Underwood Machinery Co.

National Labor Relations Board - Board Decisions

Jul 30, 1947

74 N.L.R.B. 641 (N.L.R.B. 1947)

In the Matter Of UNDERWOOD MACHINERY COMPANY and INTERNA-
TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA (C. I. 0. )
Case No. 1-C-0629.-Decided July 30, 1947
Mr. Leo J. Halloran, for the Board.
Messrs. Benjamin E. Gordon and Maurice Epstein, of Boston, Mass.,
for the respondent.
Mr. John J. O'Connell, of Boston, Mass., for the Union.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
On May 13, 1946,, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Theerafter the respondent
filed exceptions to the Intermediate Report and a supporting brief.
Upon request of the respondent, and pursuant to notice, the Board held
a hearing for the purpose of oral argument at Washington, D. C., on
October 8, 1946. The respondent was represented by counsel and par-
ticipated in the argument; the Union did not appear.
Thereafter, on October 30, 1946, the Board ordered that the record
be reopened to receive additional evidence. A further hearing was
accordingly held before the same Trial Examiner at Boston, Massa-
chusetts, on January 6, 1947. On-February 7, 1947, the Trial Exam-
iner issued his Supplemental Intermediate Report, a copy of which
is also attached hereto, reaffirming the conclusions of law and recom-
mendations made in his Intermediate Report of May 13,1946. There-
after, the respondent filed exceptions to the Supplemental Intermedi-
ate Report and a supporting brief. Upon request of the respondent,
and pursuant to notice, a further hearing for the purpose of oral
argument was held at Washington, D. C., on April 29, 1947. Only
the respondent appeared and participated in the argument.
74 N. L. R. B., No . 126. 641
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has considered the rulings made by the Trial Examiner
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Supplemental Intermediate Report, the
exceptions and briefs filed by the respondent, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the exceptions and additions noted
below.
1. The Trial Examiner has found, and we agree, that the respond-
ent, by refusing, on and after November 29, 1944, to bargain with the
Union, has engaged in unfair labor practices within the meaning of
Section 8 (1) and (5) of the Act. The respondent admits that it has
refused to bargain with the Union, but in justification of the refusal,
contends, in part, that in a prior representation proceeding,' as a result
of which we certified the Union as the exclusive bargaining representa-
tive of a unit of the respondent's employees, we exceeded our power by
conducting an election without first designating the appropriate unit.'
We find no merit in this contention.
At the hearing in the representation proceeding, the respondent
urged the exclusion of employees in its erection and maintenance de-
partment from the plant unit sought by the Union. We foLnnd, how-
ever, that these employees could properly function as a part of a unit
comprising all the respondent's production and maintenance work-
ers, but that, because of the difference between their working condi-
tions and those of the other workers in the plant, they should be given
an opportunity to express their choice as to whether or not they desired
to be included. We accordingly ordered two separate elections to be
held, one among the employees in the erection and maintenance de-
partment and the other among all other production and maintenance
employees, and stated that if the Union secured a majority of the votes
cast by the employees in the second group alone, we should find that
that group constituted the appropriate unit, but that if, in addition, a
majority of the employees in the erection and maintenance group se-
lected the Union as their representative, we, should include them in
the unit. In the elections, held on November 17, 1944, the Union won
in both groups; and on November 27, 1944, no objections having been
filed by either party, we issued our Supplemental Decision and Certi-
fication of Representatives, in which we found that the two groups to-
13fatter of Underwood Mactwerp Company , Case No 1-R-2044 , 59 N L R B 42, and
Supplemental Decision and Certification of Representatives ( unpublished ), dated Novem-
ber 27, 1944 -
2 A similar contention was made by the respondent in a motion to vacate the Board's
certification in the representation proceeding, filed on January 6, 1945 . On January 15,
" 1945, the Board denied the motion.
UNDERWOOD MACHINERY COMPANY 643
gether constitute an appropriate unit, and certified the Union as the
exclusive bargaining representative of the employees in said unit.
In attacking the validity of this procedure, the respondent relies
upon the Marshall Field case,3 in which the Circuit Court of Appeals
for the Seventh Circuit held that we had erred in failing to designate
the appropriate unit before holding an election. However, we have
consistently followed the practice of conducting so-called Globe elec-
tions, similar to that described above, to determine what unit pattern
is desired by the employees themselves where, as in this case, the inter-
ested parties advocate different units, one of which would include the
other, and either of which might well be deemed appropriate for col-
lective bargaining purposes 4 This practice has not been questioned
by any other Circuit Court of Appeals.'
2. The respondent also contends, in justification of its refusal to
bargain, that the Union does not represent an uncoerced majority of
the employers in the bargaining unit. In support of this contention,
it offered to prove at the original hearing that some of its supervisory
employees engaged in specified pro-union activities both before and
after the election of November 17, 1944, "and in general interfered
with the employees' freedom of choice and in their determination as
to whether or not they wanted a union to represent them for the pur-
poses of collective bargaining." The Trial Examiner denied the offer
of proof, but we subsequently reopened the record for the purpose of
receiving evidence with respect to the alleged interference 6 On the
3 Marshall Field and Company v. N. L. R . B., 135 F. ( 2d) 391 (C. C. A. 7).
4 See Tenth Annual Report of the National Labor Relations Board, p. 35.
a See, for example, Glen Alden Coal Company v. N. L. R. B., 141 F. (2d) 47 (C. C. A. 3),
in which the Court enforced the Board 's 8 (5) order , notwithstanding the employer's con-
tention that the Board had abused its discretion in finding , on the basis of a Globe election,
that foundry employees , apart from other employees in the plant , constituted an appro-
priate bargaining unit.
e In so doing , however , we did not decide , nor should our action be construed as holding,
that an employer can, as a matter of right , urge the misconduct of his own supervisors In
interfering with an election as an excuse for refusing to bargain with the certified repre-
sentative of his employees . On the contrary, we are convinced that such a holding would
be both inequitable and administratively unsound. Not only would it permit an employer
to profit by wrongdoing for which , under our decisions , he himself is responsible, but it
would deprive our certifications of the finality necessary for effective enforcement of the
Act and would serve as an invitation to anti -union employers to permit or actually en-
courage supervisors to interfere in the self -organizational activities of rank and file em-
ployees in order, later , to avail themselves of such conduct to avoid or defer the perform-
ance of their statutory obligation to bargain . Cf. Anthony and Sons v . N. L. R. B., decided
June 23, 1947, 163 F. (2d) 22 ( App. D . C.). At the same time, we are not unmindful
of the fact that the interests of the employees , as well as of the employer , are involved.
Clearly they should be heard to question the validity of an election because of such inter-
ference.
In addition , although we reject the respondent 's position that it is entitled to assert its
own alleged wrongdoing , in the form of supervisory interference with an election, as a
defense in an 8 (5 ) proceeding , we nevertheless may, on our own motion , investigate or
consider allegations of such interference when it seems necessary to do so, regardless of
how the matter comes to our attention ; and we will , as stated in Matter of Maywood
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence adduced, we agree with the conclusion of the Trial Examiner
in his Supplemental Intermediate Report that it does not appear that
there was such interference by supervisors with the election, or with
the employees' freedom of choice therein, as to require us to vacate
our certification of the Union?
The evidence offered by the respondent on this issue related to the
conduct of Jesse Bowser and Leo Griffin. Bowser, as foreman of
the erection and maintenance department, was admittedly a super-
visory employee; but the only conduct on his part which can be
regarded as coercive was his statement to Griffin that Griffin would
have to join the Union. Since this incident took place early in Sep-
tember 1944, over 2 months before the election, and stands in isolation,
we agree with the Trial Examiner that it was not so related to the
election as to have had a probable effect upon the employees' action
at the polls. The respondent claims that Griffin was assistant fore-
man under Bowser, and therefore also a supervisory employee. On
the record as a whole, however, we are convinced, and we find, that
Griffin's duties and authority, prior to the election, were not such as
to bring him within our definition of that term, or to make his union
activities unlawful. Nor were the circumstances such that employees
could reasonably regard him as a representative of management in his
union activities.
In so finding, we note the following circumstances : (1) the fact
that the respondent did not at any time before the election formally
notify either Griffin or the other employees of his appointment as
assistant foreman, even after Griffin was assured by Personnel Man-
ager Cormack that such notification would be given; (2) the fact
that, although Griffin, in addition to his regular duties, took charge
of the erection and maintenance department at Bowser's request when-
ever Bowser was absent, he had no authority when Bowser was pres-
Hosiery Mills, 64 N. L R. B. 146 , set aside an election if it appeals that the employees
have been precluded from exercising a free choice of representatives by antecedent conduct
or episodes which were both coercive in character and so related to the election , in time or
otherwise , as to have had a probable effect upon the employees' actions at the polls. In
this case , therefore , we have given the respondent an opportunity to present evidence in
support of its allegations, not on the theory that it is entitled , as a matter of right, to
urge its own wrongdoing as a defense , but in order that we' may determine what action,
if any , is needed to protect the interests of the employees.
We also note that, although the respondent alleged that the interference complained of
took place without its knowledge until such time as it filed its petition to vacate the
certification in the representation proceeding , the record shows, as the Trial Examiner
has found , that the respondent had knowledge , before the election , of at least some of the
matters on which it now relies-namely , the activities of Griffin Having failed to file'
objections to the election within the time prescribed by our rules and regulations, the
respondent would, in any event , be precluded from urging the matters of which it then
had knowledge as a defense in this proceeding
7 Although he did not concur in the Board ' s action reopening the record , Mr Houston is
in agreement with the conclusion reached that the respondent violated Section 8 (5) of
the Act.
UNDERWOOD MACHINERY COMPANY 645
ent; (3 ) Bowser's statement, when Griffin questioned his eligibility
to join the Union, that Griffin was "nothing but what I make you," and
his use of a vulgar expression to indicate the lowliness of Griffin's
position ; ( 4) the lack of any clear showing that the employees gen-
erally regarded Griffin as assistant foreman or as one who spoke for
management , and the evidence that on at least one occasion some of
them questioned his authority to give orders on the ground that "Bow-
ser said he was running things and Griffin had nothing to say"; and (5)
the fact that such recommendations as Griffin made as to discipline
appear to have been merely in the nature of reports , usually to Bowser,
and the lack of any evidence that the respondent took any disciplinary
or other personnel action because it was recommended by Griffin, even
during Bowser's absence . In sum, the evidence negatives , rather than
establishes , that Griffin had authority to hire, promote , discharge, dis-
cipline, or otherwise effect changes in the status of employees , or effec-
tively recommend such action , which is our test of supervisory status.
In view of our finding as to Griffin 's lack of supervisory status, it is
unnecessary for us to pass upon the question whether, had he been a
supervisor , his conduct would have constituted interference with the
election."
3. The Trial Examiner has found that the respondent , by laying
off Frank Cornelious on December 29, 1944, for a period of 1 week,
discriminated in regard to his hire and tenure of employment , in viola-
tion of Section 8 (3) of the Act . We do not agree.
The record shows, and the Trial Examiner has found , that during
December 1944, Frank Underwood , the respondent 's president, and
George Cormack , its personnel manager, after receiving reports from
Foreman Atkins of his belief that a deliberate slowdown was taking
place, decided to make some disciplinary lay-offs , but before doing
so, requested Atkins to make a list of the subassembly operations in
his department , estimate the time required for each operation, and
check the actual time consumed against the estimate. The written re-
port subsequently prepared by Atkins and his assistant, John Lalle-
mand, and submitted by Atkins to Underwood and Cormack , indicated
on its face that employees Cornelius , Galinis, Farquhar , and Stewart
had the lowest production records. With respect to Cornelious and
Stewart, whose records were identical because they were engaged on
8 We note that the respondent offered no evidence whatever to show, as it had specifi-
cally alleged in connection with its petition to vacate the Board 's certification of the
Union, that numerous employees had been advised by supervisory employees that "unless
they voted for the Union they would be unable to remain in the Company's employ," and
that "if they did not pay dues to the Union , they would be unable to remain employees
of the Company ," although counsel for the respondent stated at the original hearing herein
that the offer of proof was in substance the same as the respondent 's petition to vacate
the Board's certification of the Union and supporting brief.
646 DECISIONS Off' NATIONAL LABOR RELATIONS BOARD
the same operation, and were therefore timed together, Atkins further
reported that in his judgment, based on his previous observation of
the work of the two men with other employees, it was Cornelious and
not Stewart who was causing the slowness on that operation. Cor-
nelious, Galinis, and Farquhar were thereupon laid off, but Stewart
was retained.
