Poe Machine & Engineering Co., Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1954

107 N.L.R.B. 1372 (N.L.R.B. 1954)

1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was qualified , to the date on which Respondent makes the aforesaid offer of employment. It
will be further recommended that the Respondent make Day whole for any loss of pay he may
have suffered by reason of Respondent ' s discrimination by payment of a sum of money equal
to that which Day would have earned as wages from the date of the discrimination to the
date Respondent makes an offer of employment to Day , less his net earnings during said period.
Said loss of pay shall be computed in the basis of each separate calendar quarter, or portion
thereof , during the period from the Respondent ' s discriminatory action to the date of the
aforesaid offer of employment . The quarterly periods, hereinafter called "quarters ," shall
begin with the first day of January, April, July, and October . Loss of pay shall be determined
by deducting from a sum equal to that which the employee would normally have earned for each
quarter or portion thereof, his net earnings , if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back -pay liability of any other
quarter In this connection it will be further recommended that Respondent be required, upon
reasonable request, to make all pertinent records available to the Board and its agents.
It has also been found that Respondent unlawfully interrogated its employees regarding the
Union through its foreman, John H. Carroll.
In view of the nature of the unfair labor practices committed , the commission by the
Respondent of similar and other unfair labor practices may reasonably be anticipated. The
remedy shquld be coextensive with the threat . It will therefore be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following.
CONCLUSIONS OF LAW
1 United Steelworkers of America , CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the employment of Henry Day , the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(3) of the Act.
3. By engaging in the acts and conduct summarized in section V, above, entitled "The
Remedy ." including discrimination , and thus interfering with, restraining , and coercing its
employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has
engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
[Recommendations omitted from publication ]
POE MACHINE & ENGINEERING COMPANY, INC .and UNITED
STEELWORKERS OF AMERICA , C.I.O. Case No . 6-CA-587.
February 26, 1954
DECISION AND ORDERS
On June 19, 1953, Trial Examiner Frederic B. Parkes, 2nd,
issued his Intermediate Report iniche 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 attached hereto.
The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the
complaint and recommended that these allegations be dismissed.
Thereafter , the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
107 NLRB No. 287.
POE MACHINE & ENGINEERING COMPANY, INC. 1373
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief,
and the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the Trial
Examiner with the modifications noted below.
We agree with the Trial Examiner that the Respondent's
refusal to recognize and bargain with the Steelworkers on April
29, 1952, was based upon a good-faith doubt as to the Steel-
workers' majority status and thus was not violative of Section
8 (a) (5) of the Act. We also concur in his finding that the
Respondent's conduct in dominating and, interfering with the
Committee, in violation of Section 8 (a)'(2) of the Act, occurring
shortly after the Respondent declined to recognize the Steel-
workers as the bargaining representative of its employees,
did not constitute a per se violation of Section 8 (a) (5) of
the Act. In doing so, however, we deem it unnecessary to adopt
the Trial Examiner's rationale in support of this finding. We
merely conclude that, as the Respondent's conduct both ante-
cedent and subsequent to its refusal to recognize and bargain
with the Steelworkers did not negate its good-faith doubt as
to the Steelworkers' majority status at the time of the latter's
demand for recognition, the Respondent was therefore under no
duty to recognize that labor organization . Consequently, the
Respondent's domination and interference with the Committee,
albeit in violation of Section 8 (a) (2) of the Act, was not in dero-
gation of that duty and accordingly could not constitute a per se
violation of Section 8 (a) (5) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board orders that the Respondent,
Poe Machine & Engineering Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Dominating, interfering with, and contributing support
to the Committee, or any other labor organization, including
any successor to the Committee.
1The Trial Examiner' found that the Respondent violated Section 8 (a) (2) of the Act by
dominating and interfering with the Employees' Committee of Poe Machine & Engineering
Cc., Inc., and Section 8 (a) (1) of the act by interrogating an employee concerning union
activities. As the Respondent has indicated that it will accept the Trial Examiner's findings
in this connection, and as no exceptions have been taken thereto, we adopt them pro forma,
without passing upon the issues presented. Board Member Rodgers would not find the inter-
rogation to be violative of Section 8 (a) (1). He believes that where, as here, there are no
other independent violations of Section 8 (a) (1), mere interrogation generally does not
amount to interference, restraint, or coercion within the meaning of the Act. However, in
the absence of exceptions to this finding, Member Rodgers concurs.
337593 0 - 55 - 88
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interrogating its employees with respect to their union
activities.
(c) In any like or related manner, interfering with, restrain-
ing, or coercing its employees in the exercise of their right to
self-organization , to form labor organizations , to join or assist
United Steelworkers of America, C.I.O., or International
Association of Machinists, A.F.L., or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized by Section 8 (a) (3) of
the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from and completely
disestablish the Committee as the representative of any of its
employees for the purpose of dealing with the Respondent
concerning grievances , labor disputes , wages, hours of employ-
ment, or other conditions of employment, and withhold all such
recognition from any successor to the Committee.
(b) Post at its plant in New Wilmington, Pennsylvania,
copies of the notice attached to the Intermediate Report
and marked "Appendix A."2 Copies of said notice, to be
furnished by the Regional Director for the Sixth Region
(Pittsburgh, Pennsylvania), shall, after being duly signed by
the Respondent's duly authorized representative, be posted
by the Respondent immediately upon receipt thereof, and
maintained by it for a period of sixty (60) consecutive days
thereafter in conspicuous places, including all places where
notices to employees customarily are posted . Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other
material.
(c) Notify the Regional Director for the Sixth Region,
in writing, within ten (10) days from the date of this
Order, what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint, insofar
as it alleges that the Respondent violated Section 8 (a)
(3) and (5) of the Act, shall be, and it hereby is, dis-
missed.
2 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" in the caption thereof, the words "A Decision and Order." In the event
that this Order is enforced by a decree of a United States Court of Appeals, the notice shall
be further amended by substituting for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
POE MACHINE & ENGINEERING COMPANY, INC. 1375
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by United Steelworkers of America , C.LO., herein called the
Steelworkers , the General Counsel of the National Labor Relations Board, by the Regional
Director for the Sixth Region ( Pittsburgh , Pennsylvania), issued a complaint dated December
22, 1952, against Poe Machine & Engineering Company , Inc., herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 ( a) (1), (2), (3), and (5 ) of the National
Labor Relations Act, as amended , 61 Stat. 136 , herein called the Act Copies of the charges,
complaint , and notice of hearing were duly served upon the Respondent , the Steelworkers,
and "Employees Committee of Poe Machine & Engineering Co., Inc." Since the latter
appears never to have had a formal name , it is referred to herein as the Committee and
the employee committee.
With respect to the unfair labor practices , the complaint , as amended during the hearing,
alleged in substance that the Respondent ( 1) about April 22, 1952, and thereafter , had refused
to bargain collectively with the Steelworkers as the exclusive bargaining representative of
the Respondent 's employees in an appropriate bargaining unit, although "-commencing on or
about Aprl 19, 1952 and at all times thereafter ," the Steelworkers was the duly designated
collective-bargaining representative of the employees in the appropriate unit and although
the Steelworkers had previously requested that the Respondent bargain collectively with it as
the statutory representative of the Respondent ' s employees ; (2) commencing about May 6,
1952, and thereafter , suggested , sponsored , assisted , and interfered with the formation of,
and dominated the Committee, and thereafter bargained collectively with the Committee as
the representative of its employees in the appropriate unit (3) on May 6 , 1952, and again on
May 23 , 1953, discriminatorily discharged and, after the latter date, refused to reinstate
Dolf Walker because of and for the purpose of discouraging his membership in, sympathy
for, and activity on behalf of the Steelworkers , and for the purpose of encouraging among
its employees membership and participation in and support of the Committee ; and (4) com-
mencing on or aboutDecember 5,1951 , and at all times thereafter , interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act
by (a) interrogating employees as to their membership in, sympathy with, or activity on
behalf of the Steelworkers , (b) threatening its employees with discharge and other economic
reprisal because of and in order to discourage membership in, sympathy with, and activity
on behalf of the Steelworkers , and (c) making promises of benefit to its employees for the
purpose of discouraging membership in , sympathy with , and activity on behalf of the Steelwork-
ers The complaint further alleged that by the foregoing conduct the Respondent has engaged
in unfair labor practices within the meaning of Section 8 (a) (1), (2), (3 ), and (5 ) of the Act.
Thereafter , the Respondent duly filed an answer , admitting certain allegations of the
complaint but denying that it had engaged in the alleged unfair labor practices and setting
forth certain affirmative defenses . On January 19, 1952 , the Respondent filed with the Regional
Director interrogatories relating to certain allegations of the complaint . On January 20, 1953,
the Regional Director issued an order referring the interrogatories for disposition to the
Trial Examiner designated to conduct the hearing herein On the same day , the General
Counsel filed objections to interrogatories . On January 23, 1953, Trial Examiner Arthur E.
Reyman issued a memorandum and order on interrogatories, ruling that the interrogatories
are not consonant with the meaning of rule 33 of the Rules of Federal Procedure and ordering
that the interrogatories be accepted and taken as filed for a motion for a bill of particulars
and that the General Counsel furnish certain information as to a paragraph of the com-
plaint. 2 Thereafter , the General Counsel submitted the required information to the Respondent
in a bill of particulars.
'During the course of the hearing , the undersigned granted the General Counsel's motion
to amend the complaint so as to delete the allegations that the Respondent had violated the
Act by discriminating in regard to the hire and tenure of employment of Wallace Frankenburg.
2 At the hearing , Ned L Mann, counsel for the Respondent , stated that he had not received
a copy of Trial Examiner Reyman's memorandum and order. An examination of the formal
file in the instant proceeding reveals that the memorandum and order was served upon the
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held on Feburary 3 and 4, 1953, at New Castle, Penn-
sylvania, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The General Counsel and the Respondent were represented by
counsel, and the Steelworkers and the International Association of Machinists, AFL, herein
called the IAM, by official representatives.
At the outset of the hearing, the Respondent moved to dismiss the complaint under the
purview of rule 37 of the Rules of Federal Procedure and objected to the taking of testimony
of any witness concerning any matter covered by the interrogatories. The motion was denied
and the objection overruled for the reasons stated by Trial Examiner Reyman in his memo-
randum and order on interrogatories, namely, "The rules of procedure for the district
courts of the United States applicable to matters such as this are the rules governing evidence,
and not the rules governing pleadings." The Respondent also objected to the introduction
of any testimony regarding the complaint's allegations relating to events prior to April 22,
1952, the date alleged in the complaint when the Respondent unlawfully refused to bargain
with the Steelworkers. The Respondent's theory in this regard was as follows:
The complaint here sets out that as of April 22nd there was purportedly a free choice.
Therefore, any act of the company or its employees prior to that time could not possibly
have any effect upon the rights of the men to select a bargaining agent of their own
choice, because on April 22nd the complaining witness says here in this proceeding
that he then had the representation authority from the very men whom we are charged
with interfering with reference to their rights under Section 7 of the Act.
