Wickwire Brothers

National Labor Relations Board - Board Decisions

Oct 23, 1939

16 N.L.R.B. 316 (N.L.R.B. 1939)

In the Matter Of `ICKWIRE BROTHERS and AMALGAMATED •ASS'N. OF
IRON, . STEEL & TIN WORKERS OF NORTH AMERICA , LODGE. #1985,
THROUGH S . W. O. C., AFFILIATED WITH TIIE C. I.. O..
Case No. C-1004.-Decided October 23, 1939
Wire and Screening Manufacturing Industry-Interference, Restraint, and
Coercion: posting of notice by the respondent containing statements in derogation
of a labor organization; coercive statements made by the respondent's super-
visors to its employees ; responsibility of employer for acts of its supervisory em-
ployees which are not effectively disavowed ; presence of supervisory employees
at a meeting of its employees, and participation therein ; posting of election
notices of neutrality to remove the ill effects on the election not sufficiently
remedial of matters occurring prior thereto upon which findings of, are based-
Agreement: consent-election agreement given effect to effectuate the Act as to
dismissal of charges of violation of Section 8 (2) of the Act-
Company-Domi-nated Union: charges of, dismissed; consent-election agreement between inside
and outside unions, witnessed by agent of the Board, recognized the inside union
as capable of representing the employees; events prior to election pursuant to
such agreement not considered a basis for sustaining allegations with respect to
domination of inside union; effect of coercive statements of supervisor made
between the date of the consent-election agreement and the date of the election
removed by respondent's posting a notice of neutrality in the impending
election ; no evidence of domination after the election-Remedy: respondent
ordered to cease and desist from unfair labor practices and to post notices
stating that it will so cease and desist.
dlr. Peter J. Crotty, for the Board.
Kelly & Maher, by Mr. John H. Hughes and Mr. William L. Broad,
of Cortland, N. Y., for the respondent.
Lusk, Buck, Ames & Folmer, by Mr. Morse E. Ames, of Cortland,
N. Y., for the Association.
Mr. Milton A. Harth, of New York City, for the Amalgamated.
Mr. Roscoe L. Barrow, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Amalgamated
Ass'n. of Iron, Steel & Tin Workers of North America, Lodge #1985,
16 N. L. R. B., No. 36.
316
WICKWIRE BROTHERS 317
herein called the Amalgamated, the National Labor. Relations Board,
herein called the Board, by the Regional Director for the Third Region
(Buffalo, New York) issued its complaint dated July 19, 1938, against
Wickwire Brothers, Cortland, New York, herein called the respondent,
alleging that the respondent had engaged in and was engaging in un-
fair labor practices affecting commerce, within the meaning of Sec-
tion 8 (1) and (2) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by notice
of hearing, were duly served upon the respondent and the
Amalgamated.
The complaint alleges in substance : (a) that on or about July 1937
and thereafter, the respondent discouraged membership in the Amal-
gamated by threatening to lay off or discharge certain members of the
Amalgamated, by spying upon meetings held by the Amalgamated,
and by urging employees of the respondent to vote against the Amal-
gamated in a consent election held by the Board on March 3, 1938; (b)
that the respondent dominated and interfered with the formation and
administration of Employees Association of Wickwire Brothers, herein
called the Association, and contributed support thereto by permitting
solicitation of memberships on company time and property, by grant-
ing privileges to members of the Association while denying similar
privileges to members of the Amalgamated, by coercing its employees
to join the Association, and by coercing its employees to vote against
.the' Amalgamated in the consent election conducted by the Board on
March 3, 1938; and (c) that by these and other acts, the respondent
has interfered with, restrained, and coerced its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
The respondent's answer, dated July 27, 1938, admitted the interstate
character of its business but denied that it had engaged in or was en-
gaging in the alleged unfair labor practices.
On July 25, 1938, the Association filed with the Regional Director
its motion for leave to intervene in the proceeding to the extent that
its interests were concerned. The Regional Director granted the mo-
tion on the following day.
Pursuant to the notice, a hearing was held on August 1, 2, 3; 4, 5, 6,
8, 9, 10, 11, and 12, 1938, at Cortland New York before Charles E.
Persons the Trial Examiner duly designated by the Board. All the
parties were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.
The Board has reviewed the Trial Examiner's rulings and finds that
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no prejudicial errors were committed. The rulings are hereby
affirmed.
