Excel Curtain Co., Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1940

25 N.L.R.B. 557 (N.L.R.B. 1940)

In the Matter of EXCEL CURTAIN COMPANY, INC. and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LODGE 1384 and FACTORY COMMITTEE,
PARTY TO THE CONTRACT
Cases Nos. C-1450 and R-1555.-Decided July 16, 1940
Jurisdiction : automobile parts manufacturing industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: interrogation concerning union member-
ship ; coercion of employees to sign document governing working conditions.
Company-Doininated Union: employer's participation in formation and admin-
istration of: furnishing meeting place, bulletin boards, and copies of docu-
ment governing working conditions ; permitting employees to engage on com-
pany time in activities on behalf of ; compensating employees for time spent
outside working hours in carrying on business of.
Discrimination: charges of, dismissed.
Collective Bargaining: charges of refusal to bargain, dismissed.
Remedial Orders : company-dominated union disestablished as agency of col-
lective bargaining ; employees ordered upon request to bargain collectively with
the complainant union in the event that the Board certifies it, following an
election directed to be held in the future, as the exclusive representative of
employees in an appropriate unit.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition to union ; election necessary.
Unit Appropriate for Collective Bargaining : tool and die makers and experi-
mental men, excluding foremen.
Mr. Stephen M. Reynolds, for the Board.
Mr. Verne G. Cawley, of Elkhart, Ind., for the respondent.
Mr. L. O. Thomas, of Battle Creek, Mich., and Mr. Paul R. Hutch-
ings, of Washington, D. C., for the Machinists.
Mr. Richard H. Meigs, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On March 29 and September 11, 1939, International Association of
Machinists, Lodge 1384, herein called the Machinists, filed charges
and amended charges, respectively, with the Regional Director for
25 N. L . R. B., No. 65. -
557
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Thirteenth Region (Chicago, Illinois), alleging that Excel Cur-
tain Company, Inc., Elkhart, Indiana, herein called the respondent,
had engaged in and was engaging in certain unfair labor practices
affecting commerce. '
On- March 30, 1939, the Machinists filed with the Regional Director
a petition alleging that a question affecting commerce had arisen
concerning the representation of employees of the respondent and
requesting an investigation and certification of representatives pur-
suant to 'Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. On August 11, 1939,, the National
-Labor Relations Board, herein called the Board, acting pursuant to
Section 9 (c) of the Act and Article III, Section 3 and Section
10 (c) (2), and Article II, Section 37 (b), of National Labor Rela-
tions Board Rules and Regulations-Series 2, ordered an investiga-
tion and authorized the Regional Director to conduct it and to pro-
vide for an appropriate hearing upon due notice, and further ordered,
for the purpose of hearing and all other purposes, that the complaint
case and the representation case be consolidated and that one record
of the hearing be made.
Thereafter, upon the charges and amended charges, the Board, by
the Regional Director, issued its complaint, dated September 11, 1939,
against the respondent, alleging that the' respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and
(7) of the Act. Copies of the complaint and petition, accompanied
by notice of hearing thereon, were duly served upon the respondent
and the Machinists, and upon the Factory Committee, a labor organi-
zation party to a contract with the respondent. On September 25,
1939; at the hearing, the Board amended its complaint so as to allege,
in addition to the allegations contained in the original complaint, the
discriminatory discharge of Louis K. Graff.,
With respect to the unfair labor practices the complaint, as amended,
alleged in substance, that the respondent (1) fostered, dominated, and
interfered with the formation and administration of the Factory Com-
mittee, and contracted therewith and contributed financial and other
support thereto; (2) discriminatorily demoted H. 0 Denman and dis-
charged Andrew Bretz because they joined and assisted the Machinists,
discharged C. E. Hull because he joined and assisted a labor organi-
zation known as Federal Labor Union #20698, herein called the Fed-
eral, and discharged Louis K. Graff because he joined and assisted the
Federal and was an outspoken opponent of the Factory Committee,
thereby discouraging membership in labor organizations; (3) re-
1 On October 2, 1939, the Machinists filed second amended charges , conforming its charges,
as originally amended, to the complaint , as amended at the hearing.
