Neptune Meter Co.

National Labor Relations Board - Board Decisions

Mar 6, 1946

66 N.L.R.B. 292 (N.L.R.B. 1946)

In the Matter of NEPTUNE METER COMPANY and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, C. I. O.
Case No. 2-C-5701.-Decided March 6,1946
DECISION
AND
ORDER
On June 16, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set out in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent and the IEA filed
exceptions to the Intermediate Report and supporting briefs. On
December 4, 1945, the Board heard oral argument at Washington,
D. C., in which the respondent, the IEA, and the Union participated.
The Board has considered the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following qualifications :
1. In Section II, 2, of his Intermediate Report, the Trial Examiner
found that most or all of the IEA initiation fees were collected by
ERO representatives or officers inside the respondent's plant. We
agree with the Trial Examiner that most or all of the IEA initiation
fees were collected by ERO representatives or officers but do not
adopt his finding that all such collections were made inside the plant.
2. The Trial Examiner also found that Curra, an ERO representa-
tive, collected a substantial amount of IEA initiation fees during
working hours. In arriving at this finding the Trial Examiner relies
on the undisputed testimony of Curra that he made such collection,
and that he was assisted in this task by Pitri, a member of the ERO
grievance committee, and the fact that Pitri was not called as a
witness. Subsequent to the oral argument before the Board at Wash-
ington, D. C., the IEA filed with the Board a motion to reopen the
66 N. L . R. B., No. 33.
292
NEPTUNE METER COMPANY 293
record to adduce the testimony of Pitri. In this motion the IEA
avers that Pitri will deny that he ever participated, either with Curra
or alone, in the collection of IEA initiation fees or in any other IEA
activities. The IEA does not offer to adduce any testimony to refute
Curra's testimony that he, Curra, made such collections. Nor does
the IEA make any reasonable showing as to why it failed to adduce
Pitri's testimony at the time of the hearing before the Trial Exam-
iner. The Union has filed with the Board a brief in opposition to
the granting of this motion. The testimony which the IEA offers
to adduce does not, in our opinion, discredit the undisputed testi-
mony that such collections were made during working hours by
Cerra, a witness whom the Trial Examiner also credits in other
respects. We accordingly adopt only that portion of the Trial Exam-
iner's finding relating to the collection by Curra of IEA fees during
working hours and do not rely on his finding that Pitri assisted
Curra in such collection. Under all the circumstances, and in view
of the absence of any reasonable showing by the IEA concerning
its failure to adduce the testimony of Pitri at the hearing before the
Trial Examiner, the motion of the IEA is hereby denied.
The Remedy
Having found that the respondent has engaged in certain conduct
violative of the Act, we shall order it to cease and desist from engag-
ing in such conduct. We shall also order the respondent, for the
reasons hereinafter set forth not to recognize or deal with any labor
organization unless and until such labor organization shall have
been certified by us as the statutory collective bargaining representa-
tive of the employees. Beginning with the formation of the Con-
gress of Neptune Meter Company, herein called the Congress, in
1919, the respondent has manifested an intent to bargain collectively
only with organizations of its own creation or their successors.
Thus, after the effective date of the Act, the respondent recognized,
first, the Congress, then, the Employees' Representative Organiza-
tion, herein called the ERO, which we have found to be a successor
to the Congress,' and lastly, the IEA, found to be a successor herein.
From 1937 to 1945, the respondent continuously had written agree-
ments covering wages, hours, and other conditions of employment
with the ERO and IEA, respectively, thereby making most effective
its assistance to its chosen instruments. While thus treating with
the successors of its own creation, the Congress, it is significant that
the respondent refused to entertain a demand by a legitimate union
for representation of its foundry workers until such union were
1 See Matter of Neptune Meter Company , 58 N. L. R. B. 1240.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certified by the Board, thus evincing a desire to frustrate true self-
organization among its employees. Because of the respondent's
persistent predilection for treating with organizations existing in
violation of Section 8 (2) of the Act and thereby thwarting attempts
at self-organization for collective bargaining among its employees,
we are convinced that, in order to protect the employees' rights guar-
anteed by Section 7 of the Act, we must order the respondent to cease
and desist from recognizing or dealing with any labor organization
unless and until such labor organization shall have been certified
by us as the collective bargaining representative of the employees.
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, Neptune Meter Company.
New York City, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Contributing support to Independent Employees Association,
or any other labor organization of its employees;
(b) Recognizing Independent Employees Association, or any
successor thereto, as the representative of its employees for the pur-
pose of dealing with it concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment;
(c) Giving effect to any and all contracts, supplements thereto,
or modifications thereof, with Independent Employees Association
or any successor thereto;
(d) Recognizing or dealing with any other labor organization as
the representative of its employees concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment unless and until such labor organization shall have
been certified by the Board as such representative.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Independent Employees Asso-
ciation as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, and completely disestablish said Independent Em-
ployees Association as such representative;
(b) Post at its plant at Long Island City, New York, copies of
the notice attached hereto marked "Appendix A." Copies of said
NEPTUNE METER COMPANY 295
notice, to be furnished by the Regional Director of the Second
Region, shall, after being duly signed by the respondent's represen-
tative, 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 re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material;
(c) Notify the Regional Director for the Second Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
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 hereby disestablish Independent Employees Association as-
the representative of any of our employees for the purpose of
dealing with us concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of
employment, and we will not recognize it or any successor
thereto for any of the above purposes.
