R. C. A. Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1936

2 N.L.R.B. 159 (N.L.R.B. 1936)

In the Matter of R. C. A. MANUFACTURING COlVIPANY, INC. and
UNITED ELECTRICAL X RADIO WORKERS OF AMERICA
Case No. R-39.-Decided August 3, 1936
Radio and Related Products Manufacturiftp hadustry-Election Ordered.
controversy concerning representation of employees-rival organizations; sub-
stantial doubt as to majority status ; refusal by employer to recognize union
as exclusive representative question affecting commerce : confusion and un-
rest among employees; prior strike caused by unrest and strife over question
of representation-Union Appropriate for Collective Bargaining: production
and maintenance employees ; hourly paid employees ; community of interest-
Election: boycott of by one of rival organizations-Majority Idle: meaning of,.
Section 9 (a) interpreted-Ccrti/iication of Representatives.
Mr. Charles Fahy, Mr. A. L. Wirin, Mr. Ralph T..Seward, and
Mr. Samuel G. Zack; for the Board.
Mr. Henry S. Drinker, Jr., and Mr. Lewis H. Van Dusen, Jr., of
Philadelphia, Pa., General Hugh S. Johnson, of New York City,.
Mr. Robert R. Kane and Mr. Floyd H. Bradley, of Camden, N. J.,.
for the Company.
Mr. Saul. C. Waldbaum,, of Philadelphia, Pa., and Mr. James B..
Carey, of Glassboro, N. J., for the Union.
Mr. Carl Kisselmnan and Mr. Harry Kline, of Camden, N. J., and
Mr. Michael F. Doyle, of Philadelphia, Pa., for Employees' Com-
mittee Union.
Mr. Herbert Bennett, of Harrison, N. Y., for International
Brotherhood of Electrical Workers.
Mr. Stanley S. Surrey, of counsel to the Board.
DECISION
STATEMENT OF CASE
On July 10, 1936, United Electrical & Radio Workers of America,
hereinafter referred to as the Union, filed with the Regional Direc-
tor for the Fourth Region a petition alleging that a question affect-
ing commerce had arisen concerning the representation of the em-
ployees, excepting clerical and supervisory employees, of the R. C. A.
Manufacturing Company at its Camden, New Jersey plant and re-
questing the National Labor RelationsBoard to conduct an investi-
159
160 NATIONAL LABOR RELATIONS BOARD
gation pursuant to Section 9 (c) of the National Labor Relations
Act, approved July 5, 1935, hereinafter called the Act. On July
17, 1936, the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3 of National Labor Relations. Board Rules and
Regulations-Series 1, as amended, issued an order authorizing the
Regional Director for the Fourth Region to conduct an investigation
and to provide for a hearing in connection therewith. On July 18,
1936, an amended petition was filed by the Union. The amended
petition stated that the employers involved were the Radio Corpo-
ration of * America and the R. C. A. Manufacturing Co., Inc., whose.
business was described at length with special reference to the Cam-
den, New Jersey plant; that 12,444 persons were employed at said
plant; that those employees, with the exception of the clerical and
supervisory staffs, constituted an appropriate bargaining unit; that
the Union represented 9,000 employees in said unit; that the Em-
ployees' Committee Union 1 and the International Brotherhood of
Electrical Workers claimed to represent the employees in said unit;
,and that because of such conflicting claims, which had led to discon-
tent, unrest and strife, finally culminating in a strike at the Camden
plant still in effect at the time of, the filling -of the amended petition,
-a question affecting commerce concerning the representation of the
.employees in the said unit had arisen within the meaning of the Act.
•On July 21, 1936, the Board, pursuant to Article III, Section 10 (c)
(1) of its Rules and Regulations-Series 1, as amended, ordered the
proceeding transferred to and continued before it.2 Said orders of
the Board and a notice of hearing were duly served upon the various
parties.
On July 25, 1936, pursuant to notice thereof, ahearing was held
by the Board at Camden, New Jeisey. All parties were afforded
full opportunity to be heard, to examine and cross-examine witnesses;
and to introduce evidence bearing upon the issues. Upon motion of
-counsel for the Board, concurred, in b1 the other parties, the petition
was dismissed as to the Radio Corporation of America. The R. C. A.
Manufacturing Company, Inc., hereinafter -referred to as the Com-
pany, filed an answer to the petition in which it stated that it was
entirely agreeable to the holding of an election by the Board. At the
hearing counsel for the Company and counsel for the Employees'
Committee Union stated that they were not contesting the' urisdic-
tion of the Board.
I This, organization had on Tune 15, 1936, filed a petition. requesting an election but the
petition was later withdrawn.
20n ' July, 18, 1936, the, Board bad. an}ended its prior order, directing the Regional
Director, to conduct an investigation , in respect to a portion not here relevant.
DECISIONS AND ORDERS 1,61
Upon the entire record in the case, including the pleadings; the
stenographic report of the hearing, and the documentary and other
evidence received at the hearing, the Board makes the following :
FINDINGS OF FACT
I. THE COMPANY
The R. C. A. Manufacturing Company, Inc. is engaged at its
Camden, New Jersey plant in the manufacture and distribution of
radio and sound transmission and receiving products. A substantial
portion of these products are produced and distributed pursuant to
orders from the Radio Corporation of America, a corporation en-
gaged in the business of radio and wireless communication through-
out the United States and foreign countries and which controls the
R. C. A. Manufacturing Company, Inc. The products so produced
are essential to the maintenance of the interstate and international
communications system operated by the Radio Corporation of
America. In the course of its operations at the Camden plant, the
Company purchases and has transported from States other than New
Jersey large quantities of materials, such as steel, rubber, glass, lum-
ber, copper, aluminum, durielium, porcelain, magnesium, tungsten,
celluloid, paints, mica, iron and other goods. It maintains sales and
service branches and distributing points throughout the United States
and in foreign countries for the purpose of selling, distributing and
servicing the products manufactured at Camden. Certain parts and
equipment assembled and produced at Camden are transported by
the Company to other plants, assembly points and distribution cen-
ters, owned by the Company and located in States other than New
Jersey, and there assembled with other parts and equipment into
finished products which are thereafter distributed among the several
States and in foreign countries. A substantial number of the em-
ployees at the Camden plant are employed in the shipping depart-
ment of the Company and are engaged in the preparation and pack-
ing of the products for shipment and the actual shipping of the
products. Another substantial group of employees are engaged in
the servicing and installing of the products of the Company through-
out the United States.