EXCEL CURTAIN COMPANY, INC. 559
fused to bargain collectively with the Machinists, although it repre-
sented a majority of the respondent's employees in an appropriate unit
consisting of tool and die makers and experimental men; and (4) by
the foregoing and other acts interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed-in Section 7
of the Act.
On September 22, 1939, the respondent filed its answer to the
complaint and thereafter, on December 15, 1939, filed an answer to the
amended complaint, in substance denying that it had engaged in the
alleged unfair labor practices.
Pursuant to notice, a hearing was held on September 25; 26, 27, 28,
and 29 and October 2, 3, 4, 5, and 6, 1939; at Elkhart, Indiana, before
William B. Barton, the Trial Examiner duly designated by the Board.
The Board and the respondent were represented by counsel and the
Machinists by its representative; all participated in the hearing. 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 several
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.
On December 15, 1939, the Trial Examiner issued his Intermediate
.Report, copies of which were duly served upon the parties. The Trial
Examiner found that the respondent had engaged in unfair labor
practices affecting commerce within the meaning of Section 8 (1),
(2), and (3) and Section 2 (6) and (7) of the Act. He recommended
that the respondent cease and desist from such practices and that it
withdraw recognition from and completely disestablish the Factory
Committee as a bargaining representative of any of its employees,
offer reinstatement with back pay to Graff, and take certain other
remedial action. He further recommended that the complaint, as
amended, in so far as it relates to Denman, Bretz, and Hull, and to the
respondent's alleged refusal to bargain with the Machinists, be
dismissed.
On February 5 and 16, 1940, respectively, the Machinists and the
respondent filed exceptions to the Intermediate Report. In addition,
the Machinists filed with the Board a motion that it be permitted to
amend its charge, as amended, so as to allege, in addition, the dis-
criminatory discharge of H. O. Denman, and that the record be re-
opened for the purpose of receiving further evidence relative thereto.
Thereafter, on March 16 and April 6, 1940, respectively, the Machin-
ists filed. a brief and' a supplemental brief with exhibits annexed
thereto in support of its motion to reopen the record. On February
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16, 1940, the respondent filed with the Board objections to the granting
of the aforesaid motion of the Machinists, and, thereafter, on April
20, 1940, filed certain affidavits in support of its objections. The
Board has considered the Machinists' motions and the respondent's
objections thereto. The motions are hereby denied.
On March 16, 1940, the Machinists and the respondent filed with
the Board briefs in support of their exceptions to the Intermediate
Report. The respondent also filed a motion to strike the Machinists'
exceptions to the Intermediate Report. The motioi is hereby denied.
On April 4, 1940, pursuant to request therefor by the respondent and
the Machinists and notice thereof to all parties, a hearing was held
before the Board in Washington, D. C., for the purpose of oral argu-
ment. The Machinists and the respondent were represented by counsel
and participated in-the oral argument.
The Board has considered the exceptions to the Intermediate Report
filed by the respondent and the Machinists and, except as they are
consistent with the findings, conclusions, and order set forth below,
finds no merit in them.
Upon the entire record in this consolidated proceeding, the Board
makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Excel Curtain Company, Inc., is an Indiana cor-
poration having its office and principal place of business in Elkhart,
Indiana. The respondent is engaged in the manufacture of automo-
bile specialties, window equipment for trucks and busses, roll sections
and rolling machine product's, and.stampings.
The principal raw materials used by the respondent in its business
are steel, glass, rubber, and fabrics. During the year ending June 30,
1939, the respondent's purchases of raw materials amounted, in value,
to $413,828.90, approximately 85 per cent of which represented ex-
penditures for materials obtained by the respondent from points
outside the State of Indiana.
Net sales of the respondent's products during the same period
amounted in value to $778,591.03, approximately 90 per cent of which
represented sales of products shipped to points outside the State of
Indiana.
IT. THE ORGANIZATIONS INVOLVED
International Association of Machinists, Lodge 1384, is a labor
organization, affiliated with the American Federation, of Labor,
admitting to its membership employees of the respondent.
EXCEL CURTAIN COMPANY, INC. 561
The Factory Committee is an unaffiliated labor organization ad-
mitting to its membership employees of the. respondent.
