Axelson Manufacturing Co.

National Labor Relations Board - Board Decisions

Feb 24, 1950

88 N.L.R.B. 761 (N.L.R.B. 1950)

In the Matter of AXELSON MANUFACTURING COMPANY and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 94 FOR ITS
LOCAL LODGE No. 1571
Case No. 21-CA-246.-Decided February 04,1950
DECISION
AND
ORDER
On August 16, 1949, Trial Examiner Charles W. Schneider 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. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case,2 and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
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 the Respondent, Axelson Manufactur-
ing Company, Los Angeles, California, and its officers, agents, suc-
cessors, and assigns, shall :
1 Over the Respondent 's objection , Trial Examiner Schneider received evidence as to
evgnts which antedated the 6-month period of limitation contained in Section 10 (b). For
the reasons which appear in the Intermediate Report we agree with the Trial Examiner
that this Section does not preclude the use of such evidence for background purposes.
2 The, request of the Respondent for oral argument is denied because the record and the
briefs submitted by the parties , in our opinion , adequately present the issues and positions
of the parties.
88 NLRB No. 155.
761
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Joint
`Conference Plan, or with the formation or administration of any other
labor organization, or from contributing support to the Joint Con-
ference Plan or to any other labor organization;
(b) Recognizing the employee representatives under the Joint Con-
ference Plan, or any successors thereto, as the representatives of any
of its employees for the purpose of dealing with the Respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or other conditions of employment.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition of the employee representatives
under the Joint Conference Plan as the representatives of any of its
employees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, and completely disestablish the
said Joint Conference Plan as such representative;
(b) Post at its plant at Los Angeles, California, copies of the notice
attached hereto and marked Appendix A.3 Copies of the said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply therewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decison and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
8In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice , before the words , "A DECISION AND ORDER" the words
"A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
AXELSON MANUFACTURING COMPANY 763
WE withdraw and will withhold all recognition from the em-
ployee representatives under the Joint Conference Plan as the
collective bargaining representatives of any of our employees.
WE WILL disestablish the Joint Conference Plan.
WE WILL NOT dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support thereto..
AXELsoN MANUFACTURING COMPANY,
Employer.
By -----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Mr. Ben Grodsky , for the General Counsel.
Latham and Watkins, by Mr. R. W. Land and Mr. J. S. Welch, of Los Angeles,
Calif., for the Respondent.
Mr. E. M. Skagen and Mr. E. R. White, of Los Angeles, Calif., for the Machinists.
Mr. Samiuel L. Johnson and Mr. Edward B. Farrell, of Los Angeles, Calif., for
the Employee Representatives of the Joint Conference Plan.
STATEMENT OF THE CASE
Upon a charge filed on November 9, 1948, by District Lodge No. 94 for its
Local Lodge No. 1571 of the International Association of Machinists, herein
called the Machinists, the General Counsel of the National Labor Relations
Board, by the Regional Director for the Twenty-first Region (Los Angeles,
California) issued his complaint dated February 9, 1949, against Axelson Manu-
facturing Company, Los Angeles, California, herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices within the meaning of Section 8 (a) (1), Section 8 (a) (2), and Section
2 (6) and (7) of the National Labor Relations Act (61 Stat. 136), herein called
the Act. Copies of the complaint and notice of hearing thereon were duly
served upon the Respondent and the Machinists.
With respect to the unfair labor practices the complaint alleged, in substance,
that about July 1933 the Respondent sponsored and formed a labor organization,
known as the Joint Conference Plan, among its employees and that down to
the date of issuance of the complaint the Respondent has dominated, supported,
and interfered with the operation and administration of the Joint Conference
Plan.
On March 7, 1949, the Respondent filed a motion, based on Section 10 (b) of
the Act, to strike the allegations in the complaint referring to events occurring
more than 6 months prior to the filing and service of the charge. At the same
time the Respondent filed a motion for more definite statement, and a memo-
randum of authorities in support of both motions. The General Counsel filed
a memorandum in opposition. Upon referral to Trial Examiner David London,
duly designated, Trial Examiner London, by order dated April 21, 1949, denied
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's motion to strike in its entirety. With respect to the motion for
more definite statement, Trial Examiner London granted it in part and denied
it in part. The General Counsel thereafter submitted a bill of particulars in
response to Trial Examiner London's Order.
On May 27, 1949, the Respondent filed its Answer in which, while admitting
certain jurisdictional and other facts asserted in the complaint, it denied the
commission of unfair labor practices. In its Answer the Respondent reiterated
its position, previously asserted in the motion to strike, that Section 10 (b) of the
Act precludes reference to acts occurring more than 6 months prior to service of
the charge.
Pursuant to notice, a hearing was held on May 31 and June 1, 1949, at Los
Angeles, California, before Charles W. Schneider, the undersigned Trial Exam-
iner, duly designated. The General Counsel, the Respondent, and the Machinists
were represented by counsel, participated in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses , and to introduce
evidence bearing on the issues.
During the course of the hearing on June 1, 1949, the General Counsel, for the
first time, served upon representatives of the Joint Conference Plan, who were
present in the hearing room, formal written notice of the hearing, accompanied by
a copy of the charge and complaint. At the close of the session on that day, the
hearing was adjourned, without objection, to June 14, 1949, to afford the Joint
Conference Plan opportunity to determine whether it wished to appear and
participate in the proceedings. No further hearing was held, however. On June
15, 1949, representatives of the Joint Conference Plan filed a written stipulation
stating that, while they did not waive any rights acquired by reason of belated
service, they were satisfied that the record was full and complete ; and that they
did not desire to introduce any evidence or to cross-examine witnesses previously
examined. The stipulation further authorized the Trial Examiner to declare the
hearing closed. On June 14, 1949, the General Counsel, the Respondent, and the
Machinists filed a written stipulation similarly authorizing the Trial Examiner
to order the hearing closed. Thereafter the undersigned ordered the hearing
closed and granted the parties to July 29, 1949, to file briefs and proposed findings.
The Respondent, citing N. L. R. B. v. Sterling Electric Motors, Inc., 109 F. 2d 194
(C. A. 9), urges that the Board's process is fatally defective for the reason that
the Joint Conference Plan was not served with notice until the hearing . Since,
however , unlike the Sterling Electric Motors case, the Plan was actually served
with notice of the proceedings, and was afforded full and adequate opportunity
for preparation , appearance , and participation , this contention of the Respondent
is found not to be sustained.
On July 15, 1949, pursuant to a stipulation of the parties and motion by the
Respondent , the record was ordered corrected in certain respects. Briefs have
been received from the Respondent and the General Counsel and have been
considered . A reply brief has also been received from the Respondent. All briefs
have been considered.
Upon the entire record in the case and from observation of the witnesses, the
undersigned makes the following : '
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Axelson Manufacturing Company is a California corporation engaged in the
general manufacturing business , including machine shop and foundry work in its
AXELSON MANUFACTURING COMPANY 765
Los Angeles, California, plant, the only plant involved in this proceeding. In
the course and conduct of its business the Respondent purchases steel bars and
tubing, pig iron, scrap metal and steel, metal cutting equipment, and sundry
supplies including cutting tools, lubricating oils, coke, and sand.
