The Ideal Electric & Mfg. Co.

National Labor Relations Board - Board Decisions

Feb 27, 1940

20 N.L.R.B. 894 (N.L.R.B. 1940)

In the Matter of THE IDEAL ELECTRIC & MFG. Co. and LOCAL 705,
UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA
Cases Nos. R-1091 and C-1183.-Decided February 27, 1940
Electric Motor Manufacturing and Distributing Industry-Interference, Re-
straint, and Coercion: anti-union statements-Discrimination : charges of in lay-
offs, dismissed-Unit Appropriate for Collective Bargaining : hourly paid pro-
duction and maintenance employees , including hourly paid foremen, but excluding
office employees-Collective Bargaining : charges of, dismissed for lack of ma-
jority-Complaint : dismissed ; agreement by Regional Director that if respondent
posted notice not in accordance with Intermediate Report, Board would not
enter remedial order ; Board upholds agreement despite Regional Director's
error in approving notice-Investigation of Representatives : question concerning
representation of employees : claim of union to represent majority-Election
Ordered
Mr. Max W. Johnstone, for the Board.
Messrs. Earl W. LeFever, and Thomas F. Veach, of Cleveland,
Ohio, for the respondent.
Mr. Harry A. Sellery, Jr., of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On January 14, 1938, Local 705, United Electrical, Radio and
Machine Workers of America, herein called the Union, filed with the
Regional Director for the Eighth Region (Cleveland, Ohio) a peti-
tion and on February 25 and August 2, 1938, amended petitions
alleging that a question affecting commerce had arisen concerning
the representation of employees of The Ideal Electric & Mfg. Co.,
Mansfield, Ohio, herein called the respondent, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act.
On February 18, 1938, the Union duly filed charges and on Febru-
ary 25 and August 2, 1938, amended charges with the Regional
20 N. L . R. B., No. 86.
894
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 895
Director alleging that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce within the meaning
of the Act. On August 5, 1938, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of
the Act and Article III, Section 10 (c) (2), and Article II,
Section 37 (b), of National Labor Relations Board. Rules and
Regulations-Series 1, as amended, ordered an investigation upon
the petition and authorized the Regional Director to conduct it
and to provide for an appropriate hearing upon due notice, and
further ordered that for the purpose of hearing the two cases be con-
solidated and that one record of the hearing be made. On September
2, 1938, the Union filed third amended charges alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of the Act.
Upon the charges and the amended charges the Board, by the
Regional Director, issued its complaint dated September 14, 1938,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act.
Copies of the complaint, accompanied by notice of hearing, were
duly served upon the respondent. and the Union. On September 15,
1938, the Regional. Director issued a notice of hearing in the repre-
sentation case, copies of which were duly served upon the respondent
and the Union.
In respect to the unfair labor practices, the complaint, as amended
during the course of the hearing, alleged in substance: (1) that the
respondent in 13 specified particulars had interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act; (2) that the respondent discriminatorily dis-
charged or laid off Roy A. Conn and Oscar B. Killinger, and later
refused to reinstate Conn, because of their union membership and
activities; and (3) that the respondent at various times since Decem-
ber 1, 1936, refused to bargain collectively with the Union as the
exclusive bargaining representative of all hourly paid employees of
the respondent, excluding office employees, although such employees
constituted an appropriate bargaining unit and the Union repre-
sented a majority thereof. On September 23, 1938, the respondent
filed an answer in which it denied the allegations of the complaint
in respect to the unfair labor practices and affirmatively alleged that
the two named employees were laid off for business reasons.
Pursuant to the notices, a hearing on both the petition and the
complaint was held in Mansfield, Ohio, from October 3 through 17,
1938, before Webster Powell, the Trial Examiner duly designated
by the Board. The Board and the respondent were represented by
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counsel and participated 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.