Federal Labor Union #20698 was a labor organization, affiliated
with the American Federation of Labor, which admitted to its mem-
bership employees of the respondent.-
III. TFIE UNFAIR LABOR PRACTICES
A. Domination of and interference with the formation and admin-
istration of the Factory Committee and contribution of support
thereto
In April 1937, at a meeting of the directors of a benefit associa-
tion of the respondent's employees, known as Excel Mutual Relief
Association, herein called the Association.3 it was proposed to insti-
tute a movement among the respondent's employees to reorganize
the Association along the lines of an unaffiliated labor organization.
According to the testimony of Louis K. Graff, one of the Association
directors, the proposal was generally discussed by those present at
the meeting and "it was agreed that everybody on the board of officers
or directors was to go back to their respective departments and do
everything they could to influence the employees into changing the
Relief Association and reorganizing it and having a reelection of
officers and calling it by a new name." Shortly thereafter, at a
subsequent meeting of the Association directors, Forrest requested
that each submit his report and personal opinion relative to the
progress of the proposed reorganization and stated "that a com-
mittee would be arranged and agreed upon by the employees' union,
and also the management under our new bylaws would be permitted
to select an equal number of men to act as conciliators to go over any
trouble or difficulties or grievances that might come up, and that
they would hold a meeting and discuss these things and thrash them
out.",
Soon after these two meetings of Association directors, and pur-
suant to notices posted on the respondent's bulletin boards, the em-
ployees participated in a secret vote to indicate their desires relative
to the plan. The election resulted in 104 votes being cast against
and 36 in favor of the proposed reorganization.
During the latter part of May 1937 two committees representing
the Federal called on Thomas W. Holt, president of the respondent,
a It appears from the record that the Federal no longer has as members any employees
of the respondent
8 Among the directors who attended this meeting were Edwin M. Sriver , foreman of the
respondent 's roller die department , and \V I3 Forrest , in charge of the respondent's
financial department ,.personnel , and pay roll.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seeking recognition as the exclusive collective bargaining represent-
ative of the respondent's employees. Holt told these committees that
he could not bargain with them in the absence of proof of their
majority representation.
On the day following the last of these conferences, a committee
of three polishers employed by the respondent conferred with Holt
and expressed their desire to be represented for the purposes of
collective bargaining by their own craft union. On this occasion,
according to the testimony of Rodney Fager, one of the committee=
men, Holt questioned the wisdom of paying dues to an outside union
"when the same thing could be accomplished by having an organi-
zation right there in the shop." Hazel Kucela, the respondent's
timekeeper, testified that Holt had made a similar statement on a
previous occasion at a meeting of employees at which he had under-
taken to explain the Act. While Holt denied the statements attrib-
uted to him by Fager and Kucela, the Trial Examiner, who had the
opportunity to observe the witnesses, found that the mutually cor-
roborative testimony of Fager and Kucela was more credible. We
find that Holt made the statements attributed to him by Fager and
Kucela.
At about the same time a group of approximately eight employees
called on Holt and requested his permission to organize a Factory
Committee comparable to one which had functioned at the Curtain Sup-
ply Company.4 Holt advised them that if they could convince him
that they represented a majority of the employees in the plant, he would
recognize them for purposes of collective bargaining. Holt was asked
by one of the group if he could obtain "a copy of the rules and regula-
tions of the Curtain Supply Company arrangement." Holt agreed to
do so and thereafter fulfilled his promise.
At approximately this time two papers were circulated in the factory,
one for signature by employees who favored the proposed plan to re-
organize the Association, and one for signature by those who opposed
the plan. On June 10, 1937, with Holt's knowledge and approval, an
election of representatives was held in the respondent's plant. On the
basis of the election results one representative was chosen to represent
each of the various departments and, in departments where both men
and women were employed, two representatives were chosen, one for
each sex group. The representatives so chosen thereafter constituted
a committee known as the Factory Committee.
' Holt had previously been vice president and general manager of a corporation known
as the Curtain Supply Company, where he had introduced a labor organization similar in
form to the one later established in the respondent's plant. According to Holt this organi-
zation had as its object "primarily to create a better feeling among the employees of the
company, to get closer together and to help bring about my idea of collective bargaining."
