Essex Wire and Associated Machines, Inc.

National Labor Relations Board - Board Decisions

Feb 17, 1954

107 N.L.R.B. 1153 (N.L.R.B. 1954)

ESSEX WIRE AND ASSOCIATED MACHINES, INC 1153
believe that the election already held is sufficiently repre-
sentative to reflect the desires of those in the unit presently
found appropriate. Indeed, to allow the prior election to deter-
mine the choice of a bargaining representative would in effect
disenfranchise those employees who are presently in the unit
but who may not have had the opportunity to vote in that elec-
tion. Accordingly we believe that it would best effectuate the
policies of the Act to vacatethe original Decision and Direction
of Election, and direct a new election in the unit presently
appropriate.
[The Board vacated the Decision and Direction of Election
of November 19, 1952.]
[Text of Direction of Election omitted from publication.]
ESSEX WIRE AND ASSOCIATED MACHINES, INC. and UNITED
STEELWORKERS OF AMERICA, C. I. O. and ASSOCIATED
MACHINES, INC. COMMITTEE, Party to the Contract.
Case No . 9-CA-673. February 17, 1954
DECISION AND ORDER
On October 9, 1953, Trial Examiner C. W. Whittemore
issued his Intermediate Report in the above-entitled pro-
ceeding, finding that the Respondent, Associated Machines,
Inc., had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial
Examiner also found that the Respondents had not engaged in
certain other unfair labor practices alleged in the complaint
and recommended dismissal of those allegations . Thereafter,
the General Counsel and the Respondent, Associated Machines,
Inc., each filed exceptions to the Intermediate Report, and
supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and bries , and the entire
record in the case, and hereby adopts the find ings , conclusions,
and recommendations of the Trial Examiner. 1
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act as amended, the
'Chairman Farmer and Member Rodgers concur in the assertion of jurisdiction in this
case but are not to be deemed thereby as agreeing with the Board's present jurisdictional
standards,
107 NLRB No. 250.
1 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Labor Relations Board hereby orders that the Re-
spondent , Associated Machines , Inc., Lancaster , Ohio, and its
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Dominating or interfering with the administration of
Associated Machines, Inc. Committee, or the formation or
administration of any other labor organization, and from
contributing support to it or to any other labor organization,
and from otherwise interfering with the representation of
its employees through a labor organization of their own
choosing.
(b) Recognizing Associated Machines , Inc. Committee, or
any successor thereto, as the representative of any of its
employees for the purpose of dealing with the Respondent
concerning grievances , labor disputes , wages, rates of pay,
hours of employment , or other conditions of employment.
(c) Giving effect to the agreement of May 23, 1953, between
said Respondent , and Associated Machines , Inc. Committee,
or to any extension , renewal, or modification thereof, or to
any other contract or agreement between the said Respondent
and the said labor organization which may now be in force.
2. Take the following affirmative action, which the 'Board
finds will effectuate the policies of the Act:
(a) Withdraw all recognition from Associated Machines, Inc.
Committee as the representative of any of its employees for
the purpose of dealing with the said Respondent concerning
grievances , labor disputes , wages, rates of pay, hours of
employment , or other conditions of employment , and completely
disestablish said organization as such representative.
(b) Post at its plant in Lancaster, Ohio, copies of the notice
attached to the Intermediate Report . 2 Copies of said notice, to
be furnished by the Regional Director of the Ninth Region,
shall, after being duly signed by the said Respondent , be posted
by it 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 Ninth Region in
writing, within ten (10) days from the date of this Order, what
steps the said Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is , dismissed , insofar as it alleges the commission of
unfair labor practices by Respondent, Essex Wire Corporation,
2 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner." the words "a Decision and Order." If this Order is enforced by a decree
of a Circuit Court of Appeals, the notice shall be further amended by substituting 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."
ESSEX WIRE AND ASSOCIATED MACHINES, INC. 1155
and also insofar as it alleges that the Respondent violated the
Act by the discharge of Ray Martin and by assistance given to
the IBEW.
