding accompanying the agreement, the
respondent posted a notice in the plant stating that the employees
were "free to form or join any organization" they might elect to
represent them, without interference from the respondent. The
I. A. M. thereupon withdrew the charges which it had previously
filed against the respondent.
The election was held as scheduled on the afternoon of September
10. At the election, 43 of the employees cast votes against the
I. A. M. and 38 of the employees cast votes for the I. A. M. The
1. A. M. contested three of the votes which were cast against it.
During the period from September 2, the date on which the elec-
tion was agreed upon, to September 10, the date on which the elec-
tion was held, the respondent granted wage increases to a large
number of employees. In several instances the respondent accom-
panied the announcement of the raises with statements reflecting its
animosity toward the I. A. M. and with references to the pending
election. About a week before the election, Fingerhut, a foreman,
notified Mike Natco, an employee, that the latter was being granted
an increase in pay and then stated that an election would be con-
ducted soon thereafter to determine whether the employees desired
to be represented by the I. A. M. and that Natco should do what-
ever he thought best for himself and the respondent. About the
same time, Fingerhut informed Meron Kupchewich, an employee who
was a member of the I. A. M., that he was being awarded a raise in
pay, and advised Kupchewich that, "if you work with the manage-
ment you will get along further." Fingerhut then apprised Kupche-
wich of the pending election and, after stating that he knew Kup-
chewich had been active in the I. A. M., suggested that Kupche-
wich "could just as well go around to the other boys and tell them to
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vote the other way." About 3 or 4 days before the election, Finger-
hut called Louis Takacs, an employee, to his desk and inquired if
Takacs was "going on with the boys or not on the strong-arm stuff."'
Takacs, who was not at the time a member of the I. A. M., replied
that he was not satisfied with his wages and intimated that he
favored union organization and. might vote for the I. A. M. Fin-
gerhut then inquired as to whether it would make Takacs "happier"
to have a raise and informed him that he would receive an increase
in pay immediately and an additional increase within a short period
of time.
On October 12, 1937, Goldfield held a meeting of the employees
at which he stated that he had heard rumors that the employees
felt that he did not have their interests at heart and that his object
was to correct that impression and solicit their cooperation. He
further stated that in the face of financial difficulties the respondent
had paid the highest wages possible and had "tried to set up a
plant here with as near to ideal working conditions as can be found
in the city," and asserted that he thought that there should be "some
definite recognition of the efforts that we have made to make your
conditions agreeable." Goldfield then concluded his remarks with
the following appeal:
I don't have anything further to say to you gentlemen. I
have simply tried to give you an explanation of the situation
that confronts us. We can't prosper without you prosper, and
you can't prosper without us prospering. One side here is as
much dependent on the other as any two can be. We can't
produce a line of equipment without you. You gentlemen need
employment. Why can't we work together the same as we used
to?
On about October 28, the I. A. M. submitted a proposed collective
agreement to Goldfield, and thereafter, on November 5 and 15,'con-
ferred with him concerning this suggested contract. At the begin-
ning of the first of these conferences, Goldfield reiterated the state-
ments which he made at the October 12 meeting, to the effect that the
respondent was paying the highest wages and providing the most
favorable working conditions possible, and served notice that in its
dealings with the I. A. M. with respect to the agreement the respond-
ent would continue to champion the interests of its employees "just
as much now as (it had) ever done before." Among his opening
remarks in this regard appears the following statement:
We have tried not only in this plant, into which we recently
moved, but also in the old plant tried to provide as nice work-
ing conditions for our help as we could. When this trouble came
PICKER X-RAY CORPORATION 1391
up, I told the representative that we paid the men all we could
afford to do. If we entered into any agreement with anyone,
the first thing of importance to us is how good is that agreement
for our employees. That is going to be our first consideration.
Goldfield then entered into a discussion of the individual pro-
posals, taking pains to convey the impression that his primary con-
sideration was the effect of the agreement upon the welfare of the
employees. In referring to one particular provision of the contract,
he stated :
First, I want to make it perfectly clear to you that there is
nothing in that paragraph that bothers me so much from my
point of view as it bothers me from our employees point of view.
