General Dry Batteries, Inc.

National Labor Relations Board - Board Decisions

Oct 22, 1940

27 N.L.R.B. 1021 (N.L.R.B. 1940)

In the Matter of GENERAL DRY BATTERIES, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 1238, A. F. OF L., and EDMUND
BREITBACH, MAXALINDA CARROLL, PAUL KANE, EARL LIDDLE, HILDA
ROTH, WILSON I;IERNAN AND RAY ROLING, INDIVIDUALS COMPRISING
THE BARGAINING COMMITTEE, PARTIES TO THE CONTRACT
Case No. C-1644.-Decided October 29, 1940
Jurisdiction : dry batteries manufacturing industry.
Unfair Labor Practices
In Gesieral: employer responsible for activities of supervisory employee who did
not have authority to hire or discharge.
Company-Dominated Unions: contributing support to organization subsequent to
agreement not to recognize it by granting a check-off of dues in its favor-
fostering and encouraging formation of other organizations and contribution
of support thereto ; supervisor-y employee prepared most of the documents used
by these organizations, gave freely his advice and counsel as well as of
his time and funds in assisting materially the formation of such organizations.
By acquiescing in the exodus from the plant of its employees to authorize
"inside" union as representative, employer held to have contributed support
thereto.
Suggesting that "inside" union reap a profit from the sales of milk in
plant and by permitting it to accept commissions held support.
Collective Bargaining: union's majority established by membership in union.
Where unit claimed by the union represents a customary grouping of
skilled employees and the employer's claim for a different unit grew pri-
marily out of the claim of the industrial unions which Board found were
the product of the employer's unfair labor practices held the employer's
alleged doubt as to the appropriateness of the unit cannot operate to relieve
it of its obligation to bargain.
Remedial Orders : existing company-dominated union disestablished; contract
with dominated organization abrogated, however, such order not to vary
wage, hour, seniority, and other substantial features established in the per-
formance of the invalid contract; employer ordered to bargain collectively
with the union, order based on majority on date employer refused to bargain
with union. '
Where there is some doubt as to the continued existence of dominated
labor organizations, employer ordered to refrain from recognizing them.
Unit Appropriate for Collective Bargaining : machinists, machinists' helpers, tool
and die makers , electricians and welders, excluding supervisory employees.
Mr. Lee Loevinger, for the Board.
Mr. W. A. Smith and Mr. F. A. O'Connor, of Dubuque, Iowa, for
the respondent.
27 N L R. B., No. 169.
1021
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenline, Roedell c€ Ho ff'man, by Mr. R. P. Roedell, and Gilloon
cC Chalmers, by Mr. Frank D. Gilloon, of Dubuque, Iowa, for the
Bargaining Committee.
Padway, Goldberg cfi Tarrell, by Mr. A. G. Goldberg, of Milwau-
kee, Wis., Mr. Albert J. Hayes, and Mr. Paul R. Hutchings, of
Washington, D. C., for the I. A. M.
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Association of Machinists, Lodge 1238, A. F. of L., herein called
the I. A. M., the National Labor Relations Board, herein called the
Board, by the Regional Director for the Eighteenth Region (Minne-
apolis, Minnesota), issued its amended complaint' dated February 6,
1940, against General Dry Batteries, Inc., Dubuque, Iowa, herein
called the respondent, and Edmund Breitbach, Maxalinda Carroll,
Paul Kane, Earl Liddle, Hilda Roth, Wilson Kiernan, and Ray
Roling, individuals comprising the Bargaining Committee, parties
to the contract, herein called the Bargaining Committee, alleging
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 National Labor Relations Act, 49
Stat. 449, herein called the Act. The amended complaint and notice
of hearing were duly served upon the respondent, upon the I. A. M.,
upon the individuals comprising the Bargaining Committee, and
upon General Dry Batteries Employees Union, herein called the
Employees Union, and Electro-Chemical Workers Independent
Union, herein called the Independent, labor organizations alleged
in the complaint to have been dominated by the respondent.
With respect to the unfair labor practices, the amended complaint
alleged in substance (1) that the respondent instigated the forma-
tion of the Employees Union, dominated and interfered with its
administration and contributed financial and other support to it;
that after signing a stipulation on or about May 5, 1939, in which
it agreed to withdraw recognition from said organization, the re-
'The original complaint was issued on April 10 , 1939. On April 26, 1939, an amended
complaint was issued A hearing was held thereon on May 4, 5, and 6, 1939 , and on May
6 a stipulation was entered into by the parties involved, settling the case. Amended
charges forming the basis for the present proceeding , were thereafter filed by the I A. M.
on September 16, 1939, and on February 2, 1940.