Intermediate Report
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing having been
issued and served by the General Counsel of the National Labor Relations Board, and answers
having been filed by the above-named Companies, herein called the Respondents, a hearing
involving allegations of unfair labor practices in violation of Section 8 (a) (1), (2), and (3)
of the National Labor Relations Act, as amended, (61 Stat. 136) herein called the Act, was
held in Columbus, Ohio, on September 9 and 10, 1953, before the undersigned Trial Examiner.
In substance the complaint, as amended, alleges that the Respondents: (1) From about May
23, 1953, have dominated and interfered with the formation and administration of a labor
organization called Associated Machines, Inc Committee, (2) on May 8, 1953, discrimina-
torily discharged employee Ray L. Martin to discourage membership in the charging Union;
and (3) by the aforesaid acts and by assisting agents of another labor organization, Inter-
national Brotherhood of Electrical Workers, AFL, herein called IBEW, have interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act. The answers deny the allegations of unfair labor practices.
At the hearing all parties were represented by counsel, were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the
issues, to argue orally upon the record and to file briefs and proposed findings and con-
clusions. Briefs have been received from the Respondent and General Counsel. The Re-
spondents' motions to dismiss the complaint received at the close of the hearing, upon which
ruling was reserved, are disposed of by the rulings, conclusions, and recommendations
below.
Upon the entire record in the case, and from his observation of the witnesses, the Trial
Examiner makes the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS
A. Essex Wire Corporation
Essex Wire Corporation is a Michigan corporation which, among other enterprises, en-
gages in the manufacture of electrical wire and wire products, with principal offices located
in Detroit, Michigan. According to its counsel, Essex not only operates plants in various
States, but it has "some divisions, and some subsidiaries, and some are merely con-
nected,"--some which it operates and some which, as holding company, it services.
Counsel for the Respondent Essex concedes that it ships in interstate commerce material
valued at more than $100,000 annually and that it is engaged in commerce within the meaning
of the Act. It is so found.
B. Associated Machines, Inc.
Associated Machines, Inc., is an Ohio corporation with principal place of business in
Lancaster, Ohio, where it is engaged in the manufacture and sale of plastic parts for electric
switches. During the 12-month period before the hearing it sold products valued at more than
$50,000 to Essex Wire, according to its answer. At the hearing its counsel conceded that
it annually sells products valued at more than $50,000 to concerns which, in turn, ship
products annually out of the State of Ohio valued at more than $25,000, and that this Respond-
ent is engaged in commerce within the meaning of the Act. It is so found.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, C.I.O., International Brotherhood of Electrical Workers,
AFL, and Associated Machines, Inc. Committee, herein called the Committee, are labor
organizations admitting to membership employees of the Respondent Associated Machines.
1 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The major events and issues
Events in issue occurred , for the most part, on the premises of Associated Machines
which employed 20 or 22 persons in May 1953. As noted more fully in another section below,
this employer has been operating as a separate corporation since January 1953 . Before then
the plant had been run for an undetermined period as a division of Essex Wire . The shift,
if any, in corporate control appears to have not altered the practical management -employee
relationship . Employees already on the payroll of Essex were transferred to the records
of Associated Machines. F. E. Twiss has continued to be general manager.
It likewise appears that although until the change in corporate setup at lease some of the
employees of Associated Machines (while a division of Essex ) were represented by the IBEW,
after January 1, 1953, the IBEW was not recognized as the bargaining agent of any of Associ-
ated Machines employees . There is evidence that early in 1953 the IBEW asked management
to continue such recognition but its representatives were advised just to be certified by
the Board.
In April and May there was some discussion among employees as to both the IBEW and
the charging Union, although there is no evidence of an open organizing campaign by either
labor organization.
Shortly before May 8 a representative of the Steelworkers visited employee Ray Martin
at his home . Later Martin took union -application cards to the plant but engaged in no overt
solicitation . He was discharged on May 8 . The dismissal is in issue . On the same day Twiss
told the IBEW representatives they had his permission to organize the plant . The granting
of such permission is in issue.
On May 23 Twiss called employees together and advised them to set up their own com-
mittee to handle complaints and grievances with him. They did so , and the formation and
administration of the resultant committee are in issue.