All of the aforesaid operations constitute a continuous flow of
trade, traffic and commerce among the several States and with foreign
countries.
II. THE LABOR ORGANIZATIONS INVOLVED
United Electrical and Radio Workers of America is a national
labor organization with locals in various cities throughout the
162 NATIONAL LABOR RBI.ATIONS BOARD
'United'Sta,tes. , Its locals',at the' Camden plant, Locals 103' Mid' 104,
admit-to membership production, maintenance and service' eili'p'1Oyees
employed' at that' plant.' At the - tine ' of , the, hearing' the'' Union
claimed to have 6,500 members in the locals at the plant.'
The Employees' Committee 'anion ' is a labor organization, un-
affiliated with any other body,, admitting to membership all em-
ployees of the company employed at the Camden plant, with the
exception of persons "identified with the company, such as foremen
and supervisors". This organization claimed a 'membership of 7,000
at the' time of the hearing. _
' The International Brotherhood of Electrical Workers is a labor
organization affiliated with the American Federation of Labor. 'It
admits to membership , with other classes not here 'involved, workers
engaged in the production of electrical and radio, apparatus,' and
iliside' and outside electrical' ivorkers. Although the , petition stated
that the International Brotherhood of Electrical Workers claimed
to represent some 'of the employees of the company, this organiza-
tion has advised the Board that it did not desire to be placed upon
the ballot if an election ^vere held.
I1I,• THE EXISTENCE OF A QUESTION AFFECTING' COMMERCE CONCERNING
REPRESENTATION
The amended petition stated that for a number of months-there
has been discontent, unrest and strife among, the employees of- the
Company at the Camden plant because of the claim of each of the
above labor organizations to represent these employees. The Com-
pany has never recognized any labor organization as the.bargaining
agency for all of its,employees and, in its answer,stated that it has
never had any reliable information from which it could conclude that
^,a single labor organization represented a majority-of the employees.
It further stated that ,the controversy between the Union and the
Employees' Committee Union has given rise to unrest among its
employees and has, seriously interfered with the production and ship-
ment of its, products' and the volume of raw materials acquired in
the course of production. - ,
On June 23, 1936, a strike of the Company's employees occurred
,as a result of the unrest and strife existent at the plant. - The peti-
tion.,stated that the strike was. participated in by about' 9;000 em-
ployees; the answer of the Company placed the number of strikers
at about 2,500. The strike was marked by considerable violence,
police action, sympathetic demonstrations by large numbers of em-
3)The Union ,permits , some office for clericalemployees to become members--but limits their
activities as members to the social work of the organization There are now less than
100 persons participating upon that basis in the locals at the Camden plant
DECISIONS AND' ORDERS 163
ployees of other concerns, and widespread publicity was giveli to,it.
The strike caused a substantial - stoppage of prodkcbion. arid- ship-
ment : of products at the plant. • It was finally, settledf :on , July 20,
1936, -by an agreement between-the Union and the Company, one, of
the provisions of which expresses the desire. of both parties for an
election pursuant to the Act. This desire of-the Union and the'Com6-
pany is shared by the Employees' Committee Union, so that all of
the parties directly involved join,in a request for. an election to be
conducted by.the Board.
The Board concludes that a question' exists concerning the repre-
sentation of. the -employees of the Company at the -Camden plant.
=Phe controversy has led and-tends to lead,to labor disputes burden-'
ing and obstracting commerce and the free flow' of commerce 'among
the several States and with foreign countries. I
IV.• THE APPROPRIATE BARGAINING UNIT
The,Union ' contended that the "production, maintenance and
service workers" should be considered as the appropriate bargaining
unit. Such, a unit is coterminous . with the groups of employees
eligible for membership in the Union. The Employees' Committee
Union argued for a wider unit which would include clerical em-
ployees and , those employees who, although not actual production
workers, were engaged in tasks closely related to the production
operations, such as process engineers, rate-setters, ' etc. Such em-
ployees,are eligible for membership in the latter organization. The
Company furnished for the record a complete list of the various
occupations in the plant, with a brief description of the occupations
that -,%-ere disputed, and charts illustrating the internal organization
of the various departments.
The main group in dispute consists of clerical employees of vari-
ous types.. Some of these clerical workers, in the main classified as
typists,, stenographers, clerks, file clerks, bookkeepers, messengers,
etc., work in the Treasurer,. Comptroller and Sales Departments,
located in Buildings' 2 and 15. These employees, all of ,whom are
salaried employees, perform purely clerical tasks in large part bound
up with the management and administration 'of the Company, and
their, immediate working conditions and problems are significantly
different from those of actual production 'workers. ' Other clerical
employees work in the various buildings in which production takes
place and are on the production department payroll. In addition 'to
the types of employees generally classified as clerical workers, this
group includes such; occupations as expeditors, dispatchers, dispatch
clerks, 'time keepers, breakdown clerks, etc. The majority are sal-
aried employees ; some ' are paid on an hourly rate. ' Iii some "divisions
5727-37-vol. a-12
164 NATIONAL LABOR RELATIONS BOARD
their hours differ from those of actual production employees; in
others they are the same. In many cases they occupy offices adjoin-
ing the foreman's office and have the appearance of a foreman's office
staff. 't'heir tasks are clerical in nature, carried on at desks, and
they do not handle materials or products. As in the case of the
clerical workers in the other departments, their immediate interests
and problems are not those of actual production workers. The
Board concludes that in the plant under consideration none of the
clerical workers should be included in the same bargaining unit with
the actual production workers.
