The Standard Transformer Co.

National Labor Relations Board - Board Decisions

Dec 28, 1951

97 N.L.R.B. 669 (N.L.R.B. 1951)

THE STANDARD TRANSFORMER COMPANY
Appendix
669
NOTICE TO ALL MEMBERS OF PAINTERS' DISTRICT COUNCIL NO. 6, BROTHERHOOD
OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, AFL, AND FURNI-
TUBE FINISHERS , LOCAL UNION 725, BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS OF AMERICA, AFL
Pursuant to the recommendations of a Trial Examiner 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 restrain or coerce employees of THE HIGBEE COMPANY,
Cleveland, Ohio, in the exercise of their right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities, as guaranteed to them
by Section 7 of the Act.
PAINTERS' DISTRICT COUNCIL No. 6,
BROTHERHOOD OF PAINTERS, DECORATORS
AND PAPERHANGERS OF AMERICA, AFL,
By -----------------------------------------
(Representative) (Title)
FURNITURE FINISHERS, LOCAL UNION 725,
BROTHERHOOD OF PAINTERS , DECORATORS
AND PAPERHANGERS OF AMERICA, AFL,
By -----------------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
THE STANDARD TRANSFORMER COMPANY and INTERNATIONAL UNION
OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO. Case No. 8-CA-
397. December 28, 1951
Decision and Order
On June 25, 1951, Trial Examiner Sydney S. Asher, Jr., issued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
copy of the Intermediate Report attached hereto. The Trial Exam-
iner also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
dismissal of those allegations. Thereafter the Respondent and the
97 NLRB No. 107.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel filed exceptions and supporting briefs, and The
Standard Transformer Workers, Inc., referred to in the Intermediate
Report as the Independent, filed exceptions.,,
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and adopts the findings,
conclusions, and recommendations of the Trial Examiner with a
modification in the recommended affirmative action to be taken by
the Respondent.
We agree with the Trial Examiner that the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (5) of the Act by refusing on November 2, 1950, and at
all times thereafter, to bargain collectively with International Union
of Electrical, Radio & Machine Workers, CIO, as the exclusive rep-
resentative of its employees in the appropriate unit .2
We do not adopt the Trial Examiner's recommended order to the
extent that it orders the Respondent to reimburse its employees for
any dues deducted from their wages pursuant to the checkoff provision
of the Respondent's contract with The Standard Transformer Workers,
Inc., dated June 6, 1950. There is no evidence in the record that the
Respondent enforced an involuntary checkoff, or otherwise unlawfully
coerced its employees into paying dues.3 We therefore do not order
reimbursement to the employees of dues deducted under the checkoff
provision of the illegal contract.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Standard
Transformer Company, its officers, agents, successors , and assigns,
shall :
' The Respondent has requested oral argument . In our opinion the record , the excep-
tions, and briefs fully present the issues and the positions of the parties . Accordingly,
this request is denied.
2N. L R. B. v. A. J. Tower Company, 329 U . S. 324; N. L. R. B. v Capitol Greyhound
Lines et al., 140 F. 2d 754 (C . A. 6), certiorari denied 322 U. S. 763: Semi-Steel Casting
Company of St. Louis v . N. L. R. $., 160 F. 2d 388 (C. A. 8), certiorari denied 322 U. S.
758; Aetna Fire Brick Company, 56 NLRB 849; Miehle Printing Press & Manufacturing
Co., 58 NLRB 1134 ; Ferriss-Lee Lumber & Mfg. Co., 71 NLRB 989; Highland Park Manu-
facturing Company, 84 NLRB 744 , enforcement denied on other grounds , 184 F. 2d 98
(C. A. 4), affirmed 341 U. S. 322 ; McMullen Leavens Company, 83 NLRB 948; Merrimac
Hat Corporation, 85 NLRB 329 ; International Shoe Co, 87 NLRB 479; General Armature &
Manufacturing Co., 89 NLRB 654. Contra : N. L. R. B. v. Sidran Sportswear, 181 F. 2d
671 (C. A. 5), denying enforcement of the Board 's order.
8 Peerless Quarries, Inc., 92 NLRB 1194 ; Salant & Salant, Inc., 88 NLRB 816.
THE STANDARD TRANSFORMER COMPANY 671
1. Cease and desist from :
(a) Interrogating its employees concerning how they intend to vote
in any election to be conducted by the National Labor Relations Board,
or concerning their union affiliations or activities.
(b) Threatening economic reprisal against its employees if they
assist, become members of, remain members of, or choose as their
bargaining representative International Union of Electrical, Radio &
Machine Workers, CIO, or any other labor organization, or fail to
remain members of, or to retain as their bargaining representative
The Standard Transformer Workers, Inc., or any other labor-organi-
zation.
(c) Offering its employees wage increases, additional vacations or
vacation pay, or any other economic benefits, if they refrain from
assisting, becoming members of, or remaining members of Interna-
tional Union of Electrical, Radio & Machine Workers, CIO, or any
other labor organization, and continue their membership in and activi-
ties on behalf of The Standard Transformer Workers, Inc., or any
other labor organization.
(d) Ordering or directing representatives of The Standard Trans-
former Workers, Inc., or any other labor organization, to negotiate
with the Respondent, or to call a meeting of its members, or otherwise
interfering with the administration of any labor organization.
(e) Ordering or directing its employees to attend any meeting of
The Standard Transformer Workers, Inc., or any other labor organi-
zation.
(f) Soliciting or encouraging the solicitation of its employees to
sign petitions favoring retention of The Standard Transformer Work-
ers, Inc., or any other labor organization, as their bargaining agent.
(g) Furnishing The Standard Transformer Workers, Inc., or any
other labor organization, with a meeting place, refreshments, or any
other material aid.
(h) Executing any contract or agreement with The Standard Trans-
former Workers, Inc., or any other labor organization, concerning
wages, hours, or other conditions of employment, after having ren-
dered illegal aid and assistance to the contracting labor organization,
or at a time when a valid question concerning the representation of its
employees is pending.
(i) Recognizing The Standard Transformer Workers, Inc., or any
successor labor organization, as the representative of any of its em-
ployees for the purpose of dealing with the Respondent concerning
grievances, labor disputes, wages, hours, or other conditions of em-
ployment, unless and until the said labor organization has been certi-
fied by the National Labor Relations Board.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(j) Performing or giving effect to its contract of June 6, 1950, with
The Standard Transformer Workers, Inc., or to any modification,
extension, supplement, or renewal thereof, or to any other contract,
agreement, or understanding entered into with the said labor organiza-
tion relating to grievances, labor disputes, wages, hours, or other con-
ditions of employment unless and until the said labor organization has
been certified by the National Labor Relations Board.
(k) Refusing to bargain collectively with International Union of
Electrical, Radio & Machine Workers, CIO, as the exclusive repre-
sentative of all its employees in the appropriate unit with respect to
wages, hours, or other conditions of employment.
(1) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Union of Electrical,
Radio & Machine Workers, CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any and all such
activities, except to the-extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from The Standard
Transformer Workers, Inc., or any successor labor organization, as
the representative of any of its employees for the purposes of dealing
with the Respondent concerning grievances, labor disputes, wages,
hours, or other conditions of. employment, unless and until the said
labor organization has been certified by the National Labor Relations
Board.
(b) Upon request, bargain collectively with International Union of
Electrical, Radio & Machine Workers, CIO, as the exclusive repre-
sentative of all production and maintenance employees of the Respon-
dent employed at its Warren, Ohio, plant, excluding office and clerical
employees, professional employees, guards, and supervisors as defined
in the Act, with respect to wages, hours, and other conditions of em-
ployment, and if an understanding is reached, embody such under-
standing in a signed agreement.
