Elastic Stop Nut Corp.

National Labor Relations Board - Board Decisions

Jul 24, 1943

51 N.L.R.B. 694 (N.L.R.B. 1943)

In the Matter of ELASTIC STOP NUT CORPORATION and INTERNATIONAL
ASSOCIATION OF MACHINISTS, CORNIIUSKER LODGE No. 1604 and
EMPLOYEES BENEVOLENT ASSOCIATION UNION, PARTY TO THE AGREIa-
MENT
Case No . C-92601.-Decided July 24 , 1943
Mr. John A. Weiss, for the Board.
Mr. Charles E. Whittaker, of Kansas City, Mo., and Mr. L. R.
Doyle, of Lincoln, Nebr., for the respondent.
Mr. Ray S. Roth, of Omaha, Nebr., for the Union.
Mr. Lloyd J. Marti, of Lincoln, Nebr., for the Association.
Mr. Robert E. Tillman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a third amended charge duly filed on January 9, 1943, by
International Association of Machinists, Cornhusker Lodge No. 1604,
herein called the Union,' the National Labor Relations Board, herein
called the Board, by the Regional Director for the Seventeenth Region
(Kansas City, Missouri ), issued its complaint dated February 23. 1943,
against Elastic Stop Nut Corporation, 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 and notice of hearing thereon were duly served upon
the respondent, the Union, and Employees Benevolent Association
Union, herein called the Association.
With respect to the unfair labor practices, the complaint alleged, in
substance: (1) that on or about August 15, 1942, and thereafter, the
1 The Board , having taken notice of the withdrawal of the International Association of
Mzcbinists from the Amellcan Federation of Labor, has herein dropped all reference to
the A F. of L. from the title of the Union, although such reference appears in the record
of the case.
51 N. L. H. B., No. 116.
694
ELASiT'IC. STOP NUT CORPORATION 695
respondent instigated, formed, assisted, dominated and supported the
Association; (2) that on or about September 25, 1942, the respondent
recognized the Association as the collective bargaining representative
of its employees and on or about that date signed a closed-shop agree-
ment with the Association at a time when the Association's representa-
tion of a majority of the employees was in question and after the re-
spondent had knowledge that charges of employer domination of the
Association were pending before the Board; and (3) that by the above-
stated acts and by other specifically alleged like and related conduct,
the respondent dominated and interfered with the formation and
administration of the Association and contributed support to it, and
interfered with, restrained, and coerced .its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
On or about March 3, 1943, the respondent filed an answer admit-
ting that it is engaged in interstate commerce but. denying that it
engaged in the alleged unfair labor practices. On or about March 4,
1943, the Association filed an answer denying that the respondent
had engaged in the alleged unfair labor practices.
Pursuant to notice, a hearing was held from March 11 to 15, 1943,
at Lincoln, Nebraska, before William F. Guffey, Jr., the Trial Exami-
ner duly designated by the Chief Trial Examiner. The Board, the
respondent, and the Association were represented by counsel, the
Union by a representative, and all 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.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and on objections to the admission of evidence and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
The Trial Examiner thereafter filed his Intermediate Report dated
April 29, 1943, copies of which were duly served upon the parties.
He found that the respondent had engaged in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (^) and
Section 2 (6) and (7) of the Act. He accordingly recommended that
the respondent cease and desist from engaging in unfair labor prac-
tices and take certain affirmative action to effectuate the policies of
the Act. On May 10 and 14, 1943, respectively, the respondent and
the Association filed exceptions to the Intermediate Report, and the
respondent a brief in support thereof. None of the parties requested
oral argument before the Board.
The Board has considered the exceptions and brief and, insofar
as the exceptions are inconsistent with the findings, conclusions, and
order hereinafter set forth, finds them to be without merit.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
Is THE BUSINESS ,OF, THE RESPONDENT
Elastic Stop Nut Corporation, a New Jersey corporation engaged
'in the manufacture of nuts, maintains its principal office and operates
its main plant in Union, New Jersey, and a second plant in Lincoln,
Nebraska, which alone is involved in this proceeding. Approximately
90 percent of the raw materials used by the respondent in its Lincoln
plant is shipped there from points outside the State of Nebraska. A
like percentage of finished products, valued in excess of $500,000 an-
nually, is shipped from the Lincoln plant to points outside the State
of Nebraska. The respondent admits that it is engaged in commerce
within'the meaning of the Act.
