Radio Corp. of America

National Labor Relations Board - Board Decisions

Aug 21, 1947

74 N.L.R.B. 1729 (N.L.R.B. 1947)

In the Matter of RADIO CORPORATION OF AMERICA and UNITED ELECTRI-
CAL, RADIO & MACHINE WORKERS OF AMERICA and RADIO CobfMUNI-
CATIONS ASSEMBLERS UNION5 INC., PARTY TO THE CONTRACT
RADIO CORPORATION OF AMERICA, RCA VICTOR DIVISION and UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA
RADIO CORPORATION OF AMERICA, RCA VICTOR DIVISION and RADIO
COMMUNICATIONS ASSEMBLERS UNION, INC.
Cases Nos. 2-C-4979, 2-C-5479, and 2-R-5495, re spectively.-Decided
August 21, 1947
Mr. Jerome I. Maclit, for the Board.
Messrs. J. M. Clifford and Philip Brayton, of Camden, N. J., for the
respondent.
Mr. John F. X. Landrigan, of Bayonne, N. J., for the Independent.
Mr. Morton Stavin, of Newark, N. J., for the CIO.
Mr. Herbert C. Kane, of counsel to the Board.
DECISION
AND
ORDER
On July 3, 1946 , Trial Examiner Thomas S. Wilson issued his Inter-
mediate Report in the above entitled proceedings , 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 Inter-
mediate Report attached hereto. The Trial Examiner further recom-
mended that the election held on August 24, 1945, in Cases Nos. 2-R-
5479 and 2-R-5495, be vacated and set aside.
Thereafter , by a Motion for an Order dated August 5, 1946 , the re-
spondent requested that the Board order an election to be held in the
unit found appropriate in Cases Nos. 2-R-5479 and 2-R-5495 within
80 days from the date of the order , on condition that the respondent
should have complied with the recommendations contained in the
Intermediate Report; and that the Board, in its order directing such
election , give the respondent leave to file exceptions to the Intermediate
Report 120 days from the date of the order in the event that no elec-
74 N L. R. B., No. 251.
1729
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion should have been conducted within 80 days, or no union certified
within 100 days, from said date. In a reply dated August 30, 1946, the
CIO opposed the respondent's motion. The motion was denied by
the Board in an order dated September 11, 1946.
By a further motion dated September 19, 1946, to which counsel for
the Board filed an opposing memorandum, the respondent requested
that the Board consider, as evidence, the statements contained in
certain affidavits of J. M. Clifford and Joseph H. McConnell, or, in the
alternative, reopen the record for the purpose of taking testimony
regarding the same subject matter.,- The Board denied this motion
in an order dated October 4,1946 2
The Respondent and the Independent filed exceptions to the Inter-
mediate Report and supporting briefs. On November 26, 1946, the
Board heard oral argument at Washington, D. C., in which the re-
spondent, the CIO and the Independent participated.
On December 6, 1946, the CIO and the respondent entered into a
settlement agreement providing, inter alia, that the CIO's charges
alleging violation of Section 8 (1), (3) and (4) of the Act with respect
to the discharge of Harold Hoffman, were withdrawn, and that the
complaint should be dismissed insofar as the Hoffman case is con-
cerned. We hereby approve the settlement agreement, and in con-
sideration thereof, we will provide in our Order, hereinafter set forth,
for dismissal of those allegations of the complaint which refer to
Hoffman's discharge.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions and recommendations of the Trial
Examiner, with the exceptions, additions, and qualifications set forth
below : 3
1 The McConnell affidavit consists pi incipally of argument supporting the respondent's
Motion for an Order of August 5, 1946, asserting that the reason for that motion, as well
as for the respondent's recognition of the Independent in June 1945, was to accomplish a
speedy settlement of the representation dispute which had caused unrest and dissatisfac-
tion among the employees at the Harrison plant The Clifford affidavit undertook to refute
certain inferences of the Trial Examiner as to the respondent's reasons for refusing to
recognize the Independent on March 12, 1945, and for refusing a suggested consent election
in May or June 1945 We adhere to our prior ruling that this "evidence" was inadmissible
after the close of the hearing. In addition, we note that, if we considered the affidavits
as uncontradicted testimony, we would nevertheless agree with the Trial Examiner s con-
clusions that the conduct of the respondent which is in issue in these proceedings was
motivated by its prefeience for the Independent, rather than the CIO, as the baigaining
repi esentative of its employees
For the reasons set forth in our order of October 4, 1946, the renewal of the aforesaid
motion, filed by the respondent on December 6, is hereby denied.
3 The Intermediate Report is hereby corrected by the insertion of the heading "III.
The Unfair Labor Practices," immediately above the subheading "A Interference,
restraint and coercion and Objections to the Election "
In view of our dismissal of the allegations of the complaint regarding Harold Hoffman,
without consideration of the merits , we do not adopt the findings and conclusions of the
RADIO CORPORATION OF AMERICA 1731
1. We agree with the Trial Examiner's finding that the respondent
violated Section 8 (1) of the Act by according exclusive recognition to
the Independent on June 13, 1945, entering into collective bargaining
agreements with that organization on July 5, and July 27, and there-
after implementing its recognition of the Independent by additional
acts which enhanced the Independent's prestige, all in the face of a
genuine question concerning representation asserted in the conflicting
petitions filed with the Board by both the Independent and the CIO."
The respondent is mistaken in its contention that the statute com-
pelled it to recognize the Independent, despite the CIO's petition for
investigation and certification of representatives, upon ascertaining
by a check of cards that-the Independent apparently had been selected
by a majority of the employees.5
2. The only effective remedy for the respondent's unfair labor prac-
tices is the customary one recommended by the Trial Examiner,
Trial Examiner set forth in Section III B and C , and the fifth paragraph of Section V,
and Conclusions of Law Nos 2 and 3 of the intermediate Report.
In addition , we hereby correct the following subsidiary findings of fact contained in
the Intermediate Report, to which the respondent has excepted :
The Trial Examiner found that the Independent " came into existence" at the Harrison
plant "about" March 6, 1945 . The record does not show and we make no finding as to
when the Independent became active at the plant.
The Tiial Examiner found that the CIO's petition, filed March 12, 1945, "involved" the
same employees as were covered in the Independent ' s petition . The record shows, and we
find, that the units respectively alleged as appropriate in these two petitions were not
identical , although both covered the same basic group -the respondent ' s production and
maintenance employees at the Harrison plant
The Trial Examiner found that "the respondent followed the lead of other employers"
in paying its employees for the V-J holiday, whereas the record does not disclose whether
or not the respondent did follow other employers in this regard.
The Trial Examiner found that the CIO signed a waiver on June 25, 1945, and, in foot-
note 12 of his Report, quotes a withdrawal of charges in Case No 2-C-5534 The with-
diawal quoted was dated May 25, 1945 , and the waiver referred to was dated June 26,
1945.
The Trial Examiner found that distribution of the "Family News" continued until all
the employees absent on August 21 had received their copies . The record shows, and we
find, that the distribution of the "Family News" continued for some time after August
21, 1945.
4 Matter of Midwest Piping and Supply Co , Inc., 63 N . L. R B. 1060 ; Matter of Flotill
Products , Inc., 70 N. L. R B 119. and cases therein cited Contrary to the argument made
by the respondent in its brief in attempting to distinguish the cited cases , we deem it
immaterial that in the instant case the agreement between the respondent and the Inde-
pendent did not provide for a closed shop, and that , so far as the record shows, the re-
spondent had not in any way unlawfully assisted the Independent before it recognized
that organization . The vice of the respondent's conduct is that it supported one of the two
bona fide organizations competing for designation as its employees ' bargaining agent,
thereby infringing the employees ' right to make their own free choice under the auspices
of the Board.
In the ancient case of Matter of Smith Wood Products , 16 N. L . R B. 613, upon which
the respondent relies , it is doubtful whether the Board considered the precise issue whether
the execution of a contract with one of two rival organizations seeking recognition as
bargaining agent was in itself an act of assistance violative of Section 8 (1) of the Act.
The decision in that case , to the extent that it conflicts with the views expressed herein
and in the numerous later cases cited above, is hereby overruled.
B Matter of Henry E. Spiewak , et at. 71 N. L . R. B. 770. Mr. Houston ' s partial dissent
in the cited case is not in conflict with his position in this case , for he fully agrees that
here a bona fide question concerning representation existed at the time when the respondent
chose to recognize and bargain with the Independent, whereas he did not believe that
such a bona fide question had arisen in the Spiewak case
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
namely, that the respondent be required, inter alia, to cease giving
effect to its contract with the Independent and to withdraw and with-
hold recognition from that organization unless and until it is certi-
fied by the Boards We shall so provide in our Order herein. Con-
sistently with that disposition of the complaint case, and because the
respondent's unlawful conduct in our opinion directly affected the
results of the election held on August 24, 1945, in the representation
case, we shall set aside the election and continue the representation
petitions before us until such time as we believe that the effects of the
unfair labor practices are sufficiently dissipated to permit another
election to be held.
The respondent and the Independent contend that the "result of
the election [should] not be impeached on grounds known both to the
Board and to the CIO well before the election was ordered or held."
The CIO, they argue, is estopped to attack the election by its waiver
of August 1, 1945,7 or its knowledge at that time of the respondent's
unlawful recognition of the Independent. And the Board's Decision
and Direction of Election of August 9, 1945, it is asserted, "constitutes
in effect a determination by the Board that the recognition of the
Independent and the collective bargaining that followed upon that
recognition are not sufficient grounds for setting aside the results of
the election." It is not, and can not be, seriously contended that the
Board is estopped from prescribing an adequate remedy for the un-
fair labor practices which the respondent committed, or is relieved of
its public duty to do so, merely because the CIO may be precluded
by its waiver or other circumstances from objection to the election on
certain grounds.8 The contention is, rather, that the Board, by pro-
ceeding with the election despite its knowledge of the respondent's
wrongful recognition of the Independent, impliedly agreed to a set-
tlement of the unfair labor practices to which the complaint refers:
Even if the Board's proceeding with the election could properly be
considered as the equivalent of a settlement of the preceding unfair
labor practices,-which is by no means clear,-the respondent's argu-
ment is nevertheless without merit. Its contention overlooks the well
established rules that the Board will not honor an agreement to adjust
or settle unfair labor practice charges where the unlawful conduct
9 However , nothing herein shall be taken to require the respondent to vary those wage,
hour, seniority and other substantive features of its relations with its employees which it
has established in performance of the said contract , or any superseding contract, or any
extension , renewal , modification or supplement thereof.
4 See footnote 13 of the Intermediate Report The charge in Case No 2-C-5898, to
which the waiver refers , alleged in general terms that the respondent had violated Sec 8 (1)
of the Act, and that the discharge of Harold Hoffman on June 23, 1945 , was violative of
Sec 8 ( 3) and (4).
8 See Matter of The Locomotive Finished Material Company, 52 N. L It. B . 922, 926,
enf'd 142 F . ( 2d) 802 (C. C. A. 10).
