The Stolle Corporation

National Labor Relations Board - Board Decisions

Jun 23, 1939

13 N.L.R.B. 370 (N.L.R.B. 1939)

In the Matter of THE SIOLLE CORPORATION and METAL POLISHERS,
BUFFERS, PLATERS AND HELPERS INTERNATIONAL UNION
Case No. C-539.-Decided June 23, 1939
Metal Plating Industry-Interference, Restraint . and Coercion : anti-union
statements to employees ; gratuitous preparation of letter of resignation from
the Union and invitation to employees to sign -Unit Appropriate for Collective
Bargaining: metal polishers , buffers , platers, and helpers, including head platers,
but excluding working foremen in the polishing and buffing department-Repre-
sentatives : proof of choice : membership application cards and Union's cash
book supplemented by testimony-Collective Baigauning : employer 's refusal to
bargain collectively with Union as exclusive representative of employees in
appropriate unit; subsequent execution of individual contracts of employment
implementing prior refusal to bargain collectively : use of contracts , not their
terms ; unlawful under Act ; ordered , upon request, to bargain with the Union
and notify employees that contracts will no longer be continued and enforced-
-Strike-Picketing-Conciliati on : efforts at, by U. S. Department of Labor.
Mr. William Perricelli, Miss Mary Telker, Mr. Leonard Shore, and
Mr. Philip G. Phillips, for the Board.
Mr. John L. Ernsberger, of Cincinnati, Ohio, for the respondent.
Mr. Walter T. Nolte, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and supplemental charges duly filed by Metal Pol-
ishers, Buffers, Platers and Helpers International Union, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Ninth Region (Cincin-
nati, Ohio), issued its complaint dated November 15, 1937, against
The Stolle Corporation, Cincinnati, Ohio, herein called the respond-
ent, alleging that the respondent had engaged in 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. A copy of
13 N. L. R. B., No. 44.
370
THE STOLLE CORPORATION 371
the complaint 1 and a notice of hearing thereon were duly served
upon the respondent and the Union.
With respect to the unfair labor practices , the complaint, as
amended , alleged in substance : ( 1) that on and after August 1, 1937,
the respondent had refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate
unit, consisting of the metal polishers , buffers, platers , and helpers
in its Cincinnati plant, although a majority of the employees in such
unit had chosen the Union as their representative by enrolling as
members thereof; ( 2) that on or about September 8, 1937, the
respondent had again shown its refusal to bargain collectively with
the Union by inducing its employees to sign individual contracts of
employment ; and (3 ) that the respondent had further interfered
with, restrained , and coerced its employees in the exercise of the
rights guaranteed to them in the Act by discouraging union mem-
bership , persuading employees to resign from the Union, and causing
such resignations to be sent to the Union. On 'November 22, 1937,
the respondent filed its answer to the complaint , denying the juris-
diction of the Board and the commission of unfair labor practices
and alleging affirmatively that the existence of the individual con-
tracts of employment, while in no way violative of the Act, precludes
the possibility of the respondent 's compliance with the terms of a
contract proposed by the Union in the course of negotiations between
the parties.
Pursuant to notice , a hearing was held at Cincinnati , Ohio, from
November 22 to December 3 , 1937 , before Jaines G. Ewell , the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hear-
ing. 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 opening of the hearing the respondent
moved to dismiss the complaint on the ground that the Board lacked
jurisdiction . At the close of the Board's case and at the close of
the hearing the respondent renewed its motion to dismiss the com-
plaint, urging as an additional ground for such motion the failure
of the evidence to substantiate the allegations of the complaint. The
Trial Examiner denied the motion and each renewal thereof. His
rulings are hereby affirmed . During the course of the hearing the
Trial Examiner made other rulings on motions and on objections
to the admission of evidence . The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed . The rulings are hereby affirmed.
'At the hearing, on motion of counsel for the Board , several minor amendments con-
cerning dates and terminology were made in the complaint without objection from the
respondent
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December ^16, 1937, a brief was filed with the Board by the
respondent, reviewing the allegations of the complaint and pertinent
evidence in the record and setting forth the respondent's contentions
with respect thereto. This brief was considered by the Trial
Examiner in the preparation of his Intermediate Report and has also
been considered by the Board.
On March 31, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the respondent and
the Union. The Trial Examiner found that the respondent had
engaged in and was engaging in unfair labor practices affecting
commerce as alleged in the complaint and recommended that the
respondent cease and desist therefrom, that it bargain collectively
with the Union upon request, that it notify employees for whom the
Union is the exclusive representative for collective bargaining that
it will no longer enforce their individual contracts of employment,
and that it take certain other specified affirmative action to effectuate
the policies of the Act.