In finding Cornelious' lay-off discriminatory, the Trial Examiner
has relied principally on the fact that Stewart was not laid off, although
his record was the same as that of Cornelious. In view of the reason-
able explanation given by Atkins, however, we attach no significance
to this fact. Furthermore, although the record made by Atkins was
not as complete as might be desirable, and apparently failed to take
into account all the factors that may have been responsible for the
unusual slowness in the work of the three men laid off, on the record
as a whole, we find no substantial evidence to support the Trial Ex-
aminer's finding that Atkins' conclusion that these three men were
slowing down was reached apart from the record, or his further finding
that Cornelious vas not so slow as the respondent sought to prove, and
that, but for his union membership and activity, he would not have
been laid off.
Although Atkins apparently had a bona fide belief that a union-
sponsored slowdown had taken place in his department, and that
Cornelious had participated therein, the record indicates, as the Trial
Examiner has found, that this belief was incorrect, and that whatever
slowness existed was from a variety of other reasons. If a union-
sponsored slowdown had in fact taken place, we do not believe the
discipline given Cornelious for participation therein would have been
discriminatory under the circumstances of this case. We have never
interpreted the Act to mean that it is unlawful for an employer to
discipline an employee for any form of union or concerted activity,
no matter how indefensible.9 In our opinion, a slowdown in a plant
working on a high priority war contract is not a type of concerted
activity which should be protected against reasonable disciplinary
action, which a week's lay-off clearly was. But in view of the finding
that actually a union-sponsored slowdown did not take place, the
issue posed is whether it is an unfair labor practice for an employer
to discipline an employee in the mistaken belief that he has engaged
in an unprotected type of concerted activity. We do not think that
B See , e g, Matter of Harnischfeger Corporation , 9 N. L. R. B 676 , where the Board
said .
We do not interpret [Section 7 of the Act] to mean that it is unlawful for an em-
ployer to discharge an employee for any activity sanctioned by a union or otherwise
in the nature of collective activity The question before as is, we think, whether this
particular activity was so indefensible , under the circumstances, as to wairant the
respondent , under the Act, in discharging the stewards for this type of union activity.
UNDERWOOD MACHINERY COMPANY 647
punishment visited in the ordinary course of operations because of the
mistaken belief that the employee was engaged in unprotected activity
can be said to have the purpose or effect of discouraging union member-
ship or legitimate union activity. Because it may be unfair does not
make it discriminatory io
It is not clear whether the Trial Examiner's finding that Cornelious'
"union membership and activity" was' the motivating factor in his
lay-off has reference to considerations other than his participation in
a presumed union slowdown. We find no evidence to suggest that
the respondent was motivated to discriminate against him because of
union membership as such or other union activities. The Trial Ex-
aminer's finding that Cornelious' later permanent lay-off was non-
discriminatory, and the fact that Cormack troubled to caution Cor-
nelious against making the transfer to the department from which he
was permanently laid off because it would mean loss in his depart-
mental seniority, militate against any conclusion that the respondent
was seeking to discriminate against Cornelious at the time of the lay-
off for 1 week.
We also note that, although Galinis and Farquhar were also mem-
bers of the Union, it is not alleged that their lay-offs because of the
supposed slowdown were discriminatory. On the record as a whole,
therefore, we are of the opinion, and we find, that Cornelious' lay-off
on December 29, 1944, was not violative of Section 8 (3) of the Act;
and we shall accordingly dismiss the entire complaint as to him.
4. We do not agree with the Trial Examiner's conclusion that the
respondent, by laying off John Donnelly on January 7, 1946, for a
period of 1 week, discriminated against him because of his union
membership and activity.
As set forth more fully in the Intermediate Report, on the day of
the lay-off, Donnelly, while waiting to get stock for a job to which
he had been assigned, asked employee Wilbur Frost whether he was
going to stay in the Union. Frost stopped work to reply, and the
two men talked for several minutes. Cormack, who saw them talking,
later questioned Frost about their conversation, and was told by him
that Donnelly had been asking him to pay up his back dues in the
Union. When Cormack reported the matter to Underwood, it was
decided to lay Donnelly off for a week, and Donnelly was so notified
by his foreman, and warned that he would be discharged if he talked
union business during working hours in the future.
In finding the lay-off discriminatory, the Trial Examiner has relied
particularly upon the respondent's failure to warn the employees that
10 But compete the different situation and result in Matter of Mid-Continent Petroleum
Co, 54 N L It B 912, where a mistaken beliet that employees who actually only engaged
in protected strike activity had been among those who participated in a sit -down, was held
not to be a defense to a refusal to reinstate the lawful strikers.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplinary action would be taken against them for talking about-
union subjects during working time, and the fact that there had been
no rule against talk of any kind during working hours. However,
Donnelly admitted at the hearing that he knew that he was "not sup-
posed to talk union activities on company time" and that his conver-
sation with Frost was "a breach of that rule." Furthermore, it is
clear that by engaging Frost in conversation, Donnelly interfered to
some extent with Frost's work. Under these circumstances, a week's
lay-off, even in the absence of previous warning or an express rule
against talking during working hours, does not appear to have been
so unreasonable a disciplinary measure as to impel the inference that
the respondent's real motive was discriminatory. Accordingly, even
though the circumstances are somewhat suspicious, particularly when
viewed in the light of the respondent's discriminatory treatment of
other employees, we do not find that Donnelly was laid off because of
his union membership and activity, and we shall accordingly dismiss
the complaint as to him.
5. We find without merit the respondent's argument that various
statements imputed to it disparaging the Union were privileged under
the constitutional guarantee of free speech. Whether or not any par-
ticular statement was coercive, it is clear that all were integral parts
of a coercive course of conduct on the part of the respondent, designed
to undermine and defeat the Union, and therefore not within the
privilege claimed.
ORDER'
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Underwood Machinery Com-
pany, Boston, Massachusetts, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively in respect to rates of pay,
wages, hours of employment, and other conditions of employment with
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (C. I. 0.), as the exclusive representa-
tive of all its production and maintenance employees, including the
employees in the erection and maintenance department, toboggan hoist
department, and shipping employees, but excluding the engineering
department employees, sub-foremen, assistant foremen, foremen, office
clerical employees, guards, and all other supervisory employees with
authority to hire, promote, discipline, or otherwise effect changes in
the status of employees, or effectively to recommend such action;
UNDERWOOD MACHINERY COMPANY 649
(b) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (C. I. 0.); or in any other labor organization of its employees,
by discharging, laying off, or refusing to reinstate any of its employees,
or in any other manner discriminating in regard to their hire and
tenure of employment or any term or condition of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica (C. I. 0.), or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargain 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) Upon request, bargain collectively in respect to rates of pay,
wages, hours of employment, and other conditions of employment with
International Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (C. I. 0.), as the exclusive represent-
ative of all its production and maintenance employees, including the
employees in the erection and maintenance department, toboggan hoist
department, and shipping employees, but excluding the engineering
department employees, sub-foremen, assistant foremen, foremen,
office clerical employees, guards, and all. other supervisory employees
with authority to hire, promote, discipline, or otherwise effect changes
in the status of employees, or effectively to recommend such action ;
(b) Offer George Murphy, when work is available for another
third-class mechanic in the plate shop or in a substantially equivalent
position, full reinstatement to his former or a substantially equivalent
position, without prejudice to his seniority and other rights and
privileges ; ,
(c) Offer Mads Skaanning immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to
his seniority and other rights and privileges;
(d) Make whole George Murphy for any loss of pay he may have
suffered by reason of the respondent's discrimination against him,
by payment to him of a sum of money equal to the amount he would
normally have earned as wages during the period from December 19,
1945, the date of the respondent's discrimination against him, to
February 6, 1946, and during the period between the date on which
the respondent, subsequent to the date of the Intermediate Report,
has had or may have work available for another third-class mechanic
in the plate shop or in a substantially equivalent position and the
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of its offer to reinstate him, less his net earnings during such
periods. Payments of the sum for the first period shall be made
at once and shall not await the time when there may be sufficient
work to require the respondent to offer reinstatement to Murphy;
(e) Make whole Mads Skaanning for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to the amount he would
normally have earned as wages during the period from the date of
the respondent's discrimination against him to the date of the re-
spondent's offer of reinstatement, less his net earnings during said
period;
(f) Post at its plant at Boston, Massachusetts, copies of the notice
attached hereto, marked "Appendix A." Copies of said notice to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by the respondent's representative, be posted by
the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered, defaced, or covered by any other material ;
(g) Notify the Regional Director for the First Region in writing,
within ten (10) days from the date of this order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed, insofar as it alleges that the respondent has discriminated
in regard to the hire and tenure of employment of Frank Cornelious
and John Donnelly.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT ill any manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist Inter-
national Union, United Automobile, Aircraft and Agricultural
Implement Workers of America (C. I. 0.), or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection.
UNDERWOOD MACHINERY COMPANY 651
WE WILL OFFER to Mads Skaanning immediate and full
reinstatement to his former or a substantially equivalent position,
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination against him.
WE WILL OFFER to George Murphy, when work is available
for another third-class mechanic in the plate shop or in a sub-
stantially equivalent position, full reinstatement to his former
or a substantially equivalent position, without prejudice to any
seniority or other rights and privileges previously enjoyed, and
make him whole for any loss of pay suffered as a result of the
discrimination against hint.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees
in the bargaining unit described herein with respect to rates
of pay, hours of employment, or other conditions of employ-
ment, and if an understanding is reached, embody such under-
standing in a signed agreement. The bargaining unit is: all our
production and maintenance employees, including employees in
the erection and maintenance department, toboggan hoist depart-
ment, and shipping employees, but excluding the engineering
department employees, subforemen, assistant foremen, foremen,
office clerical employees, guards, and all other supervisory em-
ployees With authority to hire, promote, discipline, or otherwise
effect changes in the status of employees, or effectively recommend
such action.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
UNDERWOOD MACHINERY COMPANY,
Employer
By--------------------------------------
(Representative ) (Title)
Dated---------------------------
NOTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Leo J. Halloran , for the Board.
Messrs. Benjamin E. Gordon and Maurice Epstein , of Boston, Mass, for the
respondent.
Mr. John J. O'Connell, of Boston, Mass., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge filed by International Union, United Auto-
mobile , Aircraft and Agricultural Implement Workers of America ( C. I. 0 ),
herein called the Union , the National Labor Relations Board , herein called the
Board , by its Regional Director for the First Region ( Boston, Massachusetts),
issued its complaint dated February 1, 1946, against Underwood Machinery Com-
pany, herein called the respondent , alleging that the respondent had engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (1),
(3), and ( 5) and Section 2 (6) and ( 7) of the National Labor Relations Act,
herein called the Act. Copies of the complaint , together with notice of hearing
thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged in substance :
(1) that on and after November 27, 1944, the respondent refused to bargain
collectively with the Union as the duly designated representative of its employees
in an appropriate unit; ( 2) that from about November 27, 1944, the respondent
interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act by (a) stating to certain of its employees
that it was not in favor of a union , ( b) disparaging and ridiculing the Union, its
purposes , and its representatives, (c) stating to certain of its employees that
the Union and its representatives were leading them astray , ( d) threatening to
close the plant unless the employees ceased their union activities , ( e) urging its
employees to relinquish their union activities and membership; (f) stating
to certain of its employees that the Union ' s International Representative was a
"racketeer ," ( g) offering inducements to employees to form their own inside,
independent union, ( h) suggesting to certain of its employees that they hold a
meeting during working hours on the respondent ' s premises to arrange for the
formation of an inside , independent union and for the relinquishment of their
membership in the Union which had been certified as bargaining representative,
(i) paying employees their regular rate of pay while attending such meeting,
(j) interrogating employees relative to union membership and activities and
discussing with them the formation of an inside independent organization,
(k) stating to certain of its employees that, while it would deal with them as
individuals , it would never recognize them as a committee representing all the
employees or the Union, (1) emphasizing to employees the economic detriment
to them of payment of dues ands assessments to the Union , ( m) making state-
ments to employees for the purpose of discrediting the Union ' s statements and
promises concerning wages and working conditions , ( n) in order to belittle
the Union in the estimation of the employees and cause them to relinquish their
membership and interest in the Union, stating to employees that the Union could
not obtain any benefits or advantages for them; ( o) threatening employees with
discharge if they discussed the Union in the shop , while allowing unlimited dis-
cussion relative to the formation of an inside , independent union and other
subjects ; ( 3) that on about December 23, 1944, the respondent laid off Frank
Cornelious and thereafter on about May 19, 1945 , discharged him ; that on about
December 19, 1945, the respondent discharged George W. Murphy, Jr.; that on
UNDERWOOD MACHINERY COMPANY 653
about January 7, 1946, the respondent laid off John J. Donnelly ; that the respond-
ent from the respective dates of their alleged discharges had refused to reinstate
said Cornelious and Murphy ; and that the respondent laid off Cornelious and
Donnelly and discharged Cornelious and Murphy because they joined or assisted
the Union or engaged in concerted activities for the purposes of collective bar-
gaining and other mutual aid and protection.