RADIO CORPORATION OF AMERICA 1733
continues.° Any such settlement implied from the circumstances in
this case affected only those unlawful acts of the respondent which
were known to the Board, and covered by a pending charge, at the
time the Board issued its Direction of Election, namely : the respond-
ent's recognition of the Independent in June 1945, the temporary
grievance agreement in July, and the negotiation and imminent execu-
tion of the complete collective bargaining contract, all of which were
disclosed at the hearings in the representation cases, which ended
on July 26.1' The Board's assumed undertaking to ignore these unfair
labor practices, insofar as their effect upon the election was concerned,
certainly did not refer to the respondent's subsequent additional as-
sistance to the Independent during the period between the close of the
hearing and the day of the election; on the contrary, it was nullified
when the respondent persisted in its course of conduct violative of
the Act.
Between July 26, when the hearing closed, and August 24, the
respondent continued to give the Independent potent support' in its
campaign for votes. It not only fulfilled its threat to cement its
relations with the Independent by executing a definitive contract;
it made sure by various other devices that every employee knew of
his employer's decision as to which of the competing unions should
be the exclusive bargaining agent. It publicized the contract it had
already executed with the Independent, in its posted announcement
of August 4 and in its illustrated house organ distributed on August
21. It reinforced this persuasive inducement to vote for the Inde-
pendent by expressly crediting that organization with the award of pay
for time lost by employees during the VJ-day holiday. We agree
with the statement made by counsel for the Independent in the course
of his argument before us in this case, that, after this episode, there
could be little question how the employees would vote.
The arguments advanced by the respondent and the Independent
in justification of these acts of assistance all rest on the same fallacy :
the assumption that the respondent's original recognition of and bar-
gaining with the Independent were legitimate. This is not our view
of the law 11 Neither do we accept the thesis, implicit in the conten-
tions of the respondent and the Independent, that the conduct of the
respondent during the period between July 26 and August 24 was an
0 See Matter of Houde Enginering Corporation, et al., 42 N. L. R. B 713, 725.
10 Apart from the discharge of Harold Hoffman, the CIO's waiver of August 1, covered,
at most, these same matters. The waiver did not preclude the CIO from urging subsequent
acts of the respondent as a basis for setting aside the election.
11 Even assuming that, by accepting the CIO's waiver on August 1 and issuing its Direc-
tion of Election, the Board foreclosed consideration of the respondent's acts of assistance
to the Independent, of which it was then apprised, as the basis of any remedial order,
those unfair labor practices were not thereby legitimatized. See Matter of The May De-
partment Stores Company, 61 N. L. R. B. 258, 276
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obvious and necessary incident to its previous improper conduct which,
it is urged, the Board had agreed to overlook. The respondent could
perfectly well have maintained the status quo which existed at the close
of the representation hearing. It could easily have refrained from
publicizing the Independent's contract, as well as from crediting the
Independent in its announcement concerning the holiday pay. The
respondent was aware, at least by August 13, when it was notified of
the Decision and Direction of Election, that the Board did not sanction
its recognition of the Independent, or regard that action as obviating
the necessity of a secret ballot to determine the question concerning
representation. Neither the Board nor the CIO was bound to antici-
pate that the respondent would thereafter, in defiance of the Board,
aggravate its offense by further assistance to its favored candidate.
Apart from the foregoing considerations, we perceive no equity
in the respondent's position in this case, for it urged its own wrongful
conduct-conduct fashioned to prevent the Board from forwarding
its investigation in the representation case 12-as a bar to the elec-
tion 13 The respondent should not now be permitted to assert that
the Board, when it rejected this unwarranted contention and provided
for a secret ballot, estopped itself from remedying the unfair labor
practices in due course. To hold otherwise would be to reward em-
ployers for attempting to obstruct our process in representation cases
by unfair labor practices, openly devised for that purpose.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Radio Corporation of Amer-
ica, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Recognizing Radio Communications Assemblers Union, Inc.,
as the exclusive representative of any of'its employees for the purpose
of collective bargaining unless and until said organization shall have
been certified by the National Labor Relations Board as the exclusive
representative of such employees;
(b) Giving effect to its contracts dated July 5, 1945, and July 27,
1945, with Radio Communications Assemblers Union, Inc., or to any
extension, renewal, modification or supplement thereof, or to any
'2 It is immaterial whether or not the respondent ' s literal purpose in recognizing the
Independent was to hamper the Boaid ' s processing of the representation case , for, at the
hearing in that case, the respondent moved to dismiss the petitions , arguing that the effect
of its action was to resolve and extinguish the question concerning representation
131n this respect , the present case is significantly distinguishable from those in which
the Board has held that a settlement of unfair labor practice charges was to be implied from
the circumstances attending an election conducted under its auspices , and has upheld that
settlement See Matter of Hope Webbing Company, 1I N. L . R B 55; Matter of Wickwire
Brothers , 16 N L. R. B. 316.
RADIO CORPORATION OF AMERICA 1735
superseding contract with that labor organization or any affiliate
thereof, unless and until said organization shall have been certified by
the Board as the representative of the respondent's employees. How-
ever, nothing herein shall be taken to require the respondent to vary
those wage, hour, seniority, and other substantive features of its rela-
tions with its employees which it has established in performance of
the said contract, or any superseding contract, or any extension, re-
newal, modification or supplement thereof ;
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist United Electrical, Radio
Machine Workers of America, CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section
7 of the Act;
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Withdraw and withhold recognition from Radio Communica-
tions Assemblers Union, Inc., as the exclusive representative of any
of its employees for the purpose of collective bargaining with respect
to rates of pay, wages, hours of employment, seniority, or other con-
ditions of employment, unless and until such organization shall have
been certified by the National Labor Relations Board as such
representative;
(b) Post immediately on all bulletin boards at its plant at Harrison,
New Jersey, and at its Jersey City warehouse, copies of the notice
attached hereto marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are customarily 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 Second 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 discriminated against Harold Hoffman within the
meaning of Section 8 (3) and (4) of the Act, be, and it hereby is,
dismissed.
AND IT IS FURTHER ORDERED that the election held on August 24, 1945,
in Cases Nos. 2-R-5479 and 2-R-5495 be,, and it hereby is, vacated and
set aside.
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. JAMES J. REYNOLDS, JR., dissenting :
It is patently one of the paramount duties of this Board to effectuate
a prompt adjudication of disputes arising under the Act, particularly
when such disputes constitute an impediment to the orderly practice of
collective bargaining and the exercise by employees of rights guar-
anteed by the Act. In my opinion, the record in this case demonstrates
that the Board's processes have not been utilized to this end but have
been 'used by the C. I. O. as a convenient weapon against rival labor
organizations in a disruptive struggle for status as majority representa-
tive of the Respondent's employees. Accordingly, as a step toward
the elimination of such abuses of the Board's processes, I would dis-
miss the complaint herein and the U. E.'s objections to the August 24,
1945, election in which the Independent polled a majority of the ballots
cast. By such action, the Board would serve notice upon those in-
terested that the ballot box rather than interminable litigation offers
the proper forum for the solution of such disputes. The Board's proc-
esses should be utilized always to protect rights guaranteed by the Act
to employees but never merely to enable labor organizations to jockey
for position.
Under ordinary circumstances, I would agree with my colleagues
that the Respondent committed an unfair labor practice by according
recognition to the Independent at a time when petitions for certifica-
tion filed by both the Independent and the C. I. O. were pending be-
fore the Board. Certainly where two competing labor organizations
claim majority status, it is the function of the Board rather than the
Employer to resolve the issue. Otherwise the selection of a bargain-
ing representative would become the prerogative of the employer
rather than of his employees. Under this rule, as earlier enunciated
by the Board in the Midwest Piping and Supply Company case,14 if
one (or both) of the competing unions claims a majority status which
in fact it does not have, the Board can expose the invalidity of its claim
through an election, thus preserving the rights of the employees to
select or reject representation. However, the effectiveness of this prin-
ciple depends upon the manner, in which the Board performs its func-
tion of resolving the question concerning representation presented by
the conflicting petitions. If it permits lengthy litigation to delay
needlessly its determination of the representation issue, while at the
same time restraining the employer from resolving it himself, then the
rule will work to deprive the employees of their rights guaranteed by
the Act, rather than to accord them such rights.
In the instant case, after the conflicting petitions of the Independent
and the C. 1. 0. were presented to it, the Board made no move to process
the petitions because of the pendency of a complaint issued by it alleg-
" 63 N. L. R. B. 1060.
RADIO CORPORATION OF AMERICA 1737
ing that the Respondent had violated Section 8 (1) and (2) of the
Act by sponsoring and dominating the Employees Council, a labor or-
ganization which had represented the Respondent's employees for
some years prior to 194415 The Board's theory in such cases is that
until such unfair labor practices have been remedied, it is impossible
to obtain from the employees a completely free expression of their
desires concerning representation. Here again I have no quarrel with
the rule, but submit that if it is not to work to the hardship of the em-
ployees involved, the Board must act promptly to provide a remedy
for the unfair labor practices. While delays attached to litigation
involving such unfair labor practices may be expected, on occasion,
to deprive temporarily the employees of a representative having a legal
majority status, in this case the Board used its processes in such man-
ner that the selection of a bargaining representative by the employees
involved would be delayed indefinitely until such time as the C. I. 0.
believed that a majority of the employees would vote for it in an elec-
tion. This resulted from the fact that, although the C. I. 0. withdrew
its charges in Case No. 2-C-5534 on March 25, 1945, the Board con-
tinued to prosecute its complaint but has never issued a decision in the
case . Thus the unfair labor practices which the Board's complaint
alleges the respondent to have committed are still unremedied, and
under the Board's theory it has therefore been impossible to conduct a
free election among the employees enjoying all the rights guaranteed
by the Act.
However, after the respondent recognized the Independent on June
14, 1945, as the majority representative of its employees, both the
Board and the U. E. apparently decided that, notwithstanding the
pendency of the complaint alleging the unfair labor practices, an elec-
tion could properly be conducted to determine the question raised by
the conflicting claims of the C. I . 0. and the Independent. Therefore
on August 9, 1945, even though advised by the respondent that it
would continue to recognize the Independent and deal with it, the
Board directed that an election be conducted among the respondent's
employees. The election was held on August 24, 1945. A tally of the
ballots cast in the election resulted in a vote of 1758 for the Independ-
ent, 963 for the C. 1. 0., 96 for neither union, and 69 challenged ballots.
Whether the Board should have directed that an election be held
or should have stayed the election while it determined the issue raised
by the unfair labor practice charges, it would seem that, having
adopted the former course, the election would have finally resolved
the question concerning representation. Unfortunately, such is not
the case, because the majority has now found that the election was
conducted in an atmosphere which did not permit a free expression by
'" Case No. 2-C-5534
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the voters. Thus, more than 2 years of constant litigation, culminating
in a resort to the ballot box, appears to have been merely a prologue
to further litigation. I cannot acquiesce in the utilization of the
Board's processes in such fashion for I believe that it disregards the
paramount duty of the Board to serve the workers by insuring that
they shall have a legally competent representative at all times, if they
so desire.
