The North Electric Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 10, 1940

24 N.L.R.B. 547 (N.L.R.B. 1940)

In the Matter of THE NORTH ELECTRIC MANUFACTURING COMPANY
and INTERNATIONAL ASSOCIATION OF MACHINISTS , LOCAL 1151
Case No. C-1130.-Decided June 10, 1940
Telephone Equipment Manufacturing Industry-Interference , Restraint, and
Coercion : effect of respondent 's anti-union acts determined by natural and prob-
able consequences ; allegedly beneficent motives of employer immaterial ; poll
of union sentiments of employees ; anti-union statements and circulation of anti-
union petition by supervisory employees ; publication of newspaper advertisement
implying labor organization employed by competitor to destroy respondent ;
conduct in connection with and at meeting with union requesting recognition;
selection of employees to attend as observers ; disregard of union's objection
tb attendance of observers ; broadcast of proceedings to employees ; casting
aspersions on union representative ; questioning jurisdiction of union to admit
employees to membership ; declaring collective bargaining would be conditioned
upon proof of union's jurisdiction ; other interference , restraint , and coercion,
not established-Discrimination.: charges of, in regard to hire and tenure of em-
ployment of one employee , not sustained-Employer Responsibility : anti-union
conduct of superintendent and assistant superintendent , and subordinate super-
visory employees ; minor supervisory employees : absence of power to hire and
discharge and alleged eligibility to membership in union not determinative of;
failure of employer to disavow and take action calculated to prevent recurrence
of anti-union conduct by-Employee Status: determination of, as to superintend-
ent, assistant superintendent , and "senior employees " allegedly exercising mana-
gerial functions-Procedure : asserted unfairness of Intermediate Report raises no
issue of prejudice where Board resolves issues of credibility without reference
thereto; evidence introduced to show but held insufficient to establish inter-
ference, not set forth in detail in view of detailed findings of other acts of
interference.
Mr. Harry L. Lodish, for the Board.
Garfield, Cross, Daoust, Baldwin, & Vrooman, of Cleveland, Ohio,
by Mr. Clare M. Vrooman and Mr. Vernon R. Burt, and Mr. Carl J.
Gugler, of `Galion, Ohio, for the respondent.
Mr. A. G. Sicun dor, for the Union.
Mr. Bernard W. Freund, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by International
Association of Machinists, Local 1151, herein called the Union, affili-
ated with the American Federation of Labor, the National Labor Rela-
24 N. L. R. B., No. 52.
547
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions Board, herein called the Board, by the Regional Director for the
Eighth Region (Cleveland, Ohio), issued its complaint dated October
11, 1938, against The North Electric Manufacturing Company, Galion,
Ohio, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce, within 'the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing thereon
were duly served upon the respondent and the Union.
Concerning the unfair labor practices the complaint alleged (1)
that the respondent discriminatorily discharged Charles Pfleiderer, an
employee, on or about March 26, 1938, and thereafter refused to rein-
state him, for the reason that Pfleiderer joined and assisted the Union
and engaged in concerted. activities with other employees in the re-
spondent's plant for the purposes of collective bargaining and other
mutual aid and protection; (2) that the respondent, at various times
before, during, and after January 1938, (a) ridiculed the Union and
applied derogatory remarks and names to the Union and its members,
(b) advised, ordered, and persuaded its employees not to join or become
interested in the Union, (c) questioned its employees as to their union
affiliation for the purpose of influencing them in their self-organiza-
tion, (d) stated that union activity would result in lower earnings,
(e) placed unreasonable restrictions on union activity, (f) granted
increases in pay to non-union employees for the purpose of discourag-
ing union activity, (g) indicated that union activity had deprived
certain employees of promotion and other privileges, and (h) assured
its employees that their jobs would be more secure without union
affiliation; and (3) that, by the above-described conduct and by other
acts, the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of their rights guaranteed in Section 7 of
the Act.
On October 15, 1938, the respondent filed an answer in Which it
denied that it had engaged in any activities constituting unfair labor
practices, and denied that such activities affected commerce, as
alleged in the complaint. At the same time the respondent filed a
motion that the complaint be made more definite and certain with
respect to the alleged unfair labor practices, and with respect to the
officers and agents by whom they were alleged to have been committed.,
Thereafter, counsel for the Board advised the respondent, by letter
dated October 18, 1938, that the alleged unfair labor practices occurred
1 The motion prayed, in the alternative , that a bill of particulars be furnished with
respect to these allegations. .
THE NORTH ELECTRIC MANUFACTURING COMPANY 549
chiefly during the first 4 months of 1938, and that the respondent
allegedly engaged in the alleged unfair labor practices through 10
named officers or .agents.2 On October 22, 1938, the respondent filed
a further motion, in which it averred that the information contained
in the said letter of counsel for the Board did not make the complaint
sufficiently definite and certain, and moved that its previous motion
to make the complaint more definite and certain be considered as
refiled and still pending.
