Reading Batteries, Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1940

19 N.L.R.B. 249 (N.L.R.B. 1940)

In the Matter of READING BATTERIES, INC. and UNITED ELECTRICAL,
RADIO AND MACHINE WORKERS OF AMERICA, LOCAL No. 128
Cases Nos. C-865 and R-794.-Decided January 9, 1940
Battery Manufacturing Industry-Interference, Restraint, and Coercion:
anti-union statements by respondent' s general manager-DiscrimSbnation:
charges of not sustained-Strike: sit-down-Strikers : discharge of, who par-
ticipated in sit-down strike and were convicted of forcible detainer , as ter-
minating employment-Unit Appropriate for Collective Bargaining : production
employees , excluding executives , supervisors , foremen , clerical employees, and
those having power to hire and discharge ; stipulation as to-Representatives:
proof of choice : membership in union ; union's majority lost subsequent to
valid discharges-Collective Bargaining : no refusal to bargain when union
had majority ; bargaining after union lost 'majority not considered ; allegations
of refusal to bargain dismissed-Investigation of Representatives : question
concerning representation : respondent denied union ' s claim to majority; Board
unable to determine present extent of union's membership-Employee Status:
laid-off temporary employees with no subsequent expectation of employment,
as terminating-Remedial Order : special form of: . preferential reemployment
ordered as to one employee-Election Ordered: at time hereafter directed by
the Board.
Mr. Joseph F. Castiello, for the Board.
Stevens d Lee, by Mr. Henry W. Lee and Mr. John H. Bertolet,
of Reading, Pa., for the respondent.
Mr. Saul C. Waldbaum, of Philadelphia, Pa., for the United.
Mr. Willard Young Morris, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On November 1, 1937, and January 12, 1938, United Electrical,
Radio and Machine Workers of America, Local No. 128, herein called
the United, filed with the Regional Director for the Fourth Region
(Philadelphia, Pennsylvania) charges and amended charges, respec-
tively, alleging -that Reading Batteries, Inc. of Muhlenberg Town-
ship, Berks County, Pennsylvania, herein called the respondent,
had engaged in and was engaging in unfair labor practices affect-
19 N. L. R. B., No. 29.
249
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing commerce, within the meaning of Section 8 (1), (3), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act.
On January 12, 1938, the United filed with the Regional Director
a petition alleging that a question affecting -commerce had arisen
concerning the representation of employees of the respondent and
requesting an investigation and certification of representatives pur-
suant to Section 9 (c) of the Act. On March 3, 1938, the National
Labor Relations Board, herein called 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,
ordered an investigation and authorized the Regional Director to
conduct it and to provide for an appropriate hearing upon due notice.
On the same day, the Board, acting pursuant to Article III, Section
10 '(c) (2), and Article II, Section 37 (b), of said Rules and Regu-
-lations, ordered a consolidation of the two cases.
Thereafter the Board, by the Regional Director, issued its com-
plaint dated April 16, 1938, copies of which were duly served upon
the respondent and the United. On April 28, 1938, the Board is-
sued and duly served on the respondent an amended complaint, sub-
stantially similar to the original complaint. The amended complaint
alleged in substance: (1) that the respondent discriminatorily ter-
minated the employment of seven named employees 1 on or about
October 15, 1937, William Berger on or about October 20, 1937, and
Thomas Heckman on or about October 25, 1937, and at all times
thereafter refused to reemploy said employees; (2) that the re-
spondent on or about November 29, 1937, and at all times thereafter
discriminatorily refused to reinstate Oliver Rauenzahn, Jr., Bernard
Guthier, William Moyer, Paul Frederick, and Donald Oririsbee ; (3)
that the respondent at various times since October 1937, interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act; and (4) that, although the
United had been designated by a majority of the respondent's em-
ployees within an appropriate unit as their representative for the
purposes of collective bargaining, the respondent on or about October
23 and 25, 1937, and at all times thereafter, refused to bargain
collectively with the United as the exclusive representative of such
employees. By its answer, duly filed and amended, the respondent
denied having engaged in the unfair labor practices alleged in the
amended complaint.
Pursuant to notice, a- hearing on the . amended, complaint-: and the
petition was held from April 28 to May .5,-1938, before-Joseph L.
1 Russell Gauby, Austin Gauby , Paul Adams, Francis Saul , Edward Katzenmoyer , Harold
Hauck, and William Dwyer.
READING BATTERIES , INCO RPORATED 251
Maguire, the Trial Examiner - duly designated :by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses , and to introduce evidence bearing upon the
issues was afforded all parties . During the course of the hearing the
Trial Examiner made numerous rulings on motions and on objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were com-
mitted. The rulings are hereby affirmed.