II. THE ' ORGANIZATIONS 'INVOLVED
International. Association of Machinists, Cornhusker Lodge No.
1604, is a labor organization, admitting to membership employees of
the respondent:
Employees Benevolent Association Union is an unaffiliated labor
organization, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Chronology of events
Unless otherwise noted, the findings of fact set forth below relating
to the series of events occurring between July 21; 1942, and October
2, 1942, are based upon the uncontradicted and consistent testimony
of William Borner. Ray S. Roth, Clare West, Fred Hofmann, Linus
Dillon and Henry Bretzer. We credit their testimony and find that
the events occurred substantially as indicated.
in the summer'of 1942, the respondent took over a large warehouse
building in Lincoln, Nebraska, and began remodeling it for use as a
second plant. Three men from the New Jersey home plant were sent
to Lincoln to supervise the work on the new plant. On or about July
21, 1912, six automatic screw Iachines were installed and thereafter
were used to train operators for the bulk of the screw machines which
were, eventually to be installed.
During the remainder of the month of July and ina the early part
of August, the trainee employees' began discussing the subj ect of unions.
Opinion was divided between unaffiliated and affiliated organizations.
In the latter part of August, adherents of both groups began seeking
ELASTIC STOP NUT CORPORATION 697
advice from Michael Valnoski, foreman of the automatic screw ma-
chine department, and Charlie Harvin, the plant superintendent,2 both
of whom had served at the Company's New Jersey plant. The em-
ployees met with little success from Harvin, who refused to talk about
unions. The evidence also indicates that Valnoski was generally close-
mouthed, and advised the employees he could not talk about unions.
However, Carl Arnold, an employee, testified that he followed Valnoski
on one occasion, and showed him an A. F. of L. union card; and that
Valnoski said if the employees at the respondent's New Jersey plant
were not satisfied with their unaffiliated organization, "they would get
into either the C. I. O. or the A. F. of L." Clare West, an employee,
testified to a similar statement made by Valnoski. Arnold testified
further that Valnoski added, "We don't want the A. F. of L. or C. I. O.
in here because you can't transfer a man from a department unless they
let you." Valnoski admitted that in answer to questions by employees,
he informed them of the type of union at the New Jersey plant. He
denied, however, making the above-related statements attributed to
,,him by West and Arnold. We credit the testimony of Arnold and
West, as did the Trial Examiner, and find that Valnoski made the
statements.
In the latter part of August, William Borner, an employee who had
favored an unaffiliated organization, prepared a petition which bore
the following heading :
I am in favor of establishing an Independent Labor Union for
the employees of the Elastic Stop Nut Corporation of Lincoln,
Nebr.
This Union will be for the purpose of negotiating with the
management for the purpose of securing bargaining rights and
to settle all labor disputes that may arise between the company
and the employees.
With the aid'of 2 or 3 other employees, Borner circulated this petition
,,among the employees of the plant both during working hours and
when not on duty, until about September 14. Of the approximately
60 hourly paid employees at that time, 44 signed the petition; 2 subse-
quently had their names scratched off.
Arnold and Nicholas Meistrell, an employee, testified that during
the period the petition was circulated Borner was absent from his
machine about half the time, and Valnoski and Harvin were around
the machine when Borner was missing. Borner denied that he was
excessively absent. His denial was corroborated by Valnoski, who
testified he did not notice any undue absenteeism from the machines
2It is undisputed , and we find , that Valnoski and IIIarvin were supervisory employees
for whose actions the respondent is liable.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Borner, and was also corroborated by Charles Wheeler and John
Schwindt, fellow employees, who testified Borner was not absent from
his machine any more than other employees. While this contra-
dictory testimony does not permit a finding that Borner was absent
from his machine for excessive periods, nevertheless the overwhelming
weight of the evidence, including Burner's own admission, indicates
that he circulated the petition widely throughout the plant during
working hours, and we so find.
