W. E. Horne Engineering Co.

National Labor Relations Board - Board Decisions

Apr 26, 1945

61 N.L.R.B. 742 (N.L.R.B. 1945)

In the Matter of W. E . HORNE D/B/A W. E. IIORNE ENGINEERING
COMPANY and MACHINISTS ' DISTRICT LODGE 94, INTERNATIONAL
ASSOCIATION OF MACHINISTS ( A. F. L.) and EMPLOYEE ASSOCIATION
Case No. 21-C-2420.-Decided Api'il 26,1945
DECISION
AND
ORDER
On November 8, 1944, the Trial Examiner 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. Thereafter, the,, respondent filed exceptions to the
Intermediate Report and a supporting brief. No exceptions were filed
by the Union. No request for oral argument before the Board at
Washington, D. C., was made by any of the parties. The Board has
considered the rulings of the Trial Examiner at the hearing and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. °
The Board has considered the Intermediate Report, the respondent's
brief and exceptions, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the additions noted below :
1. The respondent excepts to the Trial Examiner's conclusion that
the respondent is engaged in commerce, within the meaning of the
Act, and to various findings in support thereof. We have considered
the respondent's exceptions and are of the opinion that they are with-
out merit.' We affirm the Trial Examiner's findings and conclusions?
'The respondent excepts, inter alma , to the finding that his plant " is not a general
machine shop." Whether or not the plant is characterized as a general machine shop, the
fact remains that all his dealings have been limited to three companies engaged in com-
merce The respondent further excepts to the characterization of his customers as "prin-
cipals ," claiming that they are "bailors " Assuming that this is so, it does not affect our
conclusion It also is claimed that the evidence falls to establish that cessation or inter-
ruption of the operations of the respondent would affect the operations of his customers
Upon the entire record, we are satisfied and find , as did the Trial Examiner , that cessa-
tion of the respondent ' s operations would seriously affect those of his customers In this
connection , we credit the testimony of Daniel Gage, a representative of Aircraft Accessories
Corporation, that if the respondent should stop producing , this customer could not make
61 N. L. R B , No. 119.
742
W. E. HORNE ENGINEERING COMPANY 743
2. We agree with the Trial Examiner that the respondent has en-
gaged' in conduct violative of Section 8 (1) of the Act by questioning
his employees regarding their union membership, inquiring whether
they still desired to join the Union and to pay dues to the Union,
informing them that the advent of the Union might adversely affect
their earning capacity and their status as workmen, and questioning
whether the Union would do any good.' Concurrently with, and in
addition to, the foregoing, the respondent dominated and interfered
with the formation and administration of the Employee Association
and contributed support thereto, and illegally refused to bargain with
the Union. Upon the entire record, we are convinced and find that
the respondent's afore-mentioned activity was an integral part of a
course of conduct engaged in by the respondent for the purpose and
with the effect of interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
3. We agree with the Trial Examiner that the respondent has domi-
nated and interfered with the formation and administration of, and
contributed support to, the Employee Association. The Trial Exam-
iner's findings, however, do not specify the dates on which certain of
the respondent's illegal acts occurred. In this connection, we find that
on July 7, after asking whether Blomgren had signed a union card,
Horne asked if Blomgren had any suggestions and that in response
Blomgren suggested the formation of an employees' association.4 We
further find that on July 10 the contract between the proposed Em-
ployee Association and the respondent was drafted by Blomgren with
the respondent's assistance, the notice to the employees was posted,
and the contract was circulated.-,
as many parts as it now produces The possibility, concerning which Gage further testi-
fied, that other suppliers might be available to replace the respondent is immaterial.
North Whittier Heights Citrus Association v N. L. R B , 109 F (2d) 76 (C. C A 9)
N L R B v Bradford Dieing Ass'n , 310 U S 318
2N L R B v. Fainblatt. 306 U S 601, N. L R. B v Sunshine Mining Company,
110 F (2d) 780 (C. C. A. 9) ; J. L. Brandeis cC Sons v. N. L. R. B, 142 F (2d) 977 ,
(C C A 8) ; N. L R B.By. J G Boswell Co, 136 F ( 2d) 585 (C C. A. 9) ; N. L. R. B
v Van Dcusen, 138 F (2d) 393 (C C A 3) , N L R B v Holtville Ice cC Cold Storage
Co, 148 F. (2d) 168 (C. C. A 9).
3 The Trial Examiner found that on July 8, 1944 , the respondent "tendered" a release
to Zimmerman, one of the employees whom the respondent had questioned about his union
activities The record shows, and we find, that on this occasion Zimmerman, whose pre-
vious requests for a release had been consistently denied , again asked for his release and
that this time it was granted We nevertheless infer, as in effect did the Trial Examiner,
that the respondent was willing to grant the release only because he had learned that
Zimmerman had been instrumental in organizing the employees.