During the course of this discussion, Goldfield severely criticized
the contract, charged that it was not written by the employees or in
their best interests, and castigated it generally as "an agreement
which does not guarantee our employees anything." He also com-
mented upon the short terms of employment at the plant of the mem-
bers of the I. A. M.'s bargaining committee and strongly intimated
that they were for that reason unfit to represent the employees.
Among other things in this regard he stated :
Two men have been with us 3 years, two three months and one
six months. Do you think that these men who have been with
us three months, working that time in one department have had
an opportunity to study our conditions, our situation, our line,
our equipment, our personal problems to keep the plant running?
I don't think they can.
At the second conference between the I. A. M. and the respondent
on November 15, Goldfield presented as a counter offer a proposed
agreement which the respondent had drawn up after the first meet-
ing. The respondent's proposal was -for an agreement between the
respondent and "those of its employees who are members of" the
I. A. M., rather than an agreement between the respondent and the
I. A. M. It provided that all negotiations with the respondent should
be conducted by a "Committee of Employees," with an appeal to the
I. A. M. only "if it is found impossible" for the committee to reach
an understanding with the respondent. It further provided that
all grievances should be submitted by the individual employee to his
foreman, with recourse being had to the I. A. M. solely as a last
resort.
About the middle of November 1937, several employees circulated
a petition among the respondent's employees for an inside union.
Frank Flowers, an assistant foreman, at this time urged Harry Roth,
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employee, to join the proposed group, and when the latter stated
that he would not do so, Flowers stated that Roth was "liable to be
sorry." On November 22, 1937, the employees who had circulated
the petition held a meeting of employees for the purpose of organiz-
ing the proposed plant union. Frank Flowers, Frank Weinman,.
Wayne Turner, and John Burger were among those in attendance at
this meeting and among those who took an active part in the pro-
ceedings. These four men allot work to and supervise the work of
other employees. The respondent concedes that they are "key" men
and that they are employed in a supervisory capacity. Ernest Bede,.
foreman of the.paint department, also attended the meeting. At
the meeting it was decided to present to the respondent a petition,
which had been previously drafted with the aid of Irving G. Whit-
man, an attorney, requesting that the respondent execute no agree-
ment with the I. A. M. until the plant union could submit its pro-.
posals. A committee was elected to meet with Whitman and draft
a proposed agreement and a constitution.
A few days later, Whitman and the committee met and drafted
a proposed agreement and a constitution. A meeting of employees
was then held, at which the proposed agreement was approved, the
constitution was adopted, and Burger was elected president. Burger,
Whitman, and others were authorized to present the proposed agree-
ment to the respondent.
On December 1, 1937, the Association committee and Whitman con-
ferred with Goldfield and other officials of the respondent with
respect to the agreement submitted by the Association. In his
opening statement concerning the proposed agreement, Whitman
explained that the provision for a slightly higher wage scale, which
was the Association's chief request, was included because "these men
forming the organization felt that they must have some direct aim,
and that it must achieve some result in order to justify its existence
in their own minds and to justify its existence in the minds of its
opponents." Somewhat later he stated in the same connection that
the "organization felt that it must achieve some purpose in order
to gain the loyal response from the other members of the employees
who are liable to feel that the `Employees Welfare Association' is
of no actual value to them."
Goldfield informed the committee that he felt "absolutely confi-
dent if through this group (the Association) it were possible to
secure a better understanding of the problems that confront us as a
unit, we could make more money and could pay increases more
frequently and more liberally." Whitman and members of the com-
mittee, in response to the statement of Goldfield and similar state-
ments by other of the respondent's supervisory officials, denounced
PICKER X-RAY CORPORATION 1393
the I. A. M. as radicals and troublemakers and pledged the loyal
support of the Association to a campaign against an outside organi-
zation.
B. Domination of the Association, and interference, restraint, and
coercion
We think it clear from the facts set forth in subsection A above
that the respondent dominated and interfered with the formation
and administration of the Association and engaged in numerous acts,
of interference, restraint, and coercion.
The meeting of employees in May 1937, at which the formation
of a plant union was first discussed, was held in the plant with the
express permission of Goldfield. At the meeting, Paul informed the
employees that Goldfield had advised against the employees joining
an outside union and had suggested that employees consider the for-
mation of an organization, the membership of which would be limited
to the X-ray industry. We are convinced on the basis of the evidence
presented that Goldfield had knowledge as to what was said and
done at the meeting. Indeed, he testified at the hearing that he
"may" have learned concerning what occurred at the meeting. Despite-
such knowledge, he made no effort to correct the understanding that
the respondent had initiated and that it favored the plan outlined by-
Paul.