The objection was overruled, for the reason that the matter raised by the Respondent was
governed by Section 10 (b) of the Act; the 6-month period of limitation of that section com-
menced to run about December 5, 1951.
At the conclusion of the General Counsel's case-in-chief, the Respondent renewed its
objection to the taking of evidence of events occurring prior to April 22, 1952, and in effect
moved that such testimony be stricken. The motion was denied for the reasons previously
stated. The Respondent's additional motion for the dismissal of the complaint was also
denied.
Upon the conclusion of the hearing, the undersigned granted a motion by the General Counsel
to conform the pleadings to the proof as to dates, spelling , and minor variances. Ruling was
reserved upon the renewal of the Respondent's motions made earlier in the hearing. The
motion for dismissal of the complaint is disposed of in accordance with the findings of fact
and conclusions of law reached below. The other motions, as renewed, are denied for the
reasons stated previously. At the conclusionofthehearing, the undersigned advised the parties
that they might argue before and file briefs or proposed findings of fact and conclusions of
law, or both, with the Trial Examiner. The parties waived oral argument. Thereafter the
Respondent and the General Counsel each filed a brief with the undersigned.
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Poe Machine & Engineering Company, Inc ., a Pennsylvania corporation , is engaged at
New Wilmington , Pennsylvania, in the operation of a job machine shop and in the manufacture
parties by registered mail, return receipt requested, on January 23, 1953. A copy was sent
to the following address:
Ned L Mann, Esq
Attorney for Poe Machine & Engineering Co.
South Market Street
New Wilmington, Pennsylvania
The return receipt for this copy shows that it was received by Dorothy Kaufman on January
26, 1953
POE MACHINE & ENGINEERING COMPANY, INC. 1377
of ordnance parts. During the calendar year 1952, the Respondent purchased for use at its
plant supplies and materials valued in excess of $ 80,000, of which approximately 50 percent
was shipped from points outside the Commonwealth of Pennsylvania to its plant. During
the same period, the Respondent manufactured, sold, and shipped finished products valued
at approximately $ 200,000 , of which approximately 90 percent was shipped from its plant
to points outside the Commonwealth of Pennsylvania. The Respondent admitted that it is
engaged in commerce wihin the meaning of the Act and is subject to the jurisdiction of
the Board.
II THE ORGANIZATIONS INVOLVED
United Steelworkers of America, C.I.O., and International Assocation of Machinists,
A. F.L., are labor organizations admitting employees of the Respondent to membership
The Committee is an unaffiliated labor organization participated in by employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
Before detailing the sequence of events , it would be helpful to set forth the findings as to
the appropriate unit . The complaint alleged, the Respondent ' s answer admitted , and it is
found that all production and maintenance employees of the Respondent, excluding salaried
and clerical employees , professional employees , guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
B. Sequence of events
1. The setting , history and production difficulties of the Respondent , organization of
the Steelworkers , Case No 6-CA-535 and its settlement
The Respondent entered into machine shop operations on a major scale in late 1950 or early
1951, although prior to that time it had conducted experimental work on a "slitter line." It
manufactured items under various contracts in connection with the national defense program.
Such contracts contained delivery dates and, in some instances, the Respondent's inability
to deliver the items by the required date resulted in the cancellation of contracts. Donald
Shaeffer , comptroller of the Respondent , described its operations as being "right from the
inception of the company . a hand-to-mouth affair . In other words, our weekly sales and
shipments ran the company for the following week."
In November 1951, the Steelworkers launched a campaign to organize the Respondent's
employees. On January 28, 1952, it filed with the Board unfair labor practice charges in Case
No 6-CA-535, alleging that the Respondent had engaged in violations of Section 8 (a) (1)
and (3) of the Act. These charges were ultimately settled informally The undersigned has
taken official notice of the Board records in Washington, D C., concerning this settlement
to the effect that a settlement agreement was executed on April 29, 1952.3 It appears from
the present record, as well as the fact that the case was closed on May 21, 1952, that the
Respondent posted appropriate notices and there is no contention that the customary posting
provisions were not fulfilled by the Respondent.
The complaint alleged that certain conduct of the .Respondent engaged in prior to the
settlement agreement was violative of Section 8 (a) (1) of the Act In view of the following
principle of the Board in respect to settlement agreements , the evidence adduced by the
3In his brief, the General Counsel states, "The Settlement Agreement is dated April 21,
1952." Possibly it was on this date that the representatives of the Steelworkers and the
Respondent executed the agreement and the settlement was approved by the Regional Director
on April 29, 1952. However, for the purpose of this report it is not necessary to determine
whether the Respondent executed the agreement on April 21 or 29, inasmuch as the conduct
of the Respondent, urged by the General Counsel to be violative of the settlement agreement,
occurred in May 1952, and thereafter.
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel in support of such allegations of the complaint will not be detailed until
it has been determined whether the Respondent engaged in violations of the Act subsequent
to the execution of the settlement agreement on April 29, 1952•
It is the Board ' s established practicenot to consider as evidenceof unfair labor practices
conduct of a Respondent antedating a settlment agreement , unless the Respondent has failed
to comply with the settlement agreement or has engaged in independent unfair labor
practices since the settlement . Moreover , in determining whether such independent
unfair labor practices have occurred after the settlement , the Board will not appraise
a Respondent ' s post - settlement conduct in the light of its conduct prior to the settlement
No reasons appear why we should not follow that policy here. 4
2. Revival of the Steelworkers ' organizational campaign,
request for recognition
In April 1952, interest in the Steelworkers revived and it initiated another organizational
campaign . According to employee James Armstrong , a witness for the General Counsel, the
reason for the employees ' self-organizational efforts resulted from their resentment as to
the manner they were treated by General Manager Paul Hergenrother and from the dissension
and bad feeling existing between General Manager Hergenrother and Plant Superintendent
William Flickinger , who were "back and forth at each other, and it continued from then on
until the spring or along about April. The guys saw the way things was going . It was pretty
well on end , nothing was settled. That ' s when they decided we will start the union up again."
Between April 19 and 22, 1952 , 31 employees within the unit found to be appropriate above
signed cards requesting and accepting membership in the Steelworkers and authorizing that
organization to represent them for the purposes of collective bargaining As of April 22,
1952 , and during the period from April 22 until April 30, 1952 , there were 57 employees within
the appropriate unit
On April 22, 1952, the Steelworkers sent the following letter to the Respondent , which re-
ceived it the following day:
This letter will advise you that a substantial majority of the production and maintenance
employees at your plant located in New Wilmington, Pennsylvania , have designated the
United Steelworkers of America as their representative to bargain with you in respect
to wages , hours of work , and other conditions of employment.
I have assigned Staff Repr esentative James W Norman to handle the negotiations
for an agreement with you. He will contact you within the next few days to arrange a
mutually satisfactory date for such a meeting.
On April 22 , 1953, Staff Representative James Norman by telephone arranged to meet
with General Manager Hergenrother the following day. On April 23, 1953, Norman conferred
with Hergenrother , told him that the Steelworkers represented a majority of the Respondent's
employees , and requested that the Respondent enter into negotiations with the Steelworkers
for a collective-bargaining contract . Hergenrother replied that he would be required to
consult with his superiors and, at Norman 's request, promied to arrange a meeting between
them and Norman.
On April 25 , 1952, the Steelworkers filed with the Regional Office a 9 (c) petition covering
the Respondent 's employees in Case No. 6-RC-1065.
Pursuant to arrangements made by Hergenrother, Norman conferred on April 29, 1952,
with General Manager Hergenrother , Comptroller Donald Shaeffer , Ned Mann, who was
president and counsel for the Respondent , and Ralph Kaufman, who was treasurer and a
director of the Respondent . The credible testimony of Mann reveals that the following
occurred at the conference:
Mr Norman told us, told me, that he was in possession of authorization cards from
a majority of the workers in our plant. . . At the time that Mr Hergenrother called
me and told me about [ Norman's desire to confer with the Respondent ' s officials] . .
4Larrance Tank Corporation, 94 NLRB 352. Marginal references have been omitted from
the quotation in the text.
POE MACHINE & ENGINEERING COMPANY, INC. 1 379
he also told me that he had received a call from one of the men in the plant, whose
name I don't now know , who was a part time worker then employed by United, and
that there was a group of men from United in our plant , either former employees or
present employees of United , and that they were all IAlr men; ands that if they were
put in a position of having dual unionship , there was going to be trouble
I did not disclose that fact to Mr Norman. However, I did tell Mr Norman when
he made demand upon us that it was rather strange that the Steelworkers ' Union should
be interested in a machine shop . I didn't know very much about the activities of the
Steelworkers ' Union as such , and, as Mr Norman stated, he told me of all the different
types of plants in which the Steelworkers had representation rights
He requested then that we sign an agreement -- I believe he said an agreement;
I am not quite sure of the language -- to the effect , in substance , that what he requested
was that we recognize the Steelworkers ' Union for bargaining purposes , and that all he
wanted at that time was an agreement of recognition , that the matter of contracts and
other matters, wages and working conditions , would be taken up at a subsequent time.
But I understood then that that was contemplated , and that was inherent in the recognition
of the majority interest.
I told him that as far as we were concerned , we could not do what he requested us
to do for the reason that . . . the employees were interested in another union in the
plant , and that it might well be, we didn ' t know that some employees wanted no union
at all, and that, in any event , an agreement for recognition would spell trouble for us,
and we wanted to be relieved of that burden. We said that we didn't care , I didn't care
which, if any , union came into the plant , that I would prefer some union to come into
the plant , because we met a great many operating problems that arose from disputes
about wages and working conditions , and that if wehad a union to help police that situation,
we would probably have a great deal more peace, since we could call on the union to
police their own contract.
I also told him that if the matter went to an election and he won , I said he had our
blessings if he were able to win the election , his union , we would talk wages and working
conditions as soon as practicable thereafter , but I said I didn't want to be in a position
of compromising the rights of the men to choose any union that they wanted , and we knew
there were men in the shop who did not want the CIO 6
According to Norman ' s uncontroverted and credited testimony , Mann admitted that the other
union in which the employees were reported to be interested had not demanded recognition but
declined, when pressed by Norman, to give the name of that organization.
3. Events and circumstances leading to the meeting on May 6, 1952 , between the Respond-
ent's officials and employees, meetings between the Respondent and the employee com-
mittee
As mentioned above, the Respondent since its inception had occupied a somewhat hazardous
financial position , depending upon its weekly production to meet its current obligations . During
the first and second quarters of 1952, its financial situation became even more precarious
due to production difficulties , a great reduction in sales, and a decided increase in merchan-
dise returned because of faulty workmanship . According to Comptroller Shaeffer , the amounts
of rejects increased tenfold during this period As an example of the increase in production
difficulties in the spring of 1952, Treasurer Kaufman cited the following figures: "If we
turned out $ 50,000 for the month , scrap was $27,000 and the payroll was $32,000 " In order
to meet its obligations , the Respondent discounted its accounts receivable and borrowed
5The record in the hearing upon the Steelworkers' petition filed in Case No. 6-RC-1065,
of which the undersigned has taken official notice, reveals that a question was raised as to
part-time employees of the Respondent. These employees worked approximately 4 hours on
the evening shift for the Respondent and during the day had regular, full-time employment
with another employer.
