Wayne Works

National Labor Relations Board - Board Decisions

Mar 10, 1943

47 N.L.R.B. 1437 (N.L.R.B. 1943)

In the. Matter' of WAYNE WORKS- and INTERNATIONAL UNION, UNITED
AUTfi>MO. muj, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, AFFILIATED.xWITH THE C. I. O. and WAYNE WORKS EM-
PLOYEES' ASSOCIATION, PARTY TO TIIE CONTRACT
Case No. C-2463.-Decided March 10, 1943
Jurisdiction : automobile body manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: statements hostile to affiliated union and
favorable to unaffiliated organization; questioning and warning-of employees
regarding their union membership; solicitation of membership on behalf of
.unaffiliated organization and official participation in its meetings by super-
visory employees ; discriminatory prohibition of solicitation on behalf of affil-
iated union in plant; interference in contract election conducted by unaffiliated
organization.-
Company-Dominated Union: charges,of, dismissed.
Remedial Orders : respondent ordered to cease and desist from unfair labor prac-
tices; in view of assistance to unaffiliated organization respondent ordered to
withdraw recognition from it until certified' by the Board; contract between
respondent and that organization abrogated.
DECISION
AND
ORDER
On-December-:16;;1942,; the-Trial. Examiner issued his Intermediate
Report-in-the above-entitled proceeding, finding that .the respondent
had engaged_ in and was.engaging in certain- unfair-labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action is set forth in the copy of the Intermediate Report
annexed hereto. Thereafter, the Union filed exceptions to the Inter-
mediate Report and a brief in support of its exceptions. The respond-
ent filed a reply brief.
During the hearing, the Trial Examiner ruled upon various motions
and upon objections to the admission of evidence. The Board has
reviewed the rulings of the Trial Examiner and finds that no preju-
dicial errors were committed. The rulings are hereby affirmed.
Pursuant to notice, a hearing for the purpose of oral argument
was held before the Board on February 4, 1943, at Washington, D. C.
The respondent and the Union were represented by counsel and pre-
47 N. L. R. B., No. 184.
1437
1438, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented argument. In lieu of rebuttal, the Union thereafter filed a
written reply argument. The Board has considered the Intermediate
Report, the Union's exceptions and brief, the brief of the respondent,
and the entire record in the case, and hereby adopts the findings and
conclusions ' of the Trial Examiner with the additions noted below.
The remedial recommendations of the- Trial- Examiner- are likewise
adopted by the Board except as modified in the order- hereinafter -set
forth.
A. Interference, restraint, and coercion
The Trial Examiner found that since May 1941 the respondent was
chargeable with the union activities of Arval Nibarger, who at that
time was placed in charge of the night shift in the sheet metal division.
He did not, find, however, that Nibarger's continued participation .in
Association affairs after becoming a supervisor was in violation of the
Act. As found by the Trial Examiner, Nibarger retained his position
as president of the Association for approximately 6 months after as-
suming•his,supervisory duties, during which time: he. presided. over the
three monthly meetings of the Association held just prior to the elec=
tion of new officers in November 1941. We are of the opinion, and find,
that by such activities the respondent improperly lent its prestige to
the Association and thus interfered with the rights guaranteed its
employees in Section 7 of the Act.
We also find, contrary to the Trial Examiner, that by warning
Hubert White with regard to his union activities, Superintendent Will-
son engaged in conduct violative of the Act. White had been an active
participant in the strike during the fall of 1937 and was, as he testified,
"100 per cent for the C. I. O.", White testified that he left the respond-
ent's employ in 1938 and that when' he sought reemployment, Willson
told him that his previous work warranted no criticism but that his
"attitude" had not been satisfactory. White, according to his testi-
mony, understood Willson to be referring to his union activities and
replied that he was willing to change his attitude.. White was reem-
ployed following this conversation. Willson testified that his warning
to White was occasioned by the hostility which White's activities dur-
ing the strike had allegedly aroused among some of his fellow em-
ployees and by White's alleged failure to cooperate with his foreman
following the strike. Willson, however, did not mention any specific
instances after the strike in which White had permitted his union
sympathies to interfere with the proper execution of his duties. More-
over, as we have found, Willson had yearned McPherson, a seasonal
employee, that unless he joined the Association he would not be per-
mitted to work at the plant the following season, and thereafter had
prohibited Williams, another employee, from soliciting on behalf of
WAYA'E WORKS 1433
the Union while permitting solicitation on behalf of the Association
during working hours. We are convinced that Willson's warning of
White was motivated by the hostility he had previously evinced toward
the Union, and not by any deficiency in White's conduct as an employee.
That the warning had the intended effect is evidenced by the fact that
White, a strong adherent of the Union, joined the Association upon
being reemployed. We find that by the above-described conduct, of
Willson; the, respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of _the
Act. O _
B. Assistance to the Association
We are of the opinion, and find, that the various anti -union and pro-
Association acts engaged in by supervisory employees of the respondent
constituted not only an abridgement of the rights guaranteed in Sec-
tion 7 of the Act but, more specific t1ly, constituted unlawful assistance
to the Association in violation of Section 8 (1) of the Act. Superin-
tendent Willson,and Foremen Sanders, Dailey, and Gamp, urged and
warned employees to join the Association; Willson and Sanders per-
mitted solicitation on behalf of the Association during working hours
while prohibiting similar activity on behalf of the Union; and Willson
warned McPherson and White that their continued employment was
dependent upon joining the Association. These and other acts of inter-
ference by the respondent, the most recent of which was the instruction
in February 1942 of employees Copper and Gilbert by supervisor Moore
to vote in favor of the contract negotiated between the Association and
the respondent,' clearly comprised a substantial measure of support to
the Association. In view of this unlawful aid and assistance to the
Association, we find that the respondent's employees, in selecting the
Association as their representative, were not afforded the complete
freedom of choice which the Act contemplates. Accordingly we shall
order that the respondent withdraw and withhold recognition from the
Association as the representative of any of its employees for the pur-
poses of collective bargaining until such time as the Association may be
certified as their representative by the Board .2 Since the contract of
February 21, 1942, made with the Association perpetuates the respond-
ent's unlawful assistance to the Association, we shall further order the
respondent to cease giving effect to it, as well as to any extension, modi-
fication, 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 re-
' Ratification of the contract was carried by a close vote.
2 Cf Interstate Folding Box Company and International Brotherhood of Pulp, Sulphite
d Paper Mill Workers , Local # 450, of fated with the A. F. of L, 47 N. L. It. B. 1192
1440 DEiGISIONS OF NATIONAL LABOR - RELATIONS BOARD
spondent to vary those 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.