The respondent evidenced no intention of complying with the Trial
Examiner's recommendations but filed no exceptions to the Inter-
mediate Report, thereby submitting the case to the Board pursuant
to the provisions of Article II, Section 35, of National Labor Rela-
tions Board Rules and Regulations-Series 1, as amended.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FAOP
I. THE BUSINESS OF THE RESPONDENT
The Stolle Corporation, organized and existing pursuant to the
laws of the State of Ohio, maintains its principal office and place of
business at Cincinnati, Ohio. It also operates plants at Dayton and
Sidney, Ohio. At each of its plants it engages in the business of
plating, polishing, buffing, and otherwise processing metals and metal
parts.
The respondent's operations require the use of such materials as
nickel, glue, acids, emery, chrome, and buffs. During the 6 months'
period from January 1 to June 30, 1937, its total purchases amounted
to $47,268.57, of which 13.45 per cent originated outside the State
of Ohio.
All metals and metal parts processed by the respondent are sup-
plied by its customers. The processing is performed at the respond-
ent's plant, however, and in the ordinary course of business the
products to be processed move from the customer to the respondent
and, after processing, from the respondent to the customer. During
the period from January 1 to June 30, 1937, the respondent's gross
THE STOLLE CORPORATION 373
income amounted to $196,428.57, of which approximately 10.4 per cent
was received in payment for services rendered to customers located
outside the State of Ohio. During this period business transacted
with the chief customer of the Cincinnati plant, the Kelley Koett
Company of Covington, Kentucky, accounted for more than 7.5 per
cent of the respondent's total gross income.
II. THE UNION
Metal Polishers, Buffers, Platers and Helpers International Union,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to its membership metal polishers, buffers, platers, and
helpers employed by the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that the metal polishers, buffers, platers, and
helpers at the respondent's Cincinnati plant constitute a unit ap-
propriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act. In its answer the respondent denies
the appropriateness of such a unit.
At the hearing the respondent took the position that all employees
of its Cincinnati plant should be included in a single collective bar-
gaining unit with the possible exception of administrative and clerical
employees and foremen having the power to hire and discharge.
The parties were thus placed in substantial agreement as to the ex-
clusion of the three members of the Stolle family, who are the execu-
tive officers of the respondent, two office employees, a salesman, and a
plant superintendent. We therefore hold that the appropriate col-
lective bargaining unit does not include the executives, office em-
ployees, salesman, and plant superintendent.
In clarification of the definition of the unit in the complaint, an
international representative of the Union testified that it was cus-
tomary for the locals of the organization to take whatever action they
deemed appropriate with respect to the admission of foremen to
membership. The secretary-treasurer of Local 68, the local which
admits the respondent's employees to membership, thereafter testified
that it is the policy of the local to exclude both foremen and inspec-
tors. The respondent objected to such a definition of the unit in so
far as it involved exclusion of the following: (1) a day foreman and
a night foreman of the polishing and buffing department, both
designated as working foremen; (2) an inspector or checker; (3)
187930-39-vol. 13--25
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an electrician; (4) a shipping clerk; (5) two engineers or maintenance
men; (6) a handy man or clean-up man; (7) two carters; (8) a
timekeeper; (9) a chemist; and (10) a follow-up man or production
clerk. We have reviewed the evidence with respect to the duties and
responsibilities of employees in the above-listed classifications as well
as their relationship to other employees and find that it establishes the
following: (1) the day foreman and night foreman of the polishing
and buffing department, while unquestionably engaged in manual
tasks similar to those performed by other employees of the depart-
ment and therefore properly classed as working foremen, nevertheless
exercise substantial supervision over other employees in the depart-
ment and are responsible for the work of the department; (2) the
inspector examines and has power to accept or reject the work of
the employees in the plating department; (3) the electrician operates
independently of all other employees in installing and maintaining
electrical equipment at all three of the respondent's plants; (4) the
shipping clerk performs clerical and manual duties in connection
with the receipt and shipment of goods and supplies; (5) the two
engineers are engaged in general maintenance about the plant in-
cluding the construction, installation, and repair of machines and
other equipment; (6) the handy man or clean-up man performs gen-
eral janitor work- and clean-up work in the plating department; (7)
the two carters move goods about the plant and assist the shipping
clerk; (8) the timekeeper performs clerical duties relating directly
to the pay roll; (9) the chemist specifies and tests the solutions used
in the plating department; and (10) the follow-up man is a clerical
employee who draws up production schedules and maintains produc-
tion progress data. Employees in each of the above classifications
therefore exhibit a distinct separability of interest from the metal
polishers, buffers, platers, and helpers employed by the respondent.