[Italics supplied.]
EXCEL CURTAIN COMPANY, INC. 563
On the day of the election employees in the various departments
signed documents authorizing their elected representatives to bargain
collectively for them. In addition to this provision, 12 of the 16 docu-
ments thus signed also authorized the departmental representatives to
enter into agreements with the respondent for a period of 1 year unless
otherwise mutually agreed by the representatives and the respondent.
Edwin L. Schoemann, chairman of the Factory Committee, presented
these documents to Holt, who promised at once "to start" a committee
of supervisory employees, to be known as the Executive Committee, to
represent the respondent. ,
Holt did not check the signatures presented to him by the Factory
Committee against the pay roll of the respondent, but accepted them
at their face value, and, on the basis thereof, recognized the Factory
Committee as the exclusive collective bargaining representative of the
respondent's employees. At approximately the same time Holt fur-
nished Schoemann with a copy of the Curtain Supply Company rules
and regulations, which outlined the form of employee organization
which had existed at that company. Thereafter four members ap-
pointed by the Factory Committee and an equal number appointed by
the Executive Committee began drafting similar provisions to govern
their own organization.
In August 1937 the Factory Committee and the Executive Committee
niet jointly and completed a document known as Excel Curtain Com-
pany, Inc., Factory Rules and Regulations, hereinafter referred to as
the Factory Rules. Holt also attended this meeting. On or about
August 26,1937, the Factory Rules were approved and signed by Schoe-
mann, as chairman of the Factory Committee ; by the respondent's
works manager, John F. LeVan, as chairman of the Executive Com-
mittee; and by Holt, as president of the company. The Factory Rules
were subsequently put into effect without having been submitted to a
general vote by the employees. The document in its final form was pat-
terned after the Curtain Supply Company rules and regulations and
embodied suggestions submitted by Holt, the two Committees, and
various employees. The Factory Rules, apparently intended to serve
as a constitution and bylaws, also contained, inter alia, provisions gov-
erning working conditions and the handling of grievances. The Fac-
tory Rules provided for a Factory Committee, consisting of depart-
mental representatives, and for an Executive Committee, consisting of
the respondent's works manager and all foremen and department heads
"who shall serve on the Committee by virtue of their positions." Under
the Factory Rules, grievances are considered by a joint committee com-
posed of four, appointees each from the Factory Committee and the
Executive Committee, and a final report thereon is subject to Holt's
approval. The Factory Rules do not provide for general meetings of
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's employees. The Factory Rules further required that
they were to "be read by all employees and a copy signed by the employee
shall be kept [by the respondent] in his [personnel] file as a permanent
record."
The respondent, at its expense, had the Factory Rules printed. On'
September 20, 1937, Holt's daughter, the respondent's personnel
director, acting pursuant to BHolt's instructions, posted on the factory
bulletin boards copies of a notice signed by Holt, stating that the
Factory Rules which he had approved would become effective Sep-
tember 22, 1937, The notice concluded with the following paragraph :
I hope that all employees will support this new plan of factory
representation, and that they will give their factory committee-
men, who 'have been duly elected to represent each department
by the majority vote of each department, their whole-hearted
support. I am sure that any just criticism will be welcome, and
I am also sure we will all be benefited in the long run financially,
socially and otherwise.
At the same time Holt directed Miss Holt to furnish each employee
with a copy of the Factory Rules in booklet form and to obtain the
signature of each on a copy to be retained among the respondent's
personnel records. This copy contained the following statement pre-
ceding a space for the employee's signature : "I have read the above
Rules and Regulations and agree to abide by them."
The record clearly shows that the employees were coerced by the
respondent to sign the Factory Rules. Holt testified that if an
employee had refused to sign, without explaining his refusal to Holt's
satisfaction, "I don't believe he would have gone back to work." On
the afternoon of September 20, 1937, Miss Holt reported to_ her father
the refusal of a group of employees in the polishing room to sign the
Factory Rules. Holt directed her to ascertain the reasons for their
refusal to sign. Later on the same day Miss Holt reported that she
"could not get a sensible answer out of them." At the hearing Miss
Holt testified, illustrative of the reasons advanced by the polishers in
explanation of their refusal to sign, that one polisher stated to her
that he desired to do his own bargaining and that another stated that
he "would rather have the right to bargain than those crazy rules."
