The W. L. Maxson Corp.

National Labor Relations Board - Board Decisions

Oct 14, 1942

44 N.L.R.B. 1136 (N.L.R.B. 1942)

In the Matter. of THE W . L. MASON CORPORATION and UNITED ELECTRI.
CAL RADIO &MACHINE - WORKERS- OF AMERICA, L• ocAL 475-C. 1. -0.
Case No. C-N15 .-Decided October 14 , 194.4 ` -
Jurisdiction : ordnance manufacturing industry. '
Unfair Labor Practices . .
Ih'Geneial:-statenient"of inclididuals Jield binding"upon respondefit"when their
duties were such'tliat employees"regarded them"as representatives of-'man-
agement.
Company-,nominated Union: formation; of .,upon ;respondent's advice and assist-'
ance when "outside" union made, efforts to oiganize employees=assistance in
formation and administration by ^ repiesentatives of management ; advice in
'formation of ftirnishdd by 'attorney for respbndentt at respondents' president's -
suggestion; circulation of-petition leading-to formation of, "inside" 'oigahiza-
- tion by, stipervisory employees ; supervisory employees"a ttendance,at^ oaganiza-
-tion meetings, becoming, members -in and serving as .officers of, "inside" organ- -
.ization-support: permitting employees to engage in organizational activities
in plant and outside of plant during working hours without loss of income;
creating impression that wage' increases' weir derl\•ed •throukli -efforts of
"inside" organization. - -- -
Remedial Orders : dominated-organization ordered disestablished.
_ Mr. Frederick R. Lirvingston, for the Board.
Crarvath,=DeGersdorff, Swaime & Wood,-by Mr. R.•L. Gilpatric and
Mr. Francis A. O'Connell, Jr.,`of New York City, for the' respondent.
Mr. Frank Scheiner, of New York City,, for the- Union. -
Mr. Robert G. Howlett and Mr. Heir I. Sthnson,, of Neiv -York
City, for -the Independent.-
Mr.
- -
J. Benson Saks, of counsel to the Board. ' -
'DECISION,
AND
ORDER
STATEMENT OF THE CASE
Upon'charges and amended' charges duly filed by United Electrical
Radio & Machine Workers, of America, Local 475, G. I. 0., 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 January 9, 1942, against- The-W. L.
Masson Corporation, New York City, herein called the respondent,
44 N L R B., No 223. - . -
1136 - -
THE W. L. 'MAXSON CORPORATION • - 1.137-
alleging , that 'the ^ respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the- meaning of See=
tio'n 8• (1) and (2) and Section 2 (6) and •(7) of the NationahLabo'r
Relations Act, 49'Stat. 449, herein called the Act. Copies'oftthe com-'
plaint;-accompanied'by- notice of hearing, were duly served upon the
respondent, the'Union',,and Independent Association of Instrument
Workers, herein called the Independent, a labor organization alleged
in the complaint to be dominated by the respondent:
,,The complaint, as amended at 'the hearing, alleged,, in substance,-
that the-respondent: (1) on or about July 25, 1941, initiated; formed,
and 'sponsored the Independent, and has since dominated and inter-
fered 'with the administration of the • Independent, and contributed-
financial and other support to it; (2) since on-or:about July 2, 1941, has
vilified and disparaged the Union, interrogated its employees concern-
ing their union-affiliation,, and urged and warned its -employees- to re-
frain from assisting. or becoming members of the Union; and (3)-'by.
such'acts, has interferedwith, restrained,-and -coerced its employees in,
the exercise:of the-rights guaranteed in Section 7 of the-Act: -
-'On February 6, 1942, the, respondent filed' its -answer,, denying that-
it' had engaged in or was engaging in the alleged unfair labor prac-
tices, and averring' affirmatiVely that any statements which may have
been-made by the respondent to its employees were a proper' exercise
of the right of free speech under the Constitution. - '
- Pursuant to' notice, a hearing was held in' New- York City ' from
February 12, 1942, `to February 27, 1942,' inclusive, 'before William E:-
Spencer; the Trial Examiner duly designated by the Chief Trial Exam-_
iner. The Board, the Union, the respondent, and the Independent were-
represented by counsel and participated in the hearing: Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to-intro-
duce evidence bearing on the issues was afforded all parties. At the
opening of the hearing, the Independent filed a motion'to intervene,
and the respondent requested the Trial Examiner to rule on its motion
for 'a bill of particulars filed before .the commencement of the hearing.
The Trial Examiner granted the motion of the Independent but lim-
ited the intervention to the issue of the alleged- domination of' the
Independent.-, With respect to The motion for a bill of particulars,
the Trial Examiner directed counsel for the Board to read into the
record the names of the respondent's officers and agents who had been
referred to. generally in certain -paragraphs of- the complaint and
granted the respondent leave to apply for a continuance if surprised
by the evidence adduced by the Board; otherwise he denied the motion.' '
At the conclusion'of the Board's case, the Independent moved to strike
certain testimony, and to dismiss the complaint insofar as it alleged
' No claim of surprise or request for adjournment was thereafter made by the respondent.
487498-42-vol. 44-72
1138 DECISIONS^_OF NATI0NTAL>>LABOR ,RELATIONTS>BOARD
that the respondent had dominated or interfered with the formation,
or administration of 'the Independent or had contributed financial or
other support to it. Both motions were denied. - The motion to dis-
miss was renewed at the conclusion of the Independent's case and was-
again denied. At the conclusion of the Board's case, the respondent'
moved to dismiss the complaint and to strike certain testimony as
incompetent or immaterial. At the close of the hearing, the respond-
ent moved to strike other testimony and renewed its motion- to dis-
miss. The Trial Examiner, denied the motion to dismiss, as well
as certain portions of the motions to strike, reserving ruling,on the
remaining aspects of the latter motions. Subsequently, in his Inter-
mediate Report, the Trial Examiner granted those portions of the
motions on which he had reserved ruling. At the conclusion of the
Independent's case, the Trial Examiner denied a motion by the Inde-
pendent to strike certain testimony. At the conclusion of the hear-
ing, the Board's motion to conform the pleadings to the, proof was
granted without objection. Rulings were made by the Trial Exam-
iner during the, course of the, hearing and in his Intermediate Re-
port on various other motions and on objections to the admission
of evidence.
The Board has reviewed all rulings of the Trial 'Examiner and
finds' that no-prejudicial errors were committed. The rulings.are
hereby affirmed. At. the close of, the hearing, all -parties were - af-
forded, but declined, a.n opportunity to argue orally before the Trial -
Examiner. On March 23 and 24, 1942, the respondent and _the Inde-
pendent, respectively, submitted briefs for the consideration of the
Trial Examiner.
Thereafter, the Trial Examiner issued. his Intermediate Report _
dated April 9, 1942, copies of which were, duly served on the respond-
ent, the Union, and the Independent. He found that the respondent
had engaged in unfair labor practices affecting commerce, within the
meaning of Section 8 (1),,and' (2,) and Section 2 (6) and (7) of the
Act, and, recommended that the respondent cease and desist therefrom
and take certain, affirmative action designed to effectuate the policies
of the Act. On May 6 and 14, 1942, the Union and the respondent,
respectively, filedwith the Board their exceptions to the,Intermediate_
Report.' On May 14, 1942, the respondent -filed with the Board its
brief in support of its exceptions. ,
Pursuant to notice duly -served on the parties, a hearing was held
before the Board in Washington, D. C., on June 2, 1942, for the pur-
2 The Union took exception to so much of the Intermediate Report as failed to find that
the timing by the respondent of a wage increase in October constituted support to tile
Independent and also to that part of the Intermediate Report which failed to find that
the respondent 's treatment of employee Cook, a member of the Union,'constituted inter-
ference , restraint , and coercion.
