A. O. Smith Corp.

National Labor Relations Board - Board Decisions

Dec 5, 1958

122 N.L.R.B. 321 (N.L.R.B. 1958)

A. O. SMITH CORPORATION 321
appropriate for purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All production and maintenance employees ,including truckdrivers,
but excluding all office clerical employees, guards, professional em-
ployees, and supervisors as defined in the Act.,
[Text of Direction of Election omitted from publication.]
The panties stipulated that the dispatcher was the only supervisor outside of the
Employer's officer,., within the meaning of the Act.
A. 0. Smith Corporation and United Electrical, Radio and
Machine Workers of America , Local 1004 and International
Brotherhood of Electrical Workers, Local 1710, AFL-CIO,
Party to the Contract . Case No. 21-CA-2851. December 5, 1958
DECISION AND ORDER
On May 8, 1958 , Trial Examiner Martin S. Bennett issued his
Intermediate Report in the above -en titled proceeding , finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices in violation of Section 8(a) (1),(2 ) and (3) of the
Act and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner further recom-
mended that an allegation of an independent violation of Section
8(a) (1) of the Act by the Respondent be dismissed . Thereafter the
Respondent and the General Counsel filed exceptions , and the Re-
spondent filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act , the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers , Jenkins, and
Fanning].
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 In-
termediate Report, the exceptions and the brief , and the entire record
in the case , and hereby adopts the findings, conclusions , and recom-
mendations 1 of the Trial Examiner.
I To the extent that the recommended remedy may be construed not to require re-
imbursement to the original four employees at Anaheim for sums paid the IBEW sub-
sequent to November 7, 1957, pursuant to the contract, we do not adopt it, and those
employees will be reimbursed for such sums.
122 NLRB No. 49.
505395-59-vol. 122 22
'322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent A. O. Smith Cor-
poration, Anaheim, California, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Giving effect to, performing, or in any way enforcing its
agreement of November 7, 1957, with the IBEW, or any extension,
renewal, modification, or supplement thereof, or any other contract
with said union applicable to the Anaheim plant which may now be
in force.
(b) Recognizing the IBEW, or any successor thereto, as the col-
lective-bargaining representative of its Anaheim employees unless
and until the said labor organization shall have demonstrated its
exclusive majority representative status pursuant to a Board-con-
.ducted election among the Respondent's employees.
(c) Discriminating against employees in regard to terms and con-
,ditions of employment, except to the extent permitted under Section
8(a) (3) of the Act.
(d) Interfering with, restraining, or coercing its employees in the
right to engage in or refrain from engaging in any or all of the
activities guaranteed them by Section 7 of the Act, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
-executed in conformity with Section 8(a) (3) 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 the IBEW or any
successor labor organization as the representative of its employees at
Anaheim, California, unless and until such labor organization shall
have demonstrated its exclusive majority representative status pur-
suant to a Board-conducted election among the Respondent's em-
ployees.
(b) Reimburse all Anaheim employees for initiation fees and dues
paid to the MEW subsequent to November 7, 1957, pursuant to the
contract or any superseding agreement between Respondent and the
IBEW.
(c) Post at its plant at Anaheim, California, copies of the notice
attached hereto marked "Appendix A." 2 Copies of said notice, to be
furnished by the Regional Director for the Twenty-first Region,
shall, after being signed by Respondent's authorized representative,
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
A. 0. SMITH CORPORATION 323
be posted by it immediately upon receipt thereof and maintained
for sixty (60) consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent, to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director 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 the complaint against the Re-
spondent with respect to the allegation concerning an independent
violation of Section 8(a) (1) of the Act, based upon an alleged state-
ment contained in paragraph 8 of the complaint concerning the rea-
son for removing the Aeronautical Division from Los Angeles to
Anaheim, be, and it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT give effect to, perform, or in any way enforce
our agreement of November 7, 1957, with International Brother-
hood of Electrical Workers, Local 1710, AFL-CIO, or any ex-
tension, renewal, modification, or supplement thereto, or any
other contract with that organization which may now be in force
covering our Anaheim plant.
WE WILL withdraw and withhold all recognition from Inter-
national Brotherhood of Electrical Workers, Local 1710, AFL-
CIO, or any successor thereto, as the collective-bargaining repre-
sentative of the employees of our Anaheim plant unless and until
said organization shall have demonstrated its exclusive majority
representative status pursuant to a Board conducted election
among our employees.
WE WILL NOT encourage membership in said labor organiza-
tion, or in any other labor organization, by discriminating in any
manner against our employees in regard to terms and conditions
of employment, except to the extent permitted under Section
8(a) (3) of the Act.
WVE WILL reimburse our Anaheim employees for all initiation
fees and dues paid to International Brotherhood of Electrical
Workers, Local 1710, AFL-CIO, subsequent to November 7,
1957.
WE WILL NOT interfere with, restrain, or coerce our employees
in the right to engage in or refrain from engaging in any or
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all of the activities guaranteed them by Section 7 of the Na-
tional Labor Relations Act, except to the extent that such right
may be affected by all agreement requiring membership in a
labor organization as a condition of employment, executed iil
conformity with Section 8(a) (3) of the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization, except to
the extent that this right may be affected by an agreement executed
in conformity with Section 8(a) (3) of the Act.
