Food Machinery Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1942

41 N.L.R.B. 1428 (N.L.R.B. 1942)

In the Matter Of FOOD MACHINERY CORPORATION and INTERNATIONAL.
ASSOCIATION OF MACHINISTS , A. F. of L.
Case No. C-205..-Decided June 30, 19/2
Jurisdiction: agricultural machinery manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: separate allegation concerning, dismissed-
Company-dominated Unions: successor organization to predecessor-dominated
organization-no disestablishment of predecessor and no cleavage between
predecessor and successor-interference by supervisory employees-support :
check-off, closed, shop, use of company facilities, carrying on of business on
company time and property, vending machine proceeds, picnics
Collective Bargaining: union's majority established by membership, applications
for membership, and petition designating union; signing of an application
card held sufficient designation ; failure to sign petition held not a revocation
of prior designation-refusal to bargain because of contract with dominated
organization.
Remedial Orders : dominated organization disestablished; contract with domi-
nated organization abrogated ; reimbursement of dues and initiation fees-
checked off ; employer ordered to bargain collectively with the union.
Unit Appropriate for Collective Bargaining : production and maintenance em-
ployees, excluding executives, supervisory employees, clerical workers, drafts-
men, experimental department, foundry, and pattern shop ; controversy as to.
'Mr. John Paul Jennings, for the Board.
Rogers and Clark, by Mr. Webster Clark, of San Francisco, Calif.,
and Rea, Free, Jacka, and Frasse, by Mr. W. W. Jacka, of San Jose,
Calif., for the respondent.
Messrs. Harvey C. Miller and Robert E. Hayes, of San Jose, Calif.,.
for the Association.
Mr. Herman J. DeKoven, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International'
Association of Machinists, Local No. 504, A. F. of L.,1 herein called
'Designated in the charges and amended charges as "International Association of-
Machinists , A. F. L."
41 N. L. R. B, No. 251.
1428
FOOD MACHINERY CORPORATION 1429
the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the- Twentieth Region (San
Francisco, California), issued its complaint, dated July 24, 1941,
against Food Machinery Corporation, San Jose, California, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in'unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the, complaint, together with notice of hearing
thereon, were duly served upon the respondent, the Union, and The
Employees' Association of the Food Machinery Corporation, San
Jose Plants, herein called the Association.
In respect to the unfair labor practices, the complaint, as amended 2
alleged in substance that the respondent : (1) dominated and inter•
fered with the formation and administration of, and contributed
financial and other support to, Factory Employees' Committee of
Food Machinery Corporation, herein referred to as the F. E. C.; (2)
in November and December 1937 instigated, through the F. E. C., the
formation of the Association, and thereafter dominated and interfered
with the formation and administration of, and contributed financial
and other support to, the Association; (3) on various dates between
February 4 and July 30, 1941, and thereafter, refused to bargain col-
lectively with the Union which had been designated as their exclusive
bargaining representative by a majority of the respondent's employees
in an appropriate unit at its plant at San Jose, California; (4) urged
its foundry employees, prior to the election held among them on
November 29, 1937, to become members of the Association and not to
become or remain members of the International Molders' Union,
Local No. 164, A. F. of L., herein called the Molders' Union, or any
other affiliated labor organization, to vote for the Association and
not for the Molders' Union in such election and threatened to remove
its operations from San Jose if they selected the Molders' Union or
any other affiliated labor organization as their bargaining representa-
tive; and (5) by these and by other acts interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
The respondent filed an answer in which it denied that it had
engaged in any unfair labor practices and affirmatively alleged that
it had refused to bargain with the Union because it was bound by
an agreement with the Association. The Association also filed an
answer in which it averred that it had been designated as bargaining
agent by a majority of the respondent's employees at the San Jose
2 During the course of the hearing, the complaint was amended in regaid to the descrip-
tion of the appropriate unit and the dates of the alleged refusals to bargain.
1430 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
plant and had entered into an agreement with the respondent which.
was in full force and effect. , ' -
Pursuant to notice, a hearing was held at San Jose, California,.
from August -5 to August 20, 1941, inclusive, before Thomas S.
Wilson, the Trial Examiner. duly designated by the, Acting Chief'
Trial Examiner. The Board, the respondent, and the Association
were represented by counsel and participated in the ' hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and _
to introduce evidence bearing on the issues was afforded all parties..
At the close of the hearing, counsel for the respondent and counsel
for the Association moved to dismiss the complaint. The Trial Ex-
aminer reserved ruling thereon but denied' the motions in his Inter-
mediate Report: ' Various -rulings were made by the Trial Examiner
during the course of the hearing on other motions and on objections.
to the admission of evidence. The' Board has reviewed the rulings
of the Trial Examiner' and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. After the hearing, the
respondent and ' counsel, for the Board filed briefs with the Trial
Examiner.
On January 8, 1942, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in and was engaging
in unfair labor practices, within the meaning of Section 8'(1), (2),.
and (5) and Section 2 (6) and (7) of the Act, and recommended,
that the respondent cease and desist therefrom and take certain affirm-
ative action in order to effectuate the policies of the Act. There-
after, the respondent filed exceptions to the Intermediate Report
and a brief. Pursuant to notice, a hearing for the purpose of oral
argument was held on May 14, 1942, before- the Board, at Washing-
ton, D. C. The respondent and the Union were represented and
participated in the hearing.
The Board has considered the exceptions and briefs filed by the
respondent and finds the exceptions to be without merit insofar as.
they are inconsistent with the findings, conclusions, and order set
forth below.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Food Machinery Corporation, Is a Delaware cor-
poration having its principal office and place of business in San Jose,
California, and maintaining other offices and places of business in
various States of the United States. The present proceeding in-
FOOD MACHINERY-CORPORATION - 1431
volves only the respondent's plant at San Jose, California, where it
is engaged in the business of manufacturing and :assembling various
types of agricultural machinery, including machinery used in the
preparation and packing of canned and dried food products.
During the fiscal year ending September 30, 1940, the respondent
purchased raw materials for use in its San Jose plant valued at
$476,000, approximately 75 percent of which was'shipped from points
outside the State of California. During the same period, the respond-
ent sold finished products of its San Jose plant valued at $1,687,000,
approximately 30 percent of which was shipped to points outside
the State of California.
The respondent admits that it is engaged in commerce within 'the
meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Local No. 504, is a labor
organization affiliated with the American Federation of Labor and
admits to membership -employees of the respondent at its San Jose
plant. -
The Employees' Association of the Food Machinery Corporation,
San Jose Plants, is an unaffiliated labor organization and admits to
membership only employees of the respondent at its San Jose plant.