We will not recognize or deal with any other labor organization
as the representative of any of our employees concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment unless and until such labor
organization shall have been certified by the Board as the rep-
resentative of such employees.
We will not contribute support to Independent Employees Asso-
ciation or any other labor organization.
NEPTUNE METER COMPANY,
Employer.
Dated .................. By.............................. .....
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Leon Novak, Esq., for the Board.
Simpson, Thacher & Bartlett, Esqrs., by Edward L. Coffey, Esq, of New
York, N. Y., for the Respondent.
Prank Schemer, Esq., by Mildred Roth and James J. Conroy, of New York,
N. Y., for the C. I. O.
Sweet & Sweet, by Irving Sweet, Esq., of New York, N. Y., for the I. E. A.
STATEMENT OF THE CASE
Upon a charge duly filed on November 21, 1944, by United Electrical, Radio
& Machine Workers of America, CIO, herein called the CIO, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Second Region (New York, New York), issued its complaint dated March
22, 1945, against Neptune Meter Company, New York, New York, herein called
the Respondent, alleging that the Respondent had engaged in and was engaging
in unfair labor practices affecting commerce within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together
with notice of hearing thereon, were duly served upon the Respondent, the
CIO, the Employees Representative Organization, and the Independent Em-
ployees Association,
With respect to the unfair labor practices the complaint alleged, in substance,
that the respondent initiated, formed, and sponsored labor organizations known,
successively, as the Congress, the Employees Representative Organization, called
herein the ERO, and the Independent Employees Association, called herein the
IEA, and thereby engaged in conduct in violation of Section 8 (1) and (2)
of the Act. In its duly filed answer , the Respondent denied that it had engaged
in the alleged unfair labor practices. A petition of the IEA for intervention
having been duly filed with and granted by the Acting Regional Director, the
IEA filed an answer to the complaint, insofar as it concerned the IEA, denying
that the IEA was initiated, formed, and sponsored by the Respondent. A
motion for a bill of particulars duly filed by the Respondent was granted in
part, denied in part.
Upon due notice, a hearing was held on April 19, 20, 21, and 23, 1945, at
New York, New York, before the undersigned , the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the respondent, the CIO, and
the IEA were represented at and participated in the hearing Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence hearing on the issues was afforded all parties. At the conclusion of the
Board's case, the undersigned denied , without prejudice to its renewal at a
later point in the hearing, a motion by the respondent and the IEA, respectively,
to dismiss the complaint. At the close of the hearing, the undersigned reserved
ruling on motions by the same parties to dismiss the complaint. These motions
are disposed of in the body of the Intermediate Report, At the close of the
hearing the undersigned granted without objection a motion of the Board's
attorney to conform the pleadings to the proof. Oral argument, in which
the Board, the respondent, and the IEA participated, was had before the under-
signed at the close of the hearing. Thereafter, the respondent and the IEA
filed briefs with the undersigned.
NEPTUNE METER COMPANY 297
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Neptune Meter Company is a New Jersey corporation having its principal
office at New York, New York, and its plant at Long Island City, New York„
where it is engaged in the manufacture, sale, and distribution of liquid meters
and related products. During the year ending October 24, 1944, the respondent
purchased raw materials valued in excess of $1,000,000, of which approximately
fifty percent was transported to its Long Island plant through channels of
interstate commerce. During the same period, the respondent manufactured
at its Long Island plant products valued at in excess of $1,000,000 of which
approximately fifty percent was transported from its plant through channels
of interstate commerce The respondent concedes that it is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, and Independent Employees Association.
unaffiliated, are labor organizations, admitting to membership employees of
the respondent. Congress of Neptune Meter Company and Employees Repre-
sentative Organization, unaffiliated, were labor organizations admitting to mem-
bership employees of the respondent.