A. 0. S-)rrrl-I CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 clays from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding is brought pursuant to a complaint issued by the General Coun-
sel of the National Labor Relations Board against A. O. Smith Corporation, herein
called Respondent. The complaint, dated January 29, 1958, alleged that Respond-
ent had engaged in unfair labor practices within the meaning of Section 8(a)(1),
(2) and (3) of the National Labor Relations Act. Copies of the complaint, the
charges upon which it was based, and notice of hearing thereon were duly served
upon Respondent.'
The complaint alleged that (1) Respondent was signatory to a collective-bar-
gaining agreement dated December 12, 1955, with United Electrical, Radio. and
Machine Workers of America, Local 1004, herein called the UE, covering certain
employees at its Los Angeles plant for a period of time extending to December 11,
1958; (2) on or about November 7, 1957, Respondent entered into a union-security
agreement with the IBEW, covering certain employees at its Anaheim, California,
plant; (3) this contract was entered into at a time when the IBEW was not the
representative of such employees and the UE was; (4) certain representatives of
Respondent stated that Respondent transferred various operations from the Los
Angeles to the Anaheim plant because Respondent could not operate under the
UE contract; and (5) Respondent has required employees covered by the Novem-
ber 7, 1957, contract to pay fees and dues. Respondent's duly filed answer ad-
mitted.the existence.of the contract with the UE; alleged that the Anaheim plant
was a separate appropriate bargaining unit; denied that the UE represented a.
majority of the Anaheim employees; and denied the commission of any unfair,
labor practices.
Pursuant to notice, a hearing was held at Los Angeles, California, before the
duly designated Trial Examiner on March 5 and 6, 1958. The parties were repre-
sented by counsel and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce relevant evidence. At the close of the
hearing, oral argument was presented by the General Counsel and briefs have
been received from the UE and Respondent.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent A. O. Smith Corporation is a New York corporation which main-
tains plants in several States of the United States including several plants in the
'Copies of the pleadings and related documents were also served upon International
Brotherhood of Electrical Workers, Local 1710, AFL-CIO, herein called the IBEW' and
designated above as Party to the Contract.
A. 0. SMITH CORPORATION 325
Los Angeles, California, area. It is engaged in the manufacture of meters, service
.station pumps , submersible pumps, gun mounts, and other products relating to
military use. During the 12-month period preceding the issuance of the instant
complaint, Respondent shipped products valued in excess of $50,000 from its
California plants to points outside the State of California. I find that the opera-
tions of Respondent affect commerce and that it would effectuate the purposes of
the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATIONS INVOLVED
United Electrical , Radio and Machine Workers of America, Local 1004, and
International Brotherhood of Electrical Workers, Local 1710 , AFL-CIO, are labor
-organizations admitting to membership the employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The General Counsel contends that Respondent gave unlawful support to the
IBEW by entering into a union-security contract with that labor organization cov-
ering the employees of its Anaheim, California, plant. He has proceeded on two
parallel theories (1) recognition was premature because the newly established
expanding plant did not have a representative number of personnel, and (2)
Respondent granted recognition to the 1BEW at a time when the UE also sought
recognition, thus creating a question concerning representation, a situation which
should have been resolved through the processes of the Board and not by Re-
spondent. Initial treatment is given to the General Counsel's first contention.
A consideration of Respondent's organizational structure in the Los Angeles
area reveals the following. Respondent operates a plant in Los Angeles which is
known as the Pacific Coast Works and employs approximately 500. Production
is now concentrated primarily in nonmilitary work; as an adjunct to the Pacific
Coast Works, Respondent also operates a foundry at Maywood, California, in the
Los Angeles area.
The instant case stems from the transfer in 1957 of certain military operations
from the Los Angeles plant to a new plant in Anaheim. Prior to the period mate-
rial herein, the fall of 1957, certain military operations were performed at the
Los Angeles plant; these amounted to approximately 4 percent of production.
There was no separate organic military department as such, but the work was
performed for the aeronautical department headed by Arnold Prosser, then assist-
ant general manager of the Pacific Coast Works, by regular divisions of the plant;
intracompany charges were made for the use of personnel on this military pro-
duction which included components for aircraft.
In June of 1957 it was decided to set up a separate, independent division in
a new plant to handle solely military operations. On August 1 Prosser was desig-
nated as manager of the Aeronautical-Western Division of Respondent and func-
tioned in this role at the Los Angeles plant. On October 1 a new plant was leased
at Anaheim, California, 20 miles distant from the Los Angeles plant. The intent
was to establish the Anaheim plant as an independent operating facility of Respond-
ent consistent with company policy.2 Prosser's immediate subordinate on the new
venture was Robert L. Green, designated as manager of engineering and sales for
the Aeronautical-Western Division. Green was previously a sales engineer in
charge of engineering for the aeronautical department at the Los Angeles plant
and together with Prosser went on the payroll of the new division on August 1.
From October 1 through November 1 there was discussion concerning the
operations to be transferred from Los Angeles to Anaheim. Selected for transfer
were manufacturing operations on a pump, bomb ejector, gun mount, and a cylin-
der. There was uncertainty only as to the transfer of the pump, but on the morn-
ing of November 1 it was finally decided to move the pump together with the
other items. All of these items had been previously produced in the aeronautical
department at Los Angeles.
It is to be noted that the Anaheim plant had no personnel manager as such
until the second week in November when White was appointed to the position.
Prior to that date personnel duties devolved upon Green for the reason, as he
put it, that there was no one assigned to the job and he assumed the duties. Also
2In 1955 Respondent had given thought to moving the entire Los Angeles facility to
another location elsewhere in California but this was abandoned. It is clear, and I find,
that the move to Anaheim was of a different nature and Involved solely the military
production.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
playing a role in personnel work was Ray Haeger , personnel manager at the Los.