. GENERAL DRY BATTERIES, INC. 1023
spondent continued to contribute support to said organization; (2)
that the respondent instigated the formation of the Independent, the
Bargaining Committee, and the Industrial Union of Battery Crafts,
herein called the Industrial, and thereafter dominated and interfered
with the administration-of said organizations, contributed financial
and other support to them, and advised, urged, threatened, and
warned its employees to join said organizations; (3) that on or about
July 28, 1939, the respondent entered into a written agreement with
the Bargaining Committee, in which it recognized said Bargaining
Committee as the exclusive representative of all employees in the
Dubuque, Iowa, plant of the respondent, although at the time the
Bargaining Committee was not the lawful representative of a major-
ity of the employees; (4) that on or about June 30, 1939, and at all
times thereafter, the respondent refused to bargain collectively with
the I. A. M. as the representative of its employees within an appro-
priate unit; and (5) that the respondent advised, urged, threatened,
and warned its employees to refrain from becoming or remaining
members of the I. A. M.
On February 16, 1940, the respondent filed its answer denying the
commission of the unfair labor practices alleged in the amended
complaint. On February 19, 1940, the Bargaining Committee filed
an answer denying the, allegations of the amended complaint in so
far as said allegations affected it.
Pursuant to notice, a hearing was held at Dubuque, Iowa, from
March 7 through 20, 1940, before Peter F. Ward, the Trial Examiner
duly designated by the Board. The Board, the respondent, the Bar-
gaining Committee, and the I. A. M. were represented by counsel and
participated in the hearing. Full opportunity to be heard, to ex-
amine and cross-examine witnesses, and to introduce evidence bearing
on the issues was afforded all parties. At the conclusion of the
Board's case, counsel for the Board moved to amend the complaint
by adding the words "welders and electricians" to the statement of
the unit alleged to be appropriate. The Trial Examiner reserved
ruling on the motion. The motion is hereby granted. The Trial
Examiner granted a motion by counsel for the Board to amend the
pleadings to conform to the proof. At the conclusion of the hearing
the Bargaining Committee made a number of motions to strike cer-
tain paragraphs of the amended complaint as well as a motion to
dismiss the entire complaint and the amended charge attached thereto.
The. Trial Examiner denied- these motions. During the course of
the hearing the Trial Examiner made several other rulings on mo-
tions 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-.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent filed a brief with the Trial Examiner subsequent
to the hearing. The Trial Examiner thereafter issued his Interme-
diate Report, dated July 18, 1940, copies of which were duly served
upon all the parties, finding 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 Act. The respondent and the Bargaining Committee
filed exceptions to the Intermediate Report on August 16, 1940, and
the respondent filed a brief and requested permission to argue orally
before the Board.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C., on September 10, 1940, for the purpose of oral argu-
ment. The respondent and the I. A. M. were represented by counsel.
The Board has considered the exceptions to the Intermediate Report
and the oral argument in support thereof and, in so far as the excep-
tions are inconsistent with the findings, conclusions, and order set
forth below, finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF TIIE RESPONDENT
General Dry Batteries, Inc., is an Ohio corporation with its prin-
cipal office in Cleveland, Ohio. It maintains a plant in Toronto,
Canada, and one in Dubuque, Iowa. The respondent is engaged at
its Dubuque plant, the only plant with which we are here concerned,
in the manufacture, sale„ and distribution of dry batteries. The
principal raw materials used at the Dubuque plant are zinc, graphite,
lamp black, manganese, muriatic acid, paper, and cardboard. The
respondent uses approximately $1,000,000 worth of raw materials
annually at this plant, of which about 85 per cent are received from
outside the State of Iowa. The respondent manufactures and pro-
duces approximately $1,250,000 worth of dry batteries at the Du-
buque plant annually. About 95 per cent of these batteries are
shipped outside the State of Iowa.
H. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Lodge 1238, is a labor
organization, affiliated with the American Federation of Labor. It
admits to membership the machinists, machinists' helpers, tool and
die makers, electricians, and welders at the Dubuque plant.
The General Dry Batteries Employees Union, the Industrial Union
of Battery Crafts, and the Electro-Chemical Workers Independent
GENERAL DRY BATTERIES, INC. 1025
Union are unaffiliated labor organizations, admitting to membership
production and maintenance employees of the respondent.
The Bargaining Committee, composed of Edmund Breitbach,
Maxalinda Carroll, Paul Kane, Earl Liddle, Hilda Roth, Wilson
Kiernan, and Ray Roling, is an unaffiliated labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Interference with,, domination and support of labor organizations
The respondent's Dubuque plant was established in December 1936,,
and began operating in July 1937. In 1938 the Employees Union was
organized and on June 20, 1938, the respondent entered into a contract
with it recognizing it as exclusive bargaining agent for the employees
and-establishing certain wages, hours, and working conditions.
Upon charges by the I. A. M., and following the issuance of a com-
plaint by the Board alleging that the Employees Union was dominated
by the respondent, a hearing was held commencing on May 4, 1939,
during which a stipulation was entered into,by the respondent, the
I. A. M. and the Employees Union. The stipulation provided, among
other things for the dissolution of the Employees Union and the with-
drawal of recognition from it by the respondent, for the termination
of the contract, and for the posting of certain notices.