(c) Post immediately at its plant in Warren, Ohio, copies of the
attached notice marked "Appendix A".' Copies of said notice, to be
furnished by the Regional Director for the Eighth Region (Cleveland,
Ohio) shall, after being duly signed by the Respondent's representa-
4 In the event that this Order is enforced by a decree of a United States Court of Appeals
there shall be inserted before the words, "A Decision and Order," the words, "A Decree of
the United States Court of Appeals Enforcing."
THE STANDARD TRANSFORMER COMPANY 673
tive, be posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that the said notices are not altered, defaced, or covered by any other
material.
(d) Notify the said Regional Director, in writing, within ten (10)
days from the date of this Order, what steps the Respondent has
taken to comply therewith.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as
it alleges that the Respondent violated Section 3 (a) (1) and (2) of
the Act by paying a bonus to its employees in June 1951.
CHAIRMAN HERZOG and MEMBER STYLES took no part in the consid-
eration of the above Decision and Order.
Appendix A
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, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning how they
intend to vote in any election to be conducted by the National
Labor Relations Board, or concerning their union affiliations or
activities.
WE WILL NOT threaten economic reprisal against our employees
if they assist, become members of, remain members of, or choose
as their bargaining representative INTERNATIONAL UNION OF
ELECTRICAL, RADIO & MACHINE WORKERS, CIO, or any other labor
organization, or fail to remain members of, or to retain as their
bargaining representative THE STANDARD TRANSFORMER WORKERS,
INC., or any-other labor organization.
WE WILL NOT offer our employees wage increases, additional
vacations, or vacation pay, or any other economic benefits, if they
refrain from assisting, becoming members of, or remaining mem-
bers Of INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE
WORKERS, CIO, or any other labor organization, and continue
their membership in and activities on behalf of THE STANDARD
TRANSFORMER WORKERS, INC., or any other labor organization.
WE WILL NOT order or direct representatives of THE STANDARD
TRANSFORMER WORKERS, INC., or any other labor organization, to
negotiate with us, or to call a meeting of its members, or otherwise
interfere with the administration of any labor organization.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT order or direct our employees to attend any meet-
ing of THE STANDARD TRANSFORMER WORKERS, INC., or any other
labor organization.
WE WILL NOT solicit or encourage the solicitation of our em-
ployees to sign petitions favoring retention of THE STANDARD
TRANSFORMER WORKERS, INC., or any other labor organization, as
their bargaining agent.
WE WILL NOT furnish THE STANDARD TRANSFORMER WORKERS,
INC., or any other labor organization, with a meeting place, re-
freshments, or any other material aid.
WE WILL NOT execute any contract or agreement with THE
STANDARD TRANSFORMER WORKERS, INC., or any other labor organ-
ization, concerning wages, hours, or.other conditions of employ-
ment, after having rendered illegal aid and assistance to the
contracting labor organization, or at a time when a valid question
concerning the representation of our employees is pending.
WE WILL NOT recognize THE STANDARD TRANSFORMER WORKERS,
INC., or any successor labor organization, as the representative
of any of our employees for the purposes of dealing with us con-
cerning grievances, labor disputes, wages, hours, or other
conditions of employment, unless and until the said labor organ-
ization has been certified by the National Labor Relations Board.
WE WILL NOT perform or give effect to our contract of June 6,
1950, with THE STANDARD TRANSFORMER WORKERS, INC., or to any
modification, extension, supplement, or renewal thereof, or to any
other contract, agreement, or understanding entered into with the
said labor organization relating to grievances, labor disputes,
wages, hours, or other conditions of employment, unless and until
the said labor organization has been certified by the National
Labor Relations Board.
WE WILL NOT refuse to bargain collectively with INTERNATIONAL
UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, as the
exclusive representative of all our employees in the appropriate
unit with respect to wages, hours, or other conditions of employ-
ment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist INTERNATIONAL
UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to
the extent that such right may be affected by an agreement re-
THE STANDARD TRANSFORMER COMPANY 675
quiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
WE WILL withdraw and withhold all recognition from THE
STANDARD TRANSFORMER WORKERS, INC., or any successor labor
organization, as the representative of any of our employees for
the purposes of dealing with us concerning grievances, labor
disputes, wages, hours, or other conditions of employment, unless
and until the said labor organization has been certified by the'
National Labor Relations Board.
WE WILL bargain collectively, upon request, with INTERNA-
TIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, C10,
as the exclusive representative of all our employees in the bargain-
ing unit described herein with respect to wages, hours, or other
conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement. The bargain-
ing unit is :
All production and maintenance employees employed at
our Warren, Ohio, plant, excluding office and clerical em-
ployees, professional employees, guards, and supervisors as
defined in the National Labor Relations Act.
THE STANDARD TRANSFORMER COMPANY,
Employer.
By ------ -- ----- ------------- -----
( Representative
-
-Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
This case involves allegations that The Standard Transformer Company,
herein called the Respondent , unlawfully interfered with , restrained , and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Na-
tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, in
violation of Section 8 (a) (1) of the Act ; dominated , contributed to the sup-
port of, and interfered with the administration of The Standard Transformer
Workers, Inc., herein called the Independent, in violation of Section 8 (a) (2)
of the Act; and failed and refused to bargain collectively with International
Union of Electrical, Radio & Machine Workers, CIO, the charging party, herein
called the IUE , as the exclusive representative of its employees in an appropriate
bargaining unit, in violation of Section 8 (a) (5) of the Act. The issues, framed
by a complaint and answer duly filed ,' were fully litigated at a hearing before
I Both the Respondent and the Independent were served with copies of the charge,
amended charge , complaint , and notice of hearing . The Respondent filed an answer,
the Independent did not.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me in Warren, Ohio, on March 6 and 7, 1951. Counsel for the General Counsel
of the National Labor Relations Board, herein called the General Counsel, counsel
for the Respondent, and representatives of the IUE participated fully in the
hearing.- The Independent was not represented at the hearing. At the close
of the session of March 7, on motion of the General CounseI,,the hearing was
continued Indefinitely. Thereafter, on March 15, 1951, an order was issued
formally closing the hearing. Briefs have been received from the Respondent,
the General Counsel, and the Independent, and have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The Standard Transformer Company is an Ohio corporation, with its princi-
pal office and place of business in Warren, Ohio. It is engaged in the manu-
facture, sale, and distribution of electrical transformers. In the course and
.conduct of its business operations, the Respondent annually purchases raw
materials exceeding $1,600,000 in value, of which more than 30 percent is shipped
to the Respondent's plant in Warren, Ohio, from points outside the State of
Ohio. The finished products of the Respondent's Warren, Ohio, plant amount
to more than $3,000,000 in value per annum, of which in excess of 95 percent
is shipped from its Warren, Ohio, plant to points outside the State of Ohio.
In view of the above facts, I find that the Respondent is engaged in com-
merce within the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED 8
International Union of Electrical, Radio & Machine Workers, CIO, and The
Standard Transformer Workers, Inc., are labor organizations within the mean-
ing of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events prior to the Board election
On June 11, 1948, the Respondent entered into a collective bargaining agree-
ment with the Independent, governing the wages, hours, and conditions of
employment of the Respondent's employees. This agreement was to continue
in effect for 1 year, with provision for automatic renewal for a second year,
in the absence of the 30 days' written notice by either party that it desired to
cancel or amend the contract. On May 26, 1949, the parties executed an "ad-
dendum," which provided that the 1948 contract should be continued for the
second year, with certain changes not here material. In January 1950, the
Respondent laid off between 20 and 25 employees, thus reducing its-working
force to about 100.
During May, 1950, the parties met a number of times to negotiate a new con-
tract. On these occasions, the Respondent was represented either by W. F.
Parker, its president, or by Oscar L. Bowden, its superintendent, or by both.
The Independent requested a wage increase of 15 cents an hour, and a continua-
tion of the then existing 45-hour week. Parker and Bowden pointed out that
2 The findings of fact contained In this section are based upon the allegations of the
complaint and the admissions of the answer.