THE -W . L. 'MAXSON. CORPORATION 1139.
pose, of orah'argument. The respondent and the Union were- repre
sented by counsel and participated in the hearing. The Board has,
considered the exceptions filed by the Union and the respondent and
hereby finds them to be without merit insofar as they are inconsistent'
with the findings of fact, conclusions of law, and order set forth below.
Upon the entire record in the case, the Board makes the following: -
FINDINGS OF FACT
' I. THE BUSINESS OF THE RESPONDENT
The respondent, The' AV. - L. Maxson Corporation, is a New York-
corporation having its principal office and place of business in New
York City, where it is engaged in the manufacture, sale, and distribu-
tion of gunfire control mechanisms, navigation instruments, and re-
lated products. The principal materials used by the respondent are
metal products, not less than 25 percent of which are purchased outside
the State of New York. Purchases of materials from outside the
State exceeded $35,000 in value during the 6-month period from July
1, 1941, through January 1, 1942. During this period the respondent
shipped from its plant in New York City finished products exceeding
$250,000 in value. Not less than 80 percent of the finished products
were -shipped to places outside the State. All the respondent's fin-
ished products are'sold and distributed, directly or indirectly, to the
Army and Navy and other departments of the United States Govern=
ment. The respondent admits that it is engaged in commerce within
the meaning of the Act. " ' .
• II. THE ORGANIZATIONS INVOLVED
United Electrical Radio & Machine Workers of America , Local 475,,
is a labor , organization affiliated with the Congress of Industrial Or-
ganizations , admitting to membership employees of the , respondent.
Independent Association of Instrument Workers, is an unaffiliated'
•labor _o°rganiz ration; admitting to membership employees of the respond
ent.
III. THE UNFAIR LABOR PRACTICES
A. Domination and interference with the formation and administra-.
Lion of the Independent and contribution of support thereto; inter-,
ference, restraint, and coercion
'The Union undertook to organize the respondent's employees early,
in July 1941, when Charles Kaiser, an inspector in the respondent's
manufacturing division, visited the office of William Mitchell,•busi-'
ness representative of the Union, and stated that he saw a need of union
1140 DECISIONS OFl NATIONAL:OI)ABOR .,RELATIONS BOARD
organization at' the ,respondent's' plant. Mitchell .gave:Kaiser some
union' application -cards, and by, July 24, 1941, Kaiser had solicited
successfully the membership of some 30 or 40 employees. • It is un-
disputed that the respondent was aware-of the efforts of the Union at•
this time.3
Hardly had the Union entered the plant when the Independent was
organized. Except as otherwise indicated hereinafter, the evidence
on the formation and history of the Independent is substantially
undisputed and we, like the Trial Examiner, find it to be credible. Two
employees, Frank D. Meyer and Edgar (Sam) Slater, were instru-
mental in forming- the Independent. Both.of these men were old and
trusted employees, dating their connection with the respondent back
to,the time when it was a small company engaged in experimental work
and employing between 30 and 40 men.4 Meyer, who became president
of the Independent, claimed at the hearing that the idea of an in-
dependent union was entirely his own, that it stemmed from a desire-
on his part not to have "any,outside outfit. . get in and run us," after
he had been told, by a fellow employee on the morning of July 24, 1941,
about the advent of the Union and the possibility of a ;picket line be-
ing thrown around the respondent's plant. According to Meyer, this
conversation occurred about an hour before noon, and at noon he
"-visited a few fellows that .I figured Y could trust and incorporated-
their, help and went on with it." One. .of the. "fellows" with whom
Meyer thus discussed the formation of the Independent on the morning-
of July 24 was Edgar (Sam) Slater. Meyer testified that Slater-
"hemmed and hawed a bit" and said, "I will tell-you later" and that,
later that morning'Slater reported back to him and.said, "All right,
Frank, I will be with- you." Meyer- testified,•further that Slater then
explained to him that he had solicited the advice of Edward F. Wallen-
dorf, who at that time was superintendent of the fourteenth fl6or,5 and
that Wallendorf had recommended a law firm that would advise and
counsel them in forming the Independent.
Slater testified that, after talking with Meyer, he asked Wallendoorf
"did he think it would be advisable to join up with the Independent"
and that Wallendorf had replied that "he didn't see any reason wliy
not ..." However, Wallendorf testified' as follows with respect to,
a About this time there was an interruption in Kaiser 's employment , and the Union, on
July 28, 1941, filed a charge with the Regional Office of the Board alleging that Kaiser -
and one other employee, Dunwald, had been discharged because of their activity in,behalf
of the Union. This charge, which is not involved in the instant proceeding , was disposed
of informally after conferences at the Board' s Regional Office, attended by representatives
of the Union and of the respondent.
* At the time of the hearing the respondent had increased , the number of its employees
to approximately 300. - -
IIn October 1942 walleridorf was promoted to the position of works manager of the,,
manufacturing division. ,
THE--W:' L..:MAXSON.`CORPORATION_ .1141
his conversation with Slater : Slater came. to him ,and said,. "There, is
talk about-:.. joining, up with one union; joining up with. another
union, and ,then some; people say `Don't j oin i up, if you sdo, you- are
going,to lose your job - ...' ," He -told. Slater that he would: not lose
his job by joining but that-he could,not give him any advice "regarding
whether you- want to -joili -or not, and who you want to join *ith:'.'
Slater then stated, in effect, that the employees were.very much.upset
and that they were talking of forming their, own union and he, asked
Wallendorf to help them. The witness told Slater that he, Wallen-
dorf, knew nothing about organizing a union but suggested that; the
first thing to be done was to secure legal advice. When Slater there-
upon inquired as to whether Wallendorf could recommend a - "good
lawyer," Wallendorf replied that he would attempt to obtain the name
of a lawyer. Wallendorf admitted at the hearing that he had knowl-
edge of the Union's organizing activity at the time of his conversation
with Slater. ,We accept,-as did the Trial Examiner, Wallendorf's
version of the conversation. Wallendorf testified further that, fol-
lowing his talk with Slater, he reported to F. W. Lutz, a vice president
of the respondent, that Slater had asked for the name of a law firm
and that Lutz replied, "I will see what I can do. Maybe .we can find
somebody.". Within the hour, according to Wallendorf's further tes-
timony, Lutz recalled him to his office and said, "Wally, here is an
address of a. law firm which I understand are damn good. Do you want
to give it to the boys upstairs or to Sam? [Edgar Slater] If so, give
it to them. and tell them, as far as you know, this lawyer is well recom=
mended, and if they want to use him, we can recommend a lawyer in
the sense that they are honest, in the spirit of recommending -a doctor
to someone who needs help along that line." Thereupon, Wallendorf's
testimony continued, he gave Slater a slip of paper, on which was
written the address of a law firm. Lutz was not called as a witness.
