Eagle Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 7, 1938

6 N.L.R.B. 492 (N.L.R.B. 1938)

In the Matter of EAGLE MANUFACTURING COMPANY and STEEL WORK-
ERS ORGANIZING COMMITTEE
Cases Nos. C-V8 and R-390.-Deoided April 7, 1938
Oilers and Oil Containers Manufacturing Industry--Interference, Restraint,
or Coercion: efforts to discredit "outside" labor organization ; prior attempts to
institute employee representation plan ; employer-conducted election to poll
strength of "outside" union-Strike: precipitated by refusal to sign contract
with recognized majority representative-Company-Dominated Union: suggest-
ing formation of "inside" union ; domination and interference with formation
and administration of; support of; recognition of, as representative of majority
of employees ; contract with, signed without prior negotiations or discussions
of terms; disestablished as agency for collective bargaining-Contract: ordered
to cease giving effect to-Investigation of Representatives: controversy con-
cerning representation of employees : prior recognition of petitioning union as
exclusive representative withdrawn and recognition refused-Unit Appropriate
for Collective Bargaining: all employees except foremen, assistant or subfore-
men, supervisory employees, office and clerical workers, watchmen, guards,.
policemen, and salaried employees-Election Ordered
Mr. Henry Shore, for the Board.
Mr. A. Pinsky, of Wellsburg, W. Va., for the respondent.
Mr. W. F. Elcessor, Mr. W. E. Pyle, and Mr. Wilmore Kenney, of
Wellsburg, W. Va., for the Alliance.
Mr. Paul Rusen, of Steubenville, Ohio, and Mr. Thomas Frew, of
Toronto, Ohio, for the S. W. O. C.
Mr. David Y. Campbell, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On August 13, 1937, Steel Workers Organizing Committee, herein
called the S. W. O. C., on behalf of Lodge No. 1318, Amalgamated
Association of Iron, Steel and Tin Workers of North America, herein.
called the Lodge, filed with the Acting Regional Director for the
Sixth Region (Pittsburgh, Pennsylvania) a petition alleging that a
question affecting commerce had arisen concerning the representation
492
DECISIONS AND ORDERS 493
of employees of Eagle Manufacturing Company, Wellsburg, West
Virginia , herein called the respondent , and requesting an investiga-
tion and certification of representatives pursuant to Section 9 (c)
of the National Labor Relations Act, 49 Stat . 449, herein called the
Act.
On October 6, 1937, Paul Rusen, the subregional director of
the S. W. O. C., filed with the Acting Regional Director charges
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of the
Act. Thereupon, on October 27, 1937, the National Labor Rela-
tions Board, herein called the Board, by Charles T. Douds, its Acting
Regional Director , issued its complaint against the respondent , alleg-
ing that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce , within the meaning of Section
8 (1) and (2) and Section 2 (6) and (7) of the Act. On October
18, 1937, the Board, acting pursuant to Article II, Section 37 (b),
and Article III, Section 10 (c) (2), of National Labor Relations
Board Rules and Regulations-Series 1, as amended, ordered that
the cases be consolidated for the purposes of a hearing , and acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
said Rules and Regulations , ordered an investigation on the petition
and authorized the Acting Regional Director to conduct it and to pro-
vide for an appropriate hearing upon clue notice. Notices of hearing
on the complaint and the petition were issued and duly served, to-
gether with copies of the complaint, upon the respondent, the S. W.
O. C., and upon the Eagle Employees Alliance, herein called the,
Alliance, a labor organization alleged in the complaint to be domi-
nated by the respondent.