On May 9 Jean L. Davis, who had been made secretary of the Em-
ployees Union at a meeting shortly before the hearing, addressed a
letter to the respondent requesting that it continue the check-off pro-
vided for in the contract for the month of May in order that the Em-
ployees Union might settle its financial obligations. The respondent
complied with this request by deducting the usual 15 cents from the,
June 5 pay of members. The Employees Union was officially dissolved
on May 12, 1939. We find that the respondent, by checking off duos
of members of the Employees Union after the stipulation, contributed
financial support to the Employees Union, and that it thereby inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
It will be helpful to an understanding of what occurred thereafter
to discuss the status of Jean L. Davis. Davis was employed at the
respondent's Cleveland plant in about September 1938,-and was given
a course of training as an inspector. In December he was sent to the
Dubuque plant as an assistant to Louis Gray, the laboratory chief.
He shared a desk in the laboratory with Gray and his duties consisted
of inspecting rejected batteries, to ascertain wherein they were faulty,
and keeping a constant check on materials going into batteries being
manufactured. His hours of work were irregular and he often worked
on two or three shifts during a. 24-hour period, coming and going as,
323428-42-i of 27-66 1
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he found it necessary in order to inspect work on all shifts. He made
reports to Gray and to the foremen or superintendent. Davis was
paid on 'a salary basis. Prior to his employment by the respondent
Davis had owned and operated an employment agency and when he
arrived in Dubuque he brought with him, and set up in his office at
the plant, a typewriter, stencils, paper, and other office supplies. A
mimeograph machine which he had left in Cleveland was shipped pre-
paid to him later by Birdsall, the laboratory chief, and Davis put it,
In the laboratory. This equipment was used by Davis and Gray to
make out reports in connection with their duties and early in 1939
the respondent bought mimeograph paper which Davis testified was
to be used by Gray for "some reports he wanted made." In addition,
Davis and various employees utilized the machines and other equip-
ment in preparing documents pertaining to the Independent and the
Bargaining Committee. Davis was a notary public and often notarized
documents for the respondent as well as for the employees without
charge.
As will be shown in our discussion hereinafter, Davis was active in
the organizations which the complaint alleges were dominated by the
respondent.2 At the hearing, when he was asked whether he expected
to better his position in any way by taking part in such activities, he
replied, "I hoped to." Davis was asked, "In what way?" and he
answered, "Probably financially." However, when testifying with'
reference to the results of a contract entered into between the respond-
ent and the Bargaining Committee, which we shall discuss below, he
stated that although he had expected an increase in salary by virtue
of the contract, he made no comment or complaint when he did not
receive an increase.
Davis was made personnel manager and foreman of the labor
division of the Dubuque plant in September 1939, after which time
his duties were admittedly supervisory.
The Trial Examiner found that, while Davis did not have authority
to hire or discharge and did not personally reprimand employees whose
work he found at fault, the fact that he inspected the work and re-
ported his findings and recommendations to plant officials clearly con-
nected him with the management. Our conclusion is in accord with
this finding. Davis was the only inspector in the plant; he came and
went as he pleased, did not punch a time clock as did other employees,
and was paid on a salary basis rather than on an hourly or piece-work
basis. He compiled production reports which were sent to the Cleve-
2 Davis is middle-aged and has had a good deal of experience , xihereas a majority of the
respondent ' s employees ranged in age from IS to 21 years, and many of them had not
worked elsewhere before securing employment with the respondent Approximately 65
per cent of the employees are young women
GENERAL DRY BATTERIES, INC. 1027-
land'office of the respondent and made reports to Gray, copies of which
were furnished to Thomas, manager of the Dubuque plant.
We find that Davis was a supervisory employee during the period
hereinafter discussed and that the respondent is responsible for his
actions in connection with the organizations herein involved.