During the calendar year ending December 31, 1947, the Respondent purchased
materials, equipment, and supplies in the value of approximately $3,000,000, of.
which about 50 percent was shipped to it from points located outside the State of
California. Of the supplies purchased locally, approximately 30 percent origi-
nated outside the State. During the same period, the value of the Respondent's
sales and services was approximately $S,000,000, of which about 35 percent was
shipped to points outside the State of California. In addition, approximately 50
percent by value of the products was sold locally to concerns which sell a substan-
tial portion of their products in other States.
The Respondent stipulated that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, its District Lodge No. 94, and Local
Lodge No. 1571, are labor organizations admitting to membership employees of the
Respondent.
The Joint Conference Plan is a labor organization participated in by employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The applicability of Section 10 (b)
As has been indicated previously, the Respondent asserts that Section 10 (b)
of the Act prohibits the introduction of evidence as to events occurring more than
6 months prior to service of the charge. The charge was filed on November 9,
1948, and a copy served on the Respondent on the following day, November 10.
Section 10 (b) provides as follows:
... no complaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge with the Board
and the service of a copy thereof upon the person against whom such
charge is made unless the person aggrieved thereby was prevented from filing
such charge by reason of service in the armed forces, in which event the.
six-month period shall be computed from the day of his discharge.
The General Counsel concedes that Section 10 (b) prevents the finding of viola-
tion of the Act in any conduct of the Respondent which occurred prior to May 10,
1948. He contends, however, that the section does not prohibit the introduction
of evidence of conduct antedating the 6 months' period.
The Board has not, up to this time, specifically passed upon this question in any
case arising since the Labor-Management Relations Act of 1947. Evidence as to
events antedating the Wagner Act was used in several cases decided by the Board
after the 1947 amendments. Bibb Manufacturing Company, 82 NLRB 338 and
The Carpenter Steel Company, 76 NLRB 670.
In both these cases, however, the hearings were held and concluded before the
1947 amendments became effective. Neither decision adverts to the 10 (b)
question, though it was no doubt considered. Either of two conclusions is infer-
rable from those cases: (1) The Board may have considered 10 (b) as simply
a statute of limitations and not a prohibition against the consideration of
evidence; or (2) it may have considered the section as a rule of evidence, but
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nevertheless inapplicable on the familiar principle that evidential questions are
governed on appeal by the rule in effect at the time of trial. See Dunlap v. U. S.,
43 F. 2d 999; appeal dismissed 45 F. 2d 1021, (C. A. 8) ; Hubbell v. U. S., 4 Ct.
Claims 37 , 47; Smith v. Freedman, 16 N. E. 335 ( Mass. ) ; In Re Patterson's Estate,
155 Cal. 626 . The Bibb and Carpenter Steel cases cannot therefore be regarded
as necessarily dispositive of the present issue.
As I interpret the statute however, Section 10 (b) enacts a statute of limitations
and not a rule of evidence . It forbids the issuance of complaints and, conse-
quently, findings of violation of the statute in conduct not within the 6 months'
period. But it does not, as I construe it, forbid the introduction of relevant evi-
dence bearing on the issue as to whether a violation has occurred during the 6
months' period . Events obscure , ambiguous , or even meaningless when viewed
in isolation may, like the component parts of an equation , become clear , definitive,
and informative when considered in relation to other action . Conduct, like lan-
guage, takes its meaning from the circumstances in which it occurs. Congress.
can scarcely have intended that the Board , in the performance of its duty to
decide the validity of conduct within the 6 months' period , should ignore reliable,
probative, and substantial evidence as to the meaning and the nature of the
conduct. Had such been the intent , it seems reasonable to assume that it would
have been stated . Consequently it is my opinion that while Section 10 ( b) effec-
tively prohibits findings of violations of the statute unless based on conduct occur-
ring within the 6 months ' period, it does not prohibit the receipt of evidence
relevant to the inquiry as to whether violations occurred during that period.
To be sure , the recency of asserted facts is an element to be weighed in assigning
them probative force. It is not, however , as I construe the statute , determinative
of their admissibility or relevance.
It is found that Section 10 (b) does not preclude the consideration of evidence
relevant to the determination as to whether the Act was violated during the 6
months' period antedating the filing and service of the charge , even though such
evidence may relate to action occurring prior to the 6 months' period.
In any event it is found that within the 6 months ' period, namely , since May 10,
1948, the Respondent engaged in conduct, detailed hereinafter , constituting sub-
stantial evidence of the unfair labor practices alleged in the complaint.
B. Domination of the Joint Conference Plan
There is little dispute over the basic facts, which are in large part stipulated.
These were supplemented by oral testimony , all of which I credit, and by some
documentary evidence . The controversy is mainly as to the legal conclusions
to be drawn from the facts.
1. The formation of the Joint Conference Plan
Prior to 1933 the Respondent had no dealings with any collective bargaining
representative for the employees at its Los Angeles plant. In the summer of 1933,
soon after the enactment of the National Industrial Recovery Act, Section 7 (a)
of which assured to employees the right of self-organization and to collective
bargaining through representatives of their own choosing , there was installed
in the plant a plan for representation of nonsupervisory employees entitled
"The Joint Conference Plan."
So far as the record discloses The Joint Conference Plan was first proposed at
several meetings of the employees extending over a period of several days and
held on company property during noon hour in the summer of 1933. These meet-
AXELSON MANUFACTURING COMPANY 767
ings were presided over by G. A. Axelson and E. E. Kerfoot, who were then respec-
tively the Respondent's president and its treasuer. The Plan was presented
to the employees by Axelson and explained to them, following which the non-
supervisory employees were asked to indicate by a show of hands whether they
wished to have the Plan. Most of the employees voted in favor of it. They
selected a committee which conducted an election among the employees to choose
employee representatives and the Plan then began to function. With some
changes which are indicated hereinafter, the Plan has continued to function down
to the present day.
2. Structure
In stricture the Plan was similar to other joint conference organizations
sponsored by many employers following the enactment of the National Industrial
Recovery Act. Its purpose, as stated in the original constitution or bylaws, was
to comply with Section 7 of that act. A copy of these bylaws, entitled "Plan for
Employer-Employee Relations," is attached hereto as Appendix A. Various
amendments adopted from time to time thereafter are attached hereto as Appen-
dix B. These are the basic organizational documents of the Plan,
a. The original Plana
The Plan provided for a Joint Conference consisting of an equal number of
management and employee representatives "empowered to discuss and agree upon
such matters affecting working conditions as maximum working hours, minimum
wage, and health and safety factors." Management representatives were to be
appointed by management ; employee representatives elected by the employees.
Employee representatives, though not management representatives, were re-
quired by the Plan to meet certain eligibility requirements. Employee repre-
sentatives had to be nonsupervisory employees of the Respondent, 21 or more
years of age, American citizens, and have had 1 year's continuous service with
the Respondent immediately prior to the (late of their election.
Voting qualifications were also prescribed for the nomination and election of
employee representatives. Voters had to be nonsupervisory employees of the
Respondent at least 18 years of age, and with at least 30 days' service prior
to the nomination date.
The Plan provided for annual nomination and election of employee representa-
tives under the supervision of an election committee selected by the Joint Con-
ference. Candidates for the office of employee representatives could be nominated
and appear on the election ballot upon petition signed by 10 or more qualified
voters. Elections were to be by secret ballot, the 3 candidates receiving the
highest number of votes to be the representatives.
It was provided that an employee representative should be deemed to have
vacated his office when he (1) resigned from the Conference; (2) severed his
employment; (3) was appointed to an administrative position; (4) was recalled
by two-thirds vote of the employees; and (5) was absent without excuse from
three consecutive meetings of the Joint Conference or any of its committees.
