The Yoder Co.

National Labor Relations Board - Board Decisions

Feb 15, 1943

47 N.L.R.B. 557 (N.L.R.B. 1943)

In the Matter of THE YODER COMPANY - and UNITED ELECTRICAL , RADIO
& MACHINE WORKERS OF AMERICA, LOCAL No. 735 (CIO)
Case No. C-8393.-Decided February 15, 1943
Jurisdiction : special machinery manufacturing industry.
Unfair Labor Practices
Intel fereiice, Restraint, and Coci cion: notices, post cards, and posters issued to
employees, stressing loyalty to company and purporting to advise them of their
statutory rights just before the holding of a consent election; questioning and
reprimanding an employee concerning his intended vote; posting anti-union
sign!
Coynpanif-Dominated Union: finding made as to admittedly dominated organiza-
tion, which company disestablished after about 8 years ; charges of, dismissed
as to alleged succes§or organizatioli, where circumstances failed to establish
that employees believed second organization was formed as substitute for
original dominated organization rather than in revolt against such domination.
Discitiiiinetion: charges of, dismissed.
Remedial Orders: cease and desist dominating and interfering with disestab-
lished organization ; cease giving effect to contract therewith ; and refrain
from recognizing such organization should it attempt to resume functioning-
mail to each employee, individual notice of compliance with the Act.
Practice and Procedure: inconclusive consent election set aside.
DECISION
AND
ORDER
On October 30, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that it cease and desist-. there-
from and take certain affirmative action; as set forth in the copy of the
Intermediate Report annexed hereto. Thereafter, the respondent and
the Independent filed exceptions to the Intermediate Report and sup-
porting briefs. The Board has considered the rulings made by the
Trial Examiner at and subsequent to the hearing, and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
Pursuant to notice, a hearing for the purpose of oral argument was
held before the Board in Washington, D. C., on January 19, 1943. The
respondent and the Independent appeared and participated in the
hearing.
47NLRB,No75.
557
558 DECISION'S' OF NATIONAL LABOR RELATIONKS BOARD
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and rcommendations made by the Trial Ex-
aminer, with the following exceptions and additions :
1. The Trial Examiner has -found that the respondent dominated
and interfered with the administration of the Association from July 5,
1935, the effective date of the Act,, to'March 21, 1942, the date of the
Association's disestablishment. The record shows in addition, and we
find, that the respondent contributed financial and other support to the
Association during this period. To effectuate the policies of the Act,
,we shall order the respondent not only to cease and desist from engag-
ing in these.unfair labor practices, but also to cease and desist from
giving effect to its contract of April 1, 1940, with the Association, or to
any extension, modification, supplement, or renewal thereof, and to
refrain from recognizing the Association as the collective bargaining
representative of any of its employees in the event that the Associa-
tion resumes or attempts to resume functioning as such.
2. The Trial Examiner has found that the Independent is a domi-
nated labor organization, since it is the successor of the Association and
since the respondent, by failing "to dispel the identity of" the Associa-
tion and the Independent and by "its forceful campaign against the
Union and in favor of the Independent," led its employees to believe
that "the Independent had evolved from the Association" and that,
"the Independent was to serve as a substitute for the Association." We
are not convinced that the record establishes these facts. The record
shows that there was no real activity on the part of the Association after
October 21, 1941, and only slight activity on its part during the months
immediately preceding. Discussion of the formation of the Inde-
pendent did not begin until December 1941, some 2 months after the
Association had become dormant, and the discussions were participated
in and the Independent was thereafter organized on February 1, 1942,
by Garwood, an employee who had not been active in.the Association
since May 1938, and by other non-supervisory employees who had never
been "active in the Association. The activities of these employees in
organizing the Independent were found by the Trial Examiner and
are shown by the record not to have been generated by the respondent.
There is evidence, and we find, that the organizers of the Independent
told employees whom they solicited for membership that the Inde-
pendent had no relation to or connection with the Association. In the
charges filed by the Union in December 1941 and in February and April
1942, in the representation petition filed by it in March'1942, and in
the negotiations leading up to the consent election of April 2, 1942, the
Union made no allegation that the Independent was the successor of
the Association. The post cards and posters addressed by the respond-
THEE YODER , COMPANY 559
ent to its employees during the period between March 25, 19,42, and the
consent election of April 2, 1942, did not, in our opinion, constitute
support by the respondent of the Independent as opposed to the Union,
and there is no other evidence of assistance to or interference with the
Independent by the respondent.
It therefore appears that the Independent, unlike the unaffiliated
organization disestablished in the Westinghouse case,' was not or-
ganized by employees identified with a predecessor dominated organi-
zation, and that there was no continuity between the Association,
which engaged in its last activity in October 1941, and the Independ-
ent, which was organized in February 19-12. In the present proceed-
ing, the record shows that the respondent did not favor the Inde-
pendent by displaying hostility tp the Union; that there was no
participation by supervisory employees in the formation or adminis-
tration of -the Independent; that there was no identity, either in
personnel'or in structure, between the Association and the Independ-
ent; that the respondent's employees understood that the Independent
was being organized in protest against, rather than as a result of, the
respondent's domination of the Association;, and'-that the Union
itself did not, until the filing of its amended charge' on July 29, 1942,
.allege that the Independent was the successor of the Association.
We are of the opinion and we find that the record does not establish
that the Independent was dominated and supported by the respond-
ent.2 The complaint will therefore be dismissed, insofar as it alleges
that the respondent dominated and interfered with the formation
,and administration of the Independent and contributed support to it.
3. The Trial Examiner has found that the respondent, by publish-
ing its letter of March 7, 1942, to the Union and byissuing the post
cards and posters on and after March 25, 1942, interfered with, re-
strained and coerced its employees in the exercise of the rights guar-
anteed by the Act. The respondent's letter of March 7, 1942, was
written in reply to a letter front the Union to the respondent, and
a copy of it was posted by the respondent on its bulletin board- be-
cause the Union had previously distributed among the respondent's
employees handbills reproducing its' letter to the respondent and
accusing the respondent of "sabotaging defense production" and of
having "Nazi-minded" and "gangster-like" officials and foremen.
Under the circumstances, we do not believe that the respondent, by
posting a copy of its letter of, March 7, 1942, interfered with the
'Westinghouse Electric and Manufacturing Company v . N. L R. B, 112 P. (2d) 657
(C. C. A. 2 ), aff'd 312 U. S 660, modifying and enforcing , 18 N L R B 300
2 Matter of Providence Gas Company and Local No. 12133, District 50, United Mine Workers
of America (C. I. 0.), 41 N. L. R B 1121. Cf. Matter of Cherry Raver Boom cf Lumber
Company and United Construction Workers 0iganizuag Committee ( C I. 0 ), 44 N L R. B
273.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statutory rights of its employees, and the finding of the Trial Exam-
iner to the contrary is hereby reversed.
With respect to the post cards and posters issued by the respondent
to its employees on and after March 25, 1942, we have found, above
that the respondent did not thereby support the Independent to the
consequent disadvantage of the Union. The post cards and posters
did, however, stress the desirability of "loyalty" to the respondent, on
the part of its employees and the, disadvantages of union organization.
.Moreover, they were issued just prior to the consent election of April
-2, 1942, and w-,,ere openly and avowedly concerned with the considera-
tions to be given weight by the respondent's employees, when they
cast their ballots in'+the election. We have hitherto held that the
right of employees under the .At to seldct their bargaining repre-
sentatives without employer interference imports the - correlative
duty on the part of employers ' to maintain a "hands-off" policy in
elections conducted to ascertain bargaining representatives, and that
an employer's participation in a pre-election campaign is an inter-
ference with the employees' right to bargain collectively through
representatives "of their own choosing." 3 We agree with the Trial
Examiner and we find that the respondent, by issuing 'the post cards
,and posters on and after March 25; 1942, interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. We, shall therefore direct the respondent to
mail remedial notices to each of its employees, individually' We
shall also set aside the election of April 2, 1942, since it was incon-
clusive, but without prejudice to further proceedings under the
Union's pending petition for investigation and certification of repre-
sentatives.
ORDER
Upon the basis of the foregoing findings of fact and the entire
record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, the National Labor Relations Board _ hereby
orders that the respondent, The Yoder Company, Cleveland, Ohio,
and, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Yoder
Company Employees Association or the formation or administration
of any other labor organization of its employees, and from con-
tributing financial or other support to Yoder Company Employees
Association or to any other labor organization of its employees;
3 See, Matter of Sunbeam Electric Manufacturing Co. and United Electrical, Radio cE
Machine Thor! ers of Anmeiica, affiliated with the 0. 1. 0 , 41 N. L. R. B. 469, and cases therein
cited Cf N. L. B B. V. A'mertican Manufacturing Company, 11 L. R. R. 681 (C. C. A. 5).
4 Matter of The Letz Manufacturing Company and Federal"Labor Union No. 22226,
affiliated with the American Federation of Labor, 32 N. L. R. B. 563.
THEE YODER COMPANY 561
(b) Giving effect to its contract of April 1, 1940, with Yoder Com-
pany, Employees Association, or to any modification, extension, sup-
plement, or renewal thereof ;
(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-rep.
resentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a)_ Refrain from recognizing Yoder Company Employees Asso-
ciation as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
ployment, if the Association resumes or attempts to resume function-
ing as such representative;
(b) Post immediately in conspicuous places throughout its plant
at Cleveland, Ohio, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees, a
copy'of which shall also be mailed to each of its employees individ-
ually, stating: (1) that the respondent will not engage in the conduct
from which it is ordered to cease and desist in paragraph 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 Eighth Region,in writ-
ing, within ten (10) clays from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint, insofar as it al-
leges that the respondent dominated, interfered .with, and contributed
support to Independent Welfare Association, Inc., and that the re-
spondent discriminated in regard to the hire and tenure of employ-
ment of Frank' Holpuch, Henry Sabbatis, and Louis Wood, be, -and -
it hereby is, dismissed.
