Bird Machine Company And United Steelworkers Of America (c. I. O.), 311 (1946)

In the Matter of BIRD MACHINE COMPANY and UNITED STEELWORKERS OF AMERICA (C. I. O.) Case No. 1-C-243.--Decided January 9, 1946 DECISION AND ORDER On May 23, 1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. He also recommended that the complaint be dismissed insofar as it alleged a violation of Section 8 (5) of the Act. Thereafter, the Union and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs, and the respondent filed a 'Brief in Support of Respondent's Contentions' which the Board has accepted as exceptions and supporting brief.

The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below:

1. The respondent contends that it is not responsible for the antiunion activities of its supervisory employees, more fully set forth in the Intermediate Report, because such activities violated instructions of neutrality issued to the supervisory employees by President Dennett at the beginning of the Union's organizing campaign. The respondent admits that such instructions were not posted or otherwise publicized to the employees as a body. Inasmuch as the respondent failed to communicate its alleged neutrality to its employees, we find that the. employees were justified in believing that the supervisory employees were 65 N. L. R: B., No. 61.

acting as the respondent's representatives, and that the respondent is responsible for their activities.1 2. We find, as did the Trial Examiner, that on April 28, 1944, when the Union requested recognition, the Union did not represent a majority of the respondent's employees in an appropriate unit.2 Thereafter, on June 3, 1944, when the Board held a conference between the respondent and the Union, the Union had deposited with the Board 129 authorization cards.3 At the hearing, the respondent checked the original cards against admittedly authentic signatures of employees and made the following objections to 33 of the 129 cards: namely, that 8 were unsigned, 4 bore printed signatures, and 21 bore questionable handwritten signatures. As to the 129 cards, the Trial Examiner found that 6 were signed by persons who terminated employment with the respondent before June 3, 1944, 6 bore signatures 'not proved genuine,' and 117 were valid designations. He further found that inasmuch as there were 233 employees in an appropriate unit on June 3, 1944, the Union on that date represented a bare majority of the respondent's employees in such unit.4 A comparison of the disputed signatures with the admittedly authentic signatures reveals that the Trial Examiner was justified in rejecting as 'not proved genuine' at least 6, if not more, of the cards submitted to the Board by the Union.

We reject, in addition thereto, the 8 unsigned cards, which were among those submitted, inasmuch as the record does not establish that the employees named in the unsigned cards intended by such cards to authorize the Union to represent them.5 Accordingly, we find that, on June 3, 1944, the Union represented at most 109 employees, and that, on July 14, 1944, the date of the hearing in the representation proceeding referred to in the margin, and thereafter, so far as appears, the Union represented at most 111 employees of the respondent.' ConseSSee, for example, H. G. Heinz & Co. v. N. L. R. B., 110 F. (2d) 843, 847 (C. C. A. 6), affirmed 311 U. S. 514. Employee LoDico testified that, in the presence of four or five shop employees and several high ranking supervisors, President Dennett assured LoDico that his activity in the Union was 'perfectly all right' and that Dennett 'couldn't stop [him] or interfere with [him] in any way.' LoDico further testified that Assistant Superintendent Lindsay, on another occasion, told LoDico that Lindsay had no right to interfere with LoDico's union activities in any way. Contrary to the respondent's argument, we find that such limited declarations of neutrality did not effectively notify the employees as a body that the supervisors' activity in discouraging union membership did not reflect the respondent's policy.

2 To establish such majority, the Union relied in substantial part on oral promises by employees to vote for the Union in an election. Such a promise does not constitute a designation of a representative within the meaning of Section 9 (a) of the Act.

3 The Trial Examiner's statement in the Intermediate Report, preceding his tabulation of the cards, that the Union had submitted 124 cards is erroneous. His tabulation agrees with the figure above.

4 The unit referred to was found to be appropriate by the Board in a prior representation proceeding. Matter of Bird Machine Company, 5 Cf. Matter of Kiddie Kover Manufacturing Company, 6 Between June 3 and July 14, the Union had obtained 2 additional authorization cards.

On July 30, 1944, the closest pay-roll date, the respondent had 240 employees in the unit which the Board found to be appropriate in the representation proceeding.

quently, we find that the Union, at no time pertinent to this case, represented a majority of the respondent's employees in an appropriate unit. On the basis of this finding, we shall dismiss the complaint insofar as it alleges a violation of Section 8 (5) of the Act. In view of such determination, we deem it unnecessary to pass upon the validity of the ground relied upon by the Trial Examiner in recommending dismissal of such allegation of the complaint.

THE REMEDY Having found that the respondent independently violated Section 8 (1) and 8 (3) of the Act, we must order the respondent, pursuant to the mandate of Section 10 (c), to cease and desist therefrom. We also predicate our cease and desist order upon the following findings: The respondent's whole course of conduct discloses a purpose to defeat self-organization among its employees. As we have found, since the inception of the Union in the respondent's plant, the respondent interfered with, restrained, and coerced its employees by various acts and statements. Moreover, the discriminatory discharge of Favor 'goes to the very heart of the Act.' 7 Because of the respondent's unlawful conduct and its underlying purpose, we are convinced that the unfair labor practices found are persuasively related to the other unfair labor practices hereinafter proscribed and that danger of their commission in the future is to be anticipated from the respondent's conduct in the past.8 The preventive purpose of the Act will be thwarted unless our order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, we shall order the respondent to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act.

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, Bird Machine Company,

Walpole, Massachusetts, and its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(

1. Discouraging membership in United Steelworkers of America, affiliated with the Congress of Industrial Organizations, or any 'N. L. R. B. v. Entwistle Manufacturing Company, 120 F. (2d) 352, 356 (C. C. A. 4);

   see also, N. L. R. B. v. Automotive Maintenance Machinery Company, 116 F. (2d) 350 (C.

   C. A. 7), where the Circuit Court of Appeals for the Seventh Circuit observed: 'No more effective form of intimidation nor one more violative of the N. L. R. Act can be conceived than discharge of an employee because he joined a union.. ' s See N. L. R. B. v. Express Publishing Company, 312 U. S. 426.

   other labor organization, by discharging or refusing to reinstate any employee, or by discriminating in any other manner in regard to their hire, tenure, or any term or condition of their employment;

   (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist United Steelworkers of America (C. I. 0.), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.

   2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

   (

1. Offer Gilbert I. Favor immediate and full reinstatement to his former or a substantially equivalent position, without prejudice to his seniority or other rights and privileges;

   (b) Make whole Gilbert I. Favor for any loss of pay that he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount that he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during such period;

   (c) Post at its plant at Walpole, Massachusetts, copies of the notice attached hereto, marked 'Exhibit A.' Copies of said notice, to be furnished by the Regional Director of the First Region, after being signed by the respondent's representative, shall be posted by the respondent immediately upon the receipt...