While nearly all of the actual production workers are paid on an
hourly basis, there are employees working in the production depart-
ment who are paid on a salary basis. Most of the employees in the
engineering department are on a salary basis.' All salaried -em-
ployees receive two weeks' vacation with pay, are paid for holidays,
and are paid semi-monthly and not weekly. While in certain cases
the tasks performed by some of these salaried workers are not differ-
ent from those performed by comparable hourly paid workers, the
benefits flowing from a salaried status result in a difference of inter-
ests and viewpoints that is sufficiently marked to prevent in this case
the inclusion of both employees in the same unit. The Board there-
fore concludes that salaried employees, regardless of classification,
should not be included in the same bargaining unit with hourly paid
production employees.
While the above two principles dispose of most of the classifica-
tions in dispute, it is advisable briefly to advert to certain special
groups. The employees in the lunch club section, such as waitresses,
chefs, cooks, dishwashers, etc , are engaged in tasks under the super-
vision of the personnel relations division and are not engaged in
work directly connected with production. The employees in the cost
control division of the production department, classified as time
study men and rate setters, the process engineers in the various manu-
facturing divisions, and the junior engineers in the quality division
(who perform a sample check on finished products and report
through their head direct to the general superintendent) perform
important tasks that are closely related to the functions of manage-
ment. The watchmen in the maintenance division, classified as
guards by the Company and possessing a uniformed appearance, are
a group obviously separate from the regular production employees.
None of the above for the reasons stated should be included in the
same bargaining unit with the production employees. The super-
A Besides clerical workers, the only employees in the engineering department in dispute
were the draftsmen. These employees, like the engineers of various types, are specially
skilled technicians whose training, experience and work are clearly not similar to those of
production employees.
DECISIONS AND ORDERS 165
visory employees, apart from executives, are classified by the Com-
pany as superintendents, general foremen, foremen, assistant fore-
men, sub-foremen and working group leaders (there being male and
female foremen, etc.).5 While both organizations ,agreed that super-
visory employees should be excluded, the Employees' Committee
Union claimed that the working group leaders were really produc-
tion employees and not supervisory employees. These working
group leaders, who may on occasion actually work on materials,
possess authority to give orders to the employees under their super-
vision and to recommend disciplinary action to the foremen or
assistant foremen. They are therefore to be considered as part of
the supervisory force.
Restating the conclusions reached above, we find that the hourly
paid employees in the production department, the model making
shop (Division No. 77) 6 in the engineering department, and the
office service division (Division No. 03),' employed by the Company
at its Camden plant, exclusive of the following groups : all supervis-
ory employees down through and including working group leaders,
all clerical employees wherever located, all lunch club section em-
ployees, process engineers, watchmen and guards, constitute a unit
appropriate for the purposes of collective bargaining.,' It was agreed
by both organizations that, within the appropriate unit found by the
Board, all employees on the payroll of June 12, 1936, should be
eligible to vote.9
CONCLUSIONS OF LAW
Upon the basis of the above findings of fact, the Board makes the
following conclusions of law :
1. The hourly paid employees in the production department, the
model making shop (Division No. 77) in the engineering depart-
ment, and the office service division (Division No. 03) employed by
the R. C. A. Manufacturing Company, Inc. at its. Camden plant,
exclusive of the following groups : all supervisory employees down
through and including working group leaders, all clerical employees
In a few sections the supervisory employee is called a . "storekeeper "
Employees in this division aie engaged in the production of models from engineering
blueprints and charts and their work is similar to that of employees engaged in the
production of articles lo be sold. Both organizations agreed that they should be grouped
with the employees in the production department.
7 This division includes only people performing maintenance tasks and hence the
employees in the division are to be included along with the other maintenance employees.
IIt should be noted that the exclusion of all salaried employees results in the exclusion
of only 18 employees ( four tool designers-first class, 13 inspectors of incoming material
and one elevator operator ) who would not otherwise be excluded for one or more of the
other reasons stated above.
9 This covers employees working during the week ending June 5 , 1936 , as they are paid
a week later , and those employees on sick or other leave during that period but still
considered as employees by the Company and on its payroll.
•166 NATIONAL LABOR RELATIONS' BOARD
wherever 'located, alllunch club 'section " employees , process ' engineers,
watchmen and guards, constitute a unit appropriate-for the purposes
of .collective bargaining , ii,thibi, the.meaning of Section 9 (•b) of the
National Labor Relations Act. ' • ' 11 , `
2. A• question ` affecting ' commerce has .arisen concerning the repre-
sentation ', of'the employees in said unit ,'"within the meaning of Sec-
tion 9 ( c), and Section 2, subdivisions ( 6) and (7) of the National
Labor,Relations Act.
DIRECTION. OF ELECTION
By virtue of ' and • pursuant to the power Vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, approved July 5, 1935, and pursuant to Article III, Sec-
tion, 8 of National Labor 1..-lations Board Rules 'and Regulations-
Series 1, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with the R. C. A.
Manufacturing Company, Inc., an election by , secret ballot shall be
conducted within 15 days from the date of this Direction, under the
direction and supervision of the Acting Regional Director for the
Fourth Region, acting in this matter as agent of the National Labor
Relations Board, and subject to Article III, Section 9' of said Rules
and Regulations, among the hourly paid emp'loyees'in the production
department, the model making shop (Division No. 77) in the engi-
neering department, and the office service division (Division No. 03)
on the June 12, 1936, payroll of the R. C. A. Manufacturing Com-
pany, Inc. for its Camden, New Jersey plant, exclusive of the follow-
ing groups : all supervisory employees down through and including
working group leaders, all clerical employees wherever located, all
lunch club section employees, process engineers, watchmen and guards,
to determine whether they desire to be represented by United Elec-
trical and Radio Workers of America or by the Employees' Com-
mittee Union. Notices of election shall be posted at least three days
prior to the date of election and in places in the plant selected by the
Acting Regional Director as those places in which -employees are
customarily informed of matters affecting them. , . ,
Mx. EDWIN S. SMITiI took no part in the consideration of the above
-Decision and Direction of Election.