Factory Employees' Committee of Food Machinery Corporation
was an unaffiliated labor organization and admitted to membership
only employees of the respondent at its San Jose plant.
III. THE UNFAIR LABOR PRACTICES
A. The F. E. C.
In the fall of 1933, J. D. Crummey, then president of the re-
spondent, addressed the respondent's employees in the San Jose
plant. He discussed the National Industrial Recovery Act and stated
that he thought' the employees should have a committee, composed
of representatives elected from each department, to represent them
in discussions of grievances and wage agreements with the respond-
ent. Pursuant to this suggestion, the employees elected representa-
tives from various departments to a committee which became known
as the F. E. C. The first meeting of the F. E. C. recorded in its
minutes was held on November 7, 1933. Thereafter, and at least
in one instance at the suggestion of the respondent,3 the employees
8
The minutes of the F. E. C. for September 7, 1934, recite : "Secretary [of the
F. E. C.] reported that she had seen Mr. Crummey and he advised that it was the
present committee's job to arrange for the election of a new committee" Pursuant
to Crummey's suggestion , the F. E. C. then arranged for the holding of an election
of committeemen for 1935.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the various voting divisions which were set up, annually elected
representatives to the F. E. C:, which served as the bargaining agency
for all employees. There were no formal requirements for member-
ship in the F. E. C., and all employees at the plant were entitled
to vote in the annual elections by virtue of their employment by the
respondent.
No provision had been made for the payment of dues to the
F. E. C. It had no treasury and no independent source of funds'
and relied exclusively upon the respondent for support and mainte-
nance. Elections of committeemen, as well as meetings of the
F. E. C., were held at the plant, often during working hours. Not
until November 1937 were any deductions made by the respondent
from the wages of the committeemen for time spent at F. E. C.
meetings. In fact, Crummey told the committeemen first elected
that no deductions for time so spent would be made. The F. E. C.
also used the respondent's stationery, typewriters, mimeograph ma-
chine, bulletin boards, and phone and mailing systems in the conduct,
of its affairs. Irene Roderick, secretary of the F. E. C. for 1937,
testified that she prepared minutes and notices for the F. E. C. during
working hours, and that the respondent made no deductions from
her salary for time so spent.
Further, various of the respondent's supervisory employees actively
participated in the affairs of the F. E. C. Thus, L. H. Chrisman,
hereinafter found to be a supervisory employee ,4 was a committeeman
for 1934, the first year of the F. E. C.'s operation. D. E. Martin,
also found below to be a supervisory employee,' was chairman of
the F. E. C. for 1935 and a committeeman for 1936. John Shear, who,
at least during part of 1936 and 1937, acted as assistant to the fore-
man of the job shop in the John Bean Division of the plants and
was a supervisory, employee, was chairman of the F. E. C. for these
2 years. -Also, the respondent's foremen assisted in notifying the
committeemen of F. E. C. meetings.
It is clear -that the respondent dominated and supported the
F. E. C. It was initiated by the respondent and looked to the latter
for guidance. Supervisory employees of the respondent actively
participated in its affairs . Further, the respondent permitted the
4'See subsection C-i, Infra -
5 See footnote 4, supra
6 The respondent 's operations at its San Jose plant are divided into three divisions-
the Anderson-Barngrover Division , herein called the A. B Division , which manufactures
machinery and equipment for canning establishments , the Bean - Cutler Division, which
manufactures spraying and other agricultural machinery and equipment , and a foundry,
which makes castings for both of these divisions and for otber business establishments.
The Bean -Cutler Division , as presently organized , is the result of an addition to a division
formerly known as the John Bean Division. For purposes of convenience, both the
Bean-Cutler Division and its , predecessor , the ^ John ' Bean Division , are herein referred
to as the J. B Division
FOOD MACHINERY CORPORATION 1433
F. E. C. to hold elections and meetings and performed various other
functions on the respondent's time and property and to use the re-
spondent's stationery, equipment, and other facilities. Since the
F. E. C. had no independent source of funds and was supported com-
pletely by the respondent, its operation was wholly dependent upon
the respondent's maintenance of it as an organization for its em-
ployees.
That the respondent itself viewed the F. E. C. not as a genuine
bargaining agency but merely as an instrument to stave off union-
ization of its employees by a bona fide labor organization is well
illustrated by the F. E. C.'s minutes of September 7, 1934, which
recite :
.Mr. Crummey came in at this point and gave us an interesting
account of his experiences at Hoopeston plant during a strike.
He suggested that we consider "what we do that a Union does
not do, and what does a Union do that we don't."
Moreover, during a conversation in April 1936 between a representa-
tive of the Molders' Union, which attempted to organize the foundry
employees, and F. L. Burrell, vice president of the respondent and
manager of the A. B. Division, Burrell stated : "We haven't any real
strenuous objection to the Molders' Union, but if one department was
unionized it would be an entering wedge and the other departments
probably would in time be unionized too."
While the respondent admits that under the decided cases the
F. E. C. could be found to have been company-dominated, it points
to the minutes of the F. E. C. of June 10, 1935, which read in part
as follows :
A special meeting was held June 10 to ascertain result of em-
ployees vote as to whether or not they wished to retain the Com-
mittee now that there is no N. R. A. It was voted that the
Committee should be retained.
and urges that the F. E. C. was thus continued by "the free and
voluntary act of the majority of the employees." However, since
approval by employees of a company-dominated organization does
not reflect a free choice, such approval cannot alter its status as a
company-dominated organization within the meaning of the Act 7
We find, as did the Trial Examiner, that from July 5, 1935, the
effective date of the Act, until the date of the discontinuance of the
F. E. C. in December 1937, as discussed below, the respondent domi-
nated and interfered with the administration of the F. E. C. and
7'National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Co.
908 U. S. 241.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contributed financial and, other support to it, and by such activity
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.8
B. The Association
In September 1937 the Molders' Union, the Sheet Metal Workers'
Union, and the Union, all affiliated with the America Federation of
Labor, initiated a drive to organize the respondent's employees.
Handbills were distributed around the plant and open meetings were
held at the Labor Temple in San Jose. On November 3, 1937, the
Molders' Union filed with the Regional Office of the Board a petition
requesting certification as the representative of the employees' in the
foundry. Notice of the filing of this petition was given the respond-
ent by the Regional Office by letter dated November 4, 1937.