4 Horne testified that Bloingren ' s suggestion concerning the formation of an employees'
association was unsolicited and was offered on July 8, the day following Horne 's interroga-
tion concerning Blonigren 's union activity. We do not accept Horne's testimony and
find, as did the Trial Examiner , that Blomgren ' s suggestion was made in response to Horne's
request
5 Blomgren 's testimony does not fix the date on which these events occurred Our finding
is based upon the testimony of other witnesses and the date appearing upon the two
documents
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In reaching the conclusion that the respondent violated Section 8 (2)
of the Act, the Trial Examiner found, among other things, that the
respondent dealt with Blomgren as if he were the accredited repre-
sentative of the Employee Association, when in fact he had merely
assumed this authority and the Employee Association was not yet
in existence. The respondent contends that this finding is without
support on the ground, in substance, that all the employees had affixed
their signatures to the contract of July 10, 1944, prior to Blomgren's
signing as "Temporary Employee Representative" and that Blom-
gren, accordingly, was their accredited representative when Horne
subsequently signed. We reject the respondent's contention and affirm
the Trial Examiner's finding. Blomgren had merely assumed the
authority to act as the employees', representative when the terms of
the contract were drafted by Blomgren with Horne's aid. In view of
the respondent's assistance in the drafting and circulation of the con-
tract, and the valuable benefits conferred upon the proposed Employee
Association in the contract, we are convinced and find not only that the
contract was the fruit of the respondent's unfair labor practices but
that his conduct in connection with the drafting, circulation, and exe-
cution of the contract was an integral part of the respondent's illegal
domination of, interference with, and support to the Association.
4. We concur in the Trial Examiner's finding that on July 7, 1944,
and at all times thereafter, the respondent refused to bargain collec-
tively, within the meaning of Section 8 (5) of the Act. On July 7,
when the respondent was informed of the Union's claim of majority
representation and its request for a bargaining conference,6 he stated
that he would let the Union know by July 10 whether or not he wou'd
meet with it. The respondent did not communicate with the Union
thereafter. On the contrary, immediately after learning of the
Union's status as statutory representative, the respondent embarked
upon a course of conduct violative of Section 8 (1) and (2) of the Act,
which was designed to destroy the Union's majority status. We find,
as did the Trial Examiner, that on July 7, 1944, the respondent already
had decided not to meet with the Union.'
9 The Ti ial Examiner states in the Intermediate Report that the letter in which the
Union claimed to represent a majority of the employees was mailed on July 28, 1944. The
record shows, and we find, that the letter was mailed on June 28, 1944
° Even if it were to he assumed that the refusal to bargain took place at the later date,
the Union's majority status would still be unimpaired The Union submitted 11 authoriza-
tion cards of employees on the respondent's pay roll of June 28, 1944, which contained the
names of 18 emplo}ees in the appropriate bargaining unit Between July 7, when the
respondent was confronted with the Union's request for bargaining, and July 11, when he
signed the contract with the Employee Association, 3 employees, all members of the Union,
received releases from the respondent and left his employ Two of the three-Zimmerman
and Johnson-were granted releases under the circumstances set forth by the Trial
Examiner Further, there is no showing that any new employees were hired during the
period under consideration. Accordingly, on July 11, 8 of the 15 employees within the
appropriate unit had designated the Union as their bargaining representative. Finally,
even if it were shown that new employees were hired in this period, we are satisfied and
W. E. HORNE ENGINEERING COMPANY
ORDER
745
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor 'Relations Board
hereby orders that the respondent, W. E. Horne, d/b/a W. E. Horne
Engineering Company, North Hollywood, California, his agents, suc-
cessors, and assigns shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Em-
ployee Association, or with the formation and administration of any
other labor organization of his employees, and from contributing
support to Employee Association, or to any other labor organization
of his employees;
(b) Recognizing Employee Association as the representative of any
of his employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of em-
ployment, or any other condition of employment; ,
(c) Giving effect to any and all contracts, supplements thereto or
modifications thereof, with Employee Association;
(d) Refusing to bargain collectively with Machinists' District
Lodge 94, International Association of Machinists, A. F. L., as the
exclusive representative of all production and maintenance employees
of the respondent at his North Hollywood, California, plant, exclud-
ing clerical employees and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action;
(e) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Machinists' District Lodge 94,
International Association of Machinists, A. F. L., or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Withdraw and withhold all recognition from Employee Asso-
ciation as the representative of any of his employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of em-
find that any loss of majority resulted from the respondent's unfair labor practices In
this connection , we find that the signing by the employees of the contract of July 10, 1944,
did not impair the Union ' s majority status , since it is plain that this conduct was induced
by the respondent ' s illegal acts Medo Photo Supply Corp . v. N. L. R. B., 321 U. S 678;
N. L R. B . v Bradford Dyeing Ass 'n, 310 U S. 318, N L R. B. v . Century Oxford Mfg.
Corp., 140 F . ( 2d) 541 ( C. C. A. 2).