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, Wayne Works, Richmond,
Indiana, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Recognizing or in any manner dealing with Wayne Works Em-
ployees' Association, as the representative of any of its employees in
respect to grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, unless and until that
labor organization shall be certified as such by the National Labor
Relations Board;
(b) Giving effect to the contract of February 21, 1942, with Wayne
Works Employees' Association, or to any extension, renewal, modifica-
tion, or supplement thereof, or to any superseding contract with said
organization which may now be in force;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing and to engage in concerted activities
for the purposes of collective bargaining or other' mutual aid or protec-
tion 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 all' recognition from Wayne Works
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 con-
ditions of employment, unless and until that labor organization shall
have been certified as such representative by the National Labor Rela-
tions Board,
(b) Post immediately in conspicuous places throughout its plant
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 is ordered to
cease and desist in paragraphs 1 (a), (b), and (c) of the Order and (2)
that the respondent will take the affirmative action set forth in para-
graph 2 (a) of this Order;
WAYNE WORKS 1441
11 ' (c) Notify the Regional Director for the Eleventh Region in writing
within ten (10), 'days from the date of this Order what'steps `the"
'respondent "has taken to comply herewith. n
IT Is FURTHER ORDERED that the complaint be, and- it hereby is, dis-
missed insofar as it alleges that the respondent violated Section 8 (2),
of the Act.
INTERMEDIATE REPORT
Mr., Robert D. Malarney, for the Board. Brown, Keller d Mendenhall, by Mr.
Will W. Keller, of Richmond, Ind., for the respondent.
Mr. Andrew Jacobs, of Indianapolis, Ind., for the Union.'
Mr Earl Kcisker, of Richmond, Ind, for the Association.
STATEMENT OF THE CASE
Upon a charge duly filed,on April 14, 1942, by International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, (C. I. 0.), herein
called the Union, the National Labor Relations Board,-herein called the Board,
by the Regional Director for the Eleventh Region (Indianapolis, Indiana), issued
its complaint dated October 26, 1942, against Wayne Works, 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 were
duly served upon the respondent, the Union, and Wayne Works Employees'
Association, herein called the Association.
With respect to the unfair labor practices,' the complaint alleged in substance:
(1) that from on or about December 10, 1937, the respondent initiated, formed
and sponsored, and thereafter dominated and contributed financial and other
support to the Association, and interfered with the administration of the Associa-
tion by (a) advising, urging, and warning its employees to join the Association;
(b) advising its employees to refrain from becoming members of the Union; and
(c) by other acts; (2) that on or about February 20, 1942, the respondent entered
into a collective bargaining agreement with the Association in respect to the
terms and conditions of employment of its employees at a time when the Associa-
tion did not represent an uncoerced majority of its employees in a unit appro-
priate for the purposes of collective bargaining and that any modification, supple-
ment, renewal, or extension thereof is invalid and in violation of the Act; and
(3) that by all of the above acts, and by each of them, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
On November 16, 1942, the respondent filed its answer admitting the allega-
tions concerning the nature of its business, denying the alleged unfair labor
practices, and averring certain facts referred to hereinafter
On November 5, 1942, the Association filed its answer denying that the respond-
ent had interfered with or initiated its formation, or had interfered with or
dominated its administration.
Pursuant to notice, a hearing was held at Richmond, Indiana, from Novem-
liei 16 through November 21, 1942, before the undersigded, Webster Powell, the
Trial Examiner duly designated by the Acting Chief Trial Examiner. The
Board, the respondent, the Union, and the Association were all represented by
counsel., Full opportunity to be,heard, to examine and cross-examine witnesses,
513024-43-vol. 47-91
1442- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to, introduce evidence bearing on the issues was afforded all parties At,the
Conclusion of the, hearing, counsel for the respective parties argued orally upon
the record. Although all parties were advised of their right to file briefs, no
briefs were filed.
Upon the entire record in the ' case and from his observation -of the witnesses,
the, undersigned makes the following : .
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Wayne Works is an Indiana corporation, having its office and place of busi=
ness in Richmond, Indiana.,, The respondent has been, and is engaged in the
manufacture, -sale and distribution of bus bodies, but, since the entry of the
United States into the war, has been engaged principally in the manufacture
of products required for use in the -war, including ambulances Its products
are sold to customers throughout the United States and elsewhere It admits
that it is engaged in commerce within the ineaiiing of the Act
II THE ORGANIZATIONS INVOLVED (-
1i
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, affiliated with the Congress of Industrial Organizations,-is
a labor organization admitting to membership employees of the respondent •
`-Warne Works Employees' 'Association is an unaffiliated labor organization
admitting to membership employees of the respondent. I
III THE UNFAIR LA13OR PRACTICES
A Background
On May 23. 1934, while the A F of L was attempting to organize its eni-•
ployees, the respondent issued a bulletin to its employees stating, in substance,
that some employees were telling fellow employees that they had to join the
union, that if they did not wish to join a union they ni,ust speak up and tell
the "union men to mind their own business, and urged the employees to "connpare
what the respondent was giving them with what the A F of L. could give them.
The bulletin also contained a number of other statements clearly intended to dis-
courage the employees from joining the A. F. of L It was signed by Superin-
tendent H V. Goodenough, whose connection with the respondent ceased on
November-1, 1937.
The Union began its organizational campaign among the respondent's em-
ployees in the spring of 1937 Frank Slorp, a group leader, became the Union's
first president Kenneth Horney, a production employee, its first secretary, and,
Harold Kohler, an inspector, one of the trustees 1 All were active in the formative
period of the Union. Later these men were among the most active in the formation
of the Association.
B. The Association
During the summer of 1937 the respondent entered bargaining negotiations
with the representatives of the. Union as the bargaining representative of its
employees Negotiations proceeded for several weeks. without fhial agreement on-
a contract. "Toward"the end of October the Union called a meeting of its members,
to decide "whether of not the-Union should launch a strike against the respondent
,"'i The supervisoiy,status -of`Kohlerand of-group leaders'is`hereinafter discussed.
WAYNE, WORKS" - 1443
liecause - of the failure of the ' respondent to agree,to theiterms,of the contract
proposed ;by the Union . By a small majority- the membership-present at the meet-
ing voted to go on strike . However, accordingito the bylaws of,,the "Union; a ' strike
could not - be called without - the consent ` of - two-thirds of those present at' the
i'neeting •when the strike vote was taken .f As the strike was not ratified by the
necessary - two-thirds, those attending the first , meeting, voted fo hold another
meeting the following 'week before icalling ' the strike .' ' However , ,on November' 4,
the Thursday preceding the Monday on which the second ` meeting was 'to be held,
upon the instigation of a handful of union members the strike began . -A picWe l
line was formed and many, of the union members participated in the picketing.
Toward the latter part of November , dissension arose , among , the union members.
A number of the employees who belonged to the Union desired to return . tofwork.
A, union committee 2 went - to Indianapolis ; Indiana, and requested ,permission ;of
the Regional Director of the C. I . 0. to,stop the strike under - an agreement, with
the respondent that they would be ,allowed to return to their, former positions
without loss of seniority and other rights and privileges ( This request was
denied.