On October 27, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, finding
that the respondent had engaged in and was engaging in unfair labor
practices, within the meaning of Section 8 (1) and (2) of the Act. He
recommended that the respondent cease and desist from its unfair labor
practices; withdraw all recognition from the Association as repre-
sentative of its employees; completely disestablish the Association as
such representative; and post notices in the plant stating that the col-
lective bargaining contract entered into by the respondent and the As-
sociation is null and void, that the Association is disestablished, and
that the respondent will cease and desist from its unfair labor prac-
tices.
The respondent, on November 15, 1938, and the Association, on No-
vember 21, 1938, filed exceptions to the Intermediate Report. On
September 16, 1939, the respondent filed its brief. On September 21,
1939, a hearing for the purpose of oral argument was held before the
Board in Washington, D. C., in which the respondent participated by
counsel. The Board has considered the exceptions and brief filed and
the argument presented. In so far as the exceptions are inconsistent
with the findings, conclusions, and order set forth below, the Board
finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT 1
Wickwire Brothers is a New York corporation, having its princi-
pal office and place of business in Cortland, New York. It is en-
gaged in the manufacture and sale of wire, screening, and allied prod-
ucts. The principal raw materials used in its operations are pig
iron, scrap iron, ferro alloys, zinc, bronze rods, copper rods, and
paints.
During the year from July 1, 1937, to June 30, 1938, the respondent
used in its operations raw materials costing approximately $652,000.
Approximately 55 per cent of these raw materials were imported into
New York State. During the same period, the respondent manufac-
tured products having a selling price of approximately $2,580,000.
Approximately 69 per cent of these finished products were shipped
outside New York State.
' These findings are based on a stipulation of facts.
WICKWIRE BROTHERS 319
In its answer, referred to above, the respondent admits that dur-
ing 1937 and during 1938, to the date of its answer, it was engaged
in commerce, within the meaning of Section 2 (6) of the Act.
H. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Iron, Steel & Tin Workers of North
America, Lodge #1985, is a labor organization affiliated with the
Committee for Industrial Organization, and represented by Steel
Workers Organizing Committee, which is also affiliated with the
Committee for Industrial Organization.2 The Amalgamated admits
to membership all employees of the respondent who are not acting in
a supervisory capacity.
Employees Association of Wickwire Brothers is an independent
labor organization admitting to membership all employees of the
respondent who are not acting in a supervisory capacity.s
III. TIIE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The complaint alleges that on or about July 1937 and at various
times thereafter, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, thereby discouraging membership in the Amal-
gamated, by threatening to lay off or discharge certain members of
the Amalgamated, by spying upon meetings held by the Amalga-
mated, and by coercing its employees to vote against the Amalga-
mated in a consent election held by the Board on March 3, 1938.
The respondent's answer denies these allegations of the complaint.
Organizational activity in, the respondent's plant was begun by
Steel Workers Organizing Committee, herein called the S. W. O. C.,
acting for the Amalgamated, in the spring of 1937. There had been
no union activity in the respondent's plant prior to the advent of
the S. W. O. C. The Amalgamated's charter was issued during
June 1937.
On June 26, 1937, the respondent posted a notice in its plant, con-
cerning the affiliation of its employees with the Amalgamated. The
' Now the Congress of Industrial Organizations.
The constitution of the Association provides that "Any employee of Wickwire Brothers
Plant may be admitted to membership upon the signing of this Constitution until such
time as the Charter shall be declared closed. Thereafter any employee of Wickwire
Brothers may become a member upon a vote of the majority of the representatives and
the signing of this Constitution ." During the hearing members of the Association testified
that under the interpretation placed upon their constitution by them, supervisory em-
ployees are not eligible for membership in the Association and that no supervisory employees
have been admitted to membership therein.
320 DECISIONS OF NATIONAL LABOR RELATIO_NS BOARD
notice was kept posted 'until October 6, 1937, when it was taken
down on the advice of an agent of the Board. The text of the
notice is as follows :
JUNE 26, 1937.
A MESSAGE
To our employees:
In their efforts to get you to join their union, the C. I. O.
Organizers are saying-
-that you must join their union to (in) order to hold your
job;
-that there is a rush to join their union, therefore you had
better sign up before it is too late;,
--that responsible Government officials want you to join their
union:
There is no law or rule of government that requires you to
join a union or to surrender your rights to negotiate directly
with the management on all conditions of employment.