The complaint alleged - in substance ( 1) that during the period from
March through July 1937, the respondent, through its officers and
agents caused the formation of the Alliance among its employees, at
the same time expressing opposition to other labor organizations,
and at all times has dominated the same, and has contributed finan-
cial and other support thereto; and (2) that the respondent by such
acts and other acts has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
On November 3, 1937, the respondent filed its answer , admitting
the allegations of fact as to the interstate character of its business,
admitting that it had bargained with the S. W. O. C. as the exclu-
sive bargaining agent of its employees until it recognized the Alli-
ance as majority representative upon the presentation of proof of its
membership by the latter, admitting that it entered into a contract
with the Alliance on October 4, 1937, as representing the majority of
494 NATIONAL LABOR RELATIONS BOARD
the respondent's employees, but denying that it had engaged in
unfair labor practices, and denying that these activities affected com-
merce. On the same date, the respondent also filed separate motions
to dismiss the complaint and the petition on the ground that the
Board lacked jurisdiction, also stating as grounds for the motion to
dismiss the complaint, that the complaint was improperly issued in
violation of Article III, Sections 3 and 5, of said Rules and Regula-
tions, since the charge failed to state properly the address of the re-
spondent and was not sworn to until 2 days after it was filed (al-
though the charge was sworn to prior to the issuance of the; com-
plaint, and although the complaint properly stated the correct ad-
dress of the respondent).. These motions having been renewed orally
at the hearing, both were overruled by the Trial Examiner on all
grounds assigned. On November 3, 1937, also, the Alliance filed a
denial, in the nature of an answer, of those allegations of the coin-
plaint that it was dominated and caused to be formed by the respond-
ent. On November 10, 1937, the Alliance filed its motion to intervene,
which was granted by the Trial Examiner at the hearing. These
rulings are hereby affirmed.
Pursuant to notice, a hearing was held on November 11, 12, 13, and
15, 1937, at Wellsburg, West Virginia, before Charles E. Persons, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel, and the S. W. O. C. and the
Alliance were represented and participated- in the hearing. The re-
spondent, while participating in the hearing, declined to introduce
any evidence other than the testimony of one of its officers which
apparently was intended to go to the issues of the Board's jurisdic-
tion and the appropriate unit, evidently relying on its prior motions
to dismiss on jurisdictional grounds, which were renewed at the
close of the Board's case in a motion to dismiss that assigned also the
Board's failure to sustain the burden of proof, and a number of
other grounds. The motion was overruled by the Trial Examiner,
which ruling we hereby affirm. Full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. During the course of
the hearing the Trial Examiner made other rulings on motions and
on objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
The Trial Examiner's Intermediate Report was duly filed with the
Acting Regional Director and duly served on all the parties. The
S. W. O. C. and the Alliance filed no exceptions thereto. The Board
having" granted an extension of time for the filing of exceptions to
the Intermediate Report by the respondent, the respondent filed its
DECISIONS AND OI{DER{S 495
exceptions thereto on March 24, 1937. No opportunity for oral argu-
ment was requested. We have considered the respondent's excep-
tions to the Intermediate Report and find them to be without merit
except as hereinafter indicated.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Eagle Manufacturing Company, is a corporation
organized in 1897 and existing under the laws of the State of West
Virginia, having its office and principal place of business at Wells-
burg, West Virginia. Since 1924 -the respondent has been engaged in
manufacturing and selling oilers, of the types used on railroads and
for oiling various kinds of machinery, oil containers with spouts,
of the type used in garages and filling stations, and certain special-
ties, such as florists' stands. During 1936 the respondent's volume
of sales was $750,499.14, and during the first three quarters of 1937,
was $663,477.25. The industry is a small one, employing not more
than 1,000 persons, about 23 per cent of whom are employed by the
respondent.
The respondent's products enjoy a national and foreign distribu-
tion through sales agencies located in 24 cities in various States other
than West Virginia and in Hamilton, Ontario, and in Mexico City,
Mexico. About 75 per cent of the raw materials used by the respond-
ent, principally sheet metal, paints, lacquers, and cartons, are received
at the respondent's plant from sources outside the State of West
Virginia. About 95 per cent of the products of the respondent are
shipped from its plant into other States and to foreign countries.
II. THE ORGANIZATIONS INVOLVED
Steel Workers Organizing Committee is a labor organization
affiliated with the Committee for Industrial Organization, represent-
ing Lodge No. 1318, Amalgamated Association of Iron, Steel and
Tin Workers of North America, a labor organization also affiliated
with the Committee for Industrial Organization through the S. W.
O. C., admitting to its membership all employees of the respondent
except supervisory employees (including foremen and subforemen),
office and clerical workers, watchmen, and salaried employees.
Eagle Employees Alliance is an unaffiliated labor organization,
admitting to its membership only employees of the respondent. except
foremen, snbforemen, office workers, and salaried employees.
496 NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The events prior to the strike
Prior to March 1937 there had been no labor organization of any
kind among the respondent 's employees . On March 7 , 1937, Enix
Postelthwait, an employee of the respondent, visited Thomas Frew,
a representative of the S. W. O. C., in Wheeling, West Virginia, as
a preliminary step to forming a local union at the respondent 's plant.