At the close of the Board's case counsel for the Board moved to
conform the pleadings to the proof. The Trial Examiner granted
this motion. At the commencement of the hearing, at the close of
the Board's case, and at the close of the hearing, the respondent made
several motions to dismiss the complaint. During the course of the
hearing the Trial Examiner granted the respondent's motion to
dismiss the complaint as to 4 of the 13 specified particulars in respect
to which the complaint alleged that the respondent had interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act,' but reserved his rulings
on the respondent's motions to dismiss various other portions of the
complaint. During the course of the hearing the Trial Examiner
made several rulings on other motions and on objections to the admis-
sion of evidence. The Board has reviewed all the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On February 4, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. He found
that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce, within the meaning of Section 8 (1)
and (5) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act, and that the respondent bargain
collectively with the Union as the exclusive collective bargaining
representative of its hourly paid production and maintenance em-
ployees, excluding office employees. He further recommended that
the complaint be dismissed as to the allegedly discriminatory lay-offs
of Conn and Killinger, and in so far as it alleged that the respondent,
by circulating among its employees biased accounts of previous labor
troubles in order to discourage affiliation with the Union, had inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On February 16, 1939, the respondent filed exceptions to the Inter-
mediate Report and on March 16, 1939, a brief in support of its
exceptions. Pursuant to notice, a hearing for the purpose of oral
argument on the exceptions was held before the Board in Washing-
1 That the respondent ( 1) unreasonably disciplined union members for attending to
union business; ( 2) conspired to prevent its employees from joining the Union; (3)
granted raises to non-union employees in order to influence its employees not to join the
Union ; and (4 ) by various other methods and means, interfered with, restrained, and
coerced its employees.
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 897
ton, D. C., on October 31, 1939. The respondent was represented
by counsel . and participated in the argument. The Union filed a
letter in lieu of oral argument. The Board has considered the re-
spondent's brief and exceptions to the Intermediate Report and the
Union's letter, and finds the exceptions, except such as are consistent
with the findings of fact and order herein, without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Ideal Electric & Mfg. Co., an Ohio corporation, maintains its
principal office and place of business in Mansfield, Ohio. It -is en-
gaged in the manufacture and distribution of electrical motors of
various sizes. A substantial portion of the respondent's business
consists of manufacturing such motors to special order. The re-
spondent normally purchases between about $160,000 and $170,000
worth of materials annually. About 8 per cent of the raw materials
used in the manufacture of the respondent's products are shipped
from points outside Ohio. The total value of the finished products
manufactured by the respondent in 1937 was about $540,000, 80 per
cent of which were shipped to points outside Ohio.
II. THE UNION
Local 705, United Electrical, Radio and Machine Workers of
America, is a labor organization affiliated with the Committee for
Industrial Organization,2 admitting to membership all hourly paid
production and maintenance employees of the respondent, excluding
office employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
At 9 a. m. on December 15, 1936, following a union meeting on
December 14, 1936, a union committee told O. J. Fink, vice president
in charge of production, that the union employees were about to
engage in a sit-down strike for an hour unless 12 non-union em-
ployees joined the Union or were laid off. The respondent refused
to instruct such employees to join the Union, or to lay them off.