Angeles plant . Although Haeger ostensibly had no official connection as such
with the Anaheim plant, he was very much in the picture in discussions of the
transfer of personnel from Los Angeles to Anaheim , and in discussion of attempts
by the UE to obtain recognition at Anaheim.
At no time did Haeger claim that he lacked authority to discuss the Anaheim.
operation and I find that he held himself out as an agent of Respondent for that
purpose. Nor did anyone in Respondent 's organization connected with the Ana-
heim plant or in Milwaukee headquarters ever claim that Haeger was acting.
beyond his authority during this time when the Anaheim plant was being set up.
B. Recognition of the IBEW
The UE has been the collective -bargaining representative , at least since Decem-
ber 12, 1955 , of the production and maintenance employees of the A. O. Smith
Corporation , Pacific Coast Works with the customary exclusions; also excluded
from the unit were welding division employees , these consisting of a group repre-
sented by another labor organization . This agreement as modified has been ex-
tended through December 11, 1958, and it contains a union-security clause requir-
ing new employees to join the UE I month after entrance into the employ of the
company.
On or about September 25, 1957, Prosser held a meeting with representatives
of the IBEW . He testified that he wished to operate without a labor organization
in the new plant but had the problem of obtaining electrical workers to install
equipment and was aware from experience that these men were likely to be mem-
bers of the IBEW. Anticipating problems in securing such personnel he met with
the IBEW "for the purpose of discussing labor rates ." While he claimed that he
did not discuss the recruitment of personnel he further testified that "we wanted
to determine what type of a union they were."
According to Green , manager of engineering and sales, he and Prosser had
planned prior to November 1, 1957, to recruit 18 employees for initial production.
This planning was predicated upon the transfer of the pump work, one of the
four types of work ultimately transferred . The decision to transfer the pump work
was made on the morning of November 1 and, as a result , the estimate of 18
personnel was reaffirmed as of that date. According to Prosser they planned an
increase in personnel to a figure of 25 by March 1, 1958.
Green further testified , however, that prior to November 5, on an unspecified
date but apparently shortly before , it became necessary to push back production
on certain cylinders for Convair . As a result, his estimate of manpower was
reduced on November 5 from 18 to 15. This figure , as in the case of the pre-
vious figures , does not include salaried personnel but only unsalaried production
and maintenance personnel.
As set forth , personnel duties at Anaheim had been assumed by Green in the
absence of an official personnel man. Green uncontrovertedly testified that he
hired two employees on October 27 or 28, and a third on October 31 . A fourth
started on November 1 or 4. It appears that all four men were new employees
who had not worked at Los Angeles.
It is also clear that as of the afternoon of November 1, as Green testified, it
had been decided definitively which products would be transferred to Anaheim.
Respondent 's officials also knew at that time which employees at Los Angeles
would be affected by the move, viz, those Los Angeles employees who had been
working on the military work. In this respect it is to be noted that the move
did not involve any changes in the products manufactured . It involved rather
a splitting off of the small volume of military production from the much larger
civilian production and establishing the former in a separate division . The move
affected seven employees most of whom had lengthy tenure and who had ex-
pressed concern to their foreman, Shuffield, over possible loss of work.
Indeed , Green spoke with three of the seven employees , Wogberg, Stone, and
Poissant , on the afternoon of November 1, concerning their situation and employ-
ment prospects at Anaheim . All three as well as a fourth , Davis, were exemplary
employees whom Green was willing or desirous to hire at Anaheim . In fact.
Green then decided to hire these four employees at Anaheim , but did not tell
them so, pending their decision to quit at Los Angeles and be rehired at Anaheim,
consistent with Respondent's personnel practice . This is discussed in more detail
hereinafter.
A. O. SMITH CORPORATION 327
Returning to the picture as it existed on November 1, it is clear that Respond-
ent had three or four employees on the Anaheim payroll.3 It appears that an
IBEW representative appeared on the scene on or about November 1 and obtained
signatures from the employees then working there. The signature of the fourth
employee was obtained prior to November 5. None of these four employees were
then performing production work. While they were scheduled to be production
workers, Prosser testified that at the time "they were assisting in preparing a plant
for production." Stated otherwise, and as Green conceded, production did not
start until November 8, although Green elsewhere testified that two men started
on production on November 7. In fact, equipment was in the process of being
moved from Los Angeles to Anaheim during the week of November 4.
Late in the afternoon of November 1, Prosser was personally handed a letter
bearing the same date wherein an international representative of the IBEW advised
Respondent that his labor organization represented a majority of the production.
and maintenance employees at Anaheim and requested a meeting to discuss nego-
tiation of a contract. Prosser testified that he immediately telephoned Respond-
ent's labor relations department in Milwaukee, Wisconsin, notified them of the
letter, and requested instructions. Apparently he was instructed to inspect the
IBEW's proof of majority because on November 4 he contacted the IBEW and
arranged a meeting at the plant for November 5. The meeting was duly held
on November 5 and the IBEW presented its four designation cards. Prosser veri-
fied the signatures and on November 5 sent the following letter to the IBEW:
Membership cards of Local Union #1710, International Brotherhood of
Electrical Workers signed by all of the production and maintenance employees
of the A. O. Smith Corporation, Aeronautical, Western Division, Anaheim,
California were presented to and examined by Messrs. T. White, O. Peters.
and the undersigned at a meeting held November 5, 1957 with Messrs. W. E.
