Crocker-Wheeler Electrical Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 20, 1943

53 N.L.R.B. 1411 (N.L.R.B. 1943)

In the Matter of Jos$uA IIENDY IRON WORKS, DIVISION CROCKER-
WHEELER ELECTRICAL MANUFACTURING COMPANY anV INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1159 B, A.
F.oFL.
Case No. R-5198
SUPPLEMENTAL DECISION
AND
ORDER
December 20, 1943
On May 18, 1943, the National Labor Relations Board, herein
called the Board , issued a Decision and Direction of Election in the
above-entitled proceeding.' Pursuant to the Direction of Election, an
election by secret ballot was conducted on June 2, 1943, under the
direction and supervision of the Regional Director for the Second
Region ( New York , New York). On June 3,1943 , the Regional Direc-
tor, acting pursuant to Article III, Section 10, of National Labor
Relations Board Rules and Regulations-Series 2, as amended , issued
and duly served upon the parties an Elect ion Report.
As to the balloting and its results, the Regional Director reported
as follows :
Approximate number of eligible voters______________________ 1389
Total ballots cast__________________________________________ 1215
Total ballots challenged ----------------------------------- 22
Total void ballots_________________________________________ 10
Total valid votes counted__________________________________ 1183
Votes cast for Independent Workers of New Jersey ---------- 646
Votes cast for International Brotherhood of Electrical
Workers, Local 1159, A. F. of L____________________________ 517
Votes cast for neither -------------------------------------- 20
On June 8, 1943, International Brotherhood of Electrical Workers,
Local 1159 B, A. F. of L., herein called the I, B. E. W., filed objections
to the conduct of the election and petitioned the Board to set aside
the results of the election, upon the following grounds : (1) that super-
visors and foremen of the Company prior to the election threatened
employees, particularly those favoring the I. B. E. W., with discharge
1 49 N. L. R. B. 122.
53 N. L. R. B., No. 258.
1411
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOAff
if they did not vote for the Independent Workers Union of New
Jersey, herein called the Independent; (2) that the Company per-
mitted Independent representatives to circulate freely through the
Company's plant on the day of the election and for several days prior
thereto, and that such representatives warned persons known to favor
the I. B. E. W. that they would be discharged if they did not vote for
the Independent; (3) that employees supporting the I. B. E. W. were
intimidated and coerced into voting for the Independent; and (4)
that the Company, upon demand of the Independent made subse-,
quent to the filing of the I. B. E. W. petition and after the expiration
of the contract between the Independent and the Company, which was
in existence at the time of the filing of the petition, discharged em-
ployees' because they favored the petitioner and refused to become
or remain members of the Independent, and thereby coerced other
employees into voting for the Ip.dependent. On July 10, 1943, the
Regional Director, having investigated the matter, issued and duly
served upon the parties his Report on Objections. On July 23, 1943,
it appearing that the said objections raised substantial and material
issues with respect to the conduct of the ballot, the Board ordered a
hearing on said objections.
Pursuant to notice, a hearing was held on August 26, 27, 28, and
30, 1943, at Newark, New Jersey, before Charles E. Persons, Trial
Examiner. The Board, the Company, the I. B. E. W., and the Inde-
pendent appeared, participated, and were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. Motions by the Company and by
the Independent for bills of particulars addressed to the Regional
Director were referred to the Trial Examiner. The said motions were
denied at the opening of the hearing, with the understanding that if
either`of the moving parties was surprised by evidence presented, time
would be allowed to such party, on motion made, for the preparation
of a defense. No motion asking for such a recess was thereafter ad-
dressed to the Trial Examiner, and all issues upon which findings of
fact are made herein were fully litigated. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file
briefs.
Upon the entire record in the case, the Election Report, the ob-
jections of the I. B. E. W., the Report on Objections, and the record
previously made, the Board makes the following :
FINDINGS OF FACT
On February 10, 1943, when the I. B. E. W. instituted the instant
proceeding for investigation and certification of representatives, the
Independent was the recognized exclusive bargaining representative
JOSHUA HENDY IRON WORKS 1413
of the Company's employees. The collective bargaining relations
between the Company and the Independent were then covered by a
written contract which had been in effect since aboutApril 1941 and
was to expire on March 31, 1943. Among other things, the contract
contained certain union shop provisions, including a provision requir-
ing all newly hired employees, as a condition of their continued
employment, to join the Independent after they had been employed
for a period of 30 days.