On August 17, 1938, the Trial Examiner filed his Intermediate
Report in which he found, that the respondent had engaged in, and
was engaging in unfair labor practices within the meaning of Section
8 (1), (3), and ( 5) and Section 2 (6) and (7) of the Act. He recom-
mended that the respondent cease and desist from such unfair labor
practices and take certain affirmative action remedial of their effect.
The Trial Examiner also recommended that the amended complaint
be dismissed with respect to Donald Ormsbee, alleged to have been
discriminatorily denied reinstatement . Copies of the Intermediate
Report were duly served upon the respondent and the United. There-
after the respondent filed a brief and exceptions to the Intermediate
Report. On July 25 , 1939, the respondent filed a supplemental brief
and on August 3, 1939; the United filed a brief . Pursuant to notices
duly served on the respondent and the United, hearings for the pur-
pose of oral argument were had before the Board in Washington,
D. C., on March 23 and July 25, 1939 . The respondent appeared by
counsel and the United by its representative . Both parties partici-
pated in the hearings . The Board has considered the exceptions to
the Intermediate Report and , in so far as they are inconsistent with
the findings, conclusions , and order hereinafter set forth , finds them
to- be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Readiny Batteries , Inc., is a Pennsylvania corporation , havinf its
principal office and only ' plant in Muhlenberg Township, Berke
County, Pennsylvania . It is engaged in the manufacture and sale
of wet acid -type batteries and battery parts. The principal materials
used by the respondent are grid metal oxides, cases , separators, sul-
phuric acid , covers, vents , compounds , stenciling paste, lacquer, and
corrugated cartons. In .1937 approximately 65 per cent of the mate-
rials used in the respondent 's plant were shipped into Pennsylvania
from other States. During . the same year , the respondent produced
75,000 batteries valued at $250,000 , approximately 56 per cent of
which were shipped to point outside Pennsylvania.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of America, Local
No. 128, is a labor organization affiliated with the Congress of Indus-
trial Organizations. It admits to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Prior to 1937 there was no labor organization in the respondent's
plant. During the last week of September 1937, Peter Besch, field
organizer for the United Electrical, Radio and Machine Workers
of America, began an organizational campaign among the respond-
ent's employees and among the employees of the Bowers plant, located
nearby. On October 17 the United held a meeting at which an em-
ployee from the Bowers plant was elected president, Edward
Katzenmoyer vice president, William Berger financial secretary, and
Russell Gauby treasurer. The United decided at this meeting that
it represented a majority of the respondent's employees, and a deci-
sion was made to attempt negotiations with the respondent.
Meanwhile, union organization had come to, the attention of the
respondent and on October 12 a notice was posted on the respondent's
time clock, announcing a meeting to be held during the noon hour
of that day. The respondent's secretary and general manager, John
Turner Moore, Jr., addressed the assembled employees concerning the
United and the organizational activities growing out of the mem-
bership drive.
Moore testified that he called the meeting because he had heard
that a sit-down strike was imminent; that upon hearing of the threat-
ened strike, he went immediately to Rauenzahn, an employee on the
respondent's assembly line, and was told by- the -latter that a sit-down
strike was, in fact, threatened.; that he, Moore, asked Rauenzahn
not to resort to such tactics; and that Rauenzahn agreed that the
union members would continue working until the return of Wahl,
the respondent's vice president who was then out of town. Moore
testified that he told the assembled employees of the threatened sit-
down strike and the agreement to defer action until Wahl's return ;
that he expressed his dissatisfaction with the "constant turmoil" in
the plant; that he assured his employees that the respondent's officers
would attempt to "straighten this whole thing out as quickly as we
could"; and that he urged the employees to feel free to come to him
or Wahl to discuss any grievances they might have.
Rauenzahn testified that prior to October 13 there had been
no threat or intention of striking and that the underlying cause of
the contemplated sit-down strike was Moore's failure to live up to '
READING BATTERIES, INCORPORATED 253
the promise he made to William Berger and Edward Katzenmoyer
immediately after the. speech of October 12 that he would give them
the respondent's decision with respect to a requested wage increase
by the end of the day. The request for such wage increase was
prompted by Moore's speech, and since no other cause existed for
strike action prior to the speech, we do not accept Moore's alleged
reasons for calling the meeting which we find was called by the re-
spondent to impede the United's membership drive.
Moreover, the respondent's purpose in calling the meeting is ap-
parent from the tenor of Moore's remarks to the assembled employees.