Shortly after the settlement agreement providing for the disestab-
lishment of the Employees Union, and during the period for which
the respondent checked off dues to the Employees Union from the
employees' wages in violation of its stipulation, renewed activity was
commenced on behalf of a union limited to the employees of the re-
spondent. On May 11, 1939, William J. Wiezorek, an employee in the
machine shop, with the aid of several others, circulated among the
employees petitions designating an organizing committee for an un-
named organization, which subsequently became the Independent. A
majority of the employees signed these petitions and thereafter Davis
prepared and mimeographed certain forms for use by employees of
the various sections in designating section representatives and members
of an advisory committee. Before an organizational meeting of this
group was held, Earl Liddle, an employee of the shipping department,
with the help of Davis, Wiezorek and Henry, prepared, and had
printed application cards for an organization to be known as The
Industrial Union of Battery Crafts. About 400 signatures were ob-
tained on these cards, but they were then put away in a locker and
no use was ever made of them. The printing of the cards was financed
partly by Liddle personally and partly from funds which he had in
his possession as treasurer of an entertainment committee originally
appointed for the Employees Union. -
On June 27 a meeting, open to all employees but attended by about
30 to 35 out of approximately 450, was held at which the formal organ-
ization of the, Independent was perfected. A constitution and by-
laws were drawn, officers were elected, and a bargaining committee of
five was named. Davis furnished the books in which the constitution,
bylaws, and minutes were written and the constitution is in Davis'
handwriting, although Liddle was elected secretary. The 25 or 9,1
representatives previously selected were given "credentials"-docu-
ments signifying their proper designation-and they turned in the
lists of employees who chose them. Only the representatives voted
in the election of officers although a few other employees were present
at the meeting. A telegram, signed by Liddle but written and paid
for by Davis, was dispatched to the respondent, notifying it of the
formation of the Independent and the fact that it represented a ma-
jority of the employees. The meeting was held in the "recreation
building," which is owned by the respondent's lessors and which is
available to employees of any of the several tenants who occupy prop-
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
erty in the block where the respondent's plant is located. All meet-
ings and most of the activity of the organizations mentioned occurred
in the recreation building. The Independent made arrangements with
the agents of the lessors to pay a rental of $1 a month for the use of
office space therein, although this rent was unpaid more frequently
than it was paid, since the Independent collected no dues and had no,
funds. Any expenses incurred by it were borne by Davis and Liddle.
On July 12, the Independent's bargaining committee, composed
of five members, and certain of the representatives met with Arthur
F. Rock, vice president of the respondent, and demanded recogni-
tion upon the basis of the majority shown by the credentials and
other designations. Rock refused to recognize the Independent upon
its showing and stated that it would have to present more convincing
and "legal" proof. Davis had on two previous occasions discussed
with Roedell, the attorney for the Employees Union, the possibility
of securing powers of attorney from the employees as a method of
substantiating claims of representation. Following Rock's refusal
to recognize the Independent, Walter Henry, its president, suggested
that this procedure be carried out, and Roedell thereafter drafted
such a document. On July 19 Henry appointed two new members
to the Independent's bargaining committee and replaced another.
That evening, at the request of Liddle, a number of employees went
to the recreation building, where Liddle and Davis explained the
purpose of the powers of attorney, and some of them were signed by
the employees and notarized by Davis. The powers of attorney
named the Bargaining Committee of seven as "our exclusive represent-
ative . . . to bargain with our employer . . . in respect to rates of
pay, wages, hours, and other conditions of employment. .... This
appointment to remain in full force and effect until and unless revoked
by all or a majority of us by notice in writing to said Representative
and to said Employer and such revocation filed for record in the
same office as this instrument is recorded."
On the following day, upon Liddle's instructions, a majority of
the employees left the plant in department groups and went to the
recreation building, where they executed similar documents. Davis
again notarized the powers of attorney and spent about 7 hours
at the recreation building in order to do so. Employees were not
told until they arrived at the recreation building the purpose for
going there. Superintendent M. A. Foos testified that when he
saw a group walking out he had no idea what was going on and
inquired of Dilworth, his assistant, who told him the employees were
going to a meeting. Foos telephoned Thomas and the latter called
Liddle at the recreation building and asked for an explanation of
the walk-out. Liddle replied that the employees were having av
GENERAL DRY BATTERIES, INC. 1029
meeting, that he had known they would be unable to get permission
to leave the plant, and that they had, therefore, walked out. No
attempt was made to halt the procession from the plant to the
recreation building which went on from about noon until 7 o'clock
that evening. The next day, however, Thomas posted in the plant
a notice stating that those who had left their work would have 15
minutes deducted from their time. This notice was removed by one
of the employees and Thomas posted another notice reading as
follows :
All employees who left the factory yesterday, July 20, 1939,
during working hours will be docked for the time lost.
This exodus was accomplished without the knowledge or consent
of the management and means a loss of approximately 100 man
hours of production to the company.
Any errors in figuring your time must be reported promptly
to the time keepers.
Anyone destroying this, or any other notice will be immediately
discharged.
We find ourselves unable to reconcile the statement made in the
above notice, that the "exodus was accomplished without the knowl-
edge or consent of the management," with the testimony of Foos,
Liddle, and Thomas that Thomas and Foos did learn that the em-
ployees were leaving the plant and that no attempt, other than a
telephone call to Liddle, was made to stop them. It is difficult to
believe that the employees would have refused to obey an order to
remain in the plant, or to return, had it been given by either Foos
or Thomas. Foos admitted at the hearing that he had authority to
discipline or discharge employees. The fact is that Thomas and
Foos, after satisfying their curiosity as to what was going on, per-
mitted the employees to continue leaving the plant with no inter-
ference. Moreover, although the notice contains a threat to dis-
charge anyone destroying the notice, it does not contain a similar
warning with reference to employees leaving the plant without
permission.
Davis, Liddle, Wiezorek, and Henry were not docked for their
absence from the plant and, although Davis testified that he had
worked his regular number of hours that week, the, record does not
show that the same is true of the others named. Nor was any de-
duction made from the pay of Davis and Liddle when they left the
plant a few days later to record the powers of attorney.