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployment, and completely disestablish Employee Association as such
representative;
(b) Upon request, bargain collectively with Machinists' District
Lodge 94, International Association of Machinists, A. F. L., as the
exclusive representative of all production and maintenance employees
of the respondent at his North Hollywood, California, plant, excluding
clerical employees and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, with respect
to rates of pay, wages, hours of employment, and other conditions of
employment;
(c) Post at his plant at North Hollywood, California, copies of the
notice, attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the respondent's representative, be
posted by the respondent immediately upon receipt thereof, and main-
tained by him for sixty (60) consecutive days thereafter, in conspicu-
ous places , including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the respondent to
insure that said notices are not altered, defaced, or covered by any
other material;
(d) Notify the Regional Director for the Twenty-first Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. William T. Whltsett , for the Board
Messrs. George R. Maury, of Los Angeles , Calif., and Ralph W. Swagler, of Bur-
bank, Calif ., for the respondent.
Mr. Stanley D. Stearns, of Los Angeles, Calif., for the Union.
Miss Clara E Bartlett, of No. Hollywood , Calif., for the Employee Association.
STATEMENT OF THE CASE
Upon an amended charge duly filed, August 30, 1944, by Machinists ' District
Lodge No. 94 , International Association of Machinists , AFL, herein called the
Union, the National Labor Relations Board , herein called the Board , by the Re-
gional Director for the Twenty-first Region ( Los Angeles . California ), issued its
complaint dated August 30, 1944, against W. E. Horne, doing business as W. E
Horne Engineering Co., herein called the respondent , alleging that the respondent
had engaged in and was engaging in certain unfair labor practices within the
meaning of Section 8 ( 1), (2) and ( 5) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 , Stat. 449, herein called the Act. Copies of the complaint
accompanied by notice of hearing thereon were duly served upon'the respondent.
the Union, and the Employee Association.
W. E. HORNE ENGINEERING COMPANY 747
With respect to the unfair labor practices the complaint alleged, in substance,
that since June 27, 1944, the respondent: (1) has interfered with, restrained, and
coerced his employees in the exercise of their rights guaranteed in Section 7 of
the Act by inquiring of his employees if they had joined the Union ; by telling his
employees that the advent of the Union would cause a reduction in wages ; by
stating that if the Union entered the plant, the respondent would close the plant;
by stating that the employees would pay more in Union dues than they would
get in benefits through the Union, and that by such conduct the respondent had
engaged in and was engaging in unfair labor practices within the meaning of
Section 8 (1) of the Act; (2) that on or about July 10, 1944, the respondent in-
augurated, sponsored and formed a labor organization among his employees
known as the Employee Association and that since July 10, 1944, the respondent
has dominated, interfered with the administration of and contributed support of
said Employee Association, and that by such conduct the respondent has engaged in
and was engaging in unfair labor practices within the meaning of Section 8 (2)
of the Act; and (3) that the respondent on or about June 29, 1944, and at all
times thereafter has failed and refused to bargain collectively with the Union
with respect to rates of pay, wages, hours of employment and other conditions of
employment, as the exclusive representative of his employees although the Union
is the duly designated representative of his employees for the purposes of col-
lective bargaining in an appropriate unit, and that by such acts the respondent has
engaged in and was engaging in unfair labor practices within the meaning of Sec-
tion 8 (5) of the Act.
The respondent filed his answer on September 12, 1944, and denied that (1) he
was engaged in commerce within the meaning of the Act and subject to the
jurisdiction of the Board and (2) denied the commission of any of the unfair labor
practices alleged in the complaint.
Pursuant to notice, a hearing was set in the matter for September 19, 1944,
however on September 14, 1944, all the parties entered into a stipulation waiving
notice of hearing and stipulating that the hearing be opened on September 14,
1944, for the sole purpose of taking the testimony of one Sven G. Blomgren. The
hearing was accordingly opened on September 14, 1944, before the undersigned
Trial Examiner, duly designated by the Chief Trial Examiner and the testimony
of Sven G. Blomgren was taken. The hearing was then recessed and resumed
on September 19 and 20, 1944, before the undersigned. The Board and the
respondent were represented by counsel, the Union and the Employee Association
by representatives. All parties participated in the hearing, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues. Prior to the opening of the hearing
the respondent filed a motion with the Regional Director for the Twenty-first
Region asking for the right to inspect, copy or be provided with copies of all
documents that had come into the possession of the Board during its investigation
of the charge filed in the matter, including the Field Examiner's notes and all
statements made by any persons interviewed. The Regional Director referred
ruling on this motion to the Trial Examiner. The undersigned denied the motion
At the close of the Board's case and again at the close of the hearing the respond-
ent moved to dismiss the complaint. The undersigned denied the motions. At
the close of the Board's case counsel for the Board moved to conform the pleadings
to the proof with respect to formal matters. The motion was granted. The
parties were afforded an opportunity to argue orally on the record and to file
briefs with the undersigned. The parties waived oral argument but a brief was
filed by the respondent.