Pursuant to notice, a hearing was held at Galion, Ohio, from
October 24 to November 3, 1938, before Thomas S. Wilson, the Trial
Examiner duly designated by the Board. The Board and the respond=
ent were represented by counsel; the Union was represented by an
International representative; all 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 commencement of the hearing, the Trial Examiner denied the
respondent's motion to make the complaint more definite and certain,
previously filed, and at the same time stated, ". . . if respondent
needs time because of the Examiner's ruling, it will be given reasonable
time in which to prepare." Counsel for the respondent did not
at any time during the hearing request an adjournment for the pur-
pose of preparation, and at the conclusion of the hearing advised
the Trial Examiner that sufficient time had been afforded to present
the respondent's case. We hold that the complaint afforded a suf-
ficient basis for apprising the respondent of the issues of fact it
might be called upon to meet. Moreover, the record shows that the
denial of the motion to make the complaint more definite and certain
did not embarrass the respondent in its cross-examination of witnesses
called by the Board; as stated above the respondent did not request
an adjournment at the close of the Board's case; and the respondent's
presentation of its case discloses that it had adequate opportunity
for preparation thereof. The ruling of the Trial Examiner, denying
the motion to make the complaint more definite and certain, is hereby
affirmed.
At the conclusion of the Board's case, the respondent moved that
the complaint be dismissed. The Trial Examiner denied the motion.
His ruling is hereby affirmed. At the conclusion of the hearing, the
respondent renewed its motion that the complaint be dismissed. The
Trial Examiner reserved his ruling upon this motion. At the same
time, counsel for the Board moved to conform the complaint to the
2 The persons named were : F. R. McBerty , L. J. Davis . F. E. Bernard , A. H. Haspeslagh,
H. A. Helfrich , E. A. Yeager , Paul Helfrich , J. H. Franks, W. E. Brown, and C. J. Lucius.
We have conformed the spelling of the names to the record.
283035-42-vol. 24-36
550 ` DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proof. ' The Trial Examiner granted this motion. His ruling is
hereby affirmed. During the course of the hearing the Trial Exam-
iner made other rulings upon motions and upon objections to the
admission of evidence. The Board has considered these rulings and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
At the close of the hearing the parties participated in oral argu-
ment before the Trial Examiner, and thereafter the respondent filed
a brief with the Trial Examiner. A stipulation for the correction
of the transcript of the proceedings before the Trial Examiner was
entered into by counsel for the Board and the respondent, and the
,corrections thereby agreed upon thereafter were made upon the face
of the record.
On January 19, 1939, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. In his
report, the Trial Examiner denied the respondent's motion, made
at the conclusion of the hearing, to dismiss the complaint. His ruling
is hereby affirmed. The Trial Examiner found in his report that
the respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8 (1) and (3) and Section 2
(6) and (7) of the Act, and recommended that the respondent cease
and desist therefrom and take certain specified affirmative action
to effectuate the policies of the Act. Thereafter, the respondent filed
with the Board exceptions to the Intermediate Report, and a brief
and a supplemental memorandum in support of its exceptions. Pur-
suant to notice served on the parties, a hearing for the purpose of oral
argument was held on November 30, 1939, before the Board in Wash-
ington, D. C. The respondent and the Union were represented by
counsel and participated in the argument.
The Board has considered the exceptions to the Intermediate
Report, and the respondent's brief and supplemental memorandum in
support thereof, and, except in so far as they are consistent with the
findings, conclusions, and order set forth below, finds the exceptions
to be without merit. The Board has also examined and reviewed the
record with respect to the respondent's charge of prejudicial conduct
of the Trial Examiner during the hearing, and finds such charge
to be without substance. We have carefully considered the further
charge by the respondent that the • Trial Examiner's Intermediate
Report presents a biased view of the evidence. We find it unneces-
sary to pass upon this claim, since, in resolving issues of credibility,
we have reached our determination in each instance upon the face of
the record, and the alleged bias, therefore, presents no basis for any
claim of prejudice.
THE NORTH ELECTRIC MANUFACTURING- COMPANY 551
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The . respondent, The North Electric. Manufacturing Company, is
an Ohio Corporation with its plant located at Galion, Ohio. It is
engaged in the manufacture of automatic electric selective apparatus,
including telephone exchange systems, its principal product, and also
stock-quotation systems, power-control systems, and small appliances.
All of the respondent's products are manufactured to order. The
respondent and the Automatic Electric Company, Inc., Chicago, Illi-
nois, a competitor, are the sole suppliers of automatic telephone
equipment to the approximately 6,800 independent telephone com-
panies in the United States not included within the Bell System.
The respondent advertises in two trade journals of Nation-wide
circulation.