B. The discharge of Ray Martin
1. The events
Before May 8 Martin had brought a few union cards into the plant but, according to his
own testimony , he neither passed them out nor displayed them. Although there is evidence
that at least one employee knew he had such cards in his pocket , there is no credible evi-
dence that he ever solicited any employee to join this organization.
On the morning of May 8 he and another employee were sent to perform a special task
in a building other than their regular place of work . At the drinking fountain they met a
third employee who was asked by Martin to join "a union ," without specifying which. This
employee apparently resented the suggestion , became angry , and created a disturbance
noted from a distance by Foreman Miller . Miller telephoned to Twiss , reporting that Martin
had caused a commotion , the nature of which he did not know . Twiss instructed Martin's
own foreman to discharge him the same day. He was dismissed.
Soon after the dismissal an IBEW representative interceded on Martin's behalf and on June
12 he was reinstated with full back pay . Upon reinstating the employee Twiss told him he
had been fired because Miller 's complaint was the third he had received.
2. Conclusions
It is General Counsel 's claim that Martin was discharged because management believed
he was active on behalf of the charging Union and to discourage membership in it. Although
the surrounding circumstances are more than somewhat suspicious , the Trial Examiner
considers the evidence too scant to support a sound inference that the dismissal was viola-
tive of the Act.
Circumstances creating suspicion include (1) the summary nature of the discharge of
an employee whose work had been satisfactory , as the Respondent concedes , (2) the failure
on the part of management to investigate the "commotion " at the drinking fountain; and
(3) as described below--Twiss' sudden offer the same day to IBEW representatives per-
mitting them to organize employees in the same plant . Nor does the Trial Examiner over-
look the fact, made clear by the record , that Martin was a reluctant although credible wit-
ness . He filed no charge and attempted to have General Counsel drop his case.
ESSEX WIRE AND ASSOCIATED MACHINES, INC. 1157
Yet there is no substantial evidence permitting a finding that management selected him
for dismissal because it suspected him of being active on behalf of the Steelworkers. He
merely had cards in his pocket. In his one effort to solicit he did not mention any specific
union, According to Martin there were others more active than he. If knowledge, or sus-
picion, is to be attributed to management merely because the plant employed only a few
employees, and what is known by one must be known by all, then it is reasonable to question
why those more active than Martin were not discharged.
An inference that the employee solicited on May 8 reported to his foreman and that the
foreman reported to Twiss that Martin was soliciting for the Charging Union must clear
the hurdle of flat denials by the employee and by Twiss, and the testimony of Martin that
he did not mention the Union. The foreman himself was not a witness.
Furthermore, Martin's own testimony establishes that he had been involved in previous
disputes which Twiss claims were, in accumulation with the "commotion" of May 8, the
reason for the discharge.
Under these circumstances the Trial Examiner finds that the preponderance of credible
evidence does not sustain the allegations of the complaint as to Martin's discharge.
C. Assistance given IBEW
The evidence is mainly undisputed as to the single incident which General Counsel con-
tends was--as to MEW--in violation of Section 8 (a) (2) of the Act.
In substance the facts are that sometime during May 8 (the record does not disclose
whether before or after Martin's dismissal) Twiss, who is also general manager of another
nearby plant, not here involved, told two IBEW officers at that plant that they had his per-
mission to organize employees at Associated Machine and take whatever time was necessary.
Viewed starkly the offer, of course, must be considered as assistance of a sort. But the
Trial Examiner is not aware that the Board has found such assistance, standing alone,
as violative of the Act to an extent warranting a cease and desist order--unless similar
permission has been denied a competing labor organization. Here there is no evidence
that such permission had been either requested or denied the Union. And the evidence
does establish that the same IBEW officers had asked management, before May 8, for the
permission granted that day.
Under these circumstances, the Trial Examiner finds the incident too isolated and trivial
to support the allegations of the complaint.
D. Domination and support of Associated
Machines, Inc. Committee
The evidence relating to this issue is also in small dispute. The following facts are mainly
revealed in documents prepared under the direction of General Manager Twiss himself.