We find that the respondent acquiesced in the above action of its
employees on July 20, 1939, and that it thereby interfered with the
formation and administration of, and contributed support to, the
Independent and the Bargaining Committee.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to the organization of the Independent, each section
representative had been instructed to make a list of the provisions
which his or her section desired to have incorporated in a contract
with the respondent. Davis, Liddle and some of the members of the
Bargaining Committee thereafter drafted a proposed contract, part
of which was in Davis' handwriting and the rest of which was type-
written by him. After the powers of attorney were signed by a
majority of the employees, the Bargaining Committee notified the
respondent of their execution and asked fora bargaining conference.
On August 3 the Bargaining Committee and several others, including
Davis, met with Rock and Thomas and presented the proposed con-
tract. A discussion lasting about 2 hours followed and some of the
proposals were tentatively agreed upon. At the conclusion of the
conference Rock and Thomas took the draft and agreed to meet with
the committee on the following day. On August 4 Rock and Thomas
presented to the conferees a new draft of a contract, which in-
cluded some of the proposals and eliminated others. It provided,
among other things, for a wage increase of 5 per cent on hourly
and piece-work rates, vacations with pay, and a bonus, and was to
remain in effect for 2 years. After the counter-proposal was read
to those assembled and after some discussion among the committee
members, it was adopted and signed without change by the members
of the Bargaining Committee and by Rock and Thomas. The con-
tract was never submitted to the employees for approval.
On September 20, 1939, Henry, its president, called a second meet-
ing of the Independent for the purpose of terminating its existence.
Although it does not appear from the minutes of that meeting
whether a formal dissolution was accomplished, it is clear from the
testimony of Liddle that a resolution to abolish the Independent was
adopted and that it was considered disbanded by its members.
Prior to January 10, 1940, the Iowa Dairy Company had sold milk
to the respondent's employees in the plant each day. On about that
date the Sanitary Milk Company asked the respondent for permission
to sell milk in the plant and offered to pay a 6-per cent commission
for the privilege. According to Liddle's testimony, either Thomas or
Davis sent the representative of the milk company to see Liddle
because "they didn't want to monkey around with it, that if we could
get anything out of it it would be all right, and if we couldn't they
could keep on selling it the way they were." Liddle discussed the
offer with some members of the Bargaining Committee and it was
decided to retain the Iowa Dairy Company if it would pay the Bar-
gaining Committee a commission of 5 per cent of the gross sales in
the plant. The Iowa Dairy Company agreed orally to the suggested
GENERAL DRY BATTERIES, INC. 1031
arrangement on January 12 and the Bargaining Committee had col-
lected, up to the time of the hearing, something over $16.00 in com-
mission. This is the Bargaining Committee's only regular source of
revenue, although it does obtain funds through employees' dances,
and, prior to the present proceeding, received contributions from em-
ployees to pay the fees of counsel.
The Act prohibits the contribution of financial support to a labor
organization. Permitting the Bargaining Committee to accept from
the Iowa Dairy Company a commission originally offered to the
respondent, from, sales of milk to all employees-whether they had
designated the Bargaining Committee or not-constitutes such finan-
cial contribution. No proper reason appears to us for making the
Bargaining Committee, the beneficiary of a fund which rightfully
belongs to the respondent, since the sole authority to grant permission
to sell milk in the plant lay with the respondent. The circumstances
are no different than if the respondent had accepted the proposition
of the Sanitary Milk Company and then turned over the commission
to the Bargaining Committee.
We find that the respondent, by suggesting that the Bargaining
Committee reap a profit from the sales of milk in the plant, and by
permitting it to accept the commissions, contributed financial support
to the Bargaining Committee and thereby interfered with its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act.
Our conclusion upon the above recital is that the respondent, after
it signed the stipulation of May 5, 1939, has fostered and encouraged
the formation of the various organizations named above and has
aided them by contributing financial and other support to them. Im-
mediately after the signing of the stipulation, the respondent vio-
lated its terms by granting a check-off of dues in favor of the Em-
ployees Union which it had agreed not to recognize. The record
disclosed that Jean L. Davis, whom we have found to be a supervisory
employee, aided in the physical preparation of most of the documents
used by these organizations by drafting, typing, and mimeographing
them upon paper and supplies furnished by him. He gave freely of
his advice and counsel, as well as of his time and funds, in assisting
materially the formation of the Independent, the Industrial, and the
Bargaining Committee.
Thomas, manager of the respondent's Dubuque plant, and Foos,
its superintendent, almost literally closed their eyes to an exodus of
about 300 employees for the purpose of signing powers of attorney
and then posted a notice which warns of the most severe penalty for
removing the notice but makes no mention of punishment for walking
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of the plant in the future. Clearly the employees were justified
in concluding that the respondent had acquiesced in their conduct
and that it favored the formation of the Bargaining Committee.