Glenn Williams , then an employee in the stockroom and a •nieniber--,,of the
Union, testified that about December 1, 1937, - George Toler , purchasing, agent
of the respondent , invited him to,his home ; that Toler- urged him to use his
influence to organize "a company union" and informed Williams that it would
be "worth while" for him' to do so ; that`'they then discussed the strike which
was tit progress at the plant ; and that lie refused to have anything to do with
Toler's proposition . Williams likewise testified that when lie entered the Toler
house he saw Mrs. Toler with whom he was acquainted , leaving the house. Toler
denied that Williams had ever visited his home or that he had ever made the
remark attributed to him by Williams . Mrs Toler likewise denied that Williams
had ever been to the Toler home 2 The undersigned believes that Mr . and Mrs
Toler were honest and forthright witnesses At the time Williams testified, he
was no longer working for the respondent and was no longer a member of the
Union . Counsel for the Union contends that-- these facts are important in-,weigh-
ing Williams ' credibility in that they disclose that Williams was a disinterested
witness The reason for Williams ' failure to belong to the Union at the time
`of .the hearing was, however , due to the fact that he occupied a confidential
status in the plant where he then worked and was not eligible for membership'
in the Union , and not because lie was no longer interested in the Union. The
undersigned credits the testimony of Mr and Mrs Toler and finds that Toler
never asked Williams to form a company union, or told him lie would make it
worth his while to,form such an organization
Early in .December , shortly after the above -mentioned tip, to Indianapolis,
Indiana , Harold Kohler , Frank Slorp , Kenneth Horney, all foriuerly active mere=
hers and officers of the Union ,' and several other employees °' decided to investi-
gate the possibility of forming an' unaffrliiited union.` They sought the,advice of
Earl Keisker , the attorney 'who'represented • the Association at the peering, 'vith
2 These findings are based on the undisputed testimony, of Kenneth Horney , 'an employee
who :was the first ' secretary of the Union , and later became secretary -treasurer of the
Association- :. '
i'Mrs Toler was employed at the plant in the fall and winter-of 1937 and knew Williams
as-,a fellow employee - i .. i•, '
Sometime fluting the summei or fall of 1937, Slorpr,was succeeded-as piesident'of'the!
Union by Arthur `Atkins„and Horney , who lived out:of , town at the time and found - it difficult
to,attend meetings regularly , was-succeeded;as secretary by,Paul Allen , brit wntiuued as one
of,-the - Union stewards until the Association was formed He,also helped Allen during they
strike ,'and,participated ,in the picketing:.. „
6 Floyd McCarley and Ray Showalter , both group leaders, and Hariy Schmidt, an employee.
1444 DEiCISIONS OF NATIONAL- LAB6,R,.,RELATIONS BOARD
whom some, of,the, group!had been previously acquainted and whom they knew
represented other, unaffiliated unions in the. city. There is, no evidence that,
Keisker had at any time had,any relationship with the respondent or, had,beeu
referred to the leaders,of the independent union movement by the respondent.
During the -first half of December, following several, preliminary conferences -
at the office of Keisker, a group of,employees, with the help of Keisker, organ-
ized themselves as -the' "Organization Committee for The Wayne- Workers
Employees' Association" and -sent the following circular to a number -of' the
employees, some members of and others not members of the Union : -
The Organizing Committee of the Wayne Works Employees' Association
is making an honest effort to get the employees of the Wayne Works back
on the job. - -
This Association is, being formed to enable the employee' members'to
handle' their own affairs and to engage in collective bargaining through
their own self-governed and controlled organization '
The election of officers, labor representatives, and setting of monthly
dues is entirely controlled by the members themselves without outside
influence or domination. ti
This plan of unionism is working `in eleven'plants in Richmond, all with-,
out uninterrupted pay-rolls, and it CAN'and WILL work in your plant. '
Join with us in this "Get Back to Work" movement by signing and promptly,
mailing the enclosed card !
About the middle of December the Association elected temporary officers,' and
shortly thereafter requested recogiiition of the respondent as the bargaining agent
of its employees, claiming to represent a majority The respondent took the
position that ,it could not then bargain with the Association inasmuch as the
Union also claimed to represent a majority, and that "somebody" would have tQ
tell it with whom to deal. In the latter part of Decenibei the Association peti-
tioned the Board for investigation and certification as the bargaining representa-
tive of the respondent's employees; Puissant to a consent election agreement
entered into between the respondent, the Union, and the Association, while- the
strike was still in progress, the Board conducted an election on' December 29,
1937, to, deteimsie whether the employees wished the Union or the Association
to be their bargaining representative The Association won the election," fol-
lowing which the employees returned to work as they were called.-by the
respondent' '
About the middle of January 1938, the Association elected permanent officers 10
and on January "24 adopted its constitution a1d bylaws. Among other things,
At one of these conferences Keisker lead a portion of the National, Labor Relations Act
and explained its meaning to those present.
7 Harold Kohler was made temporary president. ,
" Kohler voted in this election and his vote was counted , although his right to vote was
challenged by the Union
0 The manufacture of busses is a seasonal business , which is slack in the wintertime and
becomes progressively more active inI the late spring and summer , reaching its peak in
August and September just before the school term begins ' - '
10 Among the original officers ,of'the Association, Haiold Kohler , president , occupied the,
position of inspector ; C. J. Sargent , vice president, was a group leader ; and R M; Stephen-
son, secretary , was receiving clerk in the: shipping department . The of-ginal representa-
tives of the Association appointed by Kohler were Arval Nibarger , Ralph Bossert, Frank
Slorp, Orville Chandler , Floyd McCarley;:Harry Haas and Ray Showalter . ' In March 1938,
at the time the first agreement between the Association and the respondent was, signed,
Slorp, McCarley , Haas and Showalter were , all 'group leaders. Subsequently McCarley be-
came assistant ` foreman , and later ', foreman- of, the- electric ' department . Kohler' was,
- re-elected to a second term in November 1938, serving as president until November 1939.
WAYNE WORKS 1445
the bylaws,provide that the administrative, executive and bargaining powers of
the Association "shall be vested in a Board of Directors along with the Presi-
dent, Vice-President and Secretary, who shall constitute the Association's Labor
Board" -The bylaws also provide that all bargaining agreements must be sub-
mitted for ratification to the members of the Association.
- Early in 1938 certain supervisors urged some of the employees in the plant
during working hours to join the Association and prohibited some of them from
engaging in solicitation on behalf of the Union on company time and property.