An analysis of the opinion of my colleagues reveals that had the
respondent, between August 1 and August 24, 1945,16 not continued
to deal with the Independent as majority representative, the Board
would have considered the results of the election as dispositive of the
representation issue. It appears to me that the respondent had served
notice on both the C. I. O. and the Board at the representation hear-
ings on June 22 and July 26, 1945, that it would continue to recognize
the Independent. Therefore, assuming, arguendo, that such recogni-
tion assisted the Independent, the Board knew then that no free elec-
tion could be held under such circumstances. It appears extremely un-
realistic for my colleagues to comment now that "Neither the Board
nor the C. I. O. was bound to anticipate that the respondent would
thereafter, in defiance of the Board, aggravate its offense by further
assistance to its favorite candidate."
Under all the circumstances in this case, I am of the opinion that
the Board would be well advised to dismiss the complaint proceeding
and certify the Independent.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT recognize the Radio Communications Assem-
blers Union, Inc., as the exclusive representative of our employees
for the purposes of collective bargaining unless and until said or-
ganization shall be certified by the National Labor Relations
Board as the exclusive representative of such employees.
WE WILL NOT give effect to our contracts dated July 5, 1945
and July 27, 1945, with the Radio Communications Assemblers
Union, Inc., or to any extension, renewal, modification or supple-
ment thereof or to any superseding contract with that. labor or-
ganization or any affiliate thereof .unless and until said organiza-
tion shall be certified by the Board as the representative of our
employees.
16 The period between the date the C I. 0 filed its waiver and the election.
RADIO CORPORATION OF AMERICA 1739
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the right
to self-organization, to form labor organizations, to join or assist
United Electrical, Radio & Machine Workers of America, CIO,
or any labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in concerted
activities for the purposes of collective bargaining or other
mutual aid or protection.
WE HEREBY withdraw and withhold recognition from Radio
Communications Assemblers Union, Inc., as the exclusive repre-
sentative of our employees for the purposes of collective bargain-
ing with respect to rates of pay, wages, hours of employment,
seniority or other conditions of employment, unless and until such-
organization shall have been certified by the National Labor Re-
lations Board as a representative of our employees.
All our employees are free to become or remain members of United
Electrical, Radia & Machine Workers of America, CIO, or any
other labor organization.
RADIO CORPORATION OF AMERICA,
RCA VICTOR DIVISION,
Employer.
Date------------------ By -----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
ERRATUM
On page 25, line 1, of the Intermediate Report issued by the undersigned in
the above-entitled matter, dated June 28, 1946, there appears the following:
"(e) Notify the Regional Director for the Third Region . . .' It is hereby
corrected to read "(e) Notify the Regional Director for the Second
Region ..."
THoiIAS S. WILSON,
Trial Examiner.
Dated July 9, 1946.
INTERMEDIATE REPORT
Mr. Jerome I. Macht, for the Board.
Messrs. J. M. Clifford and Philip Brayton of Camden, N. J., for the respondent.
Mr. John F. X. Landrigan of Bayonne, N. J, for the Independent.
Mr. Morton Staves, of Newark, N. J., for the C. I. O.
STATEMENT OF THE CASE
On March 10, 1945, Radio Communications Assemblers Union, Inc., herein called
the Independent, and on March 12, 1945, United Electrical Radio & Machine
I
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers of America, affiliated with the Congress of Industrial Organizations,
herein called the CIO respectively, filed with the Regional Director for the Second
Region (New York, New York), of the National Labor Relations Board, herein
called the Board, separate petitions alleging that a question affecting commerce
had arisen concerning the representation of employees of Radio Corporation of
America, RCA Victor Division, herein called the respondent, at its plant at
Harrison, New Jersey, and its warehouse at Jersey City, New Jersey, and request-
ing an investigation and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Pursuant
to order of the Board and upon due notice to all parties appropriate consolidated
hearings were held on June 22, 1945 and July 26, 1945, at Newark, New Jersey.
Thereafter on August 9, 1945, the Board issued its Decision and Direction of
Election' providing for an election by secret ballot among the production and
maintenance employees of the respondent with certain exceptions. This election
was held on August 24, 1945. In accordance with the Direction of Election, the
-ballot contained the names of the Independent and of the CIO. The tally of
ballots showed that of 2797 valid votes, 1738 were cast for the Independent, 963
for the CIO and 96 against any labor organization. On August 29, 1945, the
CIO filed an objection to the conduct of the election, in which it requested that
the Board set aside the results of the election because of alleged activities of the
respondent and the Independent in violation of the Act. Pursuant to Article
III, Section 10 of the Board's Rules and Regulations, on November 14, 1945 the
Regional Director issued his report on the objections in which lie found that the
objections raised substantial and material -issues with respect to the conduct of
the election and recommended that the Board direct a hearing upon the objec-
tions. On November 19, 1945, the respondent filed exceptions to the Regional
Director's report. On November 30, 1945, the CIO filed its reply to respondent's
exceptions. Pursuant to the Board's amended order dated January 15, 1946,
directing further investigation of Objections to the Elections, on February 8,
1946, the Regional Director issued a supplemental report on objections. Oil
February 18, 1946, the CIO and on February 20, 1946, the respondent, respectively,
filed statements to the Regional Director's Supplemental report on Objections.
On March 1, 1946, the Board finding that the objections raise substantial and
material issues with respect to the conduct of the election, issued an order direct-
ing that a hearing be held on the objections to the conduct of the election. There-
after, upon a second amended charge duly filed on November 27, 1945, the Board,
by the Regional Director, issued its complaint dated March 27, 1946, against the
respondent alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1),
(3), and (4) and Section 2 (6) and (7) of the Act, 49 Stat. 449. The Board, by
order, dated March 26, 1946, consolidated the cases. Thereafter, copies of the
complaint, the second amended charge, accompanied by a consolidated notice of
hearing on the allegations of the complaint and the objections to the conduct of
the election, were duly served upon the respondent, the Independent, and the CIO.
With respect to the unfair labor practices the complaint alleges in substance
that : (1) on or about June 23, 1945, the respondent discharged Harold A. Hoffman,
an employee, and thereafter refused to reinstate said employee to his former posi-
tion for the reason that he joined and assisted the CIO, in violation of Section 8
(3) of the Act and because he gave testimony under the Act in violation of Sec-
tion 8 (4) of the Act, and (2) that between June 12 and August 24, 1945, during
the pendency of representation proceedings before the Board, the respondent gave
1 63 N. L. R B 235
RADIO CORPORATION OF AMERICA 1741
preferential treatment to the Independent in order to discourage membership
in the CIO and encourage membership in the Independent, by granting recognition
to the Independent on June 13, 1945, by entering into collective bargaining agree-
ments with the Independent on July 5 and on July 27, 1945, and by publishing
these agreements on its bulletin board and by publicly giving credit to the In-
dependent for certain benefits accruing to the employees therefrom and from other
demands and negotiations conducted by the Independent, thereby interfering with,
restraining, and coercing its employees within the meaning of Section 8 (1) of
the Act.
On or about the 4th of April, the respondent filed an answer admitting certain
allegations of the complaint, but denying the commission of any unfair labor prac-
tices. On April 17, 1946, the respondent filed a motion for Bill of Particulars
requesting that the Objections to Election filed on August 29, 1945, by the CIO
be made more definite and certain. This motion was denied by order of Trial
Examiner William E. Spencer on April 24, 1946. On the 26th of April, 1946, the
respondent moved to dismiss these proceedings. By order of the Board dated
May 6, 1946, this motion was denied.
On April 29, 1946, the Independent filed its answer to the complaint wherein
it denied the commission of any unfair labor practices and prayed for the dismissal
of the proceedings.'
Pursuant to notice a hearing was held in New York City, New York from May
14 to 21, 1946, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board, the respondent, the CIO and the Independent
were represented by counsel. Full opportunity to be heard, to examine and cross-
examine witnesses and to introduce evidence bearing upon the issues was afforded
all parties At the close of the Board's case, the respondent moved to dismiss
the complaint on the ground that the Board had failed to establish its case by
substantial evidence. This motion was denied. The same motion was renewed
by the respondent at the close of the hearing, and ruling thereon was reserved.
It is hereby denied. All parties, except the CIO, argued orally at the close of the
hearing and a brief has been filed by the respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Radio Corporation of America, a Delawaie corporation, maintains plants in
various sections of the United States. At its Harrison, New Jersey plant and the
Jersey City, New Jersey warehouse, which are the only plants involved in the
present hearing, respondent is engaged in the manufacture of radio tubes and elec-
tronic devices. The respondent uses copper, steel, nickel, aluminum and other
raw materials in the manufacture of its products. During the past year its pur-
chases of raw materials for use at its Harrison, New Jersey plant were in excess
of $500,000 in value, of which 50 percent was secured from sources outside the
State of New Jersey. During the same period, finished products manufactured
2 After introduction of testimony to the effect that the signature of Michael J. Hegarty,
president of the Independent, appearing on that answer was not in fact the signature of
said Michael J. Hegarty, the CIO moved to strike this answer on the ground that it did
not conform to the rules of the Board requiring the answer to be under oath, and was,
therefore, a fraud upon the Board. At the hearing, the undersigned reserved ruling upon
this motion In view of the decision on the merits of this matter, the undersigned finds it
unnecessary at this time to rule on this motion
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the company were in excess of $500,000 in value of which 50 percent was
shipped to points outside the State of New Jersey The respondent acknowledges,
and the undersigned finds, that it is engaged in commerce within the meaning
of the Act.'
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the respondent.
Radio Communications Assemblers Union, Inc., a New Jersey corporation, is
an unaffiliated labor organization admitting to membership employees of the
respondent.
A. Interference, restraint, and coercion and Objections to Election
1. The facts
For some years prior to 1945 the employees at the respondent's Harrison plant
and Jersey City warehouse had been represented by a labor organization known
as the Employees' Council. This organization was dissolved by its own action on
March 6, 1945, for reasons of no moment to this proceeding.
About the same time the Independent came into existence at the plant. On
March 10, 1945, it filed with the Board a Petition for Certification, alleging that
a question concerning representation had arisen among the employees of the
respondent in an appropriate unit consisting of certain stated categories of
employees at the Harrison plant and the Jersey City warehouse. This became
Board Case No 2-R-5495.
On the same day, the Independent requested by letter that the respondent
recognize it as the bargaining agent for the above-described employees and
offered to prove its majority by allowing the respondent to check its signed
application cards and membership lists against the respondent's pay roll
Respondent answered this request by a letter dated March 12, 1945, as follows:
This is in reply to your letter of March 10, in which you ask the Company
to recognize the Radio Communications Assemblers Union, Inc., covering
the majority of the employees now employed at our Harrison and Jersey
City plants.
The Company will recognize and deal with your Union for said purposes
only when the National Labor Relations Board has determined and certified
to the Company (1) that the Union is a proper labor organization, (2) that
the bargaining unit to which you claim representation rights is "an appro-
priate bargaining unit," (3) that your Union has been duly certified by the
National Labor Relations Board as the sole collective bargaining agency for
such bargaining unit, all as proposed and within the meaning of the National
Labor Relations Act.
On March 12, 1945, the CIO filed a Petition for Certification involving the same
employees ' as covered in the Independent's petition. This became Case No.
2-R-5479.