Similar explanations were given by other polishers.
After receiving Miss Holt's second report at approximately 4 o'clock
in the afternoon, Holt himself entered the polishing room and asked
each polisher "why he had not signed the rules." After receiving
various answers, Holt advised the polishers, "You better read them
over tonight. If you haven't got a copy, why get a copy, and sign
EXCEL CURTAIN COI\MIPANY, iNC. 565
them before you come to work tomorrow morning or give me a good
reason why." Thereafter. Holt instructed Fred A. Heid, foreman of
the polishers , to remove the time cards of the persons who had refused
to sign the Factory Rules and to station himself at the factory entrance
next morning and refuse any recalcitrant employees admittance to
the plant until Holt arrived . Heid, following these instructions, on
the following morning advised the polishers that if they did not sign
the Factory Rules they would not be permitted to work. The polishers,
despite the manifest disapproval of the Factory Rules voiced by them
on the previous day, yielded under the respondent 's coercive tactics
and signed the Factory Rules before Holt arrived at the plant.
The employees who were elected Factory Committee members in
1937 were reelected in 1938 and again in 1939, and the respondent has
continued to deal with such members as representatives of its em-
ployees without questioning their authority so to act. All affairs of
the Factory Committee and Executive Committee are conducted in
the plant. Regular monthly and special meetings are held after work-
ing hours. The respondent paid members of both Committees for
attendance at such meetings. Prior to October 1938 it paid them at
the regular hourly rates received by such members for their work
in the factory. The time spent in attendance at the meetings was
recorded on their time cards by the individual committeemen, and
payment for such attendance .was included in their regular pay checks.
Beginning in October 1938, however, the respondent paid the Com-
mittee members at a flat rate of 50 cents per meeting.
Advocates of the plan to reorganize the Association were permit-
ted to campaign for the reorganization freely during working hours.
Thereafter, members of the Factory Committee openly attended to
Committee business on company time. Holt testified that he did not
regard the Factory Committee as a labor union within the meaning
of a rule of the respondent against conversing about union matters
during working horns Indeed, one Games, an employee, devoted
so much time to the Factory Committee during working hours that
the respondent's works manager requested him to discontinue such
activities. Subsequently, however. Holt advised Schoemann, chair-
man of the Factory Committee. that he "could go ahead on the
company's time" and attend to Factory Committee matters pro-
vided that lie so informed his foreman.
In sumimary, the respondent, through its supervisory employees,
suggested to its employees the formation of an inside labor organ-
ization , subsequently known as the Factory Committee; supplied its
employees with advice as to the form such an organization should
fake; encouraged and coerced its employees to become members
2S-30'36-4 2-N of 2 i---t7
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof and to withdraw support from other labor organizations;
bore certain expenses incidental to the formation of said organiza-
tion; recognized the Factory Committee as the bargaining agent of
its employees without serious question as to its majority representa-
tion, having previously withheld similar treatment from the Federal;
participated in the affairs of the Factory Committee by means of a
complementary organization of supervisory employees known as the
Executive Committee; permitted the Factory Conunittee to conduct
its affairs on company premises during working hours; and paid the
committeemen of- said organization for the time spent in such
activities.
In the light of the foregoing facts, we find that the respondent
dominated and interfered with the formation and administration of
the Factory Committee and contributed financial and other support
thereto. We further find that the respondent thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
We further find that the Factory Rules, in so far as they purport
to constitute a collective bargaining agreement between the resj)ond-
ent and the Factory Committee, are invalid since they were not the
result of collective bargaining between the respondent and the freely
designated representatives of its employees but were executed as an
integral part of the respondent's program of domination of, inter-
ference with, and support to the Factory Committee.
B. Interference, restraint, and coercion
In February 1937 the respondent adopted a form to be filled out
and signed by applicants for positions. One series of questions con-
tained therein solicited the prospective employee to supply informa-
tion concerning his union affiliation and dues-payment status. Fol-
lowing these questions on the form was the statement :
NOTE.-We have no objection to an employee's affiliation with
a reputable organized Labor Union, but we insist that no con-
versation be held on the subject with other employees, or other
persons during working hours. Violation of this rule is cause
for discharge.
