Lima Electric Products, Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1953

104 N.L.R.B. 344 (N.L.R.B. 1953)

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Retail Clerks International Association , A. F. L., is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By interfering with , restraining , and coercing its employees in the exercise of 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 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication. ]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT grant wage increases to our employees during the pendency of a rep-
resentation petition for the purpose of causing our employees to vote against Retail
Clerks International Association , A. F. L.
WE WILL NOT interrogate our employees about attendance at a union meeting.
WE WILL NOT advise our employees that collective bargaining with a labor organiza-
tion would be futile.
WE WILL NOT threaten to close our Elkins, West Virginia , store in the event of
excessive demands or a strike by a labor organization.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor organiza-
tions , to join or assist Retail Clerks International Association , A. F. L., or any other
labor organization , to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or mutual aid
or protection , or to refrain from any or all such activities , except to the extent that such
right may be affected by an agreement requiring membership in a labor organization as a
condition of employment , as authorized in Section 8 (a) (3) of the Act.
W. T. GRANT COMPANY
Dated ............... By......................................................................................... .
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be altered,
defaced, or covered by any other material.
LIMA ELECTRIC PRODUCTS, INC. and METAL AND MA-
CHINERY WORKERS OF AMERICA, IND. Case No. 8-CA-
573. April 24, 1953
DECISION AND ORDER
On September 24, 1952, Trial Examiner Henry J. Kent
issued his Intermediate Report in the above-entitled proceed
ing, finding that the Lima Electric Products Shop Branch
of the Union was a noncomplying labor organization and
104 NLRB No. 61.
LIMA ELECTRIC PRODUCTS, INC. 345
recommending dismissal of the complaint herein, as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the Trial Examiner's rulings
made at the hearing and finds no prejudicial error was
committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
brief, and the entire record in the case, and hereby adopts
only those findings and conclusions of the Trial Examiner
which are consistent with this Decision and Order and, in
addition, makes the following findings of fact and conclusions:
I. THE BUSINESS OF THE RESPONDENT
Lima Electric Products, Inc., is an Ohio corporation having
its office and place of business and plant in Lima, Ohio,
where it is engaged in the manufacture and sale of electric
motors. The Respondent annually purchases outside the State
of Ohio raw materials valued at more than $25,000. It sells
products valued at more than $350,000, which are shipped in
interstate commerce to points outside the State of Ohio.
We find that the Respondent is engaged in commerce within
the meaning of the Act and that it would effectuate the policies
of the Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED
A. The status of the Lima Electric Products Shop Branch
We find that the Union is a labor organization within the
meaning of the Act. We also find, in agreement with the Trial
Examiner, that the Lima Electric Products Shop Branch of the
Union, herein called the Shop Branch, is a labor organization
within the meaning of the Act. The Shop Branch was established
at the Respondent's plant by the Union shortly after the Union
was certified as the representative of the Respondent's em-
ployees. Although the Shop Branch is not chartered, its officers
have negotiated with the Respondent concerning grievances and
they have attended contract negotiation meetings between the
Respondent and the Union. Under the Union's constitution, no
strike may be called or terminated, and no contract demands
may be made or settled, except with the consent of the members
of the Shop Branch' In view of the foregoing, and upon consid-
eration of all the other evidence, more fully detailed in the
Intermediate Report, we are convinced that the Shop Branch
falls within the statutory definition of a labor organization.
B. The effect of noncompliance by the Shop Branch
The Trial Examiner found, and we agree, that the Shop
Branch has not complied with Section 9 (f), (g), and (h) of
1 Article XVI, section 3, of the Union 's constitution.
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. We do not, however, agree with the Trial Examiner
that such noncompliance precluded the issuance of the instant
complaint upon charges filed by the certified Union, which has
been in compliance at all material times. The charges and
complaint allege a refusal to bargain only with the certified
Union. Contrary to the view expressed by the Trial Examiner,
the Act does not require compliance by unions with the filing
requirements of Section 9 of the Act at every level of organiza-
tion. Where a union files the kind of unfair labor practices
charges involved in this case, such compliance is required only
of the charging union and any national or international labor
organization with which it is affiliated. Such compliance is not,
however, required by the Act of any labor organizations which,
like the Shop Branch in the instant case, are subordinate to
the charging union. However in these circumstances, purely
as a matter of, policy, in order fully to effectuate the general
policies of Congress in the field of compliance, the Board
has conditioned any order to bargain with a charging union
upon timely compliance by its subordinate body or local.2
We shall therefore entertain the complaint and proceed to
a consideration of the merits of the allegations and the
contentions of the parties.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
It is undisputed that shortly after the Respondent began
operations in 1947, the Lima Motor Builders Association,
an unaffiliated labor organization, herein called Motor Builders,
was formed and entered into a series of collective-bargaining
agreements, the last of which terminated on October 30, 1951.