Upon the entire record in the case, and from his observation of the witnesses.
the undersigned makes the following:
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, W. E. Horne, an individual doing business as W E Horne
Engineering Company, operates a machine shop in North Hollywood, California,
where he is engaged in the production of certain steel and aluminum parts used
in the construction of aircraft The respondent has been operating this plant
since March 1942. The plant is not a general machine shop but throughout its
existence has performed work only for three principals or customers, namely,
Adel Precision Products Corporation, Aircraft Accessories Corporation, and
Harville Aircraft Die Casting Corporation' However, at the present time the
respondent is receiving no work from Adel. The respondent's principals are sub-
contractors who furnish certain parts to airplane manufacturers and who furnish
the respondent with all the raw material he uses. All of the raw materials
furnished the respondent by his principals come from their stock piles located in
California and the finished material processed by the respondent is placed in his
principal's stock piles in California When the respondent receives an order for
the production of certain parts he is also furnished by his principals with a blue-
print and the working drawing of the parts he is to make and is instructed in
the manufacturing technique he is to follow At the time the respondent began
his present enterprise he had few machines but on the strength of orders from his
principals he was able to obtain a priority rating as an enterprise essential to
the conduct of the war and because of his rating was able to obtain the machinery
necessary to equip his plant The respondent stipulated that during 1943, he
received in payment for work performed for Aircraft Accessories Corporation,
$36,579 82; from the Harvill Aircraft, Die Casting Corporation, $28,09,080, and
from Adel Precision Products Corporation, $136,06937, that durnug the first 6
months of 1944, he received in payment for work performed for Adel Precision
Products Corporation, $72509, from Aircraft Accessories Corporation approxi-
mately, $38,000, and from Harvill Aircraft Die Casting Corpoi ation approxi-
mately, $17,000. _
Aircraft Accessories Corporation is a California corporation operating a plant
at Burbank, California and certified to do business in five other states. Aircraft
fabricates and manufactures hydraulic actuating equipment for use in airplanes,
its principal customers being Consolidated-Vultee Aircraft Corporation, Ford,
North American and Lockheed. All the products sold to its customers are used
in aircraft manufactured by them for the United States Army and Navy Air-
craft's annual business is approximately $38,000,000 Between 50 and 00 per-
cent of the products manufactured by the respondent for Aircraft is shipped by
Aircraft to points outside the State of California Aircraft depends on plants
such as the respondent's for between 40 percent and 50 percent of the class-of
material manufactured by the respondent An interruption of work in the re-
spondent's plant would seriously hamper Aircraft's operation
Harvill Aircraft Die Casting Corporation is a subcontractor manufacturing
certain airplane equipment for Douglas, North American, Lockheed, Vega and
Ford. Harvill furnishes materials and has work performed for it by the re-
spondent in the same manner as does Aircraft 2
Counsel for the respondent contended at the hearing and again in his brief that
the respondent was not engaged in commerce within the meaning of the Act, inas-
much as the respondent performs a service for California concerns, making and
delivering his product in California. The undersigned finds no merit in this
contention.
1 Referred to in the record as, Harvill Corporation.
2 The Board has taken jurisdiction over this company, 28 N. L. R. B. 4176.
W. E. HORNE ENGINEERING COMPANY 749
In reality the respondent is as much a part of the manufacturing process of
his customers , or principals , as if his plant were under their roofs and direct
control ; they furnish his materials and instruct him in the technique to be used
in the manufacture of the product farmed out to him. The respondent 's busi-
ness exists only because he serves certain principals , and it is only because he
does so serve them that he was able to obtain the machinery necessary to operate
his plant Should there be a shutdown of the respondent 's plant, the principals'
operations would be seriously affected. It is clear that the respondent's only
customers or principals , Aircraft Accessories Corporation and Harvill Aircraft
Die Casting Corporation are engaged in commerce within the meaning of the
Act, and the undersigned so finds.
The Board has taken jurisdiction over the operations of a company whose busi-
ness is local in character but whose business is that of serving a principal engaged
in commerce within the meaning of the Act, to such an extent that a labor dispute
involving it would affect the operations of the puncipal.i
The undersigned finds that the respondent is engaged in commerce within the
meaning of the Act.
IT. THE ORGANIZATIONS INVOLVED
Machinists' District Lodge 94, International Association of Machinists, affil-
iated with the American Federation of Labor, and Employee Association, are
labor organizations which admit employees of the respondent to membership.
III. THE UNFAIR LABOR PRACTICES
A. Intcrfercnce, restraint, and coercion
On July 7, 1944, Horne, was informed by the Union that it represented a ma-
jority of his employees. On that day, Horne, called employees Edwin L. Cald-
well and Meyer E. Berkon among others into his private office, separately, and
interviewed each, with no third party present. Caldwell testified that Horne
asked if he had signed a card for the Union and if he were willing to have
his union dues withheld, and then told him that as a Union member he would be
required to qualify as an "A" operator to take a reduction in pay, and that he
could not so qualify. Berkon testified that Horne first inquired if he had signed
a card for the Union and then informed him that unless he could qualify in the
Union as an "A" operator, he would suffer a pay cut, and that he could not so
qualify. Horne admitted the above related testimony, which the undersigned
credits.