6 Kaufman's testimony was corroborative of that of Mann. Norman's testimonial version
of the conference was not so detailed as, and was at odds in certain respects with, that of
Mann. However, since Mann appeared to be an especially sincere and reliable witness, the
undersigned has complete confidence in the integrity of Mann's testimony and accordingly
rejects the testimony of Norman to the extent it was at variance with that of Mann
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from private individuals and officers of the Respondent . Director Charles Shaeffer described
the situation in his credible testimony as follows : The "tremendous amount of rejects and
difficulty in production and delivery . . put us in a very tough spot . I think at that particular
time I had to go out and borrow 15 or 25 thousand additional dollars , a personal loan from a
friend, which was not bankable We were what is commonly called tapped out."
The concensus of the testimony of the witnesses both for the General Counsel and the
Respondent attributed the principal cause for the Respondent ' s production difficulties to
animosity existing between General Manager Hergenrother and Plant Superintendent Flick-
inger Thus, Director Charles Shaeffer testified credibly , " To me the story there appeared
to be that there were two camps , for what I determined later : one of loyalty to Bill Flickinger
and one of loyalty to Paul Hergenrother , and we were caught in between the two of them.
As a result of that we were getting into a bad spot as far as production was concerned, and
deliveries ." There is no suggestion in the record that the Respondent deemed its employees'
union activities as the cause of the production difficulties or that the Respondent evidenced
any overt disapproval of such activity in April or May 1952 . Subsequently , Flickinger and
Hergenrother left the Respondent ' s employ, apparently in May and August 1952, respectively.
The office of the Respondent ' s officers and directors was in Cleveland , Ohio, and during
this period , employees frequently telephoned Treasurer Kaufman in respect to production
difficulties It appears that in early May 1952, the Respondent ' s officers received a letter
signed by some employees , urging the officers to come to the plant in New Wilmington,
Pennsylvania , because of dissension in the shop About May 5, 1952 , General Manager
Hergenrother telephoned Kaufman and suggested that a meeting between the officers of
the Respondent and the employees be held within 48 hours in regard to the production diffi-
culties, otherwise , " You don't know where it is going to end up " According to Charles
Shaeffer ' s recollection , the Respondent ' s officials were urged by Hergenrother to come to
the plant and "if we didn't come down there that there would be no work in the place at
all, the place would be just closed down."
On May 6, 1952 , the employees of the Respondent were assembled in the yard shortly
after the end of the first shift at 4 p . m. The meeting was attended by all employees. Those
working on the day shift had punched out and it appears that the employees on the night or
second shift , who comprised between a third and a quarter of the entire complement of
employees , had punched in before going to the meeting . Present on the part of the Respondent
were General Manager Hergenrother , Director Charles Shaeffer , Treasurer Kaufman, and
Comptroller Donald Shaeffer . There is no inherent conflict in the testimony of the various
witnesses as to the occurrences at the meeting According to employee Charles Apel , Charles
Shaeffer opened the meeting by saying that the officials had "received a letter at Cleveland
signed by some men in the shop , there was quite a bit of dissension in the shop , and some-
thing should be done about it or they wouldn ' t have a shop much longer . So that they wanted
to call the men together and see what could be done about it. Then Mr Bebech7 said 'Well,
fellows, here is the top mangement . You tell them what's wrong with it.' And he was
deeply concerned with the way the company was going, and he wanted the men personally
to tell the top management what was wrong with their shop . And everyone started to voice
their opinion, and employee Wallace Frankenburg said, ' Could I have a few minutes'
'You have got the floor ' He . . turned to Mr Hergenrother and says , 'There is the s.b.
that's causing all your trouble. You have a good man that's shop superintendent now, and
everybody likes him . . You also have Ray Campbell as a good foreman He got a dirty
deal ' " Kaufman pointed out that the plant's production was decreasing , and the Respondent
was not making enough money to meet its payrolls , according to employee James Armstrong's
testimony , and stated that "there was too much dissension in the plant, there was something
wrong and they wanted to find what was wrong ." Armstrong told Kaufman " that what was the
sense of us trying to beat our brains out and give them a decent day ' s work when it was
told to us that there wasn't a mechanic in the plant, and as far as machinists went , [Hergen-
rother ] didn't think he had any "
Employee Vernon Wanty testified that at this point , with employees asking questions and
offering suggestions , Shaeffer said that he was unable to talk to everyone at once and suggested
that they "get representatives so that they can present what's wrong to us ." Wanty's testimony
was corroborated by the other employee witnesses . Thus , employee Armstrong testified that
the employees were talking and offering suggestions simultaneously and that Shaeffer sug-
7 Michael Bebech had been the general manager prior to Hergenrother . The record is not
clear as to Bebech's official capacity with the Respondent thereafter.
POE MACHINE & ENGINEERING COMPANY, INC. 1381
gested they appoint a committee inasmuch as "he didn 't have room in his office to take care
of all of us at one time ; to get someone to represent us in some way." According to employee
Apel , Shaeffer stated , "What we need is some men to collect all your gripes and grievances
and present them to us. We are not getting any place this way."
The Respondent's officials were not certain whether the suggestion for the appointment of
an employee committee came from Shaeffer or arose spontaneously from the assembled em-
ployees . In this regard, Charles Shaeffer gave the following testimony:
Well, we held this meeting in the back of the plant out on the apron, and I think the
gist of what has been said here before is pretty much what did occur there, except stand-
ing up there on the pile of steel, trying to find out what the devil was at the bottom of it,
we were desperate . It wasn't a matter that could have been left to decide a month from
now. If we didn't have production within a matter of a few weeks or we didn't get that
ironed out, we were done . Here was every dollar we owned in the world , every dollar we
borrowed was sunk into this place, and none of us were wealthy men. So we just took the
bull by the horns there, said, "Giveus your grief, what is it' Let's get this thing ironed
out." Thequestionwas raised did I suggest a committee or did they suggest a committee;
as Donald put it, I don't know. Somebody shouted up, "We will never get anywhere," and
we weren't . To me the tenor of the crowd was almost that close to riot.
In the absence of a specific denial of the employees ' testimony , the undersigned finds, in
accordance with that testimony, that Shaeffer proposed that the employees select a committee
to collect their suggestions.
When the subject of the committee arose, employee Dolf Walker stated that he did not "see
why we should have a committee at this time," because the Steelworkers "have been trying to
get into the plant , and I understood they would be out there shortly ." The witnesses were uni-
formly in agreement that Charles Shaeffer replied that the committee in no way would affect
the organizational efforts of the Steelworkers but was an interim measure brought about by the
production difficulties. Thus, Shaeffer testified that he told the employees twice, "This has
absolutely nothing to do with union activities; do whatever you want to do. . . But, fellows, we
are desperate. Something has got to be done now." In like vein was employee John Biddle's
recollection of Shaeffer 's statement , as follows : Shaeffer said , " I don't give a damn what
union they have; they can have any union they want... What [the Respondent's officials] wanted
to do was get a few of the things straightened out, get a little more peace in the plant ... so
they could get production and everything running a little smoother than what it was ." In this
regard, employee Apel testified that Shaeffer answered Walker's query by saying that Shaeffer
"wasn't trying to interfere with the union, that that's our privilege, to have a union and what-
ever union we want." According to employee Armstrong, Shaeffer said in this connection,
"Well, what you do about a union is up to you. Under the law we have no way of stopping it in
any way at all." Employee Wanty testified that Shaeffer's reply to Walker was to the effect,
"We don't care whether you want a union or not. That's your privilege."
Thereupon, the Respondent's supervisors and officials left the meeting, while the employees
remained in the yard and chose, through nominations and a vote by show of hands , the following
committee to confer with the Respondent 's officials : Employees Wanty , Armstrong, Apel,
Gerald Cameron, John Biddle, and James Baker. The record shows that between April 19 and
22, 1952, Wanty, Armstrong, Apel, and Baker had signed authorization cards in the Steelwork-
ers and that at a date not disclosed by the record , Cameron and Biddle signed such cards.
Later in the evening of May 6, 1952, employee Dolf Walker was discharged and reemployed.
As found below, the discharge of Walker was not violative of the Act.
Feeling that the employee committee had been selected in such a hurry "that we ought to
put the thing to the men again ," Wanty called another meeting of the employees in the plant
yard the following day at 4 p. m. and, according to his testimony, "we did go through a more
official way of nominating the members of the committee ." The employees reaffirmed their
choice of committeemen made the day before . In addition , Wanty testified , "At the second
meeting I tried to find out just what the grievances were , if that 's the term to use . I asked
them , and there was one man I know complained about the fact of someone getting a higher
rate than he did and doing the same type of work , and there was another man, who complained
that he had not been allowed to work [overtime on] the previous Saturday when he had worked
a machine all week. An then there was general shouts about , 'We want paid vacations and paid
holidays .' I made a note of the things which were put forward with a view to bringing these
things as the cause of the trouble to the directors ." It appears that the second meeting, like
1 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the first , was held during the working hours of the second shift and that the employees of that
shift suffered no loss in pay for time spent in the meeting.
On May 7, 1952, the Regional Director informed the Respondent by telegram that on May
20, 1952, a hearing would be held upon the Steelworkers ' petition filed in Case No. 6-RC-1065.
Shortly after the employee meeting on May 7 , Wanty telephoned Treasurer Kaufman , requested
that the Respondent 's officials meet with the Committee , suggested either May 10 or 12, 1952,
as possible dates for the conference , and said that unless the Respondent conferred with the
Committee at an early date it would "have no plant ." They agreed that a meeting would be
held on May 12.
Accordingly , on May 12, 1952, the employee committee met with President Mann, Director
Charles Shaeffer , Treasurer Kaufman , Comptroller Donald Shaeffer , and General Manager
Hergenrother in the latter ' s office around 4 p. m. Of the employee committee , it appears
that all but Wanty were employed at this time on the day shift, which ended at 4 p. in. Wanty
worked the second shift and suffered no loss in pay for the time consumed by the meeting.