Thereupon, the union employees stopped work. A few minutes after
work had ceased Fink issued instructions to the foremen "to ask the
boys if they were not going back to work to ring the clock" and the
9 Now the Congress of Industrial Organizations.
898 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foremen did so. All the production and maintenance employees
punched out their time cards and left the plant . The plant remained
closed until about March 22, 1937 , when it was reopened pursuant
to an agreement negotiated on March 19, 1937 , under the auspices of
the Board 's Regional Office for the Eighth Region . The agreement
consisted of a letter from the Regional Director to the Union stating
the terms of the settlement . A copy of this letter was sent to the
respondent . In substance, the agreement provided for (1 ) the return
to work of all persons employed at the date of the strike , (2) over-
time pay, ( 3) "due consideration " to seniority in lay-offs and re-
hirings, ( 4) a wage increase , and (5 ) recognition of the Union as
the bargaining representative of its members. %
About January 1938 the respondent instituted a series of weekly
meetings of the foremen . These meetings , over which Fink presided,
were normally devoted to a discussion of the respondent 's produc-
tion problems. At orie of these meetings about the middle of Jan-
uary, S. Glenn Vinson, president and general manager , addressed
the foremen . He informed them that the respondent was about to
submit a bid for a contract, but that the respondent was "a little
undecided" whether or not it should do so. As the reason for such
indecision , he explained that the bid was for a contract involving
a large sum of money and for work requiring a considerable time
for completion . He stated that the respondent 's uncertainty about
submitting a bid arose from rumors of unrest among the employees and
of a possible strike. He added that the respondent 's bankers would
object to financing another strike, a reference to the above -mentioned
closing of the respondent 's plant from December 1936 until March
193 7 . Merl Ray Purkeybile , the machine -shop foreman , testified
that Vinson also said, "If they (the Union) demand a closed shop,
you know what that means. " J. W. Funk, mechanical supervisor,
testified that Vinson further stated that if any group of employees
obtained exclusive bargaining rights and asked for a closed shop, in
all probability the respondent 's "backers" would withdraw their
support, and would not finance another strike.
It should be noted that when the Union, in effect, demanded a
closed shop in December 1936, as above mentioned , the respondent
shut down the plant . Purkeybile , who was a witness for the re-
spondent , further testified that at the foremen's meeting Vinson also
said that it was strange that the Union should call in an "outsider" to
settle its differences with the respondent . The reference to an "out-
sider" apparently referred to Edwin Beal, international representa-
tive of United Electrical , Radio, and Machine Workers of America,
who at that time was participating in conferences between the
respondent and the Union.
3 Sometimes referred to in the record as "Perkibaugh."
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 899
At this meeting, Vinson did not ask the foremen for their comments,
but suggested that they express their views to Fink and that Fink and
he could thereafter discuss the matter. According to Fink's recollec-
tion, Vinson also stated, "Now, Boys, do whatever you can to keep the
.boys in line, keep them satisfied." Fink's testimony in this regard
is confirmed by that of William Geary, the foreman of the punch
department. We find that Vinson made the statement attributed to
him by Fink and Geary. Vinson thereupon left the meeting.
At the hearing Vinson explained that his reason for thus address-
ing the foremen was to get some- expression from them regarding the
correctness of the rumors, since he. believed that the foremen could
ascertain whether or not the- rumors were well-founded. He testified
that he did not recall making any statement regarding a closed shop
or how large a membership the Union might have among the re-
spondent's employees. In view, however, of the testimony of Pur-
keybile and Funk, both of whom were witnesses for the respondent,
we find that Vinson stated to the foremen that if the Union demanded
recognition as the sole bargaining agent and a closed shop, the plant
would close.
-After Vinson left, Fink and the foremen discussed the rumor con-
cerning a strike. Some of the foremen stated that they had not
heard such a rumor; others, that they had heard the rumor, but
did not believe that it was correct. Fink concluded the discussion
by telling- the foremen that he thought it was up to all of them,
including himself, to. "check into" the matter. and to "see what could
be done to keep the boys in. line," since he, Fink, would hate to see
another strike.
Thereafter Purkeybile admittedly told some employees, who were
not identified at. the' hearing, that if the Union secured exclusive
bargaining rights and demanded a closed shop, the respondent's
plant would close, as Vinson had said that the respondent's bankers
would not operate the plant under, a closed-shop arrangement. Ac-
cording to the testimony of four employees, Frank Hembery,4 Albert
Mulberg, John Staats, and Joseph Young, Purkeybile also stated in
substance that if the Union was designated as such representative
by 75 per cent of the employees, the plant would close. Funk made
a similar statement to John Clapsaddle, a welder.
Hembery testified that on two occasions while he was at work in .
January 1938 5 Purkeybile asked him if he was a union member and
Sometimes referred to in the record as "Hemperly."
The transcript reads " January 1933 ," but this is obviously a typographical error. The
Union was not organized until the fall of 1936. In 1933 Hembery was not employed by
the respondent until September of that year . Moreover, it was subsequently in the course
of these conversations that Purkeybile told Hembery , as above mentioned , that if the Union
secured a 75 per cent membership among the respondent 's employees , the plant would close.