The respondent's answer, duly filed, admitted the refusal to bargain with the
Union but alleged that the Board had exceeded its authority by conducting an
election among the respondent's employees before designating the appropriate
unit, and further alleged that the balloting did not represent the free choice of
said employees, in that supervisory employees interfered on behalf of the Union ;
the answer denied the appropriateness of the unit and denied that the Union
was the exclusive representative of all the employees ; the answer admitted that
the respondent had laid off said Cornelious and Donnelly and discharged said
Murphy, but alleged that Cornelious' lay-off was on December 29, 1944, instead
of December 23, 1944; the answer denied that the respondent had discharged
Cornelious on May 19, 1945, but alleged that on said date Cornelious was laid
off, and further alleged that all such lay-offs and the discharge were for good
cause; and, finally, the answer denied the commission of all alleged unfair labor
practices.
Pursuant to notice, a hearing was held on March 4 to 6 inclusive, March 8, and
March 11 to 14 inclusive, 1946, at Boston, Massachusetts, before the undersigned
Trial. Examiner, duly designated by the Chief Trial Examiner. The Board and
the respondent were represented by counsel and the Union by an international
representative All participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties. During the course of the hearing Board's
counsel made motions to amend the complaint by adding as an alleged violation
of Section 8 (3) of the Act the lay-off by the respondent on about February 8,
1946, of Mads' Skaanning and the refusal thereafter to reinstate him ; by
changing the date of Cornelious' alleged lay-off to December 30, 1944; by adding
as further alleged violations of Section 8 (1) of the Act, in substance, that on
about May 4, 1945, subsequent to the certification by the Board on November 27,
1944, of the Union as collective bargaining agent, the respondent notified its em-
ployees of, and unilaterally put into effect, a profit sharing plan; and that at
various times subsequent to the said certification, the respondent dealt directly
and individually with its employees relative to grievances, wages, hours of employ-
ment, and other terms and conditions of employment, without consulting the
Union. Such motions to amend were granted, and subsequently the respondent's
counsel filed an amendment to its answer, admitting the lay-off of Mads Skaanning
but denying the commission of the unfair labor practices alleged in the amend-
ments to the complaint. At the close of the bearing Board's counsel moved to
amend the complaint to conform to the proof in formal matters. This motion
was granted. The parties waived the opportunity to argue orally before the
Trial Examiner. Both the respondent's and Board's counsel filed briefs with the
undersigned
From his observation of the witnesses and upon the entire record in the Case,
the undersigned makes the following :
' The pleadings , in which this name was spelled Max, were amended by motions granted
at the hearing By another motion granted at the hearing the spelling of Cornelius was
changed to Cornelious.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FAcrr
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Massachusetts corporation having its principal office and
place of business in Boston, Massachusetts, where it is engaged in the manufac-
ture of specially constructed machinery and in the fabrication of steel. In its
operations the respondent uses steel, fabricated steel, and machine parts. During
the calendar year 1945, the respondent used such materials valued in excess of
$50,000, approximately 50 percent of which was shipped to the respondent from
points outside the Commonwealth of Massachusetts During the same period
the respondent's sales exceeded $50,000 in value, of which approximately 5 per-
cent represented products shipped to points outside the Commonwealth of Massa-
chusetts The respondent admits that it is engaged in commerce within the
meaning of the Act.
II THE ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, affiliated with the Congress of Industrial Organizations, is
a labor organization admitting to membership employees of the respondent.
III. THE UNF_11R LABOR PRACTICES
A. The refusal to b'hlgain collectively
1. The appropriate unit and representation by the Union of a majority therein
Pursuant to a petition for certification of representatives filed by the Union
on August 15, 1944, the Board on November 3, 1944, directed that separate elec-
tions be held among (1) the employees in the erection and maintenance depart-
ment, with certain exclusions, and (2) all other production and maintenance
employees with certain inclusions and exclusions, stating that it would await the
results of these elections before determining the appropi late unit and that if the
Union secured a majority of votes cast by the employees in voting group (2)
alone, the Board would find that that group, excluding the employees in the
erection and maintenance department, constituted the appropriate unit; that if
in addition, a majority of the employees in voting group (1) selected the Union
as their representative, the Board would include them in the aforesaid unit;
but that the Board would make no final determination as to any unit finding in the
event that the election results were other than those above specified, until after
the election 2 Pursuant thereto, such elections were conducted on November 17,
1944, and therein a majority of the employees in both voting groups chose the
Union as their collective bargaining representative 2 On November 27, 1944, by a
supplemental decision, the Board found that all production and maintenance
employees of the respondent, including the employees in the erection and main-
tenance department, toboggan hoist department and shipping employees, but
excluding the engineering department employees, subforenien, assistant foremen,
foremen, office clerical employees, guards, and all other supervisory employees
with authority to hire, promote, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constituted a unit appropriate
2 In the Matter of Underwood Machinery Company, 59 N L It. B. 42.
3 The Tally of Ballots for the first voting group showed 8 votes for the Union, none .
against the Union, and 1 challenged ballot, among 9 eligible voters . the Tally for the sec-
ond voting group showed 48 votes for the Union and 1 vote against the Union out of 49
voting among 51 eligible voters.
UNDERWOOD MACHINERY COMPANY 655
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act; and pursuant to Section 9 (a) of the Act, the Board on the same date
certified the Union as the exclusive representative of all such employees for the
purposes of collective bargaining with respect to rates of pay, wages, hours of
employment and other conditions of employment
On January 6, 1945, the respondent filed a petition to vacate the order of
certification on the grounds that (1) the Union did not represent an uncoerced
majority of its employees in the collective bargaining unit prescribed in the
Board's supplemental decision and order of certification, and (2) the Board erred
in permitting the determination of the collective bargaining unit to be made
after the election by use of the so-called "Globe Election. Doctrine." In a brief
accompanying such petition, the respondent alleged that after the time for filing
objections to the conduct of the election had passed, it was informed by numerous
employees that prior to the election they had been advised by various supervisory
employees that unless they voted for the Union and paid dues to the Union they
would be unable to remain employees of the company. On January 15, 1945, the
Board entered an order denying the petition
In the instant-case, as set forth heretofore, the respondent advanced the same
two grounds as a justification for its refusal to bargain with the Union and sought
to adduce evidence at the hearing in support of the first ground. The under-
signed rejected its offer to adduce such evidence inasmuch as the Board had
already; considered the matter and i ejected respondent's contentions.
Accordingly. on the basis of the Board's Supplemental Decision and Order in
the representation case,' the undersigned finds that all production and mainte-
nance employees of the respondent. including the employees in the erection and
maintenance department, toboggan hoist department, and shipping employees, but
excluding the engineering department employees, subforemen, assistant foremen,
foremen, office clerical employees, guards, and all other supervisory employees
with authority to hire, promote, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, at all times material
herein constituted, and now constitute, a unit approp late for the purposes of
collective bargaining with respect to rates of pay, wages, hours of employment,
or other conditions of employment and that said unit insures to employees of the
respondent the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
The undersigned furthei finds that on and at all times after November 17,
1944, the Union was the duly designated iepresentative of a majority of the em-
plovees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of
the Act, the Union at all times material herein was and is the exclusive repre-
sentative of all the employees in such unit for the purpose of collective bargaining
in respect to rates of pay, wages, hours of employment, or othei conditions of
employment.
2. The refusal to bargain
About November 29, 1944, after receiving notice of the Union's certification of
November 27, 1944, John J. O'Connell, International Representative of the Union,
together with the bargaining committee met with George Cormack, personnel
director, paymaster, and assistant to the president of the respondent, to request
a conference with Frank Underwood, president of the respondent. Cormack
informed them that Underwood was out but that he was next in charge. O'Con-
nell informed Cormack of the Union's certification and handed him a copy of a
See footnote 2, Supra.
755420-48-vol. 74 43
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed contract . Cormack said that he would have to refer them to Benjamin
Gordon , the iespondent 's counsel . About a week later the bargaining committee
met Underwood in the plant with respect to baigaining He i efused to discuss the
matter, saying that they would have to take the matter up with Gordon . There-
after Gordon informed O'Connell that the respondent refused to bargain with the
Union. The date of this announcement is not in evidence . The complaint alleges
and the answer admits that "on or about November 27, 1944 , and at all times
thereafter the respondent did refuse to bargain collectively with the Union." The
evidence indicates that the first request was made about November 29. The
undersigned finds that on November 29, 1944, and at all times thereafter the
respondent has refused to bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit, and has thereby interfered
with, restrained and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8 (5) and (1 ) of the Act.
B. Interference, reshautt, and coercion
Shortly after November 27, 1944, the date of the certification of the Union,
employee Thomas Green had a conversation with Cormack in which the latter
said that he could not see why the employees wanted to join the C. I 0., that if
it were any union except the C I. 0, as for instance the A. F of L., or even
an association, the respondent might be willing to do business with them.
Sometime in December 1944 Coi niack in a convei cation with Green said that
he could not understand how one man could "hold sway over a bunch of fellows
as strong as Mr. O'Connell" (the International Representative). In January
or February 1945, Green had a conversation with Cormack in the office. At
that time Cormack told Green that the company did not feel it would like to
deal with the Union and suggested that they should not belong to the Union
but to an Underwood association.'
Early in December 1944, John Lallemand, then assistant foreman in the
plate shop, in a conversation with employee Frank Cornelious, told the latter
that the respondent would not deal with the C. I O. and asked why they did
not have an independent union. At about the same time Lallemand told Cor-
nelious that the employees were going about "this thing" all wrong, that the
"old mad" (referring to the respondent's president, Underwood), would never
deal with them because lie thought the C. I. O. was "nothing but a bunch of
communists " About January 15, 1945, according to Cornelious' testimony,
Lallemand told Cornelious that he bet that Underwood would never sign a
contract with "you or that racketeer O'Connell" Lallemand admitted that he
"may have in jest" made a bet that "the old man" would not sign but inferen-
tially denied reference to O'Connell The undersigned finds that Lallemand made
the statement attributed to him by Cornelious and that, considered in connec-
tion with the respondent's other statements of opposition to the Union, Lalle-
mantl's statements weie seriously expressive of the respondent's attitude, and
as such constituted part of the pattern of the respondent's conduct which the
undersigned finds constitutes interference, restraint and coercion within the
meaning of Section 8 (1) of the Act.'
5 These findings are based on Green 's credited testimony . Cormack gave no testimony
thereon but admitted that he had talked to employees about an association as a "temporary
measure" for about a year prior to November 1945
° Cornelious testified that during March 1945, when Lallemand and Cornelious were
riding home together in the same car, Cornelious opened a package he had just received and
took out the union seal, whereupon Lallemand remarked , "You guys are in business now.
UNDERWOOD MACHINERY COMPANY 657
On January 10, 1945, pursuant to proceedings before the War Labor Board,
the respondent and the Union entered into a stipulation for interim procedure
for handling of grievances, one of the provisions of which provided, as a final
step, a meeting of the individual employee and his designated representative of
employees with Underwood, limited to 1 hour per week with regular pay. The
procedure so outlined was followed without deviation until about April 1945,
when the committee asked Cormack for an appointment with Underwood to,
consider a grievance and Corinack said that Underwood was too busy to take
care of petty grievances and that they could see huu only after working hours,
Thereafter the Union ceased to process their grievances in accordance with the
agreement, but the respondent allowed individuals to process their grievances
individually, granted individual increases, otheiwise, made changes affecting
working conditions without consulting with the Union, and on May 4, 1945,
without prior consultation with the Union, the respondent inaugurated a profit-
sharing-retirement-fund plan which the employees were notified they night
join by contributing a small monthly sum.
On October 19, 1915, at about 2 • 30 p. in , while John Donnelly, then president
of the Union, was working at his machine, Corinack stopped to exchange greet-
ings Donnelly asked Corinack if he and Underwood were going to sign up with
the Union. Cormack, according to Donnelly's credited testimony, asked why the
employees wanted a union When Donnelly countered with a question of why
any plant would want a union, Corinack told Donnelly that they would never
get a C. I. 0 union in, but that if they would get an association of their own
they would gat more b',nefits than they would with the C I 0, adding that they
were then gatting everything that they would get in a contract. Donnelly said
that they did not have any seniority rights and that there were a few other
things they would like in the contract. Corinack said that lie would go right
up and prepai e a statement of seniority rights and put it on the bulletin boaid.`
When Corinack had left, employee Wilbur Frost beckoned to Donnelly and asked
v, hat Corinack had to say Donnelly explained, and Frost said that Corinack had
said the same thing to him The two agreed that the matter of having their
own association should be presented to the members of the Union for vote. Frost
left and returned shortly to inform Donnelly that Corinack had suggested a
meeting in the "Blue lloom" is at 4 p in Donnelly and Frost notified the em-
ployees of the meeting, and Cormack gave instructions to the foremen to allow
the men to shut down their machines at that time.