At the outset of the meeting , President Mann made a statement , reiterated at subsequent
meetings with the Committee , to the following effect, as shown by the credible testimony
of Director Charles Shaeffer , who was corroborated by Kaufman and by employees Apel,
Armstrong , and Wanty in varying degrees: "That you might have to go all through this
again if and when a union is installed , that this meeting should not influence you one way
or the other as to whether or not you have a union or what union , because it is of little or
no concern to us; and that this is an emergency measure "
In respect to this meeting , Wanty testified credibly that he had drawn up an agenda of
topics for discussion as a result of the grievances voiced by the employees at the meeting
on May 7, and that the following occurred on May 12:
Q. [By Mr McGowan] Can you tell me what you recall of the discussion of each of
these subjects , insofar as you can recall , both on your own part and on the part of
any member of your committee or on the part of any member of management who
attended
A. Well, as far as the first point , that is the choice of personnel for overtime,
there was no question but that the management agreed that this was only fair, that
if a man had worked on a machine all week, there was no question but that he should
be allowed to work that same machine on a Saturday when overtime was involved
Q. Tell me, first of all, Mr . Wanty, was this a discussion of a particular grievance
of an individual , or was this a discussion of general practice of policy which the com-
mittee thought ought to be followed9
A. Well, it led from the discussion of the grievance of an individual into a matter
of a general policy.
Q. Continue with your description of the meeting , Mr Wanty.
A. Regarding the job classification , again it was agreed that some form of this should
be taken, should be done , but it was pointed out, I believe Mr Mann pointed out, and,
of course , the committee saw the sense of the thing, that this was a big thing I mean
you just didn ' t do a job classification in a matter of minutes . Therefore , that would
have to wait.
We got to point No. 3 The committee asked about the matter of vacations and holi-
days being paid for, and we were assured that once the company got into a position
where the company could afford to do this, steps would be taken to see that we came
into line with other companies of a similar nature to ours.
With regard to details on the production target, before the bonus system could be-
come effective , I made a suggestion here that in the plan it would be a good idea to
have a chart which would show the target had been reached which would allow the
company to pay a bonus on top of the ordinary wages which were being paid, and I
believe that it was agreed that such a chart would be drawn up 8
As far as the Safety Committee was concerned , again there was no question but
that the directors , they saw the sense of having such a committee in the plant so that
the men could work more safely
8 The record shows that the Respondent had sometime previously adopted the bonus system.
This suggestion related to the preparation of a chart of weekly production totals to show when
the point would be reached for the payment of the bonus.
POE MACHINE & ENGINEERING COMPANY, INC. 1383
Again, with regard to rules of conduct , this was also agreed that rules of conduct
should be drawn up and posted in the plant.
Point No 7, seniority among plant personnel, this, too, was agreed that it was only
right that men who had been with the company a long time should have preference
over the men who had only been with the company a short time
With regard to the last point , promotion within the plant, here again it was agreed
by the directors that any promotions which should be made should be made from the
men who actually worked in the plant rather than bringing people in from outside.
On May 13, 1953, President Mann mailed to the employee committee a memorandum
concerning the discussion between it and the Respondent ' s officials on the preceding day
and stating , inter alia , as follows:
Eight specific grievances were brought to the attention of the Board of Directors
for policy action by the Board. In principle, members of the Board of Directors agree
with the Grievance Committee as each complaint made is sound, constructive and
merits immediate rectification as a matter of company policy
The mechanics of solution of several of the problems must necessarily await fur-
ther discussion . A concrete proposal, however , covering each of the deferred items
will be in the hands of the committee within one week for further consideration by
the committee and the employees of the plant.
The memorandum reviewed the discussion upon the 8 grievances and stated that "all
overtime work on specific jobs shall be afforded in order of priority first to the men having
seniority ," with certain exceptions , set forth the details for the formulation of a chart
to be posted "which will indicate to all employees what goals must be achieved before the
bonus system can become effective," and agreed to the establishment of a safety com-
mittee to be composed of the Respondent ' s superintendent of maintenance and an employee.
In respect to the remaining 5 grievances concerning job classification , vacations and holi-
days, rules of conduct, seniority among plant personnel, and promotions within the plant,
the memorandum stated that the Respondent would submit concrete proposals to the Com-
mittee within 1 week. So far as the record shows, no such formal proposals were ever
given the Committee by the Respondent.
The following covering letter from Manii to the Committee accompanied the memorandum,
discussed above, and the letter was posted , without the memorandum , in the Respondent's
plant:
This company has, at your request, undertaken to enter into discussions with members
of a Grievance Committee in order to rectify certain patent injustices which apparently
have existed for some time.
The necessity for dealing with a committee of your choosing has been dictated by
the critical fact that production has virtually come to a standstill during the period of
dissension which has developed during the past ten days.
The board of directors is cognizant of the fact , of which all of you are well aware,
that a petition for representation has been filed and will be heard on May 20th. We
have entered these discussions to avoid the disastrous effects of the losses we have
been called upon to bear by reason of the production curtailment of the past week.
We should like to re-emphasize , so there can be no possible misunderstanding,
that the employees of our plant are free to pursue whatever course their consciences
may dictate with reference to the coming hearing and any proceedings that may ensue
thereafter.
The plan herein outlined is in response to specific grievances which are completely
meritorious and warrant our immediate attention . We must restore amity and pro-
duction, regardless what other steps the employees may deem advisable to take. You
may feel free to post this letter should your committee decide it advisable to do so.
Meanwhile , the IAM launched or intensified an organizational campaign around May 12,
and by May 16, 1952, numerous employees had signed cards applying for membership in
the IAM. Since many had previously executed authorization cards for the Steelworkers,
there are a great number of duplications of cards between the Steelworkers and the IAM.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously mentioned, of the 57 employees within the appropriate unit on April 22, 31
had by that date signed authorization cards for the Steelworkers. Of these 31 employees,
25 executed IAM authorization cards by May 16, 1952. The record also shows that on un-
specified dates 14 other employees who were within the appropriate unit on April 22, 1952,
signed Steelworkers' authorization cards. Of these 14, 9 also signed IAM cards on May
15 and 16, 1952. Disregarding the date of the Steelworkers' authorizations, the record
shows that of the 57 employees within the appropriate unit on April 22, 1952, 34 signed
cards for both the Steelworkers and the IAM, 11 signed cards only for the Steelworkers,
5 executed cards solely for the IAM, 9 and 7 failed to execute cards for either the Steel-
workers or the IAN, it might also be noted that all members of the employee committee
which conferred with the Respondent on May 12 signed IAM authorizations, on May 15 and
16, 1952.
Various reasons were given by the employee witnesses for their signing cards in both
the Steelworkers and the IAM. Thus, according to employee Armstrong, "There was enough
men in the plant felt this was still a democracy, that there weren't just going to take what-
ever they was handed... Well, let's put it this way: Maybe [the Steelworkers] isn't what
the men wanted, or some of the men didn't want that, they wanted their choice to vote "
Employee Biddle's sentiments were, "I think the whole reason why the both unions was
there, so the fellows could have their choice of what they wanted . I mean they had their
chance all right [to make a choice.] Quite a majority signed with the IAM. I signed my-
self All they was waiting for was the election, so they could use it." In this regard, em-
ployee Wanty gave the following testimony:
First of all, I refused to sign a card for the IAM because I considered that I had al-
ready signed the card for the CIO, and therefore it seemed like a reversal of a deci-
sion too quickly. But when the other members of the committee and the majority of
that told me that they had signed for the IAM, I had already committed myself to follow
the ruling of the majority of the committee, therefore I was bound by what I had al-
ready said to the committee, that I would follow the ruling of the majority.
On May 20, 1952, the hearing in Case No 6-RC-1065, based upon the Steelworkers'
9 (c) petition, was held and the IAM intervened
On May 23, 1952, employee Wanty, who was the unofficial chairman of the employee
committee, was informed by certain employees that on that date the time "cards of four
of the men had been pulled." Walker's card was 1 of the 4. As hereinafter detailed, Walker's
discharge on May 23 was not discriminatory.
After conferring with the employees, Wanty and other members of the Committee con-
sulted with General Manager Hergenrother about the matter and when he informed them
that the action was taken upon "orders from Cleveland," the Committee requested an
opportunity to discuss the matter with the Respondent's officials. On May 27, 1952, the
latter conferred with the Committee but no change was made in the action taken against the
4 employees on May 23, 1952, although the Respondent, after discussing the matter with
the Committee, put on probation 4 other employees whom the Respondent had planned to
discharge. At this meeting, the Committee asked whether Memorial Day (May 30, 1952)
would be a holiday and they were informed that it would be considered a holiday and that
employees would be paid time and a half if they worked that day.
On June 5, 1952, the Steelworkers filed its original charges in the instant proceeding,
alleging that the Respondent had engaged in violations of Section 8 (a) (1) and (3) of the
Act.
During the summer, employees were given vacations with pay. Shortly after the con-
clusion of the "Big Steel" strike on July 28, 1952, the employee committee conferred
with the Respondent's officials. There is some conflict in the testimonial versions of the
employee witnesses as to the occurrences at this conference, but for the purpose of this
report it is unnecessary to resolve the conflicts Thus, employee Apel testified that the
following occurred:
9In these computations, the IAM card of employee Clarence Tessmer, who was not within
the appropriate unit on April 22, and who apparently entered the Respondent's employ after
that date, has not been included.
POE MACHINE & ENGINEERING COMPANY, INC. 1385
We asked the management what they intended to do about a pay increase , a general
raise, and they wanted to know in what way we were connected with Big Steel, and we
couldn't give a satisfactory explanation except that we worked with steel , and other
shops doing the same work as ours was getting an increase if they were getting an
increase , we would like to have one, too. Mr . Shaeffer proceeded to tell us that any-
thing that was tacked onto the work that we did would have to go along and be tacked
onto the consumer , that ours was a competitive business , and if we put too much,
tacked too much price onto our material , we'd be out of business , we couldn ' t compete
with the other shops doing the same type of work. So that was satisfactory . We said,
"Well, we ' ll find out what other shops doing the same kind of work are getting and
present it to you."
However, according to employee Wanty, when the Committee inquired whether an in-
crease was forthcoming , the Respondent ' s officials stated that " the company was not in
a position to give any general increase because of" the pendency of the instant proceeding
but assured them that " if a company similar to ours received pay increases, we as a
company would be rewarded accordingly . That is, we would get similar increases. And
[Mann ] put it to the committee to find out if any companies in the area of the same size
and doing the same type of work as Poe Machine did receive any increases to let the man-
agement know " Employee Armstrong ' s testimony was corroborative of that of Wanty
Later , in July or August 1952 , when employees at a meeting inquired as to the reason
for the delay in the conduct of the election in Case No 6-RC-1065, Staff Representative
Norman told them , according to Apel ' s credible and uncontroverted testimony , that "by
signing the IAM cards we just caused a lot more trouble . Another thing that was holding
it up was" the pendency of the instant proceeding
On August 11, 1952, the Steelworkers filed its first amended charge herein , alleging
that the Respondent had engaged in violations of Section 8 (a) (1), (2 ), (3), and (5). Inter
alia , the charge alleged that the Respondent dominated and interfered with the formation
of the employee committee , had interfered with the formation, operation , and administra-
tion of the IAM , and had contributed support to the IAM.