3 The findings of fact contained in this section are based upon the allegations of the
complaint and the admissions of the answer.
THE STANDARD TRANSFORMER COMPANY 677
business conditions were unfavorable , and that the Respondent ' s plant was
overstaffed. They explained that if the Respondent granted a wage increase
of 15 cents an hour, it would be necessary to lay off 18 to 28 employees, which
they were reluctant to do. Furthermore, they stated that the hourly cost of
labor was increased by about 5 percent, because overtime premium rates required
the Respondent to pay 471/2 hours' pay for 45 hours' work. They also took the
position that if wages were increased 5 percent or more, the Respondent would
be forced to cut its hours to 40 hours per week. Finally, Bowden suggested
that the present hours and pay be continued for a period of 90 days, in which
case no employees would be laid off during that period. The Independent did
not agree to this proposal'
In mid-May, Bowden called into his office certain employees who were not
members of the Independent's bargaining committee and inquired if they
thought the employees would accept a wage increase of 15 cents an hour. Ac-
cording to Bowden, this was "my method of getting a consensus of opinion of
the feeling of the men that have made that Company."
On May 31, 1950, the IUE wrote to Parker, requesting recognition as the,
exclusive bargaining agent of the Respondent's employees' This letter was,
received about June 1, 1950. So far as the record shows, it was never answered.
Early in June 1950, several employees who were members of the Independent's
negotiating committee told Bowden that they would not attend further negotiat-
ing meetings because the employees had voted that they should not do so..
Bowden, accompanied by a witness, then approached these employees and stated :
"I, as superintendent of the Standard Transformer Company, wish to see you_
in my office immediately." In accordance with this order, the employees gathered
in Bowden's office and discussed the ability of the Respondent to grant a wage.
increase in the face of the then existing business conditions.
On June 5, Bowden called to his office employee Richard Marsh, vice president
of the Independent,' and employee Horace Sewell, chairman of the board of-
trustees of the Independent! Bowden explained that business was slack and
that the Respondent therefore found itself compelled to lay off some employees,
He also stated that the Respondent was willing to grant a wage increase of
15 cents an hour, if the Independent would agree to reduce the workweek from_
45 to 40 hours. He then told Marsh and Sewell that the Independent would
* There is some evidence that Bowden also offered a wage increase of 5 percent. How-
ever , I deem it unnecessary to make a finding in this respect.
I It is not clear on what date the IUE commenced to organize the Respondent's employ-
ees. Employee Richard Marsh testified that he received a telephone call from a rep-
resentative of the IUE on May 29 or 30 with reference to a demand by the IUE for
bargaining rights, and that he was approached on June 5 by some of his fellow employees
with a request that he sign an authorization petition in favor of the IUE
6A few days prior to June 5, the president of the Independent had resigned , leaving-
Marsh the highest ranking official in the Independent. On June 5, Marsh tried to band.
his resignation to the Independent 's secretary and to the chairman of its board of trustees.
Both officials of the Independent refused to accept Marsh ' s resignation . Marsh finally
placed the resignation in the pocket of the chairman of the board of trustees. Later
that day, when Bowden requested Marsh to come into his office , Marsh explained that
he had attempted to resign his position as vice president of the Independent. Bowden
replied : "Well , that is all right , just come in anyway."
'The finding that Bowden called only Marsh and Sewell into his office is based upon
Marsh's credited testimony . Although Sewell testified , his testimony did not cover the
conference of June 5. Bowden , called by the General Counsel as an adverse witness,
testified that, on this occasion, he "only called those people who were represented to me
as being on the negotiating committee and with whom I had had previous meetings," and
that they numbered about 9 or 10 employees . It appears likely that Bowden confused
this particular incident with prior negotiations with the Independent 's entire negotiating-
committee . Bowden's testimony in this respect is therefore rejected.
986209-52-vol. 97-44
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to have a membership meeting that afternoon, after working hours, to
vote on whether or not it would accept the Respondent's offer.' Marsh pointed
out that there was not sufficient time to reserve a hall for the meeting. Bowden
then reserved a room for the Independent's meeting at the Warner Hotel. In
addition, in accordance with customary procedure, Bowden arranged for the
Respondent to supply Marsh and Sewell with notices of the meeting. Marsh
and Sewell later posted these notices at the plant.
In accordance with these arrangements, the. Independent held a membership
meeting at the Warner Hotel after working hours that afternoon. At the hour
scheduled for the meeting, a quorum was not present.° Marsh reported to
Bowden by telephone that a few additional members were needed to secure a
quorum, that those present were hungry and impatient, and that it was difficult
to keep them there. He urged Bowden to assist in getting certain named
absent members to attend the meeting. Bowden agreed to do so. Bowden
then conveyed this information to some of the foremen, who in turn requested
the absent members to attend. Bowden also ordered refreshments to be served
to those members who were present at the meeting. Finally, additional mem-
bers appeared at the meeting, and the total reached a number sufficient to
permit the Independent to act. Bowden then telephoned to Marsh and inquired
if the Independent had enough members present at the meeting . Marsh replied
that a quorum was now present. The members of the Independent then pro-
ceeded to discuss and adopt the Respondent's contract terms. After the meeting
adjourned, Marsh reported the action of the membership to Bowden by telephone.
The cost of the meeting room and the refreshments was borne by the Respondent.
On the same day, June 5, the Respondent laid off 28 nonsupervisory employees.10
On the morning of June 6, Bowden summoned the officers of the Independent
to his office and presented to them, for their signatures, a contract embody-
ing the terms agreed to. Among those present were Bowden, his secretary,
Marabelle Sutton, Sewell, Betty McKelvey, secretary of the Independent, Arthur
Busefink, acting president of the Independent, and Steve Chesnak, a member
of the Independent's negotiating committee. As secretary of the Independent,
McKelvey was asked to sign the contract. Chesnak stated that he thought
that McKelvey should know that she was not required to sign if she did not
care to do so. McKelvey then made a motion to adjourn the meeting. This
motion was seconded by Chesnak. McKelvey and Chesnak started to leave the
room, but Arthur Busefink said : "Just a minute, there has to be a majority to vote
on it before a meeting can be adjourned." Bowden then stated : "That's all
right, let them go." McKelvey and Chesnak left the room and Sewell then
called to order a meeting of the remaining trustees of the Independent. Bowden
and Sutton remained in the room during the course of this meeting. While
it does not appear that any formal action was taken removing McKelvey from
8 The finding that Bowden Informed Marsh and Sewell that he wanted the Independent
to have a meeting that evening is based upon the credited testimony of Marsh. Although
Sewell testified, he did not testify with respect to this particular incident. Bowden
denied that he had told Marsh and Sewell that the Independent had to have a meeting
that afternoon . His denial in this respect is not credited.
° There was some evidence that employees sympathetic to the IUE congregated in the
neighborhood of the entrance to the Warner Hotel and attempted to intimidate members of
the Independent from attending the meeting. As the complaint before me does not allege
that any unfair labor practices were committed by the IUD, I deem such evidence
Inapposite.
10 The General Counsel does not contend that this layoff was discriminatory or otherwise
violative of the Act.
THE STANDARD TRANSFORMER COMPANY 679
the office of secretary,' Howard Stantial was then elected secretary of the
Independent, and affixed his signature to the contract in that capacity. The
other representatives of the Respondent and the Independent also signed.
On the same day, June 6, the IUE filed a petition with the Board, requesting
certification as the representative of the employees in the appropriate unit
described hereafter." On the following day, June 7, the Regional Director
notified the Respondent of the filing of this petition.