The contract contained an annual automatic renewal clause, subject
to a 30-day defeasance provision. Prior to March 1, 1943, each of the
contracting parties had notified the other of its intention to terminate
the contract on March 31, 1943. On March 26, 1943, the I. B. E. W.,
by letter, served notice on the Company that the latter should not
execute any new contract with the Independent, pending the deter-
mination by the Board of the pending question concerning represen-
tation, and advised the Company that should such a contract be
executed the I. B. E. W. "will not consider itself in any way obligated
by the provisions thereof in the event that it is declared to be the
collective bargaining agent of your [the Company's] employees." On
March 31, 1943, the Company and the Independent entered into a
written extension agreement, continuing the term of their prior con-
tract "until either party shall give the other thirty days' written notice
of its desire to terminate or change the same." As motivating con-
siderations for the extension, the preamble thereto recited that the
existing contract was expiring on that date and that there was "pend-
ing before the National Labor Relations Board a certification pro-
ceeding relative to the bargaining agency of said [the Company's]
employees." At the hearing on the I. B. E. W. petition, held on April
13, 1943, neither of the contracting parties asserted that the extension
agreement operated as a bar to the investigation of representatives.'
Thereafter and through the date of the election the Company and
the Independent continued to apply and enforce the provisions of the
extension agreement, including the union shop provisions. On May
11, 1943, the Company, upon demand of the Independent, discharged
from its employ four alleged I. B. E. W. adherents because of their
refusal to join the Independent.3 The I. B. E. W. contends, inter
a The notice of hearing was served on March 30, 1943.
The record shows that in April 1943, before the Independent had demanded their
discharge, Foreman Johnson endeavored to induce two of the discharged employees,
Leyland and Teets, to join the Independent Zeets testified without contradiction that
Johnson at about this time had acted similarly with respect to numerous other employees
who were in arrears or who did not belong to the Independent. while admitting in its
brief that Johnson had probably done so, the Company seeks to justify Johnson's action
on the ground that "he did not wish to have production interfered with by discharges
which he knew would follow if they [the employees] persisted in their refusal to join the
Union." The contract requires the foreman of each department to introduce all new
employees in his department to the Union 's shop steward ; but it does not require hint
otherwise to aid in dues collection . At the time of their discharge in May, Teets had been
employed for approximately 6 months, and Leyland for approximately 4 months. The
X 1dependent first requested their discharge on May 3, 1943.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alia, that as a result of the enforcement of the extension agreement
during the preelection period the Company assisted the Independent,
enhanced its prestige , interfered with the right of employees freely
to select representatives of their own choosing, and coerced employees
into joining the Independent; and that the Company thereby improp-
erly influenced the choice of the employees and interfered with the
holding of a fair election. The Company and the Independent, on
the other hand, assert that they had a legal right to make an interim
agreement continuing , until such time as the pending question of
representation had been resolved by the Board, their preexisting bar-
gaining relationship which had been established by an agreement made
at a time when the majority status of the Independent was unques-
tioned. The Company stands on this agreement , and contends that
it may not be charged with improper action arising from its perform-
ance. This proceeding is not directly concerned with the validity of
the extension agreement, nor with the legality, under the proviso of
Section 8 ( 3) of the Act , of the discharges effected pursuant thereto.
Under all the circumstances of the case , we consider it unnecessary to
the disposition of the matter now before us to decide whether the execu-
tion and performance of the parties of the interim agreement, per
se, constituted interference , restraint , and coercion within the pro-
scription of the Act . Without consideration of this aspect, we are
persuaded on the record in this case that during the period interven-
ing between the Direction of Election and the election , the Company
knowingly permitted the Independent certain privileges, denied to
the I . B. E. W. and not required by the terms of the contract, and
otherwise pursued an unneutral policy which tended to aid the Inde-
pendent in its election campaign and which , therefore , impugns the
results of the election as a fair test of the employees ' desires.
It is clear from the record that during the several weeks preceding
the election officers of the Independent and members of its grievance
committee were permitted to circulate freely through the plant on
company time, and Independent stewards, under guise of collecting
dues, were permitted without interference to approach employees in
their departments during working hours. The Independent officials
utilized the opportunities thus accorded them to conduct extensive
electioneering on behalf of their union, and, in some instances, to
threaten I. B. E. W. proponents with discharge if they persisted in
their support of the I. B. E. W. The record does not show that com-
pany supervisors overheard any of the electioneering statements made
by Independent officials; but it does show that the Company was on
notice of their activities . Assistant Plant Superintendent Carberry,
for example , testified that on frequent occasions he saw Weeks, presi-
dent of the Independent , and Bayard , its chief steward, as well as
JOSHUA HENDY IRON WORKS 1415
other Independent leaders, in departments or on shifts not their own,
talking to employees, and that as far as he knew they might have been
"talking union." It does not appear that the Company made any
effort to restrict the activities of Independent officials during the pre-
election period. In attempted justification for its inaction in this
respect, the Company points to its contract with the Independent.