Frew informed Postelthwait as to the procedure to be followed and
gave him some membership application cards, which designated the
S. W. O. C. as the collective bargaining agent. In accordance with
arrangements made at that time, an open meeting was held at Wells-
burg on March 10, 1937, at which time 87 members were obtained,
officers were elected, and application was made for the Lodge's
charter, which was subsequently granted. Among the officers elected
were Enix Postelthwait , as president , and W . E. Pyle, as treasurer.
On the following afternoon, March 11, the respondent, through
its foremen , called a meeting on the plant premises of all its em-
ployees 15 minutes before their regular quitting time. John Paull,
the treasurer of the respondent, addressed the gathering, saying in
substance that the respondent was a small concern in a small town
and asking the nature of the controversy or agitation among the em-
ployees. No one answered his question . Then Paull addressed Pyle
and asked him substantially the same question. Pyle replied that he
did not care to discuss it pro or con , and that there was a great deal
of movement over the country for labor organization. The meeting
then broke up. The employees were paid for the time spent in the
meeting.
About March 12, 1937, a notice was posted in the plant, over the
signature of H. W . Paull, the respondent 's president , in the following
terms :
Notice
This Company recognizes the right of its employees to form a
Company Union . That is, a Union composed only of the
employees of this Company.
We, will willingly and gladly meet with such a Union, or a
Committee representing the same , at any time for the purpose of
adjusting to the complete satisfaction of its employees , in so far
as it is possible to do so, any and all differences that may arise
between this Company and its employees.
EAGLE MANUFACTURING COMPANY
(signed) H. W. PAULL
On March 15, 1937, the respondent, by its foremen , notified its em-
ployees of a second meeting, held in the stockroom of the plant 1 hour
DECISIONS AND OI{DERS 497
before regular quitting time. No deduction from pay was made for
attendance at this meeting. John Paull again addressed the em-
ployees, substantially in the same terms as at the prior meeting, add-
ing a suggestion that there was no need for the employees to pay dues
to an outside labor organization. He then said that S. O. Paull, the
respondent's secretary, had a few words to say and a paper to read to
the employees. S. O. Paull then took charge of the meeting and sug-
gested the formation of an independent union, in that connection read-
ing from a paper in his hand. This paper was not introduced in evi-
dence by the respondent, who appears to have possessed the sole copy,
but apparently it was in the form of a petition or agreement for the
formation of an inside union. In reading from the paper and making
his remarks, S. O. Paull suggested that the proposed inside union
might.well be called the "Employees Alliance." The paper was then
placed on a barrel head for the employees to sign, which a few did.
Later the same day, or the next day, S. O. Paull called the Lodge's
committee, composed of Postelthwait and others, into his office and
suggested they sign the above-mentioned paper. This they refused to
do. On March 16, the day following, various foremen solicited the
employees at work to sign the paper. One employee, Pollock, testi-
fied that his foreman, Elwood Cawthon, approached him and asked
him to sign "the Company Union thing that Sam Paull had yester-
day." Cawthon also remarked to Pollock, "Walter, you should be
smart enough to know they don't want no outside union."
None of these facts are refuted by the respondent. It is clear, there-
fore, that the respondent knew immediately of the formation of the
Lodge, and quickly set out on a campaign to influence its employees
against it, at the same time starting a counter-movement to establish
a company-dominated union.
These actions of the respondent were followed by a so-called
"secret" election conducted by the respondent early in April. The
paymaster of the respondent gave to each of the employees, while at
work, ballots on which they were to mark their choice for the "com-
pany union, C. I. 0., or no union." The ballots were collected by the
foremen and taken to the respondent's office. The results of the elec-
tion were never announced, and the respondent fails both to deny these
facts and to throw any light upon the results of the election. In view
of the respondent's purpose as evidenced by its prior actions, it may
be inferred that the results were unfavorable to the outcome of its
plan to establish an inside union. In any event, the respondent's
activities in this direction were abruptly suspended at this point.