AND IT IS HEREBY FURTI-TER ORDERED that the election of April 2, 1942,
among the respondent's employees, be,- and it hereby is, set aside,
without prejudice to further proceedings under the Union's pending
petition for investigation and certification of representatives.
INTERMEDIATE REPORT
Mr. RIchavd C Sw(rulc, and Mr. Colonel C. Sawyer, for the Board
Mr. Harry B. Smoyer anti Mr. Eugene B. Schwar tz, of Cleveland, Ohio, for the
respondent.
Mr. M Alfred Roe)nisch, of Cleveland, Ohio, for the Independent.
Mr. Joseph Hres, of Cleveland, Ohio, for the Union:
513023-43-vo1 47-36
562 DECiSIONS OF 'NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
On an amended charge duly filed on July 29, 1942, by the United Electrical,
Radio & Machine Workers of America, Local #735 (CIO), herein called the
Union, the National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued its complaint
dated August 3, 1942, against The Yoder Company, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1), (2) and (3),
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint accompanied by notice of hearing
were duly- served upon the respondent, the Union, the Yoder Company Employees
Association, herein called the Association, and the Independent Welfare Associa-
tion, Ine, herein called the Independent.'
With respect to the unfair labor practices, the complaint, as amended at the
hearing alleged in numbered paragraphs and lettered subparagraphs referred to
by the same numbers and letters hereinafter as follows
6. Respondent . ,. . from on or about the eighth day of December 1941,
prior thereto, and at all times subsequent to said date has interfered with,
restrained, and coerced its employees in, the exercise of the rights guaranteed
in Section 7 of the Act,, in that:
(a) On or about December 8, 1941 one of its supervisors, Bill Buchin
told an employee, Julni J. Haller, who was distributing membership cards
in the Union, that such activity was the only means whereby Haller could
keep a job and thereupon Buchin physically assaulted Haller.
(b) On or about March 18, 1942, Louis Morgan, • Respondent's personnel
manager, inquired as to the union sympathies of Frank Holpuch before hiring
him, and asked him whether a company union would be satisfactory to him
if he wei e employed 'at Respondent's plant.
(c) On or about March 28, 1942, one of its supervisors, Jessie Kephart,
violently abused the said Frank Holpuch with profane language.4
(d) On or about April 4, 1942 one of its supervisors, Earl Biederman,
transferred the said Frank Holpuch from his usual employment to sweeping
floors, moving machinery and replacing stock.
(e) On or about March 28; 1942 one of its supervisors, Carl Yoder, stated
to a group of employees in the plant that if the Union got in the plant it
wouldn't be the same old Yoder Company, that the employees would lose
many privileges such as their present method of overtime pay and smoking.
(f) On or about April 13, 1942 Louis Morgan, Respondent's personnel man-
ager,, refused to pay to Louis Wood, an_ active Union proponent, upon his
discharge by Respondent, his vacation money, and advised said Louis Wood
that he would not be permitted to remove his personal tools from the plant
unless and until said Wood accepted his final payment as offered.
(g) On or about March 7, 1942, following a request for bargaining by the
Union, Respondent replied to the Union by letter and published its reply
IIn its complaint the Board referred to the Association as the Y. C. E. A. and to the
Independent as the Association.
i Since separate motions were made concerning each particular allegation of the complaint,
these allegations ale set forth verbatim for the sake of clarity.
B Incorrectly referred to in the complaint prior to amendment as "Bill Dudeson."
4 Befoie it was amended at the healing on motion of counsel for the Board this allegation
read as follows • "On or about Dial eh 28, 1942 one of its supervisors, Jessie Kephart, violently
abused the said Frank FIolpuch with profane language and otherwise and sent him home
at 11 : 30 in the morning."
THE ^ Y ODDER ' COMPANY 563
among the empioyees of the plant, charging the Union with making uniformly
mendacious and misleading statements.
(h) On or about April 1, 1942, the-day before an election was to be held
in Respondent's plant by the National Labor Relations Board, one of its
supervisors, John Miller, asked one of its employees, Henry Sabbatis, whether
he belonged to the CIO, and on the following day asked Sabbatis which union
he had voted for. Upon Sabbatis advising Miller that he had voted for the
CIO, the said John Miller severely' reprimanded Sabbatis.
(i,) Through February and March 1942 Respondent permitted solicitation
of membership in and collection of dues for the Association (Independent)
in its plant during working hours, in violation of company regulations against
employees moving about the plant, whereas 'such' privilege of solicitation. was
denied the Union.
(j) On or about March 30, 1942 and.again on or about April 3, 1942 one
of its supervisors, John Miller, placed a box and placard at the bulletin
board in the plant bearing the legend "CIO members-throw your buttons in
here for defense."
(k) During the month of March 1942, prior to the election above referred
to, it published, posted and otherwise made available to its employees letters,
handbills, postcards and posters for the purpose of persuading its employees
to vote against the Union in said election.
(1) On April 2, 1942, M Lubahn, one of its authorized observers at said
election, was in possession of a list of employees furnished by the Respond-
ent, in addition to the authorized list, upon which the said Lubahn was check-
ing the names of voters who appeared' to cast. ballots.
8. Respondent . . . from on or about April 10, 1934, and at all times sub-
sequent to that date, during the life of the Y. C. E A. (Association) has fos-
tered, encouraged, dominated, and interfered with the formation and admin-
istration of said Y. C E. A. (Association), in that:
(a) It advised its organizers how to form the Y. C. E. A.
(b) It suppled, all stationery, supplies and clerical help necessary for the
administration,of the Y. C. E. A.
(c) It permitted the Y. C.\ E. A., Committee Meetings to be held in its
offices during working hours.
(d) Its officers, and supervisors regularly , attended said Committee
Meetings.
(e) Copies of the minutes of those meetings were furnished to its officers
and supervisors.
11
(f) It permitted all elections of Y. C. E A. officers and committeemen to
be held in the plant during working hours.
(g) It participated in and advised concerning amendment to the Consti-
tution of,the Y. C. E. A.
(h) It defrayed all expenses of the Y C. E. A.
9i Respondent .. . from, on or about February 1,. 1942, and at all times
subsequent to that date, has fostered, encouraged, dominated, and interfered
with the formation and administration of the Association (Independent),' in
that:
(a) On or about February 1, 1942, three of its supervisors, Pat McGee,
James Lucas, and Charles Waters attended and were actide in the Associa-
tion's (Independent's) first organizational meeting.
4
1
5 The complaint further alleged in paragraph 5 that the Independent was a successor
organization to the Association. See footnote 1, supra.
564 _ DE,CISTONS OF NATIONAL LABOR RELATIONS BOARD
(b) ,It permitted certain of its,,agents who were charter members and/or
officers of the Y. C. E. A. to continue in service as organizers and/or officers
of the Association (Independent).
(c) From late January 1942, and subsequent to that time, it has per-
mitted to be circulated among its employees in its plant during working
hours, petitions and membership cards of the Association (Independent), in
violation of its rules against employees moving about the plant.
(d) From on or about February 1, 1942, and subsequent thereto, it per-
mitted active organizers of the Association (Independent) time off during
working hours for the purpose of handling affairs of the Association
(Independent).
(e) During they month of March 1942 it engaged in a campaign both by
mail and by posted bulletin, among its employees for the purpose of soliciting
votes in favor of the' Association (Independent) and against the Union in
the above-mentioned election.
12. Respondent discharged the following named employees on or about the
dates set forth after their names :
Louis Wood, April 13, 1942.
Henry Sabbatis, April 14, 1942.
Frank Holpuch, April 14, 1942.
13. Respondent discharged the employees ... because they were members
of and active on behalf 'of the said Union . . ., and because Respondent
wished to encourage membership in and allegiance to the said Association
(Independent).
On August 27, 1942, the respondent filed an answer admitting the allegations
with respect to its business. The respondent also admitted certain of the other
allegations, as hereinafter set forth, but denied all the unfair labor practices.
At the hearing the Independent filed its answer denying that its formation and
administration had been interfered with and dominated by the respondent, and
further denying that it was the successor of the Association.
Pursuant to notice, a hearing was held at Cleveland, Ohio, from September 14
to 17, 1942, before the undersigned, Webster Powell, the Trial Examiner duly
designated by the Acting Chief Trial Examiner. The Board, the respondent and
the Independent were represented by counsel and the Union by its representative.
Full opportunity to be heard, to examine and. cross-examine, witnesses, and to
introduce evidence bearing upon the issues was afforded all parties. At the close
of the Board's case, counsel for the Board moved to dismiss the complaint for
lack of evidence as to paragraphs 6 (e), (f) and (1) and 9 (a). He likewise
moved to dismiss for lack of evidence paragraph 12 insofar as it referred to Louis
Wood. These motions were granted by the undersigned Upon the conclusion
of the Board's case, counsel for the Independent moved to dismiss the complaint
° as to the Independent in its entirety, including the allegation' that the Inde-
pendent was a successor organization to the Association. This motion was
denied. Counsel for the respondent mo, ed to dismiss the complaint in its en-
tirety and in particular moved to dismiss paragraphs 6 (c), (d), (h), (i), and
(1), and 9 (b), (c), and (d), of the, complaint and further moved to dismiss
the complaint as to Henry Sabbatis and Frank Holpuch In the alternative
counsel for the respondent also moved to strike the words "and collection
of dues" from paragraph 6 (i) of the complaint. The motions to dismiss para-
graphs 9 (b),' (c), and (d) of the, complaint were granted. The motion to
strike the words "and collection of dues" from paragraph 6 (i) of the complaint
THEE YODEIR COMPANY 565
was also granted.6 Ruling was -reserved -by the, undersigned, with respect to
the motions to dismiss'the complaint as to, paragraph 6 (c), (d), (h), (i), and
(j), and as to Sabbatis and Holpuch. These motions are denied.