That atternoon Lallemand told Donnelly, according to the latter's credited
testimony, that he had been in "the office and that he was informed that if
You got the seal and everything You can do your crooked work legally " This statement
was ippaieiitly made as a good -natured gibe and did not purport to express the attitude
of the iespondent s higher officials as did the other statements herein above related.
Lallemand himself appeared to bear no strong personal animous toward the Union The
undersigned finds that this gibe was not in itself a violation of the Act.
7 On October 22, 1945, there appeased on the bulletin board a notice of past and present
practice of the respondent concerning seniority According to this notice, seniority was
considered by the respondent only as between men in the same department and job classifica-
tion and then only when they were of equal ability.
8A room in the plant where the windows had been painted blue to comply with black-
out regulations Cormack admitted that lie had given permission to hold this meeting
but testified that Frost had iepresented it as a meeting to avert a strike and denied that
he knew the meeting was for the purpose of discussing an association At the time, there
was no discussion among the employees of a strike . Donnelly informed Lallemand of the
purpose of the meeting , thus the respondent had official knowledge thereof On all the
evidence the undersigned is convinced and finds that Corniack also knew its purpose
658 • DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees would form an association they could retain their officers and
shop committee and that if any trouble arose which could not be settled between
them, the respondent would hire an arbitrator at its own expense.
At 4 p. m., half an hour before the usual quitting time, the employees met
in the Blue Room, and Donnelly and Frost repeated what Cormack had told
them of the benefit of having an association, Frost advocating the association.
The employees expressed themselves pro and con, but no decision was then
reached. The employees were paid for the day's last half hour. After the Blue
Room meeting, Lallemand told Donnelly that if they got "this independent
union" all the supervisors would join, and instead of giving a dollar a month
to the Union they would have that for themselves and would be 100 percent
better off.
On October 24, the Union called a special meeting, at which O'Connell was
present, and where the members voted to stay in the Union. The next day
Donnelly went to Coiniack and asked for a meeting with Underwood to see if
they could not get together on bargaining Cormack told Donnelly that he could
give Underwood's answer right then, that Underwood' s answer was no, and that
the respondent would not talk to the bargaining committee anyway but would
talk only with individual employees. Cormack then told Donnelly that the
employees were being led astray by the Union and O'Connell, that O'Connell
was a l:acketeer and made more money than Underwood. Cormack then pro-
ceeded to tell Donnelly about the benefits they had already received, such as
the profit-sharing plan, stating that the employees would be foolish if they
did not go along with the respondent and that lie thought everything would be
"OK" with "the independent " 0
On November 9, 1945, Green and Donnelly went to Cormack's office and told
Cormack that the Union had decided to strike on November 13, at 10 a. in., stating
as a reason the respondent's refusal to bargain.10 Cormack told them that they
were foolish and that they were going to lose money.
At !) 50 a in. on November 13 the bargaining committee ( consisting of Green,
Frost, Donnelly, and Muds Skaanning) went to see Cormack again to see if they
could get the respondent to bargain and thus avert the strike. Cormack told
them that they were foolish to strike, that O'Connell had led them astray for the
past year, that O'Connell was not going to lose anything by the strike, that it was
the employees who would lose, that they might be out as much as 4 or 5 weeks
without pay and at the end of that time they would be "just as bad off" as they
were then because the respondent would never " sign up " Cormack also said
that he would bargain with individual employees but not with the Union The
committee left and the strike began.
On November 16, 1945, employee Robert Foster returned to the plant for his
pay. As Foster was leaving, Cormack asked him if he did not think it was fool-
ish to go out on strike and lose his pay just to get a signature on a piece of paper.
Foster replied that the signature was a little thing, but he could not see why the
respondent was going to so much trouble to keep them from getting it. Cormack
told Foster that the employees should not trust the Union and that what they
needed was an independent union. Foster replied that the independent unions
in places where he had been were company dominated. Cormack said he did
° This finding is based on Donnelly 's testinony . Cormack gave no testimony relating to
the incident
10 Donnelly was asked if he gave Cormack the reason and replied , "Yes, but they wouldn't
bargain with us" The undersigned infers that the reason given was the respondent's
refusal to bargain.
UNDERWOOD MACHINERY COMPANY 659
not think the respondent would ever let the Union get into the plant, that they
did not have anything against unions in general, but that the C. I. O. in par-
ticular was no good as far as lie was concerned, and that the men would not
gain anything by belonging to the Union 11
On Sunday, December 2, 1945, while the men were still out on strike, employees
Frost and Jack Bryant, desiring to end the strike, unofficially arranged a meeting
for that evening at Bryant's house and invited a number of the employees. They
also invited Cormack to come, representing to him that some of the men feared
reprisals if they returned, and suggesting that Cormack come to answer ques-
tions to reassure them. Donnelly and certain other employees were not invited.
That evening 14 employees, Cormack, and Foreman Lloyd Atkins assembled at
Bryant's house. The meeting started with questions put to Cormack on whether
there would be any employees laid off, discharged, or demoted if they returned.
Cormack assured them that there would not. One man asked what the respond-
ent would do if the men did not return. Cormack said that it might see fit to
close the shop and open a consulting engineering office in another place and gave
the men to understand that then there would be no jobs for the men to return to.
During the course of the meeting, which lasted for 2 hours, Cormack said that
O'Connell was leading the Dien astray, that he had had previous dealings with
O'Connell and thought he was dishonest, that the respondent would not sign a
contract with the Union, that if the men came back to work and left the Union
alone he might consider letting them have some sort of union in the shop in
about 6 months." Cormack also related the fact that three employees had been
laid off the previous December because of a slow-down which he linked with
union activity and that a man by the name of Farquhar had been denied an in-
crease because of it. Employee Frank Murphy, who had been employed only
about a week before the strike began, stood up and asked if that was not dis-
crinunation. According to Murphy's credited testimony, Cormack jumped up,
approached Murphy, and said heatedly, "What the hell do you know about this?"
Murphy replied that he knew very little, but that he knew what Corinack was
trying to do at the meeting and that he thought that Cormack was putting on a
"cowardly strut." At the close of the meeting Cormack urged the men to return
and Murphy and a few others spoke against returning
On December 5, 1945, the.Union held a special meeting at which President
Donnelly told the members that he had that day tallied with Underwood, who
told him that he was willing to have them go back in a body but not as a recog-
nized union. Donnelly then said if they would wait until Saturday when they
would hear from him, he would have it arranged for them to return as they lett,
as union men. The members voted to return on the conditions outlined Don-
nelly then got in touch with O'Connell, got approval to terminate the strike, and
called another meeting for Saturday noon. That day while Donnelly was wait-
ing outside the meeting place for the men to arrive he saw Cormack across the
street and hailed him Donnelly had learned that four of the union members
had returned to work the clay before 18 and, when Cormack approached, com-
mented on the fact. He then told Cormack that the International Union had
approved their return in a body and that the rest of the men would be in on the
following Monday. According to Donnelly,s ciedited testimony, Cormack said
11 The foregoing findings are based on Foster 's undenied testimony
12 Findings as to Cormack ' s statements made at this meeting are based on testimony of
Frank Murphy, Atkins, and Cormack. Insofar as Cormack 's testimony is inconsistent with
these findings , it is not credited.
11 Among the four were Frost and Bryant.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he thought they ought to "do away with the- CIO," that he did not know
what it would get them the way things were going, and that they were just as far
from success then as they were at the start. Cormack, remarking that Donnelly
was a pretty good machinist and they would like to have him around, warned
him that, if there were any trouble between any of the nien returning on Monday
and any that had already returned, the man responsible for it would be dis-
charged The following Monday, December 10, the strikers returned to work.
On January 7, 1946, Donnelly was laid off for a week, for speaking to Frost
about the Union during working time, as will be more fully set forth in the next
section hereof.14 Frost was one of the four who returned to work before the
strike was officially ended. During the week of Donnelly's lay-off, Foreman
Albert Pukt warned employee Thomas Green not to leave his machine to talk
to other men and especially to stay away from the new men if he wanted to
keep his job's
On January 17, 1946, after Donnelly had returned from his lay-off, Lallemand,
at this time foreman of the erection and maintenance department, came to kvhere
Donnelly was working at a lathe and, according to Donnelly's credited testimony,
said that he had been told by Cormack: to keep his eyes and ears open for any
union talk or activities in the shop, that the respondent had "these fellows stifled
now" and did not want-to let them get another start. At about the same time
Lallemand went to Mads Skaanning and, according to the latter's testimony,
told him that lie had just been told by Cormack to keep his eyes and ears open
for union activity, especially on Skaanning because he (Skaanning) was a strong
union man 18
The undersigned finds that by the disparaging and belittling remarks about,
and expressions of disapproval of, the Union and its International Representative
made by the respondent's agents, by urging the employees to abandon the Union
and by urging, persuading and offering inducements to the employees to form an
independent association and lending them assistance in furtherance thereof,
by refusing to follow the stipulated grievance procedure for appeals on company
time, by dealing individually with employees relative to grievances, wage in-
14 Donnelly testified that on January 7, 1946, Lallemand asked him if all the men had
their union cards paid up and that when he replied in the affirmative , Lallemand said,
"Good ," and walked off Lallemand again inquired concerning union cards on January 18,
1946 , and Donnelly told him if lie sent any one out on a union job before the new cards
arrived he would give any of the union men under Lallemand a note that he was paid.
Since the iespondent frequently sent men out on jobs where union cards were required, the
undersigned finds that Lallemand ' s question (lid not constitute interference
15 Green testified concerning this conversation several times and once testified that
Pukt told him to keep away from the other workers and not to sign up in the Union From
the relevant portions of Green's and Pukt's testimony the undersigned infers that the
latter clause was a conclusion drawn by Green and was not Pukt 's own words. Pukt
testified that lie had told Green that he had noticed him leaving his machine to talk to
the other workers The undersigned makes no finding that Pukt ' s warning in itself
constituted a violation of the Act, but because of its timing in relation to other events
the undersigned finds that it constitues part of a pattern indicating an increasing restriction
on the prior freedom of conversation
16 Lallemand denied this portion of Skaanning's testimony and also denied that he had
told Donnelly that they had "these fellows stifled " He testified that lie had meiely told
them that Cormack had said to keep his eyes and ears open for men getting into long dis-
cussions which interfered with their work Lallemand testified that Cormack had not
told him to give this information to Donnelly , and he apparently intended it as a friendly
warning to put Donnelly on his guard. Because Skaanning impressed the undersigned as
an honest, straightforward witness, because Donnelly impressed the undersigned as a truth-
ful, intelligent witness with an excellent memory , and from a consideration of all the
testimony , the undersigned credits Skaanning 's and Donnelly 's versions.
UNDERWOOD MACHINERY COMPANY 661
--creases, and other matters relating to working conditions, by unilaterally inaugu-
rating the profit-sharing plan, by statements that the Union and its International
Representative were leading the employees astray, by giving the employees
paid time to discuss formation of an independent association but threatening
the employees with discipline or discharge for talking about the Union on
company time, and by threatening to close the plant if the men did not give up
their unfair labor practice strike, the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
C. The lay-offs and discharge
1. The lay-offs of Frank Cornelious
Frank Cornelrous was employed by the respondent in September 1942 as a
helper in the plate shop at 65 cents an hour By December 1944 Cornelious was
receiving $1 per hour, the top rate for first-class mechanics.
In August 1944 Cornelious and an employee named Smoske went to the Union's
office and procured a number of application cards With the aid of two other em-
ployees they got signatures of practically all the employees in 2 or 3 days, returned
the cards to the Union, and by October received a local charter. Cornelious
acted as observer at the Board ordered elections on November 17, 1944. Pend-
n]g the regular election of officers in February 1945, Smoske became president
and Cornelious became financial secretary, steward, and member of the bar-
gaining committee. Cornelious was with the committee when it made its
request for bargaining on about November 29, 1944.