As soon as the I. A. M. began its organizational campaign, the,
respondent, through its supervisory employees Horsley, Mihalka, and
Fingerhut, immediately began an active campaign against that organ-
ization. As a part of their activities, these supervisory employees,
sponsored two meetings of employees on company property during
working hours, the clear purpose of which was to curb the I. A. M.
and promote an inside union. At both meetings, Horsley denounced
outside unions and advocated the formation of an inside union.-
Although the respondent does not deny that Horsley, Mihalka, and
Fingerhut are supervisory employees, it contends that the respondent
is not responsible for or bound by their actions, on the ground that,
they were not authorized to act for the respondent and could not
have been, inasmuch as Goldfield, the general manager, and George
Watterson, plant superintendent, were absent on vacation at the time.
We find this contention to be without merit. As we have previously
1 Cf. Matter of M. Lowenstein & Sons, Inc. and Bookkeepers ', Stenographers' and-
Accountants ' Union, Local No. 16, United Office and Professional Workers of Anmertca,_
C 1 0 ; Matter of M. Lowenstein & Sons, Inc. and Tea;ttile Workers Organizing Committee
Local No. 65, C. I. 0.; Matter of M. Lowenstein & Sons, Inc. and United Wholesale Em-
ployees of N. Y., 6 N. L. R. B. 216.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointed out in our decisions,2 an employer in its relations with its
ordinary employees acts through and must be held responsible for
the acts of its supervisory employees. Indeed, Horsley, Mihalka, and
Fingerhut not only held supervisory positions but at the time in
question were the chief representatives of the respondent at the plant.
Moreover, when Goldfield returned to the plant shortly after the two
meetings of the employees and was informed of the occurrences dur-
ing his absence, he not only failed to indicate disapproval thereof
but immediately entered into negotiations with the committee selected
at the second meeting and advised the members thereof not to be
too hasty about joining a union. The respondent also contends that
it is relieved from responsibility for any remarks made by Horsley
at the meetings, on the ground that Horsley stated at the time that
he had not been authorized to speak for the respondent. We find
this contention likewise to be without merit. Horsley not only was
in charge of the engineering department but also, at the time in
question, was one of the three ranking representatives of the respond-
ent at the plant. Consequently, he exercised a considerable measure
of control over the employees, and was in a position of responsibility
and influence as regards any disciplinary action which might be taken
by the respondent. Under such circumstances, the mere disavowal
by Horsley of authorization to speak for the respondent clearly did
not dispel the coercive effects of his expressed opposition to the
I. A. M. and approval of an inside union. Since the respondent
placed Horsley in a position where his statements of opposition to the
I. A. M. and approval of an inside union were coercive notwithstand-
ing his disclaimer of authority to speak for the respondent, the
respondent must be deemed responsible for such statements.
After the consent election had been agreed upon, and before it
was held, the respondent granted wage increases to a large number
of employees. During this same period, Fingerhut, in informing
certain of the employees with regard to wage increases to them, made
statements derogatory to the I. A. M. and statements clearly calculated
to influence the employees to vote against the I. A. M. in the pending
election. The respondent denies that the wage increases were given
employees for the purposes of influencing their vote in the election,
and contends that they were given because employees had complained
that their wages were unsatisfactory and after an employee com-
z See Matter of Ward Baking Company and Committee for Industrial Organization,
8 N. L R. B. 558; Matter of Mock-Judson -Voehringer Company of North Carolina, Incor-
porated and American Federation of Hosiery Workers, North Carolina District, 8 N. L.
R. B. 133; Matter of Emsco Derrick and Equipment Company ( D and B Division) and
Steel Workers Organizing Committee, 11 N. L. R. B 79; Matter of Tennessee Copper Com-
pany and A . F of L Federal Union No. 2164, 9 N. L R B. 117.