DECISIONS , AND, ORDERS
[SAME TITLE]
AMENDED DIRECTION: OF ELECTION
167
August' 12, 1936
By virtue of and pursuant • to the power vested in the National
Labor Relations Board by Section , 9 ' (c) of the National Labor
Relations Act, approved July 5, 1935, and pursuant to Article III,
Section ! 8 of 'National -- Labor Relations Board' Rules and Regula-
tions-Series ' 1, ^ as^ ameizded , ' tlie Direction.: of 'Election issued 'on
August'3,4936 is' amended to read as follows: -
DfrtEciEn -that; as part, of • the t'investigatioi 'authorized by the
Board to ascertain representatives ' for collectiveabarbaining with the
R. •C. A. Manufacturing Company;' Inc., an election by secret ballot
shall' be conducted on or•befote August' 18, 1936, under the direction
and 'supervision' of the- Acting''Regional -Director for the Fourth
Region, acting in this matter as agent of the, National Labor Rsla'
tions Board; and subject to Article III, Section 9 of said Rules and
Regulations, among 'the hoiuly paid emp'loyees' in the' 'productioii
department ;! -the model-' making shop (Division - No. 77 ) in the engi-
neering; 'department, and the office, service division (Division' No.
'03) on the June 12;'1936, payroll of the R. C. •A. Manufacturing
Company;, Inc. for, its Camden;''New Jersey plant, exclusive of the
following "groups: all supervisory 'eii-iployees, down through and
including workilig' group leaders, all clerical employees wherever
located, all Punch club section employees, process engineers, watch-
men and guards , to determine whether they desire to be represented
by United Electrical and Radio Workers of America or by the Em-
ployees'- Committee (Union. Notices of 'election shall',be posted at
least twenty -four hours prior to the commencement ' of balloting on
the date ' of election 'and in places in the plant selected by the, Acting
Regional Director as those places, in which ' employees are customarily
informed of matters affecting them'.., '
MR. CARMODY took 'no part in the consideration of the above
Amended Direction of Election. - --
168
[SAME TITLE
NATIONAL LABOR RELATIONS BOARD
DECISION
ON
CERTIFICATION OF REPRESENTATIVES
November 7, 1936
A petition for an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, hereinafter referred to as the Act, was filed on July 10,
1936, with the Regional Director for the Fourth Region by the
United Electrical & Radio Workers of America, hereinafter referred
to as the Union, said petition alleging that a question affecting com-
merce had arisen concerning certain employees of the R. C. A. Man-
ufacturing Company, Inc. at its Camden, New Jersey plant. After
a hearing on July 25, 1936, the Board issued a decision 1 in which it
found that a question existed concerning the representation of cer-
tain employees of the R. C. A. Manufacturing Company, Inc., here-
inafter referred to, as the Company, -at,the Camden plant , ;because,
of the conflicting claims of the Union, a national labor organization
with locals in various cities throughout the United States, and of the
Employees' Committee Union, a labor organization confined to the
Camden plant and unaffiliated with any other body, to represent the
employees in the plant. The Board further found that a strike of
the Company's employees had occurred on June 26, 1936, as a result
of the unrest and strife created at the plant by such controversy be-
tween the Union and the Employees' Committee Union. This strike,
participated in by over 2,500 employees, was marked by considerable
violence, police action, sympathetic demonstrations by large numbers
of employees of other concerns, and widespread publicity was given
to it. The strike caused a substantial stoppage of production and
shipment of products at the plant. It was finally settled on July.
20, 1936, by an agreement between the Union and the Company, one
of the provisions of which expressed the desire of both parties for
'Matter of R. C. A. Manufacturing Company, Inc. and United Electrical & Radio Workers
of America , decided August 3, 1936, supra, p. 159. The Company filed exceptions to the
following statements in that decision :
"A substantial portion of these products are produced and distributed pursuant to
orders from the Radio Corporation of America a corporation engaged in the business
of radio and wireless communication throughout the United States and foreign coun-
tries and which controls the R C A. Manufacturing Company, Inc The products so
produced are essential to the maintenance of the interstate and international com-
munication system operated by the Radio Corporation of America."
After a consideration of the record, and inasmuch as the statements objected to are not
necessary to the decision , the Board feels that they should not be considered as part of the
findings of fact in the case
DECISIONS AND ORDERS 169
an election pursuant to the Act, a desire shared also by the Employ-
ees' Committee Union.
As a consequence of is findings, the Board on August 3, 1936,
directed that an election by secret ballot should be conducted among
the
"hourly paid employees in the production department, the
model making shop (Division No. 77) in the engineering depart-
minent, ahd''the^ office "service division (Division No. r03) on' the
June 12, 1936, payroll of the R. C. A. Manufacturing Company,
Inc. for its Camden, New Jersey plant, exclusive of the follow-
ing groups : all supervisory employees down through and in-
cluding working group leaders, all clerical employees wherever
located, all lunch club section employees, process engineers,
watchmen and guards, to determine whether they desire to be
represented by Uniterl Electrical and Radio Workers of America
or by the Employees' Committee Union." 2
Pursuant to this Direction of Election, an election was conducted
on August 15, 1936, under the supervision of the Acting Regional
Director, for, the,Fourth,Region,.Robert,D. Hooke,_and,in conformity
with Article III, Section 9 of National Labor Relations Board Rules
and Regulations-Series 1, as amended.3 Thereafter the Acting
Regional Director prepared and served upon the parties to the pro-
ceeding his Intermediate Report in which he made the following
findings with respect to the results of the election:'
Total number employees eligible to vote------------------------------- 9,752
Total number ballots cast--------------------------------------------- 3,163
Total number blank ballots ------------------------------------------- 3
Total number void ballots-------------------------------------------- 9
Total number ballots cast for United Electrical & Radio Workers of
America ----------------------------------- 7----------------------- 3,016
Total number ballots cast for Employees' Committee Union------------- 51
Total number challenged ballots ----------- _,--------------------------- 79
The . Acting . Regional Director, ,after a recital of the circumstances
surrounding the election and a consideration of the issues involved,
recommended in the Intermediate Report that the Union be certified
by the Board as the exclusive representative for collective bargaining
of the employees concerned. The Employees' Committee Union and
the Company filed objections to the Intermediate Report with the
Board. On October 7, 1936, a hearing for the purpose of oral argu-
ment upon the Intermediate Report and the objections thereto was
2 The Direction of Election was amended on August 12, 1936, in a particular not here
important ( Supra, p 167.)