Creveling and H. M. Fesperman, representatives of Local 1710. This exami-
nation showed that all of the production and maintenance employees of the
Aeronautical, Western Division were members of and represented by your
union.
Therefore, in reply to your letter of November 1, 1957 the A. O. Smith
Corporation, Aeronautical, Western Division, Anaheim, California does recog-
nize Local Union #1710, International Brotherhood of Electrical Workers
as the Collective Bargaining agent for all production and maintenance em-
ployees of the A. O. Smith Corporation, Aeronautical Western Division and-
we are therefore willing to commence negotiations of a collective bargaining
agreement covering these employees.
We are available to begin such negotiations at a mutually convenient time.
On November 7, two days later, Respondent and the IBEW signed a contract
running through November 15, 1960, covering the Anaheim plant; it contained
a clause requiring all employees to join the IBEW 30 days after the date of the
contract or after hiring in the case of new employees. There were 17 production
and maintenance employees at Anaheim by the end of November; 18 by December
31; 21 by January 21; and 25 by March 1. There are now from 21 to 24 em-
ployees on the payroll.
As described below, employees Stone, Wogberg, and Davis of the Los Angeles
plant started work at Anaheim on November 9 and employee Poissant on Novem-
ber 11. All four testified that several days after they started, they were sum-
moned to the office, individually, to confer with Prosser and Green and that the
IBEW contract was discussed. According to Poissant and Davis, they were told
that they would be required to join the IBEW. Stone recalled a reference to-
union security and both Stone and Wogberg "understood" they had to join. Green
admitted that on these occasions he went over the IBEW contract with each man.
He further testified that the men were not told they had to join but admitted that
he did point out the union-security clause of the contract to them. I find that the
men were put on notice that the contract gave them 30 days to join the IBEW
on penalty of discharge.
C. Analysis and conclusions
It is clear from the foregoing that at the time Respondent recognized the IBEW,
November 5, 1957, there were four employees on the Anaheim payroll and that
the IBEW represented all four. It is equally clear that production had not started
a According to Prosser, the fourth was hired on November 4. Green testified that the
fourth was hired on November 1.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the plant and that all four men were not on production until November 8, the
day after the contract was executed. Furthermore, as set forth above, at the time
recognition was extended to the IBEW, Respondent had projected an immediate
and substantial expansion in personnel and that expansion was realized in due
course. At the very least Respondent planned to commence operations with 15
employees. Indeed, Green conceded that four people were not enough to operate
the plant based upon a minimum production schedule.
In addition to the foregoing there is the fact that at the time recognition was
granted, Respondent's officials at Anaheim knew that four UE members from the
Los Angeles plant possessing 11 to 19 years of seniority and experience would
probably be starting at Anaheim. While they did not actually start at Anaheim
until a later date, Stone, Davis, and Wogberg, on November 9, and Poissant on
November 11, a brief consideration of the history preceding their move to Ana-
heim will demonstrate the rather extensive knowledge of their impending arrival
on the part of Anaheim officials.
On or about Friday, November 1, seven employees in the Los Angeles plant
who were to be affected by the transfer of operations to Anaheim were given
a 5-working-day layoff notice effective Friday, November 8. There had been a
number of meetings between the UE plant committee and officials at the Los
Angeles plant concerning the Anaheim operation. The UE claimed on these
occasions that their Los Angeles contract would be or should be applicable to
Anaheim.4
What is significant here is that Prosser admitted he knew prior to November 4
that the UE wished to negotiate concerning the use at Anaheim of Los Angeles
personnel. In fact, he had admittedly discussed this subject during October.
And, as stated, Green admitted that he knew on the afternoon of November 1
which men would be affected by the move. He also admitted that he had made
up his mind to hire Stone, Davis, Poissant, and Wogberg, all of whom he had
interviewed but had not advised as to his intent. This involved Respondent's
personnel policy of not transferring rank-and-file employees but rather requiring
a quit at Los Angeles and a new hiring at Anaheim. The fact still is that at
least by November 4, Green told these four men, all of whom had displayedi
interest, that he would consider them for employment; all four were UE members
in good standing whose dues were checked off through the month of November.
Indeed, as Davis testified and I find, Green told him on November 4 that if he
wished to he could work at Anaheim.5
Bearing in mind that the jobs of these four were to be eliminated at Los
Angeles, it hardly seems doubtful that the men would not have transferred. And
while their lengthy seniority would have entitled them to bump employees of less
seniority, this would have involved a reduction in pay at Los Angeles. The four
men transferred on the indicated dates and are performing basically the same type
of work at Anaheim as they did at Los Angeles.
While the evidence by Respondent attempts to establish a dichotomy between
the operations of Prosser and Green, the fact is that these two men were the two
top management representatives at Anaheim, were getting the operation started,
were admittedly in daily contact with each other, and, on November 4, Prosser
discussed with Green, his acting personnel manager, the demand of the IBEW
for recognition. There can be little doubt that Green and Prosser discussed the
transfer of the four employees to Anaheim.6
I find it difficult to believe that Personnel Manager Haeger, at Los Angeles,
who was handling the details of the "transfer" of the four men and who was
purporting to speak for the Anaheim plant with the UE representatives, did not
communicate with Green and Prosser, neither of them a personnel man, concern-
ing the four admittedly valuable employees. Haeger testified that during Novem-
ber Respondent's labor relations department in Milwaukee had instructed him as
to the position he should take with the UE on the latter's claim that its contract
covered Anaheim; that is, he in effect was authorized to speak for Anaheim.
4 The General Counsel does not contend herein that the Anaheim plant was an accretion
to the Los Angeles unit. This, in effect, is also Respondent's position.