In the meantime, the Lodge, acting through the S. W. O. C., began
to represent the employees in several grievances against the respond-
ent. At least one grievance was adjusted satisfactorily, at the behest
498 NATIONAL LABOR RELATION S-BOARD
of the S. W. O. C. On April 16, 1937, the S. W. O. C. submitted to
the respondent by letter a proposed contract, and the respondent
replied, indicating a willingness to negotiate. Both from the admis-
sions in the respondent's answer and from the testimony, it is clear
that respondent recognized the S. W. O. C., acting on behalf of the
Lodge, as the exclusive bargaining agent of its employees. At no-
time during the various conferences and negotiations which took
place in the period beginning March 16, 1937, and ending about
August 5, 1937, within which time the strike occurred, did the re-
spondent question the right of the S. W. O. C. to act as exclusive
bargaining agent, and at no time did the respondent request proof
that a majority of its employees were members of the Lodge. Rather,
the respondent appeared to have been satisfied with the claims of the
S. W. O. C. and the Lodge. It is significant that during the early
months of union activity the respondent kept in touch with the devel-
opment of the organization movement by questioning Postelthwait
and other members of the Lodge regarding events at Lodge meetings.
It may be safely assumed, therefore, from the uncontradicted testi-
mony as to the respondent's attitude and actions, that at the time of
the strike, on June 11, 1937, the Lodge had a substantial majority of
the respondent's employees in its membership.
On June 3, 1937, a conference was held between the officers of the
respondent and the Lodge committee and representatives of the
S. W. _O. C., for the purpose of discussing the contract submitted to
the respondent in April. Wages, hours, and other conditions and
terms of employment were discussed, but the conference adjourned
upon the unqualified refusal of the respondent to sign a contract with
,he S. W. O. C. or any other labor organization. This flat refusal to
sign a contract fomented dissatisfaction among the members, so that.
at a meeting of the Lodge that evening, June 3, the S. W. O. C. repre-
sentatives with difficulty restrained the members from a strike vote.
On June 11, 1937, employees in the moulding department went on
strike as the result of the respondent's refusal to grant certain pay
increases. This was the spark that struck the smouldering dissatis-
faction of the employees, quickly resulting in a spontaneous strike of
,the entire plant. At a meeting that evening, the, Lodge officially rec-
ognized and took charge of the strike. On that night also, the repre-
sentatives of the S. W. O. C. visited H. W. Paull, S. O. Paull, and
John Paull, the respondent's president, secretary, and treasurer, re-
spectively, again requesting the respondent to enter into negotiations
for a contract, so as to keep the plant in operation. Again the request
was denied, these officials of the respondent refusing even to discuss
the matter.
The strike continued until July 20, 1937, with other efforts being
made by the S. W. O. C. and the Lodge to obtain a settlement. During
DECISIONS AND ORDERS 499
this period the operations of the respondent were at a standstill. On
July 20 the strike was settled on the basis of the reinstatement of the
strikers and memoranda given to the Lodge by the respondent cover-
ing employees in the several departments . The memorandum for the
pressing department, which is in evidence, specified certain hourly
rate increases , a $5 daily minimum for operators on piece work, the
granting of seniority rights, and the recognition of certain holidays;
it refused to grant vacations with pay. Other memoranda were sub-
stantially similar in contents. The employees then returned to work,
beginning on July 21, 1937, without, however, obtaining a reversal
of the respondent 's position against entering into a signed contract.
During the strike, the settlement was delayed by the disinclination
of the respondent to meet with representatives of the S. W. O. C. On
several occasions during the strike, Gail Postelthwait , the brother of
Enix , and likewise an active member of the Lodge, attempted to ar-
range conferences with the respondent , each time being told that the
respondent would be glad to meet with the committee from the Lodge,
so long as no S. W . O. C. representatives were present.
B. The domination of the formation and administration of the
Alliance
On July 9, 1937, during the strike, a back-to-work meeting was
called by W. E. Pyle and Wilmore Kenney, both employees of the
respondent, later elected vice president and committee secretary, re-
spectively, of the Alliance. Pyle was the employee singled out by
John Paull at the first stockroom meeting on March 11 to state the
cause of the unrest. Pyle, who had been elected the original treas-
urer of the Lodge, had meanwhile relinquished his office. This meet-
ing was held at one of the city's fire houses, which was obtained
rent-free for the occasion. Employees attending the meeting were
asked to vote in favor of returning to work, without terms being
specified, and 60 so voted. Balloting was conducted under the
auspices of an ex-mayor of Wellsburg , the city fire chief, and a
hardware merchant. The ballots were taken away by Pyle and
Kenney and the results later announced in the newspaper.
The next day, July 10, Pyle .and Kenney circulated a petition
among the employees which was headed as follows :
We the undersigned do hereby agree that we will return to
work with union recognition other than the C. I. 0., the union to
be decided by majority of employees signing this petition.