At the close of the hearing the undersigned granted a motion by counsel for the
Board, in which counsel for the respondent, and counsel for the Independent
joined, to conform the pleadings to the proof as to spelling, names, dates, and
other formal matters. At the conclusion of the hearing, counsel for the respond-
ent moved to dismiss the complaint in its entirety and renewed his motion directed
to the portions of the complaint not already dismissed ; and counsel for the
Independent moved to dismiss the complaint insofar as it applied to the Inde-
pendent. Ruling upon these motions was reserved ; these motions are hereby
denied except as hereinafter set forth. At the conclusion of the hearing all
parties waived the opportunity to argue orally before the undersigned. All.
parties were advised that they might file briefs with the undersigned. Briefs
have been submitted by the Board, the respondent, and the Independent.
Upon the record thus made and from his observation of the witnesses, the under-
signed makes, in addition to the above, the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Yoder Company is an Ohio corporation, having its only plant and offices
in Cleveland, Ohio. The respondent builds and distributes special machinery
and is now engaged almost entirely in national defense work. Its annual pur-
chases of principal raw materials average approximately $150,000 in value, prac-
tically all of which comes from the State of Ohio. The total annual value of
its finished products averages approximately $1,250,000, about 75 percent of
which is shipped to points outside the State of Ohio. Ninety-five percent of the
finished product is made to special order. The respondent is also engaged in
furnishing engineering, designing and other advice concerning plant equipment
and arrangement of plant facilities' It admits in its answer that it is engaged
in commerce within the meaning of theAct.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, Local #735 (CIO),
is a labor organization admitting to membership employees of the respondent.'
The Yoder Company Employees Association was an unaffiliated labor organiza-
tion admitting to membership employees of the respondent.
Independent' Welfare Association, Inc., is an unaffiliated labor organization
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Domination and interference with the administration of the Association
The Association was organized in April 1934 with the approval and assistance
of the respondent after employees-interested in forming an inside organization
asked C M. Yoder, president of the respondent, and H O. Yoder, secretary-
e Counsel for the Board joined in the alternative motion respecting paragraph 6 (1) of
the complaint , and' conceded that the evidence adduced was insufficient to substantiate
paragraph 9 (b) and ( c) of the complaint.
'These findings are based upon a stipulation entered into by the parties and read into
the record. I
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
treasurer of the-respondent, how to initiate such an organization.' Thereafter,
the respondent supplied the Association with all the stationery, office supplies,
and clerical help necessary for its administration It permitted the monthly
meetings of the Committee of Employee Representatives of the Association herein
called the 'Committee, to meet -in its `offices in the plant during working hours.
Upon occasion and at the request of the Association, officers and supervisors of
the respondent attended meetings of the Committee. Copies of the minutes of
some of these meetings were furnished to the respondent. The respondent per-
mittled the annual elections of Association officers and committeemen to be held
in the plant during working hours. Upon the request of the Association rep-
resentatives of the respondent participated in and advised with the Committee
concerning amendments to the constitution- of the Association. Employees suf-
fered no deductions in pay for time spent at committee meetings or while voting.
Nor did the respondent charge the Association for the use of its facilities ° The
Association did not collect dues, and held no general membership meetings, the
only participation by the entire membership being in the election of officers and
representatives 10 According to its constitution, the business of the Association
was conducted through 'a- Committee- of Employee Representatives chosen from
the various departments in the plant" I
The Association continued in existence from its'inception until March 21, 1942,
when it was disestablished under circumstances herein set forth During this
entire period the Association continued to receive the support of the respondent.
Richard Edwards, chairman of the Association from April 1935 to the date of
its disestablishment, except for a period of one year, testified and the undersigned:
finds that there was no change in the form of the Association from the time it
began until the time it dissolved.
The undersigned finds that the respondent dominated/and interfered with the
administration of the Association from July 5, 1935, the effective date of the
Act, to March 21, 1942, the date of its disestablishment, and thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act 32
8 In a conference on April 10, 1934, Earl Biederman, at that time an automobile mechanic
and truck driver acting,as spokesman, for, the,,einployees interested in forming an inside
union, explained to the Yoder brothers that an outside labor organization was organizing
the employees ; that several employees, including himself, were opposed to an outside
organization, whose officers could dictate to them ; and that they had been wondering what
could be done "to preserve the family relationship between the Company officials and the
Company employees
9 These findings are based on admissions by the respondent in its answer to the allega-
tions of the complaint, and are amply corroborated by the minutes of the Association.
"The minutes further reveal that in May 1934, the respondent entered into a collective
bargaining dgreem nt with the members of the Association through their elected representa-
tives. On'April 1, 1940, a new agreement, was entered into between the respondent and
members of the Association. The agreement was to run for one year and thereafter from
year to year unless a written notice to the contrary was given by either party within 30
days of the expiration date of the contract. This agreement remained in existence until'the
Association was dissolved.
"In view of the admissions in the respondent's answer it is unnecessary to go into the
details of how the Committee functioned. The aid admittedly given the Association by the' -
respondent is sufficient to establish that the Association was company dominated within the
meaning of Section 8 (2) of the Act. -
' 12 Insofar, as this-report has dealt with events occurring prior to the'effective date of the
Act, it has considered them not as constituting separate unfair labor practices, but rather
with regard to their bearing upon the issues raised by the complaint.' Cf., N. L. R. B. v.,
Pennsylvania Greyhound 'Lines, Inc, 303 U. S 261. -
THE YODEiR . COMPANY x-'567,
B Domination and interference with the formation and advollistretion of the
Independent-interference, restraint, and coercion
In November 1941, the Union began an intensive campaign to organize the
respondent's, plant. A Dumber of employees joined the Union Among those
active in its behalf were John J. Haller and Ignatius John Kolk, usually referred
to in the plant as Percy Kolk,
About December 8, 1941, Haller was talking to Mazzeo, an employee known'as
"Mussolini," about the union card which Mazzeo had signed, and on which he
had forgotten to put the date, when Hill Buchin, a supervisory employee, asked
Haller, how the organizing for the Union was going. Haller replied that- it-
was going pretty well and that he had signed up eight employees that day:'
Buchin then replied, "that is the only way you will be able to keep a position.".
Haller then remarked, "that 'is the only way . . . it will stop you fellows
from running and tattling " Buchin thereupon hit Waller, in the jaw. This'
conversation took place at the plant during working hours 13
On December 10, 1941, while the Union was in the midst of its organizational
,campaign , the respondent posted on its bulletin boards the following 'general
notice-to *its employees :
Many of our Employees have asked concerning the attitude of the Manage-
merit concerning their industrial relationship to the Company.
The attitude of the Management is the same now as it always has been,`
namely. No one is asked as a condition precedent to employment, regarding
his religion, politics, or labor affiliations. "Is the work or skill of the'
employee satisfactory"-is the only criterion, and this is the only question
that will ever be raised.
The Law of our Land states that workmen may join together to bargain
with their Employer. This we have always recognized. The Law also
states that a workman may, as an individual, bargain with his Employer,
and this we have continuously recognized.
In addition to the above, we wish to state that it never has been necessary,
nor will it ever be in the future, for any workman of our Company to join
any organization or pay dues to any outside organization for the privilege
of working for The Yoder Company. If it is his deliberate choice to do so,
he has that privilege.
As in the'past, it is the present policy of The Yoder Company to be pleased'
at any and all times to discuss with any individual or group of employees,
any problems that may be related to their connection with the Company.
IN ORDER THAT THERE SHALL BE NO MISUNDERSTANDING AS TO THE POSITION'
OF THIS COMPANY, WE WISH TO NOTIFY OUR EMPLOYEES THAT WE INTEND TO
'e Buchin admitted in substance the above testimony of Haller. He testified that he hit
Haller when the latter called him a "squealer ." The respondent contends , however, that
Buchin is not a supervisorg employee Buchin testified that lie was the tool supervisor,
at the plant and that it was his duty to promote efficiency in pioduction by re-tooling and
otherwise-seeing to it that the proper tools were available for particular jobs. He worked
directly under Edward D. Hoobler, superintendent of Plant 1. Prior to his discussion with
Haller about the Union , Buchin discovered that Haller did not have in his possession either,
a micrometer or a scale, tools which the employees were supposed to own personally
Buchin reported this fact to IIoobler According to the undisputed testimony of Haller,
Buchin had a repairman who acted as his assistant. On occasion Buclnn also instructed
employegs in the operation of their machines From the foregoing the undersigned finds,
that Buc'hiri is an - employee for whose activities the respondent is responsible . While the
undersigned does not find this incident to be a violation of Section 8 (1) of the Act,as
alleged in the complaint , the undersigned does find that at the time of this incident the
respondeni had knowledge, that the Union was organizing its employees. r
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LIVE UP TO THE SPIRIT, AS WELL AS THE LETTER, OF THE NATIONAL LABOR RELA-
TIONS ACT. UNDER TIIE ACT EACH EMPLOYEE IS FREE TO JOIN, OR REFRAIN FROM
JOINING ANY LABOR ORGANIZATION. THIS COMPANY WILL NOT DO ANYTHING
TO INTERFERE WITH, RESTRAIN, OR COERCE EMPLOYEES IN THE EXERCISE OF THEIR
INDIVIDUAL JUDGMENT IN THIS REGARD . AND ASSURES ALL EMPLOYEES THAT
THEIR RIGHT TO WORK HERE 'WILL NEVER BE DEPENDENT UPON MEMBERSHIP OR
NON-MEMBERSHIP IN ANY ORGANIZATION.
About the middle of December 1941, while the Union was conducting its organ
izational activities, Harry Reamer, a tool maker, asked Virgil Garwood, another
non-supervisory employee, if he would'like to help form an independent union.