There is a further dispute in the record as to whether Valnoski was
present in the plant while the petition was being circulated. None
of the witnesses was able to testify that Valnoski saw the petition, and
several witnesses testified that no supervisors were present. Valnoski,
himself, testified he did not see the petition being circulated. This
state of the record does not permit a finding that Valnoski actually
saw the circulation of the petition. But this does not mean that
Valnoski was not aware of the circulation of the petition. The record
contains a signed statement made by Valnoski to the Board's attorney
in January 1943, in which Valnoski states he "knew Borner and Bretzer
were circulating a. petition and distributing cards in the plant."- At
the hearing Valnoski admitted that sometime in September he learned
that Borner and Bretzer were organizing a union,-but denied having
then had knowledge of the circulation of the petition. He sought
to explain his statement to the Board's attorney by testifying that
what he meant was that he learned of the circulation after it occurred
but before his statement to the Board's attorney. Like the Trial Ex-
aminer, we do not credit Valnoski's denial, since so much of his testi-
mony is confused. It is also unbelievable, in view of the undisputed
widespread • circulation of the petition through the plant during a
period of more than 2 weeks, during which 44 out of 60 employees
signed it, and others witnessed the circulation, that Valnoski was
completely unaware of what was taking place. This is particularly
so in view of the fact that Valnoski knew in August that organizational
activities were being considered by the employees and admitted that
he knew in September that the employees were starting a union. We
believe that the record justifies the inference which we draw, that
the respondent knew of the circulation of the petition in the plant
during working hours. It is undisputed that the respondent did
nothing to stop this circulation or to counteract the inference that
an independent union was being organized with the consent and ap-
proval of the respondent.
On September 6 or 7, while the petition was still being circulated,
'approximately nine supporters of an unaffiliated organization met at
Borner's home. Lambert Eitel, an employee, and Borner were,author-
ized to retain an attorney. They finally selected Victor Eitel, cousin
11
ELASTIC STOP NUT CORPORATION 699
of Lambert Eitel, and met with him on September 10 and 11, at which
time he proposed drawing up articles of incorporation, and the three
agreed on the name of the Association.
On September 14, Attorney Eitel telephoned Hofmann and requested
that the respondent enter into a contract with the group he represented.
Hofmann asked for proof of majority representation and when assured
it would be offered, agreed to meet with Eitel the next day. The meet-
ing was held on the afternoon of September 15, at which time Eitel
submitted the petition circulated by Borner. Hofmann, L. R. Doyle,
the respondent's attorney, and Eitel then compared the petition with
a pay-roll list and found that all 42 of the signatures were names of
employees listed on the pay roll. Doyle then advised Hofmann that
the petition evidenced representation of a. clear majority of the em-
ployees and that the respondent was required by the Act to recognize
and bargain with the representative so designated. Hofmann there-
upon recognized the Association and agreed to another conference, for
September It.
In the meantime, employees favoring an affiliated organization
were instrumental in bringing Ray Roth, an international repre-
sentative of the Union, to Lincoln. Roth met with approximately 26
of the respondent's employees for the first time on the evening of
September 15. About 22 of the employees signed union designation
cards at that time. That same night the Association held its second
organizational meeting at Borner's home. About 19 employees at-
tended. During the meeting articles of incorporation were signed,
and Attorney Eitel was authorized to draw up a contract. Officers
and a negotiating committee were elected.
On September 16 Roth notified Hofmann that the Union repre-
sented a "majority of the respondent's employees. Hofmann inquired
as to-how many employees had joined, but Roth refused to say. A
meeting for September 18 was arranged, however. On September 17,
Attorney Eitel and the Association's negotiating committee met with
Hofmann and Doyle. A rough draft of a contract was submitted,
and, after some discussion, it was agreed that Doyle and Eitel would
revise it.
In the morning of September 18, Roth met with Hofmann and
Doyle. Eitel was also present. Roth again refused to supply the
names of the union members to Hofmann, but stated he was willing
to supply the information to the Board's representatives. Hofmann
replied that it was Roth's privilege to seek recourse with the Board,
but that the respondent had already recognized an organization and
could not therefore recognize the Union.
In the evening of September 18 the Union held its second organiza-
tional meeting. About 30 employees attended. On September 22 the
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Association held its third meeting. A notice of this meeting was
posted on the respondent's bulletin board. About 33 employees at-
tended, 21 of whom, according to Borner's testimony, were paid-up
members of the Association. Several witnesses who were members
of the Union testified that 15 to 17 of those present were members
of the Union. We credit Borner's testimony as well as that of the
other witnesses and find that there was an overlapping of the Union
and Association adherents among the 33 employees at the Associa-
tion meeting. The proposed contract was discussed, changes were
made, and a new draft was authorized.
On September 23 the revised contract was presented to Hofmann s
All terms were finally, agreed upon, but Hofmann stated he would not
sign until the Association submitted further proof that it represented
a majority of the employees. On September 24, the Association
held a meeting, attended by 25 employees, at which the contract was
approved by the members present.