The contract entered into by the respondent with the Bargaining
Committee served to strengthen that organization still further, while
the commissions received on sales of milk through the generosity of
the respondent supplied the only regular income of the Bargaining
'Committee. Both in this connection, and in connection with the walk-
out of July 20,1939, the respondent delegated its management functions
to Liddle, the secretary of the Bargaining Committee.
We find that the respondent, by the above-described course of con-
duct, dominated and interfered with the formation and administration
of the Employees Union, the Industrial, the Independent, and the
Bargaining Committee, and that it thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
.Section 7 of the Act.
B. The refusal to bargain
1. The appropriate unit
The complaint, as amended, alleged, and the I. A. M. contended, that
-the machinists, machinists' helpers, tool and die makers, welders and
electricians employed by the respondent at its Dubuque plant consti-
tute an appropriate unit for the purpose of collective bargaining.
The respondent contended that all the production and maintenance
employees at the plant constitute an appropriate unit. -
The respondent's pay roll for the period from July 1 to 15, 1939,
contains the-names of approximately 475 persons, of whom at least
'70 per cent are unskilled employees. There are 40 machine shop em-
ployees, including a foreman. Of the 39 remaining employees, witness
Lippstock, a machinist, identified 15 as machinists, 2 as machinists'
helpers, 2 as electricians, and 2 as welders. These 21 compose the
unit alleged by the I. A. M. to be appropriate. The other machine
shop employees were characterized by Lippstock as follows: 9 main-
tenance men, a plumber and pipe fitter, a helper, a plater, a polisher,
2 carpenters, an oiler, a die and punch hardener, and a maintenance
crew foreman.
The I. A. M. claims that the unit which it seeks to represent is
composed of the employees normally considered to be machine shop
,employees. It contends that others, designated on the respondent's
pay roll as machine shop employees, do not properly fall within such
a unit. James Vidmar, machine shop superintendent, testified for
the respondent that in July and August 1939 there were only seven
employees in the machine shop who were machinists or who did work
which requires the services of experienced machinists. He also testified
GENERAL DRY BATTERIES, INC. 1033
that some employees, not included in the unit which the I. A. M. seeks,
were capable of performing the same work as others who are included
in the proposed unit and that "in time they will be machinists." How-
ever, it is clear that the unit which the I. A. M. desires is one composed
of the skilled craftsmen and their apprentices who are normally
included in machine shop units, and that maintenance men, although
capable of operating certain of the machines used by machinists do
not fall within this category. Moreover, the maintenance employees
are engaged in work throughout the plant, whereas the machinists work
in the machine shop. The other employees in the machine shop who
are sought to be excluded do work which is of a substantially different
character from that of the employees in the unit sought. Some of
them are eligible 'to membership in other craft unions.
There is no history of collective bargaining in the unit claimed by
the respondent to be appropriate, other than with the Employees Union
and the Bargaining Committee, both of which we have found were
dominated by the respondent. The'I. A. M. has consistently sought
recognition to represent the unit it now claims is appropriate.
We find that the machinists, machinists' helpers, tool and die makers,
electricians and "welders, excluding supervisory employees,3 employed
at the respondent's plant in Dubuque, Iowa, at all times material herein
constituted and now constitute a unit appropriate for the purposes
of collective bargaining with respect to rates of pay, wages, hours
of employment, and other conditions of employment, 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
effectuate the policies of the Act.
2. Representation by the I. A. M. of a majority in the appropriate unit
Of the 21 employees found to be within the appropriate unit 13
had applied for membership in Local 1238 of the I. A. M. prior to
June 25, 1939, and had been initiated by July 14, 1939. In addition
the I. A. M. also represented three employees of the respondent who
were members in good standing of Local 379 of the I. A. Al. during
June and July 1939.
We find that or, June 25, 1939, and at all times thereafter, the
I. A. M. was 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 it was the exclusive representative of all
the employees in said unit for the purposes of collective bargaining
with the respondent in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
8 Although the parties took no position as to supervisory employees , we shall follow our
usual practice and exclude them
1.034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to bargain
In the latter part of May or early in June 1939, Thomas Bell, Wil-
liam Lippstock, and Clarence Hacker, machinists who had been in-
formally selected as a committee by a group of I. A. M. members,
requested a wage raise of Thomas. There is a conflict in the testimony
as to whether or not this committee at that time identified itself
as one of the I. A. M. and informed Thomas that they represented
the machinists, welders and electricians, as testified to by Lippstock.
However, in view of the attempts to bargain which followed this re-
quest, we do not deem it necessary to resolve this question. Thomas
suggested that the men work 60 hours a week, thereby receiving over-
time pay, but after consulting other members of the I. A. M. the com-
mittee rejected the proposed alternative.