During 1937, the respondent's sales of its products amounted to
.$675,012.02, of which $580,216.84, or approximately 86 per cent, were
shipped to destinations outside the State of Ohio. During the same
period, the respondent's purchases amounted in value to $ 291,525.69.
An analysis by the respondent of the principal raw materials used by
it during 1937, amounting in value to approximately $104,600.00, dis-
closed that approximately $88,400.00, or about 85 per cent of these
materials, were shipped to the respondent's plant from points outside
the State of Ohio.
During 1937 the respondent entered upon a period of expanding
production which continued to the time of the hearing; at the begin-
ning of .1938 the number of the respondent's employees was approxi-
mately.300, and at the time of the hearing the number had. increased
to approximately 600.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Local 1151, herein referred
to as the Union, is a labor organization affiliated with the American
Federation of Labor, admitting to its membership employees of the
respondent, and of other employers with plants located in and around
Galion, Ohio.
III. THE UNFAIR LABOR PRACTICES
A. The respondent's supervisory' staff
The complaint alleges that the respondent engaged in unfair labor
practices by acts and statements of its officers and agents. There-
after, as stated above, counsel for the Board, in advance of the hear-
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, named as such officers acid,'agents F.• R. McBerty,- L." :Ji(Da'vis,
F. E. Bernard, A. H. Haspeslagh, H. A. Helfrich, Paul Helfrich,
E. A. Yeager, J. H. Franks, W. E. Brown, and C. J. Lucius. During
the hearing, evidence was adduced to prove that the afore-mentioned
persons and also J. C. Beck, Robert Spangler, and Donald Christman,
employees of the respondent, had engaged in anti-union conduct.
The Trial Examiner found that all of, those persons had engaged in
such conduct, that they are supervisory employees, and that the re-
spondent therefore is chargeable with the acts and statements of each
of them. While the respondent excepted to such findings upon other
grounds, which we consider below, it has raised no issue that the find-
ings as to alleged supervisory status of Beck, Spangler, and Christ-
man were outside the allegations of the complaint. Moreover, the
issues were tried as to their alleged supervisory status. The com-
. plaint is hereby amended to conform to the proof in these respects a
The respondent's plant is a two-story building containing 35,000
feet of floor space. Metal parts are manufactured on the first floor
in the punch-press department, the automatic screw-machine depart-
ment, the lay-out and welding departments, the machine shop, and
the annealing, plating, and finishing department. The tool and die
department, the carpenter shop, and the boiler room are also located
on this floor. .The parts made on the first floor are assembled in the
assembly -department on the second floor, starting with sub-assem-
blies and ending with the finished products. The stockroom and the
wiring department are likewise on the second floor. Floor inspectors
are stationed throughout the manufacturing and assembling depart-
ments to inspect the parts and assemblies for quality at every stage,
.and in addition inspectors in a separate "inspection department" and
a force of "testers" inspect the sub-assemblies and the, finished
products. .
McBerty, president of the respondent, is the general manager over
all its activities. Davis, the respondent's secretary and treasurer, is in
charge of financial matters and of personnel relations. Subordinate
to these two men, and responsible to them, are superintendents C. J.
Murphy, R. J. Eise, and Bernard, and, under the latter, assistant
superintendent Haspeslagh. Bernard and Haspeslagh are in charge
of all the work on the first floor of the plant and in the assembly
department on the second floor, with the exception of inspection
work.4 Until about March 3, 1938, when a regular night shift was
3 See Section 10 (b) of the Act, and Article II, Section 7, of National Labor Relations
Board Rules and Regulations-Series 2 , as amended.
4 Bernard is evidently the superintendent over the largest number of respondent's em-
ployees, as is indicated by the fact that he alone has an assistant superintendent, a i ild by
the further fact that approximately 100 persons were employed in the second-floor.assem-
bling department alone in January 1938, and approximately 200 in August or September
1938. " ` ,
THE NORTH ELECTRIC MANUFACTURING COMPANY 553
started and Haspeslagh was put in charge of it, the latter's duties
related mainly to the day shift first floor departments. Murphy has
charge of all the inspection work in the plant, of the wiring and
testing departments, and also of the installation of finished products
at locations specified by the purchasers. Eise is in charge of the
stockroom and - of the receiving, shipping, and order departments,'
including the keeping of inventory records.6
The superintendents and the assistant superintendent are salaried
,employees; all of them have the power to hire and discharge. While
the acts of the superintendents are subject to veto by Davis, this
does not alter their character as responsible agents of the respondent.