On November 8, immediately following. a meeting between the
F. E. C. committeemen and certain executives of the respondent, the
committeemen of the F. E. C., according to its minutes :
discussed Labor conditions whether we should form an employee
union of our own, and decided we would go accross [sic] the
street right after 5: 00 o ckock [sic] and discuss the matter with
the employees.
At 5 o'clock that evening there was a general meeting of employees
in the respondent's job shop, which was called by the F. E. C. com-
mitteemen, during which there was discussion of the possibility of a
Board election and the disadvantages of "having a trade union in
the shop."
On the following day, Tuesday, November 9, the F. E. C. commit-
teemen met again, and the minutes recite :
We discussed labor conditions further and decided at that time
we would. call an election for Tuesday night after 5: 00 o'clock.
They decided to let the men vote to see if they wanted our present
shop committee to continue as the official agent for the purpose of
bargaining collectively with the Company.
As they left the plant that evening, the employees voted 191 for and
48 against the proposition "that our present shop committee continue
as our official agent for the purpose of bargaining collectively with
the management."
It appears, however, that the committeemen contemplated the for-
mation of•the Association rather than the continuance of the F. E. C.
8Insofar as this decision has dealt with events occurring prior to the effective date
of the Act, it has considered them not as constituting unfair labor practices, but rather
with regard to their bearing upon the issues raised by the complaint Cf. Natsongl Labor
Relations Board v Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241.
FOOD \1ACHI' EIRY CORPORATION 1435
as it then .operated.9 Roderick, secretary of the F. E. C. for 1937,
secured. from Ogden, Sells, vice president and sales manager of the
respondent, the name and address of one Collins, the president of
"Employees' Association," an unaffiliated labor organization at the
respondent's -plant in Riverside, California, and on November 10,
1937, Roderick wrote to Collins in part as follows :
On account of labor troubles that are starting up this way
it is the desire of the employees of The Food Machinery Corpo-
ration of San Jose to start a charter of their own. We want to
know if you could send us a copy of your charter and by laws
so that we can get an idea of what they consist and it might
save us the expense of hiring a lawyer and will serve the purpose
just as well.
Another meeting of the F. E. C. committeemen was held at the
plant on the morning of November 16, 1937. According to the min-
utes of this meeting :
It .was discussed forming an independent union ... We
decided to call. a meeting-up town of all the employees in Dunne
Hall in the Civic Auditorium for Monday Night November 22nd,
and-have some man who could talk on Independent Union, C. I.
0. and A. F. of L. who could explain the advantageous and
disadvantageous [sic] of each.
'Although these minutes recite that there would be discussed the ad-
vantages and disadvantages of affiliation with an independent union,
the C. I. 0., or the A. F. of L., apparently leaving open the question
of which group would be chosen, the notice posted in the plant an-
nouncing the meeting of November 22 read :
There will be a meeting in Dunne Hall A the Civic Auditorium,
Monday night Nov. 22nd at 7:30 o'clock. The purpose of which
will be to adopt a charter and by-laws to govern the "Employees
Association" which was confirmed by the employees vote of Nov.
9th, 1937.
On November 19, 1937, an agreement for a consent election among
the foundry employees was signed by the respondent, the Molders'
Union, and "Employees Association." 10 Mike McDonald, the
O Roderick, in testifying about the F. E. C.'s decision at its November 9 meeting to
call for a vote among the employees , stated :
The Committee talked this over, and that was to be taken up with the employees
to see what they wanted , so that we should bold a vote to see whether they wanted
to form an Association. They felt that the one they had wasn't binding enough
to keep a union out, that if we paid dues and had our meeting ball of our own,
that it would be more binding and they wouldn 't interfere then
?o In this election , which was conducted by the Board on November 29, 1937, the Associa-
tion received a majority of the votes cast I
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,F. E. C. representative of the foundry employees, signed the agree-
.merft for "Employees Association" after, being duly authorized to-
do so by the F. E. C.
About 200 employees attended the meeting of November 22. Shear,
chairman of the F. E. C., opened the meeting by stating that its-
purpose was "to form an employees association." One of the em-
ployees then read a portion of an article given him by Shear, which
had appeared in the "American Machinist," which stressed the legal-
ity of a "factory union." After two speeches in favor of an em-
ployees' association, the assembled employees voted 167 to 19 to•
"form an association." It was voted to have the F. E. C. committee-
men and an additional representative from each department act as
a committee to draw up a constitution and bylaws, and the addi-
tional representatives were elected at the meeting. The minutes of
'this meeting were signed by Roderick, -as "Secretary of Factory' Em-
ployees Committee." -
Between November 22 and December 6, 1937, 'the constitution com-
mittee held five or six meetings at the respondent's plant. It drafted
a constitution for the Association, using as a model a copy of the
Constitution of the "Employees' Association" at the respondent's
Riverside plant which Roderick had received in response to her let-
ter of November 10.
On about December 1, 1937, William Rickers, a member of the-
constitution committee, at the direction of that committee, asked
Burrell, vice president of the respondent and manager of the A. B.
'Division, whether the respondent would agree to a check-off of dues
on behalf of the Association. Although the Association at the time
had no members and had made no showing to the-respondent that
it represented anyone, Burrell, according to Rickers' uncontradicted
testimony, which we credit, as did the Trial Examiner, told Rickers,
sometime between December 1 and 4 that the respondent would grant
the check-off. Thereupon, Rickers, on December 4, ordered the
.printing of membership application cards for the Association, which
contained an authorization for the check-off of dues and initiation
fees by the respondent.
On the evening of December 6, 1937, a general meeting of em-
ployees was held at the San Jose High School. Various provisions
of the constitution prepared by the constitution committee were
passed on. As provided in the constitution, membership in the Asso-
ciation was restricted to employees at the plant. At this meeting,
and thereafter, members of the constitution committee, including
F. E. C. committeemen, solicited and obtained many signatures to
application cards for the Association.