Garwood replied that he would be interested in such an organization provided it
had nothing to do with the old association. To this condition, Reamer agreed"
There followed a series of informal discussions among Reamer, Garwood, and
other employees pertaining to the formation of an independent union." These
discussions took place at Reamer's home, in the bowling alley where the, respond-
ent's employees regularly bowled, and at various other places outside the
respondent's plant. _
Following these discussions, the employees interested in a union to combat the
CIO perfected their plans. There is no evidence that any of these employees dis-
cussed the matter with officers or supervisory employees of the respondent. Gar,
wood testified and the undersigned finds that whenever he solicited membership
on behalf of the Independent he assured the employees that the Independent had
no relationship to the Association. Between January 29, and February 1, 1942,
Garwood and another employee distributed notices at the respondent's plant,
announcing that there would be a meeting "IN THE INTEREST OF AN
INDEPENDENT UNION from the CIO," on February 1, 1942. The meeting,
which was held at Geyer Hall located about 1 mile from the plant began at 10
a, m. Harry Reamer acted as chairman. Those present agreed to name the
organization the "Independent Welfaie Association." Temporary officers were
elected ; membership dues were set at $1 per month ; and it was voted that Reamer
go to Columbus, Ohio, to secure a charter for the Independent. On February '2,
pursuant to these instructions, Reamer obtained a charter, and on February 15,
1942, the Independent held its second meeting at which new temporary officers
were elected 16 in place of those elected February 1.because some of the employees
elected on February 1, were not able to attend meetings regularly. At this Ineet-
1' Reamer testified , and the undersigned finds, that his principal interest in an independent
organization was his antagonism to the CIO and his desire to keep that organization out
of the plant. This antagonism was based on past experience. Garwood testified, in sub-
stance, that he was interested in forming the Independent because he wished a strong union
in the plant that would secure benefits for employees and at the same time keep an outside
union from gaining a foothold , and because he was of the opinion that the Association was
illegal and would soon be unable to represent the employees . The first reason was un-
doubtedly more decisive in determining Garwood's position , inasmuch as Garwood was
still-a member of the Association and understood its weakness He had been a committee-
man in 1938 and at that time the Association had been unable to secure for him a wage
increase to which he felt entitled. Garwood failed of re-election after one year as com-
mitteeman, and therewith ceased his activities in the Association. Some time in 1939,
Garwood attempted to form another organization among the respondent 's employees, but
met with no response and soon gave up the attempt
16 Other employees active in the Independent 's formation were Fred Ackerman and Fred
Baker,'both non-supervisory employees , There is no evidence that either of these men had'
ever been connected with the Association Likewise , Reamer was a new employee who'
had no connection with the Association
IU Harry Reamer , president ; Fied - Baker, vice president ; Virgil Garwood, secretary ;
Leonard Rob , treasurer.
THEW YODEIR, COMPANY 569
-ing Attorney Anthony Balogh, who was Reamer's landlord, explained the Act.
Provision was also made at this meeting to have application cards printed.17
On February 16, 1942,_ the Board informed the respondent, by letter that the
Union had filed a charge 18 against it alleging that the respondent was engaging
in unfair labor practices in violation of Section 8 (2) of the Act by forming an
organization known as Employees Welfare Association. This obviously referred
to the Independent, and the undersigned so finds. Two days later the respondent
replied to the above letter, denying the above charge, and further stating in part:
Officially, we (I refer to the Management of The Yoder Company) know
absolutely nothing about the movements among our employees who are said
to be organizing.
Unofficially, and by way of rumor, we have heard disconnected remarks
from some of the employees, that there is such a movement on the way.
We have felt that this could be no more a matter that concerns us, than' the
rumors and disconnected reports that the complainants,, the C.' I. O , are
undertaking to organize our employees.
. so far nothing has happened that under the interpretation of the
Law would make its disregard the . . . Association . . . `
As stated by the writer to Mr. Kleiler, it may be that in the hearing of the
charges against that organization that it may be declared illegal, but such
declaration cannot come from our Company.
'On March 2, 1942, the Union wrote the respondent, claiming that the Union
represented a majority of the employees and requesting a bargaining confer-
ence for the purpose of negotiating a contract. The Union distributed copies
of this letter in handbill form on or about March 2, 1942. On March 5, 1942,
the Independent wrote the respondent advising it that the Independent repre-
sented the majority of its "hourly rated employees, exclusive of supervisory
employees," and requesting recognition of the Independent as the sole and ex-
clusive bargaining agent for the above employees. The Independent also agreed
to submit its authorization cards and other pertinent data in support of its claim
that it represented the majority of the hourly rated employees. On March 7,
1942, the respondent replied to the Union's letter of March 2, as follows :
We acknowledge receiving' your favor of March 2nd, in which you state
that your_Union represents a majority of our employees and you request a
conference.
This Special Delivery communication is not the first we have received
from you. We have before us numerous communications signed by you,
which you placed in our autos and passed out on our street. These releases
from you have been so uniformly mendacious and misleading that 'you -have
put us in the mental attitude of doubting your statement relative to repre-
senting a majority of our employees.
We are now, and always have been, ready and willing to meet with and
negotiate with our employees either collectively or individually, but because
14 On March 1, another meeting of the Independent took place , at which M Alfred
Roemisch , attorney for the Independefit, gave those present information concerning the
organization of an independent union, and also furnished them with information about the
Union. Roemisch was then retained as attorney for the Independent I
"Case No . VIII-C-1247. This charge was withdrawn March 9, 1942.
.,570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the reasonable doubt above referred to, we must refuse to meet with you
until there is proof of such. authority claimed under,the rules of the NLRB.39
In its answer the respondent admitted that it published the above reply to
the Union by posting on the bulletin board a handbill consisting of the 'letter
together with a brief notice above the letter as follows : "To the Yoder employees :-
The UE-CIO distributed a handbill to you, you have a right to know our answer:"
This was in reply to the union handbill containing a copy of the Union's request
for the bargaining conference.
The respondent made no reply/to the Independent's letter of March 5. On
,March 7; the Independent challenged the Union to an election by issuing a leaflet
in which among other things it charged that the CIO was communistically in-
spired and its members were "termites." On March 9, 1942, the Union filed a
.petition for investigation and certification of representation with respect to
employees of the respondent 20 On March 16 a conference was held at the Regional
Office of the Board at which the respondent, the Independent, the Association,
and the Union were all represented.2' The meeting was called for the•purpose
of discussing a consent election. At this meeting both the Union and the Inde-
pendent refused to go on the ballot so long as the Association was still in existence.
The Board representatives then stated that it would not be possible to hold a
consent election unless the Association, disbanded and the respondent agreed to
its disestablishment. Hunter and Masters insisted that the Association be placed
on the ballot. Edwards speaking on behalf of the Association agreed that he
would take the matter up with other members, of the Committee not present
at the conference. On March 21 a second meeting was attended by representa-
tives of all parties.' - At this meeting a consent election' was, arranged for
April'2, 1942, following the signing of a letter by representatives of the Association,
announcing -that the Association was disbanding and would no longer attempt
to represent the employees of the respondent for purposes of collective bargaining
"One of the communications referred to in this letter of the respondent 's as a leaflet
-issued sometime in February entitled; "U. S 'GOVPRNMENT AND UE-CIO WILL AMERICANIZE
,YODER MACHINE" The handbill stated in substance that the Government and the UE-CIO
would stop "the fifth column activity of sabotaging defense production through the acts
of provocation such as the Nazi-minded officials at Yoder have been doing " The handbill
further asserted that the management was not interested in the defense program but was
interested in its profits at the expense of its employees and the United States Government.
The handbill further stated :
It is to the interest of every worker to join the U.-CIO so that lie can play an active
part in solving the problems that must, be settled Only the man who R orks under
these vicious gangster-like foremen is in'a position to avail himself of a grievance
procedure that will either straighten out the Nazi element in the shop or entirely
remove it . . .
20 Case No VIII-R-744. The respondent is incorrectly referred to in the petition as
'Yoder Machine Company
" Reamer, Garwood, and Rob represented the, Independent; Shepard and Fiering repre-
sented the Union ; Harvey O. Yoder represented the respondent ; Hugh E Sperry, Regional
Director, and Hudson represented the Board ; Richard Edwards, president of the Association,,
and Al Hunter and Jim Masters, committeemen, represented the Association. During the
course of the meeting Hunter and Masters stated that they were not only Committeemen
for,the Association, but were also members of the Union
22 Rudy Pogascnik and Kolk were present at this meeting as representatives of the Union.
Masters and Hunter were not present ; otherwise, the same representatives attended this
meeting as had attended the meeting of March 16.
THEE YODER COMPANY 571
Respondent agreed to post a notice disestablishing the Association and pursuant
to this agreement the following notice was posted between March 21 and 24, 1942:
0
To ALL EMPLOYEES OF TFLE YOOEWCOMPANY
This is to notify employees of this company's recognition of their rights
under the National Labor Relations Act. This company recognizes the rights
of employees to organize and bargain collectively through representatives
of their own choosing, to form, join, or assist labor organizations, and to
engage in concerted activity for their mutual aid or protection.
In order to correct any contrary impression which any employee may have,
the company desires to notify you that :
(1) It will not interfere with,;restrain, or coerce employees in their exercise
of the above-stated rights
(2) It will not foster, dominate, or contribute financial or other support
to any labor organization. In this connection you are advised that recogni-
tion has been withdrawn from Yoder Company Employees Association and
this organization has been disestablished as the bargaining representative of
any of our employees.
(3) It will not in any manner discriminate against any employee because
of his membership or activity in behalf of any labor organization.
(4) It will bargain collectively in good faith with representatives desig-
nated or selected by a majority of the employees in a unit appropriate for
such purposes when and- if such representatives have demonstrated their
majority in an election supervised by the National Labor Relations Board
The company desires to comply with the spirit as well as the letter of the
National Labor Relations Act and any act or statement heretofore made,
if any, or any threats or promises which may have been made, if any, which
gave a contrary impression are hereby repudiated, and. denounced by the
company.