Kondolf, another vice president of the respondent, testifying as to
the respondent's recommendation of a law firm to Slater -and the em-
ployees, stated that Lutz called him on the inter-office phone and asked
if he knew of a good lawyer, saying, "Well, the boys want to get a
lawyer to help them organize a union." Kondolf testified that he told
Lutz that "the important thing was to see that the boys got a lawyer
who was honest and reputable and would do a good job for them" and
that the conversation ended with his suggestion that probably Pruit,
Hale, and Maclntyre-would be "the most suitable and most convenient"
firm of attorneys to recommend to the employees. Following the tele-
phone conversation with Lutz, Kondolf testified, he called the law firm
which he had recommended for the Independent and told Robert G.
Howlett, a member of the firm, that "I had taken the liberty of referring-
some of our men to their firm aiid I hoped they would do a good job for
1142 DECISIONS - OF,-NATIONAL LABOR -RELATIONS BOARD
them .:. 'and please don't charge them too much. "' Howlett . testi-
fied as follows concerning this conversation : Kondolf, formerly an
officer of a company which his law firm had represented , telephoned
him and ' told5him, in effect, -that some of the respondent 's employees
were considering the formation of a labor, union, that he had been
asked to recommend a lawyer, and that, "if the union was going to
have a lawyer, he would much prefer that they got into the hands of
a reputable lawyer rather - than a shyster ." Kondolf then asked How-
lett'if his firm would be interested in handling the matter and Howlett
replied that he would be very glad to talk with any men who came to
see him.
It is undisputed that almost immediately after Slater imparted to
Meyer the information which he had received from Wallendorf, Meyer
called the law firm thus recommended by'the respondent and made an
appointment . ' Thereupon Meyer and Slater left the plant and were
absent for approximately 3 hours , during which time they conferred
with Henry I. Stimson and Howlett , members of the law firm. At the
conference Meyer explained in general his idea of forming an inde-
pendent union . Stimson agreed that the firm would represent the
Independent , and there followed a discussion of a constitution and by-
laws which Stimson was to draft. There was also a discussion of legal
fees, and it was agreed that no fees would be paid until the Independ-
ent had perfected its organization , Howlett assuring them that the
cost of legal services would not be high . It is undisputed that the
Independent had paid no counsel fees ' at the time of the hearing.
On the way back to the respondent 's plant from the law office, Meyer
secured the use of a hall known as Manhattan center for a meeting to
be held on July 28, 1941 , at which the new organization ' was .to be
launched. ' The Independent subsequently reimbursed Meyer for the
monies which he had thus advanced.
In connection with their 3-hour absence from the plant on this occa-
sion, Slater testified that he and Meyer "sneaked " out without the
permission of their superiors . Slater could not state positively at the
hearing whether his supervisors had questioned him about his absence
from the plant , first testifying that they had and later stating that he
could not recall whether they had. He was in similar confusion as to
whether or not a deduction from his wages had been made for the time
he was out . Meyer also was unable to recall whether a deduction was
made from his wages on this occasion . The records of the respondent
disclose that both men received their full day's pay. We believe that
it is highly- improbable that their long absence from their jobs during
working time was,not noted by their respective supervisors . We find;
as did the Trial Examiner , that the respondent , with knowledge that
Meyer and Slater were away from the plant and their respective jobs
THE W. L. MAXSON CORPORATION - 1143
'for a period of approximately 3 hours on July 24, made no deduction
from their pay for the time they were thus absent.
On July 25, 1941, a petition, prepared by Meyer with the assistance
of a friend, was circulated among the employees in the plant -for.their
signature. It read as follows :
WE, THE UNDERSIGNED EMPLOYEES OF THE W. L MAXSON CORP. DESIRE
AND DO HEREBY \LAIiE APPLICATION FOR MEMBERSHIP IN THE WELFARE
ORGANIZATION NOW BEING FORMED FOR THE BENEFIT OF THE EMPLOYEES
OF THE ABOVE CORPORATION.
Meyer testified that on the morning of July 25, before working
hours, he handed copies of the petition to several employees with in-
structions that they Were to obtain as many signatures as they could
during the lunch period and outside of working hours. William Bat;
ley, a timekeeper, who subsequently was elected secretary of the Inde=-
pendent, testified that Meyer handed him a copy of the petition before
the start of work, that he solicited signatures throughout the day as
the men came up to the time bench, and that he might have circulated it
around the shop in-his "spare moments." Batley testified further that
one Stark, a supervisor, worked within a few feet of the time bench.
.When questioned at the hearing as to whether Stark knew of the peti-
tion, Batley stated : "Well, I do not know definitely that he did, but
.he must have because it was common gossip 'around the shop that
morning,that the boys were starting an independent; it was on every-
.body's lips." August Hellings, an employee who was elected vice presi-
dent of the Independent, testified that he was solicited by Slater to
,sign the petition, during working. hours. From the foregoing we con-
clude, as did the Trial Examiner, that the petition was circulated
openly in the respondent's plant during working hours. Approxi-
mately 99 of the respondent's employees signed the petition.
In the evening of the same day on which the petition was circulated,
a group of seven employees who had been active in promoting the
Independent, met at a restaurant and submitted the signed petitions.
.Meyer explained to the group that he had retained a lawyer to draw
up the bylaws and help them in their organization. Meyer was elected
temporary chairman of the meeting, Philip -Kirby, temporary secre-
tary, William Batley, temporary sergeant-at-arms, and Slater, tem-
porary assistant sergeant-at-arms.
Pursuant to arrangements previously made by Meyer, the first meet-
ing of the Independent was held on July 28, 1941, at a regular meeting
hall. The meeting was called to order by Meyer, who introduced
Stimson and explained that he was a lawyer and was there "to go over
the by-laws and help us get organized."- Stimson,read and explained
a portion of the bylaws. The clause on eligibility for membership
precipitated a discussion of the status of Batley and Warren Person,
1144 DECISIONS -OF _NATIONAL LABOR 'RELATIONS BOARD
salaried , employees present at the meeting . Batley testified that he
remained for the entire meeting of July 28; but did not thereafter
-attend . any meeting of the Independent or participate in its activities
;until-August 18, when he was transferred to an hourly paid job in the
assembling department . c, Person did not attend the subsequent meet-
ings of the Independent . It was voted that the constitution and bylaws
be adopted temporarily pending detailed study by a group of volun-
teers. The election of officers followed the partial reading and-dis-
cussion of the bylaws . Meyer was elected president and ' Hellings,
vice president . Russo, Cook , and Kirby were nominated for the office
of secretary : There was some discussion of Kirby's qualifications to
hold office because of his alleged supervisory status , and at this point,
'according to the testimony of Cook, which we credit , as did the Trial
Examiner , Stimson suggested that the meeting adjourn and that Kirby
act as temporary secretary until the matter of qualifications and eli-
gibility was ' determined . Cook, who had also been nominated for
the office of secretary , objected to having an "outsider" 7 conduct the
meeting. In response to Cook's objection , Stimson offered to withdraw
from' the meeting, but his offer was not accepted. Meyer suggested
-that the election of officers be resumed , and Cook was elected secre-
tary and Kirby, assistant secretary . Independent Brotherhood of
Instrument Workers was adopted as the temporary name of the organ-
ization. $ At -the close of the meeting , Meyer, Hellings , Cook, 'and
Kirby signed the minute book, which became the record of member-
ship in the Independent , and thereafter others signed.