8 The Company supplied the Acting Regional Director with the necessary payrolls and
otherwise cooperated in the mechanics of the election.
170 NATIONAL. LABOR ,RELATIONS BOARD
held .by ;the- Board •at;tiVashington, D. C., and. -all parties were given
full opportunity to participate.
• A brief recital of some of the events .preceding the, election is
necessary to a proper understanding. of the issues in, the case., The
agreement entered into by the Company and the Union which
terminated the strike contained the following paragraph :
"5. The.Company ,and tlie Union agree. to an, election- to be
held. under the auspices of the National Labor Relations Board
and in accordance i ith the National Labor .Relations. Act, to
determine the question of majority representation as between
Local No. .103 (United Electrical • and Radio Workers of
1 , America), Employees' Committee Union, and any other, em-
ployee organization in, the Camden plant. • The election. to be
held in the shortest space of,time in which such board finds that
it, can conduct • such election in, complete accordance with that
Act. The Company, and the Union agree -that the sole bargaining
agency shall be the candidate receiving a majority of the votes of
all those el g'ible'to vote in such election."
The ,Employees' Committee Union }vas not one of the signatories to
this; agreement, but,,its ' complete, acceptance of • it was. expressed at
the ;hearing held -on, July 25,:1936, in the following manner :
'•r '"Chairman Madden. Will-'one of the gentlemen who speaks
for: the Employees' Committee, either Mr. Doyle or Mr. • Kissel-,
man, make a statement for the record 'as to' your position with
reference to Petitioner's Exhibit 1? I am right, am I not, in
,the identification? -
"Mr. Waldbaum. Petitioner's Exhibit 1, yes:
"Chairman Madden. Namely, the agreement 'between the
Electrical & Radio Workers Union and the R. C.. A., Manu-
facturing Company. •
"Mr. Kisselman. I want to say for the record in^behalf of'the
Employees' Committee Union that we .are willing to stipulate
those conditions set forth in that agreement shall be the condi-
tions of the election so far as they, apply to it.
"Chairman, Madden. • And they will be, bound by that agree-
ment in the same way, as though,you had been a party, to .it at
its original execution? „
"Mr. Kisselman.• Yes, 'sir-." • • , ' '
The Acting Regional Director; after consultation with all inter`
ested parties, first set the election for August 13 and 14, and posted
proper notices to that effect on'August 9, 1936., Tl ereafter, a state-
ment.issued August 11, 1936, by Thomas Nessler, Secretary of the
Employees' Committee Union, stated that the officers and stewards
`DECISIONS AND ORDERS 171
of that organization had voted unanimously to refuse to participate
in the election and had pledged that their constitutents would remain
away from the polls. On the same day, at a meeting called for that
purpose, approximately 1,000 members of'the Employees' Committee
Union ratified this decision of their officers. Upon learning of this
action through the public press, the Acting Regional Director issued
a statement on August 12, 1936, in which he said :
.'The press reports that the officials of the Employes' Com-
mittee Union have voted to refuse to participate in the.election
scheduled by the National Labor Relations Board for Thurs-
day and Friday of this week and that decision was approved at
a general meeting of the membership of the Employes' Com-
mittee Union, held Tuesday evening. This action, of the offi-
cials of the Employes' Committee Union might have' the effect
of a serious interference with the complete assurance of indi-
vidual employes on the secrecy 'of their balloting if the vote
were to be taken with the plant in operation.
"It had originally been planned, after a conference with
representatives of both labor unions involved in the election, to
release employes by departments during the two working days,
so that all employes in each department or section might leave
the plant together and proceed to the voting place (about a,
half-mile from the plant). In view of the action taken by the
Employes' Committee' Union officials,' it is now probable that
certain groups of employes will remain at their jobs, thus
signifying clearly their intention not to vote. This means that
those employes who desired to leave their jobs to vote could be
immediately identified and the secrecy-of their ballot impaired.
Many of the employes may be reluctant to vote under such con-
ditions, since they may feel that their intention to, vote will be
understood or misunderstood as a desire to vote for the United
Electrical and Radio Workers of America. The action of the
officials of the Employes' Committee Union, one of the parties
on the ballot, may thus have' the effect of coercing and intimi-
dating employes who may desire to vote either way."
The Acting Regional Director, by. proper notice, then postponed the
date of election to Saturday, August 15, 1936, a day on which the
plant was closed.
. From the time of that announcement by the Acting Regional
Director until the closing of the polls on August 15, the Employees'
Committee Union waged an unceasing campaign to boycott the elec-
tion. As part of this campaign circulars which went far beyond
normal electioneering statements were distributed throughout Cam-
den and the vicinity. Some of these circulars reminded the em-
172 NATIONAL LABOR RELATIONS BOARD
ployees of the violence that occurred during the strike, attributing
all of such violence to the Union, and attempted to spread the belief
that the election likewise would be marked by considerable violence
and that the employees should therefore remain away from the polls
in order to avoid injury. For example, one circular stated :
"Tomorrow the UERWA=according to Mitton-will attempt
an `old fashioned' election. RCA workers know what this
means.
"It means violence, bloodshed and perhaps loss of life.
"It means rioting, street fighting and general disorder.
"To Avoid'This, We Advise You to Refrain from Voting."
In this same circular, under the guise of preventing illegal voting, a
thinly-veiled threat was made to expose by means of motion pictures
all employees who voted. The circular stated :
"Every precaution will be taken to prevent illegal voting by
strikers having jobs elsewhere, by false passes, by persons using
another voter's pass, and the dozens of tricks used in elections.
"If necessary, motion pictures will be taken of everyone enter-
ing Moose Hall (the voting place) or affidavits will be secured
from over 4904 voters to prove they never voted."
Such a threat was obviously aimed at the normal fear of employees
to be individually identified with union activities or support, espe-
cially where the manner of identification is such that it may fall
into the hands of the employer.