A total of 121 signatures were obtained , which was a majority of
the employees. Among the signers were a subforeman and W. F.
Elcessor, another supervisory employee.
500 NATIONAL LABOR R ELATIONS BOARD
Elcessor is shown on the respondent's pay roll for October 9, 1937,
which is in evidence, as the foreman of the printing department.
The respondent, however, contends that this designation is incorrect,
and that Elcessor is head printer. It appears that Elcessor is paid
on an hourly basis while other foremen are paid by the month.
Nevertheless, it is clear that Elcessor occupies the same position with
respect to other employees in the printing department as do other
foremen with respect to their subordinates. He is paid at a higher
rate than other printing department employees. He is responsible
for the work of the department. He supervises and directs the
work and recommends the hiring and discharging of employees. He
is, therefore, the immediate representative of the respondent in deal-
ing with that portion of its working force in the printing depart-
ment. Elcessor was elected president of the Alliance at its organ-
ization meeting on July 18, 1937.
The testimony is uncontradicted that in circulating the petition
Pyle and Kenney represented that it came from the respondent, who
they stated had professed to them a willingness to sign a contract
with the American Federation of Labor. It appears from the evi-
dence that these representations were the bases for obtaining a num-
ber of the signatures.
Some of the members of the Loclge, however, became suspicious that
the petition was in the nature of a trap set by the respondent to bring
about the establishment, of a company-dominated union. Accord-
ingly, on July 11, 1937, a group of such employees called upon
S. O. Paull to confirm the rumor that the respondent was willing to
sign a contract with the American Federation of Labor. In response,
Paull stated that the respondent would not sign such a contract with
the American Federation of Labor or any other labor organization.
Paull then said that he did not know much about the American
Federation of Labor except that it was a recognized labor organiza-
tion. Further, Paull asked why the employees paid dues to an out-
side labor organization, for which they received no returns. Then
he said, "I would suggest we get a plan of our own, something like
the Weirton plan," and extolled the virtues of such a plan. The
employees understood his reference to the Weirton plan, with which
they were familiar, inasmuch as Weirton is located only 12 miles
from Wellsburg and since some of the employees had had personal
contact with similar employee representation plans in other plants.
During the conversation Paull at first denied knowledge of the peti-
tion being circulated by Pyle and Kenney, and later admitted to
having read it.
On July 18, 1937, another meeting was held in one of the fire
houses. Admission was restricted to the employees who had signed
DECISIONS AND ORDERS 501
the petition and those who wished to sign at the door. At this time
Pyle and Kenney addressed the meeting to the effect that they had
talked to a representative of the Weirton Security League and to
a representative of the American Federation of Labor, that the dues
in the latter organization were too high and therefore they recom-
mended a plan patterned after the former organization. A vote was
then taken as between the American Federation of Labor and the
employees union, with the latter winning by a count of 54 to 22.
The vote was then made unanimous upon motion. Officers were
then elected and an organization formed, no name as yet having been
chosen.
On the morning of July 19, 1937, Kenney visited the secretary of
the Weirton Security League, discussed the formation of the organi-
zation at Wellsburg, and obtained copies of the League's grievance
procedure and forms. Kenney then returned to Wellsburg where he
met Elcessor. Pyle, and apparently others, and reported the results of
his visit to Weirton. It was then decided to have some application
cards printed. At this time, so it is testified by Elcessor, when they
were casting about for a name for the new organization, someone sug-
gested the title, Eagle Employees Alliance. Elcessor disclaims any
connection with the almost identical name suggested by S. O. Paull at
the second stockroom meeting on March 15, when the respondent
rather openly attempted to cause the formation of an inside union.
The application cards were then printed by a printer at the personal
expense of Elcessor, Pyle, and Kenney, according to their testimony.
This fact we are inclined to doubt, since Elcessor as head printer must
have .had access to the facilities in the respondent's printing depart-
ment, and must have known that the respondent would have had little
or no objection to his so using the facilities in view of the obvious favor
with which the respondent had looked upon the establishment of an
inside union among its employees. It is reasonable to assume that
the three' nien, all wage earners, would ordinarily adopt such an ap-
parent economy, particularly since the Alliance had just been formed
and as yet had no treasury.