1. The Congress and the ERO1
In 1919, the Respondent caused to be formed among its employees a labor
organization called the Congress of Neptune Meter Company. "The Congress,
in brief, consisted of a House of Representatives, Senate, and Cabinet." The
House was composed of representatives of non-supervisory employees of the
various departments. The executive power of the Congress was vested in the
Cabinet which was composed of representatives of the directors and officers
of the Respondent Membership in the Senate required the recommendation
of the Cabinet and a majority vote of the Senate. Membership of employees
in the Congress was automatic, carried no obligation to pay any fees or dues,
and no meetings of the general membership were ever held. Representatives
were paid for time spent in connection with the business of the Congress, and
all meetings of the Congress were conducted on Respondent's premises with
Respondent's permission. Various expenses of the Congress were paid by the
Respondent The Congress clearly was the "creature" of the Respondent
The Act became effective on July 5, 1935. Beginning August 1, 1935, the
Respondent initiated, formed, and fostered the Employees Representative Or-
ganization, herein called ERO, a successor labor organization to the Congress
The constitution of the ERO, similar in most respects to that of the Congress,
provided for the election of officers and of two representatives from each depart-
1 Findings relatii e to the Congress and the ERO are based on the Board's Decision
and Order in a prior case, Matter of Neptune Meter Company, 58 N. L. R. B. 1240.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. No dues or fees were imposed on or collected from the membership ;
there was no provision for meetings of the general membership, and none were
held. Meetings of the representatives and officers were held on company time
and property, and ERO representatives were paid by the Respondent for time
spent attending meetings and for other time used in connection with the busi-
ness of the ERO. The Respondent provided other assistance to the ERO,
such as the free use of its printing and mimeographing machine, supplies of
paper and other equipment necessary for the preparation of ballots and the
minutes of meetings. The ERO was permitted to post whatever notices it
desired on Respondent's bulletin boards. The Respondent and the ERO exe-
cuted a contract in 1937, and annually thereafter until 1944. The ERO, like
its predecessor, was formed, sponsored, and dominated by the Respondent.
Beginning July 10, 1944, the Board conducted a hearing on its complaint
alleging that the Respondent had interfered with and dominated the organiza-
tion and administration of the Congress and the ERO1 On September 6,
1944, the Trial Examiner issued his Intermediate Report recommending, inter
(ilia, disestablishment of the ERO. Under date of September 21, 1944, the Re-
spondent notified the Regional Office of the Board that it would comply with
the recommendations of the Trial Examiner, and on the same date posted no-
tices of disestablishment. On October 21, 1944, the Board issued its Decision
and Order in the case, in which it adopted the findings and recommendations
of the Trial Examiner. It is not disputed that the Respondent posted the
disestablishment notices required by the Board's order.
2. Inception and organization of the IEA
Prior to the issuance of the Trial Examiner 's Report in the prior case and
the subsequent posting of the disestablishment notice, noted above, there had
been formed among Respondent 's employees an organization known as Inde-
pendent Employees Association, herein called TEA, which the Board now alleges
Is a successor organization to the ERO, and, like its predecessor, company
dominated.
On June 15, 1944, there was a meeting of ERO representatives and officers in
Respondent 's plant during working hours. Alexander Landi, president of the
ERO, who presided over the meeting, testified that it was attended by sub-
stantially all ERO representatives . At this meeting Land!, who had been served
with a copy of the Board 's complaint and notice of hearing In the prior case,
advised those present of the character of the Board's complaint. Opinion was
expressed that If the Board ordered the disestablishment of the ERO, It would
be because the ERO held Its meetings on company property. A motion was
made and adopted to take a vote among the employees whether or not to
continue the ERO with meetings on the "outside" Minutes of this meeting
were posted on Respondent 's bulletin boards, as were all minutes of the ERO.
On June 20, a notice signed by Landi as president of the ERO, with sample
ballot attached, announcing that a vote would be taken on the following day,
was posted in the plant . The ballot bore the following text :
Do you want to continue with the present Employees' Representative
Organization with meetings being held on the outside?
Yes No-
The notice further gave the names of ERO representatives designated by Landi
to take up the vote.
9 Matter of Neptune Meter Company, 58 N. L. ji B. 1240.
NEPTUNE METER COMPANY 299
The balloting was conducted by the ERO on the following day, in the plant
during working hours, and resulted in a large majority of employees voting in
the affirmative.
On June 22, there was a further meeting of ERO representatives and officers,
presided over by Landi. At this meeting the results of the balloting were
announced, and Landi appointed an "Organizing Committee" composed of Frank
Mendicino, Alfred Koopman, Joe Sklenka, Frank Hopp, and Andrew Curra,
all representatives or officers of the ERO 3 The minutes of the meeting record
that the committee was appointed "On the basis of the results of the voting
yesterday to continue our Organization with meetings to be held on the out-
side" and that its function was to "draw up the plans and present them to-the
Employees at a mass meeting so as everyone can voice their opinion on the
plans." The minutes of this meeting were also posted on the Respondent's
bulletin boards.
According to Landi, the "Organizing Committee" appointed by him on June
22 never functioned. It is undisputed, however, that the same persons named
by Landi as the Organizing Committee, with the addition of Vincent Dauwalter,
secretary of the ERO, and Eric Morgan, an ERO representative, were Instru-
mental in the formation of the IEA.