These coercive tactics were designed to intimidate employees and
thus prevent, their participating in the election. The stratagem be-
hind this campaign was also revealed in the circulars. One circular,
entitled, "How To Beat The UERWA", stated that, "Unless 4904
Participate, The Election Will be Null And Void." Hence, it ex-
horted employees to "Beat the,UERWA by Not Voting" and stated,
"Refusal to Vote is a Vote AGAINST the UERWA." These cir-
culars also clearly indicated that the Employees' Committee Union
members were boycotting the election as an organization, for they
stated that, "Regardless of What You Read or Hear ECU Members
Will Not Vote." In addition to the circulars, a sound truck operat-
ing in the vicinity of the plant on August, 13 and 14, broadcast state-
ments that no member of the Employees' Committee Union should
vote under any circumstances, and warnings similar to those con-
tained in the circulars.
The election was conducted on August 15 by the Acting Regional
Director., In marked- contrast-to the violence and strife accompany-
DECISIONS AND' ORDERS 173
ing the strike and to the prophecies of 'the Employees' Committee
Union, the balloting proceeded entirely without disorder. The Em-
ployees' Committee Union had observers present at the election and
participated in the counting of the ballots. But the number of
votes received by that organization-51-and the whole tenor of the
balloting showed that the boycott urged by its officers and members
was highly effective.
After a review of the above circumstances and a consideration of
the legal precedents, the Acting Regional Director recommended
that the Union be certified as the exclusive representative for col-
lective bargaining of the employees in the unit involved. , The ques-
tion in this case is whether under Section 9 (a) of the Act the Union
may be so certified. That Section reads as follows : "Representatives
designated or selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate for such pur-
poses, shall be the exclusive representatives of all the employees in
such unit, for the purposes of collective bargaining . . ." Three
interpretations of this language as applied to election cases have
been suggested: (1) the phrase, "majority of the employees", refers
to an affirmative majority of the employees eligible to vote, so that
to be certified as the exclusive representative an organization must
have received a number of affirmative votes equal to a majority of
the employees eligible to vote in the election; (2) the phrase, "ma-'
jority of the employees", refers to the employees participating in the
election, so that the organization which is the victor in an election
participated in by at least a majority of the eligible employees is
to be certified as the exclusive representative; (3) the phrase, "ma-
jority of the employees", refers to a majority of the eligible em-
ployees voting in the election, so that the organization receiving
a majority of the votes cast is to be certified as the exclusive
representative.
While the Company in its oral argument urged that the first of
these interpretations is the most logical, both the courts and the
Board have rejected that interpretai Tn' Virginian Raihvay
Company v. System Federation No. 40, 84 F. (2d) 641 (June 18,
1936), the Circuit Coiirt of Appeals for the Fourth Circuit wasr
required to consider the effect of an election under the Railway
Labor Act in which an organization had received a majority of the
votes cast, but not a majority of ' those qualified to vote, although
the latter number had participated in the election. Section 2, para-
graph 4 of the Railway Labor, Act, as 'amended,' provides that "the
majority of any craft or class of employees shall have the right to
determine 'ho'shall be the- representative of that 'craft or class for
174 NATIONAL' LABOR RELATIONS BOARD
the purposes of this Act." In rejecting the contention that. this
language required the affirmative votes of a majority of the eligible
employees, the Circuit Court said :
"The clause of The act which we have quoted does not in
terms require a majority vote of the craft. It merely pre-
scribes the political principle of majority rule. Another section
of the act provides the means of determining the majority, the
political device of the secret election. Nothing is, said as, to
whether the choice at such election shall be by a majority of the
qualified votes , or merely by a majority of the votes cast; but
the act clearly does not contemplate that there shall be such a
failure ' of election as could easily result if the obtaining of a
majority of the qualified voters were required. The universal
rule as to elections of officers and representatives is that a
majority of the votes cast elects , and that those not voting are
presumed to acquiesce in the choice of the majority who do
vote. Popular government would hardly be workable on any
other basis." (Page 653.)
In a similar case, and upon identical reasoning , the Circuit Court
of Appeals for the Seventh Circuit reached the same conclusion.
The Association of Clerical Employees of the A. T. c6 S. F. Railway
System v. Brotherhood of Railway and Steamship Clerks, `Freight
Handlers, Express and Station Employees, 85 F. (2d) 152 (July 8,
1936). Inasmuch as the language of the two Acts is very similar
and there is nothing in, the legislative history to offset the normal
presumption that the Congress ; intended to apply the same prin.
ciples to the fields covered by the respective Acts, the Board has
followed these decisions in two cases decided by it, Matter of the
Associated Press, a Corporation, and American Newspaper Guild,
Case No. R.-26, decided July 3, 1936 ( 1 N. L. R . B. 686), and
Matter of New England Transportation Company and International
Association of Machinists, Case No. R-10, decided July 24, 1936
(1 N. L. R . B. 130 ), and has not required that an organization must
receive a number of votes equal to a majority of the eligible em-
ployees in-order to be certified as the exclusive representative.
The second interpretation was adopted by the District Court in
the Virginian Railway case . In that case there were several elec-
tions. In one, a majority of the employees eligible to vote had par-
ticipated in the election and one organization had received a ma-
jority of the votes cast, but not a majority of those' eligible to vote.