On June 7, the negotiating committee of the IUE " asked Bowden if they could
meet with Parker. Bowden replied that Parker would not meet with any group
representing the IUE, but would meet with them as employees. The IUB
negotiating committee then conferred with Parker in his office. They asked
Parker to negotiate with the IUE, and requested reinstatement of the employees
who had been laid off on June 5, with reimbursement for loss of pay. Parker
replied that he could not grant recognition to the IUE.
In connection with the representation petition filed by the IUE, a conference
of all interested parties was scheduled to be held in mid -June, probably around
June 15. After working hours on the preceding evening, Bowden called a meet-
ing of the trustees of the Independent and certain foremen at the Buena Vista
Restaurant. He distributed a number of papers bearing the following wording:
PETITION
I, the undersigned , desire to be represented by the Standard Transformer
Workers , Inc., and no other organization in this matter of collective bar-
gaining with the Standard Transformer Company.
Dated June 15, 1950.
Bowden instructed Robert George, a clerk in his office, to mimeograph addi-
tional copies, and informed those present that he wanted to have as many of
these petitions signed as possible. He then read a list of names of employees
to be contacted and asked who knew them and would be willing to request
them to sign.14 It was then arranged for certain of those present to contact
certain employees that night and return to the Buena Vista. Accordingly, those
present took copies of the petitions to the homes of several employees that night.
They instructed the employees to sign or not to sign, as they chose, and then
to place the petitions in sealed envelopes and return them. When this had been
done, those who were originally gathered at the Buena Vista returned there
for another session. Bowden instructed certain of the employees present to
meet him the next morning at the Doughnut Hole. Others were told to deliver
signed or unsigned petitions to Bowden at Pond's Clothing Store during lunch
hour the following day. In addition, Bowden instructed Sewell to work for only
an hour the next day and then check out. On the following day, in accordance
with these arrangements, certain employees met Bowden at the Doughnut Hole.
Among these was Sewell who, according to instructions, had worked for an hour
and checked out. He was later paid for the entire day's Again names of em-
11 Sewell testified that when McKelvey left the room It was "assumed" that she was no
longer secretary of the Independent.
"Case No. 8-RC-911.
18 This committee included Chesnak who, until the previous day, had acted as a member of
the Independent's negotiating committee. As previously related, Chesnak had walked out
of the meeting between the Respondent and the Independent on June 6.
14 According to Sewell, these were "people that we thought we could talk to . . .
people that we thought that we could best approach on this matter."
15 The finding with respect to Bowden's instructions to Sewell to work for only an hour is
based upon Sewell's credited testimony. Bowden did not deny giving Sewell these instruc-
tions, but testified that he could not recall doing so.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees were discussed and assigned to those present to visit for the purpose of
obtaining signatures to the petitions. They were instructed to bring the petitions-
to Pond's Clothing Store at noon.
Meanwhile, Marsh had gone to work that morning and obtained a supply
of blank petitions from George. Marsh distributed them to other trustees of
the Independent at the plant, and personally solicited approximately five em-
ployees to sign petitions in the plant during working hours.10 In accordance
with previous arrangements, the various, individuals who had obtained signatures
on petitions brought them to Pond's Clothing Store at noon and delivered them
to Bowden. Most of these petitions were in sealed envelopes. The envelopes-
were opened and the petitions separated into two piles-one pile containing
the signed petitions and the other containing the unsigned. Bowden and some
of the trustees of the Independent counted the number of petitions in each-
pile.17 The petitions were then delivered by Busefink and Sewell to the
attorney who represented the Independent, apparently for use in connection
with the conference held later that day concerning the IUE's petition.
B. Interference, restraint, and coercion
The complaint (as amended at the hearing) alleges, the answer (as amended
at the hearing) admits, and I find, that the Respondent, in June 1950:
a. Through its supervisors Joe Smelko, Raymond Spurk, Ray Dell, and Caryl
Griswold, threatened and warned its employees to refrain from assisting,
becoming members of, or remaining members of the IUE.
b. Through its supervisors, Brad Ward and Joe Smelko, interrogated em-
ployees concerning how they intended to vote in the election to be conducted
by the National Labor Relations Board, and concerning their union affiliations
and activities.
c. Through its supervisors, Smelko, Spurk, Dell, and Griswold, warned and
,threatened its employees that many employees would be laid off, others reclass-
ified, the plant operations curtailed and possibly the entire plant shut down,
if the employees chose the IUE as their bargaining representative.
d. Through its supervisors, Ward, Smelko, Spurk, Dell, and Griswold, offered
its employees wage increases and other benefits if they would refrain from
assisting, becoming members of, or remaining members of the IUE and would
continue their membership and activities on behalf of the Independent.
It is now well settled that such interrogation,' threats of economic reprisal
for union activities,18 and offers of economic benefits to induce employees to'
refrain from joining one union and continuing their membership in another,
constitute interference, restraint, and coercion of employees violative of Sec-
tion 8 (a) (1) of the Act. It is so found.
C. Domination, support of, and interference with the Independent
1. Admitted allegations of the complaint
The Complaint (as amended at the hearing) alleges, the answer (as amended
at the hearing) admits, and I find, that the Respondent:
16 The finding with respect to Marsh's activities that morning are based on Marsh's
credited testimony. Bowden testified in this respect as follows : "As far as having them
signed on company time, I have no recollection of ever permitting such activity or either
authorizing such activity under any conditions."
11 There was some evidence that Bowden checked the signatures on the petitions, against a
list in his possession. I deem it unnecessary, however, to make a finding in this respect.
Is Standard-Coosa-Thatcher Company, 85 NLRB 1358.
19 A, Kravitz & Company, 89 NLRB 1415.
THE STANDARD TRANSFORMER COMPANY 681
a. On or about June 1, 1950, through its supervisor, Oscar L. Bowden, ordered
representatives of the Independent to negotiate with the Respondent.
b. On or about June 5, 1950, through its supervisor, Bowden, notified and
ordered its employees to attend a meeting of the Independent, and at the same
time ordered representatives of the Independent to call a meeting of its members.
c. On or about June 15, 1950, through its agent, R T. Beckler,20 and its super-
visor Bowden, circulated petitions among its employees in favor of the Independ•
,ent, and encouraged and solicited its employees to sign these petitions for the
purpose of encouraging membership in the Independent and discouraging mem-
bership in the IUE.
d. In June 1950, through its supervisors, Smelko and Spark, offered its
employees additional vacations and vacation pay if they would retain the
Independent as their bargaining agent.
e. In June 1950, through its supervisors, Smelko and Spurk, promised employees
,benefits, in that the plant would be kept open if the employees retained the
Independent as their bargaining agent, and threatened that the plant would be
closed if the employees selected the IUE as their bargaining representative.
f. In June 1950, through its supervisor, Bowden, solicited, permitted, and
,encouraged the solicitation of its employees, on company time and premises, to
sign petitions favoring retention of the Independent as their bargaining agent.
g. On or about June 6, 1950, paid for and furnished the Independent with a
meeting place and refreshments at said meeting of the Independent.
The General Counsel does not maintain that the facts warrant a finding that
the Respondent completely dominated the Independent, but merely contends that
the admitted facts prove that the Respondent rendered illegal aid and assistance
to the Independent, and interfered with its administration. It is clear that the
admitted conduct of the Respondent constitutes illegal aid and assistance to the
Independent, as well as interference with its administration, and that the
Respondent thereby violated Section 8 (a) (2) of the Act. I so find. It is
further found that this conduct also constitutes interference, restraint, and
coercion of employees, proscribed by Section 8 (a) (1) of the Act n
2. The wage increase
The complaint alleges, and the General Counsel maintains, that the
Respondent offered its employees a wage increase in June 1950, if they would
keep the Independent as their bargaining agent, thus contributing additional
aid and support to the Independent, in violation of Section 8 (a) (1) and (2) of
the Act. The Respondent contends that the wage increase was not offered to
the employees "if they would keep the Independent as their bargaining repre-
sentative," and moved to dismiss the complaint in this respect. Ruling on this
motion was reserved. It is now denied.