His remarks at this meeting on October 12, as testified to by the
Board's witnesses, may briefly be summarized as follows : Moore
asked them why they wanted to join an outside union and put money
into something without knowing where it went; he suggested that
perhaps a desirable alternative would be to form their own union
and at the end of the year.. use the money for parties; that if the.
"shop went union" the respondent would have to increase the wages
and therefore the prices of its products, which could only result in
a loss of orders and a consequent lay-off of employees. Of nine
employes who were called by the respondent to testify at the hearing,
eight were questioned concerning the meeting of October 12 and the
gist of Moore's remarks. Only one could recall anything that Moore
said , which was to the effect that although he, Moore, believed in
unions, he thought that the employees should handle their own
troubles; that if they had any grievances they should see him about
it personally. In view of the consistent testimony of the Board
witnesses concerning Moore's speech, and the inability of all but one
of the respondent's witnesses to recall anything that Moore said, we
find that Moore,addressed his employees substantially as the Board
witnesses testified.
On October 16, 1937, Moore called a second meeting of the respond-
ent's employees. Moore testified that his reason for calling the meet-
ing, which was held during working hours, was to give the men "our
own picture of the business that we were doing, and in what way
they were sharing in that business"; that he thought it necessary to
speak to them at that time because the work of the preceding week
had been inferior; and that he attributed the inferior work to "the
agitation that was going on." Moore, on being questioned at the
hearing, explained his word "agitation" as follows : "I mean by 'agita-
tion' the efforts on the part,of some of the agitators to get these men,
apparently, in the union, to talk to them during working hours, and
that sort of thing." On further' questioning about his word "agi-
tators" Moore said that he had particular reference to Besch, Rauen-
zahn, Guthier (who like Rauenzahn was employed on the assembly
line), Katzenmoyer, and Berger.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.
Moore further testified that he told the assembled employees that
if they wanted "the C. I. O. union, that we would help them get it.
I said on the other hand, if they merely wanted„ somebody to con-
tribute a dollar a week to, we would have a damn nice party at the
end of the year." According to Moore, he explained the growth of
the respondent's business stating that he felt that the' employees were
sharing properly in the improvement and he warned them against
careless work. We are satisfied, on the basis of Moore's own testi-
mony, that the respondent called this second meeting for the purpose
of further discouraging membership in the United. Our finding is
strengthened by the testimony of Board witnesses to the effect that
Moore, during his address, predicted a lay-off of employees if the
United succeeded in enlisting the employees.
In addition to the statements which we have found that Moore
made to the respondent's assembled employees, similarly in private
conversations he attempted to discourage membership in and activity
on behalf of the United. According to the testimony of Rauenzahn
and Guthier, on October 15 Moore, apparently still fearing a strike,
summoned them to his office and inquired whether they intended to
come to work the following Monday. He went on to say that he
did not see how an "outsider" could offer the employees more than
they were getting. When Rauenzahn and Guthier told Moore that
they would report for work on the following Monday, Moore said :
"That is fine. I think, if our fellows stick together, we have this
thing licked." Moore denied making any reference to union activ-
ities when he talked with these two employees. However, since we
have found that Moore had already given expression to his opposi-
tion to the United, we find the statements attributed to him on this
occasion by Rauenzahn and Guthier to be consistent with Moore's
attitude toward membership in the United. We accept the .testimony
of Rauenzahn and Guthier in this regard.
William Moyer, an employee in the respondent's forming room,
testified that on or about October 15, he was called into Moore's office.
After discussing an increase in wages, Moore inquired of Moyer as
to the latter's feeling toward the United. Moyer's testimony concern-
ing part of the conversation is as follows :
He (Moore) made a remark to me about the unions. He says
I could think he was a son of a bitch as long as I thought it to
myself, but he says when I started thinking, or telling someone
else, that is, when he disapproved of it, and lie said, "that is how
to feel about the union" . . . I could approve the union as
long as I kept quiet, but if I started circulating and going around
he would have to leave me go.
READING BATTERIES, INCORPORATED 255'
Moore denied making any threating statements to his employees.
We credit Moyer's version of the conversation.
Thomas Heckman testified that Wahl asked him why he had joined
the "union" and whether or not he was satisfied with the wages he
was receiving, pointing out that if the "shop went union" he would
be one of the first to be laid off on a seniority basis. Wahl impliedly
denied making such statements. We accept Heckman's testimony as
to these statements made by Wahl.