On the afternoon of September 25 representatives of the Associa-
tion again met with the respondent. Membership records were pre-
sented, showing that a majority of the employees were current dues-
paying members of the Association. Doyle again advised Hofmann
that the respondent was required by law to deal with the Association.
Thereupon the contract was signed. Hofmann admitted that he knew
on September 24, 1942, that charges of domination of the Associa-
tion had been filed with the Board by the Union.
On October 2, 1942, Roth again met with Hofmann. This time his
request that the respondent recognize the Union was dismissed with
the statement that the respondent had already signed a contract with
another organization.
It is not disputed, and we find, that both before and after October
2, 1942, members of the Association collected Association dues in
the plant during working hours, that the respondent did nothing to
prevent such activity, and that for a period of about 2 days early
in October, an Association handbill criticizing the Union and prais-
ing the Association was posted on the respondent's bulletin board.
Linus Dillon, an employee, testified that in late November or early
December while he was temporary president of the Union, Valnoski
told him that horseplay and foolishness like filing charges with respect
to a, discharged employee would have to stop. The Union had filed
such a charge on October 29, 1942. Valnoski did not deny making
this statement. We credit Dillon's testimony, as did the Trial Ex-
aminer, and find that Valnoski made the statement.
Meistrell testified that the day before the hearing began he told
Valnoski that he had been served with a subpena and that on the first
+ A second draft had been submitted on September 19 or 20.
ELASTIC STOP NUT CORPORATION 701
day of the hearing Valnoski said to him, "I hear you fellows is going
to tell a lot of stuff about me up there" and added "You hadn't better,
or it's going to be too bad." Meistrell further testified that after his
appearance at the hearing as a witness, Valnoski came to, him in the
plant and accused Meistrell of doing some "dirty trick" to one of the
girls who worked in the plant and then said, "You know what I told
.you if you went up there and lied about me." Valnoski testified
that he talked to Meistrell about the time the hearing in this proceed-
ing began but denied making the statements as claimed by Meistrell.
Valnoskii,•,testified that Meistrell showed him a subpena to appear at
the hearing and that he told Meistrell to tell the truth. We credit
Meistrell's testimony, as did the Trial Examiner and, find that Val-
noski made the statements to Meistrell as related by him. It is fur-
ther found, that Valnoski made the first of these statements for the
purpose of restraining Meistrell from testifying concerning Valnoski's
anti-union activity, and that it constituted a threat of reprisal if
Meistrell did so testify, and that the second statement constituted
a threat of reprisal against Meistrell because he did testify' adversely
to the respondent.
B. Concluding findings
We find that by Valnoski's statement to Arnold-that the respondent
did not want an affiliated union in the plant, by Valnoski's statement
to Dillon that foolishness like filing charges would have to stop, and
by Valnoski's warning to Meistrell concerning his testimony in the
instant proceeding the respondent has interfered with, restrained, and
coerced its employees in the exercise' of the rights guaranteed-in Sec-
tion 7 of the Act. '
We are of the opinion and find, moreover, that by various acts of
assistance to the Association, the respondent has not only abridged the
rights guaranteed in Section 7 of the Act, but, more specifically,' has
contributed unlawful assistance to the Association, in violation of
Section 8 (1) of the Act. Thus, at a time when its employees were
divided for and against,an unaffiliated organization, the respondent's
foreman, Valnoski, indirectly but clearly, expressed his preference for
an unaffiliated organization. Thereafter, while much of the organiza-
tion of an unaffiliated union was taking place in the plant during
working hours, the respondent, which has been found to have had
knowledge of the activity, took no steps to rebut the natural tendency
of the employees to presume therefrom that the respondent favored
the formation of an unaffiliated organization. Further assistance
was supplied by permitting the posting of notices of the Association's
meetings and an anti-union handbill on the respondent's bulletin
boards, and by permitting the collection of dues for the Association
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the plant during working hours. Then, too, the respondent pro-
ceeded to recognize the Association on the basis of a petition which
did not designate the Association as bargaining representative, but
expressed a preference of the signers for an "independent labor
union." Although informed 1 day later that the Union also claimed
to represent a majority. of its employees, the respondent nevertheless
carried on contract negotiations with the Association. Finally, within
a period of 10 days, and after having had notice of the filing by the
Union of charges of domination of the Association, the respondent
on September 25, 1942, entered into a contract with the Association.
