Sturgeon Electric Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1967

166 N.L.R.B. 210 (N.L.R.B. 1967)

210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sturgeon Electric Company, Inc. and International
Association of Machinists and Aerospace Workers
and Its District Lodge 86, AFL-CIO and
International Brotherhood of Electrical Workers,
Local 111, Party to the Contract. Case
27--CA-2117
June 28, 1967
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 26, 1967, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices alleged in the complaint and recommend-
ing that it cease and desist therefrom, and take cer-
tain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner
further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be
dismissed with respect to those allegations.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a supporting
brief, the Respondent filed cross-exceptions and a
brief in support of its cross-exceptions and in
answer to the General Counsel's exceptions, and
the General Counsel filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions,
cross-exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner,
with the following modification:
The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) and (2) of the
Act by its assistance to the IBEW during the or-
ganizational activities of the Machinists Union
(hereinafter IAM), particularly following receipt of
the IAM's request for recognition on September
15, 1966. He further found that at all material
times on and after August 23, 1966, the IAM
represented a majority of the employees in the unit
of Respondent's garage department employees
which he found to be appropriate for the purposes
of collective bargaining, and that Respondent had
1 Majestic Weaving Co., Inc, of New York, 147 NLRB 859, supple-
mented 149 NLRB 1523, enforcement denied on other grounds 355
refused its request to bargain. Nevertheless, he
recommended dismissal of the allegation in the
complaint that Respondent had unlawfully refused
to bargain with the IAM, to which recommendation
the General Counsel has excepted. We find merit
in the exception.
It is abundantly clear from the record herein that
all of the necessary ingredients of a violation of Sec-
tion 8(a)(5) have been established. Thus, the IAM
had been designated by a majority of the employees
in an appropriate bargaining unit, and duly
requested recognition from Respondent by letter
dated September 14, 1966. On September 16,
1966, the day following its receipt of the request for
recognition, the Respondent met with IBEW Busi-
ness Agent Duffey and negotiated the terms of a
contract with that union. On the same day, it sought
and obtained the signatures of several employees on
IBEW authorization cards. On September 20,
Respondent's President Johnson replied to the
IAM's September 14 request for recognition, stat-
ing that its attorney would be out of town until Oc-
tober 5 and requesting postponement of any further
action until that time. On September 21, the IAM
advised Respondent by letter that it had filed a
representation petition with the Board, again
requested recognition, and offered to prove its
majority status. On September 22, Respondent ad-
vised the IAM that it had signed a "working agree-
ment" with the IBEW on September 16.
The situation which controls is that which existed
on September 15, the date when Respondent
received the IAM request for recognition. At that
time, the IAM represented a majority of Respond-
ent's employees in the garage department, an ap-
propriate bargaining unit. Immediately thereafter,
Respondent unlawfully assisted the IBEW in the
manner indicated above and in the Trial Examiner's
Decision, and then rejected the IAM's claim. By
establishing this course of conduct, the General
Counsel has satisfied his burden of proving that
Respondent in bad faith declined to recognize the
IAM in order to destroy its majority status and to
substitute the IBEW as the bargaining representa-
tive of its garage employees. I This conclusion is not
altered by the presence of the IBEW- an assisted
union - on the scene. Indeed, the heart of the proof
of Respondent's bad faith lies in its actions sponsor-
ing that organization at a time when it was under a
statutory duty to bargain with the IAM.2 Under
these circumstances, Midwest Piping & Supply Co.,
Inc., 63 NLRB 1060, upon which the Trial Ex-
aminer relies, is inapposite. We find, therefore, that
by refusing to recognize the IAM as the exclusive
representative of its employees in the appropriate
unit, Respondent has violated Section 8(a)(5) of the
Act.
F 2d 854 (C A 2), H & W Construction Company, Inc., 161 NLRB 852
' See Majestic Weaving Co ., of New York, supra.
166 NLRB No. 28
STURGEON ELECTRIC CO. 211
ADDITIONAL CONCLUSIONS OF LAW
Upon the basis of its findings of fact and the en-
tire record in this case, the Board hereby deletes the
Trial Examiner's Conclusion of Law 6, and adopts
the following as its Conclusions of Law 5, 6, and 7,
with the present Conclusion of Law 5 being renum-
bered as Conclusion of Law 8:
5. All mechanical, maintenance, and garage em-
ployees at Respondent's garage, excluding all office
clerical and professional employees, supervisors as
defined in the Act, and all employees presently
represented by another labor organization, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
6. On August 23, 1966, and at all times
thereafter, the IAM has been the exclusive
representative of all the employees in the aforemen-
tioned appropriate unit for the purposes of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
7. By refusing, on September 15, 1966, and
thereafter, to bargain collectively with the IAM as
the exclusive representative of its employees in the
aforementioned appropriate unit, the Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Sturgeon Electric Company, Inc., Denver,
Colorado, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interfering with the administration of or giv-
ing support to International Brotherhood of Electri-
cal Workers, Local 111, or recognizing that or any
other labor organization which does not represent
a majority of its employees in an appropriate unit.