In July 1951, according to the undenied testimony of Ernest
Schmenk (the president of Motor Builders) and Richard
Tussey (secretary of the Union), Tussey accepted an invitation
from Schmenk to attend a meeting of Motor Builders and
explain to the members the advantages of belonging to the
Union rather than to Motor Builders. Thereafter, during July
and August 1951, Tussey held several organizational meetings
at Lima and secured signed designation cards for the Union
by his own solicitation and that of Ernest Schmenk and other
employees.
On August 14, 1951, the Unionfiled a petition for certification
with the Board. A consent election, held on September 14,
was won by the Union, and on September 21, 1951, the Union
was certified as exclusive bargaining representative of Re-
spondent's production and maintenance employees. On Sep-
tember 25, 1951, Tussey called a meeting of union members
for the purpose of setting up the Shop Branch and electing
officers. As related in more detail below, the Respondent
=General Armature & Manufacturing Co , 89 NLRB 654, 661, enfd. 192 F. 2d 316 (C.A. 3),
cert. den . 343 U.S. 957; Atlanta Metallic Casket Company, 91 NLRB 1225, 1237; U.S. Gypsum
Company, 100 NLRB 1100.
LIMA ELECTRIC PRODUCTS, INC. 347
thereafter entered into contract negotiations with the Union,
which were broken off on February 4, 1952, upon the filing
of a decertification petition.
The instant complaint , alleging violations by the Respondent
of Section 8 (a) (5) and 8 (a) (1) of the Act was issued on May
21, 1952.
B. Interference , restraint , and coercion
The complaint alleges that the Respondent violated Section
8 (a) (1) of the Act by questioning its employees as to their
union activities, membership, and sympathies, and as to the
activities of the Union, and by threatening them with various
reprisals for union activity.
1. The interviews of August 9, 1951
It is undisputed that on the afternoon of August 9, 1951,
a few days after the Union had held an organizational meeting
among Respondent ' s employees , Jacobs, the Respondent's
plant manager, requested that the approximately 20 girls
working in the winding pool come into his office , 1 at a• time.
Jacobs testified that this was done to find out the cause of
disruption he had noticed earlier in the day.
There is conflicting testimony as to what occurred at
these interviews . The only persons testifying about these
interviews were Jacobs and four of the employees who were
interviewed. They testified as follows:
Employee Archer testified that in the morning of August 9
Jacobs had a conversation with her in the plant , in the course
of which he asked her, "What about this union, this new
union? " and whether it was an independent union. In the after-
noon of the same day she was interviewed, like the others,
in Jacob's office, where, as she testified, he asked her
"What about these cards ?" Jacobs denied any interrogating
of Archer about the Union in the morning of August 9; as to
the afternoon interview, he stated only that "she simply
indicated that she was satisfied with her work." In testifying
about the afternoon interviews with Archer and the other
employees, Jacobs referred to notes he had taken at the
interviews, explaining that he did not in every case have an
independent recollection of the employee's answers to his
questions. These notes were fragmentary and cryptic. Thus,
his only note on the Archer interview was the comment
"satisfied," followed by a question mark.
Employee Gilroy testified that Jacobs asked, "Do you know
anything about the cards?" indicating a card of the same size
and color as the union-authorization card. While Jacobs
testified that, at the time of the interview, he did not have
a union-authorization card in his possession , he did not
specifically deny asking Gilroy the foregoing question.
Employee Wood testified that Jacobs "wanted to know why
we wanted a new union in" and "when the cards were passed
out." Jacobs denied generally that he had discussed union
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities with her. Wood also testified that Jacobs said,
"That if anybody had come in there and said they were
satisfied with their job and then he found out they signed
a union card, that would place their job in jeopardy." Jacobs
denied making this statement.
Employee Shepherd testified that during her interview with
Jacobs he said, "If this trouble starts out here we are going
to buy a winding machine [and] all you winders will be out of
work." According to her testimony, this statement was made
in the context of antiunion remarks by Jacobs. Jacobs did not
specifically controvert this testimony.
Jacobs alone testified as to the interviews with other
employees on August 9. He admitted, on direct examination,
that when employee Hillary in the course of her interview
said that "they gave her a card to sign," he asked her if
she had the card. He also testified on direct examination
that he asked employee Williamson "whether there was any
agitation of any kind in the department with respect to some
other union." On cross-examination, the following colloquy
occurred between the attorney for the General Counsel and
Jacobs (after he had denied interrogating Wood):
Q. I asked about the rest of the girls. Did you discuss
union activity with any of those girls?
A. I didn't deny that.
Q. You mean you did discuss the union with them?
A. Yes, sir.
2. Other interrogation and threats of reprisal
Employee Ernest Schmenk, an officer of Motor Builders and
also the first president of the Shop Branch, testified that he was
interviewed by Jacobs in the latter's office about August 21,
1951, and was asked "whether these cards were being passed
out amongst us, what the meaning of it was, why they were being
passed out," and "how many had signed up." Jacobs admitted
calling Schmenk into his office and asking him "what these cards
were," and that Schmenk told him "they had filed a union known
as Metal and Machinery Workers."