By the end of July the Alliance was alleged to have been sufficiently
strong to ask the respondent to recognize it as the majority representa-
tive. Thus, within 20 days after the idea was first formulated, accord-
ing to Elcessor's testimony, the Alliance was formed and had grown
to represent a majority of the respondent's employees. Although no
definite examples of individual discriminations are shown in the rec-
ord, it is obvious that the respondent's wishes were communicated to
its employees by the actions and general attitude of its officers. It is,
we think, highly significant that Elcessor admitted, upon cross-exam-
ination, that he first heard of the inside-union idea about a week be-
502 NATIONAL LABOR RELATIONS BOARD
fore the organization was formed, that is about July 11, the date on
which S. O. Paull remarked to a group of employees in connection
with the Pyle and Kenney petition that he suggested "we get a plan of
our own, something like the Weirton plan." It is also important to
note that the rumors accompanying the circulation of the petition on
July 10 dealt not with an inside union, but with the American
Federation of Labor.
From these facts it is clear that, having unsuccessfully attempted
to sow the seed of a company-dominated inside union (tentatively
designated as the "Employees Alliance") in March, and having ob-
served the growing strength of the Lodge through questioning cer-
tain of the members as to its development and, in reasonable prob-
ability, through the results of its employer-conducted election in
April, it resolved to bide its time and to change its strategy of
attack against the Lodge. Thus, the respondent's officers met with
representatives of the Lodge and of the S. W. O. C. and recognized
their authority to bargain, but refused to grant their requests,
except concerning minor grievances. The respondent finally held
the long-awaited conference to discuss the negotiation of a con-
tract, after delaying for over a month, but then refused the union
requests and unqualifiedly denied the union's fundamental de-
mand for a signed contract, thus creating discontent and dissatis-
faction among the members of the Lodge. During the strike the
respondent unnecessarily prolonged the strike by refusing to discuss
the negotiation of a contract and failing to meet with outside S. W.
O. C. representatives, the duly chosen collective bargaining agents of
the majority of its employees. We think the purpose of this coulase of
action was to discredit the S. W. O. C. among the employees, and to
lay the foundations for a second attempt to establish a company-
dominated inside union by first engendering impatience and dissatis-
faction among the members of the Lodge with the failure of the
S. W. O. C. to secure tangible results. This conclusion is corroborated
by the fact that, as soon as the new inside union was safely launched,
with one of the respondent's foremen installed as its president, the
respondent quickly settled the strike. Further, the respondent settled
the strike, not with the S. W. O. C., but with Enix Postelthwait, thus
inferentially emphasizing that its employees were better able to bar-
gain collectively when acting independently of an outside labor or-
ganization. It is interesting also to note that the terms of the strike
settlement memoranda contain substantially the same terms and con-
ditions of employment as the corresponding clauses in the contract
submitted by the S. W. O. C. in April, a fact which would seem to
indicate that these requests were not considered unreasonable by the
respondent.
DECISIONS AND ORDERS 503
When the Alliance requested recognition as the majority repre-
sentative it turned over to the respondent its only records of mem-
bership, the application cards. Within 4 or 5 days the respondent
granted the Alliance recognition, without prior opportunity being
afforded the Lodge to produce proof of its membership. About
August 5, 1937, S. O. Paull called the president of the Lodge to
his office and informed him that he, Paull, had locked in his desk
the membership cards of the Alliance as proof of the latter's majority,
and that the respondent would no longer recognize the S. W. O. C.
on behalf of the Lodge as bargaining agent. At the same time Paull
asked Postelthwait if he would sign with the Alliance, which the
latter refused to do. The membership cards of the Alliance were
kept by the respondent, although the Alliance was granted recogni-
tion on August 5, until October 5, 1937, when they were returned
to the Alliance for use in preparation for the instant proceeding.
The petition having been filed on August 13, 1937, the S. W. O. C.
and the Lodge made numerous attempts to confer with the respond-
ent's officials in order to arrange for an election to be held by the
Board's Acting Regional Director for the Sixth Region upon the con-
sent of all the parties. The S. W. O. C., however, was unable to
reach an official of the respondent until about the middle of Septem-
ber. On September 18, 1937, the S. W. O. C. in a letter to the re-
spondent claimed to represent a majority of its employees and for-
mally requested the making of an agreement for a consent election.