Koopman, chairman of the grievance committee of the ERO since 1942,' an
ERO representative, and a member of the ERO constitution committee, was
named chairman of the committee appointed by Landi. He also testified that
this committee never functioned. He further testified that he attended the
Board hearings in the prior case, and during the course of the hearing had dis-
cussions outside the hearing room with Morgan , Sklenka, Dauwalter, Hopp,
Mendicino, and Curra, and that as a result of these discussions it was decided
that in order to comply with the requirements of the Act, it would be necessary
to form a "new" organization . On July 13, the day following the close of the
hearing in the prior case, Koopman , Morgan , Dauwalter, Hopp , Mendicino, and
Curra and Sklenka ,° called hereinafter the Committee , met outside the Respon-
dent's plant at the lunch hour. Koopman testified that he "took it upon him-
self" to give reasons why it was necessary that they form "a brand new
organization." It was agreed that the Committee, characterized by Koopman
as a "brand new organizing committee," with the assistance of other employees
whom they would designate, would solicit initiation fees of $1.00 each from
the employees to finance the new organization . Koopman testified concerning
the solicitation of fees : "They were to start , well, from that moment
henceforth."
Beginning that same day and within a period of a few days , a total of
approximately $700 in initiation fees was collected by the Committee and those
designated by it as assistants . The fees when and as collected were turned
over to Dauwalter, then secretary of the ERO. It is clear that most or all
of the collections were made inside Respondent 's plant , and that the collec-
tions were made for the most part by ERO representatives or officers . Koopman
3 Landi testified : "I appointed this committee to reorganize the present organization
since we were going to have a complete change , although it is still the same organization."
Landi testified : "The Grievance Committee was the sole bargaining agency of the
entire organization." Koopman testified concerning the Grievance Committee, "well,
they were the cure-all, they handled everything."
6 Curra testified that he was advised of the meeting by Sklenka , and named Sklenka,
Koopman, and Morgan as having attended the meeting outside the plant. Koopman
named Curra, Morgan , Dauwalter , Hopp, and Mendicino , and himself as being present
at the meeting
300 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
testified that he "contacted " the employees in his "immediate vicinity " during
the lunch hour , "and asked them if they wished to contribute a dollar to the
formation of a new union." Curra testified that he collected fees from 40 to 50
employees during working hours. He was assisted by another employee, Pitri,
a member of the ERO grievance committee . These collections were made in
the departments which Curra served as an ERO representative . Koopman
and Curra were the only members of the Committee who testified. Pitri was
not called by any parties as a witness . The undersigned is convinced and finds,
on the basis of Curra's undisputed testimony , that a substantial amount of fees
was collected during working hours.
Curra testified that during the period in question , he sold war stamps in
the plant during working hours on pay days, and that the day he collected
initiation fees was a pay day. The Respondent argues therefrom that it may
not properly be charged with knowledge that Curra was engaged in collecting
initiation fees. Curra further testified, however, that on this occasion he
advised his foreman that he could not collect for war stamps and that his fore-
man designated another employee to serve in that capacity . This testimony,
not disputed, is credited. It further appears that Curra, accompanied by Pitri,
openly canvassed the two departments of which Curra was an ERO repre-
sentative, during working hours. The undersigned is unable to believe that
all of this activity was carried on inside Respondent 's plant, some of it during
working hours, without Respondent's knowledge of its nature and purpose
There is no evidence, however, that any supervisor or officer of the Respondent
actively participated in the collections, or made financial contributions thereto.
On July 19, there was a special meeting of ERO representatives and officers
held in Respondent's plant during working hours. Koopman testified that he
asked Landi to call this special meeting, and that he told the assembled repre-
sentatives of the formation of a "brand new organizing committee " He further
testified that Landi stated at this meeting, "Of course, this means that we
I i lie ERO] will have no further meetings, and this is the end," and that while
no formal vote of dissolution of the ERO was taken, it was understood by those
present that the ERO was disbanded. According to Koopman, no minutes were
taken of the meeting and the employees were advised of it solely by verbal
communication. It is clear from the entire record that this was in fact the
last meeting of the ERO as an organized body.
On or about July 20, Koopman and others of the Committee met at the law
offices of Sweet & Sweet, the IEA counsel in the present proceeding, where
they were advised in matters of organizational procedure. It appears that
at this conference , a name was chosen for the new organization and arrange-
ments were made for holding an organizational meeting. Application cards
for membership in the IEA were printed on or about August 5, and were
thereafter distributed among employees who had paid the $1.00 initiation fee.
Curra testified that he distributed some of the cards during working hours
to employees who came to him and asked for them, but admitted that Koop-
man instructed him to distribute the cards during the lunch hour and that
for the most part he did so. The undersigned is convinced and finds that all
except an inconsequential number of these cards were distributed outside
working hours.
On August 29, the Committee caused to be published and distributed to
employees outside the plant, a circular announcing "The initial organization
meeting of the newly formed NEPTUNE EMPLOYEES ASSOCIATION . . ."'
Apparently this was the name tentatively chosen by the organization later called
the IEA.