PICKER X-RAY CORPORATION 1395
mittee had petitioned the respondent for an increase in wages. It
further contends that there was nothing unusual in the granting of
the wage increases, and in support of such contention submitted in
evidence a list showing that the respondent had on a number of oc-
casions during the preceding 2-year period granted wage increases
to groups of employees. It is to be noted in this connection that
no contention is made that the wage increases here in question were
granted pursuant to any predetermined plan calling for the auto-
matic granting of raises to groups of employees at fixed intervals.
We think it clear that the purpose and effect of the granting of
wage increases at the time in question were to interfere with a free
choice of representatives by employees in the election and to induce
the employees to vote against the I. A. M.
The acts of the respondent discussed above occurred prior to the
election held on September 10, 1937. The respondent conten&.tfiat.
it agreed to the holding of the election upon the basis of ait under
standing that the charges previously filed by the I. A. M. woirlcl
be withdrawn and that the Board is therefore precluded from re-
quiring into any unfair labor practices of the respondent prior to
the date of an election. We find this contention to be without merit.
In a proper case, the Board may exercise its discretion and refuse
to disturb a settlement.' It is clear, however, that no such case is
here presented. Any such understanding obviously contemplated
that the respondent would not further engage in unfair labor prac-
tices and clearly was not understood by the parties to be a bar to
any determination by the Board if the respondent did further en-
gage in unfair labor practices. It is clear from the facts herein
presented that subsequent to the date on which the election was
agreed upon the respondent continued to engage in unfair labor prac-
tices. The respondent further contends that the Board is precluded
from finding that the respondent engaged in any unfair labor prac-
tices in connection with the election, inasmuch as both the I. A. M.
and a representative of the Board certified that the election was fairly
conducted. We find this contention likewise to be without merit.
The certificate referred to by the respondent merely affirmed the
fairness of the conduct of the actual balloting and did not refer to
and cannot preclude an investigation by the Board with regard to
the acts engaged in by the respondent prior to the balloting.
In the light of the activities of the respondent both prior and
subsequent to the speech which Goldfield made on October 12, 1937,
the reasonable construction of the speech is that it constituted an
attempt on the part of Goldfield to persuade the employees that they
8 See Matter of Ingram Manufacturing Company and Textile Workers Organizing
Committee, 5 N. L. R. B. 908.
169134-39-vol. 12-89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should look to the respondent rather than to the I. A. M. for a pro-
tection of their interests.-' The respondent further indicated disap-
proval of the I. A. M. and intimated that the representatives of the
I. A. M. were not qualified to represent the employees at the time it
rejected the proposed agreement submitted by the I. A. M. in
November 1937.
During the latter part of November 1937, Flowers, Weinman,
Turner, and Burger, supervisory employees of the respondent, ac-
tively participated in the meetings at which the organization of
the Association was consummated and Burger became president of
the Association. At least one of such supervisory employees, Flow-
ers, solicited membership in the Association. The fact that such
admittedly supervisory employees do not possess the authority to
hire and discharge, and the fact that such supervisory employees
became members of the Association, cannot, as contended by the
respondent, relieve the respondent from responsibility for the acts
of:such V employees.5
`We have pointed out in subsection A above the nature of the
dealings between the respondent and the Association subsequent to the
formation of the Association. It is clear from the facts there set
forth that the Association did not function as an instrument for
genuine collective bargaining and that it was utilized by the re--
spondent merely as a means to direct and control the desires of the
employees with respect to representation.
We find that the respondent has dominated and interfered with
the formation and administration of the Employees Welfare Asso-
ciation and has thereby, and by the other acts above set forth, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
C. The discharge of Arthur Watson
Watson was employed by the respondent on January 20, 1937, and
worked variously as a tool maker, a die maker, and a machinist,
until he was discharged on February 3, 1938. He joined the I. A. M.
early in October 1937, was immediately elected a shop steward, and
actively participated in the activities of the I. A. M. As a shop
steward he participated in the negotiations with and presented
grievances to the respondent.
4 See Matter of American Manufacturing Company; Company Union of the American
Manufacturing Company; The Collective Bargaining Committee of the Brooklyn Plant
of the American Manufacturing Company and Textile Workers ' Organizing Committee,
0.1. 0, 5 N. L. R. B. 443.
8 See Matter of T. W. Hepler and International Ladies Garment Workers Union, 7 N. L.
R. B. 255; Matter of Ward Baking Company and Committee for Industrial Organization;
Matter of Ward Baking Company and Confectionery Workers International Union of
Ame, ica, 8 N. L. R. B. 558.