(b) Recognizing the above-named labor or-
ganization as the bargaining representative of its
garage employees, or giving any effect to the con-
tract executed with said labor organization on Sep-
tember 30, 1966, or to any modification, extension,
renewal, or supplement thereto, provided, that
nothing herein shall require it to vary or abandon
any wage, hour, seniority, or other substantive
clauses set forth in said agreement.
(c) Refusing to bargain collectively with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment, with In-
ternational Association of Machinists and
Aerospace Workers and its District Lodge 86,
AFL-CIO, as the exclusive representative of its
employees in the following appropriate unit:
All mechanical, maintenance, and garage em-
ployees of Respondent at its garage, excluding
all office clerical and professional employees,
supervisors as defined in the Act, and all other
employees presently represented by another
labor organization.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain col-
lectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all such ac-
tivities, except to the extent that such right may be
affected by an agreement requiring membership in
a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which
is deemed necessary to effectuate the policies of the
Act:
(a) Withdraw and withhold all recognition from
International Brotherhood of Electrical Workers,
Local 111, as the collective-bargaining representa-
tive of its garage employees for the purposes of
dealing with grievances, labor disputes, wages,
rates of pay, hours of employment, or other terms
or conditions of employment, unless and until the
Board shall certify said labor organization as the
representative of these employees.
(b) Reimburse those employees who joined the
above-named labor organization pursuant to the
union-security language of the September 30, 1966,
contract for all initiation fees and dues paid by
them.
(c) Upon request, bargain collectively with In-
ternational Association of Machinists and
Aerospace Workers and its District Lodge 86,
AFL-CIO, as the exclusive representative of the
employees in the aforestated appropriate unit, with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody
such understanding in a signed agreement.
(d) Post at its garage at Denver, Colorado, co-
pies of the attached notice marked "Appendix."3
Copies of said notice, to be furnished by the Re-
gional Director for Region 27, after being duly
signed by Respondent's representative, shall be
posted by it immediately upon receipt thereof, and
be maintained for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
3 In the event that this Order is enforced by a decree of a United States ' Order" the words "a Decree of the United States Court of Appeals En-
Court of Appeals, there shall be substituted for the words "a Decision and forcing an Order."
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 27,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
STURGEON ELECTRIC
COMPANY, INC.
(Employer)
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL NOT interfere with the administra-
tion of or give support to International Brother-
hood of Electrical Workers, Local 111, or to
any other labor organization which does not
represent a majority of our employees in an ap-
propriate unit.
WE WILL withdraw and withhold all recogni-
tion from the above-named labor organization
as the representative of our garage employees
until it is duly certified by the National Labor
Relations Board, and we will not give effect to
our contract with it executed on September 30,
1966, or to any modification, extension,
renewal, or supplement thereto.
WE WILL reimburse all employees who
joined the above-named labor organization pur-
suant to the union-security language of the Sep-
tember 30, 1966, contract for all initiation fees
and dues paid by them.
WE WILL, upon request, bargain collectively
with International Association of Machinists
and Aerospace Workers and its District Lodge
86, AFL-CIO, as the exclusive representative
of our employees in the unit described below,
with respect to rates of pay, wages, hours of
employment, or other terms and conditions of
employment, and, if an understanding is
reached, we will embody such understanding
in a signed agreement. The bargaining unit is:
All mechanical, maintenance, and
garage employees at our garage, excluding
all office clerical and professional em-
ployees, supervisors as defined in the Act,
and all other employees presently
represented by another labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-or-
ganization, to form labor organizations, to bar-
gain collectively through representatives of
their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, and to refrain
from any or all, such activities, except to the ex-
tent that such right may be affected by an
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, New Custom House, Room 260, 721 19th
Street, Denver, Colorado 80202, Telephone
297-3551.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Denver, Colorado, on February 20 and 21,
1967. The complaint' alleges that Respondent, Sturgeon
Electric Company, Inc., had engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (2), and (5) of
the National Labor Relations Act, as amended. Briefs
have been submitted by the General Counsel and
Respondent.
Upon the entire record in the case, and from my obser-
vation of the witnesses, I make the following:
1. JURISDICTIONAL FINDINGS
Sturgeon Electric Company, Inc., is a Colorado cor-
poration maintaining its office and place of business at
Denver, Colorado, where it is engaged in the business of
electrical construction and service. It annually purchases
and receives goods and materials valued in excess of
$50,000 which are shipped to it directly from points out-
side the State of Colorado. It also annually sells and dis-
tributes goods and materials or provides services at retail
valued in excess of $500,000. ][ find that the operations of
Respondent affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists and Aerospace
Workers and its District Lodge 86, AFL-CIO, and Inter-
national Brotherhood of Electrical Workers, Local 111,
herein called Machinists and Electricians, respectively,
are labor organizations within the meaning of Section 2(5)
of the Act.