With respect to members of the grievance committee, the relevant
clause of the contract provides : "Any member of the grievance com-
mittee shall have the light to visit departments other than his own
at all reasonable times for the purpose of transacting business of
the grievance committee, after notice to his department foreman or his
designated representative." However, no proof was adduced by the
Company to show that, on any of the numerous occasions when the
members of the grievance committee were absent from their work,
notice had been given to the designated company representative, or
that the Company had on any such occasions made any inquiry to
ascertain whether business of the grievance committee was actually
being transacted. With respect to the Independent stewards, it ap-
pears that it was the established practice for stewards to collect dues
only on the second ' Friday of the month. The activities of the
stewards during the preelection period were not, however, confined
to that particular time. The contract provides that "the activities
of shop stewards shall be limited strictly to union matters pertaining
to company business." Yet, the record fails to show that any attempt
was made by the Company during the preelection period to determine
whether shop stewards circulating within their respective departments
and carrying the "book" were in reality engaged in dues collection.
In sum, the evidence shows, and we find, that the Independent during
the period preceding the election abused its contractual privileges of
visitation on company time and property for campaign purposes;
that the Company knew or should have known of such abuses; and
that in failing to check on the activities of Independent officials, as
it had a right to do under, the contract, the Company in effect permitted
and acquiesced in the campaign activities of Independent officials on
company time and property.
A further example of the Independent's permitted abuse of its
contractual privileges is reflected in the Independent's use of its
bulletin board during the preelection period. The Independent's
contract with the Company provides : "The employer shall furnish
a bulletin board * * * which shall be used by the Union for
posting of notices and bulletins pertaining to proper and legitimate
union matters only." C. R. Mason, the Company's industrial re-
lations manager, while testifying, admitted that he did not consider
electioneering a legitimate union matter. Nevertheless, the uncon-
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
troverted evidence shows that the Independent during the preelection
period freely used its bulletin board for the display of campaign
material, and that the Company, with knowledge thereof, made no
effort to restrict such use. No comparable facility was extended to
the I. B. E. W. Leaflets posted by I. B. E. W. adherents on the
company bulletin boards were removed. It is clear that the Inde-
pendent's use of its bulletin board for campaign purposes was not
sanctioned by the contract. Under the circumstances, we are of the
opinion, and find, that the Company's failure to restrain the Inde-
pendent from using its bulletin board for campaign purposes, or,
in the alternative, to accord equal privileges to the I. B. E. W., con-
stituted discriminatory and improper assistance to the Independent
in its election campaign.
The Company accorded the Independent another special privi-
lege not required by the contract by permitting the latter the use of
its conference room. The Company's conference room is part of its,
executive offices located on the plant premises, and is ordinarily used
for business conferences. The records shows that about 10 days be-
fore the election a general meeting of Independent stewards was
held in this room, and that the greater part of this meeting was
devoted to a discussion of election strategy. The Independent's con-
tract with the Company makes no provision for use by the former of
the conference room, although it does contain a clause that "in all
matters which are not provided for by the terms of this agreement,
previous customs and practices shall prevail." There is evidence in-
dicating that on occasions prior to this meeting, on specific request
and express permission by the Company, the conference room had
been made available to the Independent for the purpose of consider-
ing grievances.- However, neither Weeks, the Independent's presi-
dent, nor Bayard, its chief steward, was able to recall any prior
occasion when a general meeting of stewards had been held in that
room. Whileothere is no affirmative evidence to show that company
officials had knowledge that the meeting would be devoted principally
to election planning, in view of the fact that the election campaign
was then at its crest, we are of the opinion, and find, that the Com-
pany should reasonably have foreseen, when it granted permission'
to the Independent to use this room, that the meeting would be. used
for campaign purposes. Under the circumstances, the Company's
express acquiescence in the use by the Independent of this company
facility, a use not expressly sanctioned by the contract, constituted,
as we find, an action of assistance to the Independent in its election
campaign.