Thomas C. Zimmerman, employed by the respondent from November 6, 1942,
until July 7, 1944, inclusive, testified that on July 3, 1944, Horne called him
into his private office and asked him if he had signed a card for the Union ; if
he still wanted to join the Union ; if he wanted to pay dues ; and if the Union
would do any good. During the course of the interview Zimmerman told Horne
that he (Zimmerman) was responsible for bringing the Union into the plant.
Zimmerman's testimony as above related is entirely uncontradicted and is
credited.4
Sam MacDonald, employed by the respondent from July 13, 1943, until July
10, 1944, testified that on July 8, 1944, he was interviewed by Horne, in Horne's
8 See Matter of The France Stone Co., 51 N L. R. B. 452; Matter of Butler Brothers,
et al , 41 N L R. B. 843, enforced 134 F. (2d) 981, cert. denied, 320 U S. 789; N L. It. B.
v Fatinblatt, 306 U. S. 601.
Zimmerman had on several previous occasions requested a "release" from the respond-
ent. The respondent had refused to release Zimmerman from his employ and Zimmerman
had appealed to the War Manpower Commission for a release and the appeal had been
denied. On July 8, the respondent tendered Zimmerman a release from his employ, which
Zimmerman accepted.
639678-45-vol. 61-49
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
private office, and that at that time Horne asked him if he had signed a card for
the Union. Horne in his testimony admitted asking MacDonald if he had signed
a card for the Union; and the undersigned so finds. Horne testified that he
called all of the above-named individuals to his office because they had been
longest in his employ and that he felt that he could learn about the Union's
activities from them. He also testified that he asked all of those interviewed
"virtually" the same questions and told them lie thought the Union was a good one.
The undersigned finds from the admitted testimony of Caldwell, Berkon,
Zimmerman and MacDonald, as above set forth that the respondent by ques-
tioning his employees regarding their union membership, by inquiring whether
they still desired to join the Union and desired to pay dues into the Union ;
and by informing his employees that the advent of the Union might affect their
earning capacity and status as workmen, and by inquiring if the Union would
do any good, has interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act
B. Domination of and interference with the formation and administration of
a labor organization
Sven G. Blomgreii, employed as an inspector by the respondent, testified that
he signed an authorization card for the Union on June 27, 1944, and that some
time thereafter, on a date he could not recall, but the first occasion of which
was fixed by the respondent as July 7, 1944, Horne called him into his office
and asked him [Blomgren] if lie had signed a card for the Union and then
asked if he had any suggestions to offer. Blomgren informed Horne that he
had previous experience with an independent union and suggested the formation
of an employees' association among the respondent's employees. 'During the
course of the interview, Blomgren drew up a document which purported to be
a bargaining contract. Blomgren wrote it out in long hand, receiving assistance
from Horne as to spelling and wording. Horne suggested a clause giving the
Employee Association the profits of a Coca Cola vending machine located in
the plant. After Blomgren had written the document it was then typed by
the respondent's stenographer.'
G The contract is as follows :
JULY 10, 1944.
We the employees of the W E Horne Engineering Co , after several conversations and
clue consideration with your consent do hereby associate ourselves together as an Employee
Association for the purpose of promoting good will and harmony for the W. E. Horne
Engineering Co., and ourselves and a better understanding for both, and with the above in
mind, we further propose so that we can have a goal to shoot at, that we do agree to work
for the best interests of the W. E. Horne Engineering Co., and War effort, regarding the
production of parts to blue prints and on schedual (sic).
And we further believe that as aforesaid atter due consideration that we the employees
each should after one year of service be given a one weeks vacation with pay and on legal
holidays we should be paid time and one half, when we work on said days
Therefore, in consideration of the above , we affix our hand and seal this date as above
written with the understanding that you will sign below showing your approval of same and
0 K. on vacation and pay on legal holidays. It is also understood and agree that this
arrangement is not transferable
[Lines were here drawn providing sufficient space for the signatures of all the
employees.]
In addition to the above, I will let your Association use the Coca-Cola Refrigerated Box,
and negotiate for a Candy and Cigarett Machine so that you can accumulate a fund to use
for special entertainment purposes.
----------------------------------------
--------------------------------------2
Temporary Employee Representative.
W. E. HORNE ENGINEERING COMPANY 751
Following the drafting of this document, the following notice was typed and
Horne posted it on the bulletin board :
It has been suggested by Sven Blomgren our Inspector, that an Employees
Association be formed for the purpose of bringing such matters pertaining
to the welfare of employees to the attention of the management, such as
the following, wages, reclassification, vacations, and working conditions.
The management is heartily in accord with such an Association, and will
fully cooperate.
(S) W. E HORNE.
After the contract was typed Blomgren circulated it during working hours
among the respondent's employees, obtaining the signatures of all the respondent's
employees. Blomgren's testimony was vague as to the lapse of time between the
drafting of the contract and the actual signing by the respondent but he testified
that it was not more than 2 days. Horne testified that he first called Blomgren
for an interview on July 7, 1944; that on July 8, Blomgren suggested the forma-
tion of the Employee Association; that on July 10, the bulletin and contract were
drawn by Blomgren ; that on July 11, after all the respondent's employees had
signed the document Blomgren signed it as "Temporary Employee Representa-
tive" and Horne then affixed his signature.' Blomgren testified that at the time
he signed the contract as "Temporary Employee Representative" no such organi-
zation as Employee Association was in existence, and that he merely assumed
the title and authority to act in behalf of the respondent's employees.