Moreover, Davis in fact seldom exercises veto power, and discharges
may be effected in his absence. Likewise, although Haspeslagh's
decisions may, in theory, be subject to veto by Bernard, the record
shows that Haspeslagh decides upon and gives notice of discharge
without consulting Bernard 'or 'securing his approval. While the
respondent does not concede that it is responsible for all of the acts
and statements of the superintendents and assistant superintendent
in regard to self-organization by its employees,' manifestly their con-
duct; as well as that of Davis and McBerty, is chargeable to the re-
spondent upon principles of respondent superior. We shall, there-
fore, consider in detail only the contentions advanced by the re-
spondent with respect to its responsibility for the activities of the
other afore-mentioned employees.
The -employees subordinate to the superintendents and assistant
superintendent are all paid by hourly rate. On the respondent's
pay-roll records the highest classification among them is that of
'5senior employee" (or "senior workman"), a term used by the re-
spondent 8 to designate employees, who, by reason of their qualifica-
tions, experience, and efficiency, in most cases acquired through long
service with the respondent, receive higher pay than the other em-
ployees engaged in the same departments or in similar work. Ac-
cording to the respondent, approximately 131 of its 300 employees
at the beginning of 1938 were in this group, and at the time of the
hearing in October 1938, approximately 141 of its then 600 employees.
Most of the "senior employees" have no control over or responsibility
6 The record does not disclose the location in the plant of these three departments. Else
occupies an office opposite the stockroom on the second floor of the plant , which he shares
with Bernard and four clerks who apparently constitute the order department.
''6 The respondent also has a staff of approximately 20 electrical engineers 'who apparently
are under the supervision of R. C. Arter , the respondent 's chief engineer.
7 In its brief and supplementary briefs, the respondent concedes that Bernard is a super-
visory employee, and in the oral argument before the Board admitted that Haspeslagh is
also a supervisory employee and that any statement by him as to the respondent's position
with respect to union activities of its employees would be binding upon the: respondent.
8 The term is not generally known • to or used by the employees themselves.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
for the work or conduct of other employees in their respective de-
partments, except when assigned to break in a new employee.
It is obvious that three superintendents and one assistant super
intendent are not able to supervise the work of 300 to 600 employees.
Necessarily, the respondent has imposed on some of the "senior em-
ployees" special duties and responsibilities with respect to the work
and conduct of other employees, including "senior employees," and.
the evaluation of their qualifications and efficiency. For example,.
in the case of most of the production departments, the orders govern-
ing the work performed from day to day are sent by Haspeslagh or
Bernard to a certain employee in each department, described by
Haspeslagh as the "set-up man," or an "older man," who has the
duty of dividing the work into specific assignments for the individual
employees. A like delegation of duties is made when the employees
are to be notified of a plant rule governing their conduct. Thus,
in the early part of 1938, Bernard, having decided to reannounce an
old rule against employees entering departments other than their
own,,went, according to his testimony, to "each individual room or
department" on the first floor of the plant and notified "the senior
workmen in that department or the set-up man or whoever it hap-
pened to be," and in the second-floor assembly department, Bernard
turned the matter over to H. A. Helfrich, who had raised the issue
by asking "if we could not notify all the foremen and everybody to
enforce that rule again." Bernard explained at the hearing, "We
have so many employees, I couldn't tell each one individually."
We consider now the extent, if any, to which the respondent has
delegated managerial functions to the various "senior employees"'
with whose alleged anti-union conduct the respondent is charged ;
namely, H. A. Helfrich, Paul Helfrich, Lucius, Yeager, Spangler,
Christman, Brown, Franks, and Beck.
H. A. Helfrich is in charge of the approximately 100 production
employees working in the second-floor assembly department on the
day shift and is responsible to Bernard for the operation of the
department. Helfrich himself does no production work. He re-
ceives the work orders for the department, assigns the employees to
their tasks and supervises their work. It is his duty to report to
Bernard concerning the qualifications and efficiency of the employees
under him, and he has the power to recommend discharges and
wage increases. Bernard testified that he and Helfrich "come to a
joint conclusion as to whether or not we should fire anybody."
When a determination that an employee in the assembly depart-
ment should be discharged is reached by Helfrich's superiors, Hel-
frich signs the discharge slip in the space reserved for "foreman"
and delivers 'the notice of discharge to the employee.
THE NORTH ELECTRIC MANUFACTURING COMPANY 555-
It is Helfrich's duty also to maintain discipline in the depart-
ment and see that the rules of the plant are observed. He ex-
pects his orders in these respects to be obeyed; has cautioned em-
ployees against and reprimanded them for unnecessary talking during
working hours, and smoking in the washroom ; and on one occasion
noted in the record he reported to Bernard a violation of the smok-
ing rule, and, upon the latter's instructions, penalized the three
offending employees by lay-off and warned them that another of-
fense would result in discharge. During 1938, on the ground that
a number of tools in the assembly department were stolen, Helfrich
suggested to Bernard that an old rule forbidding employees to enter
other departments than their own during the noon hour be rean-
nounced. Upon the suggestion's being accepted, Helfrich made the
announcement in his department, and thereafter. ejected from the
assembly room employees from the wiring department who had
entered in violation of the rule. On another occasion, in March
1938, Helfrich, according to his testimony, devoted "about an hour"'
to keeping watch over an inspector in the assembly department
whom he suspected of annoying the production employees with ex
cessive conversation. He testified that it was his "business" to guard'
his "'help" against such annoyance; in his words, "I, watched my
help."