FOOD MACHINERY CORPORATION 1437
Sometime between December 6 and December 22, 1937, elections
or representatives to -the Executive Council" of the Association
were held in the plant. Three of the six F. E. C. committeemen for
1937 were elected to the Executive Council for 1938. Following the
F. E. C.'s custom of holding a joint meeting of the outgoing and
incoming committeemen at which officers for the ensuing year would
be elected, the F. E. C. committeemen for 1937 and the Executive
,Council of the Association for 1938 held a joint meeting in the
plant on December 22, 1937, at which 'Shear, chairman of the F. E. C.
for 1937, was elected president, and William Bickers, member of
the constitution committee, was elected secretary-treasurer of the
Association for 1938. At this meeting, Roderick turned over to
Bickers all the records of the F. E. C., as well as the signed applica-
tion cards of the Association which she had in her possession as,
secretary of the F. E. C. Following also the practice in previous
years of having the secretary of the outgoing F. E. C. committee
advise the respondent of the names of the newly elected committee-
men, Roderick submitted to the respondent, on -December 23, the,
names.of the persons who had been "elected for the Employees Asso-
ciation for 1938." In a letter of December, 27, addressed to Roderick
as secretary of the F. E. C., in reply to her letter of December 23,
the respondent's executive vice president stated that the respondent
was sorry to learn that "some of the members of the committee will
not be with us next year." This correspondence of December 23 and
27 marked the last incident in which the F. E. C. played a part.
'There was no formal disbandment or dissolution of the F. E. C.,
nor was it at any time disestablished by the respondent.
It,is clear, from the foregoing, and we find, as did 'the Trial Ex-
aminer, that the Association was a successor to the F. E. C. The
latter instigated and inspired the formation of the Association at
various of its meetings held in November 1937. The F. E. C. com-
mitteemen served on the committee which drafted the Association's
constitution and which secured the respondent's consent to the check-
.off and solicited members for the Association. It was the secretary
of the F. E. C. who secured the constitution of another organization
which was used as a model for the Association's constitution. Fur-
ther, the agreement of November 19, 1937, for the consent election
held among the foundry employees was signed for the Association
by an F. E. C. committeeman pursuant to authorization by the
F. E. C. As admitted by Rickers :'
Someone had to look after the organization [meaning the
Association], and they [meaning the F. E. C.] did until the
new members took office,, or until a new set of officials were
working . .
31 The Executive Council is referred to in the Association's bylaws as "Board of
Directors." -
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the Association was a mere continuation-of the F . E. C. is
further evidenced by the composition of the governing bodies of the
outgoing F. E. C: and the incoming Association . Thus, three of the
sig F: E . C. committeemen for 1937 were members of the Executive
Council of the Association for 1938, which was composed of seven
representatives , and the chairman of the F. E. C. for 1937 served as
president of the Association for 1938. The officers of the Association
for 1938 were selected at a joint meeting of the F. E. C. committee-
men and the Executive Council of the Association : Further, the
Association inherited all the records of the F. E. C. The similarity
of operation , in many respects, between the F. E. C. and the Associa-
tion is also significant . Thus, the governing bodies of both' were
elected annually from various voting divisions , each of which chose
one representative , and the elections of the members of the Executive
Council were, conducted in the same manner as those of the F. E. C.
committeemen . Finally, it is to be observed that while there was no
formal dissolution of the F. E. C., the latter ceased functioning at
about the time the Association was launched.
That the respondent itself recognized t continuity and identity
between the F. E. C. and the Association is manifested by the follow-
ing testimony of Burrell :
A. I have no way of fixing the date between the Factory Em-
ployees Committee and the Association Committee.
We had meetings with the Factory Employees Committee late
in 1937, in the year 1937,, and we had meetings with the Asso-
ciation Committee in 1938. Just where that stopped and started
I have no idea.
* * *
Q.... Is it [the F. E. C.] still in existence?
A. Well, the Association is functioning. now the same as that
Committee did. -
The respondent at no time disestablished the F . E. C. and did
nothing "to mark the separation between the two [organizations],
and publicly to deprive the successor of the advantage of its appar-
ently continued favor.'.' 12 Under such circumstances , we find that
the Association was not the freely chosen representative of the em-
ployees but-was a continuation of and tainted with the same defects
as the Company instigated and dominated F. E. C.
Aside from its failure to disavow its preference for the Associa-
tion, the respondent dominated the Association in other ways. Thus,
12 Westinghouse Electric & Manufacturing Co. v. National Labor Relations - Board, 112
F. (2d) 657 ( C C. A. 2 ), aff'd in 312 U. S 660; National Labor Relations Board V. New-
port News Shipbuilding & Dry Dock Co ., 308 U. S. 241.
FOOD MACHINERY CORPORATION 1439
several of the respondent's supervisory employees actively partici-
pated in and interfered with the affairs of the Association. D. E.
Martin, assistant to the foreman of the machine shop in the A. B.
Division and C. H. Keesling, assistant to the superintendent of the
A. B. Division and hereinafter found, to be supervisory employees,13
are members of the Association and have attended some of its meet-
ings. L. H..Chrisman, an assistant to the foreman of the sheet metal
department of the A. B. Division and hereinafter found to be a
supervisory employee,'' has served as a member of 'the Executive
Council of the Association since February 1941.
At an Association meeting of April 1,'1941, at which the subject,
of disbandment of the Association was scheduled for discussion,
Assistant Foreman Chrisman, according to the minutes of the Asso-
ciation, stated "that many of the members had gotten together and
obtained the services of Mr. Harvey Miller, a local attorney, and he
[Chrisman] was sure that Mr. Miller could clear the minds ,of many
of the members of questions that so far have been unanswered." The
minutes continue as follows :
The members were in favor of having Mr. Miller come in. Mr.
Miller explained that our by-laws and constitution. were per-
fectly legal and if we were to dissolve we proble [sic] could not
draw up a new Association which could, be better written than
the one we now have . . . After a great deal of discussion a
motion was made that a notice be posted to the effect that after
a period of two weeks we would,vote to see whether we should
dissolve the Association or not.
Thereafter, 70, voted in favor of, and 53 against, continuing the
Association. Miller was later retained as attorney for the Asso-
ciation.
According to the minutes of a meeting of the Executive Council of
the Association held on May 11, 1939, the Executive Council, unable
itself to decide whether, because of an organizational change in the
foundry, a certain grievance filed with the Association by one of
the foundry employees came within the "jurisdiction" of the Associa-
tion, "decided to call in Mr. Anderson [superintendent of the A. B.
Division] and find out whether the foundry was an independent-
organization or still a part of Food Machinery [respondent]." After
explaining the relation between the foundry and the respondent,
Superintendent Anderson, according to these minutes, stated that
"he did not see any reason why the foundry should not continue
under the same aggreement [sic] as the other depts and he hoped
!'See subsection C-1, infra.