The sequence . of the conversation demonstrates clearly that it occurred in January 1938.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if his dues were currently paid. According to Staats, near the end
of January 1938 Purkeybile asked him if his union dues were paid
up. When Staats stated that he was one month in arrears in pay-
ment of his union dues, Purkeybile said, "If I were you, I would
hold off a little while in paying it." Staats testified that the reason
advanced by Purkeybile was that if the union membership included
75 per cent of the employees, the plant would close. Young testi-
fied that while he was at work early in 1938 Purkeybile asked him if
he was a union member. Young testified that shortly thereafter
"everybody was talking about" what Purkeybile had said to various
employees.
At the hearing, Purkeybile denied that he had made any statement
to any employees that the plant would close if the Union was desig-
nated as the collective bargaining representative of 75 per cent of
the employees. He further denied that he had ever told any em-
ployee not to pay his union dues or to stay away from union meet-
ings. On the contrary, he claimed that he told them to attend the
union meetings, that he knew that a number of them were not attend-
ing the union meetings, and that they should ascertain what was
occurring at such meetings, so that if any "trouble" ensued they
would know what was "going on." He stated that he talked to
Hembery, among others, about going to the union meetings.
Purkeybile's admission that he talked with Hembery about going
to union meetings is consistent not only with the testimony of
Hembery, but also with that of Mulberg, Staats, and Young regard-
ing Purkeybile's anti-union statements to them. We find that Purkey-
bile made the statements attributed to him above.
In its brief the respondent argued :
There was no evidence that said Purkeybile was authorized by
respondent to make any of the statements attributed to him,
and further that even assuming that the statements were made
and respondent authorized them to be made, the statements,
fairly considered, do not justify any conclusion therefrom that
respondent thereby interfered with, restrained, or coerced any-
body; in fact, the evidence shows just to the contrary, and that
no one was interfered with, restrained, or coerced by what Mr.
Purkeybile is alleged to have said.
Purkeybile testified that neither Fink nor Vinson asked him to tell
the employees that if the Union secured recognition as the sole
bargaining agent and demanded a closed shop, the plant would close.
On the other hand, Mulberg testified that Purkeybile stated that he
had orders to tell all the employees that if the Union did not stop
its "ridiculous ideas" and constant "running" into the respondent's
office, the bank in Cleveland would cease to finance the respondent.
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 901
We do not find it necessary to resolve this conflict in the testimony
of Purkeybile and Mulberg. Even if we assume that Purkeybile's
testimony is correct, his activities, above described, are the logical
result of Vinson's exhortation to the foreman to "do whatever you
can to keep the boys in line." It is apparent that Purkeybile took
this injunction more literally than the other foremen. He sought
affirmatively to coerce the union members to abandon further union
activity or any effort to secure additional members among the re-
spondent's employees. The respondent took no precautions to pre-
vent its concern regarding the possibility of another strike from being
transformed into an unlawful attempt to weaken the Union by
threatening that the plant would be closed if the Union received a
majority of members among the employees. It is responsible for the
consequences which flowed from Vinson's speech to the foreman and
for the anti-union statements made by Purkeybile.°
The respondent's contention that since the evidence does not show
that any one was interfered with, restrained, or coerced by Purkey.
bile's activities and statements is presumably directed to the fact
that Hembery, Mulberg, Staats, and Young continued to pay their
union dues after January 1938, and that the Union continued to
exist. A similar argument was made in Matter of Montgomery,
Ward and Company and Warehouse Employees' Union No. 00, 097,
etc.' In that case we said :
It is sufficient that the conduct which constitutes the gravamen
of the unfair labor practice normally results in interference,
restraint, and coercion; it is immaterial that the proscribed
conduct does not produce the desired result. The respondent's
invasion of the field of union activity which the Act reserves as
a matter of right to the employees is in itself an unfair labor
practice.
We adopt that language as applicable here. That the employees
whom the respondent warned not to engage in union activities did
not observe the warning, but continued to engage in such activities
does not legitimize the respondent's unlawful conduct.