Ernest Schmenk also testified that 2 or 3 days before the
election Gideon, one of Respondent's officers, approached him
and asked, "Why we was holding this election and why I
thought it was necessary to hold anelection?" Gideon admitted
the substance of this conversation.
Schmenk testified further that about a week before the
election Powell, a supervisor,3 said to him, "It wouldn't
do any good if we won the election because Mr. Reeder
[Respondent's president] would not bargain with any outside
organization. He would close the plant down before he would
bargain with any other organization."
s Although the Respondent refused to stipulate that Powell was a supervisor , the undisputed
testimony shows that he has power effectively to recommend the hiring and discharge of em-
ployees and that he responsibly directs the work of employees . We therefore find that he is
a supervisor within the meaning of the Act.
LIMA ELECTRIC PRODUCTS, INC. 349
Employee Archer testified that on or about August 10, 1951,
while she was reading an announcement on the plant bulletin
board about a meeting called by Motor Builders, Supervisor
Powell asked her if she was going to the meeting, and that
when she asked Powell when she would get some overtime,
she was told, "We wouldn't be getting any time in, let alone
overtime, because he knew that Mr. Reeder [the president
of the Respondent] would close the place down before he
would let another Union come in and dictate to him."
Employee Goldsmith also testified that during a conversa-
tion with Powell, approximately 1 week before the election,
Powell told him, "If this other union would get in, it was
probable that the shop would close down and that Mr. Reeder
wouldn't allow. . . this other union in."
Employee Richard Schmenk testified that about 3 days
before the election, Powell approached him and commented,
"Mr. Reeder would keep the guys that was for him and the
guys that was against him he would see to it that he would
let them go, he was just that kind of guy and he would do
that."
Powell did not testify at the hearing.
3. Conclusions
It is undisputed, and we find, that Jacobs interrogated em-
ployees Hillary, Williamson, and Ernest Schmenk about their
union activities.' In view of the foregoing admissions , Jacobs'
further admission that in the August 9 interviews he had
'discussed union activities with unspecified employees, his
admittedly faulty recollection of what had occurred at many
of these interviews, and the mutually corroborative nature
of the testimony of employees Archer, Gilron, and Wood,
we do not credit any of Jacobs denials as to his interrogation
of these employees. For like reasons, we do not credit his
denial of the threats imputed to him by Shepherd and Wood.
We find, therefore, that in the morning of August 9 Jacobs
interrogated Archer about her union activities and that in the
afternoon of that day he similarly interrogated Archer,
Gilroy, and Wood, and that he threatened Wood and Shepherd
with reprisals for union activity.
We find, also, in accordance with Ernest Schmenk's testi-
mony, as corroborated by Gideon' s admissions , that in Sep-
tember 1951 Gideon, an officer of Respondent, interrogated
him about the Union.
In the absence of any denial of Supervisor Powell's threats
to and interrogation of Archer and the other employees men-
tioned above, we find that Powell engaged in such interrogation
'Jacobs testified that he did not know about the charging Union when he interviewed these
three employees, that his questions were therefore meant to relate only to the activities of the
incumbent Motor Builders , and that he construed the employees' answers as referring to that
union only . Even if we credit this testimony , it does not state a valid defense . The complaint
alleged interrogation about the employees ' "union activities ," without limitation to any par-
ticular union . Moreover , the employees ' answers to Jacobs ' questions show that the employees
understood them to relate to the charging Union rather than Motor Builders.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and threats. Although President Reeder denied making the
statements which Powell attributed to him, the Respondent
is responsible for the statements of its supervisors, whether
or not specifically authorized, particularly in the absence of
any attempt on its part to repudiate such conduct.6
We find that by the interrogation and threats of reprisal
set forth above the Respondent has interfered with, restrained,
and coerced its employees in the exercise of their statutory
rights and has thereby violated Section 8 (a) (1) of the Act.6
The General Counsel alleges other violations of Section 8
(a) (1) of the Act.7 Upon the entire record, we are not satis-
fied that the General Counsel has established such violations
by the preponderance of the evidence. Accordingly, we shall
dismiss the complaint as to those allegations.
C. The refusal to bargain
The complaint alleges, the answer admits, and the Board
now finds, that all of the Respondent's production and mainte-
nance employees, excluding office clerical -employees, pro-
fessional employees, guards, and supervisors as defined in
the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of the Act.
As already stated, a Board election conducted on September
14, 1951, among the Respondent's employees in the above unit
was won by the Union, and on September 21, 1951, the Union
was certified by the Board as the exclusive bargaining repre-
sentative of the employees. In accordance with that certifica-
tion, the Board finds that since September 21, 1951, the Union,
has been the exclusive bargaining representative of said
employees in the appropriate unit.
Pursuant to the Union's request, contract negotiations began
on October 22, 1951, and continued until February 4, 1952,
when the Respondent announced that it had received notice of
a decertification petition filed by an employee alleging that
Lima Independent Motor Builders Association, a newly formed
unaffiliated labor organization, was the representative of
the employees in the unit. It is undisputed that the Respondent
then announced that it would suspend negotiation meetings
until the decertification petition was acted upon. Moreover,
Plant Manager Jacobs testified that a request during the
following week by an officer of the Shop Branch to resume
negotiations was rejected on the same grounds. No further
negotiation meetings were held, although the decertification
petition was subsequently dismissed and Respondent was so
notified on or about March 5, 1952.