The formal file in Case No. 6-RC - 1065 reveals that on August 12, 1952, the Steelworkers
filed with the Board a request for permission to withdraw the petition in that case , because
of the pendency of charges alleging that the Respondent had violated Section 8 (a) (1), (2),
(3), and (5) of the Act . On August 18, 1952, the Board issued a notice to show cause why
the Board should not permit the withdrawal of the petition in 6-RC-1065 . On August 26,
1952, the Respondent filed objections thereto.
Shortly before General Manager Hergenrother " was let go"--apparently in August 1952--
he told employee Armstrong that "the IAM was the better union of the two." This statement
of opinion was clearly within the protection of Section 8 (c) of the Act and accordingly was
not unlawful.
On December 17, 1952, the Steelworkers filed with the Regional Office a second amended
charge in the instant proceeding . Although the charge alleged that the Respondent had en-
gaged in violations of Section 8 (a) (1), (2 ), (3), and (5) of the Act, it dropped the earlier
allegations that the Respondent had unlawfully assisted and interfered with the organization
of the IAM
On December 19. 1952, the Board issued an order which granted the request of the Steel-
workers to withdraw its petition in Case No . 6-RC-1065 and which closed that case. On
December 22, 1952 , the Regional Director issued the complaint in the instant proceeding.
C. Contentions of the parties as to the alleged
violations of Section 8 (a) (1), (2 ), and (5)
In his brief , the General Counsel urges that from the foregoing sequence of events,
,.it is patent that the Respondent violated Section 8 (a) (2) of the Act by interfering in the
formation of a labor organization ; granting that labor organization recognition in the face
of the Steelworkers claimed representation rights, bargaining with it, agreeing with it and
granting concession to it during the time the Steelworkers' petition was pending before
the Board ; paying its representatives for time spent in organizing and bargaining sessions;
and otherwise making plain its preference for the Committee as the representatives of its
employees " The General Counsel argues that this conclusion and other circumstances
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demonstrate that (1) the Respondent' s insistence on April 29, 1952, upon a Board-con-
ducted election to determine the Steelworkers' majority status was not based upon a good-
faith doubt as to the Steelworkers ' majority but upon a desire to undermine the majority
status of the Steelworkers and, accordingly , (2) since the Steelworkers represented a
majority of the employees in the appropriate unit on April 29, 1952, the Respondent on that
date and thereafter has refused to bargain with the Steelworkers in violation of Section 8
(a) (5) of the Act. In respect to the fact that all but six employees who had designated the
Steelworkers subsequently, in May 1952. signed IAM authorizations , the General Counsel
takes alternative positions : (1) One should infer that the designation of the IAM "was a
not unnatural response of employees to whom their employer had made plain his lack
of sympathy with and intention to reject their chosen representative , the Steelworkers,
--in other words, that the employees' designation of the IAM was the consequence of the
Respondent 's alleged unfair labor practices -- and (2) even if the shift to the IAM was not
attributable to the Respondent 's conduct , the Respondent must, in order to effectuate the
policies of the Act , be required to bargain with the union shown to have had a majority
on the date of the Respondent' s alleged unlawful refusal to bargain on April 29.10
The Respondent on the other hand takes issue with the General Counsel' s contentions
and urges that it questioned the Steelworkers' majority status in good faith, argues that
its relationship to the committee was not violative of the Act, and asserts in its brief
that " the conduct of the respondent in this case completely neutralized the effect of deal-
ing with the grievance committee . The acts of the respondent , both before, during and
after the meetings , make it clear (a) that they could not possibly have tended to interfere
with the right of self-organization , and (b) that the right of self- organization was encouraged
by the employer, in order to settle the personal dissensions among the employees, (c) that
the grievance committee was nothing more than an interim group pending a Board-conducted
election , and (d) that the respondent did everything within its power to neutralize the effect
of dealing with the committee." The Respondent urges the dismissal of the complaint and
suggests that "ju)lgment in this case can and should be rendered only after appraising the
entire situation as it existed during the period in question . The facts are simple if one
divorces Himself from the invitation to grasp at single evidentiary straws, which in other
cases have been found to be violations under the particular facts of those cases."
D. Conclusions as to the Respondent ' s domination of,
interference with, and support to the Committee
The Respondent contends that the Committee was not a labor organization within the
meaning of the Act. The undersigned cannot agree. Section 2 (5) of the Act defines the
term "labor organization " as "any organization of any kind, or any agency or employee
representation committee or plan, in which employees participate and which exists for the
purpose, in whole or in part, ofdealingwith employers concerning grievances , labor disputes,
wages, rates of pay , hours of employment, or conditions of work." As shown above, the em-
ployees in the appropriate unit participated in the Committee, which, as previously found
and as admitted in the Respondent 's answer , met with the Respondent in negotiations which
"involved discussions of wages , working conditions, and other conditions of employment."
It is found that the Committee is a labor organization within the meaning of the Act.
Turning to the issue of whether the Respondent's relationship in respect to the Com-
mittee was violative of Section 8 (a) (2) and (1) of the Act, it seems clear that present
Board precedent , as approved by the courts, supports the contentions of the General Counsel,
even though the equities of the situation may be on the Respondent's side of the argument.
As previously detailed , the Committee had its genesis in the meeting regarding production
difficulties and employee dissension held on May 6, 1952, between the Respondent 's officials
and the employees and resulted from Director Charles Shaeffer' s suggestion that such a
committee be formed . Thereafter, upon company property and to a certain extent upon
company time, the employees selected the individual members of the Committee and met
with the Committee to inform it of their grievances and suggestions On three occasions,
the Respondent ' s officials conferred with the Committee in respect to wages , working con-
ditions, and other conditions of employment. All of these acts of the Respondent were under-
taken in the face of the Steelworkers' previous request for recognition as the majority repre-
m In this regard the General Counsel cites N L R B v. P Lorillard Company, 314 U S
512, and the ensuing line of cases.
POE MACHINE & ENGINEERING COMPANY, INC. 1387
sentative of the Respondent ' s employees and during the pendency of a representation pro-
ceeding initiated by the Steelworkers . 11It thus appears that by the conduct summarized
above, the Respondent dominated , interfered with the formation of, and contributed support
to the Committee in violation of Section 8 (a) (1) and (2) of the Act unless the Respondent's
defenses prevail . In this regard , the Respondent argues that ( 1) its demonstrated intent
was not to interfere with the employees' choice of a labor organization and the Committee
was purely an interim organization to exist only until the determination by the Board of the
representation issue and (2) the statements of its officers effectively neutralized any possible
coercive effect or any inference of unlawful interference with employee rights which might
stem from such conduct in other circumstances.
The undersigned rejects the Respondent ' s arguments that its bona fides negate a find-
ing that it violated the Act. The following language of the court in the Hudson Motor case,iz
which involved unlawful assistance to 1 of 2 competing labor organizations , is applicable to
the Respondent 's argument as to its motives , assuming , as the undersigned believes the
record demonstrates , that the Respondent ' s motives were bona fide: "We think it right
and just to say that so far as the record shows, Respondent has not wilfully violated the
provisions of the Act, but the intent of the employer is not within the ambit of our power
to review When it is once made to appear from the primary facts that the employer has
violated the express provisions of the Act, we may not inquire into his motives "13The
fact that the Respondent did not grant the Committee exclusive recognition as the statutory
representative of its employees but merely dealt with it as an interim organization during
the period required for the Board to process the Steelworkers ' representation petition is
insufficient, under the circumstances of the case , to negate the Respondent ' s conduct,
which was in itself, albeit somewhat technically, violative of Section 8 (a) (1) and (2)14
A closer question is presented by the Respondent's other defense that the statements
of its officials , detailed above and hereinafter summarized , effectively neutralized any
possible coercive effect or any inference of unlawful interference with employee rights
which might stem from the Respondent's relationship to the Committee in other situations--
namely, a situation absent such neutralizing statements and without the particular and some-
what unusual circumstances of the present case. Although the matter is not free from doubt,
the undersigned is impelled to reject this defense of the Respondent . To put the matter some-
what bluntly, it appears illogical and unsound as a matter of law to hold that an employer
may exculpate himself from having engaged in conduct per se violative of Section 8 (a)
(2) and (1) of the Act by merely saying at each step that his conduct was not violative of
the Act and that the employees were not to believe that it was Even if the statements of
the Respondent 's officials were sufficient to neutralize the 8 ( a) (1) aspect of their con-
duct , it appears that such statements were insufficient to relieve the Respondent from
responsibility for its acts of domination, support to, and interference with the Committee
in violation of Section 8 (a) (2) of the Act.K The undersigned concludes and finds that in
its relationship to the Committee , the Respondent has engaged in violations of Section 8
(a) (2) and (1) of the Act.
E. Other alleged interference , restraint , and coercion
Before discussing the issues in respect to the Respondent ' s alleged unlawful refusal to
bargain with the Steelworkers, it would be helpful to consider the evidence relating to the
"But for this circumstance, it is doubtful if the evidence would sustain a finding that the
Respondent engaged in violations of Section 8 (a) (2) of the Act. Cf. Anaconda Copper Mining
Company, 104 NLRB 1064.
12 N L R. B v. Hudson Motor Car Company, 128 F. 2d 528, 532- 533 (C A. 6).
i3See also, N L R. B v, Newport News Shipbuilding A Dry Dock Co., 308 U. S 241, 251;
N L. R. B. v. Gluck Brewing Company, 144 F 2d 847 (C A 8); The Office Towel Supply
Company, Inc., 97 NLRB 449; Eureka Vacuum Cleaner Company, 69 NLRB 878, and cases
cited therein,
i4Although a contrary result was reached as to a similar issue in the following cases, they
are factually distinguishable from the instant proceeding: Phelps Dodge Copper Products
Corporation, et al , 63 NLRB 686; E. I Dupont de Nemours and Company, 81 NLRB 238;
The Electric Auto-Lite Company, 89 NLRB 1407; Lewittes R. Sons, Inc., 101 NLRB 1107;
Stewart-Warner Corporation, 102 NLRB 1153.
'5 Cf. Salant R Salant, Incorporated, 92 NLRB 417, 448; Kropp Forge Company, 68 NLRB
617; McFlale Manufacturing Company, 67 NLRB 1266, 1275.
1 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint's allegations as to certain conduct ofthe Respondent on and after December 5, 1951,
but prior to the settlement executed April 29, 1952, and discussed above Having found that
subsequent to the settlement agreement the Respondent engaged in violations of the Act, it is
now appropriate under Board principles previously mentioned to consider the allegations of
the complaint relating to theRespondent's conduct antecedent to the settlement agreement. The
complaint alleged that such conduct was violative of Section 8 (a) (1) of the Act. As noted ear-
lier, the 6-month period of limitation of Section 10 (b) commenced to run on December 5, 1951.