Berger testified that a few days after he joined the United, Moore
called him into the.office, asked him why he had joined, and stated,
"If we got a union we will lose a couple of orders, and that will throw
a lot of men out of work. . . ." Moore denied making the state-
ment attributed to him by Berger. However, because of Moore's
hostility towards and methods of opposing the United which we have
already found, we accept Berger's testimony in this regard.
We find that the respondent, by the activities set forth above, has
interfered with, restrained, and coerced its employees in the exercise
of their right to self-organization, - to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining and other mutual - aid and protection as
guaranteed in Section 7 of the Act.
B. The alleged discriminatory lay-offs
The amended complaint alleges that on October 15, 1937, the re-
spondent discriminatorily terminated the employment of and at all
times thereafter refused to reemploy Russell Gauby, Austin Gauby,
Paul Adams, Frances Saul, Edward Katzenmtoyer, Harold Hauck,
and William Dwyer. At the hearing Moore and Wahl testified that
Dwyer was laid off on October 18, Dwyer himself testifying that he
was laid off on October 15. In view of our findings, hereinafter
made, it is unnecessary to resolve the conflict. To render discussion
more convenient, we shall consider Dwyer's lay-off to have occurred
on October 15.
The respondent contends that such lay-offs were necessary be-
cause of seasonal diminution of incoming orders, which became ap-
parent in September but which did not require a curtailment of
production until the middle of October when a production back-
log had been exhausted. The record supports, the respondent's con-
tention. _ Shortly before October ,1, the;, respondent - prepared a'
schedule of its employees according to their respective departmental
seniority. The lay-offs were made, except as to Hauck, strictly on
a basis of departmental seniority. An employee named Tessier was
retained in preference to Hauck, although having less seniority. The
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent gives two reasons for this departure from its seniority
policy,' neither of which is controverted : (1) Hauck's work was in-
ferior, about which he had been warned at various times, even being
put on a 2-week 'probationary period; and (2) Tessier was married,
whereas Hauck was not. Tessier was also a member of the United.
From all the evidence we find that the respondent did not termi-
nate the employment of the above-named employees because of their
union membership and activity.
We-shall discuss the respondent's refusal to reemploy the above-
named employees in subsection C (2) below, in connection with its
refusal to reinstate other employees named in the complaint.
William Berger' entered the respondent's employ in July 1937,
doing work on the generators and at times in the shipping and re-
ceiving departments. He joined the United in the latter part of
September and on October 17 was elected to the office of financial
secretary of the United.
Berger was laid off by the respondent on October 20, 1931. The
respondent advances as its principal reason for laying off Berger
the lack of work which had occasioned the lay-off of the other men
on October 15. It is undisputed that Berger was at the time of his
lay-off the junior employee in his department. Moore and Wahl
testified to deficiencies in the work and conduct of Berger, stating that
their only reason for retaining him until October 20 was that they
desired to complete the backlog of production.
Berger, in his testimony, stated that the only time he ever received
a complaint with respect to his work was on the day lie was laid
off when Wahl complained to him that orders had gone out incor-
rectly. Berger denied being responsible for such irregularities. In
view of our finding below, .however, it is unnecessary to resolve this
issue. In an attempt to establish the respondent's reason for laying
him off, Berger testified that on October 18 he with other members
of a union committee conferred with Moore and that Moore inquired
of Besch who the newly elected officers were and wrote down their
names, including Berger's name as financial secretary. Besch, who
kept a diary of events, placed the conference referred, to by Berger
as taking place on October 23, which was 3 days after Berger's lay-off.
Hence, accepting evidence which by its nature would tend to be
more. reliable, we do not find that Moore knew that Berger held an
office in the United at the time of his lay-off and the lay-off of the
other employees on October 15.
From all the evidence we find that the respondent did not discrimi-
natorily terminate Berger's employment. We shall consider the. re-
spondent's refusal to reemploy Berger in subsection C (2) below.
'"Thomas Heckman entered the respondent's employ on June 21,
1937. He was assigned to help Owens, a, watchman, do general clean-
- READING BATTERIES, INCORPORATED - 257
ing work at night and occasionally load and unload trucks. Heckman
was on his way to work in the evening of October 25 when Wahl
met him. Wahl drove Heckman back home in his car and on the
way told him that a sit-down strike had begun that afternoon.2 Wahl
instructed Heckman not to report for work until called for. Heck-
man inquired of Moore a few weeks later if lie might return to work
and was told that things were still unsettled. He was not replaced.
Both Moore and Wahl, at the hearing, stressed, as their reason for
terminating Heckman's employment on October 25, their fear that
Heckman, an old man,3 might be injured if trouble occurred as a
result of the strike. They further testified that Heckman's work
was not satisfactory, that it was reported to them that Heckman
was drunk on one occasion. The contention was made at oral argu-
ment before the Board that an reason for not wanting Heckman
to work as watchman at that time was that he was a member of the
United, other members of which labor organization were on strike at
the respondent's plant.