PICKER X-RAY CORPORATION 1397
The respondent contends that Watson was discharged on February
3, 1938, because of excessive spoilage on his part during the preceding
period of 4 months. Its witnesses testified to the effect that during
such period Watson spoiled material on several different occasions
and that such spoilage resulted in a loss to the respondent of $34.75
in labor and $18.94 in materials. The respondent also contends that
the spoilage was the result of Watson's carelessness and neglect of
duty.
It appears that on at least one of the occasions referred to by the
respondent the spoilage was due, in part at least, to faulty machinery,
and that on another occasion the spoilage was due, in part if not in its
entirety, to instructions given by Watson's foreman. However, even
if it is assumed that Watson's spoilage was excessive during the
period in question, we think it clear in the light of the facts set forth
below that Watson's discharge was based on his union membership
and activities rather than on any spoilage, carelessness, or neglect
of duty.
Immediately after Watson joined the I. A. M. and became active
therein, the respondent began to earmark and preserve all materials
scrapped by him. The usual practice of the respondent was to dis-
card the scrap made by the employees by placing it indiscriminately
in barrels kept in the shop for that purpose. Oli December 23, 1937,
Goldfield gave as a reason for preserving Watson's scrap materials-
an alleged rumor that the spoilage on Watson's part was not "acci-
dental." We find no basis in the record for concluding that the
spoilage was in anywise intentional, and, indeed, counsel for the
respondent conceded at the oral argument before the Board that
Watson was not a "malicious fellow." Under all the circumstances,
we conclude that Watson's scrap materials were kept by the respond-
ent because of his union membership and activities.
That the respondent was motivated in its discharge of Watson by
the latter's union activities is further indicated by remarks made
by Goldfield on December 23, 1937. On such date, Goldfield called
Watson and Burger, as representatives of the I. A. M. and the
Association, respectively, into his office, purportedly to discuss the
matter of a Christmas bonus to employees. At the beginning of the
conference, Goldfield stated that little money was available for
bonuses and that this was largely due to the fact that the employees
were "loafing or stalling" and diverting their energies to union
activities. Goldfield then accused Watson of instructing members
of the I. A. M. to solicit membership during working hours, and
stated, "If you elected to work here it was because of your own free
will and accord. It may be an accident or there may be some direct
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connection with it. Nevertheless, for 20 years-over 20 years-while
I have been in the X-ray business, we have had a peaceful shop.
There was never the slightest tendency for any trouble. Five or
six months after you come here the place was in an uproar." Gold-
field then remarked, "You are old enough not to go out of your way
to look for trouble." Following the above remarks, Goldfield pro-
duced materials which he alleged Watson had spoiled and intimated
that the spoilage was intentional. Although denying that he was at
fault in the instances cited by Goldfield, Watson admitted that dur-
ing the preceding 3 months he had scrapped more materials than
usual for such period. Watson further denied that piny spoilage was
deliberate, offered to make good the loss and to salvage some of the
spoiled parts on his own time. Goldfield then dismissed the matter
by stating, "You say this is all accident, so let us forget it." There-
after, Goldfield requested Watson and Burger to inform the respec-
tive groups of employees that the smallness of the bonus was trace-
able to the labor difficulties and that "this horseplay has got to be
cut out." The conference closed abruptly after the following
conversation :
GOLDFIELD . I do wish you gentlemen would get the information
to the group about the bonus.
WATSON. What do you want us to tell them?
GOLDFIELD. I have been spending a whole lot of time talking
about it. Do you [addressing Burger] know what to tell the
group 1
BuRQER . I certainly do.
GOLDFIELD . I know a dead-end street when I see one. We might
as well call the meeting off.
The circumstances surrounding the actual discharge of Watson
are also persuasive that the respondent was utilizing the spoilage of
materials on Watson's part merely as an excuse to discharge a leading
participant in the organizational efforts of the I. A. M. On February
3, 1938, Goldfield summoned Watson and the members of the I. A. M.
committee and stated, "Well, I have to let a man go." He then pro-
duced the materials which Watson had allegedly spoiled and stated
his suspicion that the spoilage had been deliberate. A member of
the I. A. M. committee inquired as to whether other employees had
not also made scrap, and Watson attempted to make a statement.