Following the first meeting of the Independent , Cook , as secretary,
during working hours and on the respondent 's property , solicited` em-
ployees. to join the Independent and to pay their, dues. The minute
book in which the names of members were recorded was kept by
Kirby at his desk on the fourteenth floor. Cook testified that he
directed those whom he solicited to go to Kirby's department to sign
the minute book and pay their initiation fee. His testimony was
corroborated by Kirby, who stated that the men came up to his desk
during working hours to pay their initiation} fees and that he would
check off their names on -the treasurer 's book and hand -them a receipt.
Other employees testified to their 'solicitation of members and dues
during their working hours . Batley, a witness called by the Inde-
pendent, testified on direct examination that "I have often wrote out
vouchers and collected money during my working hours at Maxson."
6 Batley testified that at about this time lie was "breaking in" two new timekeepers, one
for the twelfth floor and one for the night shift.
7 Gast, a witness for the Independent, whose testimony in another connection was noted
above, testifying concerning Stimson's presence at this meeting, stated, "no one seemed to
know who the stranger was in our midst there."
s Independent Association of Instrument workers was subsequently adopted as a per-
manent name for the organization.
THE 'W. L. MAXSON CORPORATION 1145
Hellings also testified that he solicited for the Independent during.,
working hours. None of these witnesses testified that his efforts on,
behalf of the Independent were carried on surreptitiously or in the
absence of supervisors. It is improbable that this activity, carried
on openly in the respondent's plant during working hours, could
have escaped the notice of the respondent's supervisors. There is
moreover, no testimony that supervisors raised any objection to, or
made any effort to suppress, such activity or to rebuke or discipline
employees engaged therein. On the contrary, the testimony indicates
clearly that the respondent's supervisors not only permitted activity
on behalf of the Independent to be carried on during working hours,
but in some instances assisted employees thus engaged.
Among those who signed the Independent's membership book as
well ds the original petition circulated on July 25 were : A. Kelly,
Fred Lobisser, and Sully A. Matti. Lobisser and Kelly are employed
as assistants to Kurt Hein, who has supervision over the entire inspec=
tion department, which is located on the twelfth and fourteenth floors
of the respondent's plant. Both Kelly and Lobisser have some 15
inspectors under them. While they do not have the power to hire and
discharge, they, in effect, have the right to recommend discharges and
transfers. It is clear from the credible and uncontradicted evidence
that the employees regard Lobisser and Kelly as supervisors and seek
them out for instructions and consultation in connection with- their
work. Matti has charge of the tool crib and supervises 3 assistants.'
His duties are very similar to those of Lobisser and Kelly. He has
no authority to hire or discharge, but he has recommended pay in-
creases for his assistants. We find, as did the Trial Examiner, that
the duties of Lobisser, Kelly, and Matti were such that the employees
working in their respective departments regarded them as repre-
sentatives of the respondent, and that their statements and acts are
consequently binding upon the respondent .9
- The respondent's supervisors not only countenanced activity -on
behalf of the Independent but, in some instances, played an active
role in aiding the Independent. Cook testified that on several occa-
sions he received a pass from, his foreman, Nicolay, to absent himself
from his job during working hours for the purpose of visiting em-
ployees in other departments to discuss the affairs of the Independent,
and that no deductions were made from his wages for the time thus
spent away from his work. Five of the passes thus received, bearing
dates from September 5, to October 6, 1941, were introduced into
evidence and bore the signature of Nicolay; four of them bore the
notation "union' contact," and one of them bore the notation "union,
meeting." Cook testified that on one occasion he was absent from
9 See Intonational Association of Machinists v. N. L. R. B.. 311 U. S. 72 (1940).
1146, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the plant during working, hours for the purpose of ordering member-
ship cards for the Independent; on another occasion he was given a
pass by Nicolay in order to distribute circulars for the Independent;
on one or two occasions Cook and Meyer were given passes for the
purpose of visiting the Regional Office of the Board with reference
to the Independent's petition for investigation and certification of
representatives, noted below, but on at least one of these occasions de-_
duction was made in-the pay of both Meyer and Cook.
Cook also testified that, in a conversation with Nicolay concerning
the time Cook spent away from his job on Independent business,
Nicolay stated, "if you want to attend to these union matters, say so
and I will give you permission to leave the machine as long as neces-
sary, and you will close your machine and leave it, so that if anyone
comes, Mr.- Wallendorf or any other person comes, I will tell him
that Cook is busy and that he is away from the machine." Accord-
ingly, Cook's testimony continued, he received permission from Nico-
lay on September 27, 1941, to shut off his machine while he collected
dues for the Independent. Cook testified further that, as he was
preparing on that occasion to leave his machine, Wallendorf came
into the department; that he, Cook, asked Nicolay if he should con--
tinue to run his job until Wallendorf left; that Nicolay replied,
"Hell, no, it's all right. Go ahead"; and that Cook then proceeded
to collect dues throughout the fourteenth floor. According to Cook's
uncontradicted testimony, when he entered the finishing department
on that day, he told' George Herman, the supervisor of • that depart-
ment, that he was there to collect dues; whereupon Herman called
out to the men in his ,department, "Cook is here. Did you pay your
dues-yet?"" Neither Nicolay nor Herman testified.
Further evidence of aid and assistance rendered the Independent
by the respondent is apparent from other uncontradicted testimony
of Cook. Thus, the respondent's timekeeper, one Anderson, furnished
Cook with a typewritten list of employees for the purpose of check-
ing against the membership roster of the Independent. Anderson
did not testify, and we, like the Trial Examiner, believe Cook. Also,
Cook distributed openly copies of the Independent's constitution to
members 'during working hours. While thus engaged in the distribu-
tion of the Independent's constitution, Cook testified he told Wallen-
dorf, then superintendent of the fourteenth floor, exactly what he
was doing, and Wallendorf replied that "he did not see me; that he
cannot discuss union matters with me and joining a union is one's,
own business'." Wallendorf denied that this conversation took place
or that he at any time observed employees engaged in union activity. -
10 It was the uncontradicted testimony of Cook that at about this time Herman spoke
"antagonistically" of the Union and referred to it as "outsiders." "
THE 2W. -L.:MAXSON-_CORPORATIONW 1147
during working -hours. However, we, like the Trial Examiner, 'do
not credit his denial, in view of the fact that as superintendent he
must have been aware of the widespread and open activities conducted
without hindrance or interference on his floor. -
From the above recital of events, we conclude, as did the Trial
Examiner, that the Independent openly solicited membership and col-
lected initiation fees and membership dues during working hours in
the respondelit's plant with the knowledge and consent of the respond-
ent. We find further, as did the Trial Examiner, that the respond-
ent, through, its supervisors, Lobisser, Kelly, Matti, Nicolay, and
Herman, and its timekeeper, Anderson," participated in and aided
and assisted the Independent in the aforesaid activity. '
At the second regular meeting of th, Independent on August 4,
Slater was elected sergeant-at-arms and A. Kelly was elected treas-
urer 12 On August 6 the Independent directed a letter to the re-
spondent requesting recognition as bargaining representative of the
employees in the manufacturing division. The following day, the
request was refused by the respondent, unless and until the Independ-
ent was certified by the Board. On August 12, 1941, the Independent
filed with the Board a petition for investigation and certification of
representatives. -
On the evening of September 2, 1941, Cook, Hellings, Meyer, and
other representatives of the Independent attended a conference in
the offices of the law firm retained by the Independent. 'The purpose
of the meeting was to seek advice and guidance pertaining to the
investigation by the Board of the Independent's petition. Hellings
testified, and we believe him, as did the Trial Examiner, that inas-
much as the amount of the fee to be paid by the Independent for legal
services had not been stipulated and since he was not "sure whether
I could be held liable as vice president or even as a member of the
organization," he attempted at this conference to arrange for a
stipulated fee and offered to make a token payment of $10 out of
his own funds; that Stimson declined the offer as unnecessary; that
he also asked Stimson whether, in view of the fact that he had been
engaged by Meyer through the recommendation of Wallendorf, "the
"Neither we nor the Trial Examiner make any finding that Anderson, as the respond-
ent's timekeeper , was a supervisor in the ordin'ry sense of the tern However, we do
find, as did the Trial Examiner , that as custodian of certain records of the respondent,
his act in preparing and furnishing Cook a typewritten list of employees in the respondent's
manufacturing division from these records, was an act of the respondent . It was shown
clearly that the'preparation by the'Jndependent , of such ' a list from the employees' time
cards would have been a laborious and perhaps impossible task.