Supervisory employees of the company are hereby notified that they are
not to express any opinion one way or another with regard to employees'
organizational activity.
This notice is to remain posted until further notice and is not to be removed,
defaced, or covered over by other objects during such posting.
On March 25, 1942, the respondent mailed the first of a "job appreciation"
.series of five postcards to each of its employees. In general the cards constituted
an attempt to instill in employees enthusiasm for their jobs and loyalty to The
,Yoder Company. Two of the cards emphasized that "LOYALTY BEGETS.LOYALTY."
The last of these cards was mailed on March 30. Thereafter the respondent
,issued a poster to all employees entitled,. "Talkin' to myself in a Voting Booth"
This was mailed out on March • 29, 1942, and was received by the respondent's
employees the following morning. It was also posted on the bulletin board. This
poster began by stating that the election was secret inasmuch as the organization
representatives would be watching each other like "Hawks," not "Hogs"; that
.there had been a lot of name calling during the campaigning which probably
would not have'occurred if everybody really knew everybody else; that H. O.
Yoder was not "such a bad scout" when you got to know him; and reminded the
employees that the respondent had treated them well during the recent depres-
'sion'. The third paragraph in this poster reads as follows:
I• almost said "YES" in the first space, just because it was first. Yeh, I
ALMOST said "YES," ... but I didn't. 'It would have been the easy thing to
do. I understand the position 'on this election's ballot was determined by
572 DECISIONS OF NATIONAL', LABOR RELATIONS BOARD
tossing a coin . . . Well, "act in Baste, repent at leisure." :. The easiest way
would be to put down as in the first space that happened to come to hand.
a
The fourth paragraph told the story of the Dutch boy who stuck his fist in the
dike and was hailed as a hero because he decided what was the right thing to do.
The paragraph is filled with references to the "right," =3 ending as follows:,
Sometimes, the right way is the hard way, and the hard way, the right way.
The Dutch boy DID know that the dike would hold as long as he held his fist
there .. .
The fifth paragraph contains a prophecy that the respondent will meet the,prob-
lems arising out of the war situation successfully and will treat its employees
well and states at the end of the paragraph :
I KNow no situation will arise with them whereby anybody at all can point a
finger at them and say "you have been profiteering " They were one of the
first companies to get behind the armament program, and are now engaged
100% in war contracts. That makes me proud to be working here . . .
The poster continues as follows :
SAY, in which pocket did I put those papers when I wrote the "pros and
cons" of this situation? Those fellows tellin''me how to vote are "pros" all-
right. Maybe a little "con man" in 'em, too, for all I know . . . Come to
think about it, what Do I know about 'em? Not much but what I read in the
papers, and THEY, don't seem to think much df them, callin' the Union men
"radicals and reds," but they in turn, come right back and call all the news-
paper fellows liars and sabotagers, and - - it just gets me all het up and
undecided in my mind . . . That's why I put all the arguments "for" on
one piece of paper, and "against" on another. Personally I suspect I'm a
professional "agin'er." I remember the old adage "When in doubt take the
side of safety" so, when in doubt, I usually say "no." Then I don't wake
up some day and find that I've bought a new house and lot, when I thought
all I was doin' was to have them come and fix the furnace
H-U-U-U-M-M-M-M, here,are,my notes. "The Yoder Plant will'be operated
as a plant where anyone can continue to work as long as he applies himself'
to his job and there is work to do." . . .
Guess they said that in.a letter they sent to me. Gosh, Almighty ! here's
the very letter. Yes, here Harvey said, not to let anybody "blitzkrieg" me
into signing up or doing anything hasty. Well, here's somethin',-"No
individual or organization can secure for you any right or privilege which
you cannot secure for yourself." Well, if that's true, why pay out' money in
dues? I, don't mind payin' out money if I get somethin' in return.' How
much did they say those dues were? Any special assessments?' Who
decided how much those dues would be, anyway? . . . Could it be one of
those "come-on" games? Low rates now and sock you, later? .. .
SAY, this "promising" business makes me tired. All they. have to do' when
they'play that game is to see who can raise the other fellow, fastest. There's
"no limit" to that game Guess, "Old fiiends are the best," after all. Yoders'
13 Board's counsel contended that the repeated use of the word "rights" in this poster
was for the express purpose of calling the employees' attention to the square on the right
hand side of the sample ballot which was then posted on the bulletin board. This square
was the one In which employees desiring to be represented by the4ndependent were supposed
to vote. This contention is discussed hereinafter.
THE YONDER COMPANY . 573
did emphasize that I vote Fair enough. They didn't tell me low to' vote.
But they did think that I would regret it later if I didn't vote at all. They
said that the history of similar elections show that later on a lot of the work-
men are sorry because a radical minority controlled the election when a lot
of the .undecided fellows let the election be decided by their "not voting."
When you don't vote, it is a vote for the other side . . .
WHA-A-A-T? Have I been in this stuffy old voting booth for an hour?
I cou'd have cast a dozen'votes for - - - - - in that time. My only
regret is that I can't vote a hundred times. ONLY ONCE ! ... but I know it
will be right. "Be sure you're right, then go ahead" say I, as I mark my
ballot the right and honorable way.
On March 30, i942, the respondent mailed. out another poster to all of its em-
ployees entitled, "THE' YODER COMPANY SPEAKS." In the first paragraph of this
poster, the respondent refers to the Bill of Rights and states that given the facts
by the company the company is confident that the employees will decide the
Board election wisely and justly. The poster then proceeds to advise the em-
ployees as to their rights in the election as follows :
YOUR RIGHTS IN TIIE YODER'COMPANY ELECTION !
You are, of course, free to join, belong to, pay clues and assessments, and
follow the leadership and discipline of any labor union.
If any union , leaders say to , you, or lead you to believe , that you will get
certain things , if and when any particular union wins the election , it does
not necessarily follow that you will get these things . As the result of the
election , any union can only secure the right to be the sole bargaining agent
of our production employees.
You have the right to vote the way you feel will be the best for you and
your family, for that which will promote the best, the most friendly and
directly interested of relationships
THE YODER COMPANY'S POSITION AND PROMISES TO YOU !
You are protected in your job by your ability to'do work, with due con-
sideration for your length of service. Your opportunity for advancement is
based upon merit.
It is our policy to pay wages as high as those prevailing in this locality for
our industry. Our airs is to provide as steady work as possible, considering
the nature of the business. Our record in this speaks for itself. +
Every Yoder employee has always had the right to present any question,
directly to the management, and have it carefully considered and determined.
Any Yoder employee can work as long as he applies himself to his job and
there is work to do.
We have always given "the measure heaped up" in our dealings with you,
to the utmost of our physical and.financial abilities. So, let your conscience
be your-guide and VOTE.
No individual or organization can secure for a Yoder employee any rights
or privileges which you cannot secure for yourself
The Yoder Company will not become a party to any arrangement or agree-
inent whereby you will be compelled to pay for the right to work for this
company. '
We are now at war. Many of you have sons or brothers in the service.
You know that a 100% of our work is on war materials. You know bow
badly this material is needed Therefore, The Yoder Company stands firmly
for the proposition that every employee shall be protected in his effort to
N
574 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
produce that which is necessary to save our country, irrespective of member-
ship or non-membership in any labor organization.
THINGS To CONSIDER WHEN VOTING IN THE YODER COMPANY ELECTION
Suppose you had started this business? At the present time, all of us have
the right to advance and profit fairly as fruit of our individual initiative.
Any acts designed to destroy this great American privilege, should be
discouraged.
You should support the situation in which a spirit of friendliness, kindli-
ness and cooperation promotes better working conditions for you and a higher
living standard for your family.
You should vote for the system under which you are'protected in your job"
by your ability to do your work,'with due consideration for your length of
service and your, advancement based on merit.
You should consider the practical consequences of your vote, with 'respect
to your job in future years. This is a time when it pays to look into the
future.
What you get depends upon what the company earns and not upon any
demands.
What The Yoder Company can do, in the matter of wages, in the future will
depend, as it has in the past, on competition and the prices at which we are
able to sell our product.
You should consider the character of the leadership Is it unselfish, law-
abiding'and thoroughly-American?
* * * * * *
DETAILS OF THE METHODS TO 'BE USED IN THE YODER COMPANY ELECTION
This election will be by secret ballot-the same as in any political election.
No one can know, by any means, how you vote BE SURE To VOTE! The
decision vitally affects each and every one of you The election will be deter-
mined by a majority of those voting at the election. Your neglect to vote
gives someone else the right to decide who will represent you A failure to
vote is equal to a vote in favor of the side you oppose.
You can vote as you choose, regardless of any previous commitments you
may have made at any time to the employer, to a union, or to anyone else
If d majority decides in this election that a union shall be the exclusive
bargaining representative, then that decision will bind all of the' Yoder pro-
duction employees.
A toss of a coin decided the position of the contestants on the ballot, so the
relative positions have no particular significance Whether they are on the
left, right or in the middle means nothing of consequence.
STOP and reason things out. This is-a serious decision for you to make.