In December 1944, the respondent started work on a high priority war con-
tract Atkins was not satisfied with the progress that was being made on it
and made this known to the men on the subassembly work where Cornelious was
'working. From statements made to him, Atkins inferred, incorrectly the under-
signed believes, that the Union was causing a deliberate slow-down.17 He spoke
to a number of the men individually, and several of them complained of the
lack of heat 18 Before Christmas, Atkins reported to Corniack and Underwood
his belief that there was a deliberate slow-down He was told to handle it as
best lie could and to bring the matter up again after Christmas The day after
Christmas, Atkins again spoke to Cormack and Underwood who decided to make
some disciplinary lay-offs However, before doing so, they requested Atkins to
make a list of the subassembly operationb, estimate the time for each operation,
and then check the actual time against the estimated time Pursuant thereto
Atkins and Lallemand separately made estimates. Their estimates coincided
exactly with the exception of the one on the operation Cornelious was perform-
ing. Lallemand estimated that nearly three units of that operation should be
completed each hour, while Atkins estimated the proper time to be one unit
per hour Between December 27 and 29 Atkins kept a record of production, but
lie made no record of the actual time per unit, he merely listed the total number
17 Atkins testified that Cornelious made the statement to him. " . . . the slow-down
is not against you It is the old man we are after," and that Galmis told him that "he
was one of the boys, and they kept bothering him all the time to keep slowing down,
so lie had no choice " Cornelious and Galinis denied making the statements attributed
to them by Atkins and gave a credible explanation of what was actually said From this
and the entire record the undersigned finds that Atkins was mistaken, that there was no
intended slow-down , and that Cornelious and Galinis did not say that there was
18 The heating plant was defective and inadequate. When the men wanted to warm
themselves they went to the nearby forge This practice was permitted
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of units completed in each operation and the total elapsed time therefor" The
resulting record shows production for one operation of only 4 hours, some for
less than a full day, some for fractions of 3 days and one-Cornelious' opera-
tion-for 2 full days At this time Cornelious and an employee named Stewart
were working as a team, Cornelious doing the assembly work and Stewart the
welding, and Atkins did not time them separately, but together. On his record,
Atkins showed that Cornelious and Stewart produced six and a half units in 16
houis' whereas by Atkins' estimate they should have made 16 in that time, and
by Lallemand's estimate they should have produced almost 48 units.
On the afternoon of December 29, 1944, Atkins took his report to Corniack and
Underwood It was decided to lay off for a week Cornelious and two other em-
ployees as having the poorest records, but it was decided not to lay Stewart
off because Atkins said in his judgment it was Cornelious and not Stewart who
was causing the slowness on that operation 20
Atkins then returned to his office and 'notified two of the three employees,
Farquhar and Galinis, that they were laid off for a week for slowing down on
the job Farquhar at the hearing admitted that he had been slow before his
lay-off but attributed it to the fact that it was very cold in the plant in De-
cember and that he had been obliged to go to the forge frequently to get warm;
he also claimed that he had been interrupted frequently by requests for his serv-
ices by others. Galinis denied to Atkins that he had been slowing down 22
Atkins did not see Cornelious before quitting time but left word at the latter's
home that he was laid off. When other union members leas ned of the lay-offs on
December 29, the Union decided to strike, believing that the three were laid
off because they were active in the Union. The strike continued until the end of
the lay-off period.
Atkins admitted at the hearing that his estimate of eight units a day for
Cornelious' operation was a little high and that he would have been satisfied
with six or six and one-half per day. Cornelious testified that when he was not
interrupted by being transferred to other jobs he was making six and one-half
units per clay, but he testified that during December and afterwards lie would
be transferred to another important job as frequently as two to four times per
week, and that on such days his production dropped to about three units per
day He was unable, however, to remember whether such interruptions occurred
between December 27 and 29, 1944 Atkins' report on timing omitted altogether
a check on one of the subassembly operations."' From the entire record, and
particularly because Atkins chose Cornelious and not Stewart for the lay-off,
the undersigned believes that Atkins' conclusion that certain men were slowing
down was reached apart from the record he prepared for Underwood.
10 As a time study, the record made by Atkins was worthless, and it is-impossible to
deteimine, 'fioni it alone, whether any employee was producing at a slower rate than
a fair standard rate of speed. Evidence indicated and the undersigned finds that any
slowness of peiformance that existed was the result of ineptness of some employees, of
unusual difficulties that arose in the work, of interruption of one operation caused by
transfer of men from one job to another, and of the coldness of the shop.
20 Adkins testified that it was possible for a welder to get an are on part of the jig
that would throw out the asseipbly for the next unit.
21 Galinis testified that he had noticed Atkins with a watch in his hand, apparently
timing him, at a time when he was filing but not at the time when he was drilling, which
was the operation he was shown to be on in Atkins' report A feW days before his lay-off,
when Atkins told Galinis he was not working fast enough, Galinis told him that he was
not feeling well, but that he would try his best to speed up the work.
22 Bottom cross welding, performed by Steve Berry , an employee not shown on the
respondent ' s list of employees introduced in evidence
I
UNDERWOOD MACHINERY COMPANY 663
The undersigned concludes and finds that the respondent was anticipating that
its refusal to bargain with the Union would produce countermeasures, that it
suspected that slowness in work of some of the men was inspired by the Union, and
that the respondent sought to discipline the Union therefor. The undersigned is
satisfied and finds that there was no concerted or deliberate slow-down and that,
if any of the men were slow in their work, such slowness was due to a variety of
causes not connected with the Union The undersigned further finds that Cornel-
ious was laid off to carry out the respondent's intent to discipline the Union for
suspected action which in fact did not take place. The undersigned is convinced
and finds that, if Cornelious was slower than usual in his work preceding his
lay-off, he was not as slow as the respondent sought to prove and that, but for
,Cornelious' union membership and activity, he would not have been laid off for
such slowness as may have existed.
It is accordingly found that the respondent by laying off Frank Cornelious 2' on
December 29, 1944, for 1 week, discriminated in regard to his hire and tenure of
employment because of his membership in, and activities on behalf of, the Union,
thereby discouraging membership in a labor organization within the meaning of
,Section 3 (3) of the Act and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
About February 1945 Cornelious requested a transfer to the "outside crew" of
the erection and maintenance department 24 Atkins told Cornelious that he would
like to have him remain in his department but that he would not oppose the
transfer. Cornelious spoke to Cormack about the transfer and the latter said that
there was 2 or 3 months' work lined up for the outside crew and that if Foreman
Bowser were successful in selling a certain company on the idea of a maintenance
program there might be more work, but he told Cornelious that he would lose his
seniority in the plate shop by the transfer. Cornelious questioned that there was
any seniority at the plant. Cormack told him to take a few days to think it over
and Cornelious said he would.
When Cornelious came down from Cormack's office, Lallemand told him that
going into the erection and maintenance department was like stepping nearer
the door and the next step would be out.' Cornelious testified that there was a
standing joke that if a man went into the maintenance department he was "fired
or canned for drinking or something else." It was a known fact that the volume of
work in the erection and maintenance department fluctuated more than it did in
the inside departments. The undersigned finds that it was this to which Lalle-
mand was alluding
Cornelious testified that he was given to understand that he was transferring
on a trial basis and that meanwhile his name would not be changed on the per-
sonnel records. He also testified that he was not informed that he was perma-
nently transferred. The undersigned finds that he was given a few days by
The complaint did not allege that Farquhar and Gahnis were discriminated against
24 Thei c was a 20 percent bonus for the outside crew. When the foreman of that depart-
meat needed extra help on a job now and then one of the mechanics trom another depart-
ment would be given a chance to work outside, but since the respondent attempted to
alternate the men on such work, the chance to earn the bonus did not come often
25 Cornelious testified that Lallemand also said , "Smoske first and now you, Cornelious"
and ` The old man is going to get every one of you in time " Cornelious testified, however,
that a standing joke among all the men was "Smoske first, Cornelious next, and then
[Harold] Muiphy, then Donnelly, all along the line, all the bad boys " Lallemand denied
having said that the old man would "get" all of them in time While the undersigned
believes that Lallemmnd said something similar to what Cornelious testified to, lie finds
that Lallemand was chaffing Cornelious
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cormack to think the matter over, that Cornelious did so, and then stated that
he still wanted to transfer The respondent, justifiably relying on this state-
ment, transferred Coinelious' name to the roll of the erection and maintenance
department as of March 1, 1945
On May 18, 1945, Cornelious was notified by Bowser that he was being laid off
the next day for a week or two for lack of work. At the same time a third-class
mechanic who had been working with Cornelious on an outside job was laid off.
They were the only mechanics in the department. The job that Cornelious had
been working on up to the time of his lay-oft had not been completed, but work
was done on it only occasionally thereafter until January 1946. Men from one
of the inside departments would be used thereon for a day or two at a time
On May 31, 1945, the respondent wrote Cornelious that, because business had
not improved, his lay-off would be continued until June 18, 1945. On June 14
the respondent wrote him that from June 1S his lay-off would continue indefi-
nitely. Cornelious was never recalled. -
On all the evidence the undersigned concludes and finds that by laying off
Cornelious on May 19, 1945, the respondent did not discriminate in regard to,
his hire and tenure of employment.
Following May 19, 1945, one or two first-class mechanics were loaned to the,
erection and maintenance department from time to time 26 On August 15, 1945,
the assistant foreman of the erection and maintenance department left the re-
spondent's employ. From that time on, an employee named Harriman, a first-
class mechanic with less seniority than Cornelious, was given the occasional work
in the erection and maintenance department and on November 8, 1945, he was
appointed assistant foreman on a trial basis. On January 3, 1946, Harriman
was officially made assistant foreman of the erection and maintenance depart-
ment. On February 9, 1946, Harriman was transferred to the machine shop,
where he is still rated as an assistant foreman but is not acting as such and is
receiving less pay than a first-class all-around machinist. No first-class me-
chanics have been hired in either the erection and maintenance division or in
the plate department since Cornelious' lay-off "' The respondent gives seniority
on a basis of length of service in a department and classification.
While there appears to have been sufficient work in the erection and main-
tenance department for a first-class mechanic in November 1945, and Cornelious
would normally have been expected to be recalled at that time, there is no evidence
that the respondent regarded Cornelious as better fitted than Harriman for the
prospective promotion to the position of assistant foreman. The respondent
recognized seniority as governing in cases of promotion only in the event of equal
ability. Cormack testified that Cornelious would be offered employment if work
became available. Under the circumstances the undersigned finds that the evi-
dence is inadequate to establish that the respondent discriminatorily failed or
refused to reinstate Cornelious.
2. The discharge of George Murphy
George Murphy was employed by the respondent on November 6, 1945, as a
third-class mechanic in the plate shop. A week later the employees went on a
"Harriman and Farquhar. Several others of different classifications were also loaned
for short times
21A third-class mechanic was hired in the erection and maintenance department on
January 9, 1946, and two third- class mechanics were hired in the plate shop in November,
1945. On July 19, 1945, Farquhar was promoted from second to first -class mechanic in
the plate shop.
UA;DERWOOD MACHINERY COMPANY 665
strike as previously related It was on December 2, during the strike, that the
meeting, hereinbefore detailed, was held at which Murphy outspokenly opposed
Cormack's attempt to get the men back to work. After that meeting Cormack
told employee Frost, who had helped arrange the meeting, that Greenwood
and Murphy were there to break up the meeting and that if it had not been for
them he thought the men would have returned to work the following day. As
previously related, the Union terminated the strike on December 8, and with the
exception of the few men who returned a day or two early, the men returned
to work on Monday, December 10, 1945.
On December 10, Atkins assigned Murphy to the job of assembling sand-
spreader racks, the same job he had been working on before the strike. Prior
to the strike Murphy had worked with employees Greenwood and Detore under
the supervision of a lay-out man At that time Atkins expressed his satisfaction
with the progress being made on the work The first day after the strike Murphy
was assisted only by Detore. That morning Atkins asked Murphy how they were
getting along and Murphy replied that they were doing all right and that he
thought he could handle it all right, referring to the fact that the lay-out man
who had been supervising the work had not returned after the strike. The fol-
lowing day, Murphy was working with Greenwood and Detore on the same
job when Atkins came and complained that they were not organizing their work
so as to get the most speed Atkins showed them how to proceed, and they said
they would try to push the job along faster. The next day, while Murphy
was working with Detore alone, Atkins again complained that the work was
going too slowly Murphy told Atkins they would push the work faster that
afternoon. On December 18 at 9 a. in. Atkins told Murphy and Detore that he
wanted more speed and Murphy said they would' try to go faster At 11 a. M.
the same morning Atkins again spoke to Detore and Murphy This time Murphy
said he did not think they could do any better than they were doing. That
afternoon Murphy reported to Atkins that the job was finished and Atkins
expressed surprise. Murphy said they had "really moved along" that afternoon.