As the Union was certified on September 21, 1951, the
Respondent's refusal to negotiate occurred well within the
6Edwards Brothers , Inc., 95 NLRB 1451.
6Somerset Classics, Inc ., 90 NLRB 1676; Syracuse Color Press, Inc., 103 NLRB 377.
t The allegations include ( 1) urging and persuading employees to abandon their union ac-
tivities and membership and to influence others to do likewise ; and (2) causing its employees
to suffer loss of economic benefits , including wage cuts , because of their activities and
membership in the Union.
LIMA ELECTRIC PRODUCTS, INC. 351
certification year. Hence, the filing of the petition for decerti-
fication did not relieve the Respondent of the duty to bargain
with the certified Union.' Moreover, although the decerti-
fication petition was dismissed by the Regional Director on
March 4, 1952, on the ground that it was prematurely filed,
Respondent did nothing to resume negotiations, or to revoke
its suspension thereof.9 We find, therefore, that the Re-
spondent's refusal on February 4, 1952, and thereafter, to
bargain with the Union violated Section 8 (a) (5) and (1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring
in connection with the operations of the Respondent described
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 Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist there-
from and take certain affirmative action designed to effect-
uate the policies of the Act.
As we have found that the Respondent has refused to bargain
collectively with the Union as the exclusive representative
of the employees, we shall order the Respondent to bargain
collectively with the Union. However, as the Lima Electric
Products Shop Branch of the Union is not in compliance with
Section 9 (f), (g), and (h) of the Act, we will, in accord with
our usual policy, condition our bargaining order on compliance
by the Shop Branch within 30 days from the date of this
Order.10
The violations of the Act which Respondent committed are
in the opinion of the Board interrelated to other unfair labor
practices prohibited by the Act and the danger of their
commission in the future is to be anticipated from Respondent's
conduct in the past. The preventive purposes of the Act will
be thwarted unless the order is coextensive with the threat.
In order, therefore, to make more effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor
practices, and thereby effectuate the policies of the Act by
minimizing the industrial strife which burdens and obstructs
commerce, it will be ordered that the Respondent cease and
desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
8 The Belden Brick Co., 83 NLRB 465.
9Greider Machine Tool & Die Co., 49 NLRB 1325.
10 General Armature & Manufacturing Company, supra: Atlanta Metallic Casket Company,
supra.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Metal and Machinery Workers of America, Ind., and its
Lima Electric Products Shop Branch are labor organizations
within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of Lima
Electric Products, Inc., Lima, Ohio, excluding office clerical
employees, professional employees, guards, and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of the
Act.
3. Metal and Machinery Workers of America, Ind., was on
September 21, 1951, and at all times since has been, the
exclusive bargaining representative of all employees in the
aforesaid unit for purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing on and after February 4, 1952, to bargain
collectively with aforesaid Union as the exclusive representa-
tive of all employees in the aforesaid appropriate unit, the
Respondent has engaged in and is engaging in an unfair labor
practice within the meaning of Section 8 (a) (5) of the Act.
5. By the aforesaid unfair labor practice and other unfair
labor practices as found herein, the Respondent has inter-
fered with, restrained, and coerced its employees in the exer-
cise of rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
ORDER
Upon the entire record in this case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent, Lima Electric Products, Inc., Lima, Ohio, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Metal and Machin-
ery Workers of America, Ind., as the exclusive representative
of all production and maintenance employees at the Lima, Ohio,
plant of the Respondent, excluding all office clerical em-
ployees, professional employees, guards, and supervisors as
defined in the Act, if and when the Lima Electric Products
Shop Branch of the aforesaid labor organization shall have
complied, within thirty (30) days from the date of this Order,
with Section 9 (f), (g), and (h) of the Act.
(b) Interrogating its employees concerning their member-
ship in or activities on behalf of any labor organizaton, and
threatening its, employees with reprisal or economic loss
because of their union affiliation, activities, or sympathies.
(c) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of the right of self-
organization, to form labor organizations, to join or assist
LIMA ELECTRIC PRODUCTS, INC. 353
any labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Upon request, and upon compliance by the Lima Electric
Products Shop Branch of Metal and Machinery Workers of
America, Ind., with the filing requirements of the Act in
the manner set forth above, bargain collectively with Metal
and Machinery Workers of America, Ind., as the exclusive
representative of all employees in the above-described unit
with respect to rates of pay, wages, hours of employment,
or other conditions of employment, and if an understanding
i,s reached, embody such understanding in a signed agreement.
(b) Post at its plant in Lima, Ohio, copies of the notice
attached hereto and marked "Appendix A." 11 Copies of such
notice, to be furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent immedi-
ately upon receipt thereof, in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the Eighth Region, in
writing, within ten (10) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed in all other respects.
tt In the event that this Order is enforced by a decree of the United States Court of Appeals,
there shall be substituted for the words "Pursuantto a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that:
WE WILL NOT interrogate our employees concerning
their membership or activities on behalf of any labor
organization.