We find that, by circulating reports to the effect that if the Union
was successful in ,organizing a majority of the workers in the plant
the plant would close, by questioning its employees as to their union
affiliations for the purpose of influencing its employees against
affiliation with the Union, and by influencing union members against
6 "With respects to the acts of the supervisory foremen, the doctrine of respondeat
superior applies and petitioner ( the Company ) is responsible for the actions of its super-
visory foremen, even though it had no actual participation therein." Swift & Company
V. National Labor Relations Board, 106 F. (2d) 87, 93 (C. C. A. 10), mod'g and enf'g
Matter of Swift & Company, a Corporation and Amalgamated Heat Cutters and Butcher
'Workmen of North America, Local No. 641, et al., 7 N. L. R. B. 269.
17 N. L. R. B. 191.
283031-41-vol. 20--58
902 DECISIONS OF NATIONAL. LABOR RELATIONS ' BOARD
the payment of union dues, as set forth above, the respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The complaint also alleged that the respondent, in certain other
specified particulars, has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act. As noted above, during the course of the hearing the Trial
Examiner dismissed 4 of the 13 specified particulars of alleged inter-
ference, restraint, and coercion, and the Board has reviewed' and
affirmed such dismissal.8
The complaint also alleged that the respondent, (1) by establishing
an organization known as "Ideal Electric Cooperative Association,"
to supplant the Union among its employees, (2) by laying off union
members in violation of stated seniority provisions, while retaining
employees of less service on similar work, (3) by refusing to bar-
gain in good faith with the Union, (4) by circulating among its
employees biased accounts of previous labor troubles occurring at
its plant to discourage those employees from affiliation with the
° Union, (5) by refusing and failing to nominate a responsible official
with whom the Union might meet on grievances and other conditions
of employment and utilizing such action to embarrass and harass
the Union and to avoid the Union's demands for collective bargain-
ing, (6) by failing and arbitrarily refusing to consider. a contract
with the, Union, and (7) by laying off union officers in violation of
its stated seniority provisions, had interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
In his Intermediate Report, the Trial Examiner found that there
was insufficient proof to support the allegation of the complaint that
the respondent, by circulating among its employees biased accounts
of labor troubles occurring at its plant between December 1936 and
March 1937 in order to discourage such employees from affiliating
with the Union, interfered with, restrained, and coerced its em-
ployees. No exceptions were filed to this finding. Nevertheless, in
his Intermediate Report the Trial Examiner denied the respondent's
motion, upon which he had reserved in ruling at the hearing, that
the complaint be dismissed in this particular. Upon an examination
of the. record we find that the evidence does not support such allega-
tion. The respondent's motion as to this specified particular of
alleged interference, restraint, and coercion will, therefore, be granted,
and the complaint in respect thereto will be dismissed.
The Trial Examiner in his Intermediate Report made findings of
fact in regard to the other particulars of alleged interference, re-
6 See footnote 2, supra.
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 903
straint, and coercion, but did not conclude that any of them con-
stituted interference, restraint, or. coercion, within the meaning of
Section 8 (1) of the Act, except the allegation that the respondent
failed and arbitrarily refused to consider a contract with the Union.
We will consider this allegation and the allegation that the respond-
ent, by refusing to bargain in good faith with the Union, interfered
with, restrained, and coerced its employees, in Section III C, below,
in connection with the alleged refusal to bargain collectively. With
respect to the other allegations enumerated above, upon an examina-
tion of the record we find that the respondent has not (1) established
an organization known as "Ideal Electric Cooperative Association,"
to supplant the Union among its employees, (2) laid off union mem-
bers in violation of stated seniority provisions, while retaining em-
ployees of less service on similar work, (3) refused to nominate a
responsible official with whom the Union might meet on grievances
and other conditions of employment and utilized such action to em-
barrass and harass the Union and to avoid the various demands for
collective bargaining, and (4) laid off union officers in violation of
its stated seniority provisions. Accordingly, such allegations will be
dismissed.