On December 19, 1945, Atkins told Murphy to report to Lallemand, then fore-
man of the erection and maintenance department, for an assignment Lallemand
told him to report to Mads Skaannmg, the department's mason and carpenter,
who was to assemble some steel stock-bins. Skaanning was busy with another
job, and he told Murphy to wait for him upstairs where they were to work
together. Murphy might have been capable of starting the work alone (although
he was not expected to do the whole job by himself);' but since he had not
worked on this type of bins before, Murphy felt it would be going over the head
of Skaanning, whom he regarded as his boss on the job, to start before Skaan-
ning arrived At 9 a in. that morning Atkins went to the third floor where
Murphy had been told to go by Skaannmg. There he observed that Murphy
was not working and asked him what he was supposed to be doing. Murphy
told him, and Atkins said to get going but then sent Murphy after an electric
light bulb he needed in the storeroom Murphy procured the bulb. When
Atkins came out of the storeroom he looked to see if Murphy had started work-
ing. He did not see him around. Atkins testified that he did not attach any
particular importance to Murphy's absence, since he might have gone after
Skaannmg Atkins returned again at 10-30 a in and saw Skaanning and
Murphy working together That morning Skaamnng and Murphy completed
one bin.
2S On direct examination for the respondent , Atkins testified that Murphy could not
"too well" work on them alone.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the same floor that morning, an employee named Hogan, from the drafting
room, was supervising three men in the stocking of the sand-spreader racks
already completed. Hogan was having an argument about nationalities with
the men he was directing, and at one point he yelled across at Murphy that he
was glad he (Hogan) was not Irish. Murphy made a retort that it was too bad
lie could not be.
About noon that day, Atkins went to see Cormack about discharging Murphy.
He told Cormack that he thought Murphy was not producing as much as he
should. He related the occasions when he had spoken to Murphy and the other
men about the work on the sand-spreader racks, told of finding Murphy idle that
morning, and said that Murphy apparently had done nothing from 8 to 9 o'clock
Cormack told Atkins that he had heard that Murphy was doing a lot of talking
instead of working However, Cormack testified that the person who told him
there was a lot of talking on the third floor did not mention any names but
said all the men were talking While Atkins testified that the report that
Murphy had been talking did not influence him in discharging Murphy, Cormack
testified that, for his part, he considered it as one of the reasons for the dis-
charge. That afternoon Cormack checked up with Skaanning to see what he
had been doing that morning before starting work with Murphy. Then he re-
turned to Atkins and, as he testified, "straightened out the story between" them.
Thereupon they determined to discharge Murphy.
At quitting time that day, December 19, 1945, Atkins notified Murphy that he
was discharged. Murphy asked why and if it was his work. Atkins said it was.
Murphy asked if Atkins realized that he had made a bin all by himself that
afternoon 29 Atkins told Murphy that there were other circumstances.3" Murphy
accused Hogan of being a stool pigeon but Atkins denied that Hogan had any-
thing to do with the matter" Cormack had Murphy's pay made up. Atkins
gave this to Murphy and the latter left.
If there were other circumstances in addition to unsatisfactory work that
motivated the discharge of Murphy, Atkins' explanation of what they were was
not credible. The undersigned is convinced that, in the absence of his bold oppo-
sition to Cormack at Bryant's house and the effect his presence there had in
prolonging the strike, Murphy would not have been discharged for the causes
given. The alleged unsatisfactory work for which Murphy was purportedly dis-
charged was his work on the sand-spreader racks with Detore and, sometimes,
also with Greenwood, and the fact that he had waited for Skaanning on the day
of his discharge without having done any work in the interim. From this, Atkins
testified that he concluded that Murphy was not "trustworthy," meaning that
Murphy did not do his best unless he was prodded by the foreman Detore and
Greenwood were included in any complaints Atkins made concerning the progress
of the work on the sand-spreader racks. Atkins explained the fact that Detore
and Greenwood were not discharged by the fact that they had been employed
11 Atkins testified that Murphy did a pretty good job on the bin
11 On direct examination Atkins explained these other circumstances as (1) his conclu-
sion that Murphy talked to the exclusion of his work (drawn from Cormack's statement
about Muiphy's talking), (2) the fact that lie thought Murphy was capable of producing
more than he did, and (3) the fact that he found Murphy loafing, Although he testified
on cross-examination that he was not influenced in his determination to discharge Murphy
by the fact that Cormack had told him that he had heard that 'Murphy had been talking,
Atkins again on redirect examination gave that as one of his reasons for discharging
Murphy
11 Evidence adduced by Board ' s counsel raised an issue as to whether Hogan had been
placed on the third floor to spy on Murphy. The undersigned finds that he, was not.
UNDERWOOD MACHINERY COMPANY 667
longer and had previously been good workmen. Normally one would expect a
new man to be blamed less than an older one regarding a failure properly to
organize and push the work along. There is no evidence that either Detore or
Greenwood was disciplined in any way The undersigned believes that Atkins
(lid not regard the slowness of Detore, Greenwood, and Murphy as cause for
discipline or even as anything unsual in a foreman's supervisory routine. 'If
Atkins had seriously regarded ,Murphy's failure to start work alone on the day
of his discharge, it is likely that he would have talked to Cormack about dis-
charging Murphy immediately instead of waiting until noon. Although Atkins
was Murphy's regular foreman, Murphy was that day assigned to Foreman
Lallemand, but the latter apparently was not consulted about Murphy's dis-
charge. The undersigned finds evidence in the record indicating that, at 9 a. in.,
Atkins regarded Murphy as only partly to blame for his idleness that morning
because it was the foreman's duty to organize his workers so that none would
be idle. Cormack's blame of Murphy for talking while he was working with
Skaanning was obviously exaggerated and unfair. The undersigned finds in
the events following the strike, in their timing, and in the manner in which the
respondent's witnesses testified, evidence that the respondent was looking for a
justification for discharging Murphy. From the foregoing and the entire record
and his observation of the witnesses, the undersigned concludes and finds that
the real cause for Murphy's discharge was Murphy's outspoken stand on behalf
of the Union at the meeting at Bryant's house and not the cause given by the
i espondent
It is therefore found that, by discharging George Murphy on December 19,
1945, and thereafter failing to reinstate him, the respondent has discriminated
in regard to his hire and tenure-of employment because of his membership in,
and activities on behalf of, the Union, thereby discouraging membership in a
labor organization within the meaning of Section S (3) of the Act and interfering
with, restraining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
3. The disciplinary lay-off of John Donnelly
John Donnelly was first employed by the respondent in 1936 but not steadily
until January 1943 He was rated as an all around machinist first class. From
the start Donnelly was active in the Union and served on its original bargaining
committee He became president of the Union at the plant on September 5, 1945
His activities in connection with the Blue Room meeting on October 19, 1945, and
the strike of November 13 to December 10, 1945, have been previously related
herein
On January 7, 1946, Donnelly's foreman, Albert Pukt, gave him an assignment.
Donnelly could not find the stock which he needed for the job and was unable to
locate Pukt to report that to him. Passing by Wilbur Frost, a lay-out man then
engaged in his work, Donnelly exchanged greetings with him. Frost will be
remembered as having advocated the formation of an independent association in
the Blue Room meeting, as having sponsored the meeting at Bryant's house to
terminate the strike, and as having returned to work in advance of the bulk of
the union members. Donnelly stopped at Frost's bench and asked, "Are you still
going to stay in the Union with us?" Frost stopped work, explained how he felt
about it, and they conversed for about 3 minutes Cormack, on his way from the
office to the plate shop, observed the start of the conversation When Cormack
finished his business in the plate shop, he went to Frost and asked him what Don-
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nelly was talking to him about Frost said that Donnelly was asking him to pay
up his back dues in the Union Cormack asked if that was all they talked about
and Frost said they had talked about other things but that was the main thing '=
Cormack then went to Pukt and asked if he had any knowledge of Donnelly's
currying on any union activities during working hours Pukt said that he had
seen Donnelly talking occasionally with other men but that he did not know
what they were talking about That afternoon Cormack told Underwood about
Donnelly's talking union business during working time. Underwood said that
was what they had to stop. It was thereupon decided to lay Donnelly off for a
week as a disciplinary measure a Cormack then instructed I'ukt to lay Donnelly
,off.
At about 5: 10 p in that evening. Pukt called Donnelly into his office and told
him that he had been told to lay him off for a week for engaging in union activities
during working hours He also said that he had orders to discharge Donnelly
if Donnelly engaged in any more talk about union subjects during working limns
after he returned from his lay-off Donnelly remained away until January 17, a
few days longer than lie was obliged to u Employees had been given no previous
warning that disciplinary action would be taken against them for talking about
union subjects during working time There had previously been no rule against
talk of any kind during working hours Cormack testified that he would not have
laid Doonnelly off if the latter had been talking of something other than union
subjects" The difference, according to Cormack, was that he deduced that there
would be more frequent interruptions caused by talk on union subjects than other
subjects.
Whether Cormack was justified in making such a distinction 3a is immaterial
in the instant case Since conversations had not previously been prohibited in
instances such as Donnelly 's conversation with Frost, the lay-off of Donnelly,
without any prior warning to him and without any general announcement of the
rule then inaugurated , was patently a discrimination against him because of his
union membership and activity.
The undersigned finds that by laying John Donnelly off for one week on
January 7, 1946, because of his union membership and activity, the respondent
discriminated in respect to his hire and tenure of employment , thereby discourag-
ing membership in a labor organization within the meaning of Section 8 (3) of
the Act, and interfering with, restraining , and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
4. The lay-off of Dlads Skaanning
Mads Skaanning was employed by the respondent on April 18, 1944, in the
erection and maintenance department as a third-class mechanic at 85 cents per
hour to do general maintenance work. Some time after Skaanning was hired,
the respondent learned that he was a good mason and bricklayer and asked
ax Donnelly testified that he observed Cormack talking to Frost for i/ hour
as Cormack gave as his reason for not disciplining Frost that he did not regard Frost
as the "instigator of the incident."
as It was on January 17, 1946 , that Lallemand told Donnelly , as previously related, that
the respondent had "these fellows stifled " and did not want to give them another start.
as In this connection , the respondent ' s grant of a half hour ' s working time to discuss
the foiniation of an association is significant.
^ Cormack testified that there was no drop in production following the strike but that
in fact there was a rise , which led them to believe there was less union talk after the
strike than before but since they regaided union talk as a cause of lack of production they
-decided to prevent it by penalizing it.
UNDERWOOD MACHINERY COMPANY 669
Skaannrng to do repair brickwork. Skaanning on two occasions refused to do
such work for less than bricklayer's pay. Each time Cormack assured Skaannrng
that he was the kind of man they needed around there and that it was a lifetime
job.'' Cormack also told Skaanning that he would get a raise periodically until
he reached $110 per hour Skaanning agreed to do the brickwork for regular
wages as long as it was not a major part of his work. It was agreed that an
adjustment would be made in Skaanning's pay if he were required to do masonry
or bricklaying continuously as in the building of new buildings This never
occurred. Twice there was brickwork to do and once there was a cement floor
to lay. The rest of Skaanning's time was spent doing miscellaneous work such as
glazing, painting, furniture repairs, laying wooden floors, patching cement floors,
moving machinery, rough carpentry, repairing machinery, and occasionally going
out on a job with the outside crew. On January 9, 1940, the respondent added a
third-class mechanic and a helper to the erection and maintenance department.
These men did the same kind of general maintenance work SkaammDg was doing.
From October 1945 to the (late of his lay-off, Skaanning did no brickwork. In
February 1946 Skaanning was earning $1 10 per hour
On September 5, 1945, Skaanning was elected to the bargaining committee of
the Union, and with that committee went to see Cormack before the strike in
November 1945r As previously related, Lallemand told Skaanning on about
January 17, 1946, that he had just come from the office where lie had been told
to keep his eyes and ears open for union talk especially as to Skaanning
On January 9. 1946, a helper and a third-class mechanic were added to the
erection ail niai,itenanre department Lallemand testified that on February 9,
1946, he talked to Cormack about the fact that the work in his department was
falling off and he was having difficulty keeping the men busy. Cormack sug-
gested painting the men's locker room. Lallemand thought of one or two other
paint jobs which be said would take care of the helpers, but there were other
employees, lie said, for whom he had no work 38 and he told Cormack that he
did not even need his assistant, Harriman. It was decided to transfer Harriman
to the machine shop and to lay Skaanning off. At a little after 4 p. M. that day
Lallemand notified Skaanning that he was laid off. The only reason he gave
was that there was no more brickwork. Lallemand gave Skaanning his pay.
The latter has not since been recalled.