It will be recalled that, during the negotiations for a new contract in May
1950, the Independent demanded a wage increase of 15 cents an hour and continu-
ation of the then existing 48-hour week. On June 5, after having received notice
• of the IUE's representation claim, the Respondent offered to execute a contract
with the Independent providing for the requested 15 cents an hour wage increase,
if the workweek was reduced from 48 to 40 hours. The issue is whether such
20 The complaint alleges that Beckler is an agent and supervisor of the Respondent. The
Respondent admits that Beckler is its agent but denies that he is a supervisor.
n The Respondent's brief admits that "sufficient admissions of Section 8 (a) (1) and
Section 8 (a) (2) violations have been made to warrant an order in those regards." The
Independent's brief admits that "the admissions of the Company support an order requiring
it to cease and desist from assisting the Independent , or any other labor organization."
[Emphasis in original.]I
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct, in the face of the rival claim of the IUE, constitutes illegal assistance
to and support of the Independent'*
The granting of a wage increase during a union's organizational campaign is
not per se violative of the Act. As the Board has said, "What is unlawful under
the Act is the employer's granting or announcing such benefits (although pre-
viously determined upon bona fide) for the purpose of causing the employees to
accept or reject a representative for collective bargaining."" (Emphasis in
original.) It is significant that, so far as the record shows, the wage increase
here in question was not decided upon until after the Respondent was aware of
the representation claim of the IUE. In view of this fact, and in view of other
contemporaneous illegal aid and assistance rendered by the Respondent to the
Independent, I am convinced, and find, that the wage increase of June 6, 1950, was
granted for the purpose of influencing the employees to retain the Independent
as their bargaining representative, and to reject the IUE. As such, it constituted
illegal aid and assistance to the Independent violative of Section 8 (a) (2) of
the Act. Moreover, such conduct constituted further interference, restraint, and
coercion of the employees, in violation of Section 8 (a) (1) of the Act!'
3. Validity of the contract of June 6
The General Counsel contends that the contract of June 6 is invalid, because it
was signed at a time when the Respondent had been notified of the IUE's claim
for recognition. Conversely, the Respondent and the Independent maintain that
the contract is valid because, at the time the contract was signed, the Inde-
pendent represented a majority of the employees in the appropriate unit, and the
IUE had not filed a representation petition with the Board.
With respect to the Independent's majority on June 6, the record indicates that
on June 5, of a working force of approximately 70 employees in the appropriate
unit after the June 5 layoff, or 98 employees before the layoff, between 58 and 61
employees had their dues to the Independent checked off, under the terms of the
then existing contract between the Respondent and the Independent. On this
date, however, the IUE had already commenced to organize the employees, and
it is likely that some employees whose dues were being checked off to the Inde-
pendent had, at that time, designated the IUE as their bargaining representative u
In addition, the contract under which the dues were being checked off was about
to expire. Moreover, in view of the illegal aid and assistance rendered to the
Independent on June 5, it cannot be said that the Independent's majority on
June 6, if indeed it then had a majority, was uncoerced. In any event, for reasons
stated hereafter, the question of whether or not the Independent actually repre-
sented a numerical majority of the employees in the appropriate unit on June 6
is immaterial. I therefore make no finding with respect thereto.
18 The Respondent's brief points out that "the wage increase resulted in a loss of earn-
ings to the employees." It is true that, due to the shortening of the workweek, the
actual take-home pay of the employees after the wage increase was less than it had been
previously. Notwithstanding this fact, however, the increase in hourly rate must be
looked upon as a wage increase , as it resulted in greater pay for each hour worked.
sa Hudson Hosiery Company, 72 NLRB 1434, 1437.
24 Compare Pacific Plastic & Mfg. Co., Inc., 68 NLRB 52, 77; Wire Rope Corporation of
America, Inc., 62 NLRB 380, 381-2; and Federal-Mogul Corporation, Federal-Mogul Service
Division, 76 NLRB 17.
24 For example, McKelvey, who was secretary of the Independent, had solicited another
employee to join the IUE on June 5; Chesnak, who was a member of the Independent's
negotiating committee, attended a meeting of the IUE on June 5, and was a member of
the IUE's negotiating committee on June 7.
THE STANDARD TRANSFORMER COMPANY 683
There are two reasons why the contract of June 6 must be considered invalid.
In the first place, at the time of the execution of the contract, the Respondent was
well aware of the IUE's representation claim. This claim, made while bargain-
ing negotiations were in progress between the Respondent and the Independent,
created a question concerning representation which could best have been resolved
by resort to the machinery of the Board-machinery which any of the parties
could have invoked and which the IUE did invoke by filing its petition 8 days
after it made its request for recognition. Under these circumstances, the Re-
spondent should not have resolved the question of representation in favor of
either of the competing organizations R° For the Respondent to recognize and
bargain with the Independent on the basis of a representative status depending
merely on the number of employees whose dues were currently being checked
off under a contract which was about to expire, in disregard of the IUE's claim,
was violative of the Act27
In the second place, it should be recalled that on June 5, the day before the
contract was signed, the Respondent interfered with the Independent's adminis-
tration and contributed illegal aid and support to the Independent. This as-
sistance, even without the existence of the question concerning representation
referred to above, rendered the Respondent's subsequent recognition of, and
contract with, the Independent unlawful. The Respondent could not have been
unaware of the advantage given the Independent by signing a contract with that
organization 28 It is accordingly found that, by negotiating and entering into
a contract with the Independent on June 6, 1950, during the pendency of the
IUE's claim for recognition, and at a time when the Respondent was rendering
unlawful aid and assistance to the Independent, the Respondent interfered with,
restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act.
It is further found that, by this conduct, the Respondent contributed additional
illegal aid and assistance to the Independent, in violation of Section 8 (a) (2)
of the Act.R9
26 The IUE's representation claim, followed as it was within 10 days by the filing of a
petition , was sufficient to create a question concerning representation and to prevent the
subsequent contract between the Respondent and the Independent from being a bar to
a representation proceeding . General Elects ac X-Ray Corporation, 67 NLRB 997 ; Fifteenth
Annual Report of the National Labor Relations Board ( 1950) 70.
27 I. Spiewak & Sons, 71 NLRB 770, 772 , enforced as modified with respect to other
matters, 179 F. 2d 795 ( C. A. 3), rehearing denied March 11, 1950 ; and International
Harvester Company ( Canton Works ), 87 NLRB 1123. The cases of N. L. R. B. v. The
Standard Steel Spring Company, 180 F. 2d 692 ( C. A. 6), and William Penn Broadcasting
Company, 93 NLRB 1104 , cited by the Respondent , are distinguishable from the instant
case on their facts. In the former , a period of several months elapsed between the filing
of the petition and the signing of the contract , during which all the employees sought
in the petition joined the contracting union. In the latter, the General Counsel failed
to prove that the unit sought by the petitioning union was appropriate, and hence that a
valid question concerning representation existed. I note in passing that the Board has
recently , upon reconsideration , vacated part of its former decision and remanded the
case for further hearing. 94 NLRB 1175. ,
28 I. Spiewak & Sons, supra , at page 771 ; Elastic Stop Nut Corporation, v. N. L. R. B.,
142 F. 2d 371, 379-80 (C. A. 8), certiorari denied, 323 U. S. 722.
28 The Independent 's brief states that "most of the Company conduct under attack
occurred after the contract was signed" (emphasis in original ) and argues that such
conduct should therefore not affect the contract 's validity. However, in holding that
the contract was invalid , I have considered only those acts of illegal assistance and'
interference which took place prior to the contract ' s execution. -
The Independent also argues that "there is no showing that the Independent requested
that the Company assist it in the respects complained of " Such a showing, however, Is
not necessary to a finding that the Respondent violated Section 8 ( a) (1) and (2) of
the Act.