NEPTUNE METER COMPANY 301
on the following day, after working hours, at a public hall some two blocks
removed from Respondent's premises. This circular was signed "Organizing
Committee," and the names of Mendicino, Koopman, Sklenka, Morgan, Hopp;
Curia, and Dauwalter were listed under that designation.
The first organizational meeting of the IEA was held on August 30, as
announced in the circular distributed on the prior day. It was attended by
several hundred employees. The minutes of the meeting record that it was
"called to order by Mr. Koopman, Chairman of the Organizing Committee, who
made a short talk on the reasons why this meeting had been called." Koopman,
during the course of his remarks, stated that it was his conclusion after attend-
ing the Board hearing in the prior case, that in order to comply with the Act
it was essential that there be a new organization, distinct from the ERO,
which should finance itself and hold its meetings and conduct its business off
of company property and outside working hours. Koopman also presided
during the ensuing election of temporary officers who were to hold offige until
an election had been held for choosing of permanent officers. Of those elected
as temporary officers, only Dauwalter, who was elected temporary treasurer,
and Rita Mazeika, who was elected temporary secretary, appear to have been
officers of, or otherwise prominent in, the ERO.° Koopman and Landi were
nominated for office but declined the nominations.' The temporary officers thus
chosen held office until January 1, 1945, when permanent officers were installed.
The constitution and by-laws of the IEA were read and adopted at a subse
quent meeting held on October 4 These provided, inter alia, for an election of
permanent officers annually in December; membership qualifications limiting
membership to non-supervisory employees of the Respondent; initiation fees
and monthly dues ; the election of departmental shop stewards ; and regular
monthly meetings of general membership except during July and August.
3 Respondent's recognition of the IEA and execution of a contract with it
On September 5, 1944, the IEA notified the Respondent in writing that it
represented a majority of employees and requested a conference for purposes
of establishing its claims for recognition. Pursuant thereto there was a meeting
of representatives of the Respondent and the IEA on September 14. At this
meeting the IEA demanded recognition as exclusive bargaining representative.
The Respondent, on advice of its attorney, refused the demand.
On October 6, Alphonse Stein, a business representative of the International
Molders and Foundry Workers of North America, an affiliate of the American
Federation of Labor, herein called the Molders, called on the Respondent and
requested recognition and bargaining rights for employees of Respondent's
foundry. It was Stein's credited testimony that he told Dante E. Broggi,
Respondent's vice president in charge of manufacturing, with whom he con-
ferred, that he "thought" the Molders represented a majority of foundry
employees. Broggi advised Stein that the Respondent would recognize and
bargain with the Molders only if the latter was certified as bargaining repre-
sentative by the Board. Thereafter, on October 2, 1944, Stein filed a petition
for certification with the Regional Office of the Board. The Board has taken
no action thereon.
' Dauwalter was ERO secretary at the time of its last meeting Maieilza had previ-
ously served as ERO secretary.
g The Committee which sponsored the IEA had been advised by its attorney that
if the officers of the ERO held office in the IEA it might lead to charges of company
domination.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under date of October 5, the TEA again requested in writing Respondent's
recognition of It as exclusive bargaining representative of Respondent's em-
ployees. The letter referring to the prior conference on September 5, stated :
At that time it was felt by your attorneys that recognition would be
premature in view of the pending litigation before the National Labor Rela-
tions Board. Since then, a decision has been rendered by the Board order-
ing the disestablishment of the former organization, and we note from
notices which you have placed on the bulletin boards of the company that
you have complied with the direction of the Board.'
The letter further stated that the TEA represented an "overwhelming majority"
of employees, and that the TEA was "again willing to submit to you proof of
our membership . . ."
In response to this letter, a second meeting of Respondent and TEA repre-
sentatives took place on October 12. Harry Furhank, temporary president of
the TEA, testified that the then officers of the TEA acted as a committee to
negotiate for recognition. In addition to these officers, the TEA was represented
at the October 12 conference also by Koopman, Dauwalter, and, perhaps others
prominently identified with the ERO.10 This meeting was held at the offices of
Respondent's attorneys. Respondent was represented, in addition to Its counsel,
by Broggi and Charles Bachman, the latter its labor relations director. At
this meeting, the TEA pressed Its claims for recognition. The Respondent at
first refused, apparently on advice of counsel, but later, after a conference
away from TEA representatives, agreed to recognize the TEA provided It was
able to substantiate Its claim of majority representation. The TEA agreed to
submit its membership cards for a check against the names appearing on
Respondent's current pay roll.
On October 14, there was a further meeting, in the offices of Respondent's
counsel, of Respondent and TEA representatives for the purpose of the card
check previously agreed upon. Broggi testified that the TEA submitted more
than 600 membership cards bearing the signatures of employees whose names
appeared on Respondent's current pay roll.31 He further testified that as of that
date there were approximately 775 employees eligible for membership in the
TEA. On the basis of this card check, the Respondent executed a written recog-
nition agreement with the TEA, by which it recognized the TEA as exclusive
bargaining representatives of its non-supervisory production employees.