WE WILL NOT threaten our employees with reprisals
or economic loss because of their union affiliation,
activities, or sympathies.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist any labor organization, 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.
WE WILL bargain collectively with Metal and Machinery
Workers of America, Ind., as the exclusive representative
of all employees in the bargaining unit described below,
provided Lima Electric Products Shop Branch of said
union complies with Section 9 (f), (g), and (h) of the Act,
as amended, within thirty (30) days from the date of the
aforesaid Order of the Board, with respect to rates of
pay, hours of employment, or other conditions of employ-
ment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit
is:
All production and maintenance employees of Lima
Electric Products , Inc., Lima, Ohio , excluding all
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
LIMA ELECTRIC PRODUCTS, INC.,
Employer.
Dated ................ By....................................................
(Representative ) (Title)
This notice must remain posted for 60 days from the date
hereof , and must not be altered , defaced, or covered by any
other material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Metal and Machinery Workers of America, Ind ., herein called
the Union , the General Counsel of the National Labor Relations Board,i by the Regional
Director for the Eighth Region (Cleveland , Ohio), issued a complaint dated May 21, 1952,
against Lima Electric Products , Inc , of Lima, Ohio , herein called the Respondent , alleging
that Respondent had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, as amended , 61 Stat. 136, herein called the Act. Copies of the
complaint , all charges filed by the Union and served upon the Respondent , together with
notice of hearing thereon , were duly served upon the parties
With respect to the unfair labor practices , the complaint , as amended , alleged in sub-
stance that the Respondent (1) on or about February 4 , 1952, and thereafter refused to
bargain collectively with the Union as the exclusive representative of the Respondent's
employees in an appropriate unit ; and (2) that Respondent otherwise interfered with the
rights of employees to freely organize by (a) interrogating its employees regarding the
union activities ; and (b) questioning its employees as to their union activities , member-
i The General Counsel and his representative in this case are referred to herein as the
General Counsel . The National Labor Relations Board is referred to as the Board.
LIMA ELECTRIC PRODUCTS. INC. 355
ship, and sympathies ; urging or persuading its employees to form and join an unaffiliated
plant labor organization in preference to the Union ; and threatening its employees with
loss of employment or other economic benefits if they assisted or joined the Union.
In its amended answer duly filed , the Respondent in substance admitted the factual allega-
tions in the complaint regarding its business operations , but denied committing the alleged
unfair labor practices As Respondent ' s principal affirmative defense, the answer averred
in substance that the complaint unlawfully issued because the Union established a local
labor organization of its members at the plant to negotiate grievances and other matters
of concern to the employees in the bargaining unit 2 4 days after the charging Union herein
had been certified as bargaining representative by the Board ' s Regional Director , and that
the said plant organization , known as the Lima Electric Products Shop Branch of the parent
union , herein called Shop Branch , failed to comply with the filing requirements of Section
9 (f), (g), and (h) of the Act before the issuance of the complaint herein on May 21, 1952.
As a further affirmative defense the answer in substance avers : The Respondent met with
representatives of the Union and its Lima Electric Products Shop Branch in an effort to
negotiate a proposed contract on October 22, 25 , 26, 29 , November 12, 13 , and 26, 1951,
January 22 , 28, and February 4, 1952 , and further asserts that on January 28, 1952, the Lima
Independent Motor Builders Association served on the Respondent a copy of a letter together
with a copy of a petition for decertification (both dated January 26 , 1952) which said letter
asserted that the decertification petition had been previously mailed to the Regional Director
for the Eighth Region and that as a consequence thereof the Respondent asserts that it
could not legally continue bargaining relations with the Union and Its local branch unit until
the question of representation raised was settled.
Pursuant to notice a hearing was held at Lima. Ohio , on June 16 , 17, 18 , and 19, 1952,
before the undersigned duly designated Trial Examiner . The General Counsel and the Re-
spondent were each represented by counsel and the Union by a representative , all of whom
participated in the hearing. Full opportunity to be heard , to examine and cross -examine
witnesses , and to introduce eivdence bearing on the issues was afforded all parties.
When the General Counsel rested his case - in-chief, the Respondent moved to dismiss
the complaint in its entirety , and each of the several allegations thereof . The motion was
denied without prejudice subject to later renewal . Respondent 's counsel renewed the motion
at the close of the hearing and ruling was reserved pending consideration of the entire
record and it is now disposed of by the findings , conclusions , and recommendations made
below in this Intermediate Report.
Following the presentation of the evidence adduced by the parties , the General Counsel
and counsel for the Respondent each presented oral agrument before the undersigned. The
parties were then granted 20 days' time in which to file briefs ; time was thereafter extended
to July 31 to file briefs , and briefs from the Respondent and the Union have been duly received.