LOOK into the future ! Your family's welfare and your own happiness is
at stake
THINE- of the friendly relationship existing between you and The Yoder
Company
VOTE ! Let your conscience be your VOTE I A neglect to vote VOTE
guide. is equal to a vote
in favor of the
tide you oppose,
so
THE YO'DEH COMPANY 575-
On the morning of March 31, 1942, Field Examiner Hudson visited the respond-
ent's plant and noticed the two posters, hereinabove set forth, posted on the
bulletin board. Thereafter, on the 'afternoon of March 31, a conference was held
which was attended by representatives of the Union, the Independent, acid the
respondent. At- the beginning of the conference Sperry expressed his opinion
that the election should be called off because of the posters. Both the repre-
sentatives of the Independent 2' and of 'the Union objected to the posters and
at first were of the opinion that no election should be held at that time. Later
in the afternoon Sperry pointed out that it would take considerable time to
litigate the question of whether or not the respondent's issuance of the posters
was a violation of the Act during which the employees would be without any-
bargaining representative. Finally, the representatives of the Union and of the
Independent, after conferring together, agreed to go forward with the election
,and informed the representatives of the respondent and the Board that 'they
wished to hold the election On March 31 subsequent to the conference' of that
date Sperry sent the following letter to all parties : 2
As you are aware, this office learned today, for the first time, of the recent
leaflets, notices, bulletins, and postal cards put out by the company in what
appeared to be a campaign designed to influence employees, in their -choice
of bargaining representatives in the election *which has been scheduled for
April 2, 1942
Accordingly, and because of our concern with respect to such matters, a
conference was held in this office in which the company was represented
by Mr. Harvey O. Yoder, the United Electrical, Radio & Machine Workers
of,America, Local 735, C. I. 0., was represented by Mr. Henry Fiering and
Air Paul Shepard, and the Independent Welfare Association was represented
by Messrs Milton Roemisch, attorney, Harry Riemer, president, Virgil Gar-
wood, secretary, and Leonard Rob, treasurer.
At the conclusion of such conference, the undersigned advised all parties
that this office will go forward with the election as scheduled with the
definite understanding that such proceeding is without prejudice to the right
of any party to object to the holding of the election, the conduct of the
election, or the election report based on any acts or incidents or any con-
duct or activity heretofore engaged in by The Yoder Company or its repre-
sentative, and with the further understanding that the company will not
disseminate or post or' cause to be circularized any more literature, cards,
,letters, bulletins, or other material,between now and the conclusion of the
election, and all present bulletins or notices which the company has published
or caused to be distributed and which were the subject of our discussion
of today will be immediately removed from the bulletin boards and any
other places throughout the plant.
This understanding was concurred in and agreed to by Mr. Harvey 0 Yoder
on behalf of the company and- by the representatives of the two labor
organizations concerned.
Z+ The representatives of the Independent maintained during this conference and at the
hearing that the posters were just as inimical to the Independent as to the Union , and were
designed to favor a vote for "neither" organization ,
26 Accordm ,_ to the Independent 's representatives , Sperry did not make known his position
w,,th respect to the election until after the conference had broken up It was stipulated that
if called , Reamer, Garwood, and Rob wwould'testify that there was a gentleman' s agreement
between the Union and the Independent that if the "neither" vote was not too great neither
side would > oblect to the election However, none of the Board's representatives was a party
to this agreement and the consent election proceeded without any objection being made to
the conditions laid down in the Regional Dii ector's letter for the holding of the election
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Henry Sabbatis, one of the employees alleged to have been discriminatorily
discharged, testified that on April 1, 1942, John Miller, night shift foreman, asked
him who his vote was for ; that he replied that he was going to vote for the,
CIO ; and that Miller then said, "it's a hell of a thing after the Yoder Company
gives you a break, you turn around and double-cross them." At the time of
this conversation Sabbatis was wearing a CIO button. This conversation took
place on the floor of the assembly department. A little later Sabbatis saw Miller
near the bulletin board and Miller asked him if he had ( torn down a little box
which was then lying on the floor by the bulletin board. On, a sign above the
box was written, "CIO men drop your buttons in here for national defense."
Sabbatis denied that he had torn it down. Miller then tacked the box- back
,on the bulletin board. Sabbatis,then asked Miller.`if he had put the box up
and Miller replied in the affirmative. Miller denied that he asked Sabbatis
who he was going to vote for or that he had any conversation with Sabbatis
about the election or about the sign and box. He further testified that about
a week before the election he received instructions from Superintendent Hoobler
not to interfere with the election. According to Miller, on April 3, the day after
the election, he noticed a printed sign with a box below it on the bulletin board
about 4: 30 in the afternoon and that this sign stated, in substance, "CIO members,
throw in your buttons for National Defense." Miller denied that he had put
'the sign and box up The statements and acts attributed to Miller by Sabbatis
are consistent with the anti-union election campaign conducted by the respondent.
In the light of the fact That the campaign was designed to influence the election,
April 1, the date fixed by Sabbatis as the date that the sign and box were on
the bulletin board seems more plausible than April 3, the date set by' Miller
Furthermore, Sabbatis was a frank and straightforward witness. The under-
signed credits Sabbatis' version of the above incidents.
On April 2, 1942, a consent election was held under the auspices of the Board.
The following day the Union wrote a letter to Sperry objecting to the conduct of
the election, claiming among other things that "the management mailed out to
every employee considerable false propaganda concerning our union and in-
fluenced their employee's to vote for `neither union' or the Independent Welfare
Association." On April 4, 1942 Regional Director Sperry wrote the respondent
in substance advising it that in view of the fact that the Union had filed charges
that the respondent had violated Section 8 (1) and' (2) of the Act and had
objected to the' conduct of, the election, no election report would be issued until
an investigation of the charges and objections had been made.
CONCLUDING FINDINGS AS TO THE INDEPENDENT
The broad question at issue is whether or not the Independent was formed and
continued to exist under conditions' allowing employees that complete and
unfettered freedom of choice and, action which the Act contemplates
In November 1941, the Union began its organizational campaign In the middle
of December, employees ' began to discuss the formation of an inside union to
combat the Union and to form a strong organization for the purpose of obtaining-
economic concessions from the employer. In addition, Garwood, the only em-
ployee active in the drive for an inside union who had ever been active in the
Association, was antagonistic to the Association, which was still in existence,
,because it'had failed to secure a wage increase for him in 1933. Garwood also
felt that it was a weak organization and that it was just a question of time before
the Association was declared illegal. On December 16, 1941, the respondent took
See N. L n' B.'V. Linlc-Belt Co, 311 U S 584.
THE YODER, COMPANY 577
cognizance of the union activities in the plant and posted a general notice on its
bulletin board, purporting to advise employees of their rights under the Act
and of its neutral position in the matter. This notice must be read from the'
point of view of employees then working for the respondent in order to discover
its real meaning -
While the notice clearly states employees are free to join or not to join any
labor organization, the notice further assures employees that it is not, nor
will it ever be, necessary for an employee to "join any organization or pay dues to
any outside organization for the privilege of working for The Yoder Company 0, 27
This was a slight but inescapable hint to employees that their employer was
especiafiy opposed to the outside union'then campaigning in their midst. Al-'
though there is no-evidence that this notice provided the original impetus for an
inside organization, it is reasonable to suppose and the undersigned finds that
this notice did inform employees that as between an inside and an outside organ-
ization the respondent preferred the former in keeping with its previous policy of
fostering and aiding the Association. -
In the meantime the respondent took no steps to withdraw recognition from
the Association with which it had a contract or to put its employees on notice
that it had no connection with the new inside organization which on February 1,
1942, was formally established as the Independent. To the contrary, on February
18, the respondent replying to a charge that it was dominating the Independent
admitted that it had heard rumors about the formation of the Independent but
denied the charge of domination and interference and also denied that the Asso-
ciation was company-dominated. In the same letter, however, the' respondent
admitted that the Association might be declared illegal but stated that such a
declaration could not come from "our Company."
During the first week in March 1942, both the Union and the Independent in
the.ordei named claimed to represent a majority of the employees. The Union
requested a bargaining conference. The Independent requested recognition.
The respondent made no reply to the Independent's letter. However, it not
only replied to the Union's letter, but also made its reply available to all its
employees. In this letter the respondent pointed out that it could not meet
with the Union until the Union had proven its majority because the union com-
munications, which union representatives had been handing out, were "uni-
formly mendacious and misleading." xs Clearly, the plantwide distribution of
the respondent's letter containing the above language satisfied any doubts any
employee may have had of the meaning of the notice of December 16, 1941, and
convinced employees that the respondent was hostile to the Union, and the
undersigned so finds.
Between March 21 and 24, 1942, after the Association had agreed to dissolve,
the respondent posted the usual notice in conformity with the Board's practice
in cases of disestablishment, notifying its,employees that, it had withdrawn rec-
ognition from the Association, that the Association had been disestablished as
the bargaining representative of any of its employees, and that it would bargain
collectively in good faith with any organization selected by a majority of its
employees in an appropriate unit.
Between March 25 and 30, 1942, after April 2 had been chosen as the date for
a consent election between the Union and the Independent, the respondent
27 Emphasis supplied . It is significant in this connection that the Association did not
require the payment of dues
Y8 Apparently the respondent made public its reply because of the publicity the Union
gave its letter to the respondent and other statements concerning the respondent Such
statements by the Union do not excuse the respondent 's conduct , which the undersigned
finds constitutes interference ii ith the employees ' right to self-organization.
113024-4d-vol 47-3T - -
I
578 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
mailed out-"a job appreciation series" of 5 cards to each employee which was
designed to promote enthusiasm for his job and loyalty to his employer. About
March 29 and 30, just before the election, the respondent climaxed its campaign
against the Union by ,mailing out two large, elaborately printed and carefully
written posters to each of its employees entitled respectively "Talkin' to.myself.
in a Voting Booth" and "THE YODER COMPANY SPEAKS." The first of these posters
was obviously calculated to make each prospective employee voter stop and
think about the coming election and to impress upon each employee the necessity
for voting the "right" way and for "old friends," and that the "Union men"-
were "radicals and,reds." The Independent contends, that this poster is as much
anti-Independent as anti'Union.' It is true that there 'are passages in' this
poster which when isolated from the entire context might be interpreted as a
suggestion that employees vote for "neither" organization. But the only rea-,
sonable interpretation of the poster as a whole with its continuous harping on
the "right" way to vote and its admonition not to vote in the "first space" is
that the respondent was primarily interested in telling its employees to vote for
the Independent whose name appeared in the right-hand square in the' ballot,
and in no case to vote for the Union, the square on the left side of the ballot,
or the first space.' The "old-friends" were not the outsiders or ""Union men,"
and it follows that the phrase "radicals and reds" was meant to designate the
Union.