Following the Respondent's recognition of the TEA there were several bar-
* The Board had not on this date issued its decision in the case, but the Trial Ex-
aminer 's Intermediate Report was issued on September 6 and pursuant to its recom-
mendations the respondent had on September 21 posted disestablishment notices of the
ERO.
1° Broggi testified that Koopman, Dauwalter, and Hopp were among those represent-
ing the TEA at the September 14 meeting, and that Curra and Dauwalter were among
those present at the October 12 meeting Harry Furbank, temporary president of the
IRA, named Koopman, Curra, and Morgan as having attended the first meeting at the of-
fices of Respondent's counsel . Koopman testified that he was appointed on the committee
to negotiate for recognition by Furbank who told him • "We did not get anywhere with
this committee that went over the last time, so I have started a new committee to go
over and really force the issue . . . I would like you to come along, because you have
been up on all of these things. You are well aware of everything that'is going on .. .
I think you would be an important man to have with us " It is clear therefrom that
Koopman served on the committee which met with respondent on October 12
11 Since the Committee headed by Koopman had collected some 700 initiation fees,
and membership cards in the IRA were thereafter distributed among those who had
paid such fees , there is no doubt that the TEA was able to furnish in excess of 600 cards
on the occasion of the card check.
NEPTUNE METER COMPANY 303
gaining conferences between these parties on a contract. Minutes of a regular
meeting of the IEA on December 6, 1944, record that its attorney was "called
on" to read the "new contract (proposed) with the Management . . . ." Fol-
lowing the reading of the proposed contract, an amendment was proposed for
providing for straight time-and-a-half pay for Saturday work regardless of
whether or not it was in excess of a 40-hour week actually worked. This
proposal appears to have been incorporated in the contract as it was finally
executed by the parties on January 1, 1945, and represents a concession on the
part of the management. At the December 6 meeting, pursuant to a motion
by Landi, it was voted that the proposed contract be posted on the IEA bulletin
boards in Respondent's plant for a period of 10 days, for all employees to
read, before further action was taken on it. The bulletin boards referred to
apparently had been provided for the IEA, separate from Respondent's bulletin
boards which had previously been used by the ERO, sometime subsequent to
the recognition agreement.
The contract executed by the Respondent and the IBA on January 1, 1945,
was for one year's duration and automatically renewed from year to year
unless notice was given by either party within a stipulated period prior to the
annual expiration date. It incorporated a recognition clause, the agreed upon
wages and hours of work, vacations, seniority, a voluntary check-off of dues,
and other clauses not uncommon in agreements between management and
employee representatives.
In December 1944, there was an election of permanent officers of the IEA.
None of the officers elected at that time appear to have been officers of the ERO
or otherwise prominently identified with it.
5. Concluding findings
The undersigned believes it is clear that the IEA was initiated and sponsored
by a group of ERO officers and representatives, headed by Koopman, who as
chairman of the ERO grievance committee since 1942 and as ERO repre-
sentative, was one of the outstanding leaders in that organization. While
Koopman testified that the ERO organizing committee appointed by Landi, ERO
president, did not function, it did not in fact lose its identity as such in the
minds of the employees by the accretion of two new members, an officer and
a representative of the ERO, and by denominating itself a "brand new organ-
izing committee." To all outward appearance it continued to be the organizing
committee appointed by Landi to "draw up the plans" for a continuance of
the ERO, said plans to be submitted to the employees at a mass meeting. The
personnel of the said ERO organizing committee had been published to the
employees by a posting in respondent's plant of minutes of the ERO meeting at
which the committee was announced. When the same names, with the addi-
tion of two ERO representatives or officers, appeared on the circular announcing
the organizational meeting of the IEA, under the designation of "Organizing
Committee," the employees would reasonably assume a substantial identity
with the committee appointed by the ERO president. The collection of initia-
tion fees inside the plant, some during working hours, by the same representa-
tives and officers who had functioned, some of them for years, in connection
with the company-dominated ERO, further served to identify the new organi-
zation with the old. The respondent contributed to the impetus thus given
the organizational movement, in that officers and representatives of the ERO,
which at that time the respondent had taken no steps to disestablish or disavow,
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
carried on their organizational activities on behalf of the IEA, without hin-
drance from the respondent , on company premises and, partially at least.