In another, less than a majority of the eligible employees had par
ticipated in the election but one organization had received a ma-
jority of the votes cast . The District Court ruled that the organ-
ization in the first election should be certified , but that the second
-DECISIONS AND ORDERS ' 175
contest was no election because of the failure of a majority of the
eligible employees to participate in the election. In so ruling it
interpreted the--phrase, "majority of any craft or class", to refer to
the number of employees participating in the determination of the
representative, by, analogy to the requirement of a quorum in cor-
poration -cases. System Federation No. 40 v. Virginian Railway
Company, 11,F. Supp. 621 (E. D. Va., 1935). The ruling on the
second contest was not appealed so that the Circuit Court of Ap-
peals had' before it only an election in which both a majority of the
Eligible employees had participated and one organization had re-
ceived a majority-of the votes cast. The Circuit Court thus was not
required to choose between the second and third interpretations,
since either interpretation would result in the certification of the
same organization. The decision of the Circuit Court is conse-
quently not determinative between the two interpretations; the Rail-
way Labor Act was held to, embody the political principle of ma-
jority rule at least where a majority of the eligible employees had
participated in the election and the question of whether such ma-
jority participation was necessary was expressly left open. The
Circuit Court said :
"We 'see no reason why the act should not be interpreted as
contemplating that this well settled rule of elections should be
applied in the case of the employees' election for which it pro-
vides, in cases like'this where a majority of those qualified to
vote participate in the election. Such a rule is fair and just,
to all parties. It gives every employee an opportunity to ex-
press his choice. It preserves the secrecy of elections. And it
prevents the breaking down of the plan of collective bargaining
which it was the purpose of the, act to set up. The rule as ap-
plied by' the judge below would, on the principles applicable
to a quorum in legislative assemblies, limit the choice by the,
majority of those voting to cases where a majority of the quali-
fied voters participate in the election. Without passing on the
validity of the limitation, we think that there can be no ques-
tion as to the validity of the choice where its conditions are
complied with . . . Whether the choice of a majority of those
voting would also be valid even if a majority of the eligible
voters do not participate in the election is a question we need
not now decide." (Page 653.) 4
'The Association of Clerical Employees of the A, T & S. F: Railway System v. Brother:
hood of Railway and Steamship Clerks, decided by the Seventh Circuit Court of Appeals,
and Matter of The Associated Press, and Matter of New England Transportation Company,
decided by the Board , also involved elections in which both a maiority of the eligible
employees had participated and one organization had received a majority of the , votes cast
176 NATIO TAL. LABOR RELATIONS j BOARD
The District Court's decision appears to be the first case to suggest
that the "quorum" interpretation is applicable to election cases.
For that reason, and also in view of the Circuit Court's implied
disapproval of the suggestion, this interpretation should be carefully
explored. In such a consideration the special factors operating in
labor elections, must be kept in mind. The facts of the instant case
are especially important in this regard, for they illustrate the inad-
visability of an interpretation which fastens upon actual participa-
tion of a majority of the eligible employees. Such an interpretation
defeats the purpose of the Act by placing a premium upon tactics
of intimidation and sabotage. Minority organizations merely by
peacefully refraining from, voting could prevent certification of or-
ganizations which they could not, defeat in an election. Even where
their strength was insufficient to make a peaceful boycott effective,
such minority organizations by waging a campaign of terrorism and
intimidation could keep, enough employees from participating to
thwart certification. ,Employers could adopt a similar strategy and
thereby, deprive, their employees of representation for collective
bargaining.
In all such situations the purpose of the Act would be thwarted.
One of its basic policies is to encourage "the practice and procedure
of collective bargaining" between an employer and his employees.
Section 9 (a),, and especially the election procedure, is designed to
promote collective bargaining by means of a prompt determination
of the representative of the employees to carry on that bargaining.
The object of the whole procedure is the elimination of obstructions
to the, free ' flow of commerce caused, by the refusal to accept the pro-
cedure of collective bargaining. The realization of that object thus
depends.upon the efficacy of the election device as a peaceful means
of settling disputes between contesting labor organizations. If an
election is. allowed to fail on, account of the causes mentioned above,
the results, will be the continuation of unrest and strife consequent
upon the doubt as to which organization is entitled to represent the
employees. In the instant case such doubt has already led to a bitter
strike which materially disrupted the commerce of the' Company.
A failure to certify in this case would perpetuate the conditions
which caused that strike and thereby defeat the intent of the Act.
The "quorum" interpretation, thus introduces a qualification that
places 'in the hands 'of ' employers . and rival labor organizations a
weapon which may easily defeat the collective bargaining sections
of the Act. Nor has the interpretation any • sound basis in, law- or
in fact. It is straining things too far to assert, as did the District
Court in the'Virginian Railway case, that-in an election which was
won by organization A, those employees who' participated' and voted
DECISIONS AND ORDERS 177
for organization B had thereby "determined" that organization A
should represent them.
It is an accepted canon of statutory construction that an unwise
and unworkable interpretation is to be rejected if another, and sen-
sible, interpretation is at hand. Consequently, we feel that the third
interpretation mentioned above, a majority of the eligible employees
voting in the election, is required if the intent of Congress in enact-
ing the Act is to be fulfilled. Such an interpretation is in harmony
with decisions of the Supreme Court interpreting similar phrases
to refer to-the votes cast rather than to the number of eligible voters.
In County of Cass v. Johnston, 95 U. S. 360 (1878), the Suprema
Court considered a provision of a State Constitution which stated
in part that no county, city or town could loan credit to corporations
"unless two-thirds of the qualified voters of such county, city or
town, at a regular or special election to be held therein, shall assent
thereto Two-thirds of those who had voted in such an election had
indicated their assent, but such number was less than two-thirds of
the qualified voters. The Court held that the constitutional pro-
vision was satisfied, stating : - - - • `
"This (the principle that a majority of those voting 'deter-
mines the, issue. 5) we understand to be the established rule as
to the effect of elections, in the absence of any statutory regula-
tion to the contrary. All qualified voters who absent themselves
from an election duly called are presumed to assent to the ex-
pressed will of the majority of those voting, unless the law pro'-
viding for the election otherwise declares.; Any other rule would
be productive of the greatest inconvenience, and ought not to be
adopted, unless *the legislative will to that effect is clearly
expressed." (Page 369.)
Carroll County v. Smith, L11 U. S. 556',(1884),, involved a similar
constitutional provision, the pertinent 'language • being the same as
that'quoted above. The. Court affirmed its previous ruling, stating
that: "The. words `qualified voters', as used in the Constitution, must
be taken to mean not those qualified and entitled to vote, but those
qualified and actually voting. In that connection a voter is one who
.votes, not one, who, although qualified to vote, does riot vote." (Page
565.) In this case, while the number of qualified voters was 3,129,
the number of voters participating in the election was only 1,280, so
that a quorum of two-thirds was distinctly lacking.° Follo^ving
The majority governs except where the statute prescribes a , different figure, such as
two-thirds , etc But the principle remains the same, two -thirds of the votes , east deter-
mines the issue; neither concurrence nor participation of two-thirds of the eligible voters
,is required . - , ,
6In County of Cass v Johnston the number of voters participating was in excess of two-
thirds of those qualified to vote.