We, therefore, find in accordance with the allegation of the com-
plaint, which conforms with the position of the only labor organiza-
tion here involved, that a unit excluding employees within such
classifications is appropriate for collective bargaining.2
Evidence was also adduced on the question of the exclusion or in-
clusion of employees designated as head platers. The Trial Ex-
aminer concluded that such employees should be excluded from the
appropriate collective bargaining unit. The evidence indicates, how-
ever, that these employees have little or no supervisory authority and
that the few additional responsibilities which serve to differentiate
F Cf. Matter of Stack pole Carbon Company and United Electrical G Radio Workers of
America, Local No. 502, 6 N. L. R. B. 171 ; Matter of Armour and Company and United
Packing House Workers Local Industrial Union No. 347, 8 N. L. R . B. 1100 ; and Matter
of General Electric Company, Newark Lamp Warehouse and United Electrical, Radio 0
Machine Workers of America, C. I. 0., 9 N. L. R. B. 1213, 'and cases cited therein.
THE STOLLE CORPORATION 375
them from other platers and platers' helpers are in direct relation to
differences in seniority and experience. We are of the opinion that
employees within this classification belong within a collective bar-
gaining unit embracing metal polishers, buffers, platers, and helpers.
We find that the metal polishers, buffers, platers, and helpers, in-
cluding head platers but excluding working foremen in the polishing
and buffing department and employees within the other classifications
hereinbefore enumerated, employed by The Stolle Corporation at its
Cincinnati, Ohio, plant constitute a unit appropriate for the pur-
poses of collective bargaining and that such unit insures to employees
of the respondent the full benefit of their right to collective bargain-
ing and otherwise effectuates the policies of the Act.
2. The representation by the Union of a majority in the appropriate
unit
The respondent introduced transcripts of its pay rolls of August 6
and September 9, 1937. There were 40 persons actively employed as
of August 6, 1937, within the unit found to be appropriate. The
signatures of 28 of these employees appear on union membership
application cards signed at various times in the period from June
through September 1937.
The respondent does not challenge the authenticity of the signa-
tures, but attacks the cards as incompetent evidence on the ground
that full membership rather than application for membership is a
prerequisite to representation by the Union. In support of this con-
tention the respondent has argued that the rules of the Union as
interpreted by its representatives on the witness stand preclude an
employee from demanding that the Union act for him before such
time as he has attained full membership. This position is unwar-
ranted. The Union has in fact acted for the employees. It is by
this proceeding reaffirming its desire to do so. The only pertinent
inquiry then is whether or not the individuals have shown a desire
to have the Union act for them. We find that they have shown such
a desire by applying for membership in the Union.3
a in National Labor Relations Board v The Louisville Refining Company, decided
March 13, 1939, 102 F. (2d) 678 (C. C. A. 6th), enforcing as modified 4 N. L. R. B. 844, the
court disposed of a similar contention, saying, "The record is clear upon the point that the
Union was actually so designated (as the representative of the employees ). This is shown
by the testimony of Lockhard and by the fact that signed applications for membership in
the union were executed by a majority of the employees " Accord, Matter of Clifford M.
DeKay, doing business under the trade name and style of D. & H. Motor Freight Company
and International Brotherhood of Teamsters , Chauffeurs , Stablemen and Helpers of
America, Local Union No. 649, 2 N. L R. B. 231; Matter of Hood Rubber Company, Inc.
(Arrow Battery Division ) and International Union, United Automobile Workers of
America, 5 N. L. It. B . 165; Matter of Zenite Metal Corporation and United Automobile
Workers of America, Local No. 422, 5 N. L. It. B. 509; Matter of Richfield Oil Corporation
and Marine Engineers Beneficial Association No. 79, 7 N. L. It. B. 639; and Matter of
Walla Walla Meat d Cold Storage Co . and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 275, 9 N. L. It. B. 1183.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though purported dates of application appear on most of the ap-
plication cards, the evidence establishes the inaccuracy of such dates
in some instances, and the respondent contends that all are valueless
for establishing representation on any specific date. That such a
sweeping contention is unwarranted on the record is, however, ap-
parent from a comparison of 18 of the cards with entries in the
Union's cash book, revealing a uniform consistency in these inde-
pendent records with respect to the successive steps of application for
membership and payment of initiation fees. The probative value of
the cash-book entries and their validity as indicia of representation
by the Union is conceded by the respondent in its brief. We are of
the opinion that the 18 individuals signified their desire to be rep-
resented by the Union during June and July of 1937. In addition
we are convinced by the testimony of 4 other individuals, Foster,
Williams, Kessen, and Baltes, that they signed application cards dur-
ing June 1937, thereby signifying their desire to have the Union rep-
resent them. We conclude therefore that at least 22 of the 40 em-
ployees within the unit as of August 6, 1937, had chosen the Union
as their representative prior to that date.