Some of the foremen likewise made remarks derogatory of the-Union and union
members
Thus, Glenn Williams testified that, about February 1, 1938, Ora Sanders,
foreman. told hint that lie had been agitating labor trouble and that if he was
smart lie would "get in line and join the company Union " Sanders admitted
that he told Williams that he was an "agitator and trouble maker" and stated
that lie had informed Williams lie would not peimit him to talk C I 0 during
working hours He denied, however, that lie urged Williams to join the Asso-
ciation. In view of Sanders' admissions, the undersigned credits Williams' tes-
timony as to the conversation between their
Williams testified that shortly after the above conversation with Sanders, Super-
intendent Willson warned him to stop soliciting members for the C. I 0. during
working hours Willson was not questioned concerning the iemarks attributed
to him by Williams The undersigned credits Williams' uncontradicted testi-
mony" So far as the record reveals, both the conversations between Williams
and Sanders and between Williams and Willson occuri ed before any rule pro-
hibiting solicitation of employees for union membership on company time and
property went into effect
The first contract between the Association and the respondent,, dated 'larch
16, 1938, provided for a Union Labor Board consisting of the above named officers
and representatives, and the respondent recognized this "Union Board" as the
exclusive representative of its employees for the purpose of collective bargaining
in respect to rates of pay, wages. hours of employment and other conditions of
employment. The contract provided, among other things, for niaxmnun hours
of labor, a fixed minimum rate of pay for time work and piece work, seniority, and
a grievance procedure'' Section 2 of Article V of the agreement provided in
part that employees should not solicit for union membership 'on company time
or property or discriminate against another employee because of his membership
or non-membership in any labor organization, and that non-members of any
union should "not solicit union members to drop their membership, nor in any-
wise intimidate or interfere with said members in thou attitude or relationship
with any union." Article VIII provided as follows:
MODIFICATION OF AGREEMENT
If, because of conditions arising during the term of this agreement, and not
now anticipated, it shall become necessary to modify this agi Bement, Said
Company reserve such right, with the provision, however, that the same
shall not be done without first bargaining on such matters with the Union
L,ibo 2 oard
i There is no evidence that the respondent ever availed itself of the above pro-
vision in the contract to bring about any changes therein' The contract was to
remain in effect until November 1, 1938. This contract was renewed from year
11 About a month after the above incident Williams left the respondent 's employ
12 It is not clear from , the record that. any wage increase was given at this time,
1446 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
to year until December 20, 1940. when it was replaced by it new,contract, here-
inafter discussed
,(.In the summer and toward the end of 1938 two supervisors urged and warned
employees to join the Union, and one of them made derogatory, remarks about
the Union. Roland McPherson, a•seasond employee who has not worked for
the respondent since the summer of,1938, testified that at the end of, August
.or the beginning of September 19:18, Superintendent Willson asked him if lie
belonged to a union, and when McPherson i eplied ui the negative Willson told
him he would have to join a union or lie vouhid not be permitted to work,at the
plant the following year McPherson made no reply Willson first testified
that he ;had no recollection of ever talking to McPherson He later denied that
lie had made the remairk',attribnied,to-him, by ,McPherson, stating iii'substance
that lie always adopted a neutral attitude toward labor organizations and it was
incompatible with this attitude for him to have urged or threatened an employee
concerning union matters J1cPlieri-on w,is- a forthright witne:,s arid ilie re-
marks attributed by him to Willson are not incoesisleat Willi the uiidenied re-
marks made by Willson to Williams lierein:iboo e set forth McPherson's testi-
mony that Willson told him he would' have to join a' union if he wanted to work
for-the respondent is credited The only organization in the plant at the time
was the Association. It is found that by the term "a utuon" Willson-had refer-
ence to the Association
• According to the testimony of Elmer Rogers. an employee, in the latter part of
1938 Ozro Dailey, foreman of the press room, asked him whether he belonged to
the Association Rogers replied.tbat be did not, whereupon Dailey informed him
it would be wise if he joined the Association and also stated that lie had belonged
to the C. I. 0 in the town of Connersville "and that it was a radical organization.
Similarly, it was stipulated and agreed by the parties during the hearing that if
Jonas E. Donson, a former employee now in the armed forces, were called as a
witness, he would testify that sometime an the first week of May 1939 Dailey cure
to his work bench and stated, "What's the matter with you fellows'? Aren't you
satisfied with conditions in the shop? Don't you think the company union is doing
alright by the fellows in the shop"" and that Dailey further stated that lie had
been in the C I O in Connersville and "it had messed things up" , and that Dailey
also expressed his opinion that it would be advisable for Donson'to join the Asso-
ciation,,, Dailey first testified that he could not remember making the remarks
attributed to him by Donson and thereafter lie denied making any such remaiks
to Donson and likewise denied the remarks attributed to him by Rogers . Follow-
ing-his conversation with Dailey, Rogers joined the Association He was never
a,inember of the Union, Rogers was a credible witness The remarks attributed
to Dailey by Rogers and Donson urging them to join the Association bear a marked
similarity to the remarks by AVillsou and other supervisory employees herein set
forth. The undersigned credits Rogers-and Donson:' -
Sometime in January 1939, the Association asked the respondent for permission
to install a cariteen machine in the plant in order to make it possible for employees
to purchase candy and Coca Cola without leaving'the plant. After consulting with
Will Reller, attorney for :he-respondent,. Yale Schively, president of the respond-
ent, gave the Association'permission to'put in vending machines Starting with
one machine in January 1939, a total of six had been installed by the date of the
hearing, pursuant to an agreement between the Association and the Indiana
Canteen Company All of the profits from the machines were retained by the
Association. Arval Nibarger testified, and' the undersigned finds , that during his
period as president of the Association from June 1940 to November 1941-the profits
"The'record 'does not show in -which state'Connei•svitle is located'-
' WAYNE WORKS 1447
frdin the.machines averirged abdut,$15 u'nionth At the tune of the hearing. they
were running.around $60 a month..-The respondent charged-no rent either,,to -the
canteen company or to the Association for the space occupied in the plant by
these machines
1i'September or O&o6ei 1939, Walter Gump, foreman of the,trimming depart-
ment, told Chester Lane, then an employee and member, of the Union, that he
would be better off in the Association and handed him an Association card to sign.
Ganip knew'at'the time that Lane belonged to the Union. Gamp was not available
to testify since he was in the United States Arniy." Lane's tesfimony is credited.
`Hubert White testified that in May,1940, Superintendent Willson told him, upon
his application for re-employment, that at the time of his previous employment
his,work had been suitable but his attitude had not been satisfactory and Willson
asked him what he was going to do about his attitude toward his fellow employees.
White further testified that-he understood Willson was referring to his union
'activities He joined the Association following this conversation and had no
further trouble at the plant.'6 Willson testified that he explained to White when
he applied for a job in 1940 that there were a number of fellow employees who
were "out of sorts" with him because of the active part he had played as a member
of the Union during the strike and because of his lack of cooperation with his
fellow employees and his foreman after the strike, and that if he would correct
this fault Willson saw no reason why White should not continue to be a 'good
employee for the respondent. The undersigned finds that Willson told White in
substance that, if -reemployed, he would have to cooperate with his foreman and
the other employees and not allow his union sympathies to form an obstacle to
such cooperation. Under these circurnstaiices no violation of the Act is here
involved." -
On September 13, 1940, a second consent election conducted by the Board resulted
in a victory for the Association over the Union." On December'20, 1940; a new
agreement was entered into between the Association and the respondent. In gen-
eral, this agreement followed the pattern of the original agreement, but the hours
of employment were made to conform to the provisions of the Fair Labor Stand-
ards Act. In addition, however, to the same basic wage rates as contained'in the
1938 contract, the 1940 'agreement- contained certain safeguards against loss of
time on piece work for reasons beyond the employee's control. It further provided
for overtime for woik peifornred from 6 p. m. Saturday to 6 a. M. Monday and on
Labor Day, and for double time on certain days which were designated as holidays.