6 Green testified that he told two of the four on November 5 and the remainder on
November 7 that they had jobs at Anaheim. The contract was signed late on November 7.
6I deem it immaterial to the instant issue whether this be a transfer in the normal
sense of the word or whether it was a quit and rehire as Respondent's records demon-
strate. Totally aside from the fact that Respondent recognized at Anaheim the lengthy
seniority of these' employees for the purposes of vacation and other benefits, the crucial
fact is that the Anaheim officials knew that the four men were on their way.
A. O. SMITH CORPORATION 329
Haeger also , it must be noted , never told the UE to contact Prosser or others
at Anaheim and admitted notifying Anaheim personnel , presumably Prosser or
Green, on November 5, that two of the four men were coming over. He also
testified that he did not know of the recognition of the IBEW until after Novem-
ber 9.
However , Haeger did admit that he handled personnel work for Anaheim prior
to the time the equipment was moved from Los Angeles to Anaheim , this being
the week of November 4, but that he stopped doing so about the time of the
move. On the other hand , he admitted that he did get involved at Anaheim
when the officials at the latter plant wanted advice and that he learned on Novem-
ber 4 from Prosser or Green that they had hired several personnel . Finally,
Haeger admitted that he had never had any discussions with the management group
in Los Angeles , with Prosser, or even with the labor relations department in
Milwaukee as to any line of authority or demarcation between himself and Prosser
in the handling of labor relations at Anaheim . I find, in view of the foregoing,
that Haeger was still participating , in part at least, in Anaheim personnel work
during November.
In sum , during the week starting Monday, November 4 , Respondent was in the
process of moving equipment from the Los Angeles plant to the Anaheim plant.
Production started on a small basis on November 8 and may have been started
by two men as early as November 7. Respondent 's complement of personnel
totaled four men on November 4 and all were engaged in maintenance work
preliminary to production . All four signed IBEW cards and on November 5
and 7, Respondent extended recognition and signed a contract respectively. Not
only were these four employees concededly too small a number to carry on mini-
mum production , but recognition was extended to the IBEW at a time when
Respondent knew that four UE members were coming over from Los Angeles,
as they did on November 9 and 11. In addition , as set forth , Respondent re-
quired a minimum of 15 production employees by the end of that month and
thereafter a still larger number.
The General Counsel has placed reliance herein on the Board decision in The
Englander Company, Inc., 114 NLRB 1034 , 1043, enfd . as modified 237 F. 2d
599 (C.A. 3). In that case , the Board adopted language reflecting its long-stand-
ing policy , that "an employer illegally assists and supports a union by granting it
exclusive recognition before he has a representative complement in an appropriate
unit in his employ . . . such illegal assistance and support is `aggravated where,
as here, the agreement that grants recognition also requires the covered employees
as a condition of their employment to join and pay dues to a labor organization
they have not freely chosen.' "
I find that case fully applicable to the present one. In both cases, recognition
was extended before the plant was in production and when only a small percent-
age of the planned complement of employees was at work, and at that only in
maintenance operations preliminary to the commencement of production. Here
as there the employees were covered by a union -security agreement which was
promptly brought to their attention by management.
In view of the foregoing considerations , I find that Respondent lent unlawful
assistance and support to the IBEW within the meaning of Section 8(a)(2) of the
Act by granting it recognition before Respondent had a representative work force
and at a time when the complement of personnel was admittedly in the process
of a planned rapid expansion . Furthermore , as the contract covering these em-
ployees required them as a condition of their employment to join and pay dues
to a labor organization not of their choosing , on penalty of discharge , I find that
Respondent has thereby discriminated with respect to terms and conditions of
employment , thus encouraging membership in a labor organization within the
meaning of Section 8(a)(3) of the Act. I further find that by the foregoing con-
duct , Respondent has interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section
8(a)(1) thereof . See The Englander Company , Inc., 118 NLRB 707; National
Electronic Manufacturing Corporation , 113 NLRB 620; Hibbard Dowel Co., 113
NLRB 28; Safeway Stores , Ill NLRB 968; and John B. Shriver Co., 103 NLRB
23, 38 . See also Illinois Malleable Iron Company , et al., 120 NLRB 451.
D. The Midwest Piping argument
The General Counsel has further urged , as a parallel argument , that recognition
was unlawfully granted to the IBEW by Respondent at a time when there was
a real question concerning representation , thereby independently violating Section
8(a)(1) and ( 2) of the Act within the meaning of Midwest Piping & Supply Co.,
-330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., 63 NLRB 1060, as well as Section 8(a)(3) in view of the union-security
agreement that was signed. Some of the facts pertinent to this latter issue have
been previously set forth.
Initially, as noted, the UE has been the collective-bargaining representative at
least since September 12, 1955, of the approximately 500 production and mainte-
nance employees of the Pacific Coast Works at Los Angeles with the customary
exclusions as well as an excluded unit of approximately 24 represented by another
labor organization. The current contract containing the customary 30-day union-
security clause does not expire until September 11, 1958.
On August 1, 1957, Arnold Prosser, assistant general manager of the Pacific
Coast Works, was designated as manager of the Aeronautical-Western Division
and on October 1 a new plant was leased at Anaheim. The intent, duly realized,
was to operate this as an independent operating facility. Certain military opera-
tions carried on at Los Angeles were transferred to Anaheim which was to per-
form solely military work. This work had previously been performed by the
regular divisions at Los Angeles, but intraemployer charges were made to the
aeronautical department under Prosser for work performed. As found, no per-
sonnel department was established for Anaheim whose complement of personnel
is small, ranging up to 21 or 24 at the present time. Until the second week of
November Prosser's immediate subordinate, Green, manager of engineering and
sales, handled personnel duties; as heretofore found, Ray Haeger, personnel man-
ager at Los Angeles also participated in personnel discussions involving the Ana-
heim plant.