I Issued November 25, 1966, and based upon charges filed September
22, and November 2 and 8 , 1966, by International Association of
Machinists and Aerospace Workers and its District Lodge 86 , AFL-CIO
STURGEON ELECTRIC CO. 213
III. THE UNFAIR LABOR PRACTICES
A. The Issues; Introduction
The issues herein are whether in the face of an or-
ganizational campaign by Machinists among its garage
employees, Respondent (1) unlawfully assisted and con-
tributed support to Electricians by certain acts of inter-
ference, restraint, and coercion and by recognizing and
entering into a contract with Electricians as the represen-
tative of said employees despite the absence of a majority
and (2) refused to bargain with Machinists as the
representative of said employees. Respondent challenges
the majority status of Machinists and claims further that
the garage is an accretion to another unit of Respondent's
employees already represented by Electricians.
A consideration of the organizational structure of
Respondent and its collective-bargaining history with
Electricians will be of assistance in an evaluation of these
issues. Respondent has three operating divisions: (1) line
construction including overhead and underground trans-
mission lines; (2) service, this involving small residential
and commercial work; and (3) inside construction, this
being work on larger residential and commercial projects.
Service and inside construction have been under contract
for some years with a sister local of Electricians, Local
68, not directly involved herein, and their exclusion
from the unit in the instant case is not in issue.
The line department is headed by Vice President A. B.
Baumgartner who reports directly to President Ralph
Johnson and was established in 1952 through the
purchase of another concern. It is Respondent's largest
department with some 116 employees, a figure which in-
creases during the summer months. Some 8 or 9 months
after the establishment of the line department, Respond-
ent moved to a new location and there established a
garage for the first time; this too is under the supervision
of Baumgartner.
The garage has five full-time employees, four
mechanics, and a gas boy and is headed by Garage
Foreman Charles Hambley. The General Counsel con-
tends and Respondent disputes that Hambley is a super-
visor. A sixth employee, Harvey Winckel, works a 5-day
week in the field in the line department under a contract
with Electricians, described below, and also works ap-
proximately three out of every four Saturdays in the
garage as a mechanic. A seventh employee, Philip
Mosconi, is a student who averages less than 20 hours a
week in the garage, but works longer hours in the sum-
mertime.
For many years, Respondent, as a member of Moun-
tain States Line Contractors Chapter, NECA, Inc., has
been party to contracts between the association and four
labor organizations, these including Local 111 and three
sister locals other than Local 68 which cover the em-
ployees of Respondent's line division. The most recent of
these ran from March 14, 1966, through March 1, 1967,
and is renewable from year to year thereafter absent cer-
tain specified notice. An employee such as Winckel is
covered by this contract when in the field for his regular
40-hour week, but not when in the garage on Saturdays.
By contrast, a garage employee will, on occasion, work in
the field and the converse applies, this entitling him to the
higher field wage rates specified in the contract.
As Vice President Baumgartner put it, Respondent
considers the garage an adjunct of the line department
because 90 percent of its work is performed on line de-
partment vehicles; Foreman Hambley placed the figure
as between 80 and 90 percent. According to President
Johnson, Respondent would not operate a garage for its
service and inside construction departments because
those vehicles can be adequately serviced by an outside
repair shop. On the other hand, service and repair of the
heavy equipment of the line department require special-
ized knowledge.
It appears that there has been a disagreement among
the contractors who negotiate with Local 111 about the
inclusion of garage employees who receive a lower wage
scale than those in the unit. Their inclusion has been op-
posed by employers who construct heavier type transmis-
sion lines and favored by those in utility or distribution
construction. As a result, they have not been covered by
the above-described contract and previous contracts. The
record also discloses that in the negotiations for the 1966
contract Electricians sought and the Association rejected
coverage of garage employees.
In view of the foregoing, the garage, at least that at the
premises of Respondent, is more accurately described as
an unorganized residual or fringe group rather than as an
accretion. As I understand that term, it more logically
refers to a newly acquired or created division rather than
a long-existing and unrepresented division. Crucible Steel
Casting, 162 NLRB 1513, and Dura Corp. v. N.L.R.B.,
375 F.2d 707 (C.A. 6).
B. The Supervisory Status of Charles Hambley
The General Counsel relies strongly herein upon cer-
tain conduct by Garage Foreman Charles Hambley.
Respondent denies his supervisory status, contending
that his title of foreman is not substantiated by his actual
authority and duties.
As Respondent points out, Hambley works approxi-
mately 25 percent of the time with tools as do the other
men in the garage. On the other hand, for 75 percent of
the time he is not so engaged. Moreover, he receives a
wage rate of $4 per hour as contrasted with a rate of $3.25
paid to other mechanics. Respondent urges that his work
consists basically of routine assignments of tasks and that
policy decisions are made elsewhere. The evidence pre-
ponderates otherwise.