The respondent replied by letter on September 21, 1937, stating that
the proposal had been taken under advisement. The following day,
September 22, the Alliance voted a resolution appointing Kenney,
Pyle, and Elcessor as a committee to negotiate a contract with the
respondent. On September 23, 1937, the respondent wrote to the
S. W. O. C., stating that it was neutral in regard to the proposed
election and that it was a question to be decided by the S. W. O. C.
and its employees. -
This committee of the Alliance proceeded to draft a contract, pat-
terned after the information and data previously secured from the
Weirton Security League, and on Saturday, October 2, 1937, sub-
mitted the contract to the respondent , without any prior negotia-
tions or discussions whatsoever - with the respondent . The hitter asked
for time to study the proposed contract, and had it retyped. On
Monday, October 4 , 1937 , at about 11 a. m., the respondent called in the
committee of the Alliance and again without discussion of its terms
or any change therein both parties signed the contract.
Thus was reached the climax of the 8 months' campaign of the
respondent to discredit the Lodge and the S . W. O. C. and to bring
about the establishment of a company -dominated and company-
controlled inside union.
80618-38-voL vi-33
504 NATIONAL LABOR RELATIONS BOARD
The terms of the contract grant no substantial concession not
already possessed by the employees through the efforts of the
S. W. O. C. and the Lodge. A procedure for settling grievances,
which is of doubtful practicability, is provided. On the other hand,
the question of wages is left open pending the findings of efficiency
experts employed by the respondent, over whose findings the Alliance
has no control.
We find that by the foregoing acts the respondent has dominated
and interfered with the formation and administration of the Eagle
Employees Alliance and has contributed support to it, and that by
such acts, and by other acts described in Section III A, the respond-
ent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that 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
with foreign countries, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Inasmuch as we have found that the respondent has dominated
and interfered with the formation and administration of the Eagle
Employees Alliance and has contributed support to it, in addition
to ordering the respondent to cease and desist from its unfair labor
practices, we shall affirmatively require the respondent to withdraw
all support and recognition from the Alliance and to disestablish
it as an organization representing the respondent's employees for the
purposes of dealing with the respondent in matters of collective bar-
gaining, and to cease giving effect to its contract with said organi-
zation.,
VI. THE QUESTION CONCERNING REPRESENTATION
The respondent recognized the S. W. O. C., on behalf of the
Lodge, as the representative of a majority of its employees and as
the exclusive bargaining agent therefor, until August 5, 1937. On
such date the respondent notified the president of the Lodge that
the Alliance had proven its right to represent a majority of the
employees and that the respondent would no longer recognize the
i In Matter of Cating Rope Works, Inc. and Textile Workers Organizing Committee,
C. 1. 0., 4 N. L . R. B. 1100; In Matter of The Jacobs Bros . Co, Inc and United Electrical
and Radio Workers of America, Local No. 1226, 5 N . L R B 620, In Matter of Titan
Metal Manufacturing Company and Feder at Labor Union No 19981 , 5 N. L R B. 577 ,
DECISIONS AND ORDERS 505
right of the S. W. O. C. on behalf of the Lodge to represent a
majority of the employees. Subsequently, on October 4, 1937, the
respondent entered into a contract with the Alliance, which we
have found had its inception in the unfair labor practices of the
respondent. This contract was entered into at a time when the
S. W. O. C. was claiming to act as majority representative, and
without any investigation by the respondent of the validity of the
claims advanced by the S. W. O. C.
We find that a question has arisen concerning representation of
employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above,, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States,
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
The S. W. O. C. and the Alliance both request the plant unit as
the appropriate one. The S. W. O. C. contends that such unit should
include all employees of the respondent except supervisory employees,
foremen, assistant or subforemen, office and clerical workers, watch=
men, guards and policemen, and salaried employees. The Alliance
contends that only foremen, assistant foremen, office and clerical
workers, and salaried employees should be excluded from the appro-
priate unit.
There is a dispute about the eligibility of W. F. Elcessor, the
president of the Alliance. Since we have found that he is in fact
the foreman of the printing department, he will be excluded from
participation in the election.
The Lodge does not admit to membership supervisory employees
and watchmen. Inasmuch as we are ordering the disestablishment
of the Alliance, the eligibility to membership in the Lodge, since it
is fixed by standards that appear to be reasonable, should be con-
trolling.
We find that all employees of the respondent, except foremen,
assistant or subforemen, supervisory employees, office and clerical
workers, watchmen, guards, policemen, and salaried employees, con-
stitute a unit appropriate for the purposes of collective bargaining
and that said unit will insure to employees of the respondent the
full benefit of their right to self-organization and to collective
bargaining and otherwise effectuate the policies of the Act.