Employee Charles Apel testified that in December 1951 he had the following conversation with
Superintendent Flickinger Flickinger asked Apel, "Say I understand you are trying to get a
union in this place . did you hear anything about it?" Apel replied, "Yes, there is talk of a
union." Flickinger inquired, "Have they approached you yet? " When Apel replied in the
negative, Flickinger asked, "Is Spruti trying to organize it?" Apel stated that he did not know.
Flickinger then said, "I don't have anything against a union . . but they shouldn't organize
this place for about another six months. Give a company a chance to build up "
Inasmuch as Apel was unable to fix the date of the conversation with any more degree of
preciseness other than it occurred sometime in the first 3 weeks in December 1951, though he
was'pressed to do so, the undersigned makes no finding that by the above conversation the
Respondent engaged in violations of the Act, since it is not established that the conversation
occurred on or after December 5, 1951 It is set forth for the purpose of background.
It was stipulated that if employee John Biddle were recalled as a witness by the General
Counsel he would testify that about December 17, 1951, Plant Superintendent Flickinger asked
Biddle whether employee "Arnold Sprute had been around to sign him up yet for the Steel-
workers " It is found that such interrogation by Plant Superintendent Flickinger was per se
violative of the Act and that the Respondent thereby violated Section 8 (a) (1) of the Act 16
The other witness who was called by the General Counsel and who testified regarding the
Respondent's conduct antecedent to the settlement agreement was Arnold Spruti. The latter's
discharge was alleged to have been discriminatory in the Steelworkers' charge in Case No.
6-CA-535, but this issue was disposed of in the settlement agreement executed on April 29,
1952, and the complaint herein did not raise the issue of the legality of Spruti's termination of
employment. Although Spruti's testimony was not denied, the undersigned is persuaded upon
the entire record and his observation of the witnesses that despite this circumstance, Spruti's
testimony is not sufficiently reliable to serve as a basis for a finding that the Respondent
violated the Act. Admittedly, Spruti was discharged by two other employers for falsification of
records. In testifying, he appeared to bear obvious resentment to the Respondent and to be a
somewhat "eager" witness, with a tendency to exaggerate, as shown by the contrast in one
particular between the version of one conversation with an official of the Respondent given
on direct and that testified to on cross-examination. In view of these considerations, no
findings are made upon Spruti's testimony.
F. Conclusions as to the Respondent's alleged unlawful
refusal to bargain with the Steelworkers
For the moment, the question of the Steelworkers' majority status will be bypassed and for
the purpose of discussing the complaint's allegations regarding the alleged unlawful refusal
by the Respondent to bargain with the Steelworkers, it will be assumed that the Steelworkers
was the statutory representative of the employees in the appropriate unit at all times material.
At this point, the Respondent's motives in the sequence of events previously narrated be-
comes material and the contentions of the parties in regard to the issue at hand resolve to
two issues: (1) Whether the Respondent's refusal to recognize the Steelworkers on April 29,
1952, was based upon a good-faith doubt as to its majority status and fell within the Artcraft
Hosiery17 doctrine, and (2) if the first issue is resolved in the Respondent's favor, whether
the Respondent's relationship to the Committee, found to have been violative of Section 8 (a)
(1) and (2), constituted per se a violation of Section 8 (a) (5).
1. The applicability of the Artcraft Hosiery doctrine
At the outset it would be helpful to set forth this doctrine which is as follows:
We have held, and still hold, that an employer may in good faith insist on a Board elec-
tion as proof of the union's majority but that an employer unlawfully refuses to bargain
16 Syracuse Color press , Inc., 103 NLRB 1017.
17 Artcraft Hosiery Company , 78 NLRB 333.
POE MACHINE & ENGINEERING COMPANY, INC. 1 389
if its insistence on such an election is motivated, not by any bona fide doubt as to the
union's majority, but rather by a rejection of the collective bargaining principle or by
a desire to gain time within which to undermine the Union.2 The crucial issue in these
cases is the Employer's motive at the time of the refusal to bargain. Whether in a
particular case an employer is acting in good or bad faith, is of course a question which
of necessity must be determined in the light of all the relevant facts in the case. Among
the factors pertinent to a determination of the employer's motive at the time of the re-
fusal to bargain are any unlawful conduct of the employer, 3 the sequence of events, and
the lapse of time between the refusal and the unlawful conduct.
ZMatter of Chamberlain Corporation, 75 N.L.R.B. 1188; Matter of R. J. Lovvorn,
76 N.L.R.B. 84; Matter of Roanoke Public Warehouse, 72 N.L.R.B. 1281, 1284.
3Matter of R. J. Lovvorn, supra; Matter of Prigg Boat Works, 69 N.L.R.B. 97, 123;
Matter of Robeson Cutlery Company, Inc., 67 N.L.R.B. 481; Matter of Wilson & Co., Inc.,
77 N.L.R.B. 959. The weight to be given this factor depends on the nature and scope of
the unlawful conduct. See Matter of Chamberlain Corporation, supra; and Matter of
Roanoke Public Warehouse, supra.
It will be recalled that on April 25, 1952, the Steelworkers had filed a 9 (c) petition covering
the Respondent's employees. At the conference on April 29, 1952, between the Respondent's
officials and Staff Representative Norman of the Steelworkers, President Mann advised Norman
that the Respondent would not execute the requested recognition agreement with the Steel-
workers because some of "the employees were interested in another union in the plant,
and ... it might well be, we didn't know that some employees wanted no union at all, and that,
in any event, an agreement for recognition would spell trouble for us, and we wanted to be
relieved of that burden." In other words, contrary to the General Counsel's contention, it is
found that Mann questioned the majority status of the Steelworkers. So far as the record shows,
the Steelworkers did not suggest that its majority status be determined by a check of its
authorization cards against the Respondent's payroll or that the Respondent consent to an
election. However, Mann assured Norman that "if the matter went to an election and he
won, . . . we would talk wages and working conditions as soon as practicable thereafter." It
appears to have been the tacit understanding of the parties that in view of Mann's doubt as to
the Steelworkers' majority, the latter should process its representation petition theretofore
filed.
As set forth above, certain part-time employees on the second shift who were regularly
employed elsewhere during the day were members of the IAM and had told the Respondent
that "if they were put in a position of having dual unionship, there was going to be trouble."
Although the General Counsel argues to the contrary, the undersigned is of the opinion that
the foregoing knowledge of the employees' interest in the IAM was a valid reason for the
Respondent's doubting the Steelworkers' majority, even though the IAM had not demanded
recognition. 18 President Mann's admission, stressed by the General Counsel, that Mann did
not question the employees to ascertain their sympathy for or membership in the IAM does
not enhance the General Counsel's contentions but, if anything, substantiates the Respondent's
arguments throughout that its motives were not to violate the Act, since had Mann so inter-
rogated the employees, the Respondent would undoubtedly b- deemed to have engaged in
per se violations of Section 8 (a) (1) of the Act.
The fact that the IAM, later in May, secured the signatures of more than a majority of the
employees in the appropriate unit to authorization cards lends credence to Mann's statement
that employees were interested in that organization and suggests that Mann's doubt as to the
Steelworkers' majority status and his request, inherent in his statements, that the majority
be demonstrated in a Board election were advanced in good faith on April 29, 1952.
The next issue posed by the sequence of events is whether the subsequent evolution of the
Committee and the Respondent's relationship thereto constituted unlawful conduct sufficient
"in nature and scope" to negate the Respondent's apparent bona fides in requesting that the
Steelworkers' majority status be established by a Board election and to demonstrate that the
Respondent was "motivated, not by any bona fide doubt as to the union's majority, but rather
by a rejection of the collective bargaining principle or by a desire to gain time within which
to undermine the union."
18See Sunbeam Corporation, 99 NLRB 546.
337593 0 - 55 - 89
1 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It must be conceded that the emergence of the Committee so soon after the Respondent's
refusal to recognize the Steelworkers and the Respondent's meetings with the Committee
lend persuasiveness to the General Counsel's contentions as to the Respondent's illegal
motives in declining to grant the Steelworkers recognition on April 29, 1952, and suggest
that such refusal of the Respondent may have been motivated by a rejection of the collective-
bargaining principle However, a careful and lengthy consideration of the particular facts
and circumstances of the instant proceeding impel theundersigned to a conclusion contrary to
that of the General Counsel. The basis for this determination is chiefly (1) the circumstances
surrounding the evolvement of the Committee, indicating that it was not instituted on May 6
as a result of any course of action predetermined theretofore by the Respondent and (2) the
lack of any statements by the"Respondent at the time in question indicating hostility to the
Steelworkers or the IAM or support for either organization, as contrasted to the affirmative
statements whereby the Respondent sought to neutralize the effect of its dealing with the
Committee.
To recapitulate the facts detailed above, the Respondent in the spring of 1952 encountered
serious production difficulties and due to those problems, its somewhat hazardous financial
position became even more precarious. So far as the record shows, the decrease in pro-
duction and increase of rejects was attributable to animosity which existed between the plant
manager and the plant superintendent and which seeped into the employee ranks and split them
into two rival camps. Faced with these problems and requests from employees, as well as the
plant manager, to meet with the employee body and attempt to solve the production problems
and employee dissension, the Respondent's officials assembled the employees and met with
them on May 6. When in the course of the meeting, employees began simultaneously to offer
suggestions and pose questions, Director Charles Shaeffer proposed that they appoint a com-
mittee to collect their suggestions inasmuch as "hedidn't have room in his office to take care
of all" employees at one time
When employee Walker expressed disapproval ofthe appointment of a committee because the
Steelworkers "have been trying to get into the plant, and I understood they would be out
there shortly," Director Shaeffer stated that such committee in no way would affect the organi-
zational efforts of he Steelworkers, that the committee was an interim measure brought
about by the serious production difficulties, and that the employees were free to choose any
union they desired Thereafter, the Committee was selected, and it collected eight specific
grievances from the employees At the first meeting between the Committee and the Respond-
ent's officials on May 12, and also at other such meetings, President Mann pointed out that
they "might have to go all through this again if and when a union is installed; that this meeting
should not influence you one way or the other as to whether or not you have a union or what
union, because it is of little or no concern to us and that this is an emergency measure."
The results of the meeting, summarized in President Mann's memorandum to the Committee,
was that the Respondent agreed that "all overtime work on specific jobs shall be afforded
in order of priority first to the men having seniority," that a safety committee should be
appointed, and that a chart detailing weekly production should be posted As to the other five
grievances, the Respondent promised to submit written proposals within a week, but apparently
did not do so.
In his covering letter which accompanied the memorandum and which was posted in the
plant, President Mann informed the employees that "the necessity for dealing with a com-
mittee of your choosing has been dictated by the critical fact that production has virtually
come to a standstill during the period of dissension which has developed during the past ten
days. The board of directors is cognizant of the fact, of which all of you are well aware, that
a petition for representation has been filed and will be heard on May 20th. We have entered
these discussions to avoid the disastrous effects of the losses we have been called upon to
bear by reason of the production curtailment of the past week. We should like to re-emphasize,
so there can be no possible misunderstanding, that the employees of our plant are free to
pursue whatever course their consciences may dictate with reference to the coming hearing
and any proceedings that may ensue thereafter The plan herein outlined is in response to
specific grievances which are completely meritorious and warrant our immediate attention.