On March 15, 1945, the Board commenced a hearing on a complaint alleging
that the Employees' Council was a company-dominated organization. This hear-
ing continued intermittently for approximately 3 weeks. During one of the
recesses John F. X. Landrigan and Michael J. Hegarty, counsel and president
of the Independent, respectively, told Edward M. Tuft, respondent's Personnel
Manager at the plant involved here, that "unless the company stopped its
delaying tactics, which was merely for the purpose of not wanting to deal and
3 This finding is adopted from Cases 2-R-5479 and 2-A-5495.
RADIO CORPORATION OF AMERICA 1743
bargain with the Independent union, they would call a strike that would make the
1912 Patterson strike look like a Sunday school picnic, and they had the member-
ship to do it with."'
Disregarding the decision contained in its letter of March 12, the respondent,
sometime in March 1945, invited both the CIO and the Independent to submit
' to a cross-check of their respective application cards so that the respondent
could determine which union was entitled to recognition The CIO refused to
participate so no cross-check was held
This matter then remained in abeyance until by order dated June 7, 1945, the
Board consolidated Cases Nos 2-R-5479 and 2-R-5495 for the purposes of hearing.
On the same day notices scheduling the consolidated hearing for June 15 were
sent to the parties.
On June 11 the respondent again invited the CIO and the Independent to par-
ticipate in a card check. The invitation was extended by telegram as follows :
THIS WILL CONFIRM OUR TELEPHONE CONVERSATION OF TODAY
AND ARRANGEMENTS FOR A MEETING FOR THE PURPOSE OF THE
COMPANY CONSIDERING THE POSSIBILITY OF RESOLVING THE
QUESTION OF BARGAINING AGENCY ON THE BASIS OF A CROSS
CHECK. UNDERSTAND YOU WILL BRING MEMBERSHIP CARDS TO
A MEETING IN MY OFFICE AT 3.30 P Al. ON TUESDAY, JUNE 12.
AS YOU KNOW, THE' COMPANY IS MOST ANXIOUS TO DEVOTE ITS
ENTIRE EFFORT TO INCREASED WAR PRODUCTION, AND WE I;E-
LIEVE THAT A SPEEDY SETTLEMENT OF BARGAINING QUESTION
IS ESSENTIAL TO THAT END [Italics added.] AS YOU WERE IN-
FORMED, A SIMILAR INVITATION HAS BEEN EXTENDED TO THE
RADIO COMMUNICATIONS ASSEMBLERS UNION, INC.
Again the CIO refused, stating its preference for a decision by secret ballot
under Board auspices, either by consent of the parties or by order of the Board.
However, on June 13, the Independent submitted its cards to the respondent
for such a check which was made by the respondent. The next day the respond-
ent caused the following bulletin to be posted on the bulletin boards throughout
the plant."
TO HOURLY PAID PRODUCTION AND MAINTENANCE EMPLOYEES
For a great many years the Employees' Council was recognized by the Com-
pany as the bargaining agency for the hourly paid production and mainte-
nance employees at the Harrison plant and Jersey City Warehouse. That
organization was an independent union.
About May 11, 1944, the United Electrical, Radio and Machine Workers of
America-CIO, in connection with its efforts to organize the employees of
the Harrison plant and Jersey City Warehouse, filed charges with the Na-
tional Labor Relations Board, alleging that the Company had engaged in
certain unfair labor practices in its recognition of and dealings with the
Employees' Council.
Following an extended investigation by the National Labor Relations Board,
and after a public trial, the National Labor Relations Board dismissed the
complaint against the Company filed as a result of the U. E.-CIO charges.
While this action was pending, the Employees' Council voluntarily dissolved.
Hence, the production and maintenance employees of the Harrison plant,
* Testimony of Tuft desci ibing the only strike threat made by the Independent.
5 According to the testimony there were approximately 50 such bulletin boards through-
out the plant.
735420-48-vol 74--Ill
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since the dissolution of the Employees' Council on March 6, 1945, have not
been represented by any organization for the purposes of collective bargain-
ing, although intensive organizational efforts have been carried on by both
the U. E. CIO, and the Radio Communications Assemblers Union, Inc.
The law provides for recognition by the Company for collective bargaining
purposes of any union which represents a majority of the employees in
an appropriate bargaining unit. The Company, in a sincere effort to resolve
the question of representation, suggested to both the U. E -CIO and the
Radio Communications Assemblers Union, Inc, that they establish their
claim of representation by a comparison of membership cards with payroll
records. This is the speediest method of determining such a problem, under
present law.
On June 12, 1945, the U. E-CIO refused this offer, and failed to furnish
any evidence in support of its claim of majority representation. On the other
hand , on June 13, 1945, the Radio Communications Assemblers Union, Inc.,
submitted evidence to the Company that a majority of the hourly paid pro-
duction and maintenance employees were members of its union.
Since the Radio Comunications Asse7nble7s Union, Inc., has offered this evi-
dence that it represents a majority of the hourly paid production and mainte-
nance employees of the Harrison plant and Jersey City Warehouse, the
Company has recognized it as their collective bargaining agency s By the
recognition of the bargaining agency, it is felt that harmonious labor-
management relations will continue, and the entire personnel of the Harri-
son plant and Jersey City Warehouse can devote their full time 'to the dif-
ficult war production job still ahead. [Italics supplied.]
A copy of this letter has been sent to the National Labor Relations Board.
By order dated June 12, 1945, the consolidated hearing scheduled for June 15
was postponed to June 22, 1945 and was held on that day. It was attended by a
committee of employees belonging to CIO z and by certain officers of the Inde-
pendent. During the course of this hearing, Attorney Landrigan noted on the
record that his client, the Independent, had already been recognized by the re-
spondent "as the bargaining agent" and was then engaged in bargaining with the
respondent. Attorney Clifford moved to dismiss the proceedings on the ground
that no question conL'erning representation was pending due to the recognition
of the Independent by the respondent.
On July 5, 1945, the Independent and the respondent executed a document en-
titled "General Agreement for Temporary Grievance Procedure", the preamble of
which reads as follows :
Temporary Grievance Procedure agreed upon between the Harrison Plant of
the RCA Victor Division of the Radio Corporation of America located at
Harrison , New Jersey, and the Radio Communications Assemblers Union,
Inc., for the employees included in the prernously recognized bargaining unit,
to become effective on date of signature by both parties, and expiring accord-
ing to the terms herein described. [Italics supplied ]
Copies of this agreement were posted on July 10, 1945, on its bulletin boards
by the respondent. It set up in considerable detail a grievance procedure which
by its own terms was "understood" to be "temporary in nature and will terminate
upon completion of contract negotiation."
As a result of certain charges of misconduct leveled at certain Board agents
by Clifford, attorney for the respondent, during the course of the June 22
O Compare this with respondent's letter to Independent dated March 12, 1945.
1 Other events occurring at this hearing will be considered hereafter.
RADIO CORPORATION OF AMERICA 1745
hearing, the Board reopened the hearing for the purpose of receiving testimony
on these charges and for other matters. This hearing took place on July 26,
at which time Landrigan again repeated that his organization had already
been "recognized" and that an agreement would be executed by his client and
the respondent in the "next few days."
Further negotiations between respondent and the Independent followed, con-
eluding on July 27, 1945 with the execution of a 29 page document entitled
"General Agreement between RCA Victor Division of the Radio Corporation
of America (Harrison Plant and Jersey City Warehouse) and Radio Communica-
tions Assemblers Union, Inc., at the company's plant at Harrison, New Jersey" to
which was attached a 3 page apl,endix This document contained provisions
regarding wages, hours, seniority, and other matters usually found in such
labor agreements.
On August 4, 1945, the respondent caused the following notice to be posted
upon its bulletin boards:
The Company and the Radio Communications Assemblers Union, Inc., which
is the recognized collective bargaining agent for the non-supervisory, hourly
paid maintenance and production workers at the Harrison Plant and Jersey
City Warehouse, have signed an Amendment to the Agreement entered into
on July 5, 1945. This Amendment relates to the agreement reached between
the parties concerning wages, hours, and working conditions for the em-
ployees in the bargaining unit, at the Harrison Plant and Jersey City
Warehouse.
Copies of the Agreement of July 5, 1945 (which has been posted on the bulletin
boards since July 10, 1945), and the Amendment of July 27, 19458 are
available for review by any employee wishing to do so at the Employment
Office of the Harrison Plant, at the office of Mr. R. G. Eoff at the Jersey
City Warehouse, at the office of John F. X. Landrigan, Attorney for the
Union, 91 West 9th Street, Bayonne, New Jersey, and at 41 Dales Avenue,
Jersey City, New Jersey. [Italics supplied.]
RADIO COMMUNICATIONS ASSEMBLERS UNION, INC.
RCA VICTOR DIVISION, RADIO CORP. OF AMERICA
On August 9, 1945, the Board issued its Order and Direction of Election in the
consolidated cases providing for an election between the CIO and the Independent
to resolve the pending question concerning representation. In this order the
Board denied respondent's motion to dismiss and held that, despite the unilateral
"recognition" of the Independent by the respondent, the question concerning
representation was still pending before it. Respondent received its copy of this
Direction and Order on August 13. Within 2 or 3 days of that date respondent
also received notice that the election therein provided would be held on August 24.
On August 17, 1945, Plant Manager H. F. Randolph addressed all of the re-
spondent's employees over the respondent's public address system which covered
the whole plant and was the regular means by which company announcements
were communicated to the employees. His address began as follows :
Attention, Please :
At this time you will hear an announcement by Mr. H. F. Randolph, Manager
of the Harrison plant.
Mr. Randolph:
In accordance with the demands of the Radio Communications Assemblers
Union, and following negotiations between the Company and the Union, it
8 This obviously refers to the above-entitled "General Agreement "
1746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has been agreed to pay employees for time lost from work during the V-J
holiday. Approval has been obtained from the War Labor Board and the
Company will pay for time lost on the following basis:
Thereafter followed the basis on which such payments would be made to the
employees.
The "demands" and "negotiations" referred to above consisted of 2 telegrams
to respondent from the president of the Independent, the first requesting pay
for the anticipated 1 day holiday for V-J Day and the second making the same
demand for the 2 holidays by President Truman. There was no across-the-
table negotiating between the parties. When the War Labor Board ruled that
employers could pay their workers for these holidays, the respondent followed
the lead of other employers in making such payments. In the generally ac-
cepted connotation of the terms there were no "negotiations" involved. The
reference to the Independent was clearly intended to enhance the prestige of
the Independent in the eyes of the employees at a time when all parties knew
that an election involving the Independent was imminent
The respondent publishes monthly a plant paper known as the "RCA Family
News", which it distributes to each employee at the end of the work shift on
the day the magazine is delivered to it by the printer It is the usual house
riiagazme largely composed of articles on the activities of the employees The
July-August issue was distributed to the employees in the plant on August 21,
1945. Prominently displayed on the front page of this issue was a picture under
the caption "Signing of labor agreement" of the execution of the July 27 agree-
ment between the Independent and the respondent. The text beneath the picture
described the event as follows :
Michael Hegarty, President of the Radio Communications Assemblers Union,
Inc, and H F. Randolph, Plant Manager, affix their signatures to labor
agreement entered into on July 27, covering non-supervisory, hourly paid
maintenance and production workers at the Harrison Plant and Jersey City
Warehouse, while members of the negotiating committee look on.
The names of the 9 members of the Independent negotiating committee, with that
of their attorney, and the two company officials present followed. Although
most of the employees received their copies of the "Family News" on August 21,
distribution thereof continued thereafter until all employees absent on the 21st
had received their copies.
On August 24, 1945, the election was held under the auspices of the Board,
resulting in a 1,738 to 953 victory for the Independent. The official observers for
CIO failed to sign the tally sheet,° a copy of which was served on that organiza-
tion the following day by mail.
On August 29 the CIO filed its Objections to Election which contained claims
of company interference prior, during and subsequent to the election Subse-
quently, the CIO withdrew a number of these objections.
2 Conclusions
Simply stated the instant case presents the problem whether, during the period
while Petitions for Certification filed by competing labor organizations are pend-
ing and undecided before the Board, and especially prior to a Board conducted
election to determine the question of representation, it constitutes interference,
restraint, and coercion for an employer: (1) to recognize one of the two com-
peting labor organizations as the exclusive representative of the company's em-
9 The record is silent as to the reason for the failure of the CIO to sign.
RADIO CORPORATION OF AMERICA 1747
ployees in an appropriate unit by its own unilateral act, (2) to negotiate and
execute labor agreements with the selected labor organization for a stated period
containing clauses providing wage, hour, seniority and other working conditions
of the employees in said unit, and (3) to publicly credit said selected organiza-
tion with being the recognized bargaining agent, for having negotiated and
executed the various labor agreements and for having obtained other benefits
for the employees.
Section 7 of the Act states in part : "Employees shall have the right to self-
organization, to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing . . . " [Italics added.]
Section 8 of the Act makes it an unfair labor practice for an employer to
interfere with the rights guaranteed in Section 7. The choice of a bargaining
agent is, therefore, the exclusive prerogative of the employees from which the
employer is expressly enjoined from interfering in any manner.
Section 9 of the Act provides the administrative machinery by which such
questions concerning representation can be determined under Board auspices in
order to insure to the employees that their selection may be made freely and
without interferences or coercion from any source.
The chronology of the various acts of the respondent in relation to the several
hearings and various orders of the Board connected with the consolidated Peti-
tions for Certification indicate a deliberately conceived and carefully executed
plan by which the respondent intended either to select, or to cause the selection
of, the Independent as the bargaining agent of its employees while that question
was pending undetermined before the agency having exclusive jurisdiction to
determine the matter.
When the Independent, as the only organization which had then invoked the
jurisdiction of the Board, requested recognition, the respondent on March 12
refused such recognition until the Independent had been duly certified by the
Board. In this letter the respondent also declined to recognize the Independent
on the basis of a card check However, promptly after the CIO entered the lists
by also petitioning the Board for certification, the respondent reversed its posi-
tion and offered to determine the question itself on a card check but failed to do
so when C1O refused to agree.
Thereafter followed a period of delay caused by other matters involving this
respondent before the Board During this period the respondent did nothing
about the matter of recognition. Immediately upon receipt of notice from the
Board scheduling a hearing on the Petition, however, the respondent again
invited both the Independent and the CIO to participate in a card check "for
the purpose of the company considering the possibility of resolving the question
of bargaining agency" After the CIO again refused to participate, the respondent
proceeded this time with the Independent alone and on the day before the sched-
uled Board hearing announced to its employees its "recognition" of the Inde-
pendent as the bargaining agent based on its unilateral check of the Independent
cards.
When the hearing took place on June 22 the respondent seriously urged that
its unilateral recognition of the Independent as the bargaining agent for its
employees had resolved all questions concerning representation. By this ma-
neuver the respondent intended to resolve the question itself and to deprive
the employees of their right to an election by secret ballot.
The Board ruled in its Order dated August 9 that respondent's unilateral
recognition did not deprive the Board of jurisdiction and that the question
concerning representation still pending before it was to be resolved by an elec-
tion by secret ballot.
1748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anticipating this decision and the fact that a Board conducted election would
be held, the respondent executed agreements with the Independent on July 5
and July 27, 1945, covering grievance procedures, wages, hours, paid vacations,
seniority and other conditions of employment including recognition of the In-
dependent "as the sole bargaining agency." These agreements were announced
to the employees with full credit being given the Independent by the respondent
for all the benefits secured thereby.
After receiving notification of the August 9 Decision and Direction of elec-
tion the respondent's plant manager took occasion to credit the "demands" of
the Independent together with subsequent "negotiations" with the respondent
for its decision to grant V-J holiday pay to its employees despite the fact
that no negotiations ever occurred.
On August 21, 3 days before the scheduled election, the respondent's house
organ again publicly gave credit to the Independent for the execution of the
agreement of July 27.10
One of the bases on which the respondent moved that this proceeding be
dismissed was that the Board had introduced no evidence to show that respond-
ent's acts had influenced the election results. The above chronology, however,
definitely shows that the respondent intended to arrogate unto ii self the de-
termination of which labor organization was in fact the representative of the
en,,ployees as well as the question of the appropriate unit, by recognizing the
Independent on the day preceding the scheduled Board hearing on those very
matters and thereby attempting to foreclose the Board from considering what
was within the Board's exclusive jurisdiction. Thereafter, realizing the futility
of that maneuver, the respondent attempted to foreclose the employees from
voting for any bargaining agency other than the Independent by creating a
grievance procedure with the Independent, by executing general labor agree-
ments with it containing other benefits in hours, wages, working conditions,
seniority, and other conditions of employment and by making certain that the
Independent received credit for all such benefits and especially for the V-J
holiday pay. The illegal intent behind all these moves of the respondent made
while the question of representation between the two competing unions re-
mained pending and undecided before the Board, is clear. Having wrongfully
interfered with the guaranteed freedom of the employees to select their own
bargaining agent, the respondent cannot now be heard to complain that its at-
tempts to interfere with, restrain, and coerce its employees into selecting the
Independent were unsuccessful and did not influence the results. Even assum-
ing the absence of illegal intent,'tha respondent's usurpation of the Board's func-
tions would necessarily enhance the prestige of the Independent, discourage
membership in the CIO and thereby affect the votes of the employees.11
The respondent and the Independent, however, argue two technical defenses,
one of waiver and the second of estoppel.
On June 25, 1945, and again on August 1, 1945, the CIO signed waivers in
order that the Board could proceed to hold the election of August 24. By the
first the CIO waived any claim of company domination of a labor organization
10 In some ways the timing of the July -August edition of Family News was rather fortui-
tous in that the work of the respondent on the paper had been completed prior to the date
of the Board 's Decision and Direction of Election. Of course , the respondent could have
postponed the distribution of the paper if it had desired to preserve its neutrality
'1 See Matter of Midwest Piping and Supply Co ;, Inc., 63 N. L. It . B. 1060: Matter of
Phelps Dodge Corp., etc., 63 N. L. It. B 686; Matter of Elastic Stop Nut Corp ., 51 N. L.
It. B. 694, enf ' d. 142 F. ( 2d) 371 (C. C. A. 8), cert. denied 323 U. S. 722
RADIO CORPORATION OF AMERICA 1749
as an objection to the anticipated election" This waiver has been complied
with to the full. By the second the CIO waived a general charge of interference,
restraint, and coercion and a charge of unfair labor practice regarding the dis-
charge of Harold Hoffman as objections to the election" This latter waiver
could not apply to any unfair labor practice occurring after the date of its
execution, August 1, 1945. However, the respondent continued to commit unfair
labor practices thereafter. Well known Board practice invalidates even settle-
ment agreements entered into by Board agents when the employer continues
to commit unfair labor practices subsequent to the settlement as was done in
this case. Hence these waivers constitute no defense in this case."
Respondent and the Independent have asserted their defense of "estoppel"
on the claim that the CIO and agents of the Board knew of all the unfair
labor practices committed by the respondent prior to the holding of the election
and yet allowed the election be be held. The courts have never applied the
doctrine of estoppel against the Board. In a number of instances the Board as
a matter of discretion has refused to consider unfair labor practices committed
prior to the execution of a consent election agreement on the grounds that, as a
matter of fair play, the parties by signing that agreement, assumed the risk
of the effect of the prior unfair practices. However, the Board has never applied
this rule where the respondent continued its unfair labor practices subsequent
to the agreement even where the parties had knowledge of the facts. So here it
might be that the CIO assumed the risk of the effect of unfair practices committed
prior to the Direction of Election but certainly not those committed subsequent
thereto. It would certainly be an unfair distribution of risk if the Board were
to hold that mere knowledge of the respondent's continued commission of unfair
practices up to the very moment of the election by the CIO and by certain agents
of the Board was sufficient to condone those acts, for that would force the
innocent party to assume all the risk for another's illegal acts Hence, the fact
that agents of the Board and the CIO may have known about these acts prior
to the actual holding of the election cannot create immunity for this respondent
under the circumstances here disclosed. It is the Board's duty, acting in the
public interest, to take such action as the facts warrant in order to prevent any
possible obstruction to the free flow of commerce, and to effectuate the purposes
of the Act. The contention is therefore without merit.
The respondent further argues that the Act itself required it to bargain with
the labor organization selected by the majority' of its employees and that, there-
fore, it was forced to bargain with the Independent. There is nothing in the
Act, however, which requires the respondent to assume the onus of determining
by itself which of two competing organizations, if either, actually is the repre-
sentative of the majority of its employees nor of determining by itself the question
12 "Enclosed please find a request for withdrawal of the charge in Case No 2-C-5534 In
withdrawing this charge, we understand that we are hereafter estopped from alleging a
violation of 8 (2) or alleging successorship to an organization on the grounds that it
was a successor to the organization named in the above-captioned 'C' case, and further
that we are estopped from seeking to present any evidence of successorship in the event
of hearing in cases 2-R-5479 and 2-R-5495, or in any other representation case on the
theory that a labor organization participating in such representation case was a successor
to or the same as the labor organization involved in Case No. 2-C-5534 "
11 "The undersigned hereby waives any right or privilege to urge any of the acts alleged
as unfair labor practices in Case No. 2-C-5898 as a basis for objection to any election
(or to the results thereof) which may hereafter be held in Case No 2-R-5479, and
2-R-5495."