Outsiders have not been necessary in the past-nothing has
happened to make them necessary now.
To make sure that there is no doubt in your minds regarding
the company's employment policy, we will again state its funda-
mental principles. They are:
1. No employee has to join or pay tribute to any organization
to get or hold a job with this company. '
2. Employment with us does not depend upon membership or
non-membership in any organization.
3. Advancement in or the holding of a job with this company
depends on individual merit, efficiency and length of service.
These are the fundamental American principles to which in
the interests of yourselves, your families, our stockholders, our
community, this company will steadfastly adhere.
W ICKWIRE BROTHERS.
/S/ CHARLES C. WICKWIRE,
President.
The respondent claims that this notice was posted in answer to
numerous questions put by employees to supervisors, and that its only
purpose was to inform the employees that it was not necessary for
them to join any labor organization. The notice set forth above is
not and plainly was not intended to be an impartial statement of
fact. The pointed reference to "Outsiders," coming at a time when
the Amalgamated was conducting a campaign to organize the re-
spondent's employees and when the Amalgamated was the only labor
organization carrying on activities among the respondents employees,
'WICKWIRE BROTHERS 321
had the effect of warning the employees that they should not join
the Amalgamated.4
A number of cases arising under the Act have held that coercive
statements made by an employer or his supervisory officials to the
employees are not protected by the First Amendment.5 We think
that the principle established as to oral statements is applicable to
the circulation among employees of literature having a coercive
effect.°
During the fall of 1937, when the Amalgamated and the Associa-
tion were competing for the majority status in the plant, Fred A.
Wilkins, superintendent of the wire mill, made statements inimical
to the Amalgamated to a number of employees. Stanley E. Ryan,
one of the respondent's employees, testified that Wilkins stated to
him that the Amalgamated was not a good organization and that it
had about 3,000,000 members, all of whom paid a dollar each month
to it. Wilkins further asked him why he had joined this organiza-
tion and whether or not he knew where the dues went. Wilkins tes-
tified that as Ryan was complaining about his financial condition, he
told Ryan that he would be better off if lie would keep the dues which
he was paying to the Amalgamated, and that he should not send his
money out of town. Wilkins is a supervisory official who, at the
time of the hearing, had been in the respondent's employ for 52
years. He was aware of the respondent's policy towards the Amal-
gamated as expressed in the respondent's message to its employees
posted on June 26, 1937. His conduct shows that lie was actively
combating the Amalgamated in its efforts to organize the plant. We
do not feel that his statement was intended as or was received as
friendly advice. Under the circumstances we give credence to the
testimony of Ryan, and we accept his version of the conversation.
Paul Owens, another employee, testified that during November
1937 Wilkins spoke to him, indicating by his conversation that he
had seen Owens at a meeting held by the Amalgamated on the pre-
vious evening. Owens admitted to Wilkins that he attended this
meeting. This conversation was not denied by Wilkins. Peter
Gattola, an employee, testified that he also attended this meeting,
that on the following day Wilkins asked him whether or not he
attended the meeting and whether or not he had paid his dues, that
* It is contended in the respondent 's brief that the statement concerning "Outsiders"
referred to James Struglia , S. W. O. C . organizer ; who was not an employee of the
respondent , and that it did not refer to any labor organization . No such limitation was
indicated in the notice itself, or brought to the attention of any of the employees. While
we accordingly do not credit the respondent's claim in this respect , the statement would
be equally an interference if it were directed only at the particular organizer.
,',National Labor Relations Board v . The Falk Corporation , 102 F . ( 2d) 3813; National
Labor Relations Board v. Union Pacific Stages, Inc., 99 F . ( 2d) 153. 179.
*Matter of Ford Motor Company and International Union, United Automobile Workers
of America, 14 N. L. R . B. 346.
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he replied, "Yes," to both questions, and that Wilkins then said,
"Well, the door is open." Although Wilkins' testimony is not clear,
it would appear from his testimony that he asked Gattola whether or
not he had paid his dues to the Amalgamated. He admits that Gat-
tola told him that he had paid his dues. Wilkins testified that he
then said, "The door is open, join anything you want to." It is
improbable that an employee would voluntarily tell the plant super-
intendent that he had paid dues to an organization to which the
respondent had expressed opposition. We find that Wilkins ques-
tioned Gattola concerning his union activities.