That Hambley is over the five garage employees plus
two part-time men is undisputed. His tenure dates back
15 years to the time when the garage was opened. Ac-
cording to mechanic Dallas Coleman, Hambley assigns
him work and has granted him time off. Mechanic George
Johnson testified only that Hambley directs him where to
work.
Mechanic George Tuttle testified, and I find, that he
was hired by Hambley. Tuttle applied for work in July or
August 1965 and was referred to Hambley. The latter in-
terviewed him for 30 or 40 minutes and then instructed
him to report for work. Hambley did not interrupt the in-
terview to contact anyone else. In addition, Hambley tells
Tuttle what work to perform. Gas boy Mark Pazen
testified that Hambley directs him in the performance of
his duties. He has asked Hambley for time off and this
has been granted; he did not know whether Hambley ob-
tained prior approval elsewhere.
Duane Pendergraft, a mechanic with 10 years' tenure,
testified that Hambley interviewed and hired him, stating
that he could start work whenever he wished. On occa-
sion , Pendergraft has asked Hambley for time off and this
has been granted. Pendergraft also was present when
308-926 0-70-15
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hambley hired another employee, George Abel. He
heard Hambley tell Abel that "We'd like to have him
there" and that Abel was hired whenever he chose to
start.
On cross-examination Pendergraft testified that he as-
sumed but did not know that Hambley checked with the
personnel office at the time of his, Pendergraft's, hire. He
testified further that Hambley consulted with Vice Pre-
sident Baumgartner when he, Pendergraft, wished time
off and that 1 or 2 days before Abel was hired, Baum-
gartner stated that he, Abel, would be a good man to
procure: He repeated, however, that it was Hambley who
had hired him, Pendergraft.
Vice President Baumgartner claimed that Hambley
never assigned work on a day-to-day basis and that he,
Baumgartner, made decisions on major jobs. He claimed
that Hambley had no authority to hire. Baumgartner con-
ceded that Hambley made recommendations on hiring
and that he, Baumgartner, relied upon his judgment.
While claiming that the personnel department would
screen applicants for work, he admitted that Hambley
would decide if the man was qualified. Baumgartner has
never rejected a recommendation made by Hambley.
But there is much in the testimony of Baumgartner that
supports the position of the General Counsel. The fact is
that Baumgartner is out of the office and away from the
premises 80 percent of the time. This is also true in the
case of his assistant, Dan Grizzle. Indeed, both are al-
ways out on Wednesdays and Thursdays when they
separately visit the various line construction projects, one
of them attempting to cover projects close to Denver.
Both men drive company vehicles equipped with 2-way
radios which are effective only so long as they are within
range.
It is readily apparent that during the larger part of the
workweek Vice President Baumgartner and his assistant
are not on the premises and supervising operations of the
garage. Furthermore, of the no more than 20 percent of
Baumgartner's time spent on company premises, about
20 percent is spent in the garage . Stated otherwise, Baum-
gartner is in the garage not over 4 percent of the time.
Thus, if Respondent's position is accepted, the garage
operates 96 percent of the time with no supervision
directly at hand, hardly a tenable claim.
Moreover, in a pretrial affidavit to the General Coun-
sel, Baumgartner deposed that "Hambley's duties include
the full operation of our garage, which include the assign-
ment of work, scheduling of days off and complete super-
vision of all garage employees. He has the authority to
hire." At the hearing, Baumgartner claimed that he
should have qualified his affidavit in this respect so that
it would read that Hambley "does not have full authority
to hire and fire, but he does have authority to where he
passes on the final qualifications ...." I do not consider
this a sufficiently substantial departure from the affidavit
so as to constitute a repudiation thereof.
In the final analysis, the very testimony of Hambley is
quite significant. He testified that Respondent advertised
for a man in 1965, that he interviewed Tuttle and that he
put him to work on a temporary basis. He decided to
make Tuttle a permanent employee and spoke with and
obtained the approval of Baumgartner. He testified also
that Baumgartner knew that he, Hambley, wished to hire
a man prior to his doing so. I do not regard this as refuting
Hambley's authority to do the actual hiring.
Hambley testified that he nad been told he had the
authority to fire men and imagined that this instruction
had come from Baumgartner. He claimed that he hired
mechanics Johnson, Tuttle, Coleman, and Pendergraft.
Hambley scheduled days off for the men and gave them
permission to leave early. On occasion, he would reshuf-
fle a schedule so that a man could have the day off and he
did not check this with Baumgartner. He made decisions
about working overtime and did not clear this with Baum-
gartner particularly where a few hours of work could
complete a job.
Returning to the absence of Baumgartner and his
assistant from the plant 80 percent of the time, with at
least some overlap, this is entirely consistent with the fact
that the line department has a number of projects employ-
ing from 116 employees up in various locations. Again,
on Respondent's theory, this would leave the garage em-
ployees with negligible supervision.