11 After discussing the matter with his supervisor , Kelly subsequently resigned his
office in the Independent but not his membership . Neither Kelly nor his supervisor testi-
fied, and our finding in this connection is based on the testimony of Batley , who stated
that Kelly considered that his status -,vas chniging "and in talking it over with his boss
he decided not to hold the office in the organization."
1148 DECISIONS— OF:'NATIONAL .LABOR .RELATIONS BOARD
ethics' of the Bar Association would not require him ;to advise, us now
for the good of the pending cause [the petition for certification] if
it would be advisable to drop him as law counselor and engage new
counsel; different counsel"; that Stimson assured him, that there was
nothing illegal in the respondent's act of recommending a law firm to
the -Independent and that his law firm had never done any Work for
the respondent; and that later Stimson added that he wished- to
mention the fact that the firm had done some work for Kondolf. On
cross-examination, having been asked why'he thought it was improper_
for that law firm to represent the Independent, Hellings answered that
he had- some doubt as to whether a law firm recommended by the
respondent could successfully "fight a case in which the word `Inde-
pendent' was literally at stake and the main item to be proved on our
side in this case." -
On September 12, 1941, the, Union filed amended charges with the
Regional Office, alleging that the Independent was company-
dominated. On October 1, 1941, Bilello, a, former member of the
Independent's finance committee, addressed a letter to Meyer in which
in which he complained that "the C. I. O. is gaining in membership
and many sympathizers" and that he felt that "a token recognition of
our organization should be forthcoming by giving a general increase
so' we might answer the C. I. O. -when they say `What has your union
done?' . . . I think a committee should be made to go to the officers
of our company and demand a general increase or some concession to
show that our union is already legitimately born and only waiting
for a birth. certificate. If this is not done the company will accom-
plish what' they would not like to have and that is an outside
organization like the C. I. O. to deal and bargain with."
At the October 6 meeting of the Independent, according to the
testimony of Bilello, "Much dissatisfaction was shown, due to the fact
of our not requiring any benefits from this organization." Hubert H.
Hutton, a member of the Independent, also testified concerning this
meeting that the interest of the members "seemed to be waning as far
as attending meetings was - concerned." Early in the meeting,
Hellings resigned as vice president. According to Batley, Hellings
stated "that our lawyers were recommended by the company, and
therefore he did not think he could belong to such an organization,
and therefore he resigned . . ." Hellings' resignation was followed
by that of Cook as secretary. Cook made a speech in which he
expressed his dissatisfaction with the Independent and urged the men
to change their. affiliation to the Union "for our own good." Cook
referred to the Independent as a "company union" and stated, "What
chance have we. got? We will never get anywheres with It company
union." Following these resignations, Batley urged that the Inde-
pendent petition the respondent for a wage increase, but Meyer stated
THE W. L. MAXSON CORPORATION 1149
that such action could not be undertaken while charges of domination
of the Independent were, pending against the respondent. Batley
then suggested that "we would petition . . . just as a group of
employees." Following a general discussion of Batley's proposal, it
was voted that a meeting of all employees of the respondent be held
for the purpose of taking action on the proposed petition for a wage
increase. - It was further decided that it would be a bad tactical move
for the Independent, as such, to sponsor the meeting and it was voted, -
instead, that the Independent 'would assume the rental of the meeting
-hall.
Pursuant to Batley's suggestion, an "'open" meeting for all employees
was held on October 9. 1941. at the general meeting' place of the Inde-
pendent. The room was reserved and paid for by the Independent.
The meeting was attended by approximately 80 employees, including
only about 6 members of the Unlon.13 Meyer, president of the inde-
pendent, opened the meeting and explained that the purpose of the
gathering was for the employees "in general" to get together and-
draw up a petition to be presented to the "boss" and that it was for
those present at the meeting to decide what they should demand.
Meyer asked for nominations for chairman, and' when none were
made, he continued to preside throughout the meeting. There was a,
general discussion of the amount, of the wage increase to be requested
but, on a motion of Batley, the petition submitted by Meyer during
the meeting was adopted exactly as the latter had prepared it earlier.
The petition requested a general wage increase of 10 cents an hour.
A committee of 3, consisting of Bilello, Batley,,and.Forbes, all mem-
bers of the Independent, was elected to present the petition to the
Iespondent. It was decided at the meeting that.the petition would
be presented to the respondent ^ at 10:30 of the following morning.
Some names were affixed to•the petition at the close of the meeting,
and, on the following morning, October 10, 1941, the petition was
circulated in the plant during working hours by Bilello and other
members of the Independent for additional signatures. Bilello testi-
fied credibly and without contradiction that he asked . Foreman
,Nicolay's permission to circulate the petition and that Nicolay "it
seemed had heard about it, because rumor spread like wildfire in the
plant, and it seems he knew about it. He said `O. K., but try, to do
your work too."' 14 It is undisputed that Floor Superintendent
Richter delivered to Wallendorf a copy of the petitioh,. which had
18 Batley testified that the meeting was attended by IIellings , Fusco , and "two or three
other boys from the finishing department ," but was unable to give the names of any
,other non -members of the Independent present at the meeting.
14 On the motmng of October 10, the Union distributed a circular among the respondent's
employees headed .: "SIGN THE PETITION !" -The - following are excerpts. from the circular :
There are definite , indications that the management is looking for a face -saving
device through which it can hand out a 100 increase to the shop. The Company.hopes
.p
:1150 DECISIONS 'OF NATIONAL LABOR ` RELATIONS BOARD
been- turned over-to Richter by Hellings, who had decided to cross
out his signature in the presence of Richter.