As of September 9, 1937, no new employees had been added to the
pay roll within the appropriate unit, whereas 8 of the original 40
were no longer actively employed. Of the 8 dropped from the pay
roll, 4 were individuals who had chosen the Union as their repre-
sentative. The Union also received a resignation letter during August
signed by 6 employees, but we do not regard this letter as probative
of the signers' voluntary desire to withdraw from the Union for
reasons discussed in Section B below. The number represented by
the Union was augmented, however, when Burcham signed an appli-
cation for membership on September 2, and paid an initiation fee
on the same date. We conclude therefore that as of September
9, 1937, the Union represented 19 of the 32 employees then within
the unit found to be appropriate.
We find that on August 6 and September 9, 1937, and at all inter-
vening times the Union was the duly designated representative of
a majority of the employees in the unit hereinabove found to be
appropriate for purposes of collective bargaining and that, pursuant
to Section 9 (a) of the Act, it is, therefore, the exclusive representa-
tive of all the employees in such unit for the purposes of collective
bargaining with respect to rates of pay, wages, hours of employment,
and other conditions of employment.
3. The refusal to bargain
Early in June 1937 representatives of the Union went to the
respondent's plant for the purpose of organizing the employees, ap-
THE STOLLE CORPORATION 377
prised the respondent's officers of their intentions and asked permis-
sion to enter the plant. The respondent refused to grant them per-
mission, whereupon they approached employees outside the plant.
During the month of June a substantial number of the employees
signed applications for membership in the Union and on July 8,
1937, the Union addressed a letter to the respondent, announcing that
it was the chosen representative of the employees but making no im-
mediate request for collective bargaining.
Within a week after the letter had been sent, Kelsay, international
representative of the Union, and Bruns, secretary-treasurer of Local
68, met with Howard Stolle, the respondent's secretary and assistant
treasurer, and asked him to confer with them. Howard Stolle asked
that the conference be deferred until such time as his brother, Ralph
Stolle, vice president of the respondent, was free to participate. The
Union representatives assented and, accordingly, a meeting was held
on or about August 8 at which the Union was represented by Kelsay,
Bruns, and Thacker, an employee of the respondent, and the re-
spondent was represented by Howard Stolle, Ralph Stolle, and Erns-
berger, the respondent's counsel. Ralph Stolle objected to Thacker's
participation in the conference, although the record does'not disclose
on what ground, and forced him to withdraw by refusing to proceed
so long as he was present. After Thacker's withdrawal, the Union
renewed its claim of authority to act as the chosen representative
of the respondent's employees, asserted that it represented a majority,
and offered as a basis for discussion a contract which it was currently
attempting to negotiate for the entire industry in the Cincinnati area.
The respondent questioned the Union's claim to represent a majority
and asked for proof. There is a conflict in the evidence, which will
be considered below, as to whether or not the Union met this challenge
with an offer of proof. In any event, Ralph Stolle admitted that
on this occasion he told the union representatives that the respondent
would not recognize their organization, and that the discussion of the
proposed contract was limited to the respondent's recital of its
objections to various contract provisions. No progress was made
at this conference and at its conclusion the parties agreed to meet
again.
While there is conflict in the evidence as to whether the parties
next conferred on August 14 and again on August 21 or whether a
single conference was held on the latter date, the general outline of
what took place in the course of subsequent negotiations is undisputed.
In addition to the participants in the initial conference, the Union
called in the members of its shop committee and the respondent called
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 7 non-union employees.4 Ralph Stolle announced that the respond-
ent was willing to talk with the Union's representatives but refused
to recognize the Union as the authorized representative of its em-
ployees. Ernsberger insisted that the respondent was not required
to bargain collectively with the Union for two reasons, both inde-
pendent of any question as to the Union's representation of a majority
of the employees. His two stated reasons were (1) that the respond-
ent was not engaged in interstate commerce and hence not subject to
the provisions of the Act, and (2) that even though subject to such
provisions it could legally bargain with its employees by means of
individual contracts rather than a collective agreement, if it chose
to do so.
Thereupon, the Union informed the respondent that its employees
had voted to strike unless the respondent accorded the Union recogni-
tion and bargained with it. The respondent's rejoinder was "go ahead
and strike," to which the Union replied that it would try other
measures first.