B. The allegedly discriminatory lay-offs
The complaint alleged that on December 24, 1937, the respondent
discriminatorily discharged or laid off Roy A. Conn and has since
refused to reinstate him, and that on January 27, 1938, the respond-
ent discriminatorily discharged or laid off Oscar B. Killinger and
reinstated him on February 28, 1938. The respondent's defense was
that both employees had been laid off for lack of work. The Trial
Examiner found that they had not been discriminatorily laid off and
recommended that the complaint be. dismissed as to them. No excep-
tions were filed to these findings and recommendations. Upon an
examination of the record we find that it does not support the allega-
tions of the complaint with respect to Conn and Killinger. Accord-
ingly, such allegations will be dismissed.
C. The alleged refusal to bargain collectively
1. The appropriate unit
The complaint alleged that all hourly paid production and main-
tenance employees, excluding office employees,9 constitute a unit ap-
propriate for the purposes of collective bargaining.
All production and maintenance employees are paid at an hourly
rate, except a few foremen who are on salaries. Foremen on salary
'9 This exclusion also covers two or three clerical employees working in the plant.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not eligible for membership in the Union. The remaining fore-
men, most of whom are working foremen, are paid on an hourly
rate. The Union desires that the hourly paid foremen be included
in the appropriate unit. Working foremen are eligible to member-
ship in the Union. The appropriate unit sought is coterminous
with the Union's eligibility provisions. Both at the hearing and the
oral argument the respondent stated that it had no objections to the
unit sought. Accordingly, we shall include hourly paid foremen
in the unit.
We find that all the respondent's hourly paid production and
maintenance employees, including hourly paid foremen, but exclud-
ing office employees, constitute a unit appropriate for the purposes
of collective bargaining and that said unit will insure to employees
of the respondent the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuate the policies of
the Act.
2. Representation by the Union of a majority in the appropriate unit
The complaint alleged that on and after December 1, 1936, the
Union was the duly designated representative of a majority of em-
ployees in the appropriate unit and was, therefore, the sole bargain-
ing representative of all the employees in such unit, and that on and
after that date the respondent on various occasions refused to bargain
collectively with the Union as such representative.
As we have stated in Section III A, above,' the strike which began
in December 1936 was settled in March 1937, and the employees re-
turned to work. The agreement settling the strike provided, inter
alia, that the respondent would bargain with the Union as the repre-
sentative of its members concerning grievances, wages, rates of pay,
hours of employment, and conditions of work. Between March and
October 1937 the Union frequently met with Fink and occasionally
with Vinson respecting conditions of work and various alleged
grievances.
Sometime between October 25 and November 8, 1937, the union shop
committee at a conference with the respondent presented Fink with a
written agreement and asked him to sign it on behalf of the respond-
ent. Among other matters this contract provided for recognition of
the Union as the exclusive collective bargaining representative of the
employees in the appropriate unit. At this conference the union
shop committee told Fink that the Union claimed to represent a
majority of the employees covered, by the agreement. Fink did not
dispute this claim. He told the committee that it would be necessary
for him to refer the agreement to the other officers and to the direc-
tors of the respondent. Thereafter the agreement was referred to
THE IDEAL ELECTRIC & MANUFACTURING COMPANY '905
Vinson and by him to the individual directors. At a conference
sometime between November 8 and 22, 1937, the union shop committee
asked Fink for the respondent's decision regarding the agreement.
Fink returned the contract to the committee with a statement that the
respondent did not intend to enter into a contract at that time.
There is a conflict in the evidence as to whether or not Fink ampli-
fied his statement, but we find, as did the Trial Examiner in his
Intermediate Report, that Fink also told the committee that the
respondent was content to continue to operate under the strike-settle-
ment agreement, but if the respondent's business improved, the com-
mittee might thereafter again present the contract.
In his Intermediate Report the Trial Examiner found that there
were 138 employees in the appropriate unit in November 1937, that at
that time the Union had been designated by a majority of the em-
ployees as their collective bargaining representative, and that the
respondent by its conduct, described above, had refused to bargain
collectively with the Union as the exclusive bargaining representative
of a majority of its ,employees in the, appropriate unit. He based his
finding respecting the number of employees in the appropriate unit
in November 1937 upon the respondent's pay roll of November 8,1937.