Goldfield, however, refused to discuss the matter, stating, "I have
heard all I want to hear." He thereupon instructed Watterson and
Mihalka, who were present, to "handle the matter as you see fit,"
and left the room. Watterson then informed Watson that he was
discharged.
PICKER X-RAY CORPORATION1 1399
We find that the respondent, by discharging Watson on February
3, 1938, discriminated in regard to his hire and tenure of employment,
thereby discouraging membership in the I. A. M., and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with its operations 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 obstructing commerce and the
free flow of commerce.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order the respondent to cease and desist
therefrom and to take certain affirmative action designed to effectuate
the policies of the Act, including the disestablishment of the Associa-
tion as the representative of any of its employees for the purposes
of collective bargaining's and including also the reinstatement of
Arthur Watson without prejudice to his seniority or other rights and
privileges. We shall further order the respondent to make whole
said Arthur Watson for any loss of pay he has suffered by reason
of his discharge by payment to him of a sum of money equal to the
amount which he normally would have earned from the date of his
discharge to the date of the Trial Examiner's Intermediate Report
and from the date of this decision to the date of the offer of rein-
statement,7 less his net earnings 8 during said periods.
8 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261,
aff'g 1 N. L. R. B. 1; National Labor Relations Board v. Pacific Greyhound Lines, Inc.,
303 U. S. 272, aff'g 2 N. L. R . B. 431.
° Since the Trial Exminer recommended the dismissal of the complaint with respect to
Watson, back pay will not be ordered for the period from the date of the Intermediate
Report to the date of this Decision. See , for a similar order , Matter of Louisville Reliving
Company and International Association, Oil Field, Gas Well and Refinery Workers of
America, 4 N. L. R . B. 844.
8 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N L. R. B. 440 . Monies
received for work performed upon Federal , State , county, municipal , or other work -relief
projects are not considered as earnings , but, as provided below in the Order, shall be
deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal , State , county , municipal , or other government
or governments which supplied the funds for said work -relief projects.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Local No. 233, and
Employees Welfare Association are labor organizations within the
meaning of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of Employees Welfare Association, has en-
gaged in and is engaging in unfair labor practices within the meaning
of Section 8 (2) of the Act.
3. The respondent , by discriminating in regard to the hire and ten-
ure of employment of Arthur Watson , thereby discouraging member-
ship in International Association of Machinists, Local No. 233, has
engaged in unfair labor practices within the meaning of Section 8 (3)
of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in unfair labor practices within the meaning of
Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the 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 respond-
ent, Picker X-Ray Corporation, Waite Manufacturing Division, Inc.,
Cleveland , Ohio, and its officers , agents, successors , and assigns shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Employees Welfare Association, or with the formation or
administration of any other labor organization of its employees, and
from contributing support to Employees Welfare Association or
any other labor organization of its employees;
(b) Discouraging membership in International Association of
Machinists, Local No. 233, or any other labor organization of its em-
ployees , by discriminating in regard to hire or tenure of employment
or any term or condition of employment;
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their rights to self -organization, to
form , join , or assist labor organizations , to bargain collectively
PICKER X-RAY CORPORATION 1401
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 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 Welfare Associa-
tion as a 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 conditions of work, and
completely disestablish said Employees Welfare Association as such
representative;
(b) Offer Arthur Watson immediate and full reinstatement to
his former position without prejudice to his seniority and other
rights and privileges;
(c) Make whole Arthur Watson for any loss of pay he may have
suffered by reason of his discharge, by payment to him of a sum of
money equal to the amount which he would normally have earned
as wages from the date of his discharge to the date of the Interme-
diate Report and from the date of this Order to the date of the offer
,of reinstatement, less his net earnings during said periods; deduct-
ing, however, from the amount otherwise due said employee, monies
received by him during said periods for work performed upon Fed-
eral, State, county, municipal, or other work-relief projects, and pay
over the amount so deducted to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(d) Immediately post notices in conspicuous places throughout its
plant and maintain such notices for a period of sixty (60) consecu-
tive days, stating (1) that the respondent will cease and desist as
set forth in paragraphs 1 (a), (b), and (c) above, and (2) that the
respondent will take the affirmative action set forth in paragraphs
2 (a), (b), and (c) above;
(e) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.