Helfrich testified that he is the "day boss" in the assembly de-
partment. Kensinger, a witness for the respondent, said that his
"boss" is Helfrich; two other employees in the assembly department
described Helfrich as their "foreman"; a fourth identified him as
his "superior"; and Davis admitted that Helfrich "probably" is the
"senior worker who is above all the senior workers" in that depart
ment, and that he "keeps the department running."
Paul Helfrich,, who is a brother of H. A. Helfrich, is employed
on the day shift in the lay-out department, with two other men, and
also does occasional work in the welding department which has a.
regular daytime staff of two employees. Bower, a witness called by
the respondent, who is one of the employees in the lay-out depart-
ment, testified that Helfrich is his "boss," and that he receives his
work assignments from him, except that he selects them himself
in Helfrich's absence. Helfrich was one of the employees selected
by Bernard in the early part of 1938 to announce to other employees
the rule against entering other departments. In February 1938
Bernard informed an employee in the welding room that Helfrich
was his "foreman," to whom he should address complaints, inquiries,.
or requests, and this employee subsequently followed Bernard's
instructions.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lucius is in charge of the approximately nine employees who,
besides himself, work in the tool and die department on the day
shift. He assigns and supervises their work and is responsible to
his superiors for its quality and completion upon schedule. It is
his duty to report regularly to his superiors as to the. operation of
the department and the qualifications and ability of the employees
under him. Since Haspeslagh was transferred to the night shift,
about March 3, 1938, Lucius has remained at the plant during the
18-minute interval between the day and night shifts until
Hapeslagh's arrival at the plant, in order to make such reports.
Lucius testified that he has sometimes reported to his superior that
the work of a particular employee in the toolroom was not as "good"
as that of some of the apprentices, or that he did not "fit into our
work." We find from this testimony that Lucius has the power to
and does recommend changes in personnel. Some of the employees
about whom Lucius has complained have been transferred to other
departments; others have been discharged. In the latter case, the
discharge slip has been signed by.Haspeslagh and notice of discharge
delivered to the employee by Lucius. Lucius testified that he had
been advised by his superiors some 5 years before that he was a
"key man." Charles Pfleiderer, a discharged employee who worked
under Lucius,' referred to Lucius in his testimony as his "foreman."
Yeager, Spangler, and Christman. Yeager is the "set-up- man"
for the other 9 or 11 employees in the punch-press department on
his shift. He assigns the work to the other employees and, in his
words, is "in a certain way" in charge of the department. From
time to time he has acted as the respondent's intermediary in re-
questing the employees in his department to work overtime. In
1938, upon instructions from Haspeslagh, Yeager told all the men
in the department to keep out of other departments except when
their duties took them there. Yeager testified that the other em-
ployees in the department on his shift probably consider him to
be their "boss," just as he considers Haspeslagh his "boss." Two
witnesses who worked under Yeager until about March 3, 1938, when
he was transferred from the day to night shift, described him as
having been their "immediate foreman" and one of these employees
testified at the hearing that Yeager was the "night foreman"' of the
punch-press department. When Yeager was transferred to the night
shift, Nelson succeeded to his position on the day shift; thereafter
May,. who was employed in the punch-press department at the time
of the hearing, was told by Bernard that Nelson was his "foreman."
. Spangler and Christman are the "set-up" men in the machine shop
on the day and night shifts, respectively. They are the employees
See Section III C, infra.
THE NORTH ELECTRIC MANUFACTURING COMPANY 557
to whom work orders for the machine shop are delivered. They
assign, "set-up," and supervise the work of the other employees in the
department, who operate the machines. There is evidence that, when
not engaged in the performance of the foregoing duties, Spangler
engages in the same work as the other employees in the machine shop.
May, who worked in the machine shop under Spangler in January
1938, testified that Spangler is the "foreman" of the machine shop
on the day shift, and Christman the "foreman" on the night shift.
As we have found, Yeager, Christman, and Spangler fall into the
category of "set-up man." Lucius, whose own duties have been de-
scribed above, and who was called as a witness by the respondent,
testified that if a set-up man discovers that an employee in his
department is doing an assignment improperly, "he transfers him
to another job." Lucius then testified that he "supposed" the set-up
man "recommend(s) [i. e., makes recommendations as to] men who
are not good for his department to his superior," but claimed that
he "couldn't say as to that," because he "didn't know." We think this
disclaimer plainly evasive in view of Lucius' "key" position and his
employment on the first floor of the respondent's plant for 9 years;
and upon the entire record we find that the set-up men make recom-
mendations to their superiors based upon the work of other employees
in their respective departments.