'The 1940 contract further contained a clause providing for changes in the rates
of pay of all regular employees in conformity with increases in the cost of living
index as given by the National Industrial Conference Board. Article X, a new
14 Counsel for the Association objected to the testimony relative to the above conversation
with Gamp on the grounds that Gamp was unavailable for the purpose of testifying The
undersigned overruled the counsel 's objection , stating in effect that if counsel would bring
the matter to the attention of the Ti ial Examiner at the close of the hearing he would be glad
'to try to work out some procedure whereby Gamp might be located for the taking of a
deposition. Counsel for the Association made no request for the taking of a deposition.,
16 White had worked for the respondent in 1937 and 1938 and had been very active in the
Union.
16 Arnett Bradley, a'foimer employee who had belonged to the Union in 1937, testified that
in the summer of 1939 he applied to Superintendent Willson for a job and that the,latte'i•
told him there were a lot of trouble makers in the plant and in return for giving Bradley a
lob he wanted Bradley to do some "stool pigeon" work for him Bradley refused. Willson
categorically denied the remarks attributed to him by Bradley. The undersigned credits
Wilson 's denial as' being more consistent with the testimony concerning Willson's activities
'and from his observation of the witnesses.
11 The results of the election *were : 208 votes for the Association, 93 for the Union,- 7 for
neither organization , and 27 challenged-ballots
1448 DEICICIONS OF NATIONAL LABOR RELATIONS BOARD
provision , provided that employees should participate in a profit -sharing plan
promoted by the respondent. Article VII, concerning the modification of the agree-
ment, reads as follows :
If, because of conditions arising during the term of this agreement, and
'not now anticipated, it shall become necessary to modify this agreement, said
Company and Union reserves such right with the provision, however, that the
same shall not be done without first bargaining on such matters with .the
Company and the Union Labor Board.
Finally, in addition to the above, the 1940 contract provided for deduction by
the Company of dues in the Association in the case of any employee who
authorized such deduction in writing . The, clauses hereinabove referred to in
the 1938 agreement prohibiting any employee from soliciting union membership
on company time or property were dropped from the contract There is no
evidence as to whether or not the respondent maintained it rule prohibiting
solicitation in the plant during working hours after the termination of the
1938 contract. However, foremen were instructed to remain neutral. The con-
tract was signed on behalf of the Association by Arval Nibarger, president, and
Elmer Rogers, secretary's ,
In May 1941, Nibarger was put in charge of the night shift in the sheet
metal division, having supervision over the work of about 30 to 35 employees.-
Following his promotion, Nibarger absented himself from meetings of the
Association over which lie had been in the habit of presiding, stating at one
of the meetings shortly after his appointment that he had been placed in
charge of the night shift in the sheet metal division and (lid not want to
preside at Association meetings.10 During August 1941, some of the former
members of the Union who had finally joined the Association, and probably
others, began an attempt to secure a new contract." It became increasingly
ditticult for John Wilhite, vice president, to keep order. Wilhite presided over
Association meetings when Nibarger became inactive About the middle of
August, Secretary-Treasurer Horsey notified Nibarger that some of the mem-
bers • of the Association were, dissatisfied with the manner in which the itieet-
ings were being conducted and' wished him to return to active membership
in the Association and preside over the meetings Nibarger attended the next
meeting in the latter part of August and tendered his resignation Those present
refused to accept his resignation and persuaded Nibarger to preside over the
last three business meetings of the Association prior to the November elections
of 1941.2' On these three occasions between August 15, 1941, and November 1
of that year, Nibarger received permission from Verlin Martin, assistant super-
intendent of the sheet metal division, to check out of the plant for the purpose
of attending the meetings At the end of each meeting Nibarger returned to
the plant and resumed his duties .^ Nibarger was not paid by the respondent
'8 Nibarger became president in July 1940, succeeding Robei Sliver, who resigned from the
presidency because of his health • Nibarger was re-elected president in November 1940 for 'a
full year.
"This finding is based on the undisputed testimony of Lloyd Napier, a former member of
the Union, who joined the Association and became one of its iepresentatives in 1941, and of
Gilbert Caplinger, an Association repiesentative
So During the hearing, the respondent and the Association contended in substance that
during the summer and fall of 1941 many employeesssympatbetic with the Union joined the
association in order to secuie control of the Association whatever the purpose, a-number
of formerly active members of the Union took an increasing part in the affairs of the
Association during the period fiom August 1941 to February 1942, and there was considerable
dissatisfaction with the terms of the contract and with the Association.
21 The business meetings were conducted once , a month.
22 These findings are based on Nibarger 's undisputed testimony.
WAYNE WORKS ' 1449
for time spent,at these meetings. At one of these meetings while Nibarger was
presiding, it was ' moved and seconded that the Association open negotiations
for ' a new contract in conformity with the provision of the existing contract
that notice of termination should be given not'less than 30 days before any
yearly expiration date.23 Nibarger refused to(allow this motion to be voted
upon at the meeting, giving as a reason the imminence of the date when new
officers were to be elected and his opinion that the new officers should not be
saddled with an agreement made by the outgoing officers. A number of the
members of the Association were dissatisfied with the failure of the Association
to negotiate a new contract in the fall of 1941.
In December 1941, following the election of new officers and representatives,
the Association Board 24 requested the management to enter into negotiations
concerning changes in the contract. Negotiations between the respondent's
management and the Union Board got under way soon after January 1, 1942.