There was no similar provision with respect to management representatives.
The Joint Conference was to elect a chairman, vice chairman, and secretary
from among its number and appoint necessary committees, for the term of 1
year. llfeetings were to be held monthly at times to be fixed by the Conference ;
committee meetings at the call of committee chairmen, "subject to approval of
the Joint Conference when held during working hours."
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provision was made for payment of their regular wages to members of the
Joint Conference for attendance at conference meetings and to committee mem-
bers for committee meetings approved by the Joint Conference, when held
during working hours.
The Plan further provided detailed procedure for the adjustment of "any
matter which . . . an employee . . . has been unable to adjust satisfactorily
with the foreman . . .. Such a matter could be taken up with any
employee representative who was to investigate and endeavor to reach
agreement with the foreman. Failing adjustment, either the foreman or the
representative could take the dispute to the industrial relations manager or
other specified management representative ; and if not satisfactorily disposed
of in reasonable time at such stage, the dispute might be submitted by the
representative to the factory manager. Failing adjustment there, the matter
was referred to the Joint Conference and if not thus disposed of might be
submitted to arbitration. The provision for arbitration is presumably voluntary
and not compulsory. No dispute, however, has ever reached that stage. The
testimony of the employee representatives is that the parties have always
resolved their differences in the Joint Conference, though not in every case to
their mutual satisfaction.
The Plan forbade discrimination against employee representatives for action
in performance of their duties as representatives. Amendments or modifications
of the Plan could be made by two-thirds votes of the Joint Conference. Con-
ference or committee meetings were to be recorded by a secretary, with all min-
utes subject to approval of the chairman of the Conference and the factory
manager. Provision was made for the posting of minutes in the plant.
b. Amendments to the Plan
Various amendments to the Plan were made from time to time thereafter.
These are given in Appendix B attached hereto. Thus, after invalidation of the
National Industrial Recovery Act the references in Sections 2 and 3 of the Plan
to that Act and to its Codes of Fair Competition were deleted.
In 1942 Section 4, relating to the number of representatives, was amended.
The original Plan provided for three employee and three employer representa-
tives, with provision for variance in the number depending upon the number
of employees, plant divisions, or major employment classifications. The 1942
amendment increased the number of representatives on each side to four. It
further provided that the four employee representatives were to be apportioned
among the various plant divisions, two to represent the machine shop day shift,
stockroom, shipping room, assembly and miscellaneous employees, one to rep-
resent the night shift, and the fourth to represent the foundry. This amendment
was pursuant to petition of the employees on the night shift, who had not there-
tofore elected their own separate representative. A special election was held
among the night shift employees for this purpose.
In November 1948, upon petition from the Office, Engineering and Sales Depart-
ment who had previously been represented by the shop representatives, a special
election was held by order of the Joint Conference, at which those departments
chose a separate representative. There are thus presently five employee and
five employer representatives on the Joint Conference.
Several other miscellaneous amendments to the Plan were made in 1943 and
1946, such as a more specific definition in Sections 6 and 7 of excluded super-
visory categories; and an amendment to Section 11, apparently changing from
AXELSON MANUFACTURING COMPANY 769
the mandatory to the permissive a provision for the election of a secretary by
the Joint Conference.
3. The Plan in operation
The Plan, as variously amended, and the Joint Conference have continued to
function down to the present day. Its chairman, elected annually by the Con-
ference, has always been the president of the Respondent who, until his retire-
ment in 1946, was G. A. Axelson, and since that time J. C. Axelson. Vice chair-
man for some years is Victor Mancuso, the Respondent 's works manager and
vice president in charge of manufacturing. Employee representatives have been
vice chairmen, however, at various times in the past : in 1933, 1935, and 1943.
Regular elections by secret ballot for employee representatives are held once
a year, usually in August or September. Such elections are held in the plant,
partly during working hours, partly outside them. The Joint Conference selects
an election committee from among the nonsupervisory employees for such
purpose.' The members of this committee conduct the election. They are paid
for all time spent on the election work and are authorized to secure additional
assistance if needed. The elections committee posts nominating petitions on
plant bulletin boards provided by the Respondent, it arranges for the prepara-
tion of the ballots which are prepared on stationery supplied by the Respondent,
on time paid for by the Respondent, using the Respondent's equipment for the
preparation of the ballots. The Respondent make its payroll list available to
the elections committee, which prepares a list of eligible voters therefrom.
Between the time of the nominations and the elections, campaigning is carried
on in the plant by nominees and candidates by the distribution of literature or
the writing of campaign arguments on the floors, and presumably by personal
solicitation as well ; though whether on company time is not disclosed. The
elections committee conducts the casting of the ballots. After the ballots are
cast they are counted by the committee on the Respondent's property and on time
paid for by the Respondent. The uncontested testimony of Personnel Manager
Sills is that the Respondent has not attempted to influence the voters in their
selection of representatives.
Regular meetings of the Joint Conference are held monthly, and at times
special meetings at the request either of employees or employer representatives,
but on no fixed day or date, at the call of Personnel Manager Sills. These
meetings are held in the office of J. C. Axelson, who presides, or in his absence
the vice chairman presides. The meetings usually commence at 2 p. in., and
last about 2 hours. The employee representatives are paid for time spent at the
meetings . Minutes are taken by Leonard Smyser, a clerical employee of the
I A stipulation entered into by the parties detailing the operation of the Plan , recites at
one point that "the employee representatives of the Plan select an election committee from
among the non-supervisory employees ." The Plan itself provides, however ( Section 8) for
selection of the election committee by the Joint Conference . The testimony of Carl Sills,
the Respondent 's personnel manager, is that the Conference selects the committee. The
minutes of the August 30 and October 27, 1948 , meetings of the Joint Conference show that
the election committees for the regular election for 1948 and the special election for a
clerical representative were chosen by the Conference . In view of this evidence it is
concluded that the stipulation is in error . The August 30 minutes , for example , state in
part with respect to arrangements for the regular election : "After considerable discussion
the [Joint Conference] agreed that the Election Committee shall be composed of Tom
Mansfield. Frank Koubek , Ed Olson, Harold McWade , with John Stobaugh and C. Frager
as alternates . The Committee is to handle all details in connection with the elec-
tion. .. .
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent. These are signed "approved" by the chairman, mimeographed and
posted and copies given to each representative. Except on rare occasions the
minutes are not submitted to the employee representatives prior to mimeograph-
ing and posting. They are, however, read at the next meeting, and are open to
correction. An employee representative was once selected as assistant secretary
of the Conference and on two or three occasions acted in the absence of the
regular secretary.
At these meetings all subjects of collective bargaining or grievances which are
ordinarily taken up between employers and bona fide labor organizations are
discussed. Illustrative of these subjects, on many of which the employees
secured substantial concessions, and on some of which they did not, are the
following: General wage increases, operation of the Respondent's incentive plan,
request for a retirement plan, request for a sick leave program, holiday pay,
Christmas bonuses, insurance programs, requests for a stronger seniority system,
hours of work, vacation program, equal pay for women, change in pay date,
and miscellaneous matters such as foundry ventilation, locker room expansion,
installation of labor saving machinery, and parking problems.