14 See footnote 13, supra.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they would continue their membership in the Ass'n." According to
the uncontroverted testimony of William ,Cooke, an employee, which
we credit, as did the Trial Examiner, when the Executive Council.
of the Association was negotiating with the respondent, in the 'fall.
of 1939, for a wage increase for all the employees, Matthews, man-
ager of the J. B. Division, called a meeting of the employees in-his
division, at which he told them, that. he could not give them an in-.
crease and added "that he thought the employees with, their inde
pendent association had made very nice progress, and he felt that:
they could continue to do so, and that was his hope that they did.")
, The respondent also rendered considerable assistance and support
to the Association: As has already been ncted, the respondent, even'
prior to the formation of the Association, and at a time when the
latter had no membership whatsoever,' consented to a check-off on,
behalf of the Association. Dues and initiation fees of the Associa-
tion have accordingly been checked off by the respondent since De-
cember 29, 1937,15 though no provision for such check-off was embodied)
in the contract between the respondent and the Association. Further,
to insure and facilitate the successful operation of the Association,
the respondent, according to the minutes of the Association, advised
the Executive Council shortly after the formation of the Association
that it would agree to the Association's request for a "closed-shop,"
and on March 9, 1938, the respondent entered into a closed-shop con-
tract with the Association. This contract covered wages, seniority
rights, and other working conditions, and also provided that the re-
spondent's profit-sharing and life-insurance systems would continue
and that a, hospitalization program would be instituted. By its terms,
this agreement was effective until October 1, 1938, and thereafter from
year to year, subject to 30 days' notice of termination prior to any
expiration date and also subject to amendment on 30 days' notice.
According to the uncontroverted and credible testimony of several
employees, annual elections of representatives to the Executive Coun-
cil of the Association were held at the plant and sometimes extended
into working hours; the many regular and special meetings of the`
Executive Council were held at the plant; solicitation of signatures
to membership application cards of the Association was carried on
in the plant during working hours; and the Association used the
respondent's stationery, typewriter, ditto machine, vault, and bulletin
boards in the conduct of its affairs.
Further assistance was rendered by the respondent to the Associa-,
Lion by the latter's receipt of the respondent's share of the proceeds
of vending machines installed at the plant. Prior to the formation
15 Approximately three or four employees paid their dues and initiation fees directly
to the Association.
FOOD MACHINERY CORPORATION 1441
of the Association, the respondent's share of the proceeds from the
vending machines in the J. B. Division was received by the respondent
and carried on its books as a flower fund ; those from the A. B. Di-
vision were not carried on its books but were paid over to Emery
T. Mather, a supervisory employee in charge of the planning and
rate-setting departments in the A. B. Division. Mather put the
A. B. Division proceeds into a flower fund, to which the employees
contributed from time to time. According to the uncontradicted
testimony of the respondent's controller, upon the formation of the
Association, Mather turned over to the Association, upon the latter's
request, the balance in this fund-$16.88, and thereafter the Asso-
ciation, with the consent of Mather and Caro, the respondent's chief
accountant, collected the respondent's share of the proceeds from the
vending machines in both the A. B. and J. B. Divisions. The minutes
of the Association disclose that from 1938 to March 1940, the sums
so collected by it totaled approximately $137. The amount received
by the Association from the vending machines during 1939 constituted
approximately 10 per cent of its total income for that year.
The respondent urges that the Association simply "appropriated"
these sums. This contention is clearly without merit. The Asso-
ciation collected these proceeds with the knowledge and consent of
Mather and Caro, who were closely identified with management.
Nor do we believe that such sums were received by the Association
without the knowledge and acquiescence of other of the respondent's
officials. Moreover, the property on which the vending machines
were installed belonged to the respondent; the respondent had knowl- '
edge of their installation; 16 and it was to the respondent that the
percentage paid for the privilege of installing these machines was
owing. We find, as did the Trial Examiner, that the respondent
permitted the Association to collect the vending machine proceeds and
thereby contributed financial support to it.
In February 1940, the Association requested the respondent to turn
over to it the balance in the flower fund derived from the proceeds
from the vending machines in the J. B. Division which the respond-
ent had received prior to the formation of the Association. ' This
request caused the respondent, in March 1940, to suspend the Asso-
ciation's further collection i of the vending machine proceeds 17 and
to raise the entire question with the Regional Office of the Board,
which advised the respondent that it was improper to turn these
"In fact , Matthews , manager of the J. B Division , expressly authorized, the installa-
tion of one of ' the vending machines , and the installation of some of the others was
approved by E D Myers, then controller of the respondent
"The sums thus held in abeyance were later turned over to the committee referred
to below.
463892-42-vol 41-91
i
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
funds over to the Association . 1' The respondent thereafter notified
the Association that the proceeds from these machines would have to
be placed in a special flower fund and agreed with the Association
that this fund was to be administered by a committee of three, two
to be appointed by the Association and one by the respondent. Ac-
cording to the uncontradicted testimony of the respondent 's president
and controller , since approximately April of 1940 , the fund has been
administereddn this fashion . Since two of the three members of this
committee have been Association appointees , it is apparent that the
Association has retained control over the administration of this fund.
We accordingly find, as did the Trial , Examiner, that the financial,
assistance rendered by the respondent to the Association through
the latter 's receipt of vending machine proceeds continued' after
March 1940.
The respondent contributed further financial support to the Asso-
ciation by defraying part of the expense of picnics held annually
among its employees , which, according to the minutes of the Asso-
ciation; were sponsored by the latter . According to these minutes
and the uncontroverted testimony of the respondent 's president, the
respondent 's contribution to these picnics ranged from approximately
$200 to $300 annually.
We find, as did the Trial Examiner , that by the above- described
course of conduct, the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed financial and other support to it, and has thereby inter-
fered with , restrained , and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
We further find that, since the contract of March 9 , 1938, as sub-
sequently amended, was entered into with a labor organization estab-
lished, maintained , and assisted by unfair labor practices, the
provision for a closed shop contained therein does not fall within
the proviso of Section 8 (3) of the Act and is illegal and void.
C. The refusal to bargain
1. The appropriate unit
The complaint , as amended , alleges, and the Union claims, that all
production and maintenance employees , excluding executives , super-
"The respondent advised the Regional Office that since the vending machines were
used almost exclusively by the employees , it would like to have the proceeds therefrom
used as a'flower fund for them The Regional Office suggested that the respondent
organize a committeee to handle this fund on behalf of all the employees and stated
that it would not be improper if the members of this committee happened to be members
of the Association . However , the Regional Office did not advise the respondent that the
members of the committee or ,a majority of them could be selected by the Association
and expressly told the respondent that the vending machine funds should not be turned
over to the Association. - •
FOOD MACHINERY CORPORATION 1443
visory employees, clerical workers, draftsmen, and those employed--
in the experimental department, foundry, and pattern shop, constitute
a unit appropriate for the purposes of collective bargaining. The
respondent contends that the appropriate unit consists of all
nonsupervisory employees.