Brown and four other floor inspectors are responsible to Murphy
for inspecting for quality all the work performed during the day
shift in various departments on the first floor of the respondent's
plant. Brown performs complete, "100 per cent" inspection in the
welding, lay-out, and plating departments, and, in part, in the car-
penter shop; Finley, in the screw-machine department; Dickerhoff,
in the machine shop and, in part, in the carpenter shop; Weber, in
the punch-press department. Mason "does the weighing up and some-
times checks a little raw material." It is the duty of these men, also,
to watch over the performance by the production workers of the
various operations in their respective departments, and to report
faulty work to Superintendent Bernard. In case of improper work,
they may order the production employee to halt the job until the
matter is cleared with Bernard, or, if necessary, with Murphy.
There is no evidence that Finley, Dickerhoff, Mason, or Weber
has any duties or responsibilities with respect to the work of fellow
inspectors. Brown, however, spends a portion of his time checking
the work performed by the other four. Murphy testified that Brown
spends "very little" of his time "worrying about the work of the
floor inspectors other than himself," and, in the same connection, that
Brown occasionally has "helped" the respondent. Davis testified that
the other inspectors report and are responsible to Brown "to a cer-
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
t ain degree and under certain conditions." Brown testified that he
inspects "practically everything on the first floor, that is that I have
time." Brown further testified that he "might have" suspended some
employees upon specific instructions from Murphy, and we infer that
he referred to other inspectors, since the record contains no indica-
tion that Murphy has any control over the personnel of the produc-
tion departments. We also infer that Brown devotes so much of
his time as is not spent in the performance of his other work to
checking over the work of his four fellow inspectors, that he reports
to Murphy as to the other inspectors, and that such reports are con-
sidered by Murphy in making determinations as to the tenure and
other terms and conditions of their employment. When a new in-
spector is hired to work on the first floor, Brown, rather than one
of the other inspectors, is assigned to instruct and train him in his
duties. From -time to time, Brown is sent out of Galion to inspect
the cabinet parts purchased by the respondent, before they are
shipped to the respondent's plant.
Franks is the oldest in seniority of seven or eight men employed as
clerks in the stockroom on the second floor of the plant, near the
office of their superintendent, Eise, through whom requisitions are
cleared. Like the other stockroom employees, Franks' work consists
of receiving and storing materials and parts and filling requisitions
for them either at the stockroom or by delivery of the items to the
departments requesting them. While Franks is responsible for break-
ing in new clerks in the stockroom, and there is testimony that he
"handle (s) most of the work," there is no evidence that he is expected
to report to Eise as to the qualifications, efficiency, or conduct of his
fellow clerks, or that he is regarded by them as their "foreman" or
"boss."
Beck, who. was the only witness who testified concerning his duties
and responsibilities, asserted that he has no authority of any kind
over the two other employees who, with him, constitute the personnel
of the carpenter shop, that he does not give them instructions as to
work to any greater extent than they do to him, and that, while he
referred to them as "assistants," or "helpers," he did so only because
he has been employed at the plant longer than they.
It is apparent from the evidence recited above that H. A. Helfrich,
Lucius, Yeager, Spangler, and Christman not only allocate work but
have the power and are expected to make recommendations which
may involve the discharge, demotion, transfer, or supervision of em-
ployees or change in their working conditions. These facts, together
with the other above-described supervisory duties and tasks imposed
upon and delegated to these men by the respondent, establish, .that
they act as representatives of the management in their day-to-day
THE NORTH ELECTRIC MANUFACTURING COMPANY 559
relations with the other employees in their respective departments,
and the testimony of employees in their departments describing them
as "foremen," "bosses," and the like demonstrates that they are recog-
nized as such. As to Paul Helfrich, the record shows that an em-
ployee in the welding room was told by superintendent Bernard that
Helfrich is his "foreman," with the duty to receive grievances, that
Helfrich assigns work to the other employees in the lay-out depart-
ment, that he was delegated to announce a plant rule, and that, as
appears from the testimony of Bower, he is regarded as "boss" of
the lay-out department. We conclude that Paul Helfrich is a man-
agement representative and is so regarded by the employees in the
lay-out and welding departments. With respect to Brown, we have
found that he not only reports to Bernard concerning improper work
by production employees, but that, unlike his fellow inspectors, he
devotes as much time as he can spare from his other duties to check-
ing over the work of other inspectors, that he reports thereon to
Murphy, that he has notified other inspectors of their suspension
from work, and that he is the person selected to train new inspectors
on the first floor. We conclude that. Brown's position is also that of
a representative of the management. On the other hand, the record
does not establish that Franks or Beck has such a status.