On August 24 the Union filed its charges with the Board, alleging
the respondent's refusal to bargain collectively. On or about the
same date the parties met at the Board's Regional Office. At this
conference the Regional Director suggested that an election be held,
but the Union refused on the ground that an election was unnecessary
because a check of its membership cards against the respondent's pay
roll would establish its claim to represent a majority. As far as the
record discloses, the respondent made no offer to cooperate in any
manner toward a solution of the majority issue and the conference
terminated without tangible results.
On September 7 and 8 the employees were called to the respondent's
office one by one and, in the presence of Ralph and Howard Stolle,
were offered contracts guaranteeing them a year's employment at a
specified wage with 1 week's vacation with pay. The contracts were
terminable on 15 days' notice by the employee during a period of 1
year and on similar notice by either party thereafter. The respond-
ent reserved the right at all times to discharge an employee without
notice for "insubordination, inefficiency, or drunkenness." Though
the contracts by their terms in no way relate to or impinge upon the
union status or activity of the respondent's employees, there is no
doubt but that they were utilized by the respondent as insurance
against any renewal of the Union's demand for collective bargaining
and as a, deterrent to the unionization of its employees.
4 Ralph Stolle explained that the 7 were chosen by the respondent as representative of
the shop and because it wanted an account of the conference to go back to the other
employees from them.
THE STOLLE CORPORATION 379
- Howard Stolle admitted at the hearing that the respondent had
never before executed individual contracts of employment with its
employees, that it had never before guaranteed work for any period
of time, and that the contracts were adopted by the respondent to
offset what he termed the "labor agitation" then rife among the em-
ployees. Neither Howard nor Ralph Stolle made any attempt on
the witness stand to disguise their preference for individual contracts
rather than a collective agreement with the Union. Howard Stolle
expressed the opinion that the Union would hinder the successful
operation of the respondent's business by interfering with the deter-
mination of piece rates and by limiting the production of individual
employees, while Ralph Stolle contended that unions had a proper
place in large concerns but not in small plants such as the respond-
ent's where the rigidity of their rules was a distinct hindrance. Ralph
Stolle characterized his antipathy toward the Union's proposed agree-
ment by saying that he suspected trickery in its provisions, freely
admitted that the wage rates in the individual contracts were higher
than he would have consented to in an agreement with the Union,
and frankly stated that the purpose of the individual contracts was
to settle the unrest and agitation current among the respondent's
employees at the time of their execution.
Further evidence of the respondent's motives in executing the
individual contracts is to be found in the uncontroverted testimony
of a number of the employees with respect to the incidents accom-
panying the signing of their contracts. The names of prior contract
signatories were read to Baumann whose appearance in the office fol-
lowed that of a substantial number of his fellow employees. After
signing he was told that he could still belong to, the Union but it
would be foolish to pay dues. Statements, such as, "No union can
guarantee you that many hours work and that many weeks in a
year," and, "This was one way we had of getting around it," were
attributed to the Stolles by several witnesses. As one employee ex-
pressed it there was "nothing to do but sign" under, such circum-
stances.
Most of the individual contracts were signed on September 7 and 8.
On September 9, the Union learned of their execution. Late in the
morning of that day Kelsay went to the respondent's plant where he
met Howard and Ralph Stolle and Ernsberger and demanded the with-
drawal of the individual contracts in favor of a collective agreement
with the Union. The respondent refused this request. When con-
fronted with the refusal, Kelsay announced the intention of the
Union to call a strike. At noon he issued a strike call. By mid-
afternoon the members of the Union had walked out of the plant in
response to the strike call, despite reassurances from Ernsberger as
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the validity of the individual contracts and the total lack of neces-
sity for concerted action. A picket line was formed the next day
and was continued until the strikers returned to work several weeks
later pursuant to an agreement negotiated by a conciliator from the
Bureau of Conciliation of the United States Department of Labor.
The respondent admits and we find that it refused to recognize and
to bargain with the Union at the conferences which took place during
the period from August 8 to 21. The respondent asserts, however,
that the Union's failure to prove its claim to represent a majority
of the respondent's employees was the sole reason for such refusals.
We shall examine this contention.
As we have stated, there is a conflict in the evidence relating to
the Union's response to the respondent's challenge of its claim to
majority representation. The respondent's witnesses testified that al-
though the respondent had challenged its claim the Union made no
offer to prove its majority. Kelsay, for the Union, insisted, on the
other hand, that after the question of a majority had been raised by
the respondent the Union offered to allow the Board's Regional
Director to check its membership roll against the respondent's pay
roll or to prove a majority in any other way and that Ralph Stolle
had then admitted the Union's majority status.