1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The bonus
On May 26, 1949, during negotiations for the addendum to the 1948 contract
referred to above, Parker wrote to the Independent stating, in part, that business
conditions were unsettled , and adding :
If, at the close of the current year , which is the fiscal year of the Company,
our net returns warrant the payment of a bonus, each and every member
of the Company will receive added compensation , but we can not enter into
a contract which has a bonus compensation clause, due to the conditions set
forth above.
So far as the record shows, there was no further mention of a bonus until
after the contract of June 6, 1950 , had been signed . On June 7, 1950 , as pre-
viously related , the negotiating committee of the IUE conferred with Parker.
During that conference , one of the spokesmen for the IUE asked Parker What
had happened to the bonus which he had promised to pay in May of the previous
year. Parker replied that he would look into the matter. Two days later, on
June 9, 1950 , bonus checks were distributed to the employees , accompanied by
the following statement :
JUNE 9, 1950.
To all Members of The Standard Transformer Company:
Your bonus check is attached , which conforms to the writer 's letter of
May 26, 1949, from which we quote : [here is set forth the portion of the
letter of May 26, 1949 , quoted above.] This letter was called to the writer's
attention a few days ago.
The check covers the net amount after Social Security , federal and city
taxes have been deducted and held by the Company in compliance with the
laws.
The delay in paying this is due to an oversight on the part of the writer,
which I regret.
Yours respectfully,
W. F. PARSER.
WFP/mh.
The complaint alleges, and the General Counsel maintains , that this bonus
was paid to the employees for the purpose of inducing them to vote against the
IUE and for the Independent in the forthcoming Board election , and thus con-
stituted additional illegal assistance to the Independent in violation of Section
8 (a) (2) of the Act. The Respondent maintains that the record fails to sub-
stantiate this allegation of the complaint , and moved that it be dismissed.
Ruling on the motion was reserved.
I am not unmindful of the fact that this bonus was paid to the employees
while a representation petition was pending , seeking an election to determine
whether the employees desired to be represented for purposes of collective bar-
gaining by the IUE, the Independent , or neither . Nevertheless , the bonus was
promised the employees in 1949, through their then bargaining agent, the In-
dependent . At that time , so far as the record shows , the Respondent had not
rendered any illegal aid or assistance to the Independent . In addition , the bonus
was not actually paid until after representatives of the IUE reminded Parker
of his previous promise. Furthermore , the statement accompanying the bonus
checks does not even mention the Independent . Moreover , the undenied testi-
mony of Marsh indicates that the bonus was paid not only to employees then on
the payroll , but even to those who had been laid off as early as January 1950-
former employees whose eligibility to vote in the pending election was doubtful.
Under these circumstances, I seriously doubt whether the payment of the bonus
THE STANDARD TRANSFORMER COMPANY 685
could reasonably have been calculated to influence the employees to vote for the
Independent. As I am convinced that the General Counsel has failed to prove
that the granting of the bonus constituted illegal aid or assistance to the Inde-
pendent, I will recommend that the complaint be dismissed in this respect.
D. The refusal to bargain
1. The appropriate unit
The complaint alleges, the answer admits; and I find, that all production and
maintenance employees of the Respondent employed at its Warren, Ohio, plant,
excluding • office and clerical employees, professional employees, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of the Act80
2. The IUE's majority status
a, The Board election and following events
On June 22, 1950, in connection with the representation petition previously
filed by the IUE, the Respondent, the IUE, and the Independent entered into an
"Agreement for Consent Election," which was duly approved by the Acting
Regional Director. It contained, among others, the following provisions :
1. ELECTION.--Such election shall be held in accordance with the National
Labor Relations Act, the Board's Rules and Regulations, and the customary
procedures and policies of the Board, provided that the determination of
the Regional Director shall be final and binding upon any question, including
questions as to the eligibility of voters, raised by any party hereto relatipg
in any manner to the election.
* * * * *
6. OBJECTIONS, CHALLENGES, REPORTS THEREON.- . . . If the challenges
are determinative of the results of the election, the Regional Director shall
investigate the challenges and issue a report thereon.
Accordingly, the Regional Director conducted an election on June 29, 1950.
The IUE received 34 votes, the Independent 35 votes, 1 vote was cast against both
participating labor organizations, 1 ballot was void, and 17 ballots were chal-
lenged. The 17 individuals whose ballots were challenged were employees who
had been laid off on June 5, 1950, as described above.
As the challenges were determinative of the results of the election, the Regional
Director, on October 19, 1950, issued and served on the parties his "Report on
Objections and Challenged Ballots," in which he found that the employees in
question had a sufficient interest to participate in the election, and accordingly
overruled the challenges and directed that their ballots be opened and counted.
On October 23 the Respondent filed with the Regional Director exceptions to his
report on objections and challenged ballots, and a motion for a formal hearing on
the challenged ballots 31 In its exceptions the Respondent, among other things,
contended that the Regional Director's findings were contrary to law, because he
had not afforded the Respondent an opportunity to adduce all the facts in a
formal hearing. Copies of the Respondent's exceptions and motion were also
25 This is substantially the same unit described In the 1948 and 1950 contracts between
the Respondent and the Independent.
31 The motion read : "The employer moves that the Regional Director schedule a formal
hearing to secure the facts which will determine the eligibility of said laid-off employees
to vote in the election,"
`686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'filed with the Board in Washington, D. C. On the following day, October 24,
the Board, acting through a member of its staff, wrote to the Respondent,
acknowledging receipt of its exceptions and motion, and stating that objections
to an election conducted pursuant to a consent election agreement should be filed
with the Regional Director. On October 25, 1950, the Regional Director issued
and served on the parties a revised tally of ballots, which showed that the IUE
had received 51 votes, the Independent 35 votes, that 1 void ballot had been cast,
and that 1 ballot had been cast against both participating unions. On October
30, the Regional Director wrote to the Respondent, acknowleding receipt of its
exceptions and motion, and stating that the Board had also forwarded additional
copies of the exceptions and motion to him "for appropriate action." On
October 31, the Regional Director, apparently basing his action upon the revised
tally of ballots, certified the IUE as the bargaining representative of the
employees in the appropriate unit described above. The IUE, then, on November
1, renewed its demand for recognition. This demand was refused by the Re-
spondent on November 2, on the ground that "any certification of [the IUE]
as the representative of our employees is invalid and contrary to law unless a
formal hearing is first held on the eligibility of the 17 challengees."
b. The issues and contentions of the parties
The Respondent contends that the question of eligibility of the 17 voters whose
ballots were challenged involved a determination of fact, thus necessitating
credibility findings, that the Regional Director based his decision upon an ex
parte investigation, and that the certification of the IUE was a nullity, because
the Regional Director failed to grant the Respondent a formal hearing upon
request, and thus deprived it of an opportunity to be heard, to examine and
cross-examine witnesses, and otherwise to introduce evidence on its own behalf to
impeach or contradict the facts found by the Regional Director .12 The Inde-
pendent concurs in the Respondent's position. The General Counsel admits that
the Regional Director's findings of fact were based upon an ex parte investigation,
but maintains that the Regional Director acted within his rights in conducting
an ex parte investigation, and refusing to grant the Respondent a formal hearing.
In view of the fact that the Regional Director received the Respondent's excep-
tions and motion for a formal hearing and thereafter certified the IUE, it must
be deemed that the Regional Director denied the Respondent's motion for a
formal hearing. Moreover, as the eligibility of the 17 challengees depended upon
a determination as to whether their layoff had been temporary or permanent in
nature, the Regional Director was presented with an issue of fact for his determi-
nation. Thus, the issue here is a very narrow one, namely, whether under these
circumstances it was error for the Regional Director to make findings of fact
based entirely upon his ex parte investigation, and to refuse to conduct a formal
hearing.