We find from the foregoing evidence and the entire record that
H. A. Helfrich, Paul Helfrich, Lucius, Yeager, Spangler, Christman,
and Brown are supervisory employees for whose acts of interference,
restraint, and coercion in respect to the exercise by the other em-
ployees of their rights guaranteed in Section 7 of the Act, the re-
spondent is responsible.10
B. Interference, restraint, and coercion
1. The January 24, 1938, poll
In January 1938, the Union began an organizational campaign
among the respondent's employees, under the leadership of A. G.
.Skundor, a grand lodge representative of the International Associa-
10 While these employees do not have the power to hire or discharge, that fact is not
determinative of the respondent's responsibility, but is simply a circumstance to be con-
-sidered in determining whether by reason of their position and authority the conduct of
these employees has interfered with, restrained, and coerced other employees in violation of
the Act. See Virginia Ferry Corp. v. N. L. it. B., 101 F. (2d) 103, enf'g as mod., Matter of
Virginia Ferry Corporation and Masters, Mates and Pilots of America, No. 9, 8 N. L. R. B.
730; N. L. it. B. v. American Manufacturing Co. 106 F. (2d) 61, aff'd. as mod. 60 S. Ct. 612,
enf'g as mod., Matter of American Manufacturing Company, et al. and Textile Workers'
Organizing Committee, C. I. 0., 5 N. L. 'R. B. 443; Int'l Assn. of Machinists v. N. L. it. B.,
110 F. (2d) 29, cert. granted, 60 S. Ct. 721, aff'g, Matter of The Serrick Corp. and Int'l
Union, United Automobile Workers of Am., Local No. 459, 8 N. L. R. B. 621; H.'J. Heinz
,Co. v..N. L. it. B., 110 F. (2d) 843 (C. C. A. 6), enf'g, Matter of H. J. Heinz Company and
Pickle Workers, Local Union No. 325, etc., 10 N. L. R. B. 963. See also Matter of Borden
Mills, Inc. and Textile Workers Organizing Committee, 13 N. L. R. B. 459; Matter of The
Baldwin Locomotive Works and Steel Workers Organizing Committee. 20 N. L. R. B. 1100.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of Machinists. The first organizational meeting of the Union
was held on Friday, January 21, at a hall in Galion, and was attended
by 100 to 200 persons, of whom about half were employees df the
respondent. At the conclusion of the meeting applications for mem-
bership in the Union, or authorization cards, were signed by a num-
ber of the respondent's employees.
On the Monday morning following the Union's organizational
meeting, employees in the departments under superintendent Bernard:
were polled during working hours as to their sentiments toward the
Union. Bernard directed H. A. Helfrich to interrogate the approxi-
mately 100 employees in the second-floor assembly department, and
turned over such questioning of employees in the first-floor depart-
ments to assistant superintendent Haspeslagh. The latter in turn
directed Yeager, Paul Helfrich, Spangler, Lucius, and Beck to con-
duct the questioning in their respective departments 11
The respondent claims that Bernard ordered the poll on his own
initiative,12 and without specific authority from his superiors; that
Bernard did not report the results of the poll to, and the poll was
not used by them; and that in any event it was not shown to have
had any coercive effect upon employees. With respect to the con-
tention that no coercive effect was established the respondent relies
upon testimony of employees that this was the case, and urges
further that the record does not show that the employees knew that
the poll was conducted by the respondent, but that, on the contrary,
so far as the employees knew, the poll originated with and was a
matter of interest only to H. A. Helfrich, Paul Helfrich, Yeager,
Spangler, Lucius, and Beck, as fellow employees. Upon these
grounds, the respondent argues that the conduct of the poll may not
be held to have interfered with the exercise by its employees of
rights guaranteed by the Act.
As we have stated above, the respondent ' is responsible, upon
principles of respondent superior, for the acts of Bernard and
Haspeslagh. Consequently, it is immaterial, so far as the liability
of the respondent is concerned, whether McBerty or Davis specifically
authorized Bernard to conduct-the poll.
"As noted above, Yeager is employed in the punch -press department , Paul Helfrich in
the lay-out and welding departments , Spangler in the machine shop, Lucius in the tool and
die department , and'Beck in the carpenter shop. Beck testified that he had no recollection
of the poll or of any orders to participate in it. Haspeslagh stated at the hearing , however,
that Beck was one of the men to whom he transmitted Bernard's orders , as found in the
text. Beck was an evasive and untrustworthy witness ; and we accept Haspeslagh's
testimony on this Issue. The record indicates , and we find that the poll was also conducted
In the other first-floor departments over which Bernard is superintendent:
Bernard testified that he had the poll taken in order to satisfy his curiosity as to the
truth behind conflicting rumors in the plant . He asserted that after the results-of the
poll in the various departments had been delivered to him by H. A. Helfrich, he added them
together and "Just generally got a picture all over the plant . . . and that Is all there is
to it."