While thus extending special privileges to the Independent and
failing to police the electioneering activities of Independent officials,
i
JOSHUA HENDY IRON WORKS 1417
the Company, contrary to is expressed policy of according equal treat-
ment to both sides, undertook to curb like campaign activities on the
part of I. B. E. W. adherents 4 This is reflected in part by the
following incidents :
Assistant Superintendent Carberry, on an occasion about 10 days
before the election, found Robert A. Kraemper, a rigger and an
avowed and active I. B. E. W. adherent, absent from the scene of a
lift which he had been assigned, and reprimanded him. Kraemper
testified credibly that Carberry on this occasion warned him "to stop
talking this union activity," and coupled this warning with a state-
ment that : "We have a union here, we are very well satisfied with
it." Carberry's reference to union activity was gratuitous since it
is uncontroverted that Kraemper, on the occasion of this reprimand,
was not engaged in union activity, but was executing a work assign-
ment pursuant to instructions of his supervisor. Moreover, Car-
berry's admonition was not limited to Kraemper's activities on com-
pany time but was directed as well to Kraemper's activities on his own
time. In reply to Carberry's warning "to stop talking this union
activity," Kraemper told Carberry, "I will stop when you stop your
shop stewards from talking." "
Kraemper further testified that Night Foreman Harry Allen came
to his machine about a week before the election and said :
"Bob, I want to tell you that you will have to stop your Union
activities around the shop. Mr. Carberry tells me you are talk-
ing a lot about unionism. You better stop. I don't think that
you are doing it, but they claim you are doing it."
When asked, "Did he say what would happen if you did not?",
Kraemper answered : "Well, he says, `You know what the results
are." 6
4 On March 1, 1943, the Company issued to its employees a notice, agreed upon following
a conference of interested parties at the Board 's Regional Office, advising them that the
Board was considering the rival representation claims of the unions involved herein, and
stating : "The Company's position in such matters is strictly neutral. Its policy is one of
fair and equal treatment to all" ( emphasis supplied ). The notice further requested em-
ployees to refrain from discussion or activities in connection with the rival claims during
working hours and on the company premises However, as herein found , the restriction on
union activity during working hours was not impartially enforced
° Carberry admitted that he had reprimanded Kraemper on this occasion , that he had
become "quite mad" at the time, and that he had later learned that Kraemper was not
"roaming" but was engaged in work pursuant to his supervisor 's instructions . His denial
that be at that time spoke to Kraemper concerning union activities does not square with
his unexplained haste in reprimanding Kraemper before checking with Kraemper's super-
visor or otherwise attempting to ascertain whether Kraemper was improperly absent from
his place of work. we, therefore , find that Carberry made the statements concerning union
activities substantially as testified by Kraemper.
Although Allen denied making this statement , wedo not credit his denial. Allen's testi-
mony in certain other respects was contradictory . As we have found above , Kraemper was
a credible witness.
1418 DECISIONS OF NATIONAL_ LABOR RELATIONS BOARD
Since the selection of bargaining representatives is the exclusive
concern of the employees, the Board requires that an employer during
and before an election shall observe a policy of scrupulous neutrality
and shall refrain from any action which may be interpreted as favor-
ing any contestant to the election. From the record in this case it
is clear that the Company did not adhere to that policy. That it'
was the policy of the Company to favor the Independent is disclosed
not only by Carberry's statement to Kraemper that "We have a
union here, we are very well satisfied with it," but also by the testimony
of the Company's industrial relations manager, Mason, who admitted
that in granting a request made in April 1943 by the Independent's
grievance committee for a wage increase to an employee who under
an established Company policy was not then entitled to, the increase,
he had been motivated in part by a desire "to give the [Independent]
union prestige." In the light of the Company's predilection for the
Independent, as manifested by Mason's admission and Carberry's
statement, we are impelled to this conclusion : that the special privi-
leges outside the contract allowed to the Independent and denied the
I. B. E. W. and the Company's unequal treatment in allowing Inde-
pendent officials in abuse of their contractual privileges to circulate
unchecked through the plant on company time and for campaign
purposes, while rigidly policing the movements and campaign activi-
ties of I. B. E. W. adherents, as above described, were calculated to
and did interfere with the exercise by,the employees of their free
choice of bargaining representatives. In view of the closeness of the
vote, we are of the opinion that the Company's acts of commission and
omission, noted above, constituted substantial interference with the
election, and that the election may not therefore be considered as
constituting a fair test of the employees' desires as to representation.
For these reasons and to the extent indicated above, we sustain the
Union's objections to the conduct of the election, and shall direct that
the election be set aside. We shall not, however, direct a further
election until such time as the Regional Director advises that one may
appropriately be held among the employees in the unit hereinbefore
found appropriate.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby vacates and sets aside the election held in
this proceeding on June 2, 1943, and the result thereof.