178 NATIONAL 'LABOR RELATIONS BOARD
these cases the phrase, "majority of the employees",- in the - Act must
be interpreted as meaning a majority of the employees who partici-
pate in the election, so that the organization receiving,a majority of
the votes cast is entitled to certification. Such an interpretation is
both consistent with the broad declarations of the Act in favor of the
procedure of collective bargaining, since it facilitates the choice of
representatives to carry on that bargaining, and in accord with the
general concepts and court decisions concerning elections.'
As a final matter, it was contended by the Company that whatever
may be the rule established by the Act, the Board is prevented from
applying that rule in this case because of the agreement conclulled
between the Union and the Company and affirmed by the Employees'
Committee Union, and that such agreement is the law of the case.
The last sentence of Paragraph 5 of that agreement states that "the
Company and the Union agree that the sole bargaining agency shall
be the candidate receiving a majority of the votes of all those eligible
to vote in such an election." The Company contends that under this
sentence,the Union needed the affirmative votes of a majority of the
eligible' voters and having failed to secure such a number of votes
cannot be certified as the exclusive representative. But such a conten-
tion overlooks entirely the fact that the election was not held pur-
suant to the agreement, to which the Board was not a party, but as
the result of an investigation and hearing conducted by the Board in
accordance with the authority conferred upon it by the Act. Under
that authority the Board's power is an exclusive one and not in any
way dependent upon, or affected by, such agreements between private
parties in situations of this nature. Consequently, the Act and not
the agreement furnishes the rule that must guide the Board in its
determination.
However, in view of the nature of the agreement and the possi-
bility of the'occurrence of similar agreements in later cases, it may
be profitable to analyze it further in the light of the Company's
contention that it embodies the principle of an affirmative designa-
tion by a majority of the eligible employees." Under such a conten-
4 We need not now decide whether as an administrative matter the Board would certify
even where the number of votes received , although a majority of those cast, is unsubstan-
tial in relation to the entire unit In Matter of Chrysler Corporation and Society of
Designing Enge"rers, Case No. R-16, decided May 12, 1936 (1 N L. R B 164 ), the Board
refused to certify an organization which received 121 votes in an election in which 700
employees were elieible to vote
6 Desnite the Company's contention , the agreement is susceptible of another , and more
reasonable , construction . The first sentence in Paragraph 5 reads as follows : "The
Comnany and the Union agree to an election to be held under the auspices of the National
Labor Relations Board and in accordance with the National Labor Relations Act * '' '."
The second ' sentence speaks of an election to be conducted " in complete accordance with
that Act". In 'view of such language it is a reasonable interpretation of the agreement to
read the last sentence of Paragraph 5 as merely embodying the views of the parties as to
DECISIONS AND ORDERS 179
tion, the last sentence must be taken to read as follows : "The Com-
pany states that it will recognize as the exclusive representative only
that organization which shall receive a number of votes equal to a
majority of the eligible employees and that an organization receiving
a lesser number shall neither be recognized nor bargained with col-
lectively." But as seen above, the Act in Sections 8 (5) and 9 (a)
provides that an organization receiving a majority of the votes cast
at an election becomes the exclusive representative for the unit and
the employer must bargain with it. Thus this portion of the agree-
ment, if construed as contended by the Company, is tantamount to a
violation of the Act and its declared policy and therefore cannot be
given any effect by the Board. Weil v. Neary, 278 U. S. 160 (1929) ;
Miller v. Ammon, 145 U. S. 421 (1892) ; Norman v. Baltimore' &
'Ohio Railroad Co., 294 U. S. 240 (1935), and cases cited thereiriypp.
306-311; of. System Federation No. 40 v. Virginian Rdilw'ay'Vo7n,-
pany, 11 F. Supp. 621, 628 (E. D. Va., 1935). Even if the last sen-
tence be said to be no more than a decision by the Union not to
press its claim as the exclusive representative unless it received a
number of votes equal to a majority of the eligible employees, that
decision must be regarded as being subject to change at any time,
for a binding agreement preventing it from representing employees
in accordance with the Act would likewise be contrary to the policy
of the Act and therefore of no effect. Nor could the Union be said
to be estopped by reason of any such agreement. Waskey v. Ham-
mer, 223 U. S. 85 (1912) ; Pope Manufacturing Company v. Gormully,
144 U. S. 224 (1892). The agreement therefore has no effect upon
the determination of the issues in this proceeding. The right of the
Union to be certified as the exclusive representative must be decided
solely by reference to Section 9 (a) of the Act. That Section, as
shown above, provides that the organization receiving a majority of
the votes cast at an election shall be the exclusive representative for
collective bargaining. Having received such a majority, the Union
will be certified by the Board in accordance with Section 9 (c).
CERTIFICATION OF REPRESENTATIVES
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act and pursuant to Article III, Section 8 of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
what is the rule of the Act, i e , their interpretation of Section 9 (a). If that interpreta-
tion is erroneous, no violence is done to the intent of the parties if the Board applies the
proper interpretation of Section 9 (a) to the situation , for the election would unquestion-
ably be "in accordance with the National Labor Relations Act". Under this construction
of the agreement , the basic question must be answered solely by reference to Section 9 (a).
5727-37-vol. n-13
180 NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY CERTIFIED that the United Electrical & Radio Workers
of America has been selected. by a majority of the employees in an
appropriate bargaining unit consisting of the hourly paid employees
in the production department, the model making shop (Division No.
77) in the engineering department, and the office service division
(Division No. 03) of the Camden plant of the R. C. A. Manufactur-
ing Company, Inc., exclusive of the following groups : all supervisory
employees down through and including working group leaders, all
clerical employees wherever located, all pinch club section employees,
process engineers, watchmen and guards, and that pursuant to Sec-
tion 9 (a) of the National Labor Relations Act, the United Electrical
& Radio Workers of America is the exclusive representative of all
employees in the above unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, and other
conditions of employment.