Shortly thereafter, the respondent's employees met at the home of one of their
number, perfected their organization by electing a secretary and a committee,
and naming Blomgren as their representative. Since that time two additional
meetings have taken place, also in members' homes. No constitution or bylaws
have been adopted, no grievances have been presented to the respondent by the
group, and no dues have been collected.
Horne testified that he had no knowledge as to whether Blomgren was the
accredited representative of his employees at the time he dealt with him regard-
ing the contract ; that all his acts surrounding the posting of the notice and the
signing of the contract, as well as his entire negotiation with Blomgren took place
after the respondent had been informed by the Union that it represented his
employees.'
The record clearly shows that on the day the respondent was informed by the
Union that the Union claimed to represent his employees he called certain
employees into his office and interrogated them on their union membership,
spoke about union dues, and stated to them that they would impair their earning
capacity as individual workmen by joining the Union. Among the employees
called for interview was Blomgren who when asked for suggestions told the
6 The contract is dated July 10, 1944. Horne acknowledged the execution thereof before
a Notary on July 11, 1944.
7 Stanley E. Johnson, a former employee of the respondent, testified that he had made
several attempts to obtain a certificate of availability from the respondent and quit his
employ but that the respondent had refused to give him a certificate of availability. On
July 10, Johnson saw Horne post the notice regarding the formation of the Employee Asso-
ciation, that night he visited the plant ; gained entrance through a ruse and removed the
notice and took it with him Later that night Horne telephoned Johnson at his home and
ordered him to return the notice to the plant at once. Johnson informed Horne over the
phone that he intended to turn the notice over to the Union but offered to trade it to
Horne for a certificate of availability . Horne testified that he learned Johnson had re-
moved the notice ; that he telephoned Johnson to return it ; that Johnson offered to trade
the notice for a certificate of availability, and that Johnson therf returned to the plant,
returned the notice to Horne and was given a certificate of availability.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent that he had previous experience with independent labor organizations
and broached the idea of the Employee Association The respondent assisted
Blomgren in drawing a contract intended to be signed by all the respondent's
employees. The respondent posted a notice addressed to all his employees in
which he spoke of an "Employees Association" to be formed to bring up such
matters as "wages, reclassification, vacations, and working conditions" and that
he was "heartily in accord with such an Association, and will fully cooperate "
The respondent permitted Blomgren to circulate the contract and obtain signa-
tures thereto on company time and the respondent included a clause in the
contract giving the Employee Association the profit- of a Coca-Cola vending
machine already in operation. The respondent dealt with Blomgren as if Blom-
gren were the accredited representative of the Employee Association, when
Blomgren in fact had merely assumed this authority and the Employee Associa-
tion was not yet in existence.
The undersigned finds on the entire record that the respondent has dominated
and interfered with the formation and administration of Employee Association
and contributed support thereto, thereby discouraging membership in the Union
and interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act
The undersigned further finds that the contract entered into between the
respondent and Employee Association was the fruit of the respondents unfair
labor practice and is invalid
C. The i efusal to bargain collectively
1. The appropriate unit
The respondent stipulated that a unit appropriate for the purposes of collec-
tive bargaining among his employees consists of "All production and maintenance
employees but excluding clerical and all supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action."
The undersigned finds' that all production and maintenance employees, but
excluding clerical employees and all supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the status
of employees or effectively recommend such action employed by the respondent in
his North Hollywood, California plant, at all times material herein constituted
and that it now constitutes a unit appropriate for the purposes of collective
bargaining with respect to rates of pay, wages, and hours of employment, or
other conditions of employment and that said unit insures to employees of the
respondent the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act
2. Representation by the Union of a majority in the appropriate unit
The respondent stipulated at the hearing that on June 28, 1944, a total of 20
individuals were employed in his plant; and that 2 of them were supervisory
employees
The Union introduced eleven authorization cards, by which the signer granted
to the Union the right to represent him or her for the purposes of collective
bargaining; all of these eleven cards were signed by employees of the respondent
whose names appear on the respondent's pay roll of June 28, 1944 and all were
dated June 27, 1944. Zimmerman testified that he secured the signatures of all
the eleven employees to the cards. No claim was made by the respondent that the
cards were not authentic and signed by the employees whose names appear
on them.
W. E. HORNE ENGINEERING COMPANY 753
The undersigned finds that on and at all times material after June 27, 1944,
the Union was the duly designated representative of the respondent's employees
in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the
Act, the Union was at all times material herein the exclusive representative
of all the employees in such unit for the purpose of collective bargaining with
respect to rates of pay, wages, hours of employment, or other conditions of
employment.