The Respondent on June 23 . 1952 (4 days after the hearing closed) filed an appeal with
the Board from an administrative decision of the Regional Director of the Eighth Region dated
June 12 , 1952, holding that compliance with Section 9 (f), (g), and (h) of the Act was not
required of the Lima Electric Products Shop Branch of the Union because the said Shop
Branch is not a local within the meaning of Board policy requiring locals to be in compliance
with the Act . The said appeal being tantamount to a motion to dismiss the complaint in the
case (a motion already pending before the undersigned ) Associate Chief Trial Examiner
Bokat referred the matter to the undersigned for consideration and recommendation in the
latter ' s Intermediate Report.
The said application for appeal has been physically entered in the record as Trial Exanf
iner ' s Exhibit No 1 and a letter dated June 23 , 1952 , from Mr . Bokat to the Respondent's
counsel notifying the latter that the matter had been referred to the undersigned for ruling
is likewise entered in the record as Trial Examiner ' s Exhibit No IA . The Trial Examiner's
ruling is disposed of by his findings and conclusions made below.
Upon the entire record in the case , and upon observation of the demeanor of witnesses,
I make the following:
to full slate of officers was elected on September 25, 1951, and since that time the said
branch organization has collected dues from the employee members in the plant , processed
grievances for the employees , and by its negotiating committee participated in all contract
negotiations thereafter held with the Respondent.
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
A. The alleged unfair labor practices
1. The issues
The issues raised by the pleadings are: (1 ) Whether the Respondent refused to bargain
with the Union on and after February 4 , 1952 ; (2) whether the Respondent otherwise interfered
with the rights of employees to freely organize ; and (3 ) whether the instant complaint un-
lawfully issued on May 21, 1952 , because the so-called Shop Branch of the parent national
union (which latter organization filed the underlying charge) had not complied with the filing
requirements of Section 9 (f), (g), and (h) of the amended Act. 3
In the opinion of the undersigned , the principal question posed for decision is whether
the complaint herein lawfully issued Because , from the facts and conclusions found below
regarding the formation and activities of the Shop Branch , he has concluded that compliance
with the filing requirements of Section 9 (f), (g), and (h) of the Act was required by the said
Shop Branch before the issuance of a complaint , he will therefore recommend that the com-
plaint be dismissed . In these circumstances , I deem it unnecessary to make specific findings
and recommendations regarding the several unfair labor practices alleged in the complaint.
but will only make formal findings regarding the formation and activities of the Shop Branch.4
2. The advent of the Union ; the consent election and certification of the national union as
exclusive representative
It is undisputed that the Respondent began to operate its Lima , Ohio, plant in 1947, that
shortly thereafter an unaffiliated labor organization was formed , known as the Lima Motor
Builders Association , and that this organization thereafter entered into a series of collective-
bargaining agreements , the last of which ran for a term ending on October 30, 1951.
According to the credited and undenied testimony of Richard Tussey (secretary of Metal
and Machinery Workers of America, Ind ., herein called Metal and Machinery Workers), and
Ernest Schmenk (then president of the Lima Motor Builders Association , herein called Motor
Builders ,), Schmenk invited Tussey to attend a meeting of the Motor Builders in July 1951 and
explain to the members of the Motor Builders the advantages of belonging to the Metal and
Machinery Workers national union.
Tussey accepted the invitation and thereafter during July and August 1951 Tussey held
several organizational meetings at Lima for the Metal and Machinery Workers . It is undis-
puted that at some of these organizational meetings Schmenk, some of the other officers and
members of the Motor Builders signed designation cards for the Metal and Machinery Workers
and thereafter solicited other members of the Motor Builders to sign such cards.
On August 14, 1951, Tussey filed a petition for certification on behalf of his union with the
Board . Thereafter a consent -election agreement was signed by the Union and the Respondent
which was approved by a Board agent on September 7, 1951 . An election was conducted by a
Board agent on September 14, 1951,5 which the Union won,6 and on September 21, 1951, the
Regional Director for the Board ' s Eighth Region certified the Metal and Machinery Workers
of America , Ind., as exclusive representative for a unit comprised of production and mainte-
nance employees.
3. The organization of the Luna Electric Products Shop Branch of the Metal and Machinery
Workers of America, Ind.
it is undisputed that Tussey called a meeting of the members of the Metal and Machinery
Workers employed at the plant on the night of September 25, which was attended by about 30
employees , for the purpose of setting up a plant organization.
6 The compliance officer at the Regional Office by letter dated June 9, 1952, stated in sub-
stance that the Shop Branch has never complied with the filing requirements.
Thereafter , on June 12, 1952, the Regional Director in response to objections raised by
the Respondent stated in substance that the said Shop Branch has no status as a chartered
local labor organization , but is merely an administrative unit of the parent national union and
that therefore the Shop Branch is not required to be in compliance.
4Sunbeam Corporation , 98 NLRB 525; cf. Wells Manufacturing Corporation, 85 NLRB 23.
SThe name of the Motor Builders , currently party to an existing contract with the Respond-
ent, did not appear on the ballot.