506 NATIONAL LABOR RELATIONS BOARD
IX. THE DETERMINATION OF REPRESENTATIVES
We have found that at the time of the strike, on June 11, 1937, the
S. W. O. C., on behalf of the Lodge, represented a majority of the
respondent's employees, a fact that was acquiesced in by the respond-
ent according to the admissions in its ans`ver. That right to repre-
sent the majority of the employees was reasserted by the S. W. O. C.
in its letter of September 18, 1937, to the respondent. Inasmuch as
we are ordering that the respondent withdraw recognition from the
Alliance and that the Alliance be disestablished as a collective bar-
gaining agency, no other labor organization will exist to contest the
claims of the S. W. O. C. However, no signed application cards or
other similar documentary proof of membership were introduced in
evidence. At the hearing, the respondent assumed a neutral position
with respect to the holding of an election.
We believe that, under these circumstances, the question concern-
ing representation can best be resolved by the holding of an election
by secret ballot. The S. W. O. C. requests that the pay roll of Octo-
ber 9, 1937, which is in evidence, be used as a basis for determining
eligibility to vote in the election, and there is no testimony indicating
that another date is more suitable for the purpose. Accordingly, we
shall direct that all employees in the appropriate unit whose names
appear on the pay roll as of October 9, 1937, shall be eligible to vote
in the election. We shall not order said election to be held, however,
until we are satisfied that the effects of the respondent's unfair labor
practices have been dissipated.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Steel Workers Organizing Committee, Lodge No. 1318 of Amal-
gamated Association of Iron, Steel, and Tin Workers of North Amer-
ica, and Eagle Employees Alliance are labor organizations, within the
meaning of Section 2 (5) of the Act.
2. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
-within the meaning of Section 8 (1) of the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of the Eagle Employees Alliance, and by
contributing support to said organization, has engaged in and is en-
gaging in unfair labor practices, within the meaning of Section 8 (2)
of the Act.
DECISIONS AND ORDERS 507
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
-5. A question affecting commerce has arisen concerning representa-
tion of employees of the respondent, within the meaning of Section
9 (c) and Section 2 (6) and (7) of the Act.
6. All employees of the respondent, except foremen, assistant or
subforemen, supervisory employees, office and clerical workers,
watchmen, guards, policemen, and salaried employees, constitute a
unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor 'Relations Act, the
National Labor Relations Board hereby orders that Eagle Manu-
facturing Company and its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
Eagle Employees Alliance, or with the formation or administration
of any other labor organization of its employees, or from contribut-
ing financial or other support to the Eagle Employees Alliance or
any other labor organization of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives 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 National
Labor Relations Act;
(c) Giving effect to its contract with Eagle Employees Alliance.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from the Eagle Employees Alliance
as a representative of its employees for the purposes of dealing with
the respondent concerning grievances, labor disputes, rates of pay,
wages, hours of employment, or other conditions of employment, and
completely disestablish the Eagle Employees Alliance as such
representative;
(b) Post immediately in conspicuous places throughout the plant,
and maintain for a period of at least thirty (30) consecutive days,
notices stating (1) that the respondent will cease and desist as afore-
said; and (2) that the respondent withdraws and will refrain from
508 NATIONAL LABOR RELATIONS BOARD
A
all recognition of Eagle Employees Alliance as a representative of
its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, rates of pay, wages, hours of
employment, or other conditions of employment, and completely
disestablish it as such representative ;
(c) Notify the Regional Director for the Sixth Region, in writing,
within ten (16) days from the date of this order, what steps the
respondent has taken to comply herewith.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor
Relations Act, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for collective bargaining with Eagle
Manufacturing Company, an election by secret ballot shall be con-
ducted upon further order of the Board under the direction and
supervision of the Regional Director for the Sixth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 9, of said Rules and Regulations,
among the employees of Eagle Manufacturing Company, whose names
appear on the pay roll of October 9, 1937, except foremen, assistant
or ' subforemen, supervisory employees, office and clerical workers,
watchmen, guards, policemen, salaried employees, and those who
since have quit or been discharged for cause, to determine whether
or not they desire to be represented by Steel Workers Organizing
Committee, on behalf of Lodge No. 1318 of Amalgamated Association
of Iron, Steel, and Tin Workers of North America, for the purposes
of collective bargaining.