We must restore amity and production, regardless what other steps the employees may deem
advisable to take."
Meanwhile, there was a shift in employee interest to the IAM. Later in May when the Com-
mittee met with the Respondent in regard to the discharge of some employees, the Respondent
stated that Memorial Day would be a holiday with pay. Still later in the summer employees
were given vacations with pay.
POE MACHINE & ENGINEERING COMPANY, INC. 1391
Considering (1) the circumstances surrounding the May 6 meeting between the employees
and the Respondent's officials, including the request by employees for such a meeting, (2) the
exigencies of the situation which gave rise to the employee committee and its meetings with
the Respondent, and the fact that it evolved somewhat spontaneously in the discussion of pro-
duction problems but apparently not as a result of any previous determination by the Respond-
ent, (3) the fact that these exigencies were pointed out to the employees at the meeting of May
6, and later in President Mann's letter of May 13, as the reason for the Respondent's con-
ferring with the Committee in order to restore "amity and production," (4) the fact that in the
meetings with employees and with the Committee, as well as in President Mann's letter of
May 13, the Respondent specifically and emphatically disclaimed any intent to interfere with
the employees' organizational activities or to restrain them in any manner in their choice of
a collective-bargaining representative, (5) the absence of any overt expression of hostility by
the Respondent to the Steelworkers or the IAM or of any support to either organization at the
time in question, i e , April and May 1952, (6) the fact impressed upon the employees by
the Respondent that the negotiations with the committee were an interim measure because of
the exigencies of the situation, and (7) the lack of support for the General Counsel's contention
that the Respondent accorded the Committee exclusive recognition as the statutory representa-
tive of the employees, it is found that the Respondent's relationship to the Committee- -albeit
violative of Section 8 (a) (2) and (1) in a somewhat technical sense- -was not sufficient in scope
or nature to impugn the Respondent's bona fides in its challenge of the Steelworkers' majority
status and suggestion that the Steelworkers demonstrate its majority in a Board-conducted
election.20
2. Whether the Respondent's relationship to the Committee was per se violative of
Section 8 (a) (5) of the Act
The General Counsel in his brief urges that "the fact that Respondent bargained with the
Employees' Committee at a time when the claim of the Steelworkers was pending determina-
tion before the Board, and when it was legally obligated to bargain with the Steelworkers, in
and of itself violates Section 8 (a) (5) of the Act, and, in addition, is further evidence of
Respondent's bad faith in its initial refusal to deal with the Steelworkers " Since it has been
found above that the negotiations between the Respondent and the Committee did not negate its
good faith in refusing to recognize the Steelworkers, the General Counsel's contention in this
regard raises the question of the definitiveness of the Artcraft Hosiery doctrine in determining
whether an employer has unlawfully refused to bargain That is, upon examination of the entire
sequence of events and upon concluding that the employer's motives were not suspect in
questioning a union's majority status and declining it recognition until the majority was
established by a Board election, may a portion of the employer's conduct be held to be per se
violative of Section 8 (a) (5) althoughitdoes not reflect adversely on his motives in questioning
the majority and insisting upon an election's
The following marginal reference intheW. T. Grant Company?i--wherein the Board found
that an employer's unilateral grant of a wage increase and other benefits after insisting upon
a Board election as a condition precedent to recognition of a union demonstrated that the
employer was not motivated by a good-faith doubt concerning the union's status--would appear
to answer the foregoing question in the affirmative:
The granting of these benefits, without consulting the Union, constitutes an independent
violation of Section 8 (a) (5) of the Act even without regard to the Respondent's purpose
(Emphasis supplied )
If this statement is to be interpreted as Board policy in all situations involving unilateral
grants of benefits, and also in kindred circumstances involving discussion of grievances with
19Flickinger's unlawful interrogation of employee Biddle in December 1951, as to whether
"Arnold Sprute had been around to sign him up yet for the Steelworkers," does not negate
the conclusions reached herein. Nor are these conclusions altered by a consideration of
the "background evidence" relating to Flickinger's interrogation of Apel in regard to the
organizational efforts of the employees in December 1951.
20Cf. Glass Fiber Moulding Company, et al., 104 NLRB 383; Mildred F Kellow, et al.,
105 NLRB 28.
2194 NLRB 1133.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees or a committee, during the pendency of a union's request for recognition, then
there can be no doubt in the merit of the General Counsel's argument On the other hand, it
appears to the undersigned that the Board's statement must be deemed to apply only to the
particular circumstances of the Grant case--wherein it was found that the Respondent did not
have a good-faith doubt as to the union's majority and that the Artcraft Hosiery doctrine was
thereforenotcontrolling--and notasaruleofthumbto all cases involving the issues previously
named This conclusion seems necessarily to follow when one considers the possibility of an
Artcraft Hosiery situation where it is contended that an employer's unilateral grant of
employee benefits is demonstrative of his bad faith in previously questioning the union's claim
to majority representation but the unilateral benefit is one which would not be violative of
Section 8 (a) (1) of the Act ;`ecause of the Hudson Hosiery doctrine.22 Since violations of
Section 8 (a) (5) are generic unfair labor practices defined in Section 8 (a) (1), it would appear
that the unilateral grant of employee benefits, which were not violative of Section 8 (a) (1) of
the Act because of the Hudson Hosiery rule, could not be held to be per se a violation of Sec-
tion 8 (a) (5). That is, if it was not violative of Section 8 (a) (1). it would not be violative of
Section 8 (a) (5) Hence, thestatement fromthe Grant case above must be deemed to refer only
to the particular circumstancesofthecasewhereinthe Artcraft Hosiery doctrine did not apply
In conclusion, the undersigned finds that the tenets of the Artcraft Hosiery and Hudson
Hosiery cases are controlling upon the issues of the present proceeding, that the Respondent's
relationship to the Committee did not negate its good faith in questioning the Steelworkers'
majority and requesting that an election be held to establish such majority, and that the
Respondent's dealing with the Committee and any employee benefits granted as a result thereof
were not "for the purpose of causing the employees to accept or reject a representative for
collective bargaining," and were not per se violative of Section 8 (a) (5) of the Act
3. The Steelworkers' alleged majority status
Since it has been found that theRespondent has not unlawfully refused to bargain collectively
with the Steelworkers within the meaning ofSection8 (a) (5), it is unnecessary for the purpose
of this report to determine whether the evidence establishes the complaint's allegation that
"commencing on or about April 19,1952, and at alltimes thereafter, the [Steelworkers], having
been duly designated and selected by a majority of Respondent's employees" in the appropriate
unit "has been, and is now, the exclusive representative of the employees in that unit within the
meaning of Section 9 of the Act." In view of the great duplication of IAM and Steelworkers au-
thorization cards, previously detailed, it is submitted that this issue can best be resolved by
the conduct of a Board election in a representation proceeding at an appropriate time.23
22 Hudson Hosiery Company, 72 NLRB 1434, wherein the Board made the following obser-
vations:
It is fundamental that the Act precludes employers from utilizing their economic
power in any manner for the purpose of discouraging their employees from becoming
or remaining members of a labor organization, or of interfering with their selection
of bargaining representatives. By this we do not mean that an employer is foreclosed
from announcing or granting economic benefits during a union's organizational campaign
or during the pendency of a Board-ordered election. What is unlawful under the Act is
the employer's granting or announcing such benefits (although previously determined
upon bona fide) for the purpose of causing the employees to accept or reject a repre-
sentative for collective bargaining (Emphasis in original.)
The situation referred to in the text existed in J. J. Newberry Company, Case No 19-CA-696,
but as no exceptions were filed to the Trial Examiner's dismissal of the complaint, the Board
was not called to rule uponthe issue. The issue was also present in the Artcraft Hosiery case,
but the unilateral acts were alleged as violations of Section 8 (a) (1) and not of Section 8 (a)
(5) and were dismissed without considering their impact upon the 8 (a) (5) allegations. See
also Wilma Moran, et al., 103 NLRB 81.
231n respect to the duplicate authorization cards secured by the IAM and the Steelworkers,
see Adam D. Goettl, et al., 104 NLRB 1076; Weirton Ice and Coal Supply Company, 103
NLRB 810; Sunbeam Corporation, 99 NLRB 546; Harry Stein, et al., 46 NLRB 129; Abraham
B Karron, et al._ 41 NLRB 147. It is possible that the latter case is in itself dispositive of
the 8 (a) (5) allegations of the complaint, although for the purpose of this report it has been
unnecessary to consider the bearing of that case upon the facts of the instant proceeding.
POE MACHINE & ENGINEERING COMPANY, INC. 1393
G. The alleged discriminatory discharges of Dolf Walker
1. The discharge of Walker on May 6
Dolf Walker entered the Respondent's employ in October 1951 as a turret lathe operator
and worked on the second shift. In April 1952, he signed an authorization card of the Steel-
workers and later executed one for the JAM. On May 6, 1952, when he reported for work at
4 p in., he punched his timecard on the time clock and went to the meeting of the employees
with the Respondent's officials held outside the plant As previously detailed, when Director
Charles Shaeffer suggested that the employees appoint a committee to confer with the Respond-
ent, Walker said that he did not "see why we should have a committee at this time," because
the Steelworkers "have been trying to get into the plant, and I understood they would be out
there shortly."
At the end of the meeting, however, Walker did not assume his work station in the plant but
instead left the Respondent's premises without punching out his timecard He accompanied
employee Wallace Frankenburg in the latter's car to a spot about a city block from the plant
They remained there in Frankenburg's car 10 or 15 minutes and had a few drinks. They re-
turned to the entrance of the Respondent's plant where they encountered Treasurer Kaufman
and Director Charles Shaeffer with whom they had a brief conversation Walker and Franken-
burg then left in Walker's car and droveto a tavern in a nearby town. They spent approximately
2 hours there, drinking "a couple beers " At that point, they drove to the home of employee
Alvin Swisshelm, who lived across the street from the Respondent's plant Shortly after their
arrival at Swisshelm's home, Bebech and Plant Superintendent Flickinger drove past, stopped,
and told Walker that they had orders to discharge him and that he should consult with Treas-
urer Kaufman.