6 The tally of ballots in evidence shows that there were approximately 45 eligible voters in
the unit; that 1 void ballot and41valid ballots were cast; that 23 votes were cast for the Union
and 18 votes against it. No objections to the conduct of the election were thereafter filed.
LIMA ELECTRIC PRODUCTS, INC. 357
At this meeting, according to the credited and undenied testimony of Tussey, employees
Ernest Schmenkand RuthArcher, allofwhomwere called as witnesses by the General Counsel,
a full slate of officers was elected to head up the Lima Electric Products Shop Branch of the
parent union and the following were elected to office:
Ernest Schmenk, President
Wilbur Ziegler, Vice President
Betty Gilroy, Secretary
Ruth Archer, Treasurer
Fred Walker, Shop Steward
Richard Schmenk, Men's Steward
Helen Shepherd, Women's Steward?
It is also undisputed that, after the election of officers was concluded at this meeting, a
motion was also passed to transfer the bank account (amounting to about $600) of the Lima
Motor Builders Association to the newly formed Shop Branch of the Union. Ruth Archer
testified that as former acting treasurer of the Motor Builders and the newly elected treas-
urer of the Shop Branch, she later effected a transfer of the funds to a bank account opened
for the Shop Branch in a Lima bank. 8
4. The participation of the Shop Branch in grievance and contract negotiations
On September 26, 1951, before the Union by letter dated October 16, 1951, made its first
formal request tobargain, the wage committee of the Shop Branch filed a written grievance
with Respondent's plant manager, Jacobs, objecting to the assignment of work to part-time
employees when regular employees have been allegedly laid off. Jacobs credibly testified
without contradiction that he met with the committee and told the committee members that
the grievance was without merit because it pertained to using an extra male employee on
winding work during the second shift (work ordinarily performed by females on the day shift),
because the regularly employed female workers did not work on the night shift, and that this
explanation satisfactorily disposed of this grievance. Thereafter the Shop Branch committee
presented and negotiated other grievances absent the presence of a representative from the
parent national union.
By letter dated October 16, 1951, the Union requested the Respondent to begin negotiations
on October 22, 1951, concerning a collective-bargaining agreement. A copy of a proposed
agreement was enclosed with the letter. This agreement shows that if and when it was con-
summated it was to be signed on behalf of the Union by a national representative, the chair-
man of the shop committee, and two other members of the shop committee. 9
On October 22 Tussey, accompanied by substantially all of the members of the Shop Branch
negotiating committee, met with Respondent's representatives to commence contract negoti-
7 Within a day or two thereafter the branch officers submitted a written list containing the
above names together with the names of the respective office to which they had been elected to
Respondent . The said list contained an underwriting stating: "These people are on the wage
and negotiating committee [of the Union].-
8 On March 29 , 1952, Omar M. Graham ( a one-time president of the Motor Builders)
started a suit in the Common Pleas Court of Allen County, Ohio, on behalf of Graham and all
other similarly situated against the Lima Electric Products Shop Branch of Metal and Ma-
chinery Workers of America , Ind., for the purpose, in effect, of obtaining a pro- rata distri-
bution of the funds of the Lima Motor Builders Association to the members of said Motor
Builders , which allegedly had been illegally transferred to the said Shop Branch of the Union.
This suit is still pending before the State court.
9Tussey testified as follows regarding the purpose of having shop committeemen sign the
agreement:
The reason it is on there is because the shop committees have to handle grievances on
the lower levels and have to understand their contract and that consequently [ shop corn-
mitteemen participate] in contract negotiations.
Additionally, the constitution of the parent , union (article XVI, section 3) states:
No strike shall be called and no demands made except by [majority ] vote of the mem-
bers working at the plant concerned . No strike shall be ended and no settlement of de-
mands accepted, except by vote of the membership concerned.
283230 0 - 54 - 24
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations There is no substantial disagreement that thereafter subsequent negotiation meetings
were held on October 25, 26, 29, November 12, 13, 26, 1951, and January 22, 28 , and February
4, 1952, and that at substantially all of these meetings Tussey was usually accompanied by
three members of the shop negotiating committee.
On or about January 28 , 1952, the Respondent credibly asserts that it received a copy of a
letter dated January 26 , 1952 , from employeeOmar Graham , as president of Lima Independent
Motor Builders Association , addressed to the Board ' s Regional Director , Cleveland, Ohio,
stating;
Enclosed herewith is our petition for decertification The present bargaining repre-
sentatives do not represent a majority of the employees of the Lima Electric Products,
Inc., whereas our organization does
It is undisputed that at the February 4, 1952 , meeting the Respondent informed the Union's
representatives of the filing of the above -mentioned decertification petition . that the Respond-
ent then asserted that it would not resume bargaining negotiations until and unless the pur-
ported question regarding majority representation was settled , and that on or about March 5,
1952 , the Respondent was notified that the Regional Director has dismissed the decertification
petition for the reason , in substance , that it had been prematurely filed.