company time , and in that the respondent took no action to allay or dissipate
the influences of company domination and control thus carried over from the
old organization to the inception and formation of the new . In an analogous
situation it has been stated:
The theory is that in cases such as this, where an unaffiliated union
seems to the employees at large to have evolved out of an earlier joint
organization of employer and employees , the Board may take it as datum,
in the absence of satisfactory evidence to the contrary , that the employees
will suppose that the company approved the new, as it did the old, and that
their choice is for that reason not as free as the statute demands'
It is of prime significance that it was not until after the IEA had been
organized and had demanded recognition that action was taken by the Respon-
dent to disestablish the ERO. Since the ERO was its creature , only the Respon-
dent could effectively put an end to it and thus restore to the employees
the freedom of choice which is theirs under the Act. Here, there was no
effectual hiatus or "cleavage" between the disestablishment of the old and the
formation of the new organization' Not having been "cleared of the original
illegal growth ," the field was not "rendered suitable for sowing the seed of
an undominated body . . ." at the time the IEA was formed " Both the
Board and the Courts have frequently enunciated the principle that the "effects
of, .employer coercion , inherent in the establishment and maintenance of a
company-dominated organization , can be dispelled only by the recreation of
conditions in which genuinely free choice can be exercised . To this end it is
essential, if an ostensibly new organization is set up, that there be `a complete
break between the two unions and a disestablishment of the objectional union,'
and that the employees be effectively and unmistakably informed of such
action.' " 11 Here, the disestablishment notice eventually posted was ineffectual
to immunize the IEA, since by the date of its posting the IF..k had already
completed its organization and, according to its claims , most of the employees
were already members. The necessity for a hiatus between the disestablish-
nient of the old and the formation of a new organization is particularly indi-
cated in a situation such as is presented here where, since 1919 and until the
disestablishment of the ERO in October 1944 , the Respondent had continuously
maintained the fiction of a bargaining representative through labor organiza-
tions formed, administered, supported , and dominated by it. As stated by
the Courts , the "effects of long practice persist," 16 and "experience teaches us
"Westinghouse Electric and Mfg Co , v N. L R B., 112 F. ( 2d) 657 (C C. A. 2),
aft'd in 312 U. S. 660 . See also, N . L. R. B. v. International Ass'n of Machinists,
311 U. S. 72, in which the Court stated : "Where the employees would have just cause
to believe that solicitors professedly for a labor organization were acting on behalf
of the management , the Board would be justified in concluding that they did not have
the complete and unhampered freedom of choice which the Act contemplates." The
undersigned believes it is clear that Koopman , the prime mover in the establishment
of the IEA , as well as other officers of the ERO because of the prominent part they
had taken in the affairs of the company -dominated ERO, were identified in the minds
of employees with management in their organizing activities
13 See Western Union Telegraph Company v. N. L. R. B., 113 F. (2d) 992 (C. C. A. 2) ;
N L R. B . v. Condenser Corp . of America, et al., 128 F. ( 2d) 67 (C. C A 3)
14 E. I . du Pont de Nemours d Co. v . N. L. R. B ., 116 F. ( 2d) 388 (C. C. A. 4),
cert. den. 313 U. S. 571.
16 Standard Oil Company T. N L. R . B., 138 F. (2d) 885 (C C. A 2).
1 Southern Bell Telephone and Telegraph Co. v. N. L. R. B., 319 U S. 50, reversing
129 F. ( 2d) 410 (C. C. A. 5).
NEPTUNE METER COMPANY 305
that such a long continued influence does not suddenly evaporate." 31
While the Respondent, on advice of counsel, refused the IEA's first demand
for recognition, a few weeks later and before the Board had issued its final
decision and order disestablishing the ERO, it executed a recognition agree-
ment with the IRA, although at that time it had notice of conflicting claims
of representation affecting its foundry department. The Molders' request for
recognition had been met with a flat refusal unless it first obtained Board
certification. Such a refusal precluded a settlement of the Molders' claims
by an informal card check and it is immaterial if in the face of such a refusal
the representative of the Molders made no offer to prove its majority by it
show of cards. In view of the entire circumstances as reflected by the record,
the Respondent's acceptance of the IRA on the basis of an informal card
check, not participated in by the Board, manifested a haste to cement its rela-
tions with the IRA to the exclusion of outside labor organizations. Respondent's
argument that because the IRA held membership cards of a majority of em-
ployees at the time recognition was granted, it had no alternative under the
Act but to recognize it, does not meet the Issue, since under the findings here-
tofore made it cannot be said that the IEA represented an uncoerced majority.
The undersigned finds that because of the circumstances attending the for-
mation of the IRA, related in detail above, Respondent's employees would
reasonably conclude "that the company approved the new, as it did the old"
organization and that their choice was "for that reason not as free as the sta-
tute demands."" The undersigned further finds that the Respondent's recog-
nition of the IRA as exclusive bargaining representative, and subsequent
execution of a contract with it, in view of the total situation, constituted assist-
ance within the meaning of the Act.