In preparation for the Joint Conference meetings, the employee representa-
tives are permitted 1 day each month to circulate through the plant to determine
whether there are any employee grievances and to receive them. While on such
detail they are paid their regular rate of pay. They are also permitted, during
the month, to listen to employee grievances and to discuss them with supervision,
on the Respondent's time.
The employees pay no membership fees or dues in the Plan. Other than nota-
tions of agreement recorded in the minutes of the Joint Conference meetings
there is no written agreement or contract concerning conditions of employment.
No meetings of employees are provided for under the Plan, nor have any been
held with respect to the business of the Joint Conference or the decisions of the
employee representatives. The representatives have on occasion sounded out
sentiment among employees with respect to certain subjects by sampling indi-
vidual opinion. There is no provision, however, for submission to the employees
of decisions arrived at in the Joint Conference.
Other organizations also exist among the Respondent's employees, such as a
Welfare Plan, a Credit Union, and an Athletic Association. These organizations
are permitted the same privileges and assistance as to the use of company prop-
erty and time as is the Joint Conference Plan. In addition the Respondent pays
employees for a variety of nonproductive time, such as blood bank donations,
Community Chest activity, bond drives, sick committee work and collections
among employees ; as well as providing employees with various personal services,
such as help on income tax problems, without charge. Employees are permitted
to post noncontroversial matter on the plant bulletin boards with the prior per-
mission of the Respondent.
The uncontroverted testimony of Personnel Manager Sills establishes that
the Respondent's wage scales are at least equal to and in some cases higher than
the prevailing rates in the area. It further establishes that with respect to
fringe benefits the Respondent's policies are in general more liberal than the
average in the area. The Respondent has had no strikes since 1933.
4. Activity of affiliated labor organizations
On December 5, 1945, upon petition of the United Steelworkers of America,
C. I. 0., a consent election for selection of a bargaining representative was held
AXELSON MANUFACTURING COMPANY 771
among the Respondent's employees under the auspices of the Regional Office of
the Board in Case No. 21-R-3145. The Steelworkers was the only organization
on the ballot. The election unit consisted of hourly paid employees excluding
supervisors and clericals. The vote was overwhelmingly against the Steel-
workers. Of 842 eligible voters, 773 voted, 193 for representation by the Steel-
workers, 580 against. In preparation for this election the Respondent prepared
eligibility lists for the Regional Office on company stationery and posted notices
of the election on company bulletin boards. The election was held on company
premises and most employees voted on company time. The election observers
were paid by the Respondent.
The Machinists began an organizational campaign among the Respondent's
employees in late 1947, a campaign which, the testimony indicates, is still in
progress. During the summer of 1948, one of the Respondent's employees ap-
peared in the plant wearing a badge identifying him as a steward for the Machin-
ists. Shortly thereafter the Respondent posted the following notice on the
bulletin boards :
NOTICE
AUGUST 25, 1948.
In connection with employees wearing steward's badges:
No outside labor organization represents employees in the plant and no
outside labor organization has since the CIO election in December 1945
requested that they be recognized as representative of our employees. Conse-
quently, no employee designated by an outside labor organization as a stew-
ard or other representative has any official standing in this plant.
As you know, there is an established method whereby employees may
bring questions relating to working conditions, etc., to the attention of man-
agement through the Joint Conference Representatives.
/S/ MANAGEMENT.
Thereafter, in October 1948, the Machinists filed a petition for certification
(Case No. 21-RC-560), but this petition was later withdrawn because of the
pendency of the present complaint proceedings.
Concluding Findings
1.
The circumstances surrounding the inception of the Joint Conference Plan
reasonably establish that the Respondent was a sponsor of the Plan. This is so
irrespective of whether the organization resulted from suggestion by the em-
ployees for a collective bargaining procedure, or was conceived wholly by the
Respondent. Whatever the original impetus the Respondent adopted the plan
and proposed it to the employees. The organizational meetings were presided
over by President G. A. Axelson and Treasurer Kerfoot. These were held on
company property over a period of several days. The Plan provided for par-
ticipation by the Respondent with respect to discussions embracing its own
policies within the plant. Without the Respondent's participation and active
support the Plan could neither have begun nor continued to function. It is
therefore concluded that the Respondent sponsored , supported , assisted, and
participated in the establishment of the Joint Conference Plan. That there may
have been other sponsors-even nonsupervisory employees-does not lessen the
Respondent's contribution-essential to the functioning of the Plan. There is,
however, no evidence of other sponsorship.
882191-51-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the exception of the amendments made in subsequent years, the most
substantial of which resulted in the increase in the number of representatives
to five, and the exclusion of lead_men and setup men from eligibility to vote and
to serve as representatives, the Plan and its operation have remained substan-
tially unchanged down to the present day. As the Board said of similar arrange-
ments in the cases of Pacific Manifolding Book Co., 64 NLRB 1257, and The
Carpenter Steel Company, 76 NLRB 670, the Plan is "essentially indistinguish-
able from employee representation plans which flourished in the pre-Act era as
it substitute for collective bargaining and the disestablishment of which have
uniformly been ordered by the Board and approved by the Courts."
There is no provision in the Plan for employee choice as to whether they
wish the organic structure of the Plan. This is not remedied by the fact that
in 1933 the employees voted to install it. The measure of organizational rights
in 1949 is not that of 1933. Neither the privilege of annual selection of repre-
sentatives, nor that of affiliation with the Machinists or the United Steelworkers
provides an alternative by which the employees could choose their own form of
representation as well as their representatives. There is no method under the
plan by which the employees could amend or modify it in any way. The Re-
spondent in fact, has an effective veto power over any amendment. Thus Section
17 states:
The plan may be amended or modified at any time by a two-thirds vote
of the Joint Conference. [Emphasis supplied.]
The employees' only choice is therefore between the Plan and the selection of
some other labor organization as their bargaining representative; neither of
which alternatives they may regard as wholly acceptable. The right of organi-
zation is not so circumscribed. This assurance of control by the Respondent
over the structure of the Plan seriously impairs its capacity to act as an employee
representative.
The right of an employee to participate in the Plan results from his employ-
ment alone; and not from any act of affiliation or voluntary selection of it.
Pacific Manifolding Book Co., supra. While he may vote annually for a repre-
sentative, or refrain from it, he is given no choice as to whether the system
should be continued, modified, or abandoned ; a right-and necessarily a con-
tinuous one-inherent in the concept of self-organization. The Act assures to
employees a choice as to whether they shall have any collective bargaining
representative. The employees here have had no such option since the statute
became effective in 1.935. The Plan provides only for determination as to who
the representatives shall be; it affords employees no opportunity to say whether
there shall be any representatives at all; or whether, except as to possibly the
addition of representatives, it shall be modified in any way. It thus permits
only curtailed exercise of the rights guaranteed in Section 7 of the Act; and
Section 17 of the Plan makes the impairment removable only by consent of the
Respondent. The fact, urged by the Respondent, that a large percentage of the
employees vote in the Plan elections and have twice petitioned for separate em-
ployee representatives does not meet this issue. Nor does the fact that the
employees may prefer not to be represented by the Steelworkers or the Machinists.
Neither alternative provides a referendum on the basic issue. The employees'.
approval of the Plan in 1933 does not remedy the defect. Acceptance then
could not circumscribe the guarantees of the later statute ; attachment to col-
lective representation is not, under the Act, a permanently nonannulable status,
though it would appear to be so under, the Plan.