That pay roll contains only the names of employees who actually
worked during the preceding two-week period. It does not contain
the names of employees who were laid off during such period because
they were ill, on vacation, on leave, or because of lack of work. Such
persons are regarded by the respondent as its employees even if they
are not actually working during a pay-roll period. Their names
appear in a list of current employees in 1937 and must, consequently,
be included in determining the number of employees in the appro-
priate unit. Combining the pay roll of November 8, 1937, and such
list, the total number of eligible employees in the appropriate unit
on November 8, 1937, was 153. Accordingly, 77 employees would be
required for a majority.in.the appropriate unit.
It is the Union's practice to deem any member whose dues are in
arrears three months or less as a member in good standing. A mem-
ber who is laid off by reason of lack of work or sickness or who is on
strike may receive a union stamp in lieu of the payment of dues, and
by doing so remain a member in good standing. According to the
Union dues book, 76 employees in the appropriate unit were members
in good standing in November 1937. This figure is one less than the
number required for a majority. Moreover, Paul John Boyd, one
of such 76 employees, testified that he resigned from the Union on
September 18, 1937, and there is nothing in the record to contradict
his testimony. Consequently, we do not find it necessary to consider
whether or not Alfred Beller should properly be included in deter-
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD;
mining whether or not the Union on November 8, 1937, had been
designated by a majority of the employees in the appropriate unit as
their collective bargaining representative.10 Since the Union did not
represent a majority of the employees in the appropriate unit when
the contract was presented to the respondent it was not then entitled
to recognition as the sole bargaining agent.
After the respondent rejected the contract in November 1937, the
Union twice conferred with the respondent in regard to the rein-
statement of certain employees who had been laid off. At the second
of these conferences in January 1938 the Union again claimed to
represent a majority of the employees and demanded recognition as
the exclusive bargaining representative upon the basis of such claim.
Combining the respondent's pay roll for January 1, 1938, and the
list of current employees as of that date, the total number of eligible
employees in the appropriate unit in January 1938, was 142. Accord-
ing to the dues book, less than one-half of that figure were union
members in good standing in January 1938. Since the Union did not
represent a majority of the employees in the appropriate unit when
it demanded recognition as such representative in January 1938, it
was not then entitled to recognition as the sole bargaining agent.
We find that on November 8, 1937, and in January 1938, the Union
was not the duly designated representative of the majority of the
employees in the unit which we have found to be appropriate and
that it was not on November 8, 1937, or in January 1938, pursuant
to Section 9 (a) of the Act, the exclusive representative of all the
employees in such unit for the purposes of collective bargaining.
We therefore find that the record does not support the allegation of
the complaint that on or about November 8, 1937, and in January
1938, the respondent refused to bargain collectively with the repre-
sentatives of its employees, pursuant to Section 9 (a) of the Act.
Accordingly, such allegation will be dismissed.
There remain for our consideration the allegations of the com-
plaint that the respondent, by failing and arbitrarily refusing to
consider a contract with the Union and by refusing to bargain in
good faith with the Union, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act. We have found that the respondent did not refuse to
bargain collectively with the Union as the representative of its em-
ployees pursuant to Section 9 (a) of the Act. Upon an examination
of the record we likewise find that it does not support the allegations
of the complaint that the respondent, by failing and arbitrarily
refusing to consider a contract with the Union and by refusing to
10 Beller, although not a union member, was nevertheless a member of the union shop
committee.
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 907
bargain in good faith with the Union, interfered with, restrained,
and coerced-its employees. Accordingly such allegations will be
dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
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
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
THE REMEDY
In his Intermediate Report the Trial Examiner recommended that
the respondent post notices, stating that it would cease and desist
from interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act and from
refusing to bargain collectively with the Union as the sole bargaining
representative of all the respondent's hourly paid production and
maintenance employees, and maintain such notices for a period of at
least sixty (00) consecutive days.