Whether the respondent's officers were concerned about Heckman's
welfare, or the protection of their own property,4 we think they were
justified in laying off Heckman as they did. We reject their con-
tention that he was laid off because of improper conduct or unsatis-
factory work as being inconsistent with the attitude of the respond-
ent's officers toward and expressions to Heckman at the time of his
lay-off. In view of the diminution in the respondent's production
which followed the strike and the fact that no one was hired to replace
Heckman, we do not find that the respondent discriminatorily refused
to reinstate him. We find, however, that he was laid off with the
understanding that he was to be later reemployed.
C. The alleged refusal to bargain, the strike, and the refusals
to reinstate
1. Chronology
On October 23 Besch and a committee of the United conferred with
Moore and Wahl.' Besch, as spokesman for the group, stated to Moore
and Wahl that the United represented a majority of the respondent's
employees and presented a proposed contract. Although Moore and
Wahl challenged the claim that the United represented a majority
of the employees, they discussed the proposed contract and asked to be
permitted to submit it to the respondent's directors and stockholders.
2 The strike is more fully discussed below.
3 At the time of the hearing Heckman was 60 years. old.
4 See Matter of United States Stamping Company and Enamel Workers Union No. 18650,
5 N. L. R. B. 172, 186.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 24, 1937, at a meeting of the United, a decision was
reached to insist that the respondent give a written statement promis-
ing to place the employees laid off on a preferential list for reinstate-
ment and assure the United that there would be no lock-out during
negotiations. On October 25 Besch and the United committee met
with Wahl and Moore and presented the above demand, which Moore
and Wahl, after conferring with counsel, refused. Rauenzahn and
Guthier, upon being informed of the outcome of the conference,
stopped work and began a sit-down strike. They were joined around
1: 30 p. m. by William Moyer.
Later in the afternoon of the same day, Rauenzahn, Giithier, and
Moyer were notified by Moore and Wahl that they were discharged
and were tendered their pay in full. When asked, they refused to
leave the respondent's plant. During the evening of October 25,
Berger, Dwyer, Russell Gauby, Austin Gauby, and Hauck, all of
whom had been laid off a few days before, entered the respondent's
plant through a window, for the purpose of joining Rauenzahn,
Guthier, and Moyer in the sit-down strike. As Berger came in he
was knocked unconscious by the respondent's watchman, who was
attempting to prevent the men from entering. Upon..regaining con-
sciousness a few minutes later, Berger left the plant "with"Hauck- who
had been reminded by Rauenzahn that his mother might disapprove
of his participation in the sit-down strike. The six remaining strikers
stayed in the plant. During the evening of October 26, a group of
persons, whose identity is not disclosed by the record, came into the
plant by the back door. As they entered, Rauenzahn, Dwyer, and
Guthier, fearing violence and not wishing to be implicated, left the
plant. The unnamed invaders chased the respondent's watchman out
of the plant and in a few minutes left the plant themselves. Moyer,
A. Gauby, and R. Gauby remained sitting down inside. Shortly be-
fore midnight, local police came with warrants and arrested these
three strikers. Warrants had also been sworn out for the other par-
ticipants in the sit-down strike. Besch arranged bail for Moyer and
the Gauby brothers, and the following morning brought" the five other
sit-down strikers to the police authorities as he had promised. The
arrests were made on charges of forcible entry and forcible detainer,
except as to Berger, Moyer, Rauenzahn, and Guthier, who were also
"charged with assault and battery." The strike continued, by peaceful
picketing, until the latter part of November 1937.
During the month of November several conferences were held
between representatives of the respondent, the United, the" Board,
6 The charges were subsequently dropped as to Moyer, on representations by him that
.he could obtain a promised job outside Pennsylvania. The remaining seven participants in
the sit-down strike were convicted for forcible detainer only. At oral argument, counsel
for the United stated that all sentences had been suspended.
READING BATTERIES, INCORPORATED 259
and the United States Department of Labor. Throughout these con-
ferences the respondent consistently denied that the United repre-
sented a majority of its employees. In a letter dated December 22,
1937, the respondent stated that it did "not see the need of any further
negotiations with the Union." There were no further conferences
between the respondent and the United.
2. The refusals to reinstate
The amended complaint alleges that the respondent on and since
November 29, 1937, discriminatorily refused to reinstate Oliver
Rauenzahn, Bernard, Guthier, William Moyer, Paul Frederick, and
Donald Ormsbee.