AXELSON MANUFACTURING COMPANY 773
There is no provision for meetings of employees. Nor are the decisions of
the Joint Conference submitted to the employees for approval or rejection. The
participation of employees as a matter of right in the decisions of their representa-
tives and collective discussion and instruction of representatives is thus effec-
tively foreclosed. (Carpenter Steel Company, supra; Madix Asphalt Roofing
Corp., 85 NRLB 26; Pacific lfanifolding Book Co., supra.) While there is evi-
dence that the representatives sometimes sound out sentiment among the em-
ployees with respect to matters at issue, there is neither requirement nor
practice of submitting decisions of the Joint Conference to the employees. Notice
of the decisions is provided, of course, by the posting of the minutes of the
Joint Conference.
Another basic-provision of the Plan places the Respondent in a dominant posi-
tion over its functioning and administration. This is the manner of selection of
the representatives. Presently there are five representatives. Two of these
are elected by the day shift machine shop and some miscellaneous divisions ;
one by the machine shop night shift ; one by the foundry ; and one by the clerical
employees. The latest amendment to the Plan incorporated in the record states
that representatives are to represent their various departments or divisions.2
Concerning a similar provision in the Carpenter Steel Company case, which it
found indicated domination, the Board said : o
... lacking the capacity to show that a majority of the employees in
an appropriate unit had designated the organization (as distinguished from
individual departmental representatives) as their bargaining agents, it can
be in no position legally to compel the employer to bargain with it.
The requirement that representatives be employees with at least 1 year's service
was found by the Board in the Carpenter Steel case to provide "effective insula-
tion against outside influence." The Board further said, and the application
seems unavoidable here, that :
Although the respondent in practice has not and under the Plan may not
interfere with the employees' selection of their unit representatives, it never-
theless retains ultimate control over the composition of the ERC through
its reserved power to unseat any elected representative by severing his
employment or transferring him to another department of the plant. The
mere existence of such power, whether exercised or not, places the Respond-
ent in a dominant position over the ERC' [Emphasis supplied.]
This principle was reiterated by the Board in the recent case of Madix Asphalt
Roofing Corp., 85 NLRB 26. There the Board said :
The key to the Respondent's control over the Association through the By-
Laws lies in the fact that the Respondent has the reserved power to control
the Plant Council and the Plant Council in turn has the express power to
control the Association. The first measure of the Respondent's control over
2 Section 4 . Number of Representatives. This is the amendment made in 1942 when a
representative was added for the machine shop night shift. For some reason not explained
the record does not show a formal written amendment,in 1948 when the clerical employees
were given a representative , although the minutes of the September 28 and November 30,
1948, Joint Conference meetings show formal approval of the matter.
3 The Joint Conference Plan does not provide, as did the Plan in the Carpenter Steel
case, for loss of representative status upon transfer to another department or division.
Section 10 of the Plan does provide however for loss of status upon "severing connection
with the Company," and Section 6 requires that a representative be an "Employee of this
plant. " The principle of the Carpenter Steel quotation given above is therefore applicable.
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Plant Council is provided by the requirement that a candidate to be
eligible for election to the Plant Council must be an employee with at least
3 months continuous service with the Respondent . This requirement not
only prevents any non-employee from being elected to the Plant Council,
thereby providing effective insulation against any outside influence on the
Plant Council but also gives the Respondent the reserved power to prevent
any employee from being elected to the Plant Council by either periodically
interrupting his continuous service or terminating his employment altogether.
Moreover , even if an employee objectionable to the Respondent were to be
elected to the Plant Council, the Respondent would still have the reserve
power to unseat him by severing his employment or transferring him to
another department of the plant. As we found in the Carpenter Steel case,
the mere existence of such power , whether exercised or not places an em-
ployer in a dominant position over such an organization . [Emphasis
supplied.]
The significance of various of these factors , such as lack of provision for em-
ployee discussion , and service requirements , in establishing domination, was
also pointed out by the Board in the case of Wyman-Gordon Company, 62 NLRB
561, 567-8, 135 F. 2d 480 ( C. A. 7), where the Board said:
That the Council was not a free representative of the employees appears
not only from the direct support given by the Respondent to the Council but
also from the lack of any provision for self-organization of employees, in-
cluding ' assemblage or discussion by them. Their sole participation in the
Council is confined to the annual exercise of the privilege of nominating
and electing representatives . Service of such a representative is subject to
the Respondent's control in that holding of the office is contingent upon con-
tinued employment with the Respondent . As the Respondent reserved to
itself the power to determine the continuance of employee representatives
in office, so it predetermines , to a certain extent, who , such representatives
might be in that eligibility of a nominee depends upon continuous service of
such nominee with the Respondent of at least 1 year prior to nomination.
The Council thus established before the effective date of the Act continued to
function thereafter without any substantial change in its structure.
That union -employer contracts in the Los Angeles area, arrived at through
the processes of collective bargaining , contain, as the Respondent ' s evidence in-
dicates, provisions requiring election of stewards and committeemen by de-
partments, or service and citizenship requirements for such office, is immaterial.
Where the statute forbids assistance , the test of legality is the law and not prac-
tice. Wyman - Gordon Company , supra, at p. 567. Apart from the question of
materiality , however , the situations are not parallel . The employees in the in-
stances cited by the Respondent are presumably not restricted to the services of
stewards and committeemen for representation, but may call on other union offi-
cials, nonemployees , for assistance in negotiations . Moreover , stewards and
committeemen , though departmentally elected, act within, and as a subordinate
part of, a larger scheme of representation within an appropriate unit, and not as
the sole representatives of the unit itself, as do the representatives here.
Other provisions of the Plan illustrate the degree of participation by the Re-
spondent , and consequently interference , in the mechanics of employee selection.
Thus the Plan provides that nominations and elections are to be "under the su-
pervision of an Election Committee the membership of which shall be selected
by the Joint Conference ," where the Respondent has an equal voice. While, as
AXELSON MANUFACTURING COMPANY 775
has been indicated, the Respondent has not sought to influence employees in their
choice among nominated candidates, the presence of the provision is significant.
The selection of employee representatives is exclusively the employees' business,
as selection of employer representatives is exclusively that of management. The
provision here, however benign its motives and however tolerantly applied, is
indicative of a premise apparent in the entire instrument, that the employees'
selection of representatives is very much the employer's concern. Such a thesis
is contrary to the principle of self-organization. Further indicative of this pro-
prietary attitude are the detailed provisions governing the eligibility, election,
term of office, and payment of employee representatives. This is not to say, of
course, that the Plan was conceived and has been maintained by the Respondent
for the purpose of frustrating the employees' rights. I have no reason to and
do not question the Respondent's good faith, its belief in the legality and sound-
ness of its policy toward its employees, or the undoubted sincerity of its views
as to the most effective way to secure amicable employer-employee relations. The
Plan, however, as measured by the statute and the Board decisions cited above,
presents substantial impediments to self-organization and free collective bar-
gaining.
Under the present operation of the Plan, it can function only with the assist-
ance of the Respondent. Its provisions for employee organization and the selec-
tion of bargaining representatives are thus subject to defeasance whenever the
Respondent wills it. There being no requirements, contractual or otherwise, to
insure its adherence, the Respondent may withdraw from the procedure when-
ever it chooses ; it may revoke at any time any agreement made as a result of
negotiation ; it may decline to permit the use of company facilities for the selection
of employee representatives or any other business of the employee representatives.