In view of all the foregoing considerations, I find, on a
preponderance of the evidence, that Garage Foreman
Hambley is a supervisor within the meaning of Section
2(11) of the Act and that his conduct herein is attributable
to Respondent. See Furr's, Inc. v. N.L.R.B., 381 F.2d
562 (C.A. 10).
C. Sequence of Events
Pursuant to a request by an employee of the garage,
representatives of Machinists visited the garage on Au-
gust 22, 1966. They initially cleared the visit with Garage
Foreman Hambley, a member of Electricians. The
representatives spoke with the employees and distributed
authorization cards and membership applications.
Hambley immediately telephoned Business Agent Joe
Duffey of Electricians on August 22, advised him of this
turn of events, and asked Duffey to "speak to the boys in
the shop about a union."
All five full-time employees in the garage signed
Machinists' authorization cards and membership applica-
tions, four on August 23 and one on August 25. On Au-
gust 26 Business Agent Duffey of the Electricians visited
the garage, spoke with the men, and espoused the cause
of Electricians.
On September 2, Duffey wrote to Vice President
Baumgartner with respect to "Contract Negotiations for
Garage Employees of Sturgeon Electric Company" as
follows:
To confirm our conversation of August 26, 1966
on the conditions I am attempting to remedy for your
garage employees, I find it will be necessary to meet
with you again at a future date.
Due to the information that has come to me from
the employees I am sure that one or two alternate
proposals will achieve the ultimate purpose in up-
grading these conditions.
It is interesting to note that this communication, as well
as a later communication on September 19 to Baum-
gartner, do not bear a stamp of receipt by Respondent, in
contrast to the presence of such stamps on communica-
tions from Machinists on September 14 and 24 to Pre-
sident Johnson. Be that as it may, I base no findings ad-
-'erse to Respondent on this facet
I do find, however, contrary to the position of Respon-
dent, that Electricians never proved its majority prior to
September 15, and, more particularly, that Respondent
never recognized Electricians as the bargaining represen-
tative of its garage employees prior to September 15. The
most that can be said for the position of Respondent is
that Duffey had previously spoken to Baumgartner of his
STURGEON ELECTRIC CO. 215
interest in organizing these employees; Baumgartner told
him "have at it"; and the matter was not pushed further
until Machinists commenced its organization campaign.
It seems readily apparent that Baumgartner's response
evisaged organization of the garage prior to recognition
and did not rise to the stature of recognition. I find, there-
fore, that Section 8(f) of the Act may not be relied on
herein by Respondent.
On September 16, Respondent took steps to foist Elec-
tricians upon its employees as their bargaining represen-
tative. On the morning of September 16, Duffey, who had
previously heard of the campaign by Machinists,
telephoned Baumgartner and asked to meet with him
about a contract. They met later that morning, with
Foreman Hambley and mechanic Duane Pendergraft also
in attendance. Duffey and Baumgartner agree that Baum-
gartner asked who should be present and that Baum-
gartner their suggested Hambley and Pendergraft because
of their long tenure and familiarity with garage opera-
tions. I also note that they were the only full-time garage
personnel who belonged to Electricians and that Re-
spondent knew this.
It is also undisputed that Baumgartner asked Pen-
dergraft earlier that morning if the men had decided which
way they would turn because he had heard that the men
were interested in Machinists, adding that "[Local] 111
was so well represented with the company that we would
receive wage increases along with the other members."
Pendergraft informed him that the men had gone so far as
to apply for membership in Machinists. This request by
Baumgartner further demonstrates that recognition had
not as yet been accorded Electricians because the query
was pointless if this was the fact. Moreover, Foreman
Hambley, as will appear below, distributed cards for
Electricians later that afternoon. This too is not con-
sistent with a situation where recognition had already
been granted.
At this meeting, Baumgartner and Duffey came to an
agreement on the terms of a contract, subject to approval
by President Johnson. Later that day, Respondent,
through Hambley, took direct steps to sign up the em-
ployees in Electricians. While his testimony is not entire-
ly clear, it, appears that Hambley had previously been
given some cards by Duffey. But, in any event, he had
these cards in his possession on September 16 and took
steps to get them signed.
As Dallas Coleman testified, and I so find, Hambley
told him at quitting time on September 16 that "We are
going [Local] 111, and here's the card to sign." The card
was on Hambley's desk and Coleman immediately
signed.2
George Tuttle testified, and I find, that Hambley told
him that the card was on the desk; that he, Tuttle, was
holding up things; and that "he [Hambley] wanted me to
sign it because they all had to go into it." Tuttle testified
that he signed "some time the week of the 10th or some
time along in there." He also testified that Hambley said
that he wanted him to sign "Saturday morning." I find
that the conversation probably took place on September
16, but not earlier.