Supervisory employees
There is disagreement as to the supervisory status of the following
employees :
The working foremen in the J. B. Division. The record discloses
that these working foremen have no regular groups of employees
working under them. Men are assigned to them from time to time
whenever they need assistance. When not busy working in their,
special,fields, these working foremen are themselves assigned to assist
others. With one exception,19 they are paid on an hourly basis.
They have no authority to hire, discharge, or make recommenda-
tions with respect thereto. We find that they should be included-
in the unit.
A. Blanchard, R. J. Hoeller, E. J. Taylor, A. Silrva, R. W. Nash,
C. M. Olsen, and E. F. Lietz. The record does not disclose that these
individuals act in a supervisory capacity. We accordingly find that
they should be included in the unit.
L. H. Chrisman and D. V. Utzerath. Chrisman and Utzerath are
assistants to the foreman of the sheet metal department of the A. B.
Division. They are "gang bosses" and direct the work of other
employees. We find that they are supervisory employees and should
be excluded from the unit.
H. C. Haeberle. Haeberle is a foreman in charge of the machine
shop in the A. B. Division and has the authority to hire and dis-
charge. We find that he is a supervisory employee and should be
excluded from the unit. I
-D. E. Martin. Martin is an assistant to the foreman of the ma=
chine shop in the A. B. Division. He assigns men to work, super-
vises their work, and makes recommendations to the foreman regard=
ing discharges and lay-offs. We find that Martin is a supervisory
employee and should be excluded from,the unit.
C. H. Keesling. Keesling is an assistant to the superintendent of
the A. B. Division. We find that he is a supervisory employee and
should be excluded from the unit.
Theodore Vollgraff, who in any event is excluded from the unit on other grounds.
See footnote 20, infra.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clerical workers
The record discloses no reason for including the office and clerical
employees in the unit of production and maintenance workers. Their
duties and working conditions are substantially different from those
of the production and maintenance employees, and they are not
eligible for membership in the Union. , In accordance with our
usual practice, we find that the office and clerical employees 20 should
be excluded from the unit.
Draftsmen or engineers
The duties of the employees who are variously referred to in the
record as draftsmen and engineers are materially different from those
of the production and maintenance employees, and they are not elig-
ible for membership in the Union. In accordance with our usual
practice, we find that the draftsmen or engineers should be excluded
from the unit.21
Experimental department
The record discloses that the employees in this department are
technicians engaged in confidential work for the respondent and that
they are not eligible for membership in the Union. We find that they
should be excluded from the unit.
Foundry and pattern shop
In the consent election held among the foundry employees on
November 29, 1937, in which the Association and the Molders' Union
participated, the foundry employees were recognized as constituting
a separate appropriate unit. Also, they are not eligible for member-
ship in the Union. The record further discloses that the foundry
makes castings for outside concerns as well as for the respondent.
We find that the foundry employees should be excluded from the
unit.
The pattern shop adjoins the foundry and,the operations of the two
are closely integrated. The pattern shop employees are also in-
eligible for membership in the Union. We find that the pattern
shop employees should be excluded from the unit.
m Since their work is of a clerical nature, we find that the timekeepers , time-study men,
and the employees in the planning department , as well as Emery Whistler and Theodore
Vollgrafe, sliould be excluded from the unit as clerical employees.
21 Since C. G. Taylor and R. H. Luhdorff are engaged principally as draftsmen, we find
that they should be excluded from the unit.
-FOOD MACHINERY CORPORATION 1445
Shear, McAdoo, and McBee
There is a request for the exclusion from the unit of John Shear,
who, since- 1939, has been an inspector, Emily McAdoo, janitress,
and E. W. McBee, "blueprint boy." The record discloses no adequate
reasons for excluding these individuals from the unit of production
and maintenance employees. We accordingly find that they should
be included in the unit.
We find that all production and maintenance- employees at the
San Jose,plant, excluding executives, supervisory employees, clerical
workers, draftsmen, and those employed in the experimental depart-
ment, foundry, and pattern shop, constitute, and at all times material
herein constituted, a unit appropriate for the purposes of collective
bargaining, and that said unit insures to employees of the respondent
the full benefit of their right to self-organization and to collective
bargaining and- otherwise effectuates the policies of the Act.
2. Representation, by the Union of a majority in the appropriate
unit
Lists of the respondent's employees which were furnished by the
respondent and introduced in evidence show that on February 21,22
1941, there were 198, on July 2, 1941, there were 274, and on July 30,
1941, there were 258 employees in the appropriate unit. The record
discloses that as of February 21, 1941, 111; as of July 2, 1941, 144;
and as of July 30, 1941, 141, of the employees in the appropriate unit
were either members of or had signed applications for membership
in the Union or had signed a petition designating the Union as their
bargaining representative.
The membership application card of the Union reads in part as
follows :
I herewith tender you this, my application for membership
in your Local Lodge, with the initiation fee of $----.' If ac-
cepted I agree to abide by the laws of the International Asso-
ciation of Machinists.
The respondent urges that in view of this provision, those applicants
who have not become members of the Union and therefore have not
been "accepted" by it should not be regarded as having designated
the Union as their bargaining representative. There is no merit in
this contention, for it is well established that the signing of an
=While the first of these lists is entitled "employees as' of 2 /24/41," the respondent
does not contend that the pay roll of February 21 varied from that of February 24.
'1446 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
application for membership in a labor organization in itself con-
stitutes a designation of that organization as a bargaining agent.23
The respondent further urges that the. failure of those who signed
membership application cards'and have not become members of the
Union to sign a petition designating the Union as bargaining agent,
which was circulated among the employees at the plant from July 1 to
7, 1941 by Dewey Fortune, an employee, indicates that they never
intended to designate the Union as their representative. We find
this contention to be equally without merit. Many of the employees
who were members of the Union also failed to sign the petition. The
failure'of the employees to sign the petition may have been due to
their belief that, having already designated the Union by becoming
members thereof or by signing membership application cards, it was
unnecessary to sign the petition. Moreover,'it appears that as Fortune
was circulating this petition, he was being watched and followed by
C. H. Keesling, assistant to the superintendent of the A. B. Divi-
sion and found above to be a supervisory employee 24 In view of
such surveillance, it can hardly be.said that the employees in question
failed to sign the petition because they no longer wished to retain
the Union as their bargaining representative. ,
We find that on February 21, July 2, and July 30, 1941, and at
all times thereafter, the Union was and that it is the duly designated
representative of a majority of the respondent's employees in the
appropriate unit and that, by virtue of Section 9 (a) of the Act,
was and is the exclusive representative of all the employees in such
unit for the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment.