The answer that the Respondent would not do such a thing, does not reckon what
changes of policy or circumstances the future and its unpredictable exigencies may
bring. An organization without independent means of support, as is the Plan,
must, as the Board said in the Carpenter Steel case, "necessarily depend for its
existence upon the aid, support, and continued favor of the employer." The
fact that the Respondent has not sought affirmatively to direct the decisions of
the employees or their representatives is no adequate response. It is the exist-
ence of the power to do so which is determinative. Whether consciously or not,
the Plan contemplates that the representatives should look to the employer rather
than to the employees for remuneration for their services ; and that the em-
ployees should depend upon the Respondent's benevolence and resources for the
continuation of their organization, rather than to their own. Nor is it an answer
that this need not be so, and that the employee activities could be carried on with-
out such support. The Plan must be judged on the basis of what it is, and not
what it might be if revised.
These various characteristics of the Plan appear to me to bring it squarely
within the principles which the Board laid down in the Carpenter Steel case, the
Madix Asphalt Roofing Corp. case, the Wyman-Gordon case, and the Pacific Mani-
folding Book Co. case, as constituting domination of a labor organization.
2.
Some of the allegations of the General Counsel do not appear to be supported
by substantial evidence. Thus, it is alleged that J. C. Axelson and Victor
Mancuso, as officials of the Respondent and chairman and vice chairman of the
Plan, "dominated," "guided," and "controlled" the Joint Conference meetings.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the Plan was dominated by the Respondent I think follows from the Board's
decisions ; but the evidence does not disclose any domineering attitude displayed
by Axelson and Mancuso, which I apprehend is the sense of the allegation.
Again it is asserted as evidence of domination that minutes of the Plan meetings
were prepared by an employee of the Respondent, subject to approval of J. C.
Axelson and posted on the bulletin boards. I see nothing per se illegal in having
minutes of negotiating or grievance sessions between employers and unions pre-
pared by the employer, or posted on plant bulletin boards. With respect to the
requirement for approval by J. C. Axelson, it has been noted that the minutes are
subject to correction.
Similarly with respect to the allegation that notices of Plan meetings are sent to
employee representatives by the Respondent's personnel officer. Employee rep-
resentatives have also arranged meetings. In any event the fact does not seem
significant. Likewise I am unable to conclude that the notice posted by the
Respondent in August 1948, referring to the wearing of stewards' badges, consti-
tutes substantial evidence of domination.
3.
A number of considerations advanced by the Respondent deserve disposition.
While it concedes that its payment of employee representatives and the use of
company property, time and supplies, and the financing of the Plan by the Re-
spondent "at first blush, would appear to establish illegal support under the
principle of numerous early Board decisions," it is urged that in fact this activity
was not illegal. First, it is said that Section 8 (a) (2) of the Act, which pro-
vides that "an employer shall not be prohibited from permitting employees to
confer with him during working hours without loss of time or pay," authorizes
payment of the representatives. Secondly, it is urged that the Wage and Hour
Administrator has ruled that under the Fair Labor Standards Act, time spent
by individual employees and grievance committee members in discussing griev-
ances pursuant to an established grievance procedure and during regular working
hours, should be viewed as hours worked. Thirdly, the Respondent urges that it
is common practice in the Los Angeles area to pay union committeemen during
contract negotiations and for time spent in investigating grievances, as well as
to permit the use of company property for union meetings and for the election
of union stewards and committeemen.
In the instant case, in addition to payment for time spent in Joint Conference
meetings during working hours, the representatives also are given 1 day off a
month to circulate in the plant, to receive, and to investigate whether there are
any, employee grievances. In addition they may discuss grievances with em-
ployees at any time during the month on Respondent's time.
The Board has held that the proviso to Section 8 (a) (2) ' restricts "allowable
payments to instances in which conferences are held with management during
working hours of the employee conferees." [Emphasis supplied.] W.yman-
Gordon Company, 62 NLRB 561, 567, 153 F. 2d 480 (C. A. 7). In that case the
Board found that payments to representatives for grievance discussion meetings
at which management was not represented, constituted illegal support even
though in accord with common practice. See also Colorado Fuel and Iron Corp. v.
N. L. R. B., 121 F. 2d 165, 174 (C. A. 10), Carpenter Steel Company, supra, and
Pacific Manijolding Book Co., supra. In the Wyman case the Board also ruled
4 Though this was a construction of the proviso to Section 8 (2) of the Wagner Act, it is
applicable to Section 8 (a) (2) of the present Act, there being no change in that respect.
AXELSON MANUFACTURING COMPANY 777
that decisions of the National War Labor Board authorizing the practice of
making such payments were not material. That decision is controlling here.
Consequently it is found that neither custom nor decisions as to what is com-
pensable time under the Fair Labor Standards Act validate the instant payments
for time spent by employee representatives outside of actual conferences with
management during working hours. Nor does custom validate the dedication
of employer property to the support of a labor organization. Nor does the fact,
suggested by the Respondent, that Board elections are held on an employer's
property, often on company time with the cooperation of employers and the full
use of their facilities, authorize similar action where the Board is not involved.
The cooperation of an employer in the holding of a governmentally sponsored
election, held in compliance with the requirements of law, can scarcely be deemed
to be support of a labor organization by an employer.
The Respondent also urges that, because of its liberal policy with respect to
paying employees for nonproductive activity, such as the Welfare Association,
Red Cross, and the like, adverted to heretofore, and providing various personal
services, such as income tax advice, credit union, notary services, etc., a refusal
to compensate employee representatives for time spent in concerted activities
would constitute illegal discrimination under Section 8 (a) (3) or at least
illegal interference under Section 8 (a) (1). The Respondent's estimable policy
with respect to the furnishing to employees of services, facilities, and its capital
for these purposes of non-labor-organizational nature does not, however, pro-
vide a parallel for similar action with respect to labor organization. There is
no interdiction in law, so far as I am aware, against the voluntary granting of
benefits to individual employees or to employee organizations not labor organiza-
tions. Indeed, such action as the Respondent has taken in that respect is to be
encouraged . Similar conduct vis-a-vis a labor organization, however, constitutes
unlawful support. However sincerely motivated, such action results in de-
pendency on employer generosity for organization that the Act intended should
stand upon its own feet-or not at all. In addition, the visible evidence of sup-
port may lead to the conclusion by the employees-mayhap entirely mistaken-
that the organization is preferred by the employer to others and that individual
advancement will therefore be best served by adherence to it. The cases cited
by the Respondent in its briefs as authority for the proposition that the denial
to union adherents of certain privileges formerly allowed all employees consti-
tuted unfair practices involved, as I understand those cases, situations where
the change of policy was for specific antiunion reasons or to discourage union
activity : Reliance Mfg. Co., 60 NLRB 946; Berkshire Knitting Mills, 17 NLRB
239, 288-89; Capital Broadcasting Company, 30 NLRB 146, 153, 161; or concerned
privileges in the nature of rights whose exercise is guaranteed in Section 7 of
the Act. United Dredging Co., 30 NLRB 739, 748-51. Those are quite different
situations from that where the action is taken in good faith to comply with the
law. That the employee representatives have been able to secure undoubted
benefits for the employees does not validate the Plan. Pacific Mamifolding Book
Co., 64 NLRB 1257. Complete and absolute impotence is not the test of domina-
tion of a labor organization . Nor is the absence of overt industrial strife. Car-
penter Steel ' Co., supra.