Mark Pazen , a gas boy, signed a card a month or a
month and a half after signing a card for Machinists on
August 23. As Pazen testified , Hambley told him on this
occasion , that he had to have the card in by a certain date
and that if Pazen wished , he could sign the card.3
Within 5 days after September 16, Duffey brought a
rough but not final draft of a contract to President John-
son. Johnson made some changes and they agreed that a
final contract should be prepared . This was done and it
was executed on September 30.4
On September 19, Duffey sent or delivered the follow-
ing letter to Baumgartner:
In response to our last meeting in your office on
September 16, 1966 at which time you approved the
rough draft of the proposed contract for garage em-
ployees, I am submitting a copy of this letter for your
signature . The receipt of same in this office will in-
dicate complete accord with Local # 111, of the
I.B.E.W . and Sturgeon Electric Company on the
contract as discussed.
I will finalize the draft in the week coming and
present it for your signature in the very near future.
The effective date as previously discussed will be
Friday, September 16, 1966 and shall then and for-
ever after be effective as per the conditions of the
N.E.C.A. contract with Locals # 111, 969 , 113 and
12 of the I . B.E.W.
On September 20, President Johnson wrote to Machin-
ists in reply to the demand of September 14 as follows:
Needless to say , we are anxious for a situation
such as we have with our garage personnel to be han-
dled properly and with dispatch , but our attorney,
Mr. Wayne Williams is out of town and will be until
about October 5.
We hope it will be agreeable with you to postpone
any further action on this matter until he returns, if
it is not, we will endeavor to work something out to
your satisfaction.
As is readily apparent , President Johnson said nothing
about the pending negotiations with Electricians . On Sep-
tember 21 , Business Representative Waggoner replied,
pointing out that Machinists had filed ' a representation
petition on September 19 [Case 27-RC-3084] , that it
was prepared to prove its majority representation and
that it wished to meet and bargain collectively with
Respondent.
On September 22, Johnson replied to Waggoner, point-
ing out that Respondent had become signatory to a
"working agreement" with Electricians on September 16
covering the garage personnel. He also said that "Much
of their work is performed on the job in the field, and
since all of our field personnel in this division are mem
bers of Local Union 111, it is essential to pursue this
course." This, according to Respondent , raised the ap-
propriateness of the smaller unit.
z This is Hambley's desk, it is the only desk in the garage, and is also
used by the other men.
3 While George Johnson signed a card for Electricians subsequent to
signing a card for Machinists on August 23, he was quite vague as to the
date, testifying "I imagine, I couldn't really say whether it was a week or
two weeks." In any event, there is no evidence linking Hambley with his
signing of the card. This is also true in the case of Pendergraft. Hambley
was directed to Coleman's testimony about being given a card to sign and
replied, "I probably asked him, and told him what direction we were going
or what it looked like, but in no definite form of an order." Hambley did
not remember telling Tuttle he was holding up matters, but then did re-
member asking him if he wished to sign a card, "because I believe he was
the last to sign." He was not questioned about the statement attributed to
him by Pazen.
4 There is some variation in the testimony as to the contacts between
Electricians and Respondent after September 16. This finding is based
upon the ultimate testimony of Duffey.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 8-day union-shop clause in the original contract
has been duly enforced and garage employees Coleman.
Tuttle, and Johnson have paid initiation fees and dues. As
a matter of union policy, Electricians have not applied the
union-security provisions of the contract to gas boy
Pazen and to part-time employee Mosconi. As noted,
Pendergraft and Winckel already were members of Elec-
tricians.
Although the existing contract applicable to Respond-
ent was between four locals of Electricians and Moun-
tain States Line Contractors Chapter, NECA, the agree-
ment of September 30, 1966, is solely between Respond-
ent and Local 111 and is captioned "Supplemental
Agreement." Among other things, it establishes new clas-'
sifications and wage rates which are lower than those in
the area contract; these wage rates did constitute in-
creases for the garage employees. Business Representa-
tive Duffey testified, and I find, that it was also necessary
for him to obtain the approval of the three other locals
signatory to the area contract as well as the employer as-
sociation. This was done in the period after September 16
and prior to September 30.
D. Conclusions
1. Unlawful assistance ; interference, restraint,
and coercion
It is readily apparent that Respondent unlawfully inter-
jected itself into the organizational activities of its em-
ployees. Thus, on August 22, 1966, Foreman Hambley
telephoned Business Representative Duffey of the Elec-
tricians and asked him to come to the garage and speak
with the men about a union. This Duffey did on August
26.5
Hambley thereafter took an active role in obtaining
signatures to authorization cards for Electricians. On
September 16, he informed employee Coleman that "the
shop was going [Local] 111" and instructed him to sign
the Electricians card. He similarly instructed employee
Tuttle to sign a card because everyone "had to go into it."
He also told Mark Pazen that he, Hambley, had to have
the card by a certain date. In sum,.the immediate super-
visor of the garage employees pressured them to
designate Electricians as their bargaining representative.