In respect to his brief conversation with Walker and Frankenburg before they left the vicinity
of the Respondent's plant, Treasurer Kaufman testified credibly that he did not know on which
shift the two employees worked but after they left, it was pointed out that Walker was employed
on the second shift but that Frankenburg had quit the Respondent's employ. Kaufman inquired
whether Walker had permission to leave the plant and was informed that none had been given
Kaufman then investigated and found that Walker had punched in his timecard but had not
punched out Forthwith, Kaufman ordered that Walker be discharged
Continuing with the narrative of the events on the evening of May 6, Walker, Swisshelm,
and Frankenburg later encountered Director Shaeffer and Treasurer Kaufman In respect to
the ensuing conversation. Kaufman gave the following undenied and credible testimonial
version, which was corroborated by the testimony of Director Shaeffer:
Well, [Walker and Swisshelm) walked over to where I was standing and [Walker] said, "I
understand I am fired." I said, "That's correct I am the fellow that fired you." He says,
"Well, if I am fired, Iwantmypay " I said, "You will get your pay " [Walker countered ]
"Well, I am going down to the plant and have them walk out and close the plant." I says,
"Go right ahead Goodbye." And he walked away, and I thought he was going down there
. . In the meantime, Swisshelm was talking to me and pleading for him, and at
that time Frankenburg came there . walking up with Walker, and he started pleading for
. . . Walker, he should go back to work, and he was going to go back to work, and they
were all going to do a darn good job Well, I believed them Told me they ought to go
back to work But they were all intoxicated, too, so I was sort of taking that into considera-
tion, too. . . . Well, Walker wasn't as bad as they were . well, Frankenburg was
really in bad shape, and Swisshelm had a couple beers, because he didn't go to work. He
lived right across from the office. And Walker, I don't know how many he had, but you
could smell it.
The conversation ended with Kaufman's telling Walker to return to the plant and resume
his work that evening
The complaint alleged that Walker's discharge on May 6, 1952, was discriminatory and
violative of the Act. Although Walker expressed disapproval of the employee committee and
support for the Steelworkers at the meeting earlier that day, the undersigned is persuaded that
the Respondent was not illegally motivated in discharging Walker in view of the findings made
previously as to the employee committee and the fact that Walker left the plant on May 6, after
having earlier punched in, without permission and without ringing out his timecard it is found
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Walker's discharge on May 6 was patently for cause and that the Respondent did not vio-
late the Act by discharging Walker on May 6, 1952.
2. The discharge of Walker on May 23, 1952
Although the result of Walker's conversation with Kaufman on the evening of May 6, 1952, a
Tuesday, was that Walker should return at once to work, Walker did not resume his employ-
ment with the Respondent until the following Monday, May 12. Apparently on May 9, he tele-
phoned Plant Superintendent Flickinger and, according to Walker's undenied testimony, "told
him I was supposed to go back to work the same night, and I wanted to know if I still had a
job, and he said, 'I guess you do, I called Cleveland and verified that you still have a job."'
Walker thereupon returned to work on May 12 and worked on his regular job on the second
shift through May 21. In order to attend the high-school graduation exercises in which his
daughter was participating on the evening of May 22, Walker arranged to trade jobs with an
employee on the day shift with the foreman's permission In other words. Walker worked his
regular second shift job on theeveningofMay 21 from 4 p. m. until midnight and was supposed
to work the day shift turn on May 22 from 8 a m. to 4 p. m. so that he would have the evening
off to attend the graduation exercises. However, on the morning of May 22, he overslept and
telephoned Plant Superintendent Flickinger and told him that Walker would not be at work on
May 22. According to Walker, Flickinger told him "to come in Friday." Walker reported to
work on his regular job on the second shift the evening of May 23 and was told by an employee,
"What are you doing here, you are fired."
When Walker discovered that his card was not in the timecard rack, he went to his foreman
and said, "I understand I am fired9" Foreman Campbell replied, "You are not fired until
midnight. You are supposed to be fired at midnight "Walker countered, "If there is no card in
the rack, I must be fired now. I'd like to get my money now " He waited and his pay was
ultimately given him. When Walker asked Campbell for the reason for Walker's discharge,
Campbell said "orders from Cleveland." -
On the same day, 3 other employees were discharged. It appears that these employees
worked on the first shift. Walker reported his discharge to Vernon Wanty, a member of the
employee committee, and Wanty asked the day foreman the reason for the discharge of the 3
day shift employees and was, informed that the action was taken upon "orders from front
office." Thereupon, Wanty assembled the employee committee, went to the office of General
Manager Hergenrother, and asked him the reason for the discharge of the 4 employees.
Hergenrother replied, according to Wanty's undenied testimony, "Well, I have orders from
Cleveland." At theCommittee's request, ameetingwas arranged to discuss the matter further
with the Respondent's officials on May 27 The committee members testified that at this meet-
ing the Respondent advanced reasons which were satisfactory in the Committee's opinion for
the discharge of 2 of the 4 employees. However, the committee members were somewhat
vague in their recollection of the reasons advanced for the discharge of Walker and Franken-
burg, whose discharges the complaint originally alleged were discriminatory Although some
committee members who testified evidenced in their demeanor a possibility that the vagueness
of their recollection as to the reasons advanced for the discharge of Walker and Frankenburg
may have been purposeful, Wanty admitted on cross-examination that "there was some dis-
cussion about Walker's timecards" and Armstrong testified that "as far as Walker and Frank-
enburg was concerned, Mr Hergenrother presented job cards that each man was on, and
showed a poor rate of production and not up to the standards of the day turn." It was com-
mitteeman Apel's recollection that the reason advanced by the Respondent for Walker's
discharge was that "Well, Mr Walker punched out and was rehired, but never come back on
the job." Walker admitted that Plant Manager Hergenrother had criticized Walker's volume
of production and had pointed out that the job cards showed that Walker produced less than the
employee using the same machine on the first shift Walker further admitted that his time-
card record "will show absenteeism," but denied that he had ever been criticized for being
absent from work.
Although the Respondent found it unnecessary to call Hergenrother, Flickinger, or the
foremen as witnesses, Hergenrother's statement that the dischargeof the four employees was
upon "orders from Cleveland," was explained by the credible testimony of Treasurer Kauf-
man that subsequent to the meeting between the Respondent and employees on May 6, 1952, in
regard to production difficulties and dissension, Kaufman instructed Hergenrother to "get rid
of all the deadheads" but did not suggest specifically any employees who should be discharged
POE MACHINE & ENGINEERING COMPANY , INC. 1395
Upon the entire record and the foregoing findings and conclusions and particularly in view
of (1) the circumstances and conclusion concerning the discharge of Walker on May 6, (2) the
fact that although his discharge on May 6 was rescinded that evening and he was instructed to
return to work that evening , he failed to resume his employment with the Respondent until
May 12, (3) the fact that although the Respondent assented to Walker ' s exchange of jobs with
an employee on the first shift to enable Walker to have the evening of May 22 off from work,
Walker failed to keep his part of the bargain and did not work on the day shift on May 22, (4)
the inferences inherent in the somewhat vague, if not reluctant , testimony of the employee
committeemen that the reasons advanced by the Respondent for the discharge of Walker were
absenteeism and lack of quantity of production , (5) Walker ' s admissions that his record showed
absenteeism and thathehad been reprimanded for low production , and (6) Treasurer Kaufman's
instructions to the plant manager given at the time of the Respondent ' s production difficulties
to "get rid of ' all the deadheads ," the undersigned concludes that the record fails to sustain
by a preponderance of credible evidence the complaint ' s allegations , as amended , that Walker
was discriminatorily discharged "because of and for the purpose of discouraging his member-
ship in, sympathy for and activity on behalf of the [Steelworkers ], and for the purpose of en-
couraging among its employess , membershipand participation in and support of the Employees'
Committee." 24 The foregoing considerations impel the undersigned to reject the General
Counsel 's contentions that the Respondent failed to meet the "prima facie" case allegedly
made out by the General Counsel . Nor does the undersigned find that the defenses affirma-
tively alleged by the Respondent ' s answer to thedischarge of Walker were fatally inconsistent
with the evidence adduced at the hearing and set forth above . It is accordingly found that the
Respondent has not discriminated in respect to the hire or tenure of employment of Dolf
Walker within the meaning of Section 8 (a) (3) 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 obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair labor
practices , it will be recommended that the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent has dominated , interfered with the formation of, and
contributed support to the Committee , the undersigned will recommend that the Respondent
cease and desist from interference with and support of the Committee and disestablish the
Committee as the representative of any of its employees for the purpose of dealing with it
concerning grievances , labor disputes, wages, hours of employment , or other conditions of
employment , and that the Respondent refrain from recognizing the Committee , or any suc-
cessor thereto, for any of the foregoing purposes It will also be recommended that the
Respondent cease and desist from interrogating its employees as to their union activities.
The undersigned will also recommend that the complaint be dismissed insofar as it alleges
that the Respondent refused to bargain collectively with the Steelworkers in violation of Section
8 (a) (5) of the Act, discriminatorily discharged Dolf Walker in violation of Section 8 (a) (3) of
the Act, and engaged in violations of Section8 ( a)(1)oftheAct , except as otherwise found herein.
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 Steelworkers of America , C.I.O., International Association of Machinists , A.F.L.,
and the Committee are labor organizations within the meaning of Section 2 (5) of the Act.
24In reaching this conclusion , the undersigned has considered the fact that on May 6 Walker
expressed disapproval of the employee committee and support of the Steelworkers and the
additional circumstance that on May 15, 1952 , he had signed an IAM authorization card, but
ig of the opinion that a preponderance of evidence does not indicate that these circumstances
were the reason for his discharge.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By dominating, interfering with the formation of, and contributing support to the Com-
mittee, the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (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 in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (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.
5. The Respondent has not violated Section 8 (a) (5) and (1) of the Act by refusing to bar-
gain with the Steelworkers.
6. By discharging Dolf Walker, the Respondent has not engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
[Recommendations omitted from publication]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Relations Act, we hereby notify
our employees that:
WE WILL NOT dominate , interfere with, or contribute support to the committee or any
successor thereto, or any other labor organization.
WE WILL NOT interrogate our employees with respect to their union activities.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor organizations,
to join or assist United Steelworkers of America , C.LO., or International Association of
Machinists , A.F.L., or any other labor organization , to bargain collectively through
representatives of their own vhoosing , and to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection or to refrain from any or
all such activities except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as authorized
in Section 8 (a) (3) of the Act.
WE hereby disestablish the committee as the representative of any of our employees
for the purpose of dealing with us concerning grievances , labor disputes , wages, hours of
employment , or other conditions of employment , and we will not recognize the Committee,
or any successor thereto, for any of the foregoing purposes.
POE MACHINE & ENGINEERING COMPANY, INC.,
Employer.
Dated ........................................... By ..................................................................
(Representative ) (Title)
This notice must remain posted for 60 days from tht date hereof, and must not be altered,
defaced, or covered by any other material.
NATIONALLY FAMOUS MARY JANE SHOES, INC.' and
CHICAGO JOINT BOARD, RETAIL, WHOLESALE & DE-
PARTMENT STORE UNION, CIO. Case No. 13-CA-1127.
February 26, 1954
DECISION AND ORDER
On December 14, 1953, Trial Examiner Robert L. Piper
issued his Intermediate Report in the above-entitled pro-
1 The Employer's name appears as amended at the hearing.
107 NLRB No. 284.