To be sure , the record discloses a friendly attitude on the part of the Re-
spondent toward its employees ; it establishes no hostility toward outside unions;
It is devoid of evidence of any design to coerce employees in the selection of their
representatives . There is no evident ground for questioning the Respondent's
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good motives and its genuine concern for the welfare of its employees. These
factors are material in any inquiry and have been weightily considered here.
They do not, however, constitute a defense. The.facts disclose that, in the light
of applicable principles of law, the Respondent's actions, whatever its actual
intent, constitute domination of, interference with, and support of, the Joint
Conference Plan. Substantial acts in that respect have occurred since May 10,
1948. Since that date the Plan has continued to function substantially as before,
meetings of the Joint Conference have been regularly held, elections for employee
representatives have been conducted, and the Respondent has continued to con-
tribute the support which it extended theretofore.
It is consequently found that the Respondent, since May 10, 1948, has dom-
inated and interfered with the administration of the Joint Conference Plan, and
has contributed financial and other support thereto, and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations described in Section I, above, have a close, inti-
mate, 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
It having been found that the Respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the policies of the Act.
It has been found that the Respondent has dominated and interfered with
the administration of the Joint Conference Plan and has contributed financial
and other support thereto. The effect and consequence of the Respondent's
domination, interference with, and support of, the Joint Conference Plan, as well
as its continued recognition of the employee representatives under the Plan as
bargaining representatives for its employees, constitute a continuing obstacle to
the full exercise by its employees of their right to self-organization and to bar-
gain collectively through representatives of their own choosing. Mere restraint
of the acts of interference with and support of the Plan would not suffice to
establish the freedom of choice guaranteed the Respondent's employees by the
Act. The Plan is incapable of serving as a genuine collective bargaining agency.
Continued recognition of it by the Respondent would obstruct the exercise by the
Respondent's employees of the rights assured them under the Act. Accordingly,
it will be recommended that the Respondent withdraw all recognition from the
employee representatives under the Plan as the representatives of any of its
employees for the purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment,
and completely disestablish the Joint Conference Plan.
Upon the basis of the above findings of fact and upon the entire record in the
case I make the following :
CONCLUSIONS OF LAW
1. International Association of Machinists, its District Lodge No. 94, and Local
Lodge No. 1571, are labor organizations within the meaning of Section 2 (5) of
the Act, admitting to membership employees of the Respondent.
AXELSON MANUFACTURING COMPANY 779
The Joint Conference Plan is a labor organization within the meaning of
Section 2 (5), participated in by employees of the Respondent.
2. By dominating and interfering with the administration of the Joint Con-
ference Plan and by contributing financial and other support thereto, the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (2) of the Act.
3. By said acts the Respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed in Section 7 of the Act, and
thereby engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the Respondent, Axelson Manufacturing Company, Los An-
geles, California, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Joint Confer-
ence Plan, or with the formation or administration of any other labor organiza-
tion, or from contributing support to the Joint Conference Plan or to any other
labor organization ;
(b) Recognizing the employee representatives under the Joint Conference Plan
or any successors thereto as the representatives of any of its employees for the
purpose of dealing with the Respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Withdraw all recognition of the employee representatives under the Joint
Conference Plan as the representatives of any of its employees for the purpose
of dealing with the Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment ; and completely
disestablish the said Joint Conference Plan;
(b) Post at its plant at Los Angeles, California, copies of the notice attached
hereto and marked "Appendix C." Copies of the said notice, to be furnished by
the Regional Director for the Twenty-first Region, shall, after being duly signed
by the Respondent's representative, be posted by the Respondent immediately
upon receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Twenty-first Region in writing within
twenty (20) days from the date of receipt of this Intermediate Report what steps
the Respondent has taken to comply therewith.
All parties are advised that upon the filing of this Intermediate Report and
Recommended Order and the service of copies upon the parties-as provided in
Section 203.45 of the Rules and Regulations of the National Labor Relations
Board, Series 5, as amended, effective August 18, 1948-the Board will enter
an order transferring the case to itself, and will serve a copy of the order upon
each of the parties, setting forth the date of the transfer.
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties are advised that any party may, within twenty ( 20) days after
the date of service of the order transferring the case to the Board , file with
the Board , Washington, D. C., pursuant to Section 203.46 of the Rules and
Regulations , an original and six copies of a statement in writing setting forth
exceptions to the Intermediate Report and Recommended Order or to any other
part of the record or proceeding ( including rulings upon all motions or objec-
tions ), together with the original and six copies of a brief in support of the
exceptions . Any Statement of Exceptions and brief must designate by precise
citation the portions of the record upon which the party filing relies . Matters
not included in the Statement of Exceptions may not thereafter be urged before
the Board , or in any further proceeding under the Act. Any party also may,
within the same period , file an original and six copies of a brief in support of
the Intermediate Report and Recommended Order. Immediately upon the filing
of such a Statement of Exceptions and supporting brief, or the filing of a brief
in support of the Intermediate Report and Recommended Order, the party filing
any such document shall serve a copy of it upon each of the other parties. Proof
of service upon the other parties shall be promptly made, as required by Section
by the Board and become its findings , conslusions , and order.
Should any party desire permission to argue orally before the Board, a request
for such permission must be made in writing to the Board within ten ( 10) days
after the date of service of the order transferring the case to the Board.
The parties are further advised that , in the event no Statement of Exceptions
is filed, as provided by the Rules and Regulations , all objections and exceptions
to this Intermediate Report and Recommended Order shall be deemed waived for
all purposes-as provided in Section 203.48 of the Rules and Regulations-and
the findings , conclusions , and recommendations contained in it Shall be adopted
by the Board and become its findings, conclusions , and order.
Dated at Washington , D. C., this 16th day of August 1949.
CHARLES W. SCHNEIDER,
Trial Examiner.
APPENDIX A
AXELSON MANUFACTURING COMPANY
PLAN FOR EMPLOYER-EMPLOYEE RELATIONS
1. Title.-The following shall be known as a "Joint Conference Plan."
2. Object.-The plan is adopted by the management and employees of Axelson
Manufacturing Company, for the purpose of complying with the requirements of
Section 7 of the National Industrial Recovery Act as passed by the Congress of
the United States-on June 13, 1933 , and any Act of like intent that may , become
a law in the State of California . It shall be the further object of the Joint Con-
ference to develop a spirit of cooperation and promote mutual understanding
between all persons engaged in the operation of the plant.
3. Powers.-The Joint Conference shall be empowered to discuss and agree
upon such matters affecting working conditions as maximum working hours,
minimum wage , and health and safety factors. Any such agreements reached by
the Joint Conference to be subject to revision in order that they may be coordi-
nated with local , and national fair codes of competition that may be established
under the law.
AXELSON MANUFACTURING COMPANY 781
PLAN OF REPRESENTATION
4. Number of Representatives.-There shall be three members elected by em-
ployees and three members appointed by the management. (The number of
representatives may be varied in accordance with the number of employees, or
divisions of the plant's operation, or by major employment classifications. It is
recommended however, that not more than eight representatives of employees
and eight of management be permitted.)
5. Management Representatives.-The representatives of the management shall
be appointed by and serve at the pleasure of the management and shall be equal
in number to the representatives of the employees.
6. Eligibility.-Any employee of this plant, exclusive of foremen, assistant fore-
men, inspectors and executives, shall be eligible for nomination and election as
a representative of the employees upon the Joint Conference, provided that he
shall have attained the age of 21 years, is an American citizen, and shall have
had one year's continuous service with the company immediately prior to the date
of the election.