That same morning, Vice President Baumgartner asked
employee Pendergraft which union the men would
choose, in effect stated his preference for Electricians and
then told Pendergraft that because Electricians was "so
well represented" the garage employees would receive
wage increases. This, significantly, was prior to the
procurement of authorization cards for Electricians by
Foreman Hambley that afternoon. This clearly was a
promise of improved working conditions for support of
Electricians.6
The General Counsel urges that Hambley's participa-
tion in the negotiations for a contract on September 16 is
further violative of the Act. This is predicated upon the
fact, as Vice President Baumgartner testified, that
Hambley appeared, not as a representative of manage-
ment, but in behalf of Electricians. Indeed, even Hambley
5 While Hambley wore two hats, both as a union member and a super-
visor, there is no basis for assuming that he wore only the former on this
occasion. The fact is that a representative of management introduced a
labor organization to its garage employees
6 While Pendergraft already was a member of Electricians, I note that
he saw fit to promptly obtain an authorization card from the desk of
testified that he was present only for himself. Moreover,
Respondent has at no time disavowed the conduct of
Hambley except, as discussed above, to contend that he
was not a supervisor. I find that Hambley appeared on
this occasion as a representative of Electricians and that
this constituted interference with the administration of
Electricians. See Mt. Clemens Products Co., 126 NLRB
1297.7
It is also entirely clear that when Respondent recog-
nized Electricians on September 16 as the representative
of the garage employees, Electricians did not represent a
majority. Out of a total of seven, five full-time and two
part-time garage employees, only Pendergraft and
part-time employee Winckel were members of Electri-
cians. Thus, Electricians was a minority union on Sep-
tember 16. This is highlighted by the fact that Respond-
ent then was on notice of the demand for recognition by
Machinists, disregarded said claim, recognized Electri-
cians, and then pressured some of its employees into
signing membership applications for Electricians.
I find that by the foregoing delineated conduct,
Respondent has interfered with the administration of
Electricians and has contributed support thereto within
the meaning of Section 8(a)(2) of the Act. I further find
that by such conduct, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act. Connie Jean, Inc., 162 NLRB 1609, and Dura
Corp. v. N.L.R.B., 375 F.2d 707 (C.A. 6).
2. The alleged refusal to bargain
a. Appropriate unit
The complaint alleges that all mechanical, main-
tenance, and garage employees at the company garage,
excluding all office, clerical and professional employees,
supervisors and all employees presently represented by
another labor organization, constitute a unit appropriate
for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act. This Respondent denies.
Normal criteria for the establishment of an appropriate
unit would seem to include work at a common site, com-
mon supervision, common skills and educational tests, in-
tegrated work processes, and similarity of working condi-
tions. The unit endorsed by the General Counsel includes
five full-time and two part-time garage employees. While
Respondent has formally denied the appropriateness of
a separate garage unit, its conduct would seem to belie
this. For, in the fact of an associationwide contract with
four locals, Respondent and Electricians executed a sup-
plemental contract covering these and only these garage
employees. While it would seem that Respondent is
estopped from challenging the appropriateness of this
unit, the findings below are made on a broader basis.
As Respondent urges, there are factors which demon-
strate the appropriateness of a larger unit, viz, the garage
employees joined to the 116 in the line construction de-
partment. For approximately 90 percent of the garage
work is performed on vehicles of the line construction de-
partment with the remainder on vehicles for the other two
Foreman Hambley and sign it.
7 Though the complaint may not have raised this specifically, the matter
was developed by the General Counsel and thereafter explored and
developed by Respondent on cross-examination. I find that the issue was
litigated and that findings may be predicated thereon.
STUB GEON ELECTRIC CO.
departments. While the garage employees are physically
separate from the line department employees, they will,
on occasion, go to the field to repair line equipment but
not that of the two other departments. And, Respondent
has uncontrovertedly stated that it would not operate a
garage but for the existence of the line department.
Be that as it may, and, as noted, despite the fact that
they occasionally perform repair work in the field on line
department vehicles, the fact is that the work of the
garage department is directed to the maintenance of
equipment as contrasted with construction work. They
have separate immediate supervision. The pay scales are
markedly lower than those of the line department em-
ployees. They would seem to have a community of in-
terest apart from their fellow employees. In addition, they
have been unrepresented in the pact and their inclusion
in the larger unit has been resisted by management. Thus,
there is substantial evidence to warrant the conclusion
that the smaller unit is appropriate and I find that it is
within the meaning of Section 9(b) of the Act.