3. The refusal to bargain
On February 21, 1941, representatives of the Union called on Jacka,
attorney for the respondent, and requested that the respondent bar-
gain with the Union. Jacka stated at this conference that the
respondent could not grant this request because of its contract with
the Association. On June 27, 1941, the Union wrote to the respondent
stating that it represented a majority of the production employees,
at the plant and requesting a bargaining conference. The respondent
replied on June 30, 1941, stating that the Union's letter was being
referred to Jacka. On July 22, 1941, the Union again wrote to
za National Labor Relations Board v. Sunsh /inp Mtining Co., 110 F. (2d) 780 (C. C. A. 9),
cart den 312 U. S. 678; National Labor Relations Board v. Chticago Apparatus Co.;
116 F. (2d) 753 (C. C. A. 7) ; National 'Labor Relations Board v. Somerset Shoe Co.,
111 F. ( 2d) 681 (C C. A. 1).
'A See subsection C-1, supra.
FOOD MACHINERY CORPORATION 1447
the respondent requesting that the respondent bargain collectively
with it. On July 30, 1941, Jacka replied stating that the respondent
could not bargain with the Union because of the contract between
the respondent and the Association. In its answer to the complaint,
the respondent admitted that it had refused to bargain with the Union
and alleged that it was bound by its contract with the Association.
It is clear that the existence of a contract with an employer-dominated
organization affords no justification for an employer's refusal to bar-
gain collectively with a bona fide labor organization which is the
duly designated representative of the majority of its employees in'an
appropriate Unit. 21
We find that on February 21 and July 30, 1941, and at all times
thereafter, the respondent refused to bargain collectively with the
Union as the exclusive representative of its employees in an appro-
priate unit in respect to rates of pay, wages, hours of employment
and other conditions of employment, and that the respondent thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. Other interference, restraint, and coercion
The complaint, as amended, alleges that prior to the election held
on November 29, 1937, among the respondent's foundry employees,
the respondent urged such employees to become members of the Asso-
ciation and not to become or remain members of the Molders' Union
or other affiliated labor organization, to vote for the Association and
not for the Molders' Union in such election, and threatened to remove
its operations from San Jose if they selected the Molders' Union or
any other affiliated labor organization as their bargaining representa-
tive. The testimony adduced in support of this allegation of the com-
plaint was controverted, and the Trial Examiner found that this
allegation of the complaint was not supported by the evidence. No
exceptions have been filed to this finding. We have reviewed the
evidence and concur in the conclusion of the Trial Examiner.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate, and substantial
.relation to trade, traffic, and commerce among the several States and
11 See National Labor Relations Board V. Bradford Dyeing Association , 310 U. S. 318;
Matter of Wm . Tehel Bottling Company, et al. and International Brotherhood of Teamsters,
Chauffeurs, Stablemen and Helpers, Local 238, et al., 30 N. L . R. B 440.
1448, DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices , we will order it to cease and desist therefrom and to take
certain affirmative action which we find will effectuate the policies
of the Act.
We have found that the respondent dominated and interfered with
the administration of and contributed financial and other support to
the F . E. C., and dominated and,interfered with the formation and
administration of and contributed financial and other support to the
Association . We find that the effects and consequences of such
domination , interference , and support render the F. E. C. and the
Association incapable of serving the respondent 's employees as genuine
collective bargaining agencies , and that the recognition of the F. E. C.
or the Association as the bargaining representative for any of the
respondent 's employees constitutes a continuing obstacle to the free
exercise by the employees of their right to self-organization and to
bargain collectively through representatives of their own choosing.
Inasmuch as the F. E. C. is no longer in existence , it is not necessary
to order its disestablishment . Since, however, it may be revived,
we shall order the respondent to withhold recognition from the
F. E. C. 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 em-
ployment . We shall also order the respondent to disestablish and
withdraw all' recognition from the Association as the representative
of any of its employees for the purpose of dealing with the respondent
concerning grievances , labor disputes , wages, rates of pay, hours of
employment , or other conditions of employment.
Since the contract of March 9, 1938, as subsequently amended, be-
tween the respondent and the Association embodies recognition of
the Association as such representative and is a means whereby the
respondent 's unfair labor practices are perpetuated , we shall order
the respondent to cease and , desist from performing or giving effect to
such contract , or any amendment, extension , or renewal thereof, or
any other contract, agreement, or understanding with the Association
relating to grievances , labor disputes , wages, rates of pay, hours of
employment , or other conditions of employment . Nothing in this
Decision and Order , however, shall be deemed to require the respond-
ent to vary or abandon those wage , hour, and other substantive
features of its relations with the employees themselves, which the
FOOD MACHINERY CORPORATION 1449
respondent may have established in performance of any contract,
agreement , or understanding , as amended, extended , renewed, supple-
mented, or superseded.26
We are of the opinion that , under the circumstances of this case,
the respondent should be ordered to reimburse its employees the
amounts deducted from their wages as dues and initiation fees owing
to the Association. As we have found, the respondent dominated and
interfered with the formation and administration of the Association
and contributed -financial and other support to it. By the closed-shop
contract with the Association, which we have found illegal because
it was entered into with a company-dominated organization, the re-
spondent compelled its employees to maintain membership in the
Association under the potent sanction of loss of their jobs if they
failed to do so. The check -off of dues and initiation fees was closely
related to the imposition of the closed -shop requirement and was a
convenient device whereby the financial stability of the company-
dominated organization was assured . In these circumstances, we find
that the monies deducted and paid over to the Association were not,
in any realistic sense, voluntary payments, but were forced tributes
exacted from the employees for the support and maintenance of a
company-dominated organization; that the employees' authorizations
for the check-off were equally the products of the restraints imposed
upon the employees and represented merely an aspect of the respond-
ent's compulsion upon them to surrender their rights under the Act
and to join and support the organization which respondent had
illegally fostered; and finally, that, as a result of the imposition of
the illegal check-off and closed-shop requirement, the employees
suffered a loss and deprivation of wages equal to the amounts de-
ducted from their wages and paid over to the Association. Only by
reimbursing the employees for this loss suffered by them can there
be a complete restoration of the status quo. It is plaifily appropriate
that this wage loss should be borne by the respondent whose unfair
labor practices brought it about, rather than by the employees who
were the innocent victims of such practices. We find that, in these
circumstances, the effects of the unfair labor practices must be fully
remedied and the purposes and policies of the Act completely ef-
fectuated by requiring the respondent to reimburse its employees the
amounts deducted from their wages as dues and initiation fees on
behalf of the Association , and we shall so order.