Joseph Salce, another employee, testified that on the day following
this same meeting held by the Amalgamated, Wilkins asked him
whether or not he attended the meeting, that he answered, "No," and
Wilkins said, "You're a God damn liar," whereupon Salce replied,
"You're a God damn liar." Wilkins denied having had this con-
versation. Angelo Rinaldi, another employee, testified that Wilkins
had talked with him a few times about the Amalgamated, and that
during November 1937 Wilkins told him the Amalgamated was no
good and that any money paid to it was thrown away. Wilkins
denied having made such a statement. Since Wilkins had made
similar statements to other employees in the plant during this same
period, we give credence to the testimony of Salce and Rinaldi, and
we find that Wilkins made the statements which Salce and Rinaldi
Rttribute to him.
During a noon hour in December 1937, the Amalgamated held a
meeting in the street adjacent to the plant. The meeting was author-
ized by the local authorities. Several foremen employed by the
respondent attended the meeting and participated in the discussion
there. We find that during this meeting Robert Wallace, a foreman,
stated that the independent union at Crucible Steel, a neighboring con-
cern, was proving successful, and that John Steele, another foreman,
stated that Ford had been able to get along without a union. Aside
from their statements, the presence of foremen at such a meeting of
the employees necessarily was an interference therewith. Where
meetings are thus held in a public street near the entrance to a plant,
supervisory employees may, it is true, legitimately pass in that vicin-
ity. But the facts here show that foremen attended this meeting
and voluntarily entered into discussions concerning unionism, ex-
pressing hostility to the S. W. 0. C.
The respondent's witnesses testified that on December 7, 1937, and
on several occasions thereafter, Charles C. Wickwire, president of the
respondent, told his assembled supervisory employees that, although
they should permit no union activity on company time and property,
they were not to discuss unions even in their own homes. No such
WICKWIRE BROTHERS 323
sentiments were communicated directly to the employees, however.
Most of the events discussed above occurred prior to this announce-
ment by the respondent's president. As to those events which may
have occurred after the announcement was made (the exact dates of
some of the events are not available), the issue is whether the policy
announced was translated into a course of conduct in the plant con-
sistent with that policy. As late as February 1938 at least one super-
visor persisted in making anti-union statements to the employees.?
We have frequently stated that the acts of a supervisory employee are
the acts of the employer unless they are effectively disavowed. The
employees must look to the supervisory employees with whom they
come in contact for the policy of the company. Their supervisors
here expressed anti-union sentiments, as had the respondent in a
previous message to the employees. Under these circumstances a
statement that the respondent was pursuing a policy of impartiality,
made to the supervisory employees and not communicated directly to
the other employees, did not effectively. disavow the acts of its super-
visory employees.8
We find that the respondent by the foregoing acts has interfered.
with, restrained, and coerced its employees in the exercise of their
rights to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective
bargaining and other mutual aid and protection as guaranteed under
Section 7 of the Act.
B. The alleged domination and support of a labor organization; the
consent election
The complaint alleges that the respondent dominated and inter-
fered with the formation and administration of the Association and
contributed support thereto, by permitting solicitation of member-
ships on company time and property, by granting privileges to mem-
bers of the. Association while denying similar privileges to members
of the Amalgamated, and by coercing its employees to vote against
the Amalgamated in the consent election conducted by the Board on
March 3, 1938. The respondent in its answer denied the allegations
of the complaint. The Trial Examiner found in his Intermediate
Report that the respondent formed and sponsored the Association and
dominated and interfered with its administration.
7 These statements , made by Edward B. Healey, night superintendent , are referred to
below.
8 Matter o f Emsco Derrick and Equipment Company (D & B Division ) and Steel Workers
Organizing Committee, 11 N. L. R. B. 79; Matter of M. Lowenstein & Sons, Inc. and
Bookkeepers', Stenographers ' and Accountants' Union, Local No. 16, et al., 6 N. L. R. B. 216.
As set forth below, the respondent did, at a later date, post a notice to its employees
expressing a neutral attitude in the election then impending.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The formation of the Association was begun during August 1937.
The respondent recognized it as the representative of the employees
for the purposes of collective bargaining on November 26, 1937, and
entered into a collective bargaining contract with it on January 24,
1938.