7. Qualifications for Voting for Employee Representatives Upon the Joint Con-
ference.-All employees, exclusive of foremen, assistant foremen, inspectors and
executives, shall be eligible to vote for the nomination and election of employee
representatives upon the Joint Conference provided that they have attained 18
years of age and have been employed at the plant for 30-days prior to the date
fixed for the nomination.
8. Method of nominating and electing employee representatives upon the joint
conference.-(a) Election of employee representatives shall be held once each
year. The first date to be selected by the management and following dates to
be determined by the Joint Conference. Nominations and elections will be under
the supervision of an election committee the membership of which shall be se-
lected by the Joint Conference. (The membership of the first election shall be
selected jointly by the management and the employee.)
(b) To become a candidate for employee representatives on the Joint Confer-
ence a petition signed by ten or more qualified voters must be handed to the
election committee not later than five days prior to the date upon which the
election is to be held. The election committee shall place the name of all em-
ployees so nominated upon the ballot.
(c) Election shall be by secret ballot and be so conducted as to avoid interfer-
ence with or influence upon voters in any manner whatsoever and so as to prevent
any fraud in casting or counting the ballots.
(d) The ballots shall be deposited by the voters in ballot boxes and shall be
counted by the election committee. The three employees receiving the highest
number of votes shall be the representatives of the employees on the Joint Con-
ference. (The number to be modified in accordance with the extent of employee
representation upon the Joint Conference.)
(e) In the event of a tie, seniority in employment shall determine the choice.
9. Term of office.-Employee representatives on the Joint Conference shall be
elected for a term of one year.
10. Vacancies.-An employee representative on the Joint Conference shall be
deemed to have vacated his office-
(a) Upon resignation from the Conference.
(b) Upon severing connection with the company.
(c) When appointed to an administrative position.
(d) When recalled by two-thirds vote of the employees.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) When absent from more than three consecutive meetings of the Joint
Conference, or any of its Committees of which he may be a member, unless such
absence has been excused beforehand by the Joint Conference.
A vacancy among the elective members of the Joint Conference shall be filled
by nomination and election as provided for new members. Vacancies among ap-
pointive representatives shall be filled by the management.
11. Officers and committees.-The members of the Joint Conference shall elect
a Chairman, Vice-Chairman, and Secretary, and such other officers as in its judg-
ment may be necessary. The Joint Conference shall further appoint such com-
mittees as may be necessary to assist them in properly conducting their work.
The terms of office of such officers shall be for one year. Committees shall hold
office at the discretion of the Joint Conference.
12. Ditties of officers.-The Chairman of the Joint Conference shall preside at
all meetings of the Conference, and shall be an ex-officio member of all committees.
The Vice-Chairman shall assume the duties of the Chairman in the absence of the
latter. The secretary shall record the proceedings of all meetings including
those of committees. (If considered necessary, one secretary may be elected by
the employees and one appointed by the Management to jointly record the
proceedings.)
13. Meetings.-Meetings of the Joint Conference shall be held once each month
at times to be fixed by the Conference. Committee meetings shall be held upon
the call of the respective chairmen, subject to approval of the Joint Conference
while held during working hours.
14. Payment while attending meetings.-For the time necessarily occupied in
actual attendance during working hours, at regular meetings of the Joint
Conference or at committee meetings, approved by the Joint Conference, mem-
bers of the Joint Conference and its committees shall receive payment at the
rate of their average hourly earnings.
15. Procedure for adjustments.-1. Any matter which, in the opinion of an
employee, requires adjustment and which such employee has taken up with the
foreman and has been unable to adjust satisfactorily with the foreman, may
be taken up by such employee with any employee representative upon the Joint
Conference.
2. The employee representative shall make an investigation and endeavor to
reach an agreement with the foreman. If unable to come to an agreement either
the foreman or the representative may then take up the matter with the
Industrial Relations Manager, or other person specified by the Management.
3. Unless a satisfactory disposition of any such matter is made within a
reasonable period of time, any employee through an employee representative or
the Management, may refer the matter to the Factory Manager, who will en-
deavor to make an adjustment.
4. If the Factory Manager is unable to make a satisfactory adjustment, the
matter shall then be referred to the Joint Conference.
5. If the Joint Conference is unable to agree, the matter may be submitted to a
Board of Arbitration for final decision.
6. Whenever it is agreed to submit any matter to Arbitration, it shall be
referred to two persons, one selected by the Joint Conference from among its
elected members and the other selected by the Management . If agreement is
not reached by them; they shall then jointly select a third person and whatever
decision is then arrived at shall be final.
AXELSON MANUFACTURING COMPANY 783
16. Guarantee of discrimination.-There shall be no discrimination against
any employee representative on the Joint Conference for action taken by him
in the performance of his duties as set forth in this plan.
17. Amendments.-The plan may be amended or modified at any time by a two-
thirds vote of the Joint Conference.
18. Minutes of meetings.-The Secretary or Secretaries shall record the pro-
ceedings at all Joint Conference or committee meetings. All minutes are to be
subject to the approval of the Chairman of the Joint Conference and the Factory
Manager. The minutes of all Joint Conferences and committee meetings shall be
posted at suitable points in the plant.
AXELSON MANUFACTURING COMPANY.
JUNE 28, 1933.
APPENDIX B
AMENDMENTS TO JOINT CONFERENCE PLAN
(1) Section 2, Object, amended to read:
The Joint Conference Plan is adopted by the management and the employees of
the Axelson Manufacturing Company for the purpose of developing a spirit of
cooperation and to promote and continue a mutual understanding between all
persons engaged in the operation of this plant.
(2) Section 3, Powers, second sentence deleted.
(3) Section 4, Number of Representatives, amended to read:
There shall be four members elected by employees and four members appointed
by the management. Two employees shall be elected to represent the day shift
from the machine shop, stockroom, shipping room, assembly buildings and
miscellaneous, one employee to represent the night shift, and one employee to
represent the foundry.
(4) Section 6, Eligibility, amended to read:
Any employee of this plant, exclusive of department heads, foremen, assistant
foremen, lead men, set-up men, head inspectors and executors, shall be eligible for
nomination and election as a representative of the employees upon the Joint
Conference, provided he is twenty-one years of age, is an American citizen, and
shall have had one year's continuous service with the company immediately prior
to the date of the election.
(5) Section 7, Qualifications, etc., amended to read:
All employees, exclusive of department heads, foremen, assistant foremen, lead
men, set-up men, head inspectors and executives, shall be eligible to vote for the
nomination and election of employee representatives upon the Joint Conference
provided that they have attained 18 years of age and have been employed at the
plant for 30 days prior tp the date fixed for the nomination.
(6) Section 11, Officers and Committees, amended to read:
The members of the Joint Conference shall elect a Chairman and Vice-Chairman
and such other officers as in its judgment may be necessary. The Joint Conference
shall further appoint a secretary and such committees as may be necessary to
assist them in properly conducting their work. The terms of office of such officers
shall be for one year. Committees shall hold office at the discretion of the Joint
Conference.
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE withdraw and will withhold all recognition from the employee repre-
sentatives under the Joint Conference Plan as the collective bargaining
representatives of. any of our employees.
WE WILL disestablish the Joint Conference Plan.
WE WILL NOT dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support thereto.
AXELSON MANUFACTURING COMPANY,
Employer.
Dated --------------------- By ----------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.