3. The refusal to bargain
On June 27, 1944, a majority of the respondent's employees designated the
Union as their collective bargaining agent. Mary Asteriou the secretary of the
Union's business agent, Stanley D. Stearns, testified that on July 28, 1944, she
sent a letter, by registered mail, to the respondent advising him that the Union
represented a majority of his employees and requesting a bargaining conference!
The respondent refused to accept this letter and about 2 weeks later was returned
to the writer by the Post Office, bearing the notation "Unclaimed."
Stearns testified and Horne admitted that on July 7, Horne called him by
telephone and at that time Stearns informed Horne of the Union's majority and
read to him, over the phone, a copy of the letter which the Union had mailed
to the respondent on July 28, 1944.9 Stearns then asked Horne if he did not
wish to set a date for a bargaining conference and Horne replied that he was
not sure but that he would let Stearns know by July 10 if he would meet with
the Union. Horne at no time during the conversation questioned the Union's
majority Thereafter, Horne failed to communicate or meet with the Union.
As above stated the respondent was notified by the Union on July 7 that it
represented a'majority of his employees and desired a bargaining conference with
him. The respondent does not contend that his pay roll of July 7 was not identical
with his pay roll of June 28, 1944. However, the record shows that on July 8,
Zimmerman, and on July 10, Johnson, were released from the respondent's employ.
Both these men had previously requested releases on numerous occasions and
both had been refused. As heretofore found it was only after the respondent
learned of the Union's majority status and that Zimmerman and Johnson had
signed authorization cards for the Union that he released them from his employ.
The granting of the releases under these circumstances considered in view of the
respondent's other unfair labor practices as found above, cannot be used for the
purpose of destroying the Union's majority even if it be contended that the respond-
ent's refusal to bargain occurred subsequently to July 7. However, the under-
signet is convinced and finds that the respondent's refusal to bargain occurred
at least as early as July 7, when Horne refused to recognize the Union as exclusive
bargaining representative. On that day Horne told Stearns he was uncertain as
to whether he would meet with the Union, and thereafter failed to fulfill his
promise to let the Union know by July 10 whether he would meet with it. It was
8 The letter reads in part as follows :
Please be advised that this Union represents the majority of your employees and
therefore is requesting a meeting at your earliest convenience for the purpose of going
into negotiations regarding representation, wages, hours and conditions.
9 Horne sought to explain the return of the Union's letter by the statement that he had
issued orders to his office girl not to receive registered mail and that although he knew a
registered letter had been tendered for delivery by the Post Office and refused by his office,
he had been too busy to go to the Post Office until July 7 On that date he called at the
Post Office and from the return address printed on the envelope learned it was from the
Union Despite Horne's testimony that he had instructed his office girl that only lie would
receive and sign for registered mail , Horne gave no explanation of why he did not accept
the letter when he examined it at the Post Office.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,on July 7, after speaking to Stearns, that Horne began to question his employees
about their union affiliation and committed the unfair labor practices detailed
above. It is clear from Horne's course of conduct on that day, that Horne had
already decided not to meet with the Union and set about to destroy its majority.
. The undersigned accordingly finds that the respondent on July 7, 1944, and at
all times thereafter has refused to bargain collectively with the Union as the
exclusive representative of his employees in an appropriate unit and has thereby
interfered with, restrained, and coerced his employees in the exercise of the
rights guaranteed in Section 7 of the Act.
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 set forth in Section I above,
have a close, intimate and substantial relation to trade, traffic and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged* in and is engaging
in certain unfair labor practices, it will be recommended that he cease and desist
therefrom and take certain affirmative action which the undersigned finds will
effectuate the policies of the Act.
It has been found that the respondent has dominated and interfered with the
formation and administration of the Employee Association and has contributed
support thereto. The effect and consequences of such domination, interference,
and support renders the Employee Association incapable of serving the respond-
ent's employees as a genuine bargaining agency, and its recognition as the bar-
gaining representative of the respondent's employees constitute a continuing
obstacle to the free exercise by the respondent's employees of their right to self-
organization and to bargain collectively through representatives of their own
choosing. It will therefore be recommended by the undersigned, that the respond-
ent withdraw all recognition from and completely disestablish the Employee Asso-
ciation, as the representative of any of his employees for the purposes of dealing
with the respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment or other conditions of employment.
It having been found that the contract between the respondent and Employee
Association, dated July 10, 1944, is invalid because it was made with a labor
organization which had been assisted by the respondent's unfair labor practices,
the undersigned will recommend that the respondent cease and desist from per-
torming or giving any effect to such contract. Nothing herein, however, shall
be deemed to require the respondent to vary or abandon those wage, hour, secu-
rity, vacation or other substantive features of his relations with his employees
themselves which the respondent may have established in the performance of the
contract.
It having been found that the respondent has refused to bargain collectively
with the Union, it will therefore be recommended by the undersigned that the
respondent, upon request, bargain collectively with the Union
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAw
1. Machinists' District Lodge 94, International Association of Machinists
A. F L. and Employee Association are labor organizations within the meaning of
Section 2 (5) of the Act.
W. E. HORNE ENGINEERING COMPANY 755
2. By dominating and interfering with the formation and administration of
Employee Association, and contributing support thereto, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (2) of the Act.