The respondent mailed out its second large poster to all employees the following
day. The employee is asked in this poster to consider the character of "the leader-
ship" and as to whether it is "unselfish, law-abiding and thoroughly American."
This refers again to the employer's lack of faith in the Union, as stressed in the
respondent's letter of March 7, and in the first poster wherein the opprobrium .
"radicals and reds" was directed at the Union., In urging its employees to.vote
for the "most friendly" of relationships, again the respondent lays stress on the
outside or unfriendly aspect of the Union and favors "old friends" or the
Independen00
Foreliian•Miller's questioning of Sabbatis as to how he was going to vote, his
reprimand of Sabbatis, and his placing of a box and anti-Union sign on the re-
spondent's bulletin board immediately before the election were also d'rected-
toward persuading the employees to reject the Union at the polls.
The respondent contends in its brief that the post cards and posters favored
neither the Union nor the Independent and were merely "a frank and open state-
ment" of the respondent's opinions, lacking any coercive effect. The undersigned
is convinced and finds, however, that these statements were a subtle and successful
attempt on the respondent's part to influence its employees in the coming election.
ze The lower half of the ballot reads from left to right as follows :
Mark an X in the square
below if you desire to
be represented by
Mark an X in the square
below if you desire to
be represented by
UNITED ELECTRICAL,
RADIO & MACHINE
WORKERS OF AMERICA, NEITHER
LOCAL 735
(C.I.O.)
Mark an X In the square
below if you desire to
be represented by
THE INDEPENDENT
WELFARE ASSOCIATION
80 The respondent's campaign cannot be said to have requested a "neither" vote when
viewed in the light of the election results 169 votes were cast for the Independent, 160 for
the Union and only 9 for "neither." }
THEE Y'ODEiR COMPANY- 579,
and were part of a campaign which began in December 1941 to steer'its employees
away from the Union and into an organization made up solely of its own
employees.
Although approximately 3 months had elapsed between the first stages of
organizational activity on behalf of the Independent in mid-December of 1941,'
and the respondent'•s disestablishment of the Association between March, 21,and_
March24, 1942, by-its published notice, no step was taken by it to impress upon
its employees the dissociation of these two "inside" unions. On the contrary,
in the interim the respondent, by the December 16 and March 7 notices, above
described, had registered its antipathy to the Union and had thus fostered the
growth of the Independent. That the respondent had knowledge of the existence
of the Independent is shown by its letter dated February 18, 1942, addressed to
the Board. From October 1941, the month in which its last meeting took place,-
until its dissolution by the respondent, the Association lay dormant. This inertia,
the'respondent's failure to dispel the identity of the two "inside" unions with one
another during this period, and the respondent's expressed hostility to the Union,
created a set of circumstances for which the respondent was responsible, which
gave its employees reasonable grounds to believe that the Independent had
evolved from the Association" Despite its protest of neutrality, the respondent,'
immediately following its disestablishment of the Association, and shortly before)
the crucial election for a bargaining representative, by its forceful campaign
against the Union and in favor of the Independent, established conclusively in
the minds of its employees that the Independent was to serve as a substitute
for the Association. Certain of the circumstances were created by the respondent'
and others were seized by it and woven into the fabric of successorship. It is
found by the undersigned that the Independent is the successor to the Association,
and. that the latter's taint of legality is consequently communicated to the
former.'
It is also found , irrespective of the Independent's successorship to the Asso-
ciation, that during the Independent's formative period between mid-December
1941 and the election of April 2, 1942, the respondent's employees, by reason of
the above unfair labor practices, were not accorded the full freedom of choice of a
representative to which they were entitled.'
The respondent, by the above-described course of conduct, dominated and inter-
fered with the formation and administration of the Independent, and thereby
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
The undersigned also finds that the respondent, by the notice posted on the
bulletin board on December 16, 1941, the publication of its letter to the Union
of March 7, 1942, the mailing of the post-cards and the'posters, the posting of the
posters, Miller's,questioning and reprimand of Sabbatis, and his posting on two
occasions of the anti-union signs all above described,, has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of theAct.
ei Garwood's disclaimer to the employees whom he solicited of any connection between
the Association and the Independent was merely the expression of one officer in the Associa-
tion and cannot be accepted as any guarantee to the respondent's employees that in fact they
were allowed that unfettered freedom of choice which the Act contemplates.
Westinghouse Electric d Mfg. Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2) ( aff'd per
,
3.1
curiam 312 U.' S 600, enf'g as mod . Matter of Westinghouse Electric d Mfg. Co, and
United Electrical Radio & Machine Workers of America, etc ., 18 N. L. R. B. 300).
83 See Valley Mould and Iron Corporation v. National Labor Relations Board, 116 F. (2d)
760 (C. C. A. 7). -
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
C. Other alleged interference , restraint ,' and coercion
The complaint alleged that through February and March, 1942, the respondent.
permitted the members of the Independent to solicit for membership in the plant
during working hours in violation of company regulations against employees
moving about the plant, whereas such a privilege of solicitation was denied the,
Union. It was established through various witnesses that a rule prohibiting,
employees from moving freely from one plant to another was in existence during
this period 34 Kolk testified without contradiction that on numerous occasions he
had seen both Reamer and Garwood, who worked in plant No. 2, talking separately
to employees in plant No 1. Kolk was working in both plant No. 1 and No. 2
during February and March 1942, inasmuch as he was doing maintenance work.
Kolk admitted that he did not hear what Reamer and Garwood were talking
about. Edward Hoobler, superintendent of plant No. 1, testified without contra-
diction that there was supposed to be no talking among employees-in the plant
during working hours, except when talking was absolutely necessary regarding the
work, and that on at least two or three occasions he had reprimanded Haller,
Kolk and Garwood for talking while away from their places of work to other
employees. He further testified that on none of these occasions did he hear the
conversation or know what the men were talking about. Hoobler's conduct toward
the inen was the same on all occasions, regardless of whether they belonged to,
the Union or to the Independent The evidence further reveals that Reamer
and Garwood, as well as Kolk, were employees who, during the period in question,
were entitled to go from one plant to another in the course of their duties. In
view of the foregoing the undersigned finds that the evidence does not substan-
tiate the allegation that the respondent permitted solicitation of membership in
its plant by the Independent during working hours in February and March,' 1942,.
while denying such permission to the Union, and will recommend that the com-
plaint be dismissed as to said allegation .35
D. The discharges
'The complaint alleged that Frank Holpuch and Henry Sabbatis were dis-
charged on April 14, 1942, because of their membership and activities in the
Union and because the respondent wished to discourage membership in the
Union and encourage membership in the Independent. In its answer the re-
sl'ondent alleged that both men were discharged for cause.
8t The respondent operated two plants during 1941 and 1942 known as plant No 1 and
plant No 2: In conformity with requirements of the Cleveland Ordnance Department,
employees engaged in work in plant No 1 were required to wear a certain colored 'button
so that they could be spotted if they were in plant No. 2 for any reason ; likewise, employees
in p ant No 2 wore a different colored button so they could be readily spotted in plant No. 1.
Employees doing maintenance work were permitted to work in either plant.
333 In addition to the above, the undersigned also finds that several other allegations of
the complaint setting forth violations of Section 8 (1) of the Act are not supported by the
evidence . The evidence adduced concerning these alleged unfair labor practices is set forth
in Section III D , infra . These allegations are in substance as follows : On or about March 18,
1042, L W. Morgan ,' personnel manager, questioned Frank Holpuch about his union sym-
pathies and whether he would be satisfied with a company union ; on or about March 28,
1942, Jesse Kephait, a supervisor , violently abused Frank Holpuch with profane language;
and on or about April 4, 1942, Earl Biederman , a supervisor, transferred Frank Holpuch
to an inferior position . As noted in Section III A, supra, the undersigned does not find
that Buchm 's statement to Haller or his assault upon Haller was a violation of Section 8
(1) of the Act as the-Board alleged . Consequently , the undersigned will likewise recom-
mend that the complaint be dismissed with respect to all of these allegations.
THEW YODEIR COMPANY ^ 581
Frank Holpuch, first worked for the respondent from August 27 to September
2, 1941 . He then quit his job. He again sought work at the respondent's
,plant on March 18, 1942, and worked there until April 14, 1942, the date of
-his discharge.
When Holpuch applied for work he was interviewed by L. W. Morgan, per-
sonnel manager . He testified that Morgan asked him if he had belonged to any
organization at the Republic Steel Company, where he had previously worked,
l 'and that when he replied that he had belonged to a union'at Republic, but no
longer belonged-to it, Morgan said to him , "Well, we have a lot (of union trouble
here. We have a company' union, how would you like a company union?"
Holpuch replied that he would like a company union if it was not just like the
one they had at the plant when he had previously worked there. He further
testified that after he had made this reply Morgan then stated to him they were
going to give him' a "break" and would pay him a nickel an hour more than any
other man on the same job. Morgan denied that he asked Holpuch what labor
organization he belonged to or that he cffered him more pay than other men
doing similar work.36 From his observation of the witnesses and in view of the
fact that Holpuch's testimony was not plausible in respect to certain incidents,
-the undersigned credits Morgan's denial of the above conversation 3'
Holpuch did not join the Union nor did he engage in any union activities
while employed by the respondent. One day, however, after he had been work-
ing there about two weeks he picked up a sheet of paper which was'lying on
the bench in the plant. This sheet of paper contained a song about the Inde-
pendent which had been circulated by the Union. He showed this paper to
Charles Waters, another employee.