Considering the existing situation, we find that an offer of proof
was tendered by the Union. Ability to prove its majority was both
the essence and the strength of the Union's position. A contrary
finding, however, would not establish the validity of the respondent's
contention that its refusal to bargain was justified. Even assuming
that the respondent was unsatisfied as to the Union's claim of major-
ity representation, the record establishes that it did not pursue its
challenge of the Union's representative status throughout the nego-
tiations. It in fact abandoned the majority issue and, after the
initial conference, rested its refusal to bargain with the Union on
the grounds (1) that it was not engaged in interstate commerce and
therefore not subject to the Act, and (2) that it could, in any event,
legally bargain with its employees by means of individual contracts
rather than a collective agreement. The validity of these reasons
advanced by the respondent, rather than the question of whether or
not the Union offered to prove its majority, is, therefore, determina-
tive of whether the refusal to bargain with the Union constituted a
violation of the Act.5
8 For cases in which the majority issue was excluded from consideration , although
relied upon by the respondent , see: National Labor Relations Board v. Remington Rand,
Inc., 94 Fed . ( 2d) 862 (C. C. A. 2d, 1938) ". .. even though the respondent were in
doubt as to the Joint Board's authority, that doubt did not excuse it ; for it is quite
plain that its position was not based upon anything of the sort , but upon its unwilling-
ness to treat with "outside representatives of its employees" ; and also Matter of Ameri-
THE ^ STOLLE CORPORATION 381
The first contention requires no further discussion in view of our
findings concerning the nature of the respondent's business and the
effect of its operations upon commerce." The Act is manifestly ap-
plicable to the respondent.7
The respondent cites, as authority for its second contention, a state-
ment by the Court in National Labor Relations Board v. Jones &
Laughlin Steel Corp .8 to the effect that Section 9 (a) of the Act, re-
quiring exclusive recognition for the purposes of collective bargain-
ing of the representatives chosen by a majority of the employees, does
not preclude individual contracts with employees nor does it "pre-
vent the employer `from refusing to make a collective contract and
hiring individuals on whatever terms' the employer `may by unilateral
action determine."' The respondent argues that this statement ex-
pressly sanctions the substitution of individual contracts of employ-
ment for any duty imposed upon it by the Act to bargain with a
representative chosen by a majority of its employees for the purpose
of arriving at a collective agreement. We think it clear that the
right to make individual contracts has not been held by the Supreme
Court in the case in which it upheld the validity of the statute to be
a permissible alternative to the obligation of collective bargaining
where the employees have, in accordance with the Act, selected repre-
sentatives therefor, or to permit the exercise of the right of hiring
in such a manner as to interfere with the freedom of self-organization
for purposes of collective bargaining.
We are of the opinion, therefore, that the respondent engaged in a
determined and effective effort to deny its employees the right to bar-
gain collectively through representatives of their own choosing. This
objective was accomplished in several ways. First, in order to render
the Union ineffective as an instrument for collective bargaining, the
respondent deliberately and consistently refused to recognize or to
bargain with it as the exclusive representative of the employees in an
appropriate unit. In addition to its refusal, the respondent took steps
to insure general knowledge among its employees of such refusal by
calling in the 7 non-union employees in order that they might counter-
act any disposition on the Union's part to interpret the conferences
as an indication of progress toward collective bargaining. It is
settled that upon request the representative of a majority of the em-
ployees in an appropriate unit is entitled to be recognized and dealt
can Radiator Company, a corporation and Local Lodge No. 1770 , Amalgamated Association
of Iron, Steel and Tin Workers of North America , 7 N. L. R. B. 1127; and Matter of
Omaha Hat Corporation and United Hatters, Cap and Millinery Workers International
Union, Local Nos. 7 and 8 , 4 N. L R B. 878.
0 Section I, supra and Section IV, post.
, National Labor Relations Board v Louisville Refining Company , supra, and cases cited
therein.
6 301 U. S. 1.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with by the employer as the exclusive representative of the employees
in that unit, and for the employer to refuse to do so contravenes Sec-
tion 8 (5) of the Acts Second, the respondent induced its employees
to execute individual contracts of employment. This action was the
climax of the respondent's persistent refusal to bargain collectively
with the Union and constituted an unlawful attempt on its part to
render itself impregnable to further demands of the Union for collec-
tive bargaining and to turn its employees from their allegiance to the
Union and its objectives ° .
We find, therefore, that the respondent refused during the period
from August 8 to August 21 and at all times thereafter has continued
to refuse to bargain collectively with the Union as the representative
of its employees with respect to wages, rates of pay, hours of employ-
ment, and other conditions of employment.
We further find that the respondent, by its refusal to bargain with
the Union, by the execution of the individual contracts, and by the
statements which in several instances accompanied their execution as
set forth hereinabove, has interfered with, restrained, and coerced its
employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection as guaranteed in Section 7 of the Act.