Nevertheless, there is substantial evidence to support
the contention of Respondent that the broader unit would
also be appropriate. Indeed, the General Counsel flatly
concedes' that such a unit would be appropriate.8 As will
appear below, this finding as to the appropriateness of the
smaller unit is not dispositive of the alleged refusal to bar-
gain.
b. Majority representation
The five full-time employees in the garage voluntarily
signed authorization cards for Machinists, these including
Coleman, Johnson, Pazen, and Pendergraft on August 23,
and Tuttle on August 25, 1966. The cards authorized
Machinists to represent the signers for the purposes of
collective bargaining. These signers also executed appli-
cations for membership in Machinists on the same occa-
sions . I find that on August 23 and at all material times
thereafter Machinists was the representative of the seven
employees in the above-described appropriate unit within
the meaning of Section 9(b) of the Act.9
Conclusions
Respondents admits that it refused to bargain with
Machinists on and after September 15, 1966, but chal-
lenges the appropriateness of the smaller unit. As noted,
the General Counsel concedes that either unit could be
appropriate but contends that the demand and refusal
need take place only in an appropriate unit.
While the foregoing discussion would seem to dictate
a finding of refusal to bargain, the matter is not so simple.
The General Counsel has pointed out that Electricians
was at best a minority union representing two out of
seven employees, a figure insufficient to provide an ad-
ministrative showing of 30 percent representation in sup-
port of a petition for an election.
While this is quite correct, the question does not arise
in that posture. The petition herein was filed by
Machinists on September 19 and not by Electricians. If
I understand representation case procedure correctly,
8 See Food Employers Council, Inc., 163 NLRt3 426, fn. 6.
8 Respondent contends that Pazen, Johnson, and Tuttle also signed
cards for Electricians and that the dual designations vitiate their
authorizations for Machinists. Having found that the signatures of Tuttle
and Pazen were unlawfully obtained by Foreman Hambley, this conten-
tion is rejected.
217
Electricians and its sister local who enjoy recognition in
several existing units in the plant would be duly notified
and would be permitted to intervene on the basis of any
showing; and this showing they already enjoyed.
Indeed, again if I still understand representation
procedure correctly, it takes but a 10-percent showing of
strength by an intervenor to block a consent election.
Stated otherwise, if the election procedure were per-
mitted to run its gamut, Electricians would have its day in
court after an appropriate period to remedy the unfair
labor practices heretofore found.
The General Counsel has argued that this is not a
two-union situation within the meaning of Midwest Pip-
ing & Supply Co., Inc., 63 NLRB 1060. He points to the
assistance to the Electricians and to the above-described
lack of a 30-percent showing to support a petition.
Coronet Manufacturing Co., 133 NLRB 641. But, as
noted, Electricians is not a petitioner here and it does
have an antecedent and existing interest.10
Moreover, an order to bargain with Machinists is in es-
sence the same thing that has been denied to Electricians.
In view of all the foregoing considerations, I do not be-
lieve that it would effectuate the purposes of the Act to
find a refusal to bargain with Machinists in this instance
and I shall therefore recommend dismissal of this allega-
tion of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section 111,
above, occurring in connection with its operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Finding that Respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent has interfered with the
administration of and given support to Electricians, it will
be recommended that Respondent (1) withdraw and
withhold all recognition from Electricians as representa-
tive of its garage employees; (2) give no force or effect to
the contract executed with the Electricians on September
30, 1966, this, however, not requiring Respondent to
vary or abandon wages, hours, or other substantive provi-
sions set forth in said contract; and (3) reimburse those
employees who joined Electricians pursuant to the
union-shop clause in said contract for all dues and initia-
tion fees paid by them. This is not intended to apply to
employees Pazen and Mosconi who were not subjected
to said union-security provisions and to employee Pen-
dergraft, who already was a member of Electricians. It
does apply to employees Coleman and Tuttle who were
coerced into signing by Foreman Hambley. While
George Johnson signed a card for Electricians, his
10 True, Respondent opposes a self-determination election and the
General Counsel in effect does likewise, but for a different reason
Respondent urges that the only appropriate unit is the larger one in which
Electricians enjoys a minority and with equal directness, the General
Counsel stresses the majority of Machinists in the smaller unit.
218 DECISIONS OF NATIONAL
testimony does not warrant a finding that he signed sub-
sequent to the recognition of Electricians and I do not in-
clude him among those to be reimbursed.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. Sturgeon Electric Company, Inc., is an employer
within the meaning of Section 2(2) of the Act.
2. International Association of Machinists and
Aerospace Workers and its District Lodge 86,
AFL-CIO, and International Brotherhood of Electrical
Workers, Local 111, are labor organizations within the
meaning of Section 2(5) of the Act.
LABOR RELATIONS BOARD
3. By interfering with the administration of and con-
tributing support to Electricians and by executing, main-
taining, and enforcing an unlawful union-security agree-
ment , Respondent , Sturgeon Electric Company, Inc., has
engaged in unfair labor practices within the meaning of
Section 8 (a)(2) of the Act.
4. By the foregoing , Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Respondent has not engaged in unfair labor prac-
tices within the meaning of Section 8 (a)(5) of the Act.
[Recommended Order omitted from publication.]