THE NORTH ELECTRIC MANUFACTURING COMPANY 561
Moreover, we are unable to credit the testimony of Bernard that
he took the poll simply to satisfy his curiosity as to the truth behind
conflicting rumors in the plant and upon being informed of the
result did nothing further; or the testimony of Davis that he did
not "recall" whether he, knew of the conduct of the poll and did not
`remember" whether it was called to his attention. The testimony
of Bernard and Davis is not plausible. Upon the entire record we
conclude that Bernard conducted the poll with the knowledge and
approval of his superior. That this was the case is, we find, cor-
roborated by Davis' conduct on January 28, when Skundor, the
Union's representative, met with him and protested against the poll.
On that occasion, Davis took the position that the poll involved no
infringement of -the. rights of employees under the Act since "they
was just merely wanting to find out whether the employees wanted a
union or not.713 Furthermore, by taking this position, Davis ratified
Bernard's conduct, and, even if not theretofore responsible for the
poll, the respondent then became fully chargeable therewith.
As we have stated above, the respondent seeks to avoid responsi-
bility on the ground that the employees questioned did not know that
the poll was being conducted by, 'or on behalf of, the respondent. In
substance, the argument is that the persons coming into immediate
contact with employees in the conduct of the poll were themselves
eligible to membership in the Union, would be represented for the
purposes of collective bargaining by the Union if it should be
designated by a majority of the employees; that these employees,
therefore, were entitled in their own self-interest to oppose the
Union; and that, so far as appeared to their fellow employees, this
was all that they purported to do in conducting the poll.
While the respondent, on the same ground, seeks to excuse itself
from other acts and statements by this group of employees 1 14 the
issue presented in connection with the poll is a narrower one, for
since the poll was the respondent's act, the only question presented
by the respondent's contention is whether the employees were aware
of that fact. They clearly were. When Yeager questioned the 10
or 11 employees in the punch-press department, all of them stated
they were "for the union." Yeager wrote their names upon a piece
of paper which. he handed to Haspeslagh. About an hour later,
Yeager approached Febus, one of the employees in the department,
and told him that Haspeslagh "didn't like this 100 per cent depart-
ment worth a damn," and asked Febus if he "wanted to change [his]
1! Although Davis testified that he did not recall discussing the poll with Skundor.
Skundor's testimony, upon which the finding in the text is based, is corroborated by the
testimony of superintendent Bernard, who was present at the meeting, that the poll was
one of the subjects of conversation.
"See Section III B 2, infra.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind." As this incident alone discloses, the employees were aware
that the poll was being conducted by the respondent. Moreover, the
record establishes that the respondent regularly delegates to Yeager,
H. A. Helfrich, Paul Helfrich, Spangler, and Lucius managerial
duties with respect to other employees, and that, in the eyes of the
employees in their respective - departments, they 'are supervisory
employees who are representative of the management 15 Since the poll
was openly conducted among the employees by these men during
working hours; throughout the various departments, and for no
stated purpose, it was evident, and we find, that the other employees
knew that the questioning as to their union sentiment was at the
instance of the respondent.
Nor is there merit in the contention that the conduct of the poll
was not coercive in actual effect. While the respondent refers to,
certain testimony, given by three or four employees, as showing that
the poll did not affect the employees' course of conduct, we do not
believe that the effect of such a canvass may be determined by ques-
tioning of employees by the employer's counsel at a public hearing;.
rather, it must be ascertained by an evaluation of the natural con-
sequences of the employer's activity.- An attempt such as was here
made to elicit from employees, by direct questioning, information
as to whether or not or in what manner, if at all, they have exercised
or intend to exercise their rights guaranteed in the Act, constitutes
in itself a threat that the employer's economic power and superior
position may be used to' the disadvantage of the individual employees,
disclosed to be active in or sympathetic to self-organization, and
thereby influences employees to substitute for their own choice what
they believe to be their employer's.'? Hence, apart from whether or
not the poll is accompanied by coercive or restraining statements-
and, as we find below,"' such statements were made during the poll
in this case-such employer activity necessarily intimidates, restrains,
and coerces employees in the exercise of those rights.
We find that the respondent, by conducting the above poll of
employees as to their union sentiments, interfered with, restrained,,
and coerced its employees in the exercise of their right to self-organi-
16 See Section III A , supra.
18 See Matter of Foote Brothers Gear and Machine Corporation and United Office and'
Professional Workers of America, No. 24, 14 N. L. R. B. 1045 and cases cited in footnotes 14
and 15 therein ; Matter of New Era Die Company and International Association of Machin-
ists. L°d7e <-1,3 (A. F. of L.), 19 N. L. R. B. 227 , and cases cited in footnote 9 therein.
See also Matter of The Yale