We have already discussed the participation in the sit-down strike
by Rauenzahn, Guthier, and Moyer. Following the strike they ap-
plied for reinstatement, but the respondent. refused to reinstate
them. Under the circumstances related above we do not find that
the respondent's refusal constituted an unfair labor practice.
Paul Frederick quit work on October 25, 1937, and joined the
strike. He participated in the picket line for a while and then found
work elsewhere. He 'did not ask for reinstatement until the hearing.
Under such circumstances, we find that the respondent did.not .dis-
criminatorily refuse to reinstate him.
Donald Ormsbee did not appear at the hearing to testify. Moore
testified that Ormsbee never reported for work after October 23', 1937;
that some 2 months before the hearing, he, Moore, had telephoned
Ormsbee and offered him work; and that Ormsbee failed to report
for work the following Monday, although he had so promised. We
accept Moore's testimony in this regard. We find that the respond-
ent did not discriminatorily refuse to reinstate Ormsbee.
As indicated above under subsection B, the complaint alleges that
the respondent laid off and thereafter refused to reemploy Russell
Gauby, Austin Gauby, Paul Adams, Francis Saul, Edward Katzen-
moyer, Harold Hauck, William Dwyer, and William Berger.
Production in the respondent's plant reached its peak in the late
summer or early fall when it customarily hires additional employees.
The tenure of these employees is necessarily of indefinite duration,
depending upon the amount of business which follows the production
peak. Seven of the above-named employees had been hired for the
first time by the respondent between June and September 1937.
Only Saul had previously been employed by the respondent and he
had voluntarily terminated hiS previous term of employment early
in 1937. . All these employees were hired to meet the demands of
the respondent's peak season. -As we have found, their lay-off on
October 15-mid 20 was occasioned- by a decrease in production and
did not constitute an unfair labor practice.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the strike all these employees, except Adams, applied
for reinstatement, at times singly and at other times in groups. On
these occasions they were told by Moore or Wahl either that there
Was no work available or that consideration for reemployment could
not be given those who had engaged in the sit-down strike while the
criminal charges arising from their participation therein were pend-
ing. Adams did not apply for reinstatement but was offered rein-
statement and resumed work for the respondent in January 1938.
We have found that Russell and Austin Gauby, Hauck, Berger, and
Dwyer participated in the sit-down. strike and were subsequently
convicted, of forcible detainer as a result of their activities therein.
Under the circumstances, we do not find that the respondent's refusal
to consider them for reemployment constituted an unfair labor
practice.
There remains for consideration the refusal to reemploy Saul and
Katzenmoyer. At the time of the hearing the respondent had hired
only two persons who were not in its employ immediately prior to
October 15, 1937. One of these, Scott Cronrath had previously been
employed in the respondent's forming room fora period of about 2
years but had voluntarily left its employ with the understanding that
he. could return if the venture that he was undertaking did not suc-
ceed. Cronrath returned to work for the respondent in November
1937. He was placed in the forming room where he had had con-
siderable experience, and where, by contrast, Katzenmoyer had only
worked for approximately 2 months. The other employee, Frederick
Moore, was a brother of the respondent's general manager and was
hired on a temporary basis to take the place of an employee suffering
from lead poisoning. Thus, it appears that the respondent had valid
reasons for hiring these new employees. In any event, the record
affords insufficient basis for finding that Saul and Katzenmoyer were
refused reemployment because of their membership in and activity
in behalf of the United.
3. The refusal to bargain
a. The appropriate unit
It was stipulated at the hearing that the unit appropriate for
the purposes of collective bargaining should consist of all the respond-
ent's production employees, exclusive of executives, supervisors, fore-
men, clerical employees, and those having the right to hire and dis-
charge.' We see no reason for not accepting the unit agreed upon.
6 One Samuel Merkel is employed as a checkman for all operations relating to charging,
forming, and finishing of batteries . He gives orders to the men engaged in the work over
which be has supervision , but works alongside of them doing the same kind of work that
they do. He has no power to hire or discharge employees , and the United considers him
eligible for membership . We find that Merkel is a production employee and not a
supervisor.
READING BATTERIES, INCORPORATED 261
We find that the production employees of the respondent, excluding
executives, supervisors, foremen, clerical employees, and those having.
the power to hire and discharge, constitute an appropriate unit for
the purposes of collective bargaining, and that such a unit insures
to the employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act. '
b. Representation by the United of a majority in the appropriate unit
The complaint alleges that on or about October 23 and 25, 1937.,
and at all times thereafter, the respondent refused to bargain collec-
tively with the United as the exclusive representative of its employees
in the appropriate unit.