The fact that the respondent added two men to the erection and maintenance
department in January 1946 3° to do work similar to the work Skaanning had been
doing indicates either that the work inside had increased or that the respondent
added those men in anticipation of laying Skaammng off. The record discloses
no additional maintenance work which Skaanning would have been unable to
handle. Skaanning was the only carpenter in the department 40 The two new
men did general maintenance work like Skaanning. Neither of the two older
men retained in the erection and maintenance department after Skaanning's lay-
off customarily did the kind of work Skaanning did Cormack testified that prior
to October 1945 about 25 per cent of Skaanning's work had been skilled work
37 Cormack denied this The undersigned bases his finding on Skaanning's credited
testimony-
's The two new men were not replacements of anyone leaving the respondent's employ.
That the outside work of the erection and maintenance department had fallen off since
the termination of the war is undisputed But this refers to outside contractual work on
which Skaannrng apparently spent little time Skaanning's work was principally mainte-
nance work around the respondent's premises
10 Corniack testified that the new men were doing rough carpentry work such as Skaanning
had done
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whereas after that date 10 per cent had been skilled work. The record indicates
that there was no change in the customary amount of maintenance work after
Skaanning's Jay-off. Unless some special project were being planned, which was
not shown, the respondent could have foreseen that only the normal amount of
maintenance work would be in prospect. It does not seem reasonable that the re-
spondent would not have foreseen that, with three men doing only the ordinarily
existing maintenance work, there would soon have been a shortage of work for
at least one of them But even if the respondent had mistakenly employed too
many men, the undersigned is convinced that it would not normally have laid
off an old and valued hand to keep one recently employed. Skaanning was not
hired originally because of his skill as a mason , and the undersigned is not con-
vinced that his services were retained as long as they vvere merely because of,
such skill. The respondent used Skaanning's special skill only occasionally and
apparently without any planned program. On February 9, 1946, when Skaanning
was laid off, there could be no assurance that occasion for similar work might
not arise in the future. If the respondent had intended to retain Skaanning's
services only when it could foresee masonry jobs, it would have laid Skaanning
off in the fall of 1945, after which he had no more of such work. In view of this,
the respondent's obvious prejudice against the Union, its avowed desire to keep
it stifled, the fact that on January 17, 1946, just about three weeks before
Skaanning's lay-off, Lallemand repeated what he had been told in the office-
that`he was to keep his eyes and ears open for union talk on the second floor and
especially as to Skaanning and from all the evidence, the undersigned con-
cludes and finds that the new maintenance men were added in anticipation of
Skaanning's lay-off, and that Skaanning was laid off because of his union member-
ship and activity.
By laying Mads Skaanning off on February 9, 1946, and thereafter failing to
reinstate him, the respondent has discriminated in regard to his hire and tenure
of employment, theieby discouraging membership in a labor organization within
the meaning of Section S (3) of the Act and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commeice and the free flow of commerce.
V. THE REMEDY
It has been found that the respondent violated the Act by (1) making disparag-
ing and belittling remarks about, and expressions of disapproval of, the Union
and its International Representative, (2) urging its employees to abandon the
Union, (3) urging and offering inducements to the employees to form an inde-
pendent association and lending them assistance in furtherance thereof, (4)
refusing to follow the stipulated grievance procedure for appeals on company
time, (5) dealing individually with employees relative to grievances, wage
increases, and other matters relating to working conditions, (5) unilaterally
inaugurating a profit-sharing plan, (6) giving its employees paid time to discuss
formation of an independent association while threatening the employees with
UNDERWOOD MACHINERY COMPANY 671
discipline or discharge for talking about the Union on company time, (7) threaten-
ing to close the plant if the employees did not give up their unfair labor practice
strike, (8) laying off Frank Cornelious on December 29, 1944, John Donnelly on
January 7, 1946, and Mads Skaanning on February 9, 1946, and failing and
refusing to reinstate said Skaanning, and (9) discharging George Murphy. It
has also been found that, on or about November 29, 1944, and at all times there-
after, the respondent refused to bargain collectively with the union as the duly
designated statutory representative of its employees.
Upon the entire record the undersigned infers and finds that the respondent by
its foregoing coercive course of conduct, and particularly by the discriminatory
discharge and lay-offs, has displayed an attitude of opposition to the purposes of
the Act. Because of the respondent's unlawful conduct and the underlying pur-
poses manifested thereby, the undersigned is convinced and finds that the unfair
labor practices which it has committed are persuasively related to the unfair
labor practices proscribed by the Act, and that the danger of the commission in
the future of any or all of the unfair labor practices listed in the Act is to be
anticipated from the respondent's conduct in the past. The preventive purposes
of the Act will be thwarted unless the remedy is coextensive with the threat. It
will therefore be recommended that the respondent cease and desist not only
from the unfair labor practices herein found, but also from in any other manner
interfering with, restraining, or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act
It has been found that the respondent discriminated in regard to the hire and
tenure of employment of George Murphy and Mads Skaanning There is evi-
dence that the respondent had no work for third-class mechanics in the plate shop
after February 6, 1946, other than for a reinstated service man. With respect
to George Murphy, therefore, it will be recommended that he be placed on a
preferential hiring list and that, when there is work available for another man
as a third-class mechanic in the plate shop or in a substantially equivalent posi-
tion, the respondent then offer George Murphy full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges. With respect to Mads Skaanning, it will be recommended
that the respondent offer him immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges, replacing if necessary anyone hired by the respondent,
after the date of Skaanning's lay-off to perform the work customarily performed
by him, or replacing either or both of the employees which the respondent added
to the erection and maintenance department on January 9, 1946, to do such
work
It will be further recommended that the respondent make said Murphy whole
by paying him an amount equal to that which he normally would have earned
as wages from the date of the discrimination against him to February 6, 1946,
and from the date on which the respondent has available work for another man
as a third-class mechanic in the plate shop, or in a substantially equivalent posi-
tion, to the date of the respondent's offer to reinstate him, less his net earnings"
"By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
iiheie than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company, 8 N. L R B 440 Monies received for work performed
upon Federal, State, county, municipal, or other work-relief projects shall be considered
is earnings See Republic Steel Corporation v. N. L. R. B , 311 U S 7.
755420-48-vol 74-44
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during such respective periods. Payment for the first period should be made at
once.
It will be further recommended that the respondent make whole the said Skaan-
ning for any loss of pay which he may have suffered by reason of the discrimina-
tion against him by payment to him of a sum of money equal to that which he nor-
mally would have earned as wages from the date of the discrimination against
hmi to the date of the offer of reinstatement less his net earnings 42 during said
period.
Since it has been found that the respondent discriminated against Frank Corne-
lious and John Donnelly by laying each of them off for a period of 1 week, it
will be recommended that the respondent make each of them whole for any loss
,of pay he may have suffered during that time, by payment to each of them of a
sum of money equal to that which he normally would have earned as wages dur-
eng his week's lay-off, less his net earnings (luring said period.63
Since it has been found that the respondent on November 29, 1944, and at all
times thereafter, tailed and refused to bargain collectively with the Union as
m:the exclusive representative of its e ployees in an appropriate unit, it will be
recommended that, upon request, the respondent bargain collectively with the
Union as the exclusive representative of its employees in said appropriate unit.
Since it has been found that the respondent has not discriminated in regard to
the hire and tenure of employment of Frank Cornelious by laying him off on
May 19, 1945, and thereafter failing and refusing to reinstate him, it will be
recommended that the complaint be dismissed as to such allegation
Upon the basis of the foregoing, findings of fact and upon the entn e recoi d in
the case, the undersigned makes the following:
'
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, affiliated with the Congress of Industrial Organiza-
tions, is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the respondent, including the
employees in the erection and maintenance department, toboggan hoist depait-
ment, and shipping employees, but excluding the engineering department em-
ployees, subforemen, assistant foremen, foremen, office clerical employees, guards,
and all other supervisory employees with authority to hire, promote, discipline,
or otherwise effect changes in the status of employees or effectively recommend
such action, constitute and at all times material herein have constituted a unit
appropriate for the purposes of collective bargaining within the meaning of Sec-
tion 9 (b) of the Act
International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America (C. I 0 ), was on November 17, 1944, and at all
times thereafter has 'been, the exclusive representative of all the employees in
the above described appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act
4. By refusing on and after November 29, 1944, to bargain with the Union,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act
5. By discriminating in regard to the hire and tenure of employment of Frank
Cornelious (by laying him off on December 29, 1934), George Murphy, John
42 See footnote 41, supra.
43 See footnote 41, supra.
UNDERWOOD MACHINERY COMPANY 673
Donnelly and Mads Skaanning, thereby discouraging membership in a labor
organization, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act
6 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
7 The aforesaid unfair labor practices are unfair labor practices affecting
-commerce within the meaning of Section 2 (6) and (7) of the Act.
8 The respondent has not discriminated in regard to the hire and tenure
of employment of Frank Cornelious within the meaning of Section 8 (3) of the
Act by laying off the said Cornelious on May 19, 1945, and thereafter failing
and iefusing to reinstate him
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Underwood Machinery Company, its officers,
agents, successors, and assigns shall:
1 Cease and desist fi oiu
(a) Refusing to bargain collectively with International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America (C. I. 0 ),
as the exclusive representative of its employees in the unit herein found to be
appropriate; -
(b) Discouraging membership in International Union, United Automobile,
Aircraft and Agricultural Implement Workers of America (C. I. 0.), or any
other labor organization of its employees, by laying off, discharging, or refusing
to reinstate any of its employees, or in any other manner discriminating in
regard to the hire and tenure of employment or any term or condition of
employment of any of its employees :
(c) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of the rights of self-organization, to form labor organiza-
tions, to join or assist International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America (C. I. 0.), or any other labor
,organization, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Union, United
Automobile, Aircraft and Agricultural Implement Workers of America (C. I. O.).
as the exclusive representative of all the respondent's production and mainte-
nance employees, including the employees in the erection and maintenance de-
partment, toboggan hoist department and shipping employees, but excluding the
engineering department employees. subforemen, assistant foremen, foremen,
office clerical employees, guards, and all other supervisory employees with au-
thority to hire, promote, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action,'in respect to rates of pay, wages,
hours of employment, and other terms or conditions of employment ;
(b) Place George Murphy on a preferential hiring list and, when work is
available for another man as a third-class mechanic in the plate shop or in a
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantially equivalent position, offer him full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority and other
rights and privileges;
(c) Offer Mads Skaanning immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority and
other rights and privileges, replacing if necessary anyone hired by the respond-
ent, after the date of Skaanning's lay-off, to perform the work customarily per
formed by Skaanning, or replacing either or both of the employees which tho
respondent added to the erection and maintenance department on January 9.
1946, to do such work ;
(d) Make whole George Murphy by paying him an amount equal to that which
he would have earned as wages from December 19, 1945, the date of the discrim-
ination against him, to February 6, 1946, and for the period between the date
on which the respondent, subsequent to the date of the hearing, has work avail-
able for another man as a third-class mechanic in the plate shop or in a sub-
stantially equivalent position and the date of the offer to reinstate him, less
his net earnings 44 during such respective periods. Payment of the sum for the
first period shall be made at once and shall not await the time when there might
be sufficient work to require the respondent to offer reinstatement to said Murphy ;
(e) Make whole Mads Skaanning for any loss of pay he may have suffered
by reason of the respondent's discrimination against him, by payment to him
of a sum of money equal to the amount he would normally have earned as wages
i`i om the date of the discrimination against him to the date of the respondent's
offer of reinstatement, less his net earnings 96 during said period ;
(f) Make whole Frank Cornelious and John Donnelly for any loss of pay they
may have suffered by reason of the respondent's discrimination against them
by payment to each of them of a sum of money equal to the fimount each woul
normally have earned as wages during the 1 week period for which each was
laid off, less his respective net earnings46 during said period;
(g) Post immediately at its plant in Boston, Massachusetts, copies of the
notice attached hereto and marked "Appendix A " Copies of said notice, to be
furnished by the Regional Director of the First Region (Boston, Massachusetts),
shall, after being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof and maintained by them for sixty
(60) consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be
taken by the respondent to insure that said notices are not altered, defaced, or
covered by any other material;
(h) Notify the Regional Director for the First Region (Boston, Massachu-
setts) in writing, within ten (10) days from the date of the receipt of this Inter-
mediate Report what steps the respondent has taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that Frank Cornelious was discriminatorily laid off or discharged on May 19,
1945.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Di-
rector in writing that it will comply with the said recommendations, the National
Labor Relations Board issue an order requiring respondent to take the action
aforesaid.
44 See footnote 41, supra.
45 See footnote 41, supra.
46 See footnote 41, supra.
UNDERWOOD MACHINERY COMPANY 675
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may, within fifteen (15) days from the
date of the entry of the order transferring the case to" the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D. C., an original and tour copies of a
statement in writing, setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all mo-
tions or objections) as he relies upon, together with the original and four copies
of a brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party de-
sire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
JAMES R. HEMINGWAY,
Trial Examiner.