That morning, Batley, who served as spokesman for the committee,
met Wallendorf, who had been promoted to the position of works
manager of the manufacturing division, and asked if the committee
could see him. According to Batley, Wallendorf "seemed to know -
what was in the air. He told me to come right in." The committee
of three then followed Wallendorf to his office, where the petitions
were presented to him. Batley eaplaliied that the petitions were for
a wage increase and stated that conditions prevented "us as an or-
ganization from requesting an increase or demanding an. increase."
-Wallendorf told the committee that he would have to refer the matter
to his superiors and that the respondent would have to consider the
legal aspects of the situation before giving the committee an answer.
Bilello then pointed out to Wallendorf that the petitions were not
complete, and Wallendorf replied, "Yes, I heard about it. I have a
copy here," and showed him a copy of the petition which Hellings
had handed to Richter. Bilello stated that additional names could be
.secured and Wallendorf replied, in effect, that he could do anything
he liked on his own time. Bilello testified that he interpreted Wal-
lendorf's remarks and attitude as a cue to secure additional names.,
Two, supplemental sheets were thereafter circulated on the respond-
.ent's time by- Bilello, Slater, and others. These sheets bore no head-
ing or other writing. Batley testified that, later that day, Kondolf
met the committee and told them that he had studied the petitions;
-that he saw that they bore a large number of signatures; "and they'
carry weight"; that the Company had a plan of its own; and that a
notice would be posted on the following Monday announcing the
respondent's plan of action with respect to the increases. From
Batley's testimony, it is clear that Kondolf led the committee to
understand that a pay increase would be effected at once.
On October 13, a notice was posted by the respondent on its bulletin
-boards announcing a wage increase of 10 percent. The announcement
made no reference to the petition, but stated :
We are pleased to announce that the Management has decided to
make an increase of 10 percent in the wage rates of the hourly
paid employees of the Manufacturing Division, effective with the
present payroll week. -
in this manner to revive the company union, and to stop the C. I. 0. In other words,
the Company hopes the dune will solve everything [sic].
s s s s s
The C. I. 0 will be happy to cooperate with the Company to save its face. If the
Company bas, decided that now is the time to hand out a dime, far be it from us
to attempt to delay, it. ' Our only complaint is that it should have come so much,
sooner. We therefore urge all men in the shop to sign the petition without tiny argu-
ment when it is passed around today.
THE W . L. MAXSON CORPORATION -1151
Followin the posting of the above notice, the Independent dis-
tributed a circular among the -respondent 's employees , which stated
in part
The -CIO has talked a great deal , but they haven 't done anything
else: Maxson employees , however,' without CIO help acted. The
petition we all signed has got us a 10 % increase . That's not
enough, says the CIO. We say the same thing; it's only a start.
BUT THE POINT IS THIS : ALL that we have got from the
.CIO has been printed bunk . Maxson employees , without CIO
help, have got a 10% wage increase as a starter. -
Kondolf testified that the respondent was planning a wage increase
at the time the Union and the Independent began organizing its
employees , but that, "We did not put through' our wage increase at
that time because in plain- language we did not think -well, I do not
think that we were, we will say, saps , and go put through a wage
increase and then, have to bargain it all over with some labor organi-
zation , so we just postponed and postponed it." Kondolf stated
further at the hearing , that, because of complaints that men were
leaving the respondent 's employ for higher wages , it was finally de-
cided to grant the wage increasean spite of the Independent 's pending
petition for certification ; that the decision was reached at about the
time that the employee petition was presented ; and that the employee
petition "might have been the last straw , let's say, that caused us to
do it right away." Finally, Kondolf testified in'this connection that
the respondent , following the presentation of the petition of October
10, established a definite policy that thereafter "we would not permit
any more petitions to be circulated in the plant."
We find, from - the circumstances surrounding the drawing up of
the petition , its adoption , and presentation to the respondent and-
from the conferences between the respondent and the committee, that
the movement for an increase in wages was sponsored by the Inde-
pendent as a means of encouraging adherence to the Independent and
that the respondent so understood the origin and purpose- of the
movement . We find also that the granting of the increase under
these circumstances was tantamount to recognition of the Inde-
pendent as the bargaining agency of the employees and constituted
support of the Independent. ,
As noted above , Cook resigned as secretary of the Independent
at the October 6 meeting. Immediately thereafter , he renewed his
affiliation with the Union . 15 On the morning of October 7, Foreman
Nicolay criticized him for having taken too long on , a certain job
1$ Cook testified- that he signed an application for membership in the ' Union in July
1941, but did not actually become a member until after his 'resignation from the. Inde-
pendent.
1152 DECISIONS- :OF, NATIONAL LABOR , RELATIONS BOARD
and, according - to Cook , Nicolay then launched - into , profanity.
.Cook inquired of Nicolay whether his shift to the Union , was,the
cause of the criticism , and Nicolay denied that Cook's change in
union affiliation was a responsible factor. Cook thereupon registered
a complaint with Wallendorf against Nicolay 's abusive remarks.
Wallendorf conferred with Cook and Nicolay in his office ; contrary
'to usual custom, a stenographic transcript was made of the confer-
ence. Cook subsequently spoke to Kondolf concerning this interview
with Wallendorf and requested a copy of the transcript . Kondolf
denied the request but permitted Cook to read the transcript , saying,
"read it now , read it to your committee, and read it out loud. You
may read it again at any time you wish, that is, upon asking for
it." Kondolf testified that his reason for denying Cook's request
for a copy of the transcript was that as a matter of principle he felt
that a document of that character should 'be kept in the Company's
possession . 'Following the conference , Kondolf offered to suspend
-Cook with full pay. Kondolf testified that this offer arose out of
Cook's complaint that he had been threatened with • physical vio-
lence . This testimony was not disputed and is credited by us and
the Trial Examiner. We find that Nicolay's' criticism of Cook oil
the day following the latter's resignation from the Independent, in
view of 'Nicolay 's prior active cooperation with ' Cook in carrying
on the Independent 's activities during working hours; -the holding
of the conference by Wallendorf ; the taking of a 'transcr̀ipt of the
proceedings , an act which Wallendorf admitted- was not customary
in connection with employee grievances ; and the refusal to furnish
Cook with a copy of the transcript constituted an attempt to intimidate
Cook because of his abandonment of the Independent and his active
-affiliation with the Union . ' We find further that, by such conduct, the
respondent interfered 'with, restrained , and coerced its employees in
-the exercise of the rights guaranteed them by. the Act.
Further evidence of-interference, restraint , and coercion is apparent
-from- the respondent 's treatment of Kurt Hans Wegner, an employee
in the' e'ngraving-department. Wegner testified that in October 1941,
while he -was engaged iii handing out union leaflets in front 'of the
respondent 's plant before working hours ,-his foreman, Ralph DeMuth,
passed by with as group of men and "they looped -at me angrily"-;
that George Kaupp, superintendent of the department in which lie
worked, also passed by and 'stood net td him while he continued' to
distribute ' the'•leaflets ; that, when he reported 'for work, his foreman
told -him that -there was - no- work for him and , that he would have` to
see Kaupp ; -and' that Kaupp informed him; "Well, there ' is no-'work
that I can ; give, your and you had better take a couple of. . days'; ^raca
tion." - Wegner testified further- that, he-thereafter lost-2", days ''work.