Following this incident, according to Holpuch, he did not get along with Jesse
Kephart, his foreman. He testified that Kephart called him "the dirtiest names
out" 'and told him 'he was not worth a nickel and that' he ought to be with
Hitler. Kephart, who was foreman of the labor gang, testified that Holpuch
was employed in the labor gang in part in moving machinery and driving a truck
and for the most part at sweeping the floor, and that as his period of employ-
ment progressed Holpuch became, less efficient at his work, so that he had to
show him how to perform his duties Kephart stated that he had an argument
with Holpuch on one occasion when the latter informed him that he should be
getting a dollar an hour. Kephart told him he was not worth 10 cents an hour.
'He denied that he used abusive or profane language toward Holpuch. There is
no evidence that Kephart believed that Holpuch was in any way connected with
the Union or opposed to the Independent or that the song incident was brought
to his attention. Assuming, arguendo, that Kephart used abusive, language to-
ward Holpuch, there is no evidence that this was because of the latter' s union
membership or activities. Saturday, March 28, 1942, Kephart sent Holpuch out to
burn some trash. He stayed away from his work about 20 minutes. While he
was at the incinerator, Superintendent Hoobler noticed Holpuch standing there
and complained to Kephart, whereupon Kephart went out and brought Holpuch
back to his work. Thereafter Holpuch was transferred to the department of
Foreman Biederman, where he worked for a week or 10 days at the same type
of work, sweeping the floors and general labor work, that he had performed for
80 On his application for employment , Holpuch was asked to list organizations to which
he belonged "( other than labor )". The word "None" appears after this'question.
87 It is particularly incredible that Morgan should have ' offered Holpuch, an employee
who had previously worked for only 6 days for the respondent , 5 cents more an hour than
the rate paid older and regular employees for the same work.
582 DECISIONS OF -NATIONAL "L'ABO'R' RELATIONS BOARD
Kephart 98 On several' occasions Biederman reprimanded Holpuch for loafing on
the job and failing to make the department look neat. Holpuch complained that
there was too much work to do. Shortly thereafter, Biederman informed
Hoobler that he would be unable to keep Holpuch because the latter could not
handle the work. Hoobler agreed that Holpuch should be discharged. Bieder-
man then informed Holpuch that he would have to discharge him becauses• he
,was unable to do the work. On Holpuch's employment record there appears the
following entry opposite the date April 14, 1942: "not adaptable to our type of
,work." The undersigned is of the opinion and finds that Holpuch was not dis-
charged because of his union activities or in order to assist the Independent.
Henry Sabbatis was employed on September 15, 1941, and first worked on the
day shift in the assembly department stockroom under Foreman Biederman.
. Some time in October, Sabbatis requested,and was given an opportunity to work
-on the assembly floor. After about 2 weeks, he was shifted to the stockroom on
the night shift at the request of Foreman Miller, who needed a stock clerk.
Shortly before his discharge on April 14, 1642, he was again transferred to the
day shift in the stockroom working under Foreman Biederman.
Sabbatis was a member of the Union during his entire period of employment.
On,April 1, 1942, he was wearing his union button on the occasion of his conversa-
tion with Foreman Miller, at which time the latter asked him how he was going
to vote in the election and Sabbatis, replied be was going to vote for the C. I. 0.,
whereupon Miller accused Sabbatis of "double crossing" the company. Otherwise
Sabbatis was not particularly active in the Union.
Biederman and Miller both complained to Sabbatis on numerous occasions about
his work. Biederman complained to Sabbatis that he was talking too much to
other employees and that he was absenting himself from the stockroom more than
he should in order to do the work outside the stockroom which was necessary for
. him to do. On the first night that he worked for Miller, the latter found Sabbatis,
,asleep in the stockroom, and again on a later occasion Miller found him asleep
when he was supposed to be on duty. Biederman finally reported to Hoobler that
he had given Sabbatis various opportunities to settle down and do the work of
which he was convinced Sabbatis was capable, but that Sabbatis would not apply
himself to his work. Biederman then requested Hoobler's permission to discharge
Sabbatis. Sabbatis was discharged by Biederman and not by Miller, whom the
undersigned has found made anti-union remarks to Sabbatis. Sabbatis admitted
that he had been caught sleeping on two occasions while working under Miller
and had been late returning from lunch on several occasions while working under
Biederman . Under these circumstances, the undersigned is convinced and finds
that Sabbatis was discharged for cause.
Inasmuch as the undersigned has found the respondent did,not discriminate in
respect to the hire and tenure of employment of Frank Holpiich and Henry Sab-
batis the undersigned will recommend that the complaint be dismissed as to these
employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above occurring in con-
nection with the operations of the respondent described in Section I above, have a
sa There is no evidence to substantiate the allegation that on or about April 4, 1942,
Biederman transferred Holpuch from his usual employment to sweeping floors, moving
machinery and replacing stock because of his union membership or activity, or that Bieder-
man knew about the song incident, the only activity engaged in by Holpuch connected ,
in any way with the Union.. Furthermore, the work performed by Holpuch after his
transfer was no different from that which he had previously done.
THE YODEiR COMPANY 583
close, intimate, and substantial relation 'to trade, traffic, and commerce ainorig 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, the un-
'dersigned, will recommend that it cease and desist therefrom and take certain
affirmative action necessary to effectuate the policies of the Act.
The undersigned has found that the respondent dominated and interfered with
the administration of the Association. Because of its previous disestablishment at
the request of the Board, the undersigned will not recommend that any further
notice of disestablishment be posted. The undersigned has also found that the
respondent dominated and interfered with the formation and administration of
the Independent. The undersigned further finds that the effects and consequences
of the respondent's domination and interference with the Independent constitute
a continuing obstacle to the free exercise by its employees of the right to self-
organization and to bargain collectively through representatives of their own
choosing. The Independent was created and it has been utilized by the respond-
ent as an instrumentality to defeat the rights of its employees under the Act. For
these reasons the Independent is incapable'of serving the respondent's employees
as a genuine collective bargaining agency. Accordingly, the undersigned will
recommend that the respondent disestablish and withold all recognition from
the independent as the representative of.any of its employees for the purposes of
dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment."
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, Local #735 (CIO)
and Independent Welfare Association, Inc., are labor organizations, and the
Yoder Company Employees Association was a labor organization, within the
,meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the administration of the Yoder Com-
pany Employees Association the respondent has engaged,in and is engaging in
unfair labor practices within the meaning of Section 8 (2) of the Act.,
3. By dominating and interfering with the formation and administration of
Independent Welfare Association, Inc, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (2) of the Act.
4. By interfering with, restraining and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The respondent has not engaged in unfair labor practices within the meaning
of Section 8743) of the Act.
7. The respondent has not violated Section 8 (1) of the Act by (a) abusing
Frank Holpuch with violent language; (b) transferring him to an inferior posi-
tion ; (c) questioning him concerning his union sympathies and whether he would
be satisfied with a company union; (d) stating to Haller that soliciation of
J9 See N. L. R. B. v. Newport News Shipbuilding and Dry'Dock Company, 308 U. S. 241.
,584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership for the -Union was the only means -by which he could retain his,
employment and assaulting him; and (e) permitting the Independent to solicit
for membership in the plant through February and March, 1942, and denying this
privilege to the Union.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, The Yoder Company, its officers,
agents, successors and assigns , shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Yoder Company
Employees Association , or with the formation and administration of Independent
Welfare Association , Inc., or with the formation or administration of any other
labor organization of its employees ;
(b) In any other manner interfering - with , restraining , or coercing its em-
ployees in the exercise of their right to self-organization , to form , join, or assist
labor organizations, to bargain collectively through representatives , of their own
choosing , and to engage in concerted activities for the purpose of collective bar-
gaining, or other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will effec-
tuate the policies of the Act:
(a) Withhold all recognition from Independent Welfare Association , Inc., as
the representative of any of its employees for the purpose of dealing with the
respondent concerning 'grievances , labor disputes , wages , rates of pay , hours of
employment , or other conditions of employment, and completely disestablish Inde-
pendent Welfare Association , Inc , as such representative ;
(b) Post immediately in conspicuous places throughout its plant in Cleveland,
Ohio, and maintain for a period of at least sixty ( 60) consecutive clays from the
date of posting , notices to its employees stating: '( 1) that the respondent will not
engage in the conduct from which it has been recommended that it cease and
desist in Paragraph 1 (a) and (b ) of these recommendations ; ( 2) that it will
take the affirmative action set forth in Paragraph 2 (a) of these recommenda-
tions; and (3) that the respondent 's employees are free to become or remain
members of United Electrical , Radio & Machine Workers of America, Local
#735 (CIO) ;
(c) Notify the Regional Director for the Eighth Region in writing within ten
(10) days from the receipt of this Intermediate Report what steps the respondent"
has'taken to comply herewith.
It is further recommended that, unless on,or before ten (10 ) days from the
',"receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply. with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid
It is further recommended that the complaint be dismissed.as tro Frank Hol-
puch, Henry Sabbatis and Louis Wood.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent has violated Section 8 (1) of the Act by (a), abusing Frank
Holpuch with violent language; (b) transferring him to an inferior position;
(c) questioning him concerning his union sympathies and whether lie would be
satisfied with a company union; (d) stating to Haller that solicitation of mem-
bership for the Union was the only manner in which he could retain his employ-
ment and assaulting him; and (e) permitting the Independent to solicit for mein-
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r
THEE YODER COMPANY , 585
bership in the plant through February and March, 1942, and denying this privilege
to the Union.
As provided in Section 33, of Article II of the Rules and Regulations,of the
National Labor Relations Board, Series 2-as amended, effective October 14,
1942,-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D C, an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as it relies upon, to-
gether with the original and four, copies of a brief in support thereof. As further
provided in said Section 33, should any party desire permission to argue orally
before, the Board, request"therefor must be made in writing to the Board within
ten (10) days after the date of the order transferring the case to the Board.
WEBSTER POWELL,
Trial Ewaminer.
Dated : October 30, 1942.
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