They extended over a period of approximately 5 weeks. About the beginning
of February the Union circulated some literature among the respondent's em-
ployees. Shortly thereafter, about February 15, the respondent requested the
Association Board to meet with its representatives in an effort to come to a
final agreement concerning the changes that were proposed in the existing
contract. At this meeting the Union Board declined to sign the contract at the
request of Yale Schively, president of the respondent, and stated that it would
be necessary for the contract to be ratified by the membership before they would
sign it. On or about February 17, 1942, in the evening, the Association con-
ducted a meeting for the clay shift employees. Albert Wisniewski, the newly
elected president of the Association, presided. Wisniewski started to read the
contract section by section. He had not been reading long before his voice
was drowned out by the voices of members of the Association, many of whom
were former members of the Union, protesting against one section or another
of the contract. Wisniewski was unable to maintain order Thereupon Ken-
neth Horney, secretary' and treasurer of the Association, proceeded with the
reading of the contract. However, the uproar became so great that the meeting
was adjourned, without any vote being taken2o Richard Schmidt, an employee
who had been active-in .lie Union _and was a, member of the Associationin
February 1942, testified that one of the objections he had to the meeting was
'that three assistant foremen, Robert Shepherd, Calvin "Butch" Sargent and Sam
Blackburn, attended the meeting contrary to the promise of Association officials
that no supervisory employees would be permitted at the meeting. The. re-
spondent contends that these three men were not assistant foremen but merely
group leaders. For the reasons hereinafter set forth, the undersigned finds that
the respondent is not responsible tor the activities of these employees and fur-
ther finds that the presence at the' meeting of the Association of employees
Shepherd, Sargent, and Blackburn did not interfere with the rights of the other
employees present freely to express themselves with respect fo the contract. -
Following its failure to secure a'vote on the contract, the Association's Union
Board voted to conduct an election among the membership by secret ballot. After
receiving advice of counsel, the respondent agreed to allow the Association to
conduct an election in the plant on the question of whether or not the proposed
contract was agreeable to the membership. , About 6: 30 on the morning of Feb-
23 November 1, 1941, was the expiration date of the existing contract
24 Referred to in the bylaws as the "Association' s Labor Boaid" and in the , various
contracts as ,the "Union Labor Board."
25 On the afternoon of the same day or of the `following day a meeting was held of the
night shift- employees. There is no evidence as to whether or not a vote was taken at. this
meeting. Only about 25 employees attended this meeting.
1450 DECISIONS OF NATIONAL LABOR-- RELATIONS BOARD
ruaty 20, 1942, the members of the Association began to vote at voting polls
established near the time clocks at the F Street and the G Street entrances
respectively.' On that morning Carl Miller, assistant superintendent of the sheet
metal division, and four of the foremen of the major departments in the sheet
metal division, stood at the G Street entrance about 80 feet away from;the polling
place where the employees were voting 2fi Miller testified without contradiction,
and the undersigned finds,,that'rumors had reached him that a group of outsiders
were planning to interfere with 'the election. Miller informed Schively of these
rumors and it was agreed that Miller and the foremen would supplement the
night watchmen at the main gate-on the morning of February 20 in order to
prevent any disorder or damage to the respondent's property The respondent
denied that, by placing These supervisory employees at the entrances, it had any
intention of intimidating the employees in order to persuade them to vote for
the contract. There is no evidence that Miller or any of the foremen were able
to, see how the employees voted. There was considerable testimony, however,
that the employees ivere handed blank pieces of paper with the name of the Asso-
ciation,-stamped on the bottom ; that they voted "yes" or "no" on a table which
was located only a -few feet from where Association representatives stood; and
that it was impossible for an employee to conceal how he voted from these repre-
seritatives. There is no evidence, however, that either by the presence of Miller
or,the foremen at the entrance or by the presence of the Association representa-
tives where they might see how an employee voted, any employees were persuaded
to vote for the contract. Several employees testified they did not care whether
or not the representatives knew how they voted. The undersigned finds that the
presence of foremen at the entrance was not intended to and did not interfere
with' the election.
Jinmediately before the election, one of the supervisors told several employees
'under him to vote for the contract that had been submitted for approval In this
connection, Fred Copper, an employee in the blacksmith shop, testified that when
he reported to work on the night shift about 3: 30 p in. on February. 20, Carl
Moore, a supervisor, asked him if he had voted and when Copper replied that he
did not know whether he would be permitted to vote or not because he was a new
employee, Moore told him to go and vote in favor of the contract . Copper further
testified that he then went over to the place where the voting was being conducted
at the`F Street entrance where Association representatives signed him up in the
Association and he then voted in favor of the contract as instructed by Moore.
John Gilbert, another employee on the night shift in the blacksmith shop, also
testified that he was asked by Moore whether or not he had voted and when he
told Moore he had not voted, Moore told him to go and vote in favor of the con-
-tract.' Gilbert further testified that he could not recollect having joined the
Association before he voted Following the above testimony on direct examina-
tion, Gilbert became very confused on cross-examination and was not sure whether
the conversation with Moore' took place before or after he had voted Moore did
not testify. From his observation of the witness and in view of the plausible
nature of Copper's testimony, the undersigned finds that the conversation between
aMoore and Gilbert took place prior to the time that Gilbert voted. The under-
siged further finds that Moore instructed both Copper and Gilbert to vote in-favor
of the'contract. The respondent contends that Moore is not a supervisory em=
ployee for whose activities it is responsible Moore does not have the privileges
Since the , inception of contracts between the respondent and the U S. Government211
relative to war materials , the respondent has employed watcki m'en-to check in all employees
and make sure - that no 'one entered the plant who did not work . or have other legitimate
business therein - ,. I i
WWAYNE WORKS 1451
of a foreman ZT He has under, him approximately 8 to 15 employees in,the black-
smith shop ' He-exercises supervisory powers and is the sole supervisor in charge
of the blacksmith shop during all but one hour of the night shift Although
Moore has no title, his job appears permanent for the duration of,the war -For
these reasons the undersigned finds that Moore is a supervisory- employee for.
whose acts the respoudent'is responsible • - ' . ;
It is amply clear from the evidence that throughout the history of collective
bargaining between representatives of the. Association and the respondent the
parties dealt with each other at arms' length and the Association achieved certain
concessions and advantages for the employees between January 1938 and February
1942 The amendments agreed to by management and approved by the Associa,
tion members by secret'ballot on February 20, 1942, included time and one-half for
all overtime in'excess of 40 hours per week or 8 hours per day and for Saturday
afternoon, time and one-half to piece workers performing special emergency or
corrective assembly work other than work which the individual regularly per-
formed; an increase of 20 percent to assemblers or operators working piecework
who are given inexperienced employees, until such time as the earnings of inex-
perienced men have become sufficiently proficient as not to curtail the experienced
man's earning ; an adjustment of pay to take into account increases in the cost
of living by 2 percent steps and total wage increases of 9 percent since December
20. 1940
C. The respondent's tcsponsibility for, the activities of certain, employees whose
supervisory status is disputed
In addition,to the facts set forth above concerning the antiunion remarks and
solicitation on behalf of the Association by various supervisory employees, the
Board adduced evidence of solicitation for the Association on the part of other
employees whom it claims are supervisory. Likewise, the Board contends in
support of its allegation that the respondent initiated and sponsored the Associa-
tion, that Kohler, Stephenson, and Nibarger and a number of group leaders
acted on behalf of management in forming and administering the Association. It
is necessary, therefore, to analyze the duties of these employees whose supervisory
status the respondent disputes.