About the last of June the members of the committee again at-
tempted to interview Thomas but, since he was absent from the city,
they left with Foos a copy of a proposed contract with a request that
the respondent negotiate on the basis of the proposal. Foos informed
the committee that he had no authority in the matter but would report
to his superiors. Rock, to whom the proposal was sent in Cleveland,
replied by letter of July 6, 1939, that he was willing to bargain with
any organization which represented a majority of all the employees.
On July 13 the committee met with Rock and Thomas and requested
that the respondent bargain with them as representatives of the crafts-
men from the machine shop. Rock stated that he understood that
the Independent had a majority, and that he was required to and
would deal with any group which represented a majority of the em-
ployees. He refused to bargain with the committee for the craft group.
Albert J. Hayes, grand lodge representative of the I. A. M., notified
Rock and Thomas by telegram of July 18 that the members of the
I. A. M. employed by the respondent would not accept the Industrial
Union of Battery Crafts 4 as their bargaining agency. He also made
a formal request for recognition of the I. A. M. as exclusive bargain-
ing agency for machinists, electricians, and welders. No reply was
made to this telegram and, on August 4, 1939, the respondent entered
into the contract with the Bargaining Committee discussed above.
On August 31 Hayes conferred with Thomas and asked that the latter
meet with the I. A. M. committee to negotiate concerning a wage in-
crease. Thomas stated that he had no authority to agree to such a con-
ference but asked Hayes to return after Thomas had communicated
with Rock in Cleveland. When Hayes returned the same day Thomas
4 Hayes was apparently not aware of the fact that it was the Independent which was then
attempting to secure recognition from the respondent.
GENERAL DRY BATTERIES, INC. 1035
said that Rock had given him no definite decision but that Rock would
probably come to Dubuque later. Not having heard from Thomas,
Hayes called him on the telephone several weeks later and urged again
a wage increase for the machinists. Thomas replied that "he did not
believe much could be done regarding their wage rates" at that time.
No further effort was made to negotiate on behalf of the I. A. M.
The respondent based its refusal to bargain upon the alleged in-
appropriateness of the unit desired by the I. A. M. and upon its wish to
bargain with one unit composed of all its employees. It cites the fact
that employees in its Cleveland plant are represented by an American
Federation of Labor union upon an industrial basis. The organiza-
tional set-up in the respondent's Cleveland plant cannot, of course, be
controlling here, especially since the record discloses no other facts
concerning that plant, and since no bona fide union urges the appro-
priateness of an industrial unit here. The unit claimed by the I. A. M.
represents a customary grouping of skilled employees. The claim to
a different unit grew primarily out of the claims of the industrial
unions which we have found were the product of the respondent's un-
fair labor practices. Under the circumstances we are of the opinion
that the respondent's alleged doubt as to the apropriateness of the
unit cannot operate to relieve it of its obligation to bargain expressly
set forth in Section 8 (5) of the Act.
We find that on July 13, 1939, and at all times thereafter, the
respondent refused to bargain collectively with the I. A. M. as the
exclusive representative of its employees within an appropriate unit,
and that the respondent has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occur-
ring 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 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 shall order it to cease and desist therefrom and to take
such affirmative action as will remedy the effects thereof.
We have found that the respondent has dominated and interfered
with the formation and administration of the Employees Union, the
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial, the Independent,5 and the Bargaining Committee. In or-
der to effectuate the policies of the Act we will order the respondent
to withdraw all recognition from the Bargaining Committee as the
representative of any of the respondent's employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and conditions of work,
and disestablish it as such representative. Since the agreement of
August 4, 1939, between the respondent and the Bargaining Committee
embodies recognition of the Bargaining Committee as such representa-
tive, we will order the respondent to cease and desist froni giving effect
to it or any other agreement it may have entered into with the Bargain-
ing Committee in respect to rates of pay, wages, hours of employment,2n
or other conditions of employment.
Nothing in this Decision and Order should be taken to require
the respondent to vary those wage, hour, seniority, and such other
substantial features of its relations with the employees themselves,
-which the respondent established in performance of the invalid con-
tract as extended, renewed, modified, supplemented, or superseded.
We have further found that from July 13, 1939, and at all times
thereafter, the respondent refused to bargain collectively with the
1. A. M. as the exclusive representative of its employees in an appro-
priate unit. Accordingly, in order to effectuate the purposes of the
Act, we shall order the respondent to cease and desist from its unfair
labor practices, and upon request to bargain collectively with the
I. A M.
The respondent contends, however, that such an order is no longer
appropriate, since the record shows that the I. A. M. no longer repre-
sents a majority of the, employees in the appropriate unit. We find
this contention to be -without merit. The defections from the ranks
of the I. A. M. are the direct result of the respondent's unlawful
refusal to bargain with the 1. A. M. We do -not, therefore, recognize
the validity of such defections. To do so would be to permit the re-
spondent to evade its duty to bargain with the I. A. M. because of the
dissipation of its majority resulting from other of the respondent's
unfair labor practices.(' Apart from this, we hold that, in order
to effectuate the policies of the Act, the respondent's refusal to bargain
"Although it would appear that the Industrial and the Independent are no longer hr
existence, since there is some doubt as to their status we shall order the respondent to,
refrain from recognizing them.