It is clear and I find that the impending transfer of certain operations to
Anaheim became a cause of concern to the UE which was disturbed over the
effect on its membership at Los Angeles. The news of the October 1 lease became
known and on October 3 a meeting was held between Patrick Chaplin, president
of Local 1004, accompanied by a union negotiating committee, and two officers
of Respondent, Plant Superintendent Robert Houser and Personnel Manager Ray
Haeger of the Los Angeles plant. Chaplin, Haeger, and one of the negotiating
committee, Chief Stewart Alderete, testified herein as did International Represen-
tative Kirkland of the UE.
The union committee was formally notified of the lease on this occasion by
Haeger. Chaplin testified that the union committee claimed that if the work or
-union members were transferred to Anaheim, the UE would demand recognition
because its contract was allegedly applicable to that plant. Haeger supplied few
-details as to this meeting, but elsewhere testified that the UE did not claim that
their contract applied to Anaheim until a subsequent meeting on November 4.
However, he admitted telling the UE at a November 1 meeting that Anaheim was
-a separate unit and that the UE would have no representation there. Obviously,
he would not have spoken thus had the UE not made or renewed a claim for
-recognition or representation at Anaheim. Accordingly, I credit Chaplin's version
of the conversation.?
On November 1, Respondent met again with the union committee and, as
Haeger testified, notified them that a decision had been made as to what products
-would be moved to Anaheim during the week starting November 4. The fact is,
however, that the decision had been made long before as to three of the items
to be moved, but the final decision as to the fourth, a pump, had been made only
that morning. According to Chaplin, Haeger stated that the UE would have no
jurisdiction at Anaheim because the contract did not apply. The UE claimed that
this was unfair to UE members, presumably those who were desirous of trans-
ferring to avoid reductions in force or cuts in pay. As noted, Haeger told the
union committee that this was a separate unit at Anaheim and that the UE would
have no representation there.
On November 4 another meeting was held. There are a number of conflicts
at this point, but it suffices here to Point out, as Haeger conceded, that the UE did
contend that the contract was applicable to Anaheim. It will be borne in mind
that layoff notices had been issued on November 1 to Los Angeles personnel and
that Haeger knew at this point which employees would be affected and would be
in the running for Anaheim jobs in order to avoid a cut in pay. As noted, this
group included Stone, Davis, Wogberg, and Poissant. Haeger did not on this occa-
sion claim that he was unauthorized to speak for Anaheim, but, in fact, speaking
7In 1965, anticipating a transfer of the entire operation from Los Angeles to a new
plant, the IJE had attempted while negotiating the 1955 contract, to delete a reference to
its being applicable to Los Angeles. This deletion was successfully resisted by Respondent.
A. O. SMITH CORPORATION 331
for Respondent as I find, rejected the UE's claim for recognition based upon the
Los Angeles contract.
The UE did not claim that it had organized any Anaheim employees as of that
date and I find that it did not. The record warrants the finding that its claim
for recognition was based primarily upon the argument that its contract applied
.to the Anaheim operation.
At this point, it is in order to recall that on November 1 the IBEW requested
recognition at Anaheim in the form of a letter handed personally to Prosser.
This claim was based upon cards signed by the three or four employees then
working there; there were three employees on the payroll by November 1 and the
fourth was hired on November 1 or 4. Prosser telephoned Milwaukee for instruc-
tions, received them, and on November 4 arranged a meeting with the IBEW for
November 5. Four cards were duly presented and inspected on that date by
Respondent and a letter recognizing the IBEW was promptly sent to that organi-
zation that same day. On November 7, Respondent and the IBEW signed a con-
tract containing the customary 30-day union-security clause. On November 8,
production started at Anaheim, although two employees may have been put on
production on November 7.
On November 6, another meeting was held between the UE and Respondent
.and, according to Haeger, the UE persisted in the claim that its contract was
applicable to Anaheim. Haeger, it is to be noted, knew on the previous day that
two of the four Los Angeles transferees to Anaheim, Poissant, and Davis, were
-definitely checking out at the end of the week and moving to the Anaheim plant;
he learned on November 7 that Stone and Wogberg would transfer. No mention
was made of the recognition of the IBEW at Anaheim, because the UE obviously
did not know about it, and, according to Haeger, he did not learn of this until
sometime in the week starting November 11, and then only through a casual
conversation with Prosser.
Haeger conceded, however, that he did transmit the UE's requests for recogni-
tion to Milwaukee as promptly as they were made. Accordingly, it is clear that
the labor relations office in Milwaukee was apprised of negotiations both at Los
Angeles and at Anaheim. While Haeger and Prosser claimed no knowledge of
what the other was doing with the respective labor organizations, a contention
I do not accept on this record, the Milwaukee office is hardly in a position to
-so claim. It is deemed unnecessary therefore to decide a conflict as to whether
Haeger told the UE committee on November 6 that the UE should get certified.