No further negotiating meetings between the parties have been held after February 4. On
February 19, 1952 , the parent national union filed a charge alleging a refusal to bargain on or
after January 28, 1952 , and also averring generally that the Respondent had otherwise inter-
fered with the rights of employees to freely organize , and that it had discriminatorily reduced
the wages of Ernest Schmenk because Schmenk had engaged in union activities.
Thereafter the complaint herein issued on May 21, 1952 . As noted above , the compliance
officer at the Regional Office by letter dated June 9, 1952, in response to an inquiry from the
Respondent ' s attorney stated that "Metal and Machinery Workers of America (Lima Branch)
has never complied with Section 9 (f), (g), and (h) of the Act ." Subsequently, on June 12, 1952,
the Board ' s Regional Director for the Eighth Region (Cleveland , Ohio) issued an administra-
tive decision stating in substance : The said Shop Branch of the Union is not a chartered local
and appears to be no more than an administrative unit of the parent national union , and that
the said Shop Branch is not required to be in compliance with the filing requirements of Sec-
tion 9 (f), (g), and (h) of the amended Act.
B. Concluding findings
As previously indicated above , I am of the -opinion that the dominating question posed for
decision is whether the complaint herein lawfully issued , in view of the fact that the Lima
Electric Products Shop Branch of the parent national union failed to comply with the filing
requirements of Section 9 (f), (g), and (h) of the amended Act . The record clearly shows that
there has been no compliance by the Shop Branch organization , only compliance by the parent
national union.
On the basis of the foregoing findings of fact and the entire record I am convinced that the
Lima Electric Products Shop Branch , the plant branch organization of Metal and Machinery
Workers of America , Ind , is an autonomous labor organization that was set up to administer
all matters of concern to employees relating to the settlement of grievances at the plant level,
that the said Shop Branch participates in all contract negotiations with the employer to sub-
stantially the same extent as the parent union, and that consequently and realistically the said
Shop Branch carries on all of the usual functions of a regularly established local union
although not formally given a charter by the parent national union Moreover , the Shop Branch
is also authorized to call and settle strikes, subject to a majority vote of the branch members.
under the provisions of the national union's constitution Under these circumstances a
finding that such labor organization is not required to comply with the filing requirements
of Section 9 (f), (g), and (h) of the amended Act would permit a national union to circumvent
the purposes of the Act by merely refusing to set up machinery for issuing formal charters
to local plant organizations
The congressional purpose of including Section 9 (f), (g), and (h) in the amended Act was,
in part at least, to prevent the expenditure of Government funds on litigation carried on for
the direct or indirect benefit of labor organizations which possibly might be led by subversive
officers , by requiring all officers of such labor organizations , at every level of organization,
to comply with the filing requirements of Section 9 (f), (g), and (h) of the amended Act before
a complaint alleging unfair labor practices could issue. 10
'°N. L . R. B. v. Highland Park Mfg . Co., 341 U . S. 322; American Communications Associ-
ation v. Douds , 339 U. S. 382.
TIMM INDUSTRIES, INC. 359
Consequently, I conclude and find that the Lima Electric Products Shop Branch of the parent
national, namely the Metal and Machinery Workers of America, Ind., was and is a labor
organization required to comply with the filing requirements of Section 9 (f), (g), and (h) of
the amended Act. 11 Since, as found above, the said Lima Electric Products Shop Branch of
the parent national union has failed to comply with the above - mentioned filing requirements
of the amended Act, I conclude and find that the complaint herein improvidently issued.
Upon the basis of the foregoing and upon the entire record in the case , the undersigned
makes the following:
CONCLUSIONS OF LAW
1. Metal and Machinery Workers of America, Ind., and Lima Electric Products Shop
Branch, of Metal and Machinery Workers of America, Ind., are each labor organizations
within the meaning of Section 2 (5) of the Act.
2. The failure of the Lima Electric Products Shop Branch, of Metal and Machinery Workers
of America, Ind., to comply with the filing requirements of Section 9 (f), (g), and (h) of the
amended Act precludes the issuance of a lawful complaint.
[Recommendations omitted from publication. I
"Cf. Prudential. Insurance Company of America, 81 NLRB 295; Sunbeam Corporation, 98
NLRB 525; and Wells Manufacturing Corporation, 85 NLRB 23.
TIMM INDUSTRIES , INC. and ONITA BRIGGS, Petitioner
TIMM INDUSTRIES , INC. and INTERNATIONAL UNION OF
OPERATING ENGINEERS , LOCAL NO. 63, AFL, Petitioner.
Cases Nos . 21-RD-175 and 21-RC - 2948 . April 44, 1953
DECISION AND ORDER .
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing on the consolidated cases t was
held before Leo Fischer, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with these cases
to a three-member panel [Chairman Herzog and Members
Styles and Peterson]..
Upon the entire record in these cases, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent em-
ployees of the Employer.
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the
following reasons:
In Case No. 21-RD-175, Onita Briggs filed a petition to de-
certify the Intervenor as collective-bargaining agent for a unit
of production and maintenance employees at the Employer's
1 International Association of Machinists , Lodge 758, intervened in the consolidated
proceeding.
104 NLRB No. 53.