THE W. L. MAXSON CORPORATION 1153
There is no showing that Wegner had suffered similar lay-offs prior
to this -occasion . On cross-examination , Wegner testified that he
knew of no other employee of the respondent who had been laid off
because of insufficient work. We credit , as did the Trial Examiner,
Wegner's testimony , which was not refuted or explained . The record
clearly indicates that the respondent 's production during this period
was rapidly increasing . Under the circumstances , we find, as did
the Trial Examiner, that Wegner was laid off because of his union
activity.
Lawrence Raftery, , employed as an inspector on the fourteenth
floor, 'was also singled out by the respondent for discriminatory treat-
ment. He testified that ' he signed an application card for member-
ship in the Union on October 9 , 1941, though lie never became an
actual member ; that thereafter , Hein, chief inspector of the respond-
ent, was in Raftery's father's place of business and greeted Raftery
by saying "How is the CIO man?" and pushed Raftery's hat down,,
over his face ; and that, at other times , Hein came to his workbench
and always "brought up the same ' phrase, `How is the CIO man?"'
He testified further that on these occasions Hein told him that lie
had made a foolish mistake in signing with the Union and asked him
why he had signed. According to his further uncontradicted testi-
mony, on occasions when Hein had thus spoken to him about the
Union, Lobisser , who was Raftery's immediate supervisor ,; would
come to Raftery - and tell him that "Hein did not like it . . . did not
like "[Raftery] - in the CIO ." Raftery testified that he was employed
by the respondent on April 10 , 1941, at an hourly wage of 50 cents,
and was promised a' 5-cent increase every 3 months until he reached
85 cents an hour . He received a wage increase in July and in Oc-
tober and was due to receive his third increase in January 1942. This
third increase he did not receive, and the only , explanation given for
his failure to secure it, according to Raftery's testimony , was Hein's
statement to Raftery's mother that Raftery "did not need it." Wal-
lendorf testified that he was "inclined" to believe that Raftery's start-
ing wage ' was "either 40 or 43 cents an hour "; and that Raftery's
, wages_,*ere increased until he arrived at 60 or 61 cents an hour.
Wallendorf explained at the hearing that men starting at 40 cents
an hour would receive an increase of 5 cents every 3 , months until'
they totaled 60 cents an hour and that thereafter additional increases
depended on their ability and willingness to do the job. Wallendorf
testified further that, when a man did not receive an automatic in-
crease at the expiration of one of the stipulated periods, his foreman
"most tell the individual why lie is not getting an' increase , to give
the man a chance to correct whatever fault he has." Neither Lobisser
nor Hein testified.
487498-42-vol. 44-73
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Hein's greeting of Rafteiy in Raftery's father's place of
business may be regarded as friendly byplay, the statements of Hein
in derogation of the Union, made to Raftery at his workbench and
supported by Lobisser, reflect a serious intention to influence Raftery.
Wallendorf's testimony concerning Raftery's starting wage and sub-
sequent increases was uncertain and speculative and obviously does not
carry the probative weight of employment records, which the respond-
ent failed to introduce. We credit Raftery's testimony, as did the
Trial Examiner. Hein's failure to explain to Raftery why he did
not receive his third wage increase, according to the terms on which
he- was hired, marked a departure from the respondent's `customary
policy described by Wallendorf. We find that by, such conduct the
respondent interfered with, restrained, and coerced its' employees in
the'exercise of the rights guaranteed by the Act.
B. Conclusions
Its pis apparent that the Independent came into being upon the
respondent's advice and with its assistance and that it thereafter, re-
ceived valuable support froni the respondent. On the-,diiy-that Slater
sought the 'advice of the respondent's works manager on the forma-
tion of-an independent' or "inside" union, the respondent admittedly
had knowledge of the Union's efforts to organize its employees. Also
it was not until Slater had made it clear that he was interested in the
formation of an "independent" union that Wallendorf proffered his
suggestion about obtaining legal aid and advice. Under the circum-
stances, such advice, coupled with the recommendation of a, specific
law firm as "most suitable and convenient" and followed by a tele-
phone conversation between Kondolf, 'a vice president of the respond-.
ent, and Howlett, a member of the law firm, in which Kondolf ex-
pressed the hope that the law firm would "do. a good job" -for the,
projected organization, is distinctly incon,sistent,•with the position of
neutrality required by the Act and in fact evidenced a strong solicitude
that the Independent, then in the stage of inception, should acquire
the stature of a full-fledged labor organization, to be initiated by two
of'the respondent's oldest employees and guided by a law firm of its
choice.
That the respondent's conduct indicated to the promoters of the
Independent a preference for the inchoate organization is reflected
in the readiness with which Meyer and Slater accepted their employer'A
choice of a law firm without seeking other advice and without pre-
liminary investigation, in the abandonment -of their work with im-
punity for several hours to confer with counsel obtained for them by
the respondent, and in their retention, without authorization or ,corn-
THE " W. L. MAXSON CORPORATION, 1155
mitment as to fee, of such counsel to act for the as yet unborn' Inde- '
pendent.. That the respondent's participation in' this manner, in` the
formation of the Independent, ,was regarded 'by certain members' of
the Independent as interference and domination is shown in the objec-
tions subsequently raised by Hellings and ,Cook to continued 'retention
of the law firm:
Nor may the respondent evade responsibility for the,,subsequent
open activity of the Independent, carried on within its plant during
working hours, by the assertion made in its briefIliat on numerous
occasions, beginning' with a period prior to- the first organizational
activity amnoibg its employees, it instructed and warned its super-
visory staff not to participate' in -the organizational affairs of its
employees and directed them to maintain' an, attitude_ of strict neu-
trality. In the light of all the facts, such instructions evidenced no
more than lip service to the established principles of the Act The
first organizational meeting of the."Independent was attended by'
Warren Person, whom the respondent concedes to have' been the,
supervisor - of its maintenance department.; Lobisser, Kelly and
Matti,.whoni we have found to be supervisors, affiliated themselves
with the Independent; Kelly 'was elected treasurer. The member-
ship record of the Independent was kept at the desk of the respond-
'ent's receiving clerk, where employees during working' hours signed
with the Independent aid paid their initiation fees-and dues. The
petition leading to the formation of the Independent was circulated'
openly in the plant during p working hours and wassigned by Lobisser,,
Kelly, Matti,, and Person, supervisors., The secretary of the Inde
pendent, Cook;-received active aid from Supervisors Herman and
Nicolay and was allowed the utmost latitude by the latter` in leaving _
his job during working 'hours,' for .the purpose 'of soliciting Inde-
pendent memberships, and collecting duies, no deduction in his pay
being made for the time thus spent. On several occasions the presi-
dent and the secretary of the Independent were permitted to leave
the plant during working hours for-the known purpose of attending
to affairs of the Independent. , Agaurst'such overwhelming evidence
of activities: of the Independent in' the respondent's plant during
working hours with the knowledge, dons ent; and on occasion, partici-
pation, of its supervisors, the respondent's categorical' denials of
interference with and domination of the Independent; made at the
hearing, are altogether. unconvincing: Similarly,, the eategorical,'de-
nials by witnesses for the Independent that the Independent was'
assisted' or dominated by the respondent are of little probative value
when,weighed against the admissions of these,very'witnesses of par
ticipition by supervisors in the affairs of the Independent.