In his brief and at the oral argument before the Board, counsel
for the respondent argued that the respondent had,posted the requisite
notice which had been approved by the Regional Director. The
notice referred to reads as follows:
TO ALL EMPLOYEES
A charge was filed with the National Labor Relations Board
alleging that the management of this company was interfering
with the union organizational activities of its employees.
If there has been interference of any kind it has been carried
on without our consent, authority or approval.
Accordingly we advise-
All the employees of this company shall have the right to self-
organization, to form, join or assist labor organizations, to bar-
gain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, without interfer-
ence or fear of being discriminated against for so doing, as
provided by Sections 7 and 8 'of the ' said National Labor
Relations Act.
THE IDEAL ELECTRIC & MFG. COMPANY.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have considered the correspondence between the Regional Di-
rector and counsel for the respondent-with regard to the posting of
the notice. We find that the then Regional Director agreed that if
the above-quoted notice was posted, the Board would not enter an
order remedial of the unfair labor practices:
Although we are of the opinion that the Regional Director's agree-
ment with counsel for the respondent does not estop the Board from
the entry of such an order, effective administration of the Act requires
the Board's agents to have the respect and confidence of employers
with whom their work brings them in contact.- We think that in
view of the Intermediate Report the then Regional Director erred
in this case in making such an agreement. We believe, nevertheless,
that the policies of the Act will be best effectuated herein by giving
effect to such agreement. We shall enter an order that the complaint
be dismissed.
V. THE QUESTION CONCERNING REPRESENTATION
As we have stated above, the Union has claimed for some time to
represent a majority of the employees in the unit which we have
found to be appropriate and on the basis of such claim has sought
recognition as the sole bargaining representative. At the hearing
the Union introduced evidence that it represents a substantial num-
ber of the employees in the appropriate unit.
We find that a question has arisen concerning the representation
of employees of the respondent.
VI. 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 com-
merce and and the free flow of commerce.
VII. THE DETERMINATION OF REPRESENTATIVES
The Union claims to represent a majority of the employees in the
appropriate unit. We find that an election by secret ballot is neces-
sary to resolve the question concerning representation.
ll Cf. Matter of Godchaux Sugars, Inc. and Sugar Mill Workers ' Union, Locals No. 21177
and No. 2188, etc., 12 N. L. R. B. 568; Matter of Hope Webbing Company and Textile
Workers Organizing Committee of the C. I. 0., Local No . 1., 14 N. L. R. B. 55; Matter
of Stromberg-Carlson Telephone Manufacturing Company and United Electrical, Radio c6
Machine Workers of America, Local No. 509, 18 N. L . R. B. 526.
THE IDEAL ELECTRIC & MANUFACTURING COMPANY 909 ,
We find that those eligible to vote in the election shall be employees
in the appropriate unit whose names appear on the pay roll immedi-
ately preceding the date of our Direction of Election, including
employees who did not work during such pay-roll period because
they were ill or on vacation and employees who were then or since
have been temporarily laid off, but excluding those employees who
have since quit or been discharged for cause.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following:
CONCLUSIONS OF LAw
1. A question affecting commerce has arisen concerning represen-
tation of employees of the respondent, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
2. All hourly paid production and maintenance employees of the
respondent, including hourly paid foremen, but excluding office em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the foregoing findings, and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that the complaint be, and it hereby
is, dismissed.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2,
9s amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with The Ideal Electric & Mfg. Co., Mansfield, Ohio, an election by
secret ballot shall be conducted as early as possible but not later than
thirty (30) days from the date of this Direction, under the direction
and supervision of the Regional Director for the Eighth 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 hourly paid production and maintenance employees of
said company, including hourly paid foremen, who were employed
during the pay-roll period last preceding the date of this Direction,
including employees who did not work during such pay-roll period
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they were ill or on vacation, and employees who were then
laid off, but excluding office employees and employees who have since
the aforesaid pay-roll period quit or been discharged for cause, to
determine whether or not they desire to be represented by Local
705, United Electrical, Radio and Machine Workers of America, for
the purposes of collective bargaining.
MR. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision, Order, and Direction of Election.