3. All production and maintenance employees, but excluding clerical employees
and all supervisory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effectively recom-
mend such action, employed by the respondent in his North Hollywood, California
plant, at all times material herein constituted and now constitute a unit appro-
priate for the purposes of collective bargaining, within the meaning of Section 9
(b) of the Act.
4 Machinists' District Lodge 94, International Association of Machinists,
A. F. L. was on June 27, 1944, and at all times thereafter has been, and now is
the exclusive representative of all employees of the respondent in such unit for
the purposes of collective bargaining, within the meaning of Section 9 (a) of
the Act.
5. By refusing on July 7, 1944, and at all times thereafter to bargain collec-
tively with Machinists' District Lodge 94, International Association of Machinists,
A F. L., as the exclusive representative of his employees in the appropriate unit,
the respondent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (5) of the Act.
6. By interfering with, restraining, and coercing his 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 (1)
of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, W. E. Horne, doing business as
W. E: Horne Engineering Company, his agents, successors and assigns shall :
1. Cease and desist from :
(a) In any manner dominating and interfering with the administration of
Employee Association, or with the formation and administration of any other
labor organization of his employees, and from contributing support to such
organization ;
(b) Recognizing Employee Association as the representative of any of his
employees for the purpose of dealing with the respondent concerning grievances,
wages, rates of pay, hours of employment, or any other condition of employment ;
(c) Giving effect to any and all contracts, supplements thereto or modifications
thereof, with the Employee Association ;
(d) Refusing to bargain collectively with Machinists' District Lodge 94,
International Association of Machinists, A. F. L, as the exclusive representative
of all production and maintenance employees, but excluding clerical employees
and all supervisory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees or effectively recom-
mend such action employed by the respondent in his North Hollywood, California,
plant ;
(e) In any other manner interfering with, restraining, or coercing his em-
ployees in their right to self-organization, to form labor organizations, to join or
assist Machinists' District Lodge 94, International Association of Machinists,
A F. L. or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purposes of collective bargaining or other mutual aid or protection as guaranteed
in Section 7 of the Act.
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the undersigned finds will
effectuate the purposes of the Act :
(a) Withdraw and withhold all recognition from Employee Association, as
the representative of any of his employees for the purposes of dealing with the
respondent concerning grievances , wages, rates of pay, hours of employment, or
other conditions of employment , and completely disestablish Employee Association
as such representative;
(b) Upon request bargain collectively with Machinists ' District Lodge 94, In-
ternational Association of Machinists , AFL, as the exclusive representative of all
production and maintenance employees , but excluding clerical employees and all
supervisory employees with authority to hire, promote, discharge , discipline, or
otherwise effect changes in the status of employees or effectively recommend such
action, employed by the respondent in his North Hollywood , California , plant ;
(c) Post immediately in conspicuous places throughout his North Hollywood,
California , plant, and maintain for a period of at least sixty ( 60) consecutive
days, notices to his employees stating: ( 1) that the respondent will not engage in
the conduct from which it is recommended that he cease and desist in paragraphs
1 (a), (b), (c ), ( d), and ( e) hereof; and ( 2) that the respondent will take the
affirmative action set forth in paragraphs 2 (a) and ( b) hereof;
(d) Notify the Regional Director for the Twenty -first Region in writing within
ten (10 ) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10 ) days from the date
of the receipt of this Intermediate Report the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building, Washington , D. C, an original and four copies of a state-
ment in writing 'setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding ( including rulings upon all motions or
objections ) as he relies upon, together with the original and four copies of a
brief in support thereof Immediately upon the filing of such statement or excep-
tions and/or brief, the party or counsel for the Board filing the same shall serve
a copy thereof upon each of the other parties and shall file a copy with the
Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board request therefor must be made
in writing to the Board within ten (10) days from the order transferring the
case to the Board.
Louis PLOST,
Trial Examiner.
Dated November 8, 1944.
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 hereby disestablish Employee Association as the representative of any of
our employees for the purpose of dealing with us concerning grievances, labor
W. E. HORNE ENGINEERING COMPANY 757
disputes, wages, rates of pay, hours of employment, or other conditions of employ-
ment, and we will not recognize it or any successor thereto for any of the above
purposes.
We will not dominate or interfere with the formation or administration of any
labor organization or contribute financial or other support to it.
We will bargain collectively upon request with the Machinists' District Lodge
94, International Association of Machinists (A. F. L.) as the exclusive representa-
tive of all employees in the bargaining unit described herein with respect to rates
of pay, hours of employment or other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agreement. The
bargaining unit is : All production and maintenance employees Of the respondent
at his North Hollywood, California, plant, excluding clerical employees and all
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively recommend
such action.
We will not give effect to any contracts, supplements thereto or modifications
thereof, with Employee Association.
We will not in any manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist the above-named recognized representative or any other labor organ-
ization, to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection. All our employees are fiee to become or remain
members of this union, or any other labor organization.
W. E. HORNE d/b/a W. E HORNE ENGINEERING COMPANY.
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.