The respondent contends that the above-described inquiry into the
union affairs of its prospective employees was innocuous, since it
was not mandatory that the information sought should be given.
We find no merit in the respondent's contention. A refusal to answer
such questions would in itself constitute an answer scarcely less
specific for the respondent's purposes than an articulated answer.
EXCEL CURTAIN COMPANY, INC. 567
That the inquisition was regarded by prospective employees as an,
interference with union activities is indicated by the fact that numer-
ous applicants did not answer the question and at least one appli-
cant who was hired answered falsely in order to conceal his union,
affiliation. Under the circumstances here present, the respondent's'
inquiries interfered with its employees' union activities.
In November 1938 a representative of the Machinists requested the-
respondent to recognize it as the exclusive collective bargaining repre-
sentative of the respondent's tool and die makers and experimental mcii.-
In answer to the respondent's request for proof of majority representa-
tion, the Machinists' representative suggested that a comparison of the,
respondent's pay roll and the union records be made by a responsible-
third party. Instead of consenting to such a comparison, Holt, the-
respondent's president, summoned into his office the respondent's tool,
and die makers and experimental men and requested them to designate-
in his presence their preference for the Machinists, the Factory Com-
mittee, or neither.
The respondent contends that it did not engage in unfair labor-
practices by thus questioning its employees as to their preference in.
the matter of union affiliation since Holt's action was prompted solely-
by a desire to ascertain whether or not the Machinists represented a;
majority. Even assuming the truth of this contention, however, which,
we find diflicnlt to do in view of the fact that the employees were not
told the purpose of the inquisition, the respondent's conduct was in,
violation of the Act. Where the respondent had so forcibly indicated.
to the employees its preference for the Factory Committee, its indi-
vidual polling of the employees as to their preference was an act-
intimidatnng in effect and not conducive to a free choice on the part of
the employees.
We find that the respondent, by questioning its employees as to
their union membership and desires concerning representation,,inter-
fered with. restrained. and coerced its employees in the exercise of ihe.
rights'guaranteed in Section 7 of the Act.5
G See Matter of Trenton Garment Company and International Ladies' Garment Workers,
Union, Local 278. 4 N L R B 1186, Mattel of Commonwealth Telephone Company and
Theodore R Siplon, Walter F Seidler and International Brotherhood of Elect? col Worleis,
13 N.'L R B 317 ; Matter of R C Motion Company and Steel Workers Organizing Com-
mittee (affiliated iaitli the C 1. 0 ), 23 N L R. B 1084,; Matter of Remington Rand,
Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment
Workers, 2 N L R. B 626, enf d as mod , N. L R B v Remington Rand, Inc, 94 F. (2d)
862 (C. C A. 2). cert denied, 304 U S 576 Matter of Eagle Manufacturing Company and
Steel Workers Organizing Committee, 6 N L R B 492, enf d, N L. R. B v Eagle Manu-
facturing Company, 99 F (2d) 930 (C C A. 4) , Matter of McNeely & Price Compan8j
and National Leather Workers Association, Local No 20, of the C 1 0, 6 N L R B 800,
enf'd as mod., N. L. R. B. v. McNeely & Price Co, 106 F (2d) 878 (C C. A 3) Cf.
Matter of J Wiss & Sons Company and United Electrical, Radio & Machine Workers of
America, 12 N L B B 601
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The alleged discrivii nations with rep pert, to h rrre and tenure o f
enz p77oy'nm e nt
The complaint, as amended, alleges that the respondent discrimina-
torily discharged Louis K. Graff, C. E. Hull, and Andrew Bretz, and
demoted H: O. Denman. The respondent in its answer, as amended,
denies such discrimination and, by way of explanation of its acts with
respect to said employees, alleges -certain, affirmative matter, which
we shall consider in.the,discussion of the case of each of said•einployees.
Louis K. Graff, a punch-press operator, was employed by the re-
spondent on or about October 1, 1936. He was laid off on June 5,
1937, pursuant to a notice posted on the pressroom bulletin board,
which stated that a seasonal decline in the respmidc ut's business neