The Sherwin-Williams Co.

National Labor Relations Board - Board Decisions

Dec 5, 1941

37 N.L.R.B. 260 (N.L.R.B. 1941)

In the Matter of THE SHERWIN-WILLIAMS COMPANY and CHEMICAL
WORI-,Ers UNION No. 22215, AMERICAN FEDERATION OF LABOR
Case No. C-1875.-Decided December 5, 1941
Jurisdiction : paint manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements ; questioning em-
ployees about the activities of "outside" union and reasons for its formation ;
unlawful advocacy of inside union.
Employer's requirement that its foremen renounce their union affiliation or
suffer demotion held appropriate and not to constitute an unfair labor prac-
tice where under the circumstances such action was taken to counteract
their interference with the right of the subordinate employees to self-
organization
Collective Bargaining: charges of, dismissed.
held: it is not incumbent upon an employer when confronted with de-
mands of two competing organizations as bargaining representative of
employees to grant exclusive recognition to either of such organizations.
Remedial Orders : employer ordered to cease and desist unfair labor practices.
Mr. Christopher W. Hoey, 'for the Board.
Messrs. Thomas F. Veach, and George D. Bonebrake, of Cleveland,
Ohio, for the respondent.
Mr. Leon Gerofsky, of Somerville, N. J., for the Independent.
Mr. Samuel R. Isard, of Newark, N. J., and Mr. Charlton Ogburn,
by 111r. C. C. Johnson, of New York City, for the Union.
Mr. Bliss Daffan, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Charges and amended charges having been duly filed by Chemical
Workers Union No. 22215, American Federation of Labor, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Second Region (New
York City), issued its complaint dated November 29, 1940, against
The Sherwin-Williams Company, Bound Brook, New Jersey, herein
called the respondent, alleging that the respondent had engaged in
37 N L. R. B., No. 44.
260
THE, SHERWIN-WILLIAMS COMPANY 261
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and accompanying notices of hearing thereon
were duly served upon the respondent, the Union, and Independent
Labor Union of Sherwin-Williams Employees, herein called the
Independent.
Concerning the unfair labor practices, the complaint as amended
at the hearing,' alleged in substance that the respondent: (1) urged,
persuaded, and warned its employees at its Bound Brook, New Jersey,
plant against aiding, becoming, or remaining members of the Union;
threatened its employees with discharge, demotion, or other reprisals
if they joined or aided the Union; expressed hostility towards the
Union, indicated approval of the Independent; and.urged, persuaded,
and warned its employees to join or assist the Independent; (2) re-
fused to bargain collectively with the Union as the exclusive repre-
sentative of the employees of the respondent within an appropriate
unit, although the majority of such employees had designated the
Union is their bargaining agent; and (3) by the foregoing and other
acts interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
On December 9, 1940, the respondent filed its answer to the com-
plaint, in which it denied that it had engaged in any unfair labor
practices as alleged in the complaint and alleged affirmatively that,
it had bargained collectively.2 The respondent,, in its answer moved
to dismiss the complaint, and also moved that the complaint be
made more definite and certain or, in the alternative, that it be fur-
nished with a bill of particulars.
Pursuant to notice, a hearing was held from December 9 through
12, 1940, and January 7 through 21, 1941, at Somerville, New Jersey,
before Telford E. Dudley, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board, the respondent, the Union,
and the Independent were represented by counsel and participated
in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues
was afforded all parties. At the beginning of the hearing the re-
spondent urged the formal motions contained in its answer to dis-
miss the complaint and for a bill of particulars. The Trial Examiner
overruled both of said motions. Likewise, at the opening of the
hearing, the Independent filed a motion to intervene which was
1 The complaint was amended without objection to change the description of the appro-
priate unit to include therein shipping employees
2 During the course of the hearing, on January 7, 1941, the respondent filed a supple-
mental answer , in which it alleged that it had failed to come to an agreement with the
Union because the Union' s demands were unreasonable.
4 3 3 2.17- 4 2-v o r. 37-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted by the Trial Examiner over the objection of the Union.
Thereupon the Independent filed its answer in which it denied that
the respondent had warned, urged, or persuaded its employees to
join the Independent, and alleged affirmatively that the respondent
had permitted its supervisory employees to persuade and warn its
)employees to become members of the Union and to refrain from
becoming or remaining members of the Independent, and that the
respondent had refused to bargain collectively with the Independent,
which had been designated as the representative for collective bar-
gaining by a majority of the employees in an appropriate unit.
Motions by the Board and the Union to strike the affirmative matter
from the Independent's answer were denied by the Trial Examiner.
At the close of the Board's case and again at the close of the hear-
ing, the respondent moved that the complaint be dismissed. The
Independent joined in these motions in so far as the complaint per-
tained to it. These motions were denied by the Trial Examiner.
At the close of the hearing, counsel for the Board moved that the
pleadings be conformed to the proof in regard to minor matters and
stated that he did not thereby seek to enlarge the complaint. This
motion was granted by the Trial Examiner. During the course of
the hearing the Trial Examiner made rulings on other motions and
on objections to the admission of evidence. We have reviewed the
rulings of the Trial Examiner and find that no prejudicial errors
were committed. The rulings are hereby affirmed.
On February 4, 1941, a stipulation was entered into between
counsel for the Board, the respondent, the Union, and, the Inde-
pendent as to certain corrections in the transcript of testimony at
the hearing, and on March 10, 1941, an order was issued by the Trial
Examiner incorporating the stipulation as part of the record and
directing that the corrections be made in the transcript of testimony
in accordance with said stipulation.
On May 15, 1941, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent, the
Union, and the Independent. The Trial Examiner found that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(5) and Section 2 (6) and (7) of the Act, and recommended that
it cease and desist therefrom and take certain appropriate affirmative
action.
On June 7 and June 16, 1941, respectively, the respondent and the
Independent filed exceptions to the Intermediate Report. Pursuant
to notice duly served upon all parties, a hearing was held before the
Board in Washington, D. C., on August 14, 1941, for the purpose of
oral argument. The respondent and the Independent were repre-
sented by counsel and participated in the argument.
I
THE SHERWIN-WILLIAMS COMPANY 263
The Board has considered the exceptions of the respondent and
the Independent to the Intermediate Report and except in so far as
the exceptions are consistent with the findings, conclusions, and
order set forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, The Sherwin-Williams Company,- is an Ohio cor-
poration with general offices at Cleveland, Ohio'. It operates 14
plants in 9 different States in which it manufactures paints, var-
nishes, enamels , lacquers, insecticides, coal-tar products, disinfectants,
cleaners, and related products. It also owns plants in Cuba and
Argentina. The present proceeding relates only to the respondent's
plant at Bound Brook, New Jersey, at which the respondent manu-
factures agricultural insecticides, arsenic acids, and disinfectants.
In the year 1939, the Bound Brook plant used approximately 20,000
tons of raw materials, of which 98 percent was shipped to the plant
from points outside the State of New Jersey. During the same
year, the products of :the Bound Brook plant aggregated about 20,
000 tons, of which 97 percent was shipped to points outside the State
of New Jersey. The respondent employs approximately 210 em-
ployees at its,Bound Brook plant.
H. THE ORGANIZATIONS INVOLVED
Chemical Workers Union No. 22215 is a labor organization affili-
ated with the American Federation of Labor, herein called the
A. F. of L. It admits to membership employees at the respondent's
Bound Brook plant.
The Independent Labor Union of Employees Of Sherwin-Williams
is an -unaffiliated labor organization which admits to membership
employees at the respondent's Bound Brook plant.
III. THE UNFAIR LABOR PRACTICES
A: The chronology of events
(1) Formation of the Union
In November 1939 the employees at the respondent's Bound Brook
plant began discussing the formation of unions and the increase in
wages at nearby plants. Some 'employees suggested the formation
of a union at the respondent's plant.. Accordingly, during about the
264 DECISIONS OF -NATIONAL LABOR RELATIONS, BOARD
second week of that month, John Malko,3 a foreman in the finishing
department, together with some other employees, prepared a petition
reading as-follows : "We, the undersigned, hereby give our undivided
support to the organization of Insecticide Workers Union, at Sherwin-
Williams Co., Bound Brook, New Jersey." The petition was then
circulated by Malko and others openly in the plant during working
hours.
Eighty-five employees signed the petition. Malko, after some dis-
cussion with the employees who signed the petition, made arrange-
ments for Thaddeus J. Burns, an organizer for the A. F. of L., to
address the respondent's employees at a meeting, to be held on Sun-
day, November 19, 1939. At the same time a friend of Malko, one
Chiesa, president of an A. F. of L. local at the nearby Johns-Manville
plant, gave Malko some A. F. of L. authorization cards and suggested
that he get a few signed before the meeting. Five cards were signed
before November 19.
During this week, Malko worked on the night shift from 11 p. in.
to 6 a. in. At about midnight on Friday, November 17, Roger S.
Ewing, production manager at the Bound Brook factory, paid a visit
to the plant. Although Plant Superintendent Somerville testified that
it was a common occurrence for. Ewing to visit the plant at night
Malko testified that he had never seen Ewing in the plant during the
night shift prior to this occasion and Ewing stated that he could recall
no occasions when he had gone to the plant during the night shift
and talked to Malko except his visit of November 17 and one which
occurred subsequent thereto. We find, as did the Trial Examiner,
that Ewing's visit to the plant at night was an unusual occurrence.
Ewing testified that he had" received reports that the night shifts
had been "soldiering" on the job and so went down to see what was
going on. After some preliminary conversation, Ewing asked Malko,
who was then the foreman of one of the night crews, how he was
getting along with the organization of the Union, why he was forming
union, and why he was dissatisfied with working conditions. Malko
answered these questions, mentioning his own service with the re-
spondent, his disappointment in not getting a recent promotion, the
dissatisfaction of the men in the change of shift work, the working
of 1 day per week during the summertime which prevented the col-
lection of unemployment insurance, and other grievances. Ewing
then asked if Malko had any complaints at that particular time.
Malko replied that he would like to have in operation in the plant a
contract similar to that at the Chipman Chemical Company, where a
union contract had been recently negotiated. Ewing replied that
Malko's position at the plant is hereinafter discussed.
THE SHERWIN-WILLIAMS' COMPANY 265
he was "pretty sure" Somerville, the plant superintendent, had a copy
of the Chipman contract and suggested that Malko see Somerville
and talk with him about it before the Union was organized-on the
.approaching Sunday. Malko told Ewing that the meeting on Sunday
was just for the purpose of hearing some speakers; that as far as he
knew, the Union was not organizing that Sunday and would-not affil-
iate with anyone "just now" and that he would see Somerville on the
following Moll.>;lay. Ewing then asked : "Why should we have an
outside union brought in? Why can't we have an independent, one
just our own?" Malko replied : "Well, I don't know what the fellows
want. Some of them want an independent, some want A. F. of L.,
and some C. I. O. It is sort' of a mixup. I can't do anything about
it now." Ewing asked if Malko would not "try to hold them over,"
and Malko answered, "Well, I will try." 4
Between 70 and 100 employees of the respondent attended the
meeting on Sunday, November 19, including Foremen Malko, Cullen,
Scotillo, Epps, Paulus, and O'Hare.6 Shea, president of an A. F.
of L. union at the Calco Chemical plant in Bound Brook, called the
meeting to order and introduced Burns. Burns spoke about the A. F.
of L., and answered various inquiries that were made from the floor.
After an inquiry and discussion as to the eligibility of foremen, and
the duties of the respondent's supervisory employees, Burns answered
that the respondent's foremen were eligible to join the Union.
At the end of the discussion, a motion was made and passed unani-
mously, that the group affiliate with the A. F. of L. The meeting
then elected temporary officers, the following of whom were super-
visory employees : Malko as chairman, Scotillo as treasurer, and
Paulus as, recording secretary. In addition a committee was selected
to study conditions in the plant and commence the drafting of a
contract which the Union would eventually present to the respondent.
Applications for membership and cards authorizing the A. F. of L.
to serve as the signers' collective bargaining representative were cir-
culated among those attending the meeting and were signed by many
of those present.
The next morning, on Monday, November 20, Malko went to the
plant before the beginning of his shift, to see Somerville, pursuant
to his arrangement with Ewing. As he walked through the plant,
• Malko and Ewing agreed at the hearing as to the general content of this conversation
but not as to every statement . However, their testimony is in disagreement regarding
who instigated the conversation , Malko testifying that Ewing did and Ewing contending
that Malko did . Ewing also testified that he did not recall making the last two remarks
attributed to him above. The Trial Examiner was impressed by the accuracy and
credibility of Malko's testimony and found as do we, that the conversation occurred
substantially as detailed above.
5 Their positions at the plant are discussed hereinafter . Epps and O 'Hare left before
the meeting was over, shortly after the meeting voted to affiliate with the A . F. of L.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he saw Somerville meeting with a group of men in the lunch room
and so joined them. Present were Somerville, Ewing, J. S. Cheet-
ham, the respondent's office manager, N. G. Major, the stockkeeper,
R. P. O'Hare, the general foreman, Paulus and Cullen, foremen, and
Valentine, Gorski, Oscar, Fisher, Mason, David, and Drift, ordinary
employees. When Malko joined the meeting, Somerville said to him:
"I heard that you were elected president of the A. F. of L." Somer-
ville then -asked Malko why the Union was formed, what was back
of it, and what action it had taken at the meeting. Malko replied
that he could not speak for the Union, since it was just organizing
but that he would speak for himself. He said that the men were
displeased about the working conditions; that other plants were get-
ting unionized and were paying higher wages but that the respond-
ent's employees were always treated badly; that the packing room
"always had the worst" and "never did get a break." Somerville,
in reply, stated that the respondent "always paid more than-anybody
else in the vicinity." Malko responded: "Yes, but that was before
the unions got in. Right now they are below what anybody else
pays." , Some of the men present asked why they had not been ap-
proached with the petition and Malko replied that it was because
they had said, "To he]] with the unions" and were satisfied with
plant conditions. When Fisher, one of the employees present, asked
Malko about the heading on the petition and accused Malko of
"double-crossing" the whole outfit by turning the whole bunch over
to the A. F. of L., Somerville remarked, "I don't care what union
comes into this plant as long as there are level-headed men in the
union. That is all I care." 6
On 'the following Sunday, November 26,.the'Union •met again and
voted to apply for a charter ; 10 members signed the application,
among them being Foremen Malko, Scotillo, and Paulus. The con-
tract committee reported by reading the draft of the contract which
it had prepared with the help of Malko, Shea from the Calco Chem-
ical Workers Union, and sample contracts left by Burns. Several
amendments were offered from the floor and accepted by the meeting.
(2.) The activities of Moltrum
In November 1939 Nicholas Moltrum, an employee of the respond-
ent at its plant in Kensington, Illinois, near Chicago, was president
of the Paint, Varnish & Allied Products Industrial Union, herein
called the Industrial, an unaffiliated union which at various times had
contracts with the respondent covering its plants at Kensington,
6 The findings regarding this meeting are based largely , on Malko's testimony, which
the Trial Examiner believed and which was not controverted.
THE SHERWIN-WILLIAMS' COMPANY 267
Cleveland, and Dayton, Ohio. During. this period of time, James
Errington was the assistant general superintendent of the Kensing-
ton plant and Stevens was the general superintendent.
According to Moltrum's uncontradicted testimony which we credit,
as did the Trial Examiner, sometime during the third week in
November Errington called Moltrum from his work in the plant to
the office and told him that there was some trouble down at Bound
Brook, that Sommerville had things in bad shape, and that he (Erring-
ton) wanted Moltrum to "run down to Bound Brook and learn what
it was all about." When Moltrum explained that he could not
justify the expenditure of his union funds for such a purpose, Erring-
ton told him not to worry and thereafter gave him $100. Moltrum
undertook the mission thus assigned to him by Errington and on
Tuesday November 28, he arrived at, the Bound Brook plant.
Upon inquiry, Moltrum learned that Malko was president of the
Union; went to see Malko at work, and described to him the program
of the Industrial to organize all the plants of the respondent. Dur-
ing the discussion, Ewing approached the men, asked if Moltrum
had a pass and, on receiving a negative answer, accompanied him to
Somerville's office. The testimony regarding Moltrum's conversation
with Somerville is conflicting. In response to Moltrum's question,
Somerville stated that he had not been'notified of Moltrum's mission.
Moltrum thereupon asked about the "trouble" at Bound Brook.
According to Moltrum's testimony, he then told Somerville about the
Industrial, stated that he "wanted to be of benefit to all concerned,"
and questioned him regarding the situation at Bound Brook; further,
according to Moltrum, Somerville replied that the A. F. of L. was
organizing the employees and, upon Moltrum's request, gave him
the names of the officers of the Union. Somerville, however, denied
that he advised Moltrum that the A. F. of L. was organizing the
employees-or that he gave him a list of officers of the Union. In-
stead, he testified that Moltrum had a list containing "some names"
when he came into the office and later, the same day, called him by
telephone, inquired regarding the addresses of the employees listed
thereon, and was furnished this information. Since Moltrum's testi-
mony regarding the incident was credited by the Trial Examiner and
Somerville's own testimony is in partial corroboration thereof, we
find, as did the Trial Examiner, that Moltrum's testmony regarding
this incident is substantially true. Following his conversation, with
Somerville, Moltrum went back into the plant, arranged with Malko
to meet the latter and other officers of the Union on the following
Saturday night, and then departed for Chicago.
The following day Moltrum reported back to Errington and Van
Stone, a vice president of the respondent, told them about the Bound
Brook situation, and asked - Van Stone if he should go back to
268 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
Bound Brook. According to Moltrum's undenied testimony, Van
Stone replied : "Yes, I think you should . . ." As they parted,
Moltrum asked Van Stone for some money for the trip; Van Stone
said that Errington would take care of it and then left. After some
discussion, Errington gave Moltrum $200. Moltrum, accompanied
by George Mundo, an offcer of the Industrial, proceeded to Bound
Brook, where they met Malko, Paulus, Shea, Scotillo, and others on
Saturday, December 2, pursuant to the appointment made earlier in
the week with Malko.
Moltrum took all the men out to dinner, paid the check of approx-
imately $13, discussed unions, and then took them up to his hotel room
where he told them more about his union and showed them a pro-
posed contract from the Chicago plant and various membership cards
used at the different plants he had organized. He told the group
that he had "lined up" some of the respondent's plants and that he
wanted to organize the rest of the groups. One of the men finally
remarked that Moltrum had come to Bound Brook too late because
they had already organized and applied to the A. F. of L. for a
charter. Moltrum replied, "If I would have know [sic] that, I
,would have never come near this place. I would never come down
here if I had known you had sent for your charter already." He
then explained to the employees present that "he thought maybe he
could get us into his group, because . . . after he had all of his
groups lined up, he was going to turn around and try to get one big
unit in the A. F. of L." After some further discussion the meeting
ended.
The next afternoon Moltrum and Mundo went to Newark and then
returned to Chicago. At the plant in Kensington, according to
Moltrum's undisputed testimony, he 'reported to Errington on the
the results of his trip, that he "had the East pretty well set up," and
he thought "we had the boys sold."
On Tuesday evening, November 28, the Production Club held its
third meeting of the year in the company lunch room. This club
had been organized 3 years before on invitations issued by a com-
mittee of foremen; its purpose was "to promote a friendly spirit
among the employees, bring about a closer relation between the em-
ployees and the officers of the Company, afford all employee's an
opportunity to discuss their problems and to learn more about the
activities and the history of the S-W Company family." All pro-
duction employees were eligible for membership, upon invitation.
However, it was largely composed of managerial, supervisory, and,
skilled employees.
At the November 28, 1939, meeting, Somerville spoke, according to
the minutes, "exploding rumors of vast profits with facts and the
annual financial statement of the Company"; he reviewed the costs
.THE SHERWIN-WILLIAMS' COMPANY 269
of production, overhead, and materials, and announced that the re-
spondent's net profit was less than 5 percent of the volume of its busi-
ness. He concluded by asking the men "not to believe rumors and to
remain sane and sensible." According to Malko's undenied testimony,
which we credit, as did the Trial Examiner, during the course of his
remarks Somerville also referred to a union in existence at the Chip-
man Chemical Works, a neighboring concern, stating that such union
"did not amount to anything, in view of the contract that they got."
Somerville testified that upon the conclusion of his remarks lie "opened
the meeting for questions" and an inquiry was directed to him by one
of the employees regarding "Who is Moltrum?" Somerville replied
that he had "checked" on the recent visit of Moltrum to the plant and
had ascertained that there was an independent union in existence at
the respondent's Chicago plant and that Moltrum was an employee-in
said plant. Somerville then repeated his remark of the, previous week
to the effect that "he did not care what union got into the plant, as
long as they had level-headed men at the head of it"
On Sunday, December 3, the Union held its third meeting. The
charter was delivered and the local union was officially "obligated" by
'Burns. -Permanent officers were elected, including Foreman Malko
as president, Foreman Paulus as vice president, Foreman Scotillo as
treasurer, and Foreman Epps as recording secretary. The contract
committee read the latest draft of its proposed contract and further
amendments were offered from the floor and adopted. The officers of
the Union were then instructed to ask the respondent for a conference
and to present the Union's proposed contract.
(3) Formation of the Independent
In the meantime, in the early part of November 1939, several of the
respondent's employees began discussing the formation of another
independent union. Thereafter, on or about November 29, 1939, one
Kolb, a skilled pipe fitter in the respondent's employ, began circu-
lation of a "petition" for the Independent. He first went to Malko
and asked if it was all right for him to take the petition around and
get signatures "for an independent union." He testified that he asked
Malko because he knew that Malko was the head of the Union and
did not wish to create any dissension. Malko testified that he advised
Kolb that he had-no authority to give him permission and that, while
he and Kolb were arguing about the matter, Cheetham, the respond-
ent's office manager, walked by the door, and immediately thereafter
"the petition stopped circulating." Kolb testified, however, that he
circulated the "petition" in the mechanical department and boiler room
of the respondent's plant after talking with Malko and obtained from
10 to 30 signatures thereto.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At about the same time 4 employees, Drift, David, Fisher, and Bert-
ram, arranged for a meeting of employees, which was held on Decem-
ber 6, 1939. Kolb acted as temporary secretary of the meeting;
Bertram presided. Bertram opened the meeting by advising the em-
ployees present that there would be no loss of jobs by not joining
either the Independent or the Union. One O'Brien, from the Bakelite
plant nearby, told of the independent union which had been organized
there and was functioning successfully. Fisher advised the meeting
that the respondent would give "the boys a better opportunity if we
go about organizing in a civil way"; that the 175 employees there
"would have better fellowship by talking over the problems and have
the committee take them direct to the big boss, so they know of our
troubles." 7 David told of a Massachusetts concern where 3,000 em-
ployees had struck for a 5-cent raise in pay; and the company had
moved its plant to the South, leaving the 3,000 men out of employment.
At the close of the meeting the secretary, Kolb, noted the names of 22
men who were interested in the organization.
The Independent continued to organize and on December 17 held
its next meeting. Bertram, the temporary chairman, announced that
28 men had signed membership application cards. Leon Gerofsky,
an attorney, addressing the meeting, compared the advantages of
an unaffiliated union with affiliated unions and advised that it was
unlawful for foremen or supervisors to take part in labor organiza-
tions. At the close of his remarks, Gerofsky was, by motion of the
meeting, retained as counsel for the Independent. Proposed provi-
sions for a contract were subsequently discussed and given him for
embodiment in the draft that was to be presented later to the re-
spondent. The Independent also elected its officers at this meeting.
They were : David as president, Drift as vice president, Bertram
as secretary-treasurer, and Gorel as sergeant-at-arms. Bertram and
Fisher were also selected to join with Gerofsky in his representation
of the Independent and his presentation of the contract to the
respondent.
(4) Negotiations between the Union and the respondent; meetings
between the respondent and the Independent
On December 12 or 13 Burns, Malko, Paulus, Epps, Scotillo, and
Russ, as representatives of the Union, met with Somerville, Cheetham,
and Ewing, who acted for the respondent. There is no serious con-
flict in the testimony regarding what occurred at this meeting.
Malko introduced Burns to Somerville and also gave Somerville a
copy of the proposed contract. Burns spoke of the "merits of the
These quotations are from the minutes of the Independent.
THE SHERWIN-WILLIAMS COMPANY 271
A. F. of L." and of the contract the committee was presenting. The
question of the Union's representation of a majority arose and Somer-
ville asked if he could see a list of the Union's members. Burns
refused to supply such a list but offered to have the Union's member-
ship records and the respondent's pay roll checked by a certified
public accountant, or by a representative of the Board. Somerville
announced that the matter of recognizing the Union, or doing busi-
ness with it, was beyond his authority as local superintendent and
that he would have to take the matter up with the main office at
Cleveland. He suggested that the Union leave the proposed con-
tract, if it so' desired, and stated that he would confer with his -su-
periors and later inform the Union as to the results. The contract
was accordingly left with him.
During the conference Somerville asked if foremen had the right
to belong to an A. F. of L. union. Burns asked his committee mem-
bers if they were foremen.' They all replied in the affirmative, saying
that they were foremen, or working foremen.s Somerville stated
that he , could not understand why foremen were included in the
Union and that that was another reason for not then bargaining
with the committee. Burns replied that the men were not foremen
but were, instead, working foremen. - The meeting finally concluded
with the understanding that they would meet again at a later time.
After the conference Somerville notified the respondent's main
office in Cleveland of the meeting with the Union and of the presence
of foremen acting on behalf of the Union; he also forwarded a copy
of the proposed contract, and made some comments on it. The re-
spondent's officials in Cleveland then consulted legal counsel, who
advised the respondent "to inquire into this foremen participation in
union activities." Thereupon, the respondent's assistant manager of
manufacturing, John Prescott, was sent by the respondent to Bound
Brook to make this inquiry. On December 14 Prescott interviewed
individually Foreman Epps, Paulus, Scotillo, and Malko. He in-
quired of each man about the Union, the reasons for its formation,
grievances and the reasons for and the extent of the. union activity
of each man interviewed.
According to [Prescott's undisputed testimony, Epps stated that he
had walked out, of the first meeting of the Union without joining,
but that subsequently his friends had given him the "cold shoulder,"
the men working under him would not talk to him, and that this
situation finally became so distasteful that he sought the advice of
his immediate superior, O. H. Johnson, who advised Epps to join
the Union-even though he was a foreman-reminding him of Somer-
8In fact, Russ was neither a foreman nor a working foreman.
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ville's statement set forth above concerning "level-headed" leaders
for any labor organization of the employees. Prescott testified fur-
ther, without contradiction, that Scotillo, upon being interviewed,
stated in effect that he thought that the respondent was better off
with a union, with its logical method of handling grievances; that
he had been very active in organizing the Union, had urged his own
men to join, and discussed with other -foremen how to induce their
men to become members of the organization. Malko testified that,
upon being interviewed by Prescott, he at first insisted that other
members of the Union be present during the discussion, but relin-
quished this position when Prescott assured him that everything was
"all right" and that he preferred to talk individually. Prescott
testified that Malko, when questioned, enumerated a number of the
employees' grievances, stated that he had been influenced in his deci-
sion to participate in union activities by the management's expressed
desire for stable leadership of any labor organization of the em-
ployees, and that he did not question the "rightness or wrongness
of persuading or influencing the men underneath" him to join the
Union. Paulus, according to Prescott, likewise enumerated several
grievances of the employees and also stated that he had not questioned
the "rightness or wrongness of -persuading or influencing the men
underneath" him to join the Union. On December 16, Prescott simi-
larly interviewed Foreman J. J. Kissida, 0. R. Johnson, F. (Pace,
and Joseph Tyska. Of these, only Tyska had joined the Union and,
according to Prescott, freely admitted that after joining he had urged
the men working under him to become members of the Union when
told that it would cost much more to join later. Prescott testified
further that Johnson, although himself not a member, admitted
having advised Epps to join the Union. We find that the above
testimony, of Prescott regarding his interviews with various of the
respondent's foremen is substantially true.
On December 20, 1939, Burns telephoned Somerville and asked
whether the respondent had considered the Union's demand for recog-
nition. Somerville told him about Prescott's investigation at the
Bound Brook plant on December 14 and 16, and advised that he was
awaiting instructions from the main office in Cleveland. On that
same day, Charlton Ogburn, the Union's counsel, in a letter to the
respondent's president, Martin, asked that Somerville be advised to
deal with the Union, suggesting that unless this were done, the Union
would file charges with the Board. _
On December 21, Gerofsky, Bertram, Fisher, and Drift, repre-
senting the Independent, called on Somerville. The Independent
claimed to represent a majority of the employees and demanded ex-
clusive recognition as the bargaining agent. Gerofsky had with him
THE SHERWIN -WILLIAMS COMPANY 273
a, stack of the Independent 's membership cards but he did not allow
Somerville to inspect them. He presented the Independent's pro-
posed contract and there was'some discussion of its various provisions.
Gerofsky also stated that foremen were coercing the employees and
forcing them to join the A. F. of L. He demanded that the respond-
ent notify the foremen publicly that they must discontinue all such
activity , and requested that it post a notice stating that no foreman
was permitted to take part in union activity, that any attempt by a
foreman to influence an employee was without authorization, and
that the employee was released from any obligation to follow that
foreman's suggestions in that particular. Somerville replied that this
was a highly involved legal matter and that he would seek advice
from counsel before taking any action. After the meeting Somerville
notified the respondent 's main office at Cleveland of the events tran-
spiring at the conference and forwarded a copy of the Independent's
proposed contract.
(5.) Further negotiations
After a series of communications between Burns and Somerville on
the one hand, and Ogburn and Veach, the respondent's attorney, on
the other, a. meeting was held in New York City on January 10, 1940,
in 0-burn 's office. Russ ' Scotillo, Epps , and Burns , together with
Ogburn, appeared 'as representatives for the Union. Ogburn and
Veach conferred first without the Union committee's being present.
According to Veach's undisputed testimony, which we credit as did
the Trial Examiner, he advised Ogburn that he had been informed
that a number of the respondent 's foremen had organized the Union,
and were officers thereof; that it was his understanding that there
was another organization in existence among the employees and that
he anticipated the natural thing would be for this other rival organ-
ization, or some organization, to file charges against the A. F. of L.
union with the Board if precipitate action were taken; that he would
be glad to arrange for the respondent to meet with the Union and
instruct it to proceed with bargaining negotiations "on the substan-
tive matters such as wages, . . . leaving for my further study this
question of sole bargaining rights, and the question of whether there
was an uncoerced majority in any particular union." Veach then
explained, with reference to the matter of exclusive recognition, that
"there was litigation on this subject, and if it were held that the
A. F. of L. had coerced the men through the foremen's participation,
even an agreement on the subject of sole bargaining agency would not
stand." Although Ogburn did not at any time during his confer-
ence with Veach recede from the position that the Union was entitled
to recognition as the exclusive bargaining representative of the em-
ployees , at the conclusion of Veach's statement regarding the position
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the respondent relative to granting such exclusive recognition to
the Union, it was mutually agreed between Veach and Ogburn that
Veach would arrange for a meeting between the respondent and the
Union, and that Veach would so advise the committee of the Union
who were waiting in an adjoining room. The committee was then
called in and Veach advised it that he understood that the Union
desired a conference with the respondent and that he had informed
Ogburn that the respondent would arrange the meeting promptly.
There is some conflict in the evidence as to what occurred between the
union committee and Veach thereafter with respect to a proffer of
proof by the Union of its majority representation. Because of our
findings below it is unnecessary to resolve this conflict.
Upon the conclusion of his conference with Ogburn and the union
committee, Veach notified Somerville of his conference in Ogburn's
office where he had met not only Ogburn but also Burns and a com-
mittee from the Union, stated that he had not anticipated meeting
Burns and the union committee. and suggested that, to demonstrate
the respondent's neutrality, he should also see the attorney and a com-
mittee of the Independent. Somerville thereupon told Veach to com-
municate with Gerofsky.
Gerofsky, on receiving Veach's call, hastily summoned the Inde-
pendent's committee from the plant and drove them into New York
City, where they met Veach. Gerofsky asked for recognition of the
Independent as the bargaining agent and spoke about raising salaries
and protecting seniority rights. Veach replied that he• could not
answer at that time because there were two factions in the plant, the
Union and the Independent, referred to his meeting with Ogburn,
and advised that the question of recognition would have to be decided
later.
On January 12, the Independent committee and Gerofsky met again
with Somerville. Gerofsky renewed his demand that the respondent
take action "to eliminate foremen from the A. F. of L." and threat-
ened to file charges with the Board alleging the Union to be company-
dominated. There was also "considerable talk of the coercion or pres-
sure that the foremen were putting on their own men to get them into
the A. F. of L." Somerville reminded Gerofsky of his conference
with the respondent's attorney on January 10, stating that the matter
was being considered from a legal standpoint, and that the respondent
could take no action until it had received advice from its attorney.
On January 15, Burns again telephoned Somerville and asked for
exclusive recognition of the Union. Somerville replied that the at-
torneys were considering the question and nothing could be done about
it in the meantime.
On January 16, Somerville called a meeting at the plant of various
company officials, supervisors, and foremen, including Malko, Paulus,
THE SHERWIN-WILLIAMS COMPANY 275
Scotillo, Epps, and others. Somerville advised the respondent's offi-
cials and foremen present at the meeting that "In the last few weeks
a great deal of unrest . . . has arisen from union activities in the
plant" which the respondent had "seen fit to overlook . . . because
we do not want anyone to feel that we are trying, to interfere with
their rights," and that, as a result of this policy, conditions had arisen
requiring correction. Somerville then referred to "conventions held
in the wash rooms," which resulted in "a lot of time wasted," an "ex-
change of insults among men and possible threats and refusals to
work with different men," and that these practices created ill feeling
among the men, causing a loss in efficiency. He stated that he was
talking to the men present "as part' of the managemeiit of the plant"
and that it was up to them to see that this condition did not get "out
of -hand" which it was tending to do. Somerville advised the men
that he did not "expect to hear reports of any more of these conven-
tions" and reminded them that "each was responsible for his group
of men from the time they come in until they punch out" and that,
as foremen, he wanted them to "put a stop to all exchange of insults"
and if any of the men under them engaged in such practices "you should
do something about it." Somerville stated further that the respond-
ent had "no thought of seeing one organization get ahead of another"
but that "organization work must be done off the company property."
He concluded his, remarks by stating that the situation had reached
the point where "stern action" was necessary, again reminded the men
present that they were "responsible for groups" whom they would be
expected to keep "within due bounds," and that "I would like to see
an end to all this foolishness because it can do nothing but harm for
you as individuals and the company as a whole." During the course
of his examination at the hearing in this case, Malko, president of the
Union, was questioned regarding the remarks of Somerville- at the
meeting. Malko's interpretation of such remarks was that Somerville
said "there was too much talk going around the plant of union activ-
ities; and the work, I believe myself, was suffering, and he believed
that we should stop all talk about union activities because we're liable
to get the company into trouble, especially the executive bunch."
At about the same time, Ewing, Kissida, O'Hare, Malko, Carlo, and
other employees met for their usual Thursday night bowling game.
Afterwards they went to a tavern to play some shuffleboard and have
a few drinks of beer. During the course of the conversation at the
bar, Ewing discussed the Union, asking Malko why he did not drop
it. He commented : "There is no use having two unions. You have
a union out there, and you do not have to pay dues to any outsider,
and the A. F. of L. comes in and has to get some of the money out of
it, and this Independent Union, you do not have to pay that kind of
stuff out." Malko replied that he was only the president of the Union,
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and it was up to the members to decide what they wanted to do. Ewing
said: "After all, we should stick together, and it would be better for
us if we don't have any outside unions," and asked "What is the
matter with the Independent?" Malko did not reply, however, except
to refer Ewing to Carlo who was standing nearby. Although Ewing
denied making any reference to the Union or regarding the formation
of an independent union on this occasion, the Trial Examiner credited
the testimony of Malko regarding the incident, as we do. We find
that the conversation occurred as set forth above.
On January 22, Somerville telephoned Burns but could not reach
him. Thereupon, Somerville addressed a report to N. E. Van Stone,
one of the respondent's vice presidents at Cleveland, in which he
referred to the fact that he had just called Burns by telephone but
could not reach him, and then stated :
When Mr. Burns comes in to discuss this matter with us the
first point that he is going to raise will be recognition of the
A. F. of L. Union as the exclusive bargaining agency. That rec-
ognition I do not see how we can grant as long as the present
situation exists. We're faced with two unions, each of them
claiming a majority, and I know positively in some cases that
men have signed on the roll of both. Just how we are going
to determine which unit, if either, is to be recognized as the ex-
clusive bargaining agency, I think, should be left to Mr. Veach
to handle.
The report then proceeded with a discussion of the various provisions
of the Union's proposed contract, Somerville expressing his opinion
as to the provisions which the respondent could agree to and those
which it could not.
At the request of the Union, another conference was held on Feb-
ruary 5. N. E. Van Stone, one of the respondent's vice presidents,
and Somerville represented the respondent. Burns, Malko, Paulus,
Scotillo, Epps, and Russ represented the Union. After some prelim-
inary conversation, Malko read the proposed contract paragraph by
paragraph, discussion being had on each paragraph as it was read.
The union representatives again requested exclusive recognition and
the respondent again referred to the same claim of the Independent.
Van Stone announced that the respondent would bargain with the
Union and would also bargain with the Independent, and with any
employees who came to it individually; that the respondent's door was
"always open for everyone who wanted to enter." After further
discussion of the substantive provisions of the Union's proposed con-
tract, the conference ended. According to Somerville, whose testi-
mony is undenied, and which we credit as did the Trial Examiner, "we
broke -up on that paragraph, [dealing with exclusive recognition]
THE SHERWIN -WILLIAMS COMPANY 277.
with the understanding that we would resume discussion whenever
you [Veach] were able to get out again to complete your discussions
with Mr., Ogburn."
On the following day, February 6, Somerville, acting upon Veach's
advice, called a meeting of various plant officials, foremen, and su-
perrvisors, including Malko, Paulus, Scotillo, and Epps. Van Stone
addressed the meeting. He told of the history of the respondent, of
its growth and reputation throughout the world, and of the duty of
management to serve as trustees for the owners. He discussed the
problem of union activities at the plant and said : "One cannot be part
of the management and at the same time engage in Union activities.
It is up to Somerville and the people of this plant to see that the
men who are picked for management make a choice -between their
position in management and their Union activities. If they are a
'part of any outside group, then they are part of that group and not
part of the management." The men attending the meeting were soon
thereafter notified by their immediate superiors that they would have
to give up their positions as foremen or discontinue their union ac-
tivities and their union memberships. They were given until the
following Monday, February 12, to make their choices and report
them to Somerville or to their immediate superiors.
On Sunday, February 11, the Union held its next meeting. The
foremen reported that they had been told to resign froul their fore-
manships at the plant or from the Union. - Burns advised them to
accept the respondent's demands upon protest. Thereupon Malko,
Paulus, Scotillo, Epps, Buckley,,Sowa, Cullen, Tyska, Rodrigo, and
Emmonds resigned. New officers were elected to take the places of
Malko, Paulus, Scotillo, and Epps. By the next day, February 12,
the respondent was notified of the choices so made and each man
concerned was retained in his usual position as foreman.
On February 20, Burns stopped at the plant and, with a new
union committee consisting of employees Schuyler, Rothstein, and
Gorski, called upon Somerville. Burns inquired about rumors that
the respondent was willing to grant a wage increase and again asked
for exclusive recognition. This Somerville again refused: The next
day, the Union filed charges with the Board.
B. Conclusions with respect to interference, restraint, and coercion
From the foregoing `it is clear that the action of Production Man-
ager Ewing, on the occasion of his visit to the plant on November
17, at night, to talk to Malko, in questioning Malko regarding the
Union, and suggesting that Malko see Somerville and that an unaf-
filiated union be formed instead of bringing in an outside group,
did not constitute mere advice to a foreman to remain neutral but
4332:57-42-voL 37-19
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a request that an "inside" union be formed; and therefore constituted
an. unlawful interference with the self-organizational efforts of the
respondent's employees. Similarly, Ewing's remarks of like import
to Malko and other employees after the bowling game on or about
January 16 were intended to defeat the organization of the Union.
Somerville's questioning of Malko at the meeting of employees on
November 20 with respect to the reason for the formation of the
Union and'the action which it had taken at its meetings, together with
his remarks at the November Production Club meeting, "exploding
rumors of•vast profits," advising the employees "not to believe rumors
and to remain sane and sensible," and his reference on that occasion
to the fact that the union at the Chipman Chemical Works "did
not'amount'to anything," were obviously intended to discourage and
restrain the employees in their efforts at self-organization. More-
over, Moltrum's two trips to Bound Brook, at the expense of the
respondent, to urge the employees to form an unaffiliated labor union
was similarly calculated to defeat A. F. of L. organizations We
find, as did the- Trial Examiner, that by the foregoing acts the
respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The Trial Examiner also found that the investigation conducted
by Prescott into the union activity of various of the respondent's
foremen and the respondent's order requiring the foremen to resign
from the Union or give tip their foremen positions constituted an
unlawful invasion of their rights under the Act. For a proper ap-
praisal of this finding it is necessary first to examine the evidence
in the record relative to the duties and capacities of the foremen
who were principally responsible for the formation of the Union and
who resigned therefrom as a result of the respondent's order.
The undisputed evidence discloses that the 10 foremen who accepted
the alternative of resigninir from the Union are actual foremen as
distinguished from working foremen or "gang pushers." Malko,
president of the Union in the beginning, Scotillo, its treasurer, Rod-
rigo, Emmons, Sowa, and Tyska are all shift foremen working under
General Foreman O'Hare in the finishing department of the respond-
ent's plant. Each of them supervises and directs the work of from
12 to 15 men under him and, when working on the night shift, is the
ranking supervisory official of the respondent in the plant. Their
time is almost entirely devoted to supervision and it is only on rare
occasions in an emergency that they engage in actual manual labor
with other workmen, and then only in a relief capacity for a short
e That Moltrum in fact entertained a sympathy for the A F of L., undisclosed to the
respondent , does not, we believe, constitute a defense to the respondent 's conduct it
should be noted, moreover , that Somerville , in his discussion at the Production Club
meeting on November 28, 1939, identified Moltrum with the Industrial , an unaffiliated union.
THE S•HERIVIN-WILLIAMS' COMPANY 279
time. These foremen have the authority to recommend hiring and
discharging; they also have authority to discipline the men working
under them. In this connection, their authority apparently does not
differ from that of other of the respondent's more important super-
visory officials, since Somerville's undisputed testimony, which we
credit, is to the effect that he alone, of all the respondent's supervisory
officials at Bound Brook, has the actual authority to hire and dis-
charge, the authority of the other supervisory officials being limited
to making recommendations in this regard. Also, the 10 foremen
under consideration are consulted by the management relative to the
men to be laid off when it becomes necessary to effect a force reduction
and their recommendations in this respect are usually followed by
the respondent. In the event of such a reduction in force, unlike
ordinary employees, these foremen are not laid off but are retained
in the respondent's employ although their hours of work, on such
occasions, might be reduced. Their wages are also substantially higher
than those of the employees working under them. Paulus, who was
vice president of the Union, is the respondent's warehouse and ship-
ping foreman and, unlike Malko and the others mentioned above, is
not under the supervision of a general foreman but is directly ac-
countable to Major, one of the respondent's superintendents. He
is in complete charge of all the respondent's shipping activities and
the 15 to 18 men engaged ,in this work. Of the remaining 3, Epps,
secretary of the Union, and Buckley are,subforemen working under
Foreman Krausche in the copper-products department, and Cullen
is foreman of the blending department under O'Hare. While each
of these men has fewer employees working under him, his authority
relative to such employees is substantially the same as that of the
foremen whose duties have been outlined above.
From the foregoing, it is clear that the duties and capacities of the
10 foremen who were members and officers of the Union are unques-
tionably such as to bring them within the realm of management and
thus to charge the respondent with responsibility for their activities
with subordinate employees on behalf of' a particular labor organi-
zation.10 The evidence is undisputed that Prescott's investigation
preceded by only a few days the complaint of the Independent that
these foremen were coercing the employees working under them to
join the Union.,, Moreover, the evidence is undisputed that some of
these supervisory employees in fact urged the employees under them
14 International Association of Machinists v. N. L. R B., 311 U. S 72
n We have found that the respondent , in unlawfully advocating the organization of an
unaffiliated union, lent some support to the Independent It should be noted, however,
that the Independent is not alleged to be company-dominated within the meaning of
Section 8 (2) of the Act Its right to complain to the respondent about the activities
of supervisory employees cannot, we believe, be challenged.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to join the Union. Thus, the record is clear that some of the fore-
men in question, if not all, were engaged in activities which neces-
sarily prevent the employees from making a free choice of their bar-
gaining representative. Nor does the fact that these foremen were
eligible to membership in the Union excuse their interference with the
freedom of choice of subordinate employees or, by the same token,
relieve the respondent, from its responsibility for their activities in
this connection.