14 Wallace Corporation v. N. L. if. B., 323 U. S 248
1750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of what constitutes the appropriate unit especially when both labor organizations
as here have petitioned the Board to determine those very same issues In fact,
the Board was established for the very purpose of deciding those questions
thereby relieving the employer from that embarrassment and of guaranteeing to
the employees a decision free of possible influence from the employer
As a sort of corollary to the above contention, respondent further claims that
it was forced to recognize the Independent because as stated in respondent's
brief :
The CIO refused to participate in this means of settling the representation
issue (by the cross check suggested by telegram of June 11), alter stating,
among other things, that it was purposely stalling the proceedings before the
Board until it felt that it was ready to really proceed with an election The
Company, however, could not afford to risk a strike on the part of the
Independent by falling in with the CIO's desires for further delay. Threat
of strike was not to be lightly taken at that time and failure to recognize the
bona fide representatives of a majority of the bargaining unit would have
violated the Act Moreover, aiding the CIO by stalling for an election, which
the Board's prior actions with respect to the Company did not indicate would
soon be held, would also have been illegal. Accordingly, the Company
proceeded with the cross check
Regarding this argument it should be remembered that the CIO had a right to a
Board determination rather than to have to trust its fate to an employer. If
the respondent had actually desired a speedy determination of the conflicting
claims of the two organizations, it could have adopted the suggested consent
election under Board auspices, proposed prior to June 12, 1145, instead of rejecting
that proposal. Next the so-called "strike threat" of the independent occurred
within 3 weeks of March 15 so that it could not have seriously affected respond-
ent's decision on June 11 in view of the peaceful condition of affairs during the
intervening period Nor does that explain respondent's haste in suggesting and
holding this card check within 6 days of the Board's notice of hearing in the
consolidated R cases. Further, the record conclusively proves that all delays
thereafter were of the respondent's own making- (1) by attempting to prevent
the representation decision until the case against the Employees' Council was
determined despite CIO's waiver of that charge as an objection to the election;
(2) by demanding a hearing on accusations against Board agents'° prior to a
determination of the representation matters and (3) by various motions to dis-
miss the Petitions If the respondent had seriously desired a fair and speedy
determination of the matter, it could have eliminated its efforts to delay such
determination and had the matter concluded even before August 24, 1945, instead
of again preventing a final result by its own voluntary attempts to prevent the
employees from exercising their right to choose their own representative.
The undersigned therefore finds that the respondent, by unilaterally recognizing
the Independent as the sole bargaining agent of its employees in an appropriate
unit during the pendency of the question concerning representation before the
Board, by negotiating and executing the agreement of July 5, 1945, with the
Independent, by negotiating and executing the "General Agreement" of July 27.
1945, with the Independent, by publicly crediting the Independent with these and
other accomplishments such as the payment for V-J holidays and distribution of
the Plant Paper all during the period while the certification question was before
the Board, interfered with, restrained, and coerced its employees in the exercise
of the rights guayanteed in Section 7 of the Act.
15 The charges were later determined to be unfounded.
RADIO CORPORATION OF AMERICA 1751
The undersigned further finds that by these same acts the respondent interfered
with. restrained , and coerced its employees in the selection of their bargaining
agent at the Board conducted election of August 24 , 1945, and that this election
should. therefore , be set aside and nullified.
B. The discharge of Harold Hoffman
a. The facts
The respondent lured Harold Hoffman as a tinsmith at the rate of $100 per
hour on October 5, 1942. When discharged on June 23, 1945, Hoffman had
received six increases in salary and was earning $1.27 per hour. His last in-
crease had been granted on September 25, 1944.
In May 1944, Hoffman became ill, necessitating his remaining away from
work throughout the months of June, July and August. He returned in September
1944 The respondent granted him permission to take this leave and knew of his
physical condition. During 1944 and 1945, Hoffman was late or absent from
work a considerable number of times fart of these were caused by his physical
condition. During his last year of employment, Hoffman's supervisors had re-
quested two or three times that Hoffman try to improve this record and, in fact,
his record for 1945 showed marked improvement. Sometime in 1945 Foreman
,Spink, at Hoffman's request, applied to Superintendent Schwarz for a wage
increase for Hoffman but was told that Hoffman was then receiving the highest
wage possible under the Wage Stabilization Act, and therefore could not be
given a further increase."
Hoffman joined the CIO sometime in March 1945. Toward the end of May of
that year, lie became a member of the CIO organizing committee, in which capacity
he canvassed some of the respondent's employees at their homes at night to
become members of the 010 Once or twice in the last 2 weeks before his dis-
charge, Hoffman also distributed some CIO leaflets to employees at the plant
gate On one such occasion he offered a leaflet to Foreman Spink who refused
to accept 17 He also solicited members for, and talked in favor of, the CIO to
other employees in the plant. On the day prior to his discharge he had success-
fully solicited one of his fellow employees, while in the plant, to become a member
ref the CIO.
About a week or so before June 15, the date on which the Board hearing in
the R cases was originally scheduled, Hoffman was appointed to a CIO com-
mittee to assist at that hearing on any questions concerning the unit question
which might arise. The hearing was later postponed to June 22, 1945.
On June 22, Hoffman commenced work at 8 a. in. the beginning of his shift,
and worked until shortly before 1: 00 p. in. when he left the plant after telling
" Neithei Hoffman nor Spink could place the date of this request more accurately than
that it was a "few months" prior to his discharge.
-
"In its brief, the respondent lists Spink as one of the foremen who testified that he had
not "seen" Hoffman passing out CIO literature This statement is erroneous as it is
'based on the following testimony elicited from Spink as a witness by the respondent :
Q ,[by Mr. Clifford] During the period from 1944 to June 23, 1945 (date of Hoff-
man's discharge), did Mr Hoffman ever deliver to you any CIO literature?
A. No, sir
Mr Clifford : I have no further questions.
As the other foremen had been asked if they had "seen" any such distubution and as
Hoffman had previously testified that Spink had refused to accept the leaflet proffered by
him the undersigned cannot accept the denial of the above phrased question as a denial
of Hoffman's testimony regarding the attempted distribution of CIO literature to Foreman
Spink Even construed as a denial the undersigned would credit Hoffman ' s testimony.
1752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emil Trautmann , his immediate Supervisor;s that he was leaving the plant on
"personal business," but would try to return before the end of the day 39 Traut-
mann replied "0. K."
Sometime between twelve and one o'clock that day, Doris Lewis, a CIO or-
ganizer, requested Personnel Director Edward M. Tuft to release the CIO
committee to attend the scheduled hearing. Tuft refused to do so unless the
members thereof were subpoenaed.
At 2:05 p. m. John E. Kearns, then a Board Field Examiner, entered the
respondent's plant and with the assistance of Assistant Personnel Director
Mesics, served subpoenas on all the members in Mesics' office of the CIO coin.-
mittee, except Hoffman. At this time Mesics telephoned Foreman Spink for
the purpose of having Hoffman sent to his office so that he could be subpoenaed
by Kearns, but was told by Spink that Hoffman had already left the plant.
Kearns left,the plant at 2:45 p. in., met the CIO committee outside the gate,
got into their automobile, drove around the block and located Hoffman standing
in front of a restaurant, where he served the subpoena on Hoffman calling for
his attendance at the Board hearing in order "to testify" at the hearing sched-
uled for 2: 00 p. in. The committee then proceeded to the hearing
The hearing began as scheduled at 2 p. in. and concluded at 4: 40 p in. During
the hearing the respondent, the Independent and CIO stipulated what classes
of the respondent's employees constituted the appropriate unit,20 thereby eliminat-
ing the necessity for oral evidence on that point. Soon thereafter counsel for
CIO stated that the CIO had subpoenaed certain employees for the purpose of
testifying on that matter and that they were all in the court room. He then
read the list of names of said individuals and had each individual identify him-
self by holding up his hand. Harold Hoffman was the first such individual to
identify himself as his name was called. At the conclusion of this identification,
38 On company records, Tiautmann was, at this time , classified as a "supervisor third
class " The foremen and superintendent of his department routed all orders for jobs to
Trautmann who assigned them to the 3 tinsmiths and helpers working tinder hint Traut-
mann laid out the work , supervised, assisted , criticized and inspected it upon completion
He had the authority to reject or to accept woik done by the tinsmiths Trautmann was
paid 10 cents per hour more than was paid to a tinsmith He also did manual work at a
bench , and unlike the foremen of his department, had no desk At the hearing the
respondent referied to Trautmann as an "instructor " or a "group leader " but denied that
he was a supervisor
This particular department was under the contiol of Superintendent Schwarz , who was
assisted by 3 foremen. Under each of these foremen there was one "supervisor third
class," over each mechanical trade in the department i. e., tinsmiths , pipe fitters, car-
penters, painters , etc. Trautmann was the supervisor over the tinsmiths These super-
,visois had no authority to hire or fire employees but reported poor workmanship and
matters of similar import to the foremen.
By stipulation between the parties on July 26, 1945, these supervisors thud class were
excluded from the appropriate unit as "supervisory employees " The undersigned finds
that supervisors third class were supervisory employees and against the position assumed
at the present hearing by the respondent that such supervisors third class were not
supervisory employees.
19 Respondent contended that foremen alone could excuse employees from work on the
grounds of personal business , and that Trautmann had no such authority It is undenied
in the record that the personnel clerk , Mast, to whom Hoffman was sent for assignment,
told Hoffman sometime prior to this date that Trautmann « as his foreman . The only
testimony in possible contradiction to this was that given by Trautmann that he had
never heard Mast make this statement . Mast was not called to deny having made the
statement . The undersigned accepts Hoffman 's testimony in this regard and further
finds that Trautmann actually had in the past granted permission to employees to leave
the plant on personal business
20 This stipulation was clarified in respect to the supervisory employees during the hear-
ing of July 26, 1946.
RADIO CORPORATION OF AMERICA 1753
respondent's attorney, Clifford, who had been present in Tuft's office when Lewis
had requested permission for the CIO committee to be excused, stated :
I would like to note on the record, in case any question arises later, that
there is a possibility that some of those employees left the plant before the
subpoenas were served. Just in case there is any question about it later,
I would like that to be on the record.
Also about 2: 00 p. in., according to the testimony of Superintendent Schwarz
and Foremen Spink and Bischof, they discovered that Hoffman had left the
plant and, after consultation, discovered that none of them had given him per-
mission to leave, but that he had spoken to Trautmann. According to Bischof's
testimony, he discovered Hoffman's absence when he took some orders to Traut-
mann for assignment to the tinsmiths. Bischof reported Hoffman's absence to
Spink. Spink, who had refused to accept the CIO leaflet from Hoffman a few
days before, immediately went to Schwarz and learned that Schwarz had not
granted Hoffman permission to leave. Thereupon, according to the testimony
of these l foremen, it was decided to discharge Hoffman because he had ]eft the
plant without permission, because of his absentee and tardy record and because
"for about a year he had been a demoralizing influence in the department " This
conference lasted about an hour from 2: 00 p. in. to 3: 00 p. in. Prior to 2: 45
p. in., Mesics telephoned Spink to have Hoffman sent to his office. However,
Spink testified that he received this telephone call ten to fifteen minutes after
they had decided in conference definitely to discharge Hoffman. The testimony
was that nothing was said to Mesics about the decision to discharge Hoffman
during this call.
At this time, company rules required that a foreman about to discharge an
employee secure permission for such discharge from the personnel manager
especially if a release under the War Manpower Commission rules were to be
given to the employee. At about 5: 00 p. in. that day, Schwarz talked to Tuft on
the telephone for this purpose and secured such permission. The testimony of
Schwarz was to the effect that during this telephone conversation, Hoffman's
name was never mentioned and that the permission to discharge the man and
to give him a release was granted without the personnel manager's ever learning
the name of the employee involved. In view of the fact that the shortage of
skilled craftsmen was so critical at that time that the personnel manager's per-
sonal permission was required before a discharge and release could be effected,
the undersigned finds this testimony to be so incredible and so contrary to the
natural, normal course of events as to be unworthy of belief.