Another meeting was held on November 7 or 8 with the same results, although
Haeger conceded that he told the union committee that they should organize the
Anaheim plant if they felt they had jurisdiction .8
The UE had filed a grievance on November 4 at Los Angeles demanding that
Los Angeles employees be transferred to Anaheim or considered therefor in accord-
ance with the provisions of its contract at Los Angeles. This grievance went
through the various steps of the grievance procedure. On November 14, Superin-
tendent Houser of Los Angeles wrote to President Chaplin that the UE contract
did not cover Anaheim and that the grievance was denied; this communication
followed a third step grievance meeting on November 11. After a fourth step
grievance meeting on November 21, Haeger on November 26 wrote Chaplin to
the same effect. Haeger reaffirmed the prior decision by Houser, viz, that the
contract was not applicable to Anaheim.
I deem it significant that Haeger did not make any reference in this communi-
cation to another bargaining agent being in the picture at Anaheim, although he
allegedly had learned thereof during the week of November 11. Obviously, the
context was such that candor would have required such a disclosure. The picture
was one of a labor organization, the UE, claiming that its contract was applicable
to Anaheim and Respondent contending that it was not. But Haeger concealed the
fact that another labor organization had been duly recognized at Anaheim, a fact
which presented a far greater obstacle to the UE claim than a mere question of
contract interpretation. Haeger's explanation for not mentioning this was that it
never occurred to him. As a result, I do not credit Haeger's testimony as to the
date he first learned of recognition of the IBEW and the contract. I believe he
learned of it much earlier that month.
s There is evidence that the four transferees from Los Angeles, all UE members in
good standing with dues checked off through the month of November , either refused or
failed to sign UE cards which were proffered them during this period or after they started
working at Anaheim. I do not consider this under the circumstances to be dispositive of
the basic issue.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also of significance herein is the fact that contemporaneously with the Anaheim
situation, the UE was attempting to procure recognition as the representative of
certain of Respondent's employees at the Maywood plant. Although the UE had
a great majority of signatures to cards from those in the unit and it appears to
have been a one-union situation, Haeger took the position that they should get
certified by the Board, rejecting a card check or a private election. I deem it
unnecessary to resolve the conflict as to whether Haeger informed the UE that
this was company policy. The fact is that an election was demanded as the price
of recognition in an established plant in significant contrast to the Anaheim situa-
tion where there was hasty recognition by card check at a time when a small
faction of the planned complement of personnel had not even started production.
In sum, the UE had repeatedly claimed and was claiming that its contract with
the Respondent covering the Los Angeles plant was applicable to the small plant
being set up at Anaheim to which certain of Respondent's operations were being
transferred. The General Counsel does not contend that Anaheim was an accre-
tion to the Los Angeles unit and the record would seem to indicate that Respond-
ent was indeed putting up a separate unit to concentrate on military production.
Nevertheless, this production was transferred from the Los Angeles plant and
Respondent well knew that certain of the Los Angeles employees, members of the
UE, would be transferred to the plant. I find that this created a real question
concerning representation at Anaheim. Novak Logging Co., 119 NLRB 1573.
I find in view of the foregoing that Respondent did not maintain the neutrality
required in the situation. On the contrary Respondent resolved the conflicting
representation claims, thus preventing a representative complement of personnel
from expressing their free choice of a bargaining representative. It thereby ac-
corded unwarranted prestige and support to the IBEW. I find, on this posture of
the case, that Respondent by entering into a union-security agreement with the
IBEW has engaged in unfair labor practices within the meaning of Section 8(a)
(1), (2) and (3) of the Act. Illinois Malleable Iron Co., supra; Novak Logging
Co., supra; Pittsburgh Valve Company, etc., 114 NLRB 193; Hibbard Dowel Co.,
supra; Knickerbocker Plastic Co., Inc., 104 NLRB 514, enfd. 218 F. 2d 917
(C.A. 9); and Sunbeam Corporation, 99 NLRB 546.
E. Other allegations
The complaint further alleges, as an independent violation of Section 8(a)(1)
of the Act, that various representatives of Respondent, on or about November 1,
1957, "did state that one of the reasons for moving the Aeronautical Division from
Los Angeles to Anaheim, California, was because the Company could not operate
under the UE contract."
The record discloses that at the meeting of November 4, according to President
Chaplin of Local 1004 and International Representative Kirkland, Personnel Man-
ager Haeger was asked why the Los Angeles contract did not apply to Anaheim.
Haeger replied that this was because the Los Angeles contract was too rigid.
According to Chief Steward Alderete, Haeger stated that the Aeronautical work
was being moved from Los Angeles to Anaheim because the contract was too
rigid and lacked flexibility.
Haeger denied that he at any time stated the work was being transferred because
Respondent could not operate under the Los Angeles contract. He admitted stating
on November 4 that (1) the Anaheim plant could not operate under the Los
Angeles contract because it was contrary to Respondent's policy to have more than
one plant in a unit; (2) it would be difficult to handle plantwide seniority in two
plants so far apart; and (3) the Los Angeles wage structure could not apply to
Anaheim because employees at Anaheim would be required to perform varying
tasks in the course of a workday.
I have some doubts that this particular allegation of the complaint states an
unfair labor practice. On the assumption that it does, only the testimony of
Alderete attributes a statement of the nature alleged to Haeger and I find Haeger's
version of the incident to be more complete. But, in any event, in the posture
most favorable to the General Counsel, a finding based upon this statement would
add nothing to the remedy hereinafter recommended. Accordingly, I shall recom-
mend that this allegation of the complaint be dismissed.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several. States
A. O. SMITH CORPORATION 333
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. It has been found that Respondent
violated Section 8(a)(1), (2), and (3) of the Act by executing and maintaining
a union-security agreement with the IBEW. I shall therefore recommend that
Respondent withdraw recognition from the IBEW as the representative of its em-
ployees at the Anaheim, California, plant and cease giving effect to its agreement
of November 7, 1957, with that labor organization, or any modification, extension,
supplement, renewal or substitute therefor, unless and until the IBEW shall have
been duly certified by the Board as the representative of such employees.