Group leaders. The group leaders in the respondent's plant instruct new
employees in their duties ' and relay instructions from the foreman to the other
men in the group. There are generally between 5 and to employees in a group
In the slack season there-are no employees performing the functions of or-bearing
the title of groupleaders -- Group-leaders are normally the employees who 'remain,
throughout the year as regular employees and are not laid off at the end of the
busy season. When not instructing other employees, group leaders work the
same as other production employees in their group. Group leaders are paid 5
cents an hour more than the other employees in their group in order to compensate
them for time lost on piece work while instructing new employees in'their group:
211n contrast to other supervisory employees, foremen are paid on a salary or "straight
time" basis ; have power to hire and discharge ; have the right'to vacations and sick lea3e',
and hold-permanent year round supervisory positions
28 Group leaders are to be found only in the body division
29 Due to' the seasonal nature of the respondent's business, it was, customary-especially,
before the respondent began its war production, prokram -in '1940, ' for `the 'respondent to`
hire a numberrof-employees,-including inexpernence`d'highschool students, in'the late spring
and early'summer and lay them off in'1'the late summer and e,, irly fall at'the end'of the
peak season.
-1452 DECISIONS OF NATIONAL" LABOW, RELATIONS BOARD
''.Among the group leaders,. Frank Slorp and Calvini,Sargent• were members, of
the Union, and Slorp was its first president Slorp was also among the most active
in'the original organization of the Association and others became active in that
organization during the course of its existence. Group leaders were eligible for
membership both in the Union and in the Association They were allowed to vote
in the consent elections in 1938 and 1940. Group leaders were not regarded by
the other menas part of management" , From the-foregoing, the undersigned finds
that the respondent is not responsible for the statenients,and conduct of group
leaders in connection-with the union activities of its employees
Harold Kohler,. As previously found, Kohler, the first president of the Associa-
tion, was an inspector in 1937 and is not claimed by the Board to have been a
supervisor at•that-time. • In Decemb:wr 1936,lie was-given the privilege of subscrib-
ing to stock of the respondent, which was to be held by the respondent until paid
for out of dividends.. By November 1942, at the time of the hearing. dividends
amounting to $200 had,been placed to the c' edit of Kohler on the stock. which was
valued at, $1500 Prior to Kohler's memb: rship in the Union and subsequent
membership in the Association. Kohler had been ciedited with-$150 in dividends.
Kohler never informed any of his fellow employees that he was purchasing stock
in,the company. The contention of counsel for the Board that Kohler was identi-
fied with management in the eyes of its employees because of the fact that he was
purchasing stock in the company is without merit, in view of the above facts.
There is no evidence that the emplo^,ees regarded Kohler as it supervisor at the
time the Association sprang into being. -
The Board contends that Kohler became a supervisor in the summer of 1938
and that his presidency in the Association, which continued until November 1939,
is evidence of the respondent's doinmation'of the administration of the'Associa-
,tion Kohler testified without contradiction that his duties remained the same
during the entire period of his presidency- and, in fact, until some time in the early
fall of 1942, about 2 month-, prior to the hearing. Kohler admits, however, that
he was placed on a straight time or salary basis in 1940. At this time Kohler
resigned his membership in the Association; in accordance with an unwritten rule
of the Association that salaried employees were' ineligible to membership" The
-Board' bases its contention that Kohler became a supervisor sometime in the
summer of 1933 primarily upon a notice which was dated August 6, 1938; which
was placed` on the respondent's bulletin board 'on or about that date and which
reads in part as follows :
REPORT OF INSPECTION OF CONDITION OF DEPARTMENTS OF 13ODY DIVISION AS MADE
ON AUGUST G, 193S
These, departments are ranked in the order of comparative neatness of
working space and_ comparative sensible handling of tools, equipment, and
parts going through such department. ' The grade indicates a comparison of
aORichard Schmidt, formerly extremely active in the Union, who joined the-Association
In, the summer of i941. testified-that he regarded, Ray Showalter, Robert Shepherd, Calvin
Sargent, and Sam Blackburn, as. assistant foremen. Although, Showalter occasionally, sub;
stituted for Foreman Ringley when the latter was, on vacation, his duties during other
periods were the same as those of the other group leaders hereinafter set forth . The
undersigned finds that Showalter, Shepherd, Sargent, and Blackburn were,actually group
leaders, rather than assistant foremen. 1;
ai Foremen were salaried employees and, none ever belonged to the Association
C - - WAYNE WORKS -1453
what each department should be able to improve to reach the perfect grade
of 100%.
i,
Improved
Percent
from
Ranking Department Foreman of
perfect
last
Inspection
No 1------------ East Yard _________- Kohler and Ringley______________ 80 No
. There follows a list of 13 other departments, together with the names of the
foreman and other information called for ' in ,the table: The respondent claimed,
and it was Kohler's undisputed testimony, that one of Kohler's duties as inspector"
was to maintain a part of the East Yard in a neat and satisfactory condition ;
that he worked under Foreman Ringley of the mounting department and that
while he occasionally had three or four men helping him clean up the yard, Kohler
himself worked along side of these men. The respondent further contended that
the reason Kohler was listed as a foreman in-the above notice was merely because
of the fact that he had this responsibility and not because he was-ever accorded
the. status of foreman. Schively, -president of the respondent, testified without
contradiction that Kohler had none of the privileges accorded foremen and that
he was not a foi i;man, and ' the .undersigned so finds. From the foregoing, the
undersigned is convinced and finds that at no time during the period from the
spring of 1937 until the summer of 1942 was Kohler a supervisory employee whose
acts are attributable to the respondent. -
Richard Stephenson, first secretary of the Association, was a receiving clerk
in the shipping department at the time the Association was formed Shortly
thereafter Stephenson was moved into the office of Superintendent Willson, who
became superintendent on November 1. 1937 The Board contends that Stephen-
son is a confidential employee' for- whose 'acts the respondent, is - responsible.
Stephenson's duties, following his transfer to Willson's othee, consisted of his
working part time in the office and part time in the stockroom. He gradually
took over the job of distributing orders to various departments in the plant
He also kept track of production schedules Stephenson was not a salaried
employee There is no evidence that Stephenson's duties were confidential or
that he was regarded as being close to mviagement'by his fellow employees.
Stephenson ceased' holding'any office in"the Association in November 1940. `The
undersigned is of the opinion and finds that Stephenson was merely an office
employee and not a representative of management
• Arval NibUrgcr. As hereinafter set forth, Nibarger was president of the
Association from June 1940 to November 1941. The Board contends' that at
some time during this period Nibarger became a supervisory employee in charge
of the night shift in the sheet. metal division. The ' respondent claims that
although Nibarger was put in• charge of this shift, he did iiot''have'the status of
a foreman and the respondent is not responsible for his activities in conducting
the meetings of the Association on several occasions after he was put in charge
of the night shift. At the time of'his transfer,in May 1941, Nibarger received
an increase of 10 cents an hour. He was the only supervisor present in the
plant during 7 of the 8 hours of the-night,shift. Nibarger did no physical work
in-his, new position and. spent his, entire time supervising other employees.