On December 4, 1937, the Regional Director discussed with the
respondent certain charges which had been filed by the Amalgamated
alleging that the respondent had violated Section 8 (1) and (2) of
the Act. An investigation was begun, and as a result of the investi-
gation the respondent was advised to refuse to recognize the Associa-
tion. The respondent continued to negotiate with the Association.
On February 17, 1938, the Association, the Amalgamated, the Ameri-
can Federation of Labor, and the respondent reached an agreement,
witnessed by the Regional Director, which provided that a consent
election should be held to determine which of the above unions the
employees wished to have represent them for purposes of collective
bargaining. In the election, which was held on March 3, 1938, the
Association received 485 votes, the Amalgamated received 310 votes,
and the American Federation of Labor received 1.12 votes. Between
February 17 and March 3, 1.938, certain coercive statements were made
by one of the respondent's supervisory employees. At the Regional
Director's request, notices counteracting these statements were posted
throughout the plant. A teller's report stating that the balloting was
fairly conducted was signed by representatives of the Board, the
respondent, the Amalgamated, the Association, and the American
Federation of Labor.
At the opening of the hearing, at the close of the Board's case, and
at the conclusion of the hearing, the respondent and the Association
moved to dismiss the complaint in so far as it is based on events which
occurred prior to March 3, 1938, the date of the election. Throughout
the hearing the respondent and the Association made motions to strike
all the testimony relating to such events, on the grounds that charges
similar to those on which the complaint in this case is based were filed
prior to the consummation of the election agreement; that as con-
sideration for the agreement to hold a consent election the Amalga-
mated agreed that these charges would not be pressed; and that, in
any event, the charges were waived by the Amalgamated's participat-
ing in the election. The Trial Examiner denied the motions, and in
their exceptions to the Intermediate Report the respondent and the
Association took exception thereto.
We do not find that the Amalgamated agreed, as consideration for
the consent election, that it would not press charges based on events
which happened prior to the consent-election agreement. The consent-
election agreement does not purport to compromise the respondent's
interference, restraint, or coercion in the exercise of the rights guar-
WICKWIRE BROTHERS 325
anteed by Section 7 of the Act. The evidence adduced at the hearing
does not show that such an agreement was orally made.
Although there was no oral or written agreement that the Amal-
gamated would refrain from instituting charges based on events
which occurred prior to the election , we feel that in acquiescing in
the consent -election agreement , in designating the Association on the
ballot, and in conducting a consent election in which the Associa-
tion was a competing labor organization , the Board 's agents by
implication acknowledge that the Association was capable to act
as a representative of the respondent 's employees . Coercive state-
ments were made by one of the respondent 's supervisory employees
between the date of the consent-election agreement and the date of
the election , but the respondent , at the Regional Director 's direction,
posted notices repudiating the bias expressed in these statements.
The Board 's agents considered this a sufficient remedy and permitted
the election to be held . While we do not agree that the Board is
thereby estopped from proceeding with charges of domination of
and interference with the administration of the Association, we be-
lieve that the. effective administration of the Act requires that the
Board 's agents have the respect and confidence of labor organiza-
tions and employers with whom their work brings them in contact.
It is our opinion that the policies of the Act will best be effectuated
by giving effect to the election agreement , which the Board 's agent
witnessed , and by recognizing the Association as a labor organiza-
tion capable of representing the respondent 's employees . Therefore,
we shall not consider the events which transpired prior to March
3, 1938, as a basis for sustaining the allegations of the complaint with
respect to the respondent 's domination of and interference with the
Association and for ordering its disestablishment as a representative
of the respondent 's employees.9
If the respondent had engaged in further unfair labor practices
after the consent election , we would disregard the consent -election
agreement . Y° Any such agreement obviously contemplates that the
employer will not engage in any further unfair labor practices. If
the respondent 's conduct after the. consent election showed a con-
tinuity with its conduct prior thereto, we would consider the whole
9 Matter of Hope Webbing Company and Textile Workers Organizing Committee of the
C. I. 0., Local No. 14 , 14 N. L . R. B. 55. See also, Matter of Godchaux Sugars, Inc. and
Sugar Mill Workers' Union, Locals No . 21177 and No . 2188 affiliated with the .,nerican Fed-
,eration of Labor, 12 N. L . R. B. 568 ( agreement between the respondent and the union
that the union would not press charges with respect to unfair labor practices engaged in
)rior to the date of the agreement , the Regional Director present and acquiescing) ; and
Matter of Shenandoah-Dives Mining Company and International Union of Mine , Mill