B. Other interference, restraint, and coercion
During the course of the Union's organizing effort and its attempt
to bargain collectively, the respondent's officers and agents made no
effort to conceal their hostility to the Union and on occasion made
statements calculated to dissuade Union adherents from further
participating in its affairs. When an employee named Foster came
to the office in June to ask for time off, Howard Stolle seized the
opportunity to question him about his interest in the Union. In the
course of the conversation Stolle told Foster he wanted nothing to
do with the Union; having run the shop for fourteen years he did
not want someone else telling him how to run it. Howard Stolle
o National Labor Relations Board v. Jones & Laughlin Steel Corp., supra, and National
Labor Relations Board v. The Louisville Refining Company , supra.
10 The Intent of Congress to prevent such attempts to avoid the mandate of Section
9 (a) of the Act , requiring collective bargaining with the representative of a majority of
the employees , was expressed by the Senate Committee on Education and Labor in a
report ( 74th Congress , 1st Session-Senate Report No . 573), accompanying its submis-
sion of the Act to the Senate. The Committee stated "Majority rule carries the clear
implication that employers shall not interfere with the practical application of the right
of employees to bargain collectively through chosen representatives by bargaining with
individuals or minority groups in their own behalf , after representatives have been
picked by the majority to represent all."
THE STOLLE CORPORATION 383
said to Chrzanowski, another employee, on an occasion in August,
"The Union will do you fellows more harm than good." Neither of
these statements is denied. Chrzanowski testified that, during the
course of the conversation above referred to, he had told Stolle of
his desire to withdraw from the Union, whereupon Stolle suggested
a letter of resignation. Although the evidence does not disclose that
Chrzanowski asked Stolle to prepare such a letter for him. White,
the night foreman, called Chrzanowski to the office the same evening,
handed him a paper and said, "Here, you can copy this to resign."
After copying and signing the letter, Chrzanowski left it in the office
with White and went back to the shop where he told several of the
employees about it and invited them to sign. Five, including Lloyd
Puckett, Wagner, Smith, Baltes, and Elliott accepted the invitation.
According to Chrzanowski, White took charge of the letter after it
was signed. It was received by the Union in due course through the
mails. Howard Stolle does not deny having talked with Chrzanow-
ski about his withdrawal from the Union. Furthermore he admits
knowledge of the resignation letter and the preparation of a text
somewhat like it. He denies that he urged or persuaded employees
to resign from the Union. We find that the respondent suggested a
means of effecting a withdrawal from the Union, prepared a letter
of withdrawal, and invited Chrzanowski to sign such letter.
We find that the respondent, by the statements of its officers evi-
dencing their hostility to the Union and by the actions of its officers
and agents in gratuitously preparing, inviting the execution of, and
mailing to the Union the letter of resignation, has interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
We are of the opinion and we further find that a resignation
executed under such circumstances cannot be accredited as reflecting
a free and voluntary act by the employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, and commerce among the several States,
and tend to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
THE REMEDY
We have found that the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them in Section 7 of the Act. We shall order the respondent to cease
and desist from such interference, restraint, and coercion.
We have found that the respondent has refused and continues to
refuse to bargain collectively with the Union as the representative of
its employees with respect to wages, rates of pay, hours of employ-
ment, and other conditions of employment. We shall order the re-
spondent to bargain collectively with the Union, upon request. Since
we have also found that, in furtherance of its refusal to bargain col-
lectively with the Union and in derogation of rights guaranteed to
employees by the Act, the respondent induced its employees to exe-
cute individual contracts of employment for the purpose of setting up
such contracts as a substitute for and a bar to collective bargaining
with the Union, we shall order the respondent to cease and desist
from in any manner continuing, enforcing, or attempting to enforce
such contracts or any renewals thereof and to give individual noti-
fication in writing to the employees within the unit hereinabove
found to be appropriate that such contracts or any renewals thereof
will no longer be continued and enforced and are thereby removed
as an obstacle to collective bargaining by the Union, acting as the
duly chosen representative of the employees.h1
Counsel for the respondent has maintained, in urging the impro-
priety of any order affecting the individual contracts of employment,
that such contracts are similar to contracts executed by the Williams
Manufacturing Company of Portsmouth, Ohio, the terms of which
were declared valid by the Common Pleas Court of Scioto County,
Ohio. Those contracts were before us in a prior case 12 and we found
them to have been executed in violation of the Act. We need not,
however, pass upon counsel's argument, for in this instance, as in the
case above referred to, it is the use of the contracts and not their
terms which are the subject of scrutiny. What we said in that earlier
decision applies equally to the situation here presented :
The Common Pleas action was a proceeding between private
parties and the decision of the Court was limited to the issues of
whether individual employment contracts as such are lawful and
whether the individual contracts in question were valid accord-
ing to their terms. There is a wholly different question at issue
in the instant proceeding.13
Our order that enforcement of the contracts be discontinued is
designed to facilitate collective bargaining. So long as the con-
11 Matter of Newark Rivet Works and Unity Lodge No. 420 of the 'United Electrical and
Radio Workers of America, C. I. 0., 9 N L. R. B. 498.