As part of his case-in-chief, the General, Counsel offered evidence tending to
prove that the 17,challengees were only temporarily laid off, had a reasonable
expectancy of reemployment, and consequently were eligible to vote in the elec-
tion . Upon objection by the Respondent, this evidence was excluded, and the
General Counsel's offer of proof was rejected. The General Counsel maintains
that this ruling was erroneous, arguing that any possible defect resulting from
the Regional Director's failure to provide the Respondent with a formal hearing
82 The Respondent's answer herein contains an allegation that the findings of fact
made by the Regional Director were erroneous. During the course of the hearing, how-
ever, counsel for the Respondent admitted that this allegation was surplusage.
THE STANDARD TRANSFORMER -COMPANY 687
on the challenges would be cured if he were allowed to litigate the issue of eligi-
bility anew in a hearing before the Trial Examiner. This contention lacks merit.
The consent election agreement provides, in effect, that the Regional Director
-shall be the sole judge of the eligibility of voters. A trial de novo before a Trial
Examiner would not satisfy this requirement, as it would be in the wrong forum.
It follows that evidence bearing on the voting eligibility of the challengees is
inadmissible, once the case has passed out of the hands of the Regional Director.'
Again as part of his case-in-chief, the General Counsel sought to show, by oral
and documentary evidence, the extent of the Regional Director's investigation of
the challenges. Among the exhibits proffered were affidavits of challengees, super-
visors, and others, relating to the nature of the layoffs of June 5, obtained by
Board agents during the course of the investigation. Upon objection by the
Respondent, this evidence was excluded as anticipating a defense, with leave to
aeoffer it at an appropriate stage in the proceedings.34 It is significant that, at
the time this evidence was offered, the General Counsel had already made out a
prima facie case of refusal to bargain. Moreover, at that stage of the proceed-
ings, the Respondent had not yet had an opportunity to present its evidence, and
the exact nature of its defense was not clear. Indeed, when it later came time
for the Respondent to put on its case, it became evident that the Respondent did
not contend that the Regional Director's ex parte investigation had been incom-
plete, arbitrary, or capricious, except insofar as he, had refused to conduct a
formal hearing36 In'short, the Respondent takes the position that, no matter
how carefully the Regional Director may have conducted his ex parte investiga-
tion, he nevertheless erred in refusing to grant the Respondent's request for a
formal hearing. As that is the narrow issue on which the Respondent bases its
defense, the extent of the Regional Director's ex parte investigation, and the
thoroughness with which he conducted it, is immaterial."
c. Validity of the certification
I turn now to the sole issue on which the validity of the IUE's certification must
hinge, namely, whether the Regional Director erred in refusing to grant the Re-
spondent a formal hearing on the challenged ballots. The Board has several
33 See McMullen Leavens Company , 83 NLRB 948 , 970, 973; Merrimac Hat Corporation,
85 NLRB 329, 333 (footnote 10) ; General Armature & Manufacturing co., $9 NLRB
654, 667.
34 This evidence was not reoffered.
as After the General Counsel had rested , the Respondent 's counsel made the following
statement on the record :
Trial Examiner ASHER . Yes. Let me put it this way : You are only attacking on
the certification.
Mr. SCHWARTZ . That is correct.
Trial Examiner Asnan. Based solely on the fact that no hearing was held and
you had no opportunity to examine and cross examine witnesses.
Mr. SCHWARTZ. That is correct , in accordance with the exceptions and motions
filed by the Respondent.
Trial Examiner ASHER. That brought in a lot of other things. That is what I
want to get clear. Are you relying on-
Mr. SCawAnTZ . We are relying at this point in the support of the motion [to
dismiss the allegation in the complaint relating to refusal to bargain ] on the fact
that the Regional Director's certification, dated October 31, 1950, after having failed
and refused to grant a hearing formally requested by the Respondent makes his
action in issuing the certification a nullity.
Trial Examiner ASHER. Right . Because he didn't hold a hearing?
Mr. SCHWARTZ . That is right.
"Compare McMullen Leavens Company, 83 NLRB 948 , footnote 2.
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times held that such action by a Regional Director was proper" The Court of
Appeals for the Fifth Circuit later ruled to the contrary in the Sidran case." So
far as I have been able to discover, the Board has not passed on this precise
point since the issuance of the Sidram, decision, nor has the Supreme Court yet
spoken on the issue.
The essential nature of notice and formal hearing at which the parties may
present evidence has recently been emphasized by the Supreme Court aB And
there can be no doubt of the importance to be attached to the right to cross-
examine adverse witnesses.40 Nevertheless, these are rights which the parties
may voluntarily waive. Bearing in mind the basic nature of these rights, how-
ever, they should not lightly be deemed to have been waived. The question then
arises whether the signing of the consent election agreement herein constituted
such a waiver by the Respondent"
As previously noted, the agreement provided that the election should be held
"in accordance with . . . the Board's Rules and Regulations." The Board's
rules in effect at the time the agreement was executed provided that, in the
absence of a consent election agreement, the Board might exercise discretion as
to whether or not a hearing on objections or challenged ballots should be held 42
But the consent election agreement substantially invests the Regional Director
with all the powers which the Board would have had, absent the consent
election" It follows that the consent election agreement constitutes a waiver of
the Respondent's right to demand that the Regional Director conduct a formal
hearing on objections or challenges. This conclusion is bolstered by the very
wording of the consent election agreement. It will be recalled that the agreement
provides that "the determination of the Regional Director shall be final and
binding upon any question . . . raised by any party hereto relating in any
manner to the election" (emphasis supplied). It seems clear, therefore, that
the agreement confers upon the Regional Director the sole authority to decide
not only the factual issues before him, but also the procedure to be followed in
arriving at factual determinations. I am aware that the court in the Sidran
case reached a different result. It said :
We do not interpret or construe the consent election agreement or the
applicable Board rules and regulations as providing for any waiver of a
84 Miehle Printing Press & Manufacturing Co., 58 NLRB 1134 ; Highland Park Manufac-
turing Company, 84 NLRB 744, enforcement denied oil other grounds, 184 F. 2d 98 (C. A. 4),
affirmed, 71 S. Ct 489 ; and Merrimac Hat Corporation, 85 NLRB 329. The last of these
cases was decided by the Board on July 26, 1949.
88 N. L. R. B. v. Joseph Sidran, doing business as Sidran Sportswear, 181 F. 2d 671 (C. A.
5), decided April 25, 1950.
88 Joint Anti -Fascist Refugee Committee v. McGrath , 71 S. Ct. 624 . See particularly the
opinion of Justice Frankfurter, pages 642 to 650.
40 See Abbott, Civil July Trials, Section 135 (5th ed. 1935).
" That such agreements are valid and binding upon the parties who execute them is well
established, N. L. R. B. v. A. J. Tower Company, 329 U. S. 324; N L. R. B. v. Capitol Grey-
hound Lines, et al., 140 F. 2d 754 (C. A. 6), rehearing denied April 7, 1944, certiorari denied
322 U. S. 763; and Semi-Steel Casting Company of St. Louis v. N. L. R. B., 160 F. 2d 388
(C. A. 8), rehearing denied April 21, 1947, certiorari denied, 332 U. S. 758. In the last-
named case, the court of appeals expressly recognized the importance of such agreements
in minimizing delay in the administration of the Act.
42 Rules and Regulations of the National Labor Relations Board-Series 5, as amended,
Section 203.01 (b). A similar provision appears in the current rules. Rules and Regula-
tions of the National Labor Relations Board-Series 6, Section 102.61 (b).
48 Rules and Regulations of the National Labor Relations Board-Series 5, as amended,
Section 203.54 (a) provides, in effect, that where a consent election agreement has been
signed, the Regional Director's determinations shall be final, and his certification is given
"the same force and effect as if issued by the Board." A similar provision is contained in
the current rules. Rules and Regulations of the National Labor Relations Board-Series 6,
Section 102 54 (a).