The following day, June 23, Hoffman began at about 8 o'clock. About 12: 45
p. in. Bischof sent him to Schwarz' office where Schwarz informed Hoffman that
he was discharged, that he had obtained permission to leave from the "wrong
party" and that he had told Trautmann that he had already obtained permission
"from the office" to leave. Hoffman protested that he had always previously
obtained permission from Trautmann and denied having told Trautmann that he
had obtained permission from the office. Thereupon Schwarz called Trautmann
into the office where Trautmann affirmed that Hoffman had told him the previous
afternoon that he had permission "from the office." Trautmann was then excused.
Schwarz then spoke of Hoffman's tardy and absent record and his poor attitude
towards his work and said that he was sorry but he would have to let him go.
Schwarz added that he had "no kick coming" about Hoffman's work, but would
still have to discharge him.
It is to be noted that Schwarz never mentioned any important job which
Hoffman left when he departed for the hearing, and that Hoffman never men-
tioned that he had been subpoenaed to appear at the hearing.
Hoffman left the plant and has never reapplied for work.
1754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Concluding findings
Hoffman had been a CIO member since March 1945, and had become quite
-active in soliciting members for that organization a few weeks before, his dis-
charge.Z" Prior to his discharge respondent knew that Hoffman was an active
CIO adherent because of his attempt to pass a CIO circular to Foreman Spink,
and because he was one of the committee attending the June 22 hearing for
whom the CIO had subpoenas issued. In fact, he was the only member of
that committee not served with a Board subpoena in the presence of Assistant
Personnel Manager Mesics prior to his departure from the plant on that day,
and was, therefore, obviously the individual referred to by Attorney Clifford
during that hearing when he noted on the record the "possibility" that some
of the employees had left the plant before the subpoenas were served, in case
"any question arises later " The ominous tenor of this statement was borne
out the following day at the completion of the clay's shift at 1 : 00 p in. when
Hoffman was discharged. Against the background of the intense competition
then existing between the CIO and the Independent into which the respondent
had intruded itself in order to assist the campaign of the Independent, these
facts lead inescapably to the conclusion that Hoffman was chosen for discharge
because he was assisting the CIO and because lie was not,, as respondent believed,
protected by a subpoena of the Board.
Respondent's brief itemizes the respondent's alleged reasons for discharging
Hoffman as follows. "Harold Hoffman was discharged because, in violation
of company rules, he left the plant during working hours without permission,
leaving unfinished an important rush job upon which he was working; because
of his poor attendance and absentee record, and because of his general work
attitude which was corrupting the morale of the department in which he worked "
The first reason assigned by the respondent for the discharge was the fact
that Hoffman allegedly left the plant without permission "leaving unfinished an
important rush job." Omitting for the moment the quoted allegation the unde-
nied facts show that Hoffman spoke to Supervisor Third Class Trautmann, his
immediate supervisor, prior to the time he left the plant. When Hoffman men-
tioned this on June 23, to Superintendent Schwarz he was told that he had
requested permission to leave "from the wrong party " The respondent issued
no printed rules but they were orally explained to each new employee by
Personnel Clerk Mast as lie personally conducted the new employees to their
assignment. It was this same Mast who told Hoffman that Trautmann was his
"foreman" Hoffman and a former employee who is a personal friend of his,
testified that it was customary for tinsmiths to secure permission from Traut-
mann to take time off for personal business. The respondent introduced evi-
dence indicating that Trautmann had no authority to grant such permission.
Tra-utmann also testified that he never had granted any such time off. However,
Trautmann's credibility was considerably shaken by admitted contradictions
in previous statements made by him regarding his supervisory capacity and
by his obvious reluctance to admit his full authority. It is also noteworthy
that, while both Schwarz and Bischof testified that Trautmann had informed
them, upon inquiry, that Hoffman had stated on June 22, that he already had
permission to leave "from the front office," Trautmann failed during his appear-
ance on the stand to testify to that alleged statement except on the one occasion
when he was asked the following question by respondent's counsel on direct
examination : "Did you ask Hoffman whether lie had reported to the office?"
When not led by counsel, Trautmann never mentioned any such statement by
11 On August 1, 1945, the CIO filed a waiver in regard to its charge that the discharge
of Harold Hoffman constituted an unfair labor practice. This discharge, therefore, has
not been considered in connection with the objections to the election.
RADIO CORPORATION OF AMERICA 1755
Hoffman when asked to relate the whole conversation occurring between the
two of them. The undersigned cannot accept Trautmann's testimony given in-.
response to counsel's suggestive question and finds that Hoffman asked and
received permission to leave the plant from Trautmann, as was then customary
and proper, and did not state that he had previously received permission to
leave "from the office."
As for the allegation that Hoffman left a "rush job unfinished" on June 22, this-
claim stems solely from the testimony of Foreman Bischof. It is highly signifi-
cant that neither Trautmann on June 22, when granting Hoffman permission to,
leave, nor Schwarz, when discharging Hoffman on June 23, mentioned any such
"rush job" to Hoffman. Nor did Bischof mention this alleged "rush job" when
he saw Hoffman washing tip about 12 • 30 p. in on June 22, nor even to his super-
visors during their discussion of Hoffman and his shortcomings on that same day
Bischof's testimony was further characterized by his complete inability to remem-
ber any, of the discussions occurring during the conference he attended at which
the discharge of Hoffman was supposedly determined ' The undersigned, there-
fore, can give little credence to Bischof's testimony and finds that Hoffman did
not leave a rush job unfinished when he left the plant.
The respondent's third reason, inferring demoralization of morale by Hoffman,
is without merit since there is no evidence to sustain it.
As to the second alleged reason i. e, that Hoffman was discharged because of
his poor attendance and absentee record, respondent is on somewhat more solid
ground in that Hoffman did have a poor record in that regard for the period
from 1944 to the date of his discharge. In 1944, Hoffman was absent 94 times
and late 65 tunes. However, at least 75 of his absences were caused by his sick-
ness during the period he was on leave of absence with the respondent's permission.
His record for the 5 months and 23 days he worked in 1945 shows that he was
late 42 times and absent 7. Of the 42 occasions on which he was tardy the record
shows that 27 of them occurred in January and February, and that on 19 occa-
sions the tardiness was of a duration of 20 minutes or less clown to one minute.
In the last year of his employment his supervisors mentioned this record of his
on 2 or 3 occasions only. During that same period the same supervisors had
granted him one wage increase in September 1944, and had attempted to secure
another such increase for him during 1945 because they "wanted to keep him "
Under the circumstances related above, the existence of such a critical manpower
shortage as to require foremen to obtain permission from the personnel manager-
himself to discharge an employee, and the improvement in Hoffman's record during
1945, it would be naive to believe that the respondent discharged Hoffman, a skilled
craftsman, because of his absentee and tardy record, especially when Hoffman's
record is compared with that of Michael J. Hegarty, president of the Independent,
who was not discharged 23
22 At one point in his testimony, Bischof answered 6 of 8 consecutive questions with
"I can't remember" or similar answers
23 Late and Taidy Record of Michael J Hegarty and Harold Hoffman
Tardy
January 1945-------------------------------------
February ----------------------------------------
March ----- ---------------- ------------------
Apiil --------------------------------------------
May-------------------------------- -------- ---
June -------- ----------------------------------- -
Absent
Hegarty Hoffman Hegarty Hoffman
5 16 2 0
12 11 0 0
11 2 1 2
10 8 2 3
11 2
4 3 5
During 1944 Begarty was late 78 times and absent 13
1756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent attempts to eliminate the union activity feature of the discharge by
an argument which runs like this: "The decision to discharge Hoffman was made
before 2 p. in., Friday, June 22, 1945" and therefore occurred before his attendance
at the Board hearing, and that "the Company officials (Schwarz, Spink and
Bischof) responsible for Hoffman's discharge were without knowledge" of his
union affiliation and activities. By thus placing all the responsibility on Schwarz,
Spink and Bischoi, the respondent attempts to eliminate the knowledge which
Tuft, Mesics and Clifford had about Hoffman's affiliation by attempting to show
the complete isolation of these two groups of respondent's officials. Not only
does this endeavor do violence to the law of agency but is not justified by the
facts. The actual discharge of Hoffman occurred about 1 p in , June 23, so that
the "decision to discharge" could have been made and changed many times after
2 p. in of the previous day. In that period of time Mesics talked to Spink by
'phone and Schwarz to Tuft, both calls dealing exclusively with Hoffman. Next,
those "responsible for the discharge" were not unaware of Hoffman's activities
as respondent claims, for Spink, the instigator of the discharge among his' group,
well knew Hoffman's activities from having refused a CIO leaflet from him only
a few days before But the sockdolager to this theory was supplied by Clifford
at the hearing when be noted on the record the "possibility" that some of the
employees had left without having been subpoenaed "in case any question arises
later." This statement shows that Clifford at that time knew of the intention
to discharge Hoffman, the only person who fitted Clifford's description, which,
according to respondent's theory, he could only have learned from the other
group of officials who were responsible. The record fails to disclose the means
of communication between the two groups but the statement unquestionably
proves that close contact existed between the two groups. In conjunction with
Tuft's requirement that the CIO committee had to be under subpoena in order
to attend the hearing, Clifford's statement indicates the already formed intent
of the respondent to punish Hoffman for having left the plants to attend the
hearing on behalf of the CIO without first having received the protection of the
Federal Government in the form of a Board subpoena in order to indicate to
the CIO, its members and all of respondent's employees, the dangers inherent
to the employees of retaining their preference for the CIO contrary to the re-
spondent's already publicly expressed approval of the Independent through its
formal recognition of the Independent on June 14. The "question" mentioned in
Clifford's statement arose the following day when Hoffman was discharged.
The undersigned, therefore, finds that respondent discharged Harold A Hoff-
man and thereby discriminated in regard to his hire and tenure of employment
in order to discourage membership in the CIO and to encourage membership in
the Independent in violation of Section 8 (3) of the Act.
C. The discharge under Section 8 (4)
A question of fundamental importance as to the protection of employees in
exercising their rights under the Act is presented for determination here by
the refusal of the respondent to grant permission, to a CIO committee to leave
the plant for the purpose of attending and being available to testify on any
question which might have arisen in that case, and by the discharge of Harold
Hoffman because he left the plant without having been subpoenaed for the pur-
pose of attending the hearing and being available to testify therein.
In the preamble to the Act, Congress stated in clear, concise and emphatic
language that it is the public policy of the United States to eliminate the cause
of obstructions to commence by encouraging collective bargaining and "by pro-
tecting the exercise by workers of full freedom of association, self-organization
and designation of representatives of their own choosing." In order to imple-
RADIO CORPORATION OF AMERICA 1757
ment this stated public policy, Congress created the' method whereby employees
could select "representatives of their own choosing" under the Board's admin-
istrative machinery and jurisdiction . As a part of the Board's investigation
and certification of such representatives the Congress provided for the holding
of an "appropriate hearing" at which all information requested for a determina-
tion of the questions involved could be presented. In order to assure the Board
of free and unhampered access to all such information, Congress gave it wide
investigatory powers including the right to inspect and subpoena documentary
material as well as to examine individuals regarding their personal knowledge
of matters material to such determination. In order that the Board should have
free access to such information known to individual employees, Congress freed
those individuals from fear of reprisal by their employer for making such knowl-
edge available to the Board by Section 8 (4) of the Act, which makes it an
unfair labor practice for an employer to "discharge or otherwise discriminate
against an employee because he has . . . given testimony under the Act." The
obvious purpose of this Section is to allow such employees to give whatever in-
formation they may have to the Board freely, voluntarily and without fear.