Although convinced and finding that the IEA was initiated, sponsored, and
formed as a successor organization to the ERO, and that the influences of
company domination therefore prevailed at its inception and formation, the
undersigned further finds that the IRA as an organization differs structually
from the ERO in that the constitution and bylaws of the former provide,
inter alia, for regular meetings of the general membership , membership dues
and initiation fees, and autonomy in the election of officers and further con-
duct of Its business as a labor organization . Officers chosen, with few excep-
tions, have not been prominently identified with the prior company-dominated
organizations. Beginning with the organizational meeting of August 30, 1944,
all of its meetings appear to have been held away from Respondent's prem-
ises and outside of working hours. No supervisors or officers of the Respondent
have participated therein. The contract executed by the IEA and the Respon-
dent on January 1, 1945, appears to have been agreed upon after several
bargaining conferences and incorporates certain benefits not previously enjoyed
by the employees. Standing alone, it would not seriously challenge the legiti-
macy of the organization. In short, it appears that the IEA has made a
consistent effort to divest itself of the indicia of company domination. To
effectuate the purposes and policies of the Act it appears necessary, however,
that the employees be afforded a fair and full opportunity to exercise the
freedom of choice guaranteed by the Act, and this can be accomplished only
by a "recreation of conditions in which genuinely free choice can be exercised."
To that end the undersigned feels constrained, in view of Board and Court
decisions, to recommend the remedy normally applied in like cases.
37 Sperry Gyroscope Co. v. N. L. R. B., 129 F. ( 2d) 922 (C. C. A. 2).
29 See footnote 11, supra.
G86572-46-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF T$E 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 1,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
v. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices,
the undersigned will recommend that it cease and desist therefrom and take
certain affirmative action `in order to effectuate the policies of the Act.
The undersigned has found'that the Respondent has dominated and inter-
fered with the formation and administration of, and has contributed support
to, the Congress, the EftO,' and the TEA. Since the Congress and the ERO
as such have been dissolved and there appears to be no likelihood of the
reestablishment of either, no order will be herein recommended specifically
directed against them. The effect and consequence of the Respondent's domi-
nation and support of the TEA, as well as the continued recognition of the
TEA as bargaining representative of its employees, constitute a continuing
obstacle to the free exercise by its employees of their right to self-organization
had to bargain collectively through representatives of their own choosing.
Because of the Respondent's illegal conduct, the TEA is incapable of serving
the Respondent's employees as a genuine collective bargaining agency. More-
over, the continued recognition of the IEA would be obstructive of the free
exercise by the employees of the rights guaranteed to them by the Act. Ac-
cordingly, it will be recommended that the Respondent disestablish and with-
draw all recognition from the TEA as the representative of any of its employees
for the purpose of dealing with it concerning grievances, labor disputes, wages.
rates of pay, hours of employment, or other conditions of employment.
Respondent's contract of January 1, 1945, with the TEA, constituted and
was a part of the unfair labor practices. It will therefore be recommended
that the Respondent cease and desist from giving effect thereto. Nothing
,herein shall be taken to require the Respondent to vary those wages, hours,
seniority, and other such substantive features of its relations with the employees
themselves which the Respondent has established in performance of the said
contract, or any revision, extension, renewal, or modification thereof.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affiliated with
the Congress of Industrial Organizations, and Independent Employees Asso-
ciation , unaffiliated, are labor organizations , and Congress of Neptune Meter
Company and Employees ' Representative Organization were labor organizations.
within the meaning of Section 2 ,(5) of the Act,
2. By dominating and interfering with the formation and administration of
Congress of Neptune Meter Company, Employees' Representative Organization,
and Independent Employees Association, and by contributing support thereto,
NEPTUNE METER COMPANY 307
the Respondent has engaged in and, as to the IEA, is engaging in, unfair
labor practices within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices , within the meaning of Section
8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law,
the undersigned recommends that the Respondent, Neptune Meter Company, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation or administration of
Independent Employees Association , or any other labor organization of its
employees , and from contributing support to Independent Employees' Asso-
ciation, or any other labor organization of its employees ;
(b) Giving effect to any and all contracts , supplements thereto, or modifica-
tions thereof , with Independent Employees Association;
(c) In any other manner interfering with, restraining, or coercing its employ-
ees in the exercise of the rights to self-organization , to form labor organizations,
to join or assist United Electrical Workers of America, affiliated with the
C. I. 0., International Molders and Foundry Workers of North America, affili-
ated with the A. F. of L., 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 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) Withdraw all recognition from Independent Employees Association, as
the representative of any of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes , wages, rates of pay,
hours of employment , or other conditions of employment , and completely dises-
tablish said Independent Employees Association as such representative;
(b) Post at its plant at Long Island City, New York, copies of the notice-
attached hereto, marked "Appendix A " Copies of said notice, to be fur-
nished by the Regional Director of the Second Region, shall, after being duly
signed by the Respondent 's representative , be posted by the Respondent imme-
diately 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 ;
(c) File with the Regional Director of the Second Region on or before ten
(10) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the Respondent has
complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the Respondent notifies the Regional
Director in writing that it will comply with the foregoing recommendations,
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series, 3, as amended , effective July 12, 1944,
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 , D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or 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 . 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 desire permission to argue orally before the Board , request
therefor must be made in writing within ten (10 ) days from the date of the
order transferring the case to the Board.
WILLIAM E . SPENCEB,
Dated June 16, 1945. Trial Examiner.
)