THE STANDARD TRANSFORMER COMPANY 689
hearing in such cases. While it is true that under the election agreement
respondent consented that the determination of the Regional Director would
be final and binding upon the issue as to the eligibility of voters, he did not
thereby intend to forfeit his right to submit evidence and to be heard, nor
did he intend to confer upon the Regional Director an unbridled administra-
tive discretion to decide such an important issue solely upon an ex parte
investigation and without any notice to respondent of the source upon which
the facts found were based.
With all due respect for the court which decided the Sidran case, I am con-
strained to follow prior Board precedent, and respectfully to disagree with the
Fifth Circuit's narrow interpretation of the consent election agreement. In view
of the broad and sweeping language used (particularly the provision that the
Regional Director's determination should be "final and binding upon any ques-
tion . . . relating in any manner to the election"), I find that the entire scope and
conduct of the investigation of the challenged ballots was irrevocably committed
to the sole discretion of the Regional Director by the plain terms of the Respond-
ent's own agreement . Under these circumstances , the Respondent cannot be
heard to complain that it was denied a formal hearing. I therefore find that the
Regional Director's certification was valid, and that at all times since October
31, 1950, the IUE has been, and now is, the exclusive representative for the pur-
poses of collective bargaining of the employees in the appropriate unit described
above, by virtue of Section 9 (a) of the Act"
3. The Respondent's refusal to bargain
The complaint alleges, the answer admits, and I find, that on or about Novem-
ber 1, 1950, the IUE requested the Respondent to bargain collectively with it as
the exclusive representative of the employees in the appropriate unit described
above, in respect to wages, hours, or other conditions of employment and that on
or about November 2, 1950, and at all times thereafter, the Respondent refused
and continues to refuse to bargain collectively with the IUE as the exclusive
representative of the said employees. In view of the fact that the IUE had been
validly certified by the Regional Director as the exclusive bargaining representa-
tive of the employees on October 31, 1950, I find that the above conduct constitutes
a violation of Section 8 (a) (1) and (5) of the Act. Accordingly, the Respond-
ent's motion to dismiss this allegation of the complaint is denied.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to constitute
unfair labor practices tend to lead to labor disputes, burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the Respondent has engaged in certain acts of inter-
ference, restraint, and coercion. It will therefore be recommended that the
Respondent cease therefrom.
"I deem it unnecessary to determine whether, absent the consent election agreement, the
Respondent would have been entitled as a matter of right to a formal hearing on the
challenges , as that question is not before me.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has also been found that the Respondent has violated Section 8 (a) (1) and
(2) of the Act, by assisting and supporting the Independent, and by interfering7
with its administration. I will accordingly recommend that the Respondent
cease and desist from such conduct, and withdraw and withhold recognition from
the Independent unless and until the Independent has been certified by the Board_
The Independent, in its brief, urges that no order be issued which would "destroy"
its contract with the Respondent. However, it has been found that the contract
of June 6, 1950, between the Independent and the Respondent, was illegal. It will
accordingly be recommended that the Respondent cease and desist from perform-
ing or giving effect to the said contract, or to any modification, extension, supple-
ment, or renewal thereof.46 In this connection, it should be noted that the con-
tract contains a provision for checking off the dues of consenting members of the
Independent. It will therefore be recommended that the Respondent reimburse
its employees for any dues deducted from their wages by the Respondent and paid:
to the Independent, pursuant to the terms of the 1950 contract, or any modifica-
tion, extension, supplement, or renewal thereof, by paying to each of them a sum
of money equal to the total of such dues deducted from his wages 48 Nothing con-
tained herein shall, however, be deemed to require the Respondent to vary or-
abandon those wage, hour, seniority, or other substantive features of its relations
with its employees, established in the performance of the said contract.
Having found that the Respondent has refused to bargain collectively with the
IUE, I will recommend that the Respondent cease and desist therefrom and, upon
request, bargain collectively with the IUE as the exclusive representative of the-
Respondent's employees in the appropriate unit with respect to wages, hours, and.
other terms and conditions of employment, and embody any understanding
reached in a signed contract.
In order to insure expeditious compliance with the recommended reimburse-
ment order, it will be recommended that the Respondent, upon reasonable request,
make any pertinent records available to the Board and its agents.'4
The unfair labor practices found to have been engaged in by the Respondent
are of such a character and scope that, in order to insure the employees their
full rights guaranteed them by the Act, it will, be recommended that the Re-
spondent cease and desist from in any manner interfering with, restraining, and
coercing its employees in their right to self-organization 46
It will be further recommended that the allegations of the complaint that
the Respondent paid a bonus to its employees in June 1950, in violation of
Section 8 (a) (1) and (2) of the Act, be dismissed.
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. International Union of Electrical, Radio & Machine Workers, CIO, and
The Standard Transformer Workers, Inc., are labor organizations within the
meaning of Section 2 (5) of the Act. -
45 The Independent, in its brief, states : "An order to discontinue recognition of the
Independent and of its contract would penalize the Independent and its members, and,
is not warranted under the facts of this case." However, such a remedy is the usual
concomitant of a finding that the Respondent has violated Section 8 (a) (1) and (2) of
the Act, and there is nothing in this record warranting a departure from the Board's
normal remedy in such situations.
4e N. L. R. B. v. I. Spiewak it Sons, 179 F 2d 695 (C. A. 3), rehearing denied March 11,
1950, Surprise Candy Company, 66 NLRB 1.
-I F. W. Woolworth Company, 90 NLRB 289.
48 See May Department Stores Company, doing business as Famous-Barr Company v.
N. L. R B., 326 U. S. 376.
PARAMOUNT TEXTILE MACHINERY CO.. 691'
2. By assisting and supporting The Standard Transformer Workers, Inc.,..
and by interfering with its administration , the Respondent has engaged in and-
is engaging in unfair labor practices within the meaning of Section 8 (a) (2)
of the Act.
3. All production and maintenance employees of the Respondent employed.
at its Warren, Ohio, plant, excluding office and clerical employees, professional
employees, guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning of Section-
9 (b) of the Act. -
4. International Union of Electrical, Radio & Machine Workers, CIO, was-
on October 31, 1950, and at all times thereafter has been, and now is, the exclu -
sive representative of the Respondent's employees in such unit for the purposes
of.collective bargaining, within the meaning of Section 9 (a) of the Act.
5. By refusing on November 2, 1950, and at all times thereafter, to bargain,
collectively with International Union of Electrical, Radio & Machine Workers,
CIO, as the exclusive representative of its employees in the appropriate unit,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
- 6. By the above conduct, and by otherwise interfering with , restraining, and:
coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging in unfair labor-
practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the-
meaning of Section 2 (6) and (7) of the Act.
8. By paying a bonus to its employees in June 1950 , the Respondent did not.,
violate the Act.
[Recommended Order omitted from publication in this volume.]
PARAMOUNT TEXTILE MACHINERY Co. and TEXTILE WORKERS UNION
OF AMERICA, CIO. Case No. 13-C'A--555. December 28, 1951
Decision and Order
On July 30,1951, Trial Examiner Horace A. Ruckel issued his Inter--
mediate Report in the above-entitled proceeding, finding that the-
Respondent had engaged in and was engaging in certain unfair labor-
practices and recommending that it cease and desist therefrom and take-
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. The Trial Examiner further found that the-
Respondent had not committed another unfair labor practice and rec--
oinmended that that allegation of the complaint be dismissed. There-
after, the Respondent filed exceptions to the Intermediate Report and-
a supporting brief; the General Counsel filed a statement in support
of, and a statement of exceptions to, the Intermediate Report, and a
supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Reynolds,-
and Styles].
97 NLRB No. 104.