The respondent's-requirement that its foremen renounce their union
affiliation, or suffer demotion was appropriate, we believe, to counter-
act their interference with the right of the subordinate employees to
self-organization. Under the circumstances here present, we do not
believe that such action constituted an unfair labor practice.,,
We find that the respondent, by investigating the union activity
of its foremen, and by requiring them as a result of such investigation,
to relinquish their memberships in the Union or to give up their fore-
manships, has not interfered with, restrained, or coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
C. The alleged refusal to bargain
It has been found above that the first effort on the part of the Union
to secure recognition as the exclusive bargaining representative of the
employees and to bargain collectively with the respondent occurred
on December 12, 1939. On that occasion Somerville questioned the
Union's majority representation and requested proof thereof which
was refused. He also raised the-question regarding foremen partici-
pation in the Union and expressed a doubt concerning the propriety
of the respondent's bargaining with the Union for this reason. A
little over a week later, on December 21, the Independent met with
"Matter of Marshall Field & Company and Department Store Employees Union, Local
291 of United Retail, Wholesale and Department Store Employees of America , C. I. 0.,
34 N. L. R. B, No. 1 ; Matter of General Motors Sales Corporation ( General Motors Parts
Division) and International Union, United Automobile Workers of America, Local 216,
0. 1. O , 34 N. L. R. B., No. 115. Our finding here as well as our findings above regarding
anti-union statements made by high supervisory, officials to these same foremen recognizes
the dual capacity of minor supervisory employees under the Act. As employees within
the meaning of Section 2 (2) of the Act they are entitled to exercise the rights guaranteed
under the Act As management representatives , however, employers are responsible for
the impact of their supervisory authority upon the freedom of their subordinates to self-
organization . See N. L. R. B. v. Skinner & Kennedy Stationery Co., 113 F. (2d) 667
(C. C. A. 8), enf'g Matter of Skinner and Kennedy Stationery Company and St. Louis
Printing Pressmen's Union No . 6; Inc., et at., 13 N L. R B. 1186; N. L. R. B. v. Christian
Board of Publication , 113 F (2d) 678 (C. C. A. 8), enf'g Matter of Christian Board of
Publication and Allied Printing Trades Council of St. Louis, Missouri, 13 N. L R. B. 534.
Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union
No. 3, International Woodworkers of American , et al , 20 N. L. R B 1 ; Matter of Tennessee
Copper Company and A. F. of L. Federal Union No. 21164, 5 N L. R. B. 768 ; Matter of
Ford Motor Company and United Automobile Workers of America, Local No. 325, 23
N. L. R. B , No 28 ; Matter of Crown Central Petroleum Corporation and Oil Workers
International Union, Local No. 227, 24 N. L. R B 217.
THE SHERWIN-WILLIAMS COMPANY 281
Somerville, presented a demand for recognition as the exclusive bar-
gaining representative of the employees, likewise refused upon re-
quest to submit proof of it$ majority representation, and demanded
that the respondent take steps to counteract the activity of the fore-
men members of the Union who, it claimed, were coercing employees
working under them to join the Union. We have reviewed in detail
above the subsequent conferences of the respondent with both the
Union and the Independent at which the issues raised at these first
conferences continued to -remain obstacles to exclusive recognition.
Upon the record before us, the respondent was confronted with the
demands of two competing labor 'organizations, both claiming to
represent a majority and demanding recognition as the exclusive bar-
gaining representative of the employees involved herein. We do not
believe that it was incumbent upon the respondent, under the circum-
stances, to grant exclusive recognition to either of the two rival
organizations.t3
We find that the record does not support a conclusion that the'
respondent has refused to bargain collectively with the Union. We
shall not, therefore, make any finding with respect to the appropriate
bargaining unit or the extent of representation by the Union of the
employees therein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent
described in Section 1 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 com-
merce and the free flow of commerce.
13 The Trial Examiner , in finding that the respondent refused to bargain collectively with
the Union , apparently failed to consider the equally legitimate claim to recognition of the
Independent and its complaint against the activity of the respondent 's foremen in support
of the Union . We have found that the activities of the respondent 's foremen interfered
with the self-organization of its employees . An employer may not , of course , take ad-
vantage of his own unfair labor practices to relieve himself of his duty to bargain col-
lectively with the exclusive representative of his employees . See N. L. R B v. Bradford
Dyeing 4ss'n, 310 U. S 318; N L. R. B. v. Chicago Apparatus Co., 116 F. (2d) 753
(C. C. A. 7), enf'g Matter of Chicago Apparatus Company and Federation of Architects,
Engineers , Chemists and Technicians , Local 107, 12 N. L. R B. 1002. Matter of Dixie
Motor Coach Corporation, and Sunshine Bus Lines , Inc. and Brotherhood of Railroad
Trainmen, 25 N L. R B 869. Nor do we thus view the facts in the instant case.
As we have noted above, the Independent is not found to be a company- dominated labor
organization within the meaning of Section 8 (2) of the Act and thus incapable of repre-
senting the respondent ' s employees . Moreover, we have found that, through the activities
of the foremen , the Union received some measure of assistance Our finding that the
respondent has not refused to bargain with the Union within the meaning of Section 8 (5)
of the Act is based primarily upon the existing claims of two rival labor organizations
and our 'opinion that under the particular circumstances presented in the record the re-
spondent was not required to choose between them.
282 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. Accordingly, and in order to effectuate the
policies of the Act, we shall order the respondent to cease and desist
from such unfair labor practices and to post appropriate notices.
Upon the basis of the above findings of fact and upon the entire
record in the case the Board makes the following :
CONCLUSIONS OF LAW
1. Chemical Workers Union No. 22215, American Federation of
Labor, and the Independent Labor Union of Employees of Sherwin-
Williams Company , are labor organizations , within the meaning of
Section 2 (5) of the Act.
2. 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.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not refused to bargain collectively, within
the meaning of Section 8 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, The Sherwin-Williams Company, Bound Brook, New
Jersey, and its officers, agents; successors, and assigns shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining 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) Immediately post notices to its employees in conspicuous
places throughout its plant at Bound Brook, New Jersey, and main-
tain such notices for a period of at least sixty (60) consecutive days
THE SHEcRWIN-WILLFAMS COMPANY 283
from the date of posting, stating that the respondent will not engage
in the conduct from which it is ordered to cease and desist in
paragraph 1 of this Order;
(b) 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.
AND IT IS FURTHER ORDERED that the complaint be, and it here by
is, dismissed in so far as it alleges that the respondent has engaged
in unfair labor practices within the meaning of Section 8 (5) of
the Act. .
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.