12 Matter of Williams Manufacturing Company, Portsmouth, Ohio, and United Shoe
Workers of America, Portsmouth, Ohio, 6 N. L. It. B. 135.
11 See footnote 12, supra.
THE STOLLE CORPORATION 385
tracts continue in existence they fulfill the purpose for which they
were executed by the respondent, namely, to prevent collective
bargaining with the Union.14
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Metal Polishers, Buffers, Platers and Helpers International
Union is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. The metal polishers, buffers, platers, and helpers, including
head platers but excluding working foremen in the polishing and
buffing department and employees within the other classifications
enumerated in Section III, A, 1, supra, employed by The Stolle Cor-
poration at its Cincinnati, Ohio, plant constitute a unit appropriate
for the purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. Metal Polishers, Buffers, Platers and Helpers International
Union was, on August 6, 1937, and September 9, 1937, and at all in-
tervening times, the exclusive representative of all the employees in
such unit for the purposes of collective bargaining, within the mean-
ing of Section 9 (a) of the Act.
4. By refusing to bargain collectively with Metal Polishers,
Buffers, Platers and Helpers International Union as the exclusive
representative of its employees in the appropriate unit and by in-
ducing its employees to sign individual contracts of employment in
order to implement such refusal, the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (5) of the Act.
5. By the acts set forth in the preceding paragraph and by other-
wise interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
14 A position taken by counsel for the respondent in his concluding argument at the
hearing further demonstrates the necessity of removing the contracts as an obstacle to
collective bargaining. On that occasion he maintained that the contracts settled all
questions between the respondent and its employees and that the Board was therefore
without authority to order the respondent to bargain collectively with the Union.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Stolle Corporation, Cincinnati, Ohio, and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Metal Polishers, Buffers,
Platers and Helpers International Union as the exclusive representa-
tive of the metal polishers, buffers, platers, and helpers, including
head platers but excluding working foremen in the polishing and
buffing department and employees within the other classifications
enumerated in Section III, A, 1, supra, employed at its Cincinnati,
Ohio, plant;
(b) In any manner continuing, enforcing, or attempting to en-
force the individual contracts of employment or renewals thereof
with the employees in the unit hereinabove found to be appropriate;
(c) In any other manner interfering with, restraining, or co-
ercing 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 con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Metal Polishers,
Buffers, Platers and Helpers International Union as the exclusive
representative of the metal polishers, buffers, platers, and helpers,
including head platers but excluding working foremen in the polish-
ing and buffing department and employees within the other classi-
fications enumerated in Section III, A, 1, supra, employed at its
Cincinnati, Ohio, plant, with respect to rates of pay, wages, hours
of employment, and other conditions of employment;
(b) Notify in writing each of its employees within the unit here-
inabove found to be appropriate and with whom individual con-
tracts of employment or renewals thereof have been executed that
such contracts or renewals will no longer be continued and enforced
and are thereby removed as an obstacle to collective bargaining by
the Metal Polishers, Buffers, Platers and Helpers International
Union, acting as the duly chosen representatives of the employees ;
(c) Immediately post notices to its employees in conspicuous
places throughout its Cincinnati, Ohio, plant and maintain such no-
tices for a period of at least sixty (60) consecutive days from the
THE STOLLE CORPORATION 387
date of posting, stating (1) that it will cease and desist as afore-
said; (2) that it will, upon request, bargain collectively with the
Metal Polishers, Buffers, Platers and Helpers International Union
as the exclusive representative of the metal polishers, buffers, platers,
and helpers, including head platers but excluding working foremen
in the polishing and buffing department and employees within the
other classifications enumerated in Section III, A, 1, supra, at the
Cincinnati, Ohio, plant; and ,(3) that it is no longer continuing, en-
forcing, or attempting to enforce the individual contracts of em-
ployment or renewals thereof and that such contracts are removed
as an obstacle to collective bargaining;
(d) Notify the Regional Director for the Ninth Region (Cincin-
nati, Ohio) in writing within ten (10) days from the date of this
Order what steps it has taken to comply therewith.
MR . WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.