The respondent's pay-roll lists for October 23 and 25, 1937, which
were introduced in evidence, contain the names of 31 employees in
the appropriate unit. We must determine whether, in addition to
these 31 employees, Russell and Austin Gauby, Adams, Saul, Katzen-
moyer, Hauck, Dwyer, and Berger, who were laid off during the
preceding 2 weeks, retained their status as employees and thus should
be considered in determining the total number of employees in the
appropriate unit.
We have already described the fluctuations in the respondent's
production, the circumstances under which the above-named em-
ployees were hired and the reasons for their lay-off. The relevant
inquiry is whether their temporary tenure of employment embraced
a reasonable expectation of subsequent reemployment. The respond-
ent has no established custom of preferentially hiring employees laid
off during slack periods. The names, addresses, and telephone num-
bers of such employees are recorded by the respondent, but only those
employees who are considered desirable are offered reemployment
when additional services are required. With the exception of Saul,
all the above-named men had been hired by the respondent for the
first time in 1937. With respect to Saul, the record discloses, as we
have described above, that he had voluntarily left the respondent's
employ early in 1937 and had been rehired for the peak season later
in the year. It is significant in analyzing the respondent's employ-
ment policy that Cronrath, who was reemployed in November 1937,
had obtained an express promise from the respondent that he would
be taken back should a venture which he had left to undertake fail.
It is further, significant that the strike described above was called in
part because the respondent refused to place on a preferential list
for reemployment the men who were laid off on October 15 and 2O.7
'It is true that Adams was reemployed in January 1938. The record shows, however,
that Wahl was under obligation to Adams ' father and that the obligation was the principal
motivating factor in his reemployment . We cannot say, therefore , that Adams was reem-
ployed In accordance with an established policy of rehiring former employees.
283030-41-vol. 19-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We conclude that Russell and Austin Gauby, Adams, Saul, Katzen-
moyer, Hauck, Dwyer, and Berger did not have a reasonably definite
expectancy of reemployment and that their employee status was ter-
minated at the time of their respective lay-offs.8
Accordingly, on October 23 and 25, 1937, there were 31 employees
in the appropriate unit. On October 23, when the United undertook
the negotiations with the respondent, 16, employees in the appropriate
unit were members of the United. On October 25, as we have indi-
cated above, three of such members engaged in a sit-down strike and
were discharged," thus reducing the number of employees in the unit
to 28 and the number -represented by the United to 13. The only
relevant changes in the pay roll occurred in November 1937 when
Cronrath, a non-union employee, was hired, and in January 1938, when
Adams, a member of the United, was reinstated. We find that on
October 23 and 25, 1937, the United represented a majority of the
employees in the appropriate unit and that thereafter the United
lost its majority status.
c. The alleged refusal to bargain
On October 23, 1937, when the United requested recognition as the
exclusive,bargaining agent of the'respolident's employees, the'respond-
ent, as we have already indicated, questioned the United's claim to
represent a majority of its employees, but asked to be permitted to
submit the United's proposed contract to its directors and stockholders.
On October 25, 1937, the United demanded the written assurances,
referred to above, which the respondent refused to give. The sit-down
strike followed immediately.
We find that the respondent's action in questioning the United's
majority, accompanied, as it was, by a request that, it be given time to
submit the United's proposed contract to its directors and stock-
holders did not constitute a refusal to bargain. On October 25, the
United made demands, not that the respondent recognize it and bargain
with it as exclusive bargaining representative, but that the respond-
ent immediately make certain concessions. The respondent's refusal
to accede to these demands was not a refusal to bargain.
Since, as we have already found, the United did not represent a
majority of the respondent's employees after the discharge of three
of its members, it is unnecessary to consider in this respect the events
subsequent to October 25, 1937.
8 Their participation in the strike subsequent . to their lay -off did not , of course, continue
or revive their employee status since they could not have been considered employees whose
work had ceased as a consequence of a labor dispute. Should our finding in the text be to
the contrary , it is obvious that subsequent to October 25, 1937, only Saul and Katzenmoyer
could have been counted as employees in the appropriate unit.
Rauenzahn , Guthier, and Moyer.
RE:4DING BATTEiRIES, IiiNCORPO!RATED
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
263
The activities of the respondent set forth in Section III, A above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion 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
We have found that the respondent has engaged in certain unfair
labor practices. We shall, therefore, order it to cease and desist
therefrom.