A neutral employer, when faced with the conflicting representation
claims of two rival unions, would not negotiate a contract with one
of them until its right to be recognized as the collective bargaining
representative had been finally determined under the procedures set
up under the Act.
In view of this unlawful aid and assistance to the Association, we
find that the respondent's employees were not afforded the complete
freedom to choose between rival organizations which the Act con-
templates. Accordingly we shall order that the respondent withdraw
and withhold recognition from the Association as the representative- of
any of its employees for the. purposes of collective bargaining until
such time as the Association may be certified as their representative by
the Board.4 Since the contract of September 25, 1912, made with the
Association, perpetuates the respondent's unlawful assistance to the
Association, we shall further order the respondent to cease giving effect
to it, as well as to any extension, modification, renewal, or supplement
thereof, or to any superseding contract with said organization which
may now be in force. Nothing in this Decision and Order shall be
interpreted, however, to require the respondent to vary these wage
rates, hours, and other substantive features of its relations with its
employees which the respondent may have established pursuant to the
contract, as extended, renewed, modified, supplemented, or superseded.
In addition to the allegations of interference, restraint, and coercion,
the complaint alleged that the respondent instigated, formed, assisted,
dominated, and supported the Association, within the meaning of Sec-
tion 8 (2) of the Act. In his Intermediate Report the Trial Examiner
concluded that the respondent had dominated and interfered with the
formation of the Association. Although we are of the opinion that
the respondent's'activities constitute interference within the meaning
of Section 8 (1) of the Act, we do not believe that the character and
4 Cf. Matter of Heather Handkerchief Works, Inc., 47 N . L. R. B. 800; Matter of Inter-
state Folding Box Company, 47 N. L. R. B. 1192; Matter of Wayne Works , 47 N. L. R. B.
1437.
ELASTIC STOP NUT CORPORATION 703
extent of these activities, under all the circumstances of this case,
justify a finding that the respondent has violated Section 8 (2) of the
Act. Accordingly, we shall dismiss the 8 (2) allegations of the com-
plaint.
We agree with the Trial Examiner that the allegations that the
respondent entered into a "closed-shop" contract with the Association,
permitted the Association but not the Union to distribute handbills
near its premises, and favored Association members over union mem-
bers with promotions and wage increases, are not substantiated by the
record, and we shall dismiss the complaint as to them.
IV. THE EFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent, set forth in Section III A, above,
occuring 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 commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices within the meaning of the Act, we shall order that it cease and
desist therefrom, and take certain affirmative action which we find
will effectuate the policies of the Act.
Upon the foregoing finds of fact and upon the entire record in the
case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, Cornhusker Lodge No.
1604, and Employees Benevolent Association Union are labor organi-
zations within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of he Act, the respondent
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (e) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Elastic Stop Nut Corporation, Lincoln, Nebraska, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:.,
(a) Recognizing Employees Benevolent Association Union as the
representative of any, of its employees for the purposes of collective
bargaining with respect to grievances, labor disputes, wages, rates
of pay, hours of employment', or other conditions of employment, un-
less and until that organization shall have been certified by the Board
as the representative of the employees;
(b) Giving effect to the contract of September 25, 1942, with Em-
ployees Benevolent Association Union, or to any extension, renewal,
modification, or supplement thereof, or to any other contract made with
Employees Benevolent Association Union;
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, or to engage in concerted ac-
tivities for the purposes of collective bargaining or other mutual aid
or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw and withhold recognition from Employees Benevo-
lent Association Union as the representative of any of its employees
for the purposes of collective bargaining with respect to grievances,
labor disputes, wages, rates ; of pay, hours of employment, or other
conditions of employment, unless and until that organization shall
have been certified by the Board as the representative of the employees;
(b) Post immediately in conspicuous places throughout its plant
in Lincoln, Nebraska, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating (1) that the respondent will not engage in the conduct from
which it has been ordered to cease and desist in paragraphs 1 (a), (b),
and (c) of this Order; and (2) that the respondent will take,the af-
firmative action set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Seventeenth 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 paragraph number V of the com-
plaint, alleging that the respondent instigated, formed, assisted, domi-
nated, and supported the Association in violation of Section 8 (2) of
the Act, and subparagraphs (c), (f), (g) and (h), of paragraph num-
ber VII, be, and they hereby are, dismissed.