When the CIO, by telephone, requested permission for a committee of 5 or 6
of the respondent's employees to be released from the plant in order to attend
the June 22, 1945, hearing of the Board, Personnel Manager Tuft, in the presence
of the respondent's attorney Clifford, refused to grant such permission unless
and until the members of that committee were subpoenaed. This refusal re-
strained and interfered directly with the right of the employees to select repre-
sentatives of their own choosing through Board processes by taking away from
their representatives the ability to present their side of the case to the Board
at a Board hearing. It further impeded the duties imposed upon the Board by
the Act by attempting to restrict the Board to evidence from only one side. The
respondent had no right to attempt to deprive any party from being represented
at the hearing except by subpoena and from presenting its evidence there through
witnesses of its own choosing. The evidence shows that the respondent followed
a policy of freely permitting employees to leave the plant during working hours
for personal reasons. During oral argument counsel for the respondent admitted
that, if the members of the CIO committee had gone "as individuals" to their
foremen and had asked for time off for "personal business," they would have
received that permission, absent some "absolutely vital" job requiring their con-
tinued attendance. (875) On the basis of all the circumstances described
herein the undersigned is convinced and finds that the respondent's action, in
denying the request for permission of the committee to leave the plant for the
purpose of attending the representation hearing as witnesses, was motivated
by its desire to interfere with said proceeding and by its anti-CIO animus, and
constituted a discriminatory application of its policy with respect to the grant-
ing of requests by` employees to leave the plant, all in violation of Section 8 (1)
of the Act.2'
The question then arises whether the discharge of Harold Hoffman by the
respondent constitutes a violation of Section 8 (4). That Section makes it an
unfair labor practice for an employer "to discharge or otherwise discriminate
against an employee because he has . . . given testimony under the Act."
Prior to the above cited refusal by Personnel Manager Tuft to excuse a CIO
Committee, Hoffman left the plant with permission from his immediate superior
to attend to "personal business" which, in this instance, was, to attend the Board
hearing. Following his departure from the plant he was subpoenaed to appear
24 Cf. The Matter of Reliance Mfg. Co.} 60 N. L. R.- B. 9461.,: ,
1758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and "to testify" at the hearing' He presented himself there ready and willing;
to testify. During the course of the hearing the parties agreed upon a stipula-
tion regarding the appropriate unit thereby eliminating the necessity for any
evidence on that question. Soon thereafter during the hearing, Hoffman, along
with the other members of the CIO committee, identified himself by raising his
hand when his name was called as one of the individuals subpoenaed by the CIO.
He was not sworn as a witness, nor did he testify during the course of the hearing.
As heretofore found, respondent discharged Hoffman the following day because
he left the plant for the purpose of attending the Board hearing on behalf of
the CIO. Of necessity this reason also includes the fact that, by 2a attending
the hearing, Hoffman was available there as a witness for the CIO.
It is true that the phrase "has given testimony" in its strict technical sense
would require that, before an employee could be protected under Section 8 (4),
he would have had to be sworn and actually testify at the hearing. This strict
construction has been upheld in criminal and civil cases where individuals have
been claiming immunity from prosecution under somewhat similarly worded
statutes where the.courts have consciously limited this immunity by requiring
the strictest possible construction of the word "testimony". However, as the
obvious intent of the provision of the statute under discussion here is to protect
individuals from reprisal by their employers so that the Board might have free
and unimpeded access to all available information, this provision in Section
8 (4) should be liberally construed so as to provide the protection intended. The
undersigned believes that Congress desired to protect an employee from dis-
charge where, as here, lie leaves the employer's plant and makes himself avail-
able at a Board hearing as a witness, either voluntarily or under subpoena,
although, in fact, he does no more there than to Identify himself and is neither
sworn nor actually testifies for the reason that his knowledge and information
is made unnecessary by stipulation or other means.
The undersigned, therefore, finds that the respondent by discharging Harold
Hoffman for leaving the plant and appearing at the Board hearing of June 22,
1945, ready and willing to testify thereat, discriminated against said Harold
Hoffman in violation of Section 8 (4) of the Act.
IV. THE EFTF.CT OF THE UNFAIR LABOR PRA.CTICIcE 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 certain unfair labor practices
within the meaning of the Act, the undersigned will recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
It has been found that the respondent has unlawfully assisted the Independent
and discouraged membership in the CIO by recognizing the Independent as the
exclusive representative of its employees, by executing a general labor agreement
28 As heretofore found, the service of this subpoena on Hoffman was attempted through
Assistant Personnel Manager Mesics shortly after 2 : 00 p. m. that afternoon.
26 The other four members of the Committee who left work on June 22 to attend the
hearing were note discharged for the respondent knew that they were under subpoena while
its erroneous impression that Hoffman had not been subpoenaed persisted throughout the
early part of the present hearing.
RADIO CORPORATION OF AMERICA 1759
together with an agreement covering grievances and grievance procedure and
by giving public credit to the Independent for these and certain other benefits
accruing to its employees, as well as by refusing to grant permission to the CIO
committee to attend a Board hearing of June 22, 1945 It is clear that, while these
conditions continue to exist in the respondent's plant, the employees will be unable
to make a free and unhampered selection of their bargaining representatives.
In order to assure that the employees shall have the necessary freedom to make
their own selection of a bargaining agent, it is necessary that the Respondent
cease and desist from recognizing the Independent as such exclusive representa-
tive, unless and until the Independent has been certified as such representative
by the Board at the conclusion of its investigation. Since the contracts of July 5
and July 27, together with a public credit given to the Independent by the re-
spondent, perpetuates the respondent's unlawful assistance to the Independent,
thereby precluding employees from exercising their right to select a bargaining
representative of their own choice, it will be recommended that the respondent
cease giving effect to these contracts or to any extension, renewal, modification
or supplement thereof, unless and until the Independent shall be certified by the
Board as the exclusive representative of the respondent's employees. Nothing
herein, however, shall be considered as requiring the respondent to vary any wage
or seniority or other substantive features of its relations with the employees
themselves which the respondent has established in the performance of this
contract or to prejudice the assertion by the employees of any rights they may
have under such agreements.
It has been found that the respondent discriminatorily discharged Harold A.
Hoffman. It will, therefore, be recommended that the respondent offer Harold A.
Hoffman immediate and full reinstatement to his former or substantially equiva-
lent position, without prejudice to his seniority and other rights and privileges.
It will be further recommended that the respondent make whole Hoffman for
any loss of pay he may have suffered by reason of the respondent's discrimination
against him by payment to him of a sum of money equal to the amount he nor-
mally would have earned as wages from June 25, 1945, to the date of the respond-
ent's offer of reinstatement less his net earnings 27 during said period.
All of the above findings convince the undersigned that the respondent set out
upon a deliberate course of interference and obstruction to defeat the CIO-
The respondent's actions indicate a purpose to interfere generally with the
rights of the employees guaranteed by the Act. The recommendations therefore
must be coextensive with the threat of future violations as indicated by the
respondent's unlawful conduct as found above, in order to satisfy the preventive
purposes of the Act. Therefore, in order to make effective the policies of the Act,
it will be recommended that the respondent be ordered to cease and desist from
in any manner infringing upon the rights guaranteed in Section 7 of the Act 28
On the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, and Radio Communications Assemblers
r By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed
upon Federal , State, county , municipal , or other work -relief projects shall be considered
as earnings . See Republic Steel Corporation v N. L R B, 311 U. S. 7.
28 See May Department Stores Co . v. N. L. R. B., 326 U. S. 376.
755420-48-vol . 74-112
1760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Inc., are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of Harold
A. Hoffman, thereby discouraging membership in United Electrical, Radio &
Machine Workers of America, CIO, the respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (3) of the Act.
3. By discharging Harold A. Hoffman because he was ready to give testimony
under the Act, the respondent has engaged in and is in engaging in unfair labor
practices within the meaning of Section 8 (4) of the Act
4. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATION S
Upon the basis of the above findings of fact and conclusions of law the under-
signed recommends that the respondent. Radio Corporation of America, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Recognizing the Radio Communications Assemblers Union, Inc, as the
exclusive representative of its employees for the purpose of collective bargaining
unless and until said organization shall be certified by the National Labor
Relations Board as exclusive representative of such employees ;
(b) Giving effect to its contracts dated July 5, 1945 and Jul), 27, 1945, with
the Radio Communications Assemblers Union, Inc, or to any extension, re-
newal, modification or supplement thereof, or to any superseding contract with
that labor organization or any other labor organization or affiliate thereof, un-
less and until said organization shall be certified by the Board as the representa-
tive of the respondent's employees ;
(c) In any manner interfering with, restraining, or coercing its employees in
the exercise of the light to self-organization, to form labor organizations, to
join or assist United Electrical, Radio & Machine Workers of America, CIO, or
any other labor o•aanization, to bargain collectively through representatives
of their own choosing and to enaare in conceited activities for the Purposes
of collective baigauiing or other mnitual aid or protection as guaranteed in
Section 7 of the Act;
(d) In any manner encouraging membership in Radio Communications As-
semblers Union, Inc.. or discouraging membership in United Electrical, Radio
& Machine Workers of America, CIO, or any other labor organization of its
employees by in any manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment of any of its employees.
(e) Discharging or otherwise discriminating against, any employee because
he attended a Board hearing for the purpose of giving testimony under the Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Withdraw and withhold recognition from Radio Communications As-
semblers Union, Inc, as the exclusive representative of its employees for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment, seniority or other conditions of employment, unless and until such
organization shall have been certified by the National Labor Relations Board
as a representative of its employees;
RADIO CORPORATION OF AMERICA 1761
(b) Offer to Harold A. Hoffman immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
and other rights and privileges;
(c) Make whole Harold A. Hoffman for any loss of pay he may have suffered
by reason of the respondent's discrimination against him by payment to him
of a suns of money equal to the amount he normally would have earned as wages,
from June 23, 1945, to the date of the respondent's offer of reinstatement, less
his net earnings ' (luring said period ;
(d) Post immediately on all bulletin boards at its plant at Harrison, New
Jersey, and its Jersey City warehouse, copies of the notice attached hereto marked
"Appendix A " Copies of said notice, to be furnished by the Regional Director
for the Third Region, after being signed by the respondent's representative, shall
be posted by the respondent immediately upon the receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the respondent to insure that said notices are
not altered, defaced or covered by any other material ;
(e) Notify the Regional Director for the Third Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) clays from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
action aforesaid.
It is further recommended that the election of August 24, 1945, be set aside and
vacated.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as lie ielies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such state-
ment of exceptions and/or brief, the party or counsel for the Board filing the
same shall serve a copy thereof upon each of the other parties and shall file a
copy with the Regional Director. As further provided in said Section 33, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of the
order transferring the case to the Board. Any party desiring to submit a brief
in support of the Intermediate Report shall do so within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, by filing
with the Board an original and four copies thereof, and by immediately serving
a copy therof upon each of the other parties and the Regional Director.
THOMAS S. WILSON,
Ti ial Examiner.
Dated June 28, 1946.
'See footnote 27, sepia.