Management summoned all employees to a meeting early the morning of May 23, 1953, and
paid them for their attendance. i
According to a notice posted by Superintendent Jack Twiss the following Monday events
at the May 23 meeting were, in part:
The Company (General Manager Twiss) suggested to the employees that they elect
a committee of four to represent them. One man for three (3) months, one man for
six (6) months, one man for nine (9) months and one man for twelve (12) months. There-
after, on the expiration of a committee man's term another man would be elected
for twelve (12) months. The committee would meet with the Company on the fifteenth
(15) and the last day of the month or the closest working day to those dates. This sys-
tem of representation would remain in effect so long as it is agreeable to a majority
of employees of Associated Machines.
The same notice announced, over the Superintendent's signature, that the first meeting of
the Committee would be held in the General Manager's office on May 26.
The employees elected their representatives as "suggested" by Twiss, and they met
with management as instructed on May 26. Grievances and working conditions were settled
and discussed at the May 26 meeting and at later meetings also held in Twiss' office on
June 15, July 1 and 15, and August 20.
'Only 2 employees of all 3 shifts failed to attend.
1 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So far as the record shows the Committee is still in existence. In any event it is clear
that it has never been disestablished by the Respondent as the "system of representation"
announced in the first notice.
The committee members were paid for their attandance at meetings by t},i Respondent.
Minutes were taken by Twiss' secretary, posted and distributed by the Respondent.
The Respondent Associated Machines contends that the Committee is not a Lih"* or-
ganization. The language of the Act deprives the claim of merit. Section 2 (5) defines a
labor organization as
... any organization of any kind, . . . or employee representation committee ... in
which employees participate and which exists for the purpose in whole or in part, of
dealing with employers concerning grievances ..... or conditions of work.
It is clear and the Trial Examiner finds that the Committee was created and formed at
the instigation of the Respondent Associated Machines, and that the Respondent has dominated
and supported both its formation and administration, and that thereby the Respondent has
interfered with, restrained, and coerced its employees in the exercise of rights guaranteed
by the Act.
E. The issue as to Essex Wire
The complaint, as issued, runs against both Essex Wire and Associated Machines. Ruling
was reserved at the close of the hearing upon a motion to dismiss as to Essex Wire, on
the ground that the proof does not establish that Essex is the employer of the employees
concerned.
In substance, it appears that until December 31, 1952, Associated Machines was owned
and operated as a division by Essex Wire. At that time Associated formed a separate cor-
poration, purchasing the buildings and machinery. The immediate management-employee
relationship, however, remained undisturbed, Twiss continuing as general manager. Three
individuals hold the same executive offices in each: A. E. Holton as president, M. A. Roesler
as vice president and treasurer, and Walter Probst as secretary. It is plain, in the sim-
plest analysis, that Twiss, in control of labor relations policies at Associated Machines,
is in turn controlled by Holton, who heads both companies, and that the officers of Essex
may effectively guide the policies of Associated Machines.
Yet the Trial Examiner is not convinced, by this record, that Essex has exercised such
employer-employee control. On the contrary, it appears that a contractual relationship
between IBEW and Associated Machines existing when the latter was a division of Essex
ceased soon after it became a separate corporation.
Counsel for both parties have ably briefed their respective positions. The Trial Examiner
is persuaded that as to the issues in this proceeding counsel for the Respondent Essex
has the better argument. The recommended order below, it appears to the Trial Examiner,
is suficient to remedy the unfair labor practices herein found. It runs as to the officers
of Associated Machines, its successors and agents, whether certain individuals continue
or not to be at the same time officers of Essex.
The motion to dismiss as to Essex is therefore granted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Associated Machines, set forth in section III above, occur-
ring in connection with the operations of the said Respondent in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent Associated Machines has engaged in certain unfair labor
practices, the Trial Examiner will recommend that it cease and desist therefrom and
take affirmative action to effectuate the policies of the Act.