1454 DEIC41SITON'S OF NATIONAL LABOR REIIATTONTiS BOARD
Although it is true that he was not given the title of foreman nor the privileges
customarily accorded foremen, clearly Nibarger's duties from the, date of his
promotion. in May 1941 were those of a responsible supervisor, and the under-
signed finds him to be an employee for whose union activities since. that date
the respondent is chargeable sz
D. Concluding findings
1. Alleged domination of the Association
Inasmuch as the undersigned has found that group leaders and certain other
employees are not employees whose activities are attributable to the respondent,
it is unnecessary to consider their activities in determining the respondent's
alleged domination of the Association. There remains for consideration with
respect to the alleged domination, the anti-union remarks made by Foremen
Sanders and Dailey and the solicitation on behalf of the Association by these
supervisors and by Superintendent Willson; the assistance rendered the Associa-
tion through permitting it to keep the entire profits of the canteen fund without
paying rent for the space occupied by the machines;, the permission accorded
by the respondent to Arval Nibarger to absent himself from his supervisory
duties and to conduct meetings of the Association during periods when Nibarger
was supposed to be on duty ; the presence of Assistant Superintendent Miller and
foremen at the election with respect to amendments to the contract on February
20, 1942; the holding of said election in the plant and the conduction of said
election in part during working hours ; u and the instructions of Supervisor Carl
Moore to new employees to vote for the contract,
The Association was formed by employees, many of whom belonged to the
Union, who became dissatisfied with the Union during an economic strike and
who wished to return to work.
Except for the participation of employees claimed by the Board to be. super-
visory, for whose activities the undersigned has found the respondent not charge-
able, all of the alleged violations involving the Association occurred after its
formation. Thereafter certain anti-union and pro-Association statements were
made by persons for whose conduct the respondent is chargeable, and certain
employees were urged by at least three of them to join the Association. On the
whole, however, and considering the fact that these remarks were made over a
period of several years in length it can hardly be said that such conduct is suffi-
cient to constitute a violation of Section 8 (2) of the Act, although, as found
below, they do constitute a violation of Section 8 t1). Nor under the circum-
stances here disclosed may the facts concerning the installation and maintenance
of the canteen vending machines be regarded as improper assistance, the Asso-
ciation having been lawfully set up and administered. The same is true of the
holding of the election in the plant in February 1942, on the question of approval
of the proposed contract. In view of these facts, and of the further fact that
it was not until April 14, 1942, that the Union filed a charge alleging violation
of Section 8 (2) of the Act, after it had lost two consent elections conducted by
the Board's Regional Director, a finding that there was such a violation would
32 Nibarger himself, in substance , told the employees belonging to the Association that
he did not think it was proper for him to preside over Association meetings or engage in
other activities on behalf of the Association following his promotion . Nibarger did not
participate in` any meetings with management after this change in his duties.
Inasmuch , as-the employees were on piece work, it is found that the time spent by them
in voting was not paid for by the respondent.
WAYATE WORKS 1455
be unwarranted.94 , Moreover, the nature and -extent of the. bargaining between
the, Association, and thd'respondent over a period of nearly 5 years tends. to dispel
the validity of this allegation. The,undbrsigned will accordingly recommend that
the complaint be dismissed insofar as it alleges that the respondent has )violated
Section 8 (2) of the Act.
2. Interference, restraint, and coercion
Although it_has.been found that the.respondent did'.not dominate the.Associa-
tion, nevertheless the anti-union remarks,of Foremen Sanders and Dailey, the
urging and warning of employees to join. the Association, by Foremen Sanders,
Dailey; and Gamp, and by Superintendentz)Willson, the 'prohibiting of employee
Williams from activity on behalf of the Union by Foreman Sanders and Super=
intendent Willson .while permitting solicitation on. behalf of :the Association on
company time and property, Superintendent Willson's questioning of employee
McPherson concerning his organizational affiliation, and Supervisor Moore's,inter-
ference with the vote on the contract, hereinabove set forth, constitute violations
of 'Section 8 (1) of the Act. -
.
The undersigned finds that by the foregoing activities the respondent has inter-
fered; with, restrained, and -coerced its employees in the, exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNF AIRS LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connnection 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 certain unfair labor-prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the'Act.
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. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, affiliated with the C . I. 0, and Wayne Works Employees'
Association are labor organizations 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 the 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.
34Matter of Wickwire Brothers and Amalgamated Assn of Iron, Steel & Tin Workers of
North America, etc', 16 N L R. B 316;.Matter,of Hope Webbing Company and Textile
Workers Organizing Committee of the C I. O , Local No Li, 14 N. L. R. B 55; Cf. Matter
of Houde Engineering Corporation, et al, 42 N. L. R. B. 713.
0
1456 DECISIONS OF NATIONAL- LAB'0R , RELATIONS BOARD
• 4 The respondent,- has not dominated or interfered with the formation or
administration of or contributed support to Wayne: Works Employees' Associa-
tion. and has not thereby engaged in unfair labor practices within the meaning
of •Seetion.8 (2) of the Act
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends tout the respondent, Wayns Works, Richmond, Indiana,
and its-officers, agents,. successors, and assigns, shall:
1.• Cease and desist from :
(a) In anyrmanner,interfering with, restraining, or coercing its employees iii
the exercise of the right to self-organization,. to form, join, or assist labor
organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted- activities for the purpose of collective
bargaining or. other mutual aid and protection as-guaranteed in Section 7 of the
National Labor Relations Act • •
2. Take the following affirmative action which the undersigned -finds` will,
effectuate the policies of the Act : ,
(a) Post immediately in, conspicuous places throughout its plant and main-
tain 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 en-
gage in the conduct from which-it is ordered to cease and desist in paragraph 1
hereof; and (2) that the respondent's employees are free to remain or become
members of International Union, United Automobile, Aircraft & Agricultural
Implement Workers of Americ^f, affiliated with the C. I 0.;
(b) Notify the Regional Director for the Eleventh Region in writing within ten
(10) days from the date of the receipt of the Intermediate Report what steps the
respondent has taken to comply herewith
It is further recommended that, unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in•writing that it will,compiy with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid
It is further recommended that the complaint, insofar as it alleges that the
respondent, by dominating and interfering with the formation and administration
of and contributing financial and other support to Wayne Works, Employees'
Association, has engaged in unfair labor practices within the meaning of Section
8 (2) of the Act, be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board-Series 2-as amended effective October 28,
1942, any party may within fifteen (15) clays from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II of
said Rules and Regulations, file with the Board, Shoreham Building, Washington,
D C, arm original and four copies of a statement'in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof As fur-
ther provided in said Section 33, should any party desire permission to argue
orally before the,Board, request therefor must be, made in writing to' the Board
within ten; (10) days.from the date of 'the order transferring the case to _ the Board:
WEBS+ER POWELL,
Trial•Exximviner.
Dated December 16, 1942.