I
1 156 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
The respondent's lip service 'to the principles of the Act is further
evidenced, by the 'fact that, while, refusing to grant the,Indepeiident
formal recognition as bargaining representative, it not only permitted
the continuation of all forms of supervisory support but also aided
the Independent in acquiring prestige among the employees by ef-
fecting a wage increase for which the Independent assumed responsi-
bility. Nor may the respondent deny that the timing of the wage
increase on October 10 was part of its general pattern of domination
and 'support. The respondent was fully cognizant of the fact that
the Union'had filed charges alleging that the Independent was com-
pany-dominated. It was-also aware of the fact, that the granting of
a wage adjustment at this, time would be of inestimable.valne to the
Independent in- its struggle with: the Union. That the granting of'
the increase did have the consequences anticipated by the respondent
is evident from the circular distributed by the Independent following.
announcement of the increase. 'It is most. significant that after the,
petition had been entertained and granted the respondent enunciated
a policy forbidding the, circulation in the plant of any further peti-
tions. The obvious effect of such policy was at once to control the
collective' efforts of the Independent and to foreclose the Union froth
equal opportunity to express itself by petition.
It is clear," moreover, that the respondent's active participation in
the formation and administration of the Independent, was calculated
,to promote that organization in opposition to the Union and to dis-
courage, membership in the latter organization. While the' record
is replete 'with testimony of the,.respondent's assistance to the Inde-
pendent, the only testimony which evidences the respondent's atti-
tude toward the Union is clear in its showing of hostility. Thus,
the undisputed testimony, of Wegner discloses that, following his
distribution of union leaflets in front of the respondent's plant before
working hours, he was, told to "take a vacation" by his supervisor,
Kaupp, who had observed his distribution of the leaflets. ; No further.
explanation than an alleged insufficiency of work Was ,given him as
a reason for ordering his "vacation." Raftery, after signing a union
application,_ was advised,by his supervisors, Hein and Lobisser, that
he had made a mistake,, and 'thereafter 'failed to receive a wage in,
crease'which had been, promised him, at the time of his employment.
Finally, when viewed in the light of the respondent's previous treat-
inent of Cook while he vas ,active in behalf of the Independent, its
sudden and unexplained change in attitude toward him, when he
publicly, affiliated with the Union, from a helping friendliness to an,
open and obvious hostility,, culminating in a refusal to afford him
a copy,,of the transcript made at.the conference called by the respond-
THE W. L. MAXSON CORPORATION 1157
ent to adjust Nicolay's sudden difference with Cook,' constituted
intimidation of Cook.
The respondent contests Cook's credibility. The latter, a leading
witness' for the Board, admitted on cross-examination, that he had
given fictitious, references on his Application for 'employment with
the respondent. His explanation was that at the time of making the
application he was in desperate financial straits and, since he knew
that he was 'fully qualified to fill the job for which he was applying,
he felt that no one would suffer because of his false statement; under
these circumstances, he considered that he was justified in giving the
fictitious references. Because of this admission, and certain minor
inconsistencies' in his testimony, it was the respondent's contention
that his entire testimony was unworthy of credence. Without in any
way sanctioning Cook's falsification of his application for employ-
ment or passing judgment on his personal ethics, his testimony in.the
main is,credited by us, as it was by,: the -Trial Examiner, because,
though on the witness stand for 3 successive days and subjected';to
vigorous cross-examination, Cook gave testimony which, on the whole,
was consistent, coherent, and convincing and which, in its important
phases, was corroborated by the records of the respondent or by the
testimony of other witnesses, including witnesses for the Independent.
In reaching this conclusion, consideration has been given to the possi-
bility, as contended by the respondent in its brief, that Cook, in keep-
ing a personal diary in which he recorded 'incidents evidentiary of the
respondent's domination of the Independent;; may have been moti-
vated by a desire to assist the Union and destroy the Independent.
However; regardless of Cook's motivation in affiliating with and
accepting office in the Independent, we are convinced, as was the
Trial Examiner, that the events set forth above occurred substantially
as related by him. Cook's possible lack of good faith does not
absolve the respondent.
We find that, the respondent has dominated and interfered with
the formation and administration of the Independent; has contributed
support to it, and has thereby interfered with,. restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section
7 of the Act. We find further that the respondent, through the state-
ments and activities of its vice president, its works manager, and
superviso'rs, as above detailed, interfered with, restrained, and co-
erced.its employees in the exercise of the rights guaranteed in Section
7 of the Act. ` ' .
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE'
The activities - of the respondent, set forth in • Section III above,
occurring in connection with the operations, of the respondent de-
1158 DECISIONS'. OF NAT,IONAL_ LABOR RELATIONS BOARD
scribed in Section I above, have a, close, - intimate , and substantial
relation to trade, traffic ,, and "commerce among . the several States and
tend to lead to labor` disputes, burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has` engaged in unfair labor
practices, we-shall order it to cease and desist therefrom and to fake
certain affirmative action designed to effectuate the policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Independent and contributed
support-to it. :The effects and consequences of the respondent's domi-
nation, interference, and support constitute a continuing obstacle to
the free. exercise by its employees of their 'right to self-organization
and to bargain collectively • through representatives of their own
choosing. -Accordingly,'we shall order that the respondent withdraw
and withhold all recognition from and disestablish the Independent as
the representative of any of its employees for the purpose of dealing
with, th6- respondent concerning -grievances, labor disputes, wages,
rates of-pay, hours of employmeilt, or other conditions of employiilent.
Upon the foregoing findings of fact and upon the entire record in
the case, the Board males-the'following :
CoN ci.usio -s OF LAW
1. United Electi• ical;'Radio '&'Machi n e Workers of America, Local
475, affiliated with the Congress of Industrial Organizations, and
Independent , Association of Instrument Workers are labor organiza-
tions, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of Independent Association of Instrument Workers and con-
tributing support to it, the respondent has engaged in and is engaging
in unfair labor practices , within the meaning of Secti'on' 8'(2) of the
Act. - - - '
3. By interfering with, restraining, and-coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in, and is engaging in unfair labor practices,
-within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER -
Upon -the, basis 'of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the Nationad Labor Relations
THE W. L. MAXON CORPORATION 1159
Act, the National Labor Relations Board hereby orders that the
respondent, The W. L. Maxson Corporation, New York City, and
its officers, agents, successors, and assigns shall:
1. Cease and desist from : -
(a) Dominating or interfering with the administration of Inde-
pendent Association of Instrument Workers, or the formation or
administration of any other labor organization of its employees, or
from contributing support to said labor organization or any other
labor organization of its employees;
(b) Recognizing Independent Association of Instrument Workers
as the representative of any of its employees for the purpose of dealing
with the respondent concern ng grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of work;
(c) In any other manner interfering with, restraining, 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 bargaining or other iflutual
aid'or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative,action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from Independent
Association of Instrument Workers as the exclusive representative
of its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, and other conditions of employment and completely
disestablish Independent Association of Instrument Workers, as such
representative;
(b) Post immediately in conspicuous places throughout its plant
in New York City, and maintain for a period of at least sixty (60)
consecutive-days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which it is ordered to cease and'desist in paragraphs 1 (a), (b), and
(c) of this Order; and (2) that the respondent will take the affirmative
action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Second Region in writing
within ten (10) clays from the date of this Order what steps the
respondent has taken to comply herewith.