Section 9 of the complaint alleges that Respondent has required employees and
applicants for employment to pay initiation fees and dues pursuant to the above-
described contract. This conduct is not included in the unfair labor practice alle-
gations, so I construe it as bearing on the remedy the General Counsel is seeking.
This is manifestly a reference to the Board remedy in such situations as this of
requiring reimbursement of dues and initiation fees. See e.g., Hibbard Dowel Co.,
supra.
It is true that in some decisions the Board has not ordered the reimbursement
of dues on the theory that the employer did not coerce dues payments by means
of an involuntary checkoff. See e.g., Milco Undergarment Co., Inc., 106 NLRB
767, and Standard Transformer Company, 97 NLRB 669. See also N.L.R.B. v.
Shedd-Brown Mfg. Co., 213 F. 2d 163 (C.A. 7), and N.L.R.B. v. Braswell Motor
Freight Lines, 213 F. 2d 208 (C.A. 5). But it is significant that in the last-cited
decision, the court expressly distinguished that case from an earlier decision in the
same circuit where it enforced a Board order requiring reimbursement of union
dues. N.L.R.B. v. Parker Bros. & Co., 209 F. 2d 278 (C.A. 5). The court
stressed the fact that in the Parker case, payment of the dues had been coerced
under a closed-shop contract. Obviously, for the purpose of this discussion a
union-security contract is on the same plane. See also N.L.R.B. v. Local 404,
International Brotherhood of Teamsters, etc. (Brown Equipment), 205 F. 2d 99
(C.A. 1); Local 983, United Brotherhood of Carpenters and Joiners of America
(0. W. Burke Company), 115 NLRB 1123; United Association of Journeymen &
Apprentices, etc., Local 231 (Brown-Olds), 115 NLRB 594; and Hibbard Dowel
Co., supra.
Although the instant contract has no checkoff clause, it does establish the re-
quirement for employees of continued membership in the IBEW in order to retain
their jobs. United Association of Journeymen & Apprentices, etc., Local 231
(Brown-Olds), supra. The coercive element in these situations is obviously not the
check-off of dues but, more basically, the union-shop clause which requires union
membership, and, of course, the payment of initiation fees and dues under penalty
of discharge. Broderick Wood Products Company, 118 NLRB 38. This element
of coercion is, of course, endemic to any union-security contract and the parties
signatory thereto run the risk that the contract is an unlawful one, for a union-
security clause is a narrow exception to the broad ban against discrimination which
is a policy of the Act and it must, therefore, be narrowly construed. Radio Offi-
cers' Union, etc. v. N.L.R.B., 347 U.S. 17.
Clearly, under this union-security agreement, the payment of initiation fees and
dues has been coerced as the price of employment. Accordingly, to effectuate the
policies of the Act, I shall recommend that Respondent refund to the respective
employees of the Anaheim plant sums equal to the initiation fees and dues paid
by those employees to the IBEW. It is not recommended, however, that this
order be made applicable to sums paid by the four employees who joined the
IBEW, presumably of their own volition and not pursuant to the contract, prior
to November 7, 1957, the date the contract- was executed.
Although these funds are presumably in the hands of the IBEW, which in reality
is in the nature of a joint tort feasor, there is no charge or complaint before me
against that organization, and I am constrained therefore to direct the remedy only
against Respondent.
Upon the basis of the-foregoing findings of fact, and upon the. entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent , A. O. Smith Corporation, is engaged in commerce within,the
meaning of Section 2( 6) and (7) of the Act.
F334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,:: ,2. United Electrical, Radioandi'Machine Workers of America, Local 1004, and
International Brotherhood of Electrical Workers, Local 1710, AFL-CIO, are labor
organizations within the meaning of Section 2(5) of the Act.
3. By- contributing support to the IBEW,, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
4-By discriminating with respect to terms and conditions of employment, Re-
spondent has engaged in unfair labor practices within the meaning of Section
8(a) (3) of the Act:
5. By the foregoing conduct, Respondent has interfered with , restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
.Act, thereby engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
[Recommendations omitted from publication.]
National By-Products Company i and International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, , Local : No. 452, Petitioner. Case No. 80-RC-1451.
December 5,195-8
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before F. T. Frisbey, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Fanning].
Upon the entire record in this case, the Board finds :
.1. Capitol Rendering Company, named as the Employer in the
petition and herein called Capitol, as well as Greeley Rendering Com-
pany and Sterling Rendering Company, herein respectively called
Greeley and Sterling; are all local unincorporated branches of Na-
tional By-Products Company, an Iowa corporation, herein called
National. The record establishes that Dunn, the general manager of
Capitol, is directly responsible to National for the operations of
Capitol, Greeley, , and Sterling, including the operations involving
the employees designated in the petition, and that the payroll. and
bookkeeping necessary to the -personnel administration of these
branches is handled through National's central office in Des Moines,
Iowa. On these facts, we find that National is the Employer of the
employees designated in the petition.
Capitol contends that as it is not the Employer and as the petition
named, and was served upon, Capitol and not Employer, the 'petition
is defective. We do not agree. General Manager Dunn, a representa-
3 The case caption is amended to reflect the correct name of the Employer as established
by evidence adduced at the hearing and set forth hereinafter.
122 NLRB No. 48.