Dated May 13, 1946.
"APPENDIX A"
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist INTERNATIONAL UNION, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA (C. I. 0 ), or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
WE WILL OFFER to Mads Skaanning immediate and full reinstatement to
his former or substantially equivalent position and, when work is avail-
able for another man as a third-class mechanic or in a substantially equiva-
lent position, we will offer George Murphy full reinstatement to his former
or substantially equivalent position, each without prejudice to any seniority
or other rights and privileges previously enjoyed, and make each of them
whole for any loss of pay suffered as a result of the discrimination. We will
also make whole Frank Cornelious and John Donnelly for any loss of pay
they may have suffered as a result of the discrimination against them
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is : All produc-
tion and maintenance employees, including employees in the erection and
-maintenance department, toboggan hoist department, and shipping employ-
ees, but excluding the engineering department employees, subforemen, assist-
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ant foremen, foremen, office clerical employees, guards, and all (other super-
visory employees with authority to -hire, promote, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such,
action.
All dur employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to,,
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor-
organization.
UNDERWOOD MACHINERY COMPANY,
Ensployer
Dated-------------------------- By--------------------------------------
(Representative ) (Title)
NOTE.-Any of the above- named employees presently serving in the Armed,
Forces of the United States will be offered full reinstatement upon application,
in accordance with the Selective Service Act after discharge from the Armed-
Forces.
This notice must remain posted for 60 days from the date hereof. and must not
be altered, defaced, or covered by any other material
SUPPLEMENTAL INTERMEDIATE - REPORT
Mr. Leo J Halloran, for the Board
Mr. Benjamin E Goi don, of Boston, Mass, for the Respondent.
STATEMENT OF THE CASE
On May 13, 1946, the undersigned issued his Intermediate Report, recom-
mending among other things that Underwood Machinery Company, herein called
the Respondent, upon request bargain with International Union, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America (C. I. 0.),
herein called the Union. Thereafter the Respondent filed exceptions to the
Intermediate Report, and during oral argument before the National Labor
Relations Board, herein called the Board, Respondent's counsel moved to reopen
the record to receive evidence with respect to alleged activity of supervisory
employees of the Respondent interfering with the conduct of the election held on
November 17, 1944, in Case No. 1-R-2044 On October 30, 1946, the Board
issued an order to reopen the record and ordered that a further hearing be held
for the purpose of receiving evidence solely on the issue of whether supervisory
employees of the Respondent interfered with the conduct of the said election.
Pursuant to notice duly served on the Union and the Respondent a further
hearing was held in Boston, Massachusetts, on January 6, 1947, before the
undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The
Board and the Respondent were represented by counsel. No appearance was
entered for the Union. Full oppoitunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
the parties 1 At the conclusion of the testimony, Board counsel argued orally-
The Respondent alone filed a brief with the Trial Examiner.
1 On application by Respondent 's counsel , the Board , by the aforesaid Regional Director,
on January 3, 1947 , issued its subpoena directing Jesse L. Bowser (a former foreman of
the Respondent ) to appear as a witness Bowser failed to appear The Respondent closed
its case without asking for enforcement of the subpoena.
UNDERWOOD MACHINERY COMPANY 677
From his observation of the witnesses and upon the record in the reopened
hearing, the undersigned makes the following:
FINDINGS OF FACT
Leo Griffin was employed by the Respondent in October 1943 in the erection
and maintenance department as a millwright During the spring of 1944 when
the foreman of that department, Jesse Bowser, was going to be away, he would
tell Griffin to take care of things while he was gone. During such time, Griffin
would assign jobs to the proper maintenance men and would make recommenda-
tions on disciplinary action He exercised no authority when Bowser was present.
During the late summer of 1944 while the Union was organizing, Griffin was
on an "outside" job at Lynn, Massachusetts. One day early in September when
Bowser came to Lynn with Griffin's pay check, Bowser told Griffin that the Union
had been organized and that he would have to get into it.' Griffin said he thought
he was an assistant foreman and not eligible. Bowser replied that Griffin was
what Bowser made him, and in a vulgar expression Bowser indicated that that
was a negative quantity. From this, Griffin understood Bowser to mean that he
was not an assistant foreman.
Thereafter Griffin joined the Union' and was made a steward and member of
the bargaining committee' The committee asked him whether he considered
himself to be an assistant foreman and he indicated that he did not.
On September 5, 1944, when the committee was in the Board's Regional Office,
in reference to the coming election, the Respondent's attorney, Benjamin Gordon,
told Griffin that he should not have been there as he was an assistant foreman.
Griffin challenged the statement and Gordon said he would be notified. Griffin,
told Cormack, personnel pianager and assistant to the president of the Respondent,
what Gordon had said and commented that he thought there should be an official
notification. According to Griffin's testimony, Cormack replied that he would see
that there was notification. According to Griffin's testimony, the foregoing con-
versation occurred before the election, but at another point in his testimony he
said that the first official notification he had that he was an assistant foreman
was after the election when Cormack called him in and told him he was an assist-
ant foreman. Griffin told Cormack be would like to have the shop notified of is
as no one seemed to believe it.
2 The petition for certification in the representation case was filed on August 15, 1944.
As of the week ending September 6 there were approximately 71 employees in the appro-
priate unit. The Field Examiner ' s statement introduced in evidence in thgt case indicated
that of 60 membership cards submitted , 47 were of persons on the pay roll on the latter
date
8 Union President Donnelly gave Griffin an application card when Griffin told the former
he was eligible to join At one point, Griffin quoted Donnelly as saying at the time, "I
understand you have to join the Union " At another point he testified that Donnelly had
found out what Bowser had told him and that Donnelly had told Griffin he was eligible
to join. Donnelly denied that he had heard that Bowser had said Griffin had to join the
Union'and gave a version of the conversation which omitted any reference to compulsion
The undersigned credits Donnelly 's denial
4 The Respondent 's counsel in his brief to the Trial Examiner argues that there was a
coercive influence arising from the fact that about 10 employees were standing together
in the shop when Griffin walked in with Bowser and in Bowser's presence one of the men
asked Griffin to be their steward There is no evidence that Bowser either encouraged or
discouraged the employees in this selection The undersigned does not regard the incident
as significant.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cormack testified that he had had a conversation with Griffin about his being
an assistant foreman and that Griffin had said he would like a written notification.
Cormack was not certain as to the time of this conversation, but said that it
"may well have been before the election." Cormack's testimony of this con-
versation coincided with the one testified by Griffin as having occurred after the
election. Griffin's testimony was filled with contusion as to the time of occur-
rences and it is difficult to fix the time of his official notification that he was an
assistant foreman. It is clear that Griffin was in doubt as to his status until after
the election. But despite this doubt, he continued to take charge in Bowser's
absence. Apparently the employees were not informed that Griffin had any official
position, for some of them refused to take orders from Griffin prior to the election.
On the day of the election, Griffin was wearing a "Vote-Yes" button. Bowser
told him the people in the office did not want him to wear it. Cormack testified
that he had told Bowser to tell Griffin he was an assistant foreman and was not
to vote in the election. Bowser did not tell Griffin this.
About 2 weeks after the election, after Griffin received notification from Cor-
mack that he was an assistant foreman, he resigned from the Union
With respect to assistant foremen, Cormack testified that when the Respondent
wished to ascertain if a man was qualified to become an assistant foreman, it
gave such man temporary authority until such time as he proved his ability
to carry out his new duties 6 The undersigned infers that Griffin was informally
permitted to act as a vice foreman until about 2 weeks after the election when he
was made an assistant foreman The Respondent's informality gave rise to con-
fusion in the mind of Griffin and employees in his department as to Griffin's
status.
The Respondent relies upon the conduct of Bowser and Griffin to support its
contention that supervisors interfered with freedom of choice of the employees.
On the evidence adduced at this hearing, Bowser's pre-election interference
appears to have been confined to telling Griffin to join the Union.' This was done
21/2 months prior to the election in Lynn, Massachusetts, where Griffin was work-
ing apart from the other employees Griffin's vote in the election was challenged
on the ground that he was a supervisor, and it was not counted. There is no
evidence that any employee was told how to vote, nor were there any suggestions
of reprisals' The Board has said,
In all cases where . . the validity of a Board election is challenged
on grounds other than direct interference or irregularity in the voting process
itself, there is a strong presumption that the ballots, cast in secrecy under
the safeguards regularly provided by our procedure, reflect the true desires
of the participating employees. We will, however, set aside an election if
it appears that the employees eligible to vote therein were precluded from
exercising a free choice by antecedent conduct or episodes which were
5 At the previous hearing, Cormack testified that when Griffin left the Respondent's
employ on August 15, 1945, Harriman was appointed assistant foreman on a ti ial basis
and that his appointment was made effective on January 3, 1946
'Bow ser was quoted by Griffin as having said that he thought the Union was a "good
thing" and that he had carried a union card for 25 years The undersigned does not regard
such statement as interfeience in itself
7 Since Gi ifiin's ballot was not counted, the effect which Bowser's attitude had on hum
personally m of little consequence. However, it may be noted that Griffin was put
on notice that Bowser 's attitude was not the official attitude of the Respondent when
Bowser told Griffin that the people in the office did not want him to wear a "Vote Yes"
button
UNDERWOOD MACHINERY COMPANY 679
both (1) coercive in character and (2) so related to the election, in time
or otherwise as to have had a probable effect upon the employees' action
at the polls s
The undersigned finds that Bowser's conduct does not fall within the second
requirement laid down by the Board.
Assuming for the sake of argument that'Griffin did occupy a supervisory posi-
tion, the Respondent had knowledge of his union activities from September 5,
1944, on. With this knowledge the Respondent had it within its power to
correct any misapprehension that may have been raised in the minds of the
employees by disclaiming Griffin's favorable attitude toward the Union as an
official one or by demoting Griffin: Although Gordon told Griffin he was an assist-
ant foreman and should not be engaging in union activities, Griffin questioned
Gordon's statement. Gordon told Griffin he would be notified, but neither Cor-
mack nor Underwood, the only two officials of the Respondent, nor Bowser, his
foreman, made it clear to him prior to the election that he should discontinue
his union activity or be demoted. The Respondent even left a doubt in the minds
of Griffin and the employees in his department that he had any supervisory
status. Under the circumstances, the Respondent must be deemed to have
considered the matter of insufficient merit to require any action. But even if
the Respondent had not dismissed Griffin's activity as unimportant, it would
be too late now to raise the objection in view of the fact that it had knowledge
in ample time to file its objection to the conduct of the election as required by
Board rules . This it failed to do.'
On all the evidence the undersigned concludes and finds that the actions
of the Respondent's•supervisory employees did not constitute interference with
the conduct of the election of November 17, 1944, or the employees' freedom
of choice therein, within the test laid down by the Board as a necessary pre-
requisite to vacating the certification of the Union chosen as the exclusive repre-
sentative of the employees in the unit found appropriate Accordingly, the
undersigned reiterates the Conclusions of Law and Recommendations heretofore
made in his Intermediate Report of May 13, 1946.
As provided in Section 203 43 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, witliin fifteen (15) days from the date of service
of this Supplemental Intermediate Report file with the Board, Rochambeau
Building, Washington 25, D C., an original and four copies of a statement
in writing setting forth such exceptions to the Supplemental Intermediate Re-
port or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof , and any party or counsel for the Board may,
5 Matter of Maywood Hosiery Mills, Inc., 64 N L. R B 146 at 150 In his brief to the
Trial Examiner, Respondent's counsel cites Matter of Wells, Inc., 68 N L R. B 545, as
controlling That case did not involve a certification following an election by secret ballot
under Board auspices as here Nor did it appear that the Respondent's supervisors par-
ticipated in the Union ' s organization of a majority of the employees as in the Wells case.
The evidence in the instant case indicates that the Union already had a majority prior
to the time that Bowser told Griffin to join. This case is therefore distinguishable like-
wise from Matter of Robbins Tire and Rubber Co , Inc, 72 N. L R B 157 , where the
supervisors actively engaged in solicitation , intioduced the union business agent to
employees at a picnic , and passed out application cards while the business agent was
addressing the employees.
ICf. N. L. R B. v. A. J. Tower Co, 67 S. Ct 324 (aff'g 60 N. L. R. B. 1414).
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the same period, file an original and four copies of a brief in support
of the Supplemental Intermediate Report. Immediately upon the filing of such
statement of exceptions and/or briefs, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and
shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203 65. As further provided in said Section 203.43, should any party
desire permission to argue orally before the Board, request. therefor must be
made in writing to the Board within ten (10) days from the date of service
of this Supplemental Intermediate Report.
JAMES R HEMINCWAY,
Trial Examiner.
Dated February 7, 1047.