ON. L R B v. Bradfoi d Dyeing Association (U S A.), 60 S Ct 918, reversing 106 F.
(2d) 119 (C C A 1) and enf'g Matter of Bradford Dyeing Association (U. S. A.) (a
Corporation) and Textile Workers' Organsmng Committee of the C 1 0 , 4 N. L R. B 604 ;
and National Labor ReZations Board Y. Somerset Shoe Coinvany, III F. (2d) 681 (C. C. A.
1) enf'g, as modified as to other issues, Matter of Somerset Shoe Company and United Shoe
Workers of America, 5 N. L R B. 486.
GENERAL DRY BATTERIES, INC. 1037
must be remedied by an order to bargain collectively based on the
majority obtaining on July 13, 1939, when the respondent first re-
fused to bargain with the I. A. M.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONcI sIoNs OF LAW
1. International Association of Machinists, Lodge 1238, affiliated
with the American Federation of Labor, General Dry Batteries Em-
ployees Union, the Industrial Union of Battery Crafts, the Electro-
Chemical Workers Independent Union, and the Bargaining Com-
mittee, comprised of Edmund Breitbach, Maxalinda Carroll, Paul
Kane, Earl Liddle, Hilda Roth, Wilson Kiernan, and Ray Roling,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. The respondent's employees engaged as machinists, machinists'
helpers, tool and die makers, electricians and welders, excluding
'supervisory employees, constitute, and at all times material herein
constituted, a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
- 3. International Association of Machinists, Lodge 1238, affiliated
with the American Federation of Labor, was on June 25, 1939, and
at all times thereafter, the exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively, on July 13, 1939 and at
all times thereafter, with the International Association of Machinists,
Lodge 1238, A. F. of L., as the exclusive representative of its em-
ployees in such unit, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (5) of
the Act.
5. By dominating and interfering with the formation and ad-
ministration of, and by contributing support to General Dry Batteries
Employees Union, Industrial Union of Battery Crafts, Electro-
Chemical Workers Independent Union, and the Bargaining Com-
mittee, comprised of Edmund Breitbach, Maxalinda Carroll, Paul
Kane, Earl Liddle, Hilda Roth, Wilson Kiernan, and Ray Roling, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) 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
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
respondent, General Dry Batteries, Inc., Dubuque, Iowa, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, Lodge 1238, A. F. of L., as the exclusive repre-
sentative of the machinists, machinists' helpers, tool and die makers,
electricians and welders, excluding supervisory employees, employed
at its Dubuque, Iowa, plant, with respect to rates of pay, wages,
hours of work, or other conditions of employment;
(b) Dominating or interfering with the administration of Gen-
eral Dry Batteries Employees Union, or the Industrial Union of
Battery Crafts, or the Electro-Chemical Workers Independent
Union, or the Bargaining Committee, comprised of Edmund Breit-
bach, Maxalinda Carroll, Paul Kane, Earl Liddle, Hilda Roth, Wil-
son Kiernan, and Ray Roling, or with the formation and adminis-
tration of any other labor organization of its employees, and from
contributing support to any of the above-named labor organizations,
or to any other labor organization of its employees ;
(c) Giving effect to any contract or agreement which it may have
entered into with the Bargaining Committee, composed of Edmund
Breitbach, Maxalinda Carroll, Paul Kane, Earl Liddle, Hilda Roth,
Wilson Kiernan, and Ray Roling, in respect to rates of pay, wages,
hours of work, or other conditions of employment ;
(d) 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) Upon request bargain collectively with Lodge 1238, Interna-
tional Association of Machinists, A. F. of L., as the exclusive repre-
sentative of the machinists,' machinists' helpers, tool and die makers,
electricians and welders, excluding supervisory employees, employed
at the respondent's plant-in Dubuque, Iowa, with respect to rates of
GENERAL DRY BATTERIES, INC. 1039
pay, wages, hours of work, and other conditions of employment;
(b) Withdraw all recognition from, and completely disestablish,
the Bargaining Committee, composed of Edmund Breitbach, Maxa-
linda Carroll, Paul Kane, Earl Liddle, Hilda Roth, Wilson Kiernan,
and Ray Roling, and refrain from recognizing the General Dry
Batteries Employees Union, the Industrial Union of Battery Crafts,
and the Electro-Chemical Workers Independent Union, 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;
(c) Post immediately in conspicuous places in its plant and keep
posted for a period of at least sixty (60) consecutive days from the
date of posting, notices to its employees stating (1) that the respond-
ent will not engage in the conduct from which it is ordered to cease
and desist in paragraphs 1 (a), (b), (c), and (d) of this Order;
and (2) that the respondent will take the affirmative action set forth
in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Eighteenth Region in
writing within ten (10) days from the date of this Order what
steps it has taken-to comply herewith.