It has been found that the said Respondent has interfered with, sponsored, and dominated
the formation and administration of the Committee and has assisted and contributed sup-
port thereto. The effect and consequences of the Respondents' interference with, domination
ESSEX WIRE AND ASSOCIATED MACHINES, INC. 1159
and support of the Committee, as well as its continued recognition of it as the bargaining
representative of its employees, constitute a continuing obstacle to the free exercise by
its employees of their right to self-organization and to bargain collectively through repre-
sentatives of their own choosing. Because of the Respondent's illegal conduct with regard
to the Committee, the Committee is incapable of serving the Respondents' employees' as
a genuine collective-bargaining agency. Accordingly, the Trial Examiner will recommend
that the Respondent withdraw all recognition from the Committee, as the representative
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 Committee as such representative.
Although the agreement quoted above appears to be unilateral, it continues to be a means
whereby the Respondent has utilized an employer -dominated organization to frustrate
self-organization and defeat genuine collective bargaining by its employees. It will there-
fore be recommended that the Respondent cease giving effect to any agreement between
it and the Committee, or to any modification or extension thereof.
Since it appears that the Respondent's illegal conduct of interference, restraint, and
coercion stems from its conduct in dominating, interfering with, and supporting the for-
mation and administration of the Committee, it will be recommended only that the Respond-
ent cease and desist from engaging in like or related conduct of interference with the re-
presentation of its employees through a labor organization of their own choosing.2
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, C,I.O., International Brotherhood of Electrical
Workers, AFL, and Associated Machines, Inc. Committee are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of Associated
Machines, Inc. Committee and by contributing support thereto the Respondent Associated
Machines has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of the rights
guaranteed in Section 7 of the Act, the said Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of Section
2 (6) and (7) of the Act.
5 By the discharge of Ray Martin and by assistance given the IBEW the said Respondent
has not engaged in unfair labor practices within the meaning of the Act.
(Recommendations omitted from publication.]
2 Braswell Motor Freight Lines , 101 NLRB 1151.
APPENDIX
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 HEREBY disestablish Associated Machines , Inc Committee as the representa-
tive of any of our employees for the purpose of dealing with us concerning grievances,
labor disputes , wages , rates of pay, hours of employment , or other conditions of em-
ployment , and we will not recognize it or any successor thereto for any of the above
purposes.
WE WILL NOT dominate or interfere with the formation or administration of any
labor organization or contribute financial support to it.
WE WILL NOT give effect to any and all agreements and contracts , supplements
thereto or modifications thereof , or any superseding contract with the above-named
labor organization.
1 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT otherwise interfere with the representation of our employees tllrough
a labor organization of their own choosing.
ASSOCIATED MACHINES, INC.,
Employer.
Dated ................ By..............................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be al-
tered, defaced, or covered by any other material.
HENRY HEIDE, INC. and CANDY AND CONFECTIONERY
UNION, LOCAL 50, RETAIL, WHOLESALE AND DEPART-
MENT STORE UNION, CIO and CANDY AND CONFECTION-
ERY WORKERS UNION, LOCAL 452, BAKERY AND CONFEC-
TIONERY WORKERS INTERNATIONAL UNION OF
AMERICA, AFL, Partytothe Contract. Cases Nos . 2-CA-2554
and 2 -CA-2907. February 18, 1954
DECISION AND ORDER
On April 8, 1953, Trial Examiner Ralph Winkler 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 and Local 452 filed exceptions to
the Intermediate Report and supporting briefs. On September
22, 1953, the Board at Washington, D. C., heard oral argu-
ment-'
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 Intermediate Report, the exceptions and
briefs, the oral argument, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations except insofar as they are inconsistent
with the findings and conclusions set forth below.
1. The Trial Examiner found that on and after February
19, 1952, the Respondent violated Section 8 (a) (5) and (1) of
the Act by (a) filing a petition during Local 50's certification
year and refusing to bargain with Local 50 while petitions
were pending during that period; (b) adamantly limiting the
duration of any contract to October 9, 1952, and conditioning
bargaining on that basis; and (c) terminating its recognition
1 At the close of the oral argument, Local 50 requested permission to withdraw a motion
to reopen the hearing before the Trial Examiner, which it had filed with the Board on May
11, 1953. The request is hereby granted.
107 NLRB No. 258.