Having found that the respondent refused to bargain collectively
with the Union as the exclusive representative of its employees in an
appropriate unit, we shall order the respondent, upon request, to
Cf National Licorice Co v. National Labor Relations Board, 309 U. S. 350.
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargain, collectively with the- Union as the exclusive representative
of its employees in the, appropriate unit in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
As has been found above; the respondent, for a long period of
time, has dominated and interfered with the administration of and
,has contributed financial and other support to the F. E. C., and has
dominated and interfered with the formation and administration of
and has contributed financial and other support to the Association.
This long-continued and never disavowed illegal sponsorship and sup-
port not only violates Section 8 (2) of the Act but also reveals a
purpose to defeat the basic rights of self-organization and collective
bargaining which the Act was designed to protect. Because of the
respondent's long-continued unlawful conduct and its underlying pur-
pose, we are convinced that the respondent may seek to accomplish
its unlawful purpose by unfair labor practices other than those in
which it has engaged and that the danger of the commission of such
related unfair labor practices in the future "is to be anticipated from
the course of [the respondent's] conduct in the past." 27 The pre-
ventive purpose of the Act will be thwarted unless the terms of our
order, are co-extensive with the threat. - In order, therefore, to make
effective the interdependent guarantees of Section 7 of the Act, to
prevent a recurrence of unfair labor practices and thereby to mini-
mize industrial strife which burdens and obstructs commerce, and
thus to effectuate the policies of the Act, we shall order that the
respondent cease and desist from in any manner infringing the rights
guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the en-
tire record in the case, the Board hereby makes the following :
CONCLUSIONS OF LAW
1. Factory Employees' Committee of Food Machinery Corporation
was, and International Association of Machinists, Local No. 504, af-
filiated with the American Federation of Labor, and The Employees'
Association of the Food Machinery Corporation, San Jose Plants,
are labor organizations, within the meaning of Section 2 (5) of the
Act.
2. By dominating and interfering with the administration of and
contributing financial and other support to Factory Employees' Com-
mittee of Food Machinery Corporation, and by dominating and in-
terfering with the formation and administration of and contributing
financial and other support to The Employees' Association of the
Food Machinery Corporation, San Jose Plants, the respondent has
21 National Labor Relations Board v. Empress Pwbhshn ,ng Co., 312 U . S. 426.
FOOD MACHINERY CORPORATION 1451
engaged. in and is engaging ' in unfair labor practices, within the
meaning of Section 8 (2) .of the Act.
3. All production and maintenance employees of the respondent
at its San Jose plant,, excluding executives, supervisory employees,
clerical workers, draftsmen, and those employed in the experimental
department, foundry, and pattern shop, have at all times material
herein constituted and now constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning. of Section 9 (b)
of the•Act. -
4. International Association of Machinists, Local No. 504, af-
filiated with the American Federation of Labor, was on February
21, 1941, and at all times thereafter has been, the exclusive representa-
tive-of all the employees in such. unit for the purposes of collective
bargaining, within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with International Associa-
tion of Machinists, Local No. 504, affiliated with the American Fed-
eration of Labor, as the exclusive representative of its employees in
the above unit, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (5) of the Act.
6. By interfering with-, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
. 7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, Food Machinery Corporation, its officers, agents, successors, 'and
assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Factory Employees' Committee of Food Machinery Cor-
poration or of The Employees' Association of the Food Machinery
Corporation, San Jose Plants, or with the formation or administra-
tion of any other labor organization of its employees, and from con-
tributing financial or other support to said labor organizations or any
other labor organization of its employees;
(b) Recognizing or in any manner dealing with Factory Em-
ployees' -Committee of- Food 'Machinery Corporation or The Em-
ployees' Association of the Food Machinery' Corporation, San Jose
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plants, 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) Performing or giving effect to the contract of March 9, 1938,
as amended, with The Employees' Association of the Food Machinery
Corporation, San Jose Plants, or to any amendment, extension, or
renewal thereof, or to any other contract, agreement, or understand-
ing entered into with said Association relating to grievances; labor
disputes, wages, rates of pay, hours of employment, or other con-
ditions of employment;
(d) Refusing to bargain collectively with International Associa-
tion of Machinists, Local No. 504, affiliated with the American Fed-
eration of Labor, as the exclusive representative of all its production
and maintenance employees at its San Jose plant, excluding execu-
tives, supervisory employees, clerical workers, draftsmen, and those
employed in the experimental department, foundry, and pattern
shop, in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist' labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withhold all recognition from Factory Employees' Committee
of Food Machinery Corporation as the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment,
or other conditions of employment;
(b) Withdraw all recognition from The Employees' Association
of the Food Machinery Corporation, San Jose Plants, as the repre-
sentative 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 com-
pletely disestablish the Association as such representative;
(c) Reimburse each employee from whose wages it deducted or
checked off dues or initiation fees owing to The Employees' Associa-
tion of the Food Machinery Corporation, San Jose Plants, the amount
of such deduction or check-off ;
(d) Upon request, bargain collectively with International Associa-
tion of Machinists, Local No.' 504, affiliated with the American Fed-
FOOD MACHINERY CORPORATION 1453
eration of Labor, as the exclusive representative of all its production
and maintenance employees at its San Jose plant , excluding execu-
tives , supervisory employees , clerical workers, draftsmen , and those
employed in the experimental department , foundry, and pattern shop,
in respect ' to rates of pay, wages , hours of employment , and other
conditions of employment;
(e) Post, immediately in, conspicuous places throughout its San
Jose plant , and maintain for a period of not less than sixty ( 60) con-
secutive days from the date of posting, notices to its employees, stat-
ing (1 ) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b),
(c), (d), and (e) of this Order, and (2) that the respondent will take
the affirmative action set forth in paragraphs 2 (a), (b), (c), and
(d) of this Order;
(f) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10 ) days from the date of this Order what steps the
respondent has taken to comply herewith.
MR. GF.RARD D. REILLY took no part in the consideration of the
above Decision and Order.