We have found that the respondent was justified in laying off
Thomas Heckman on October 25, 1937, and that the respondent did
not subsequently discriminatorily refuse to reinstate him in view of
the decreased operations of the respondent's plant. However, we have
also found that Heckman's lay-off was originally intended by the
respondent and understood by Heckman to be temporary. In view of
the respondent's unfair labor practices as set forth in Section III, A
above, there is grave danger that. the .respondent will not reemploy
Heckman even if his former or a substantially equivalent position is
open. In order to effectuate the policies of the Act, we shall require
the respondent to place Heckman, for whom work was not available
at the time of the hearing, upon a preferential list, for employment
as it arises.10
VI. THE QUESTION CONCERNING REPRESENTATION
During the negotiations between the United and the respondent
after October 25, and at the hearing, the respondent took the position
that the United did not represent a majority of its employees. As
noted above, the United represented a substantial number of the
respondent's employees in October 1937 and in its petition asserted that
it represented a majority of the employees. We cannot determine the
extent of membership of the United at the present time.
We find that a question has arisen concerning the representation
of employees of the respondent.
10 Matter of American Numbering Machine Company and International Association of
Machinists District #15, 10 N. L. R. B. 536; Matter of American Manufacturing Concern
and Local No. 6, Organized Furniture Workers, 7 N. L. R. B. 753; Matter of Benjamin
Levine, doing business under the name and style of Estellite Fixtures Company and
International Brotherhood of Electrical Workers Local Union No. 438, 6 N. L. R. B. 400.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. THE DETERMINATION OF REPRESENTATIVES
We find that the question which has arisen concerning the repre-
sentation of employees of the respondent can best be resolved by
means of an election by secret ballot.
Since the respondent has, by engaging in various unfair labor
practices, interfered with the exercise by its employees of the rights
guaranteed them by the Act, we shall not now set the date for the
election. We shall hold the election, however, upon receipt of infor-
mation from the Regional Director that the circumstances permit a
free choice of representatives unaffected by the respondent's unlawful
acts . We shall, at the time we specify the date on which the elec-
tion is to be held, also specify the date on the basis of which eligi-
bility to vote in the election shall be determined.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio and Machine Workers of America,
Local No. 128, 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 the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act.
5. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of Reading Batteries, Inc., Muhlenberg Town-
READING BATTERIES, INCORPORATED 265
ship, Berks County, Pennsylvania, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the National Labor Relations Act.
7. The production employees of the respondent, excluding execu-
tives, supervisors, foremen, clerical employees, and those having the
power to hire and discharge, constitute a unit appropriate for the
purposes of collective bargaining, within the meaning of Section 9.
(b) of the National Labor Relations Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Reading Batteries, Inc., and its officers, agents, successors,
and assigns shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
and other mutual aid and protection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Place Thomas Heckman on a preferential list in the inanner
set forth in the section entitled "The remedy" above, and thereafter,
in. said manner, offer him employment as it becomes available ;
(b) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days,
notices stating that the respondent will cease and desist in the manner
aforesaid;
(c) Notify the Regional Director for the Fourth 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, as amended, be, and
it hereby is, dismissed in so far as it alleges that the respondent dis-
criminated in regard to the hire and tenure of employment of Russell
Gauby, Austin Gauby, Paul Adams, Francis Saul, Edward Katzen-
moyer, Harold Hauck, Wiliam Dwyer, William Berger, Thomas
Heckman, Oliver Rauenzahn, Jr., Bernard Guthier, William Moyer,
Paul Frederick, and Donald Ormsbee.
IT IS FURTHER ORDERED that the complaint, as amended, be, and
it hereby is, dismissed in so far as it alleges that the respondent has
engaged in unfair labor practices, within the meaning of Section 8
(5) of the National Labor Relations Act.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Re-
lations Act, 49 Stat: 449, and pursuant to Article. III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, it
is hereby
DIRECTED that , as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Reading Batteries , Inc., Muhlenberg Township , Berks County,
Pennsylvania, an election by secret ballot shall be conducted at such
time as the Board shall hereafter direct, under the direction and
supervision of the Regional Director for the Fourth Region , acting in
this matter as agent for the National Labor Relations Board and
subject to Article III, Section 9, of said Rules and Regulations,
among the production employees of Reading Batteries , Inc., employed
by said company during the pay-roll period which we shall in the
future specify , excluding executives , supervisors , foremen, clerical
employees, and those having the power to hire and discharge, to
determine whether or not they desire to be represented by United
Electrical , Radio and Machine Workers of America , Local No. 128,.
affiliated with the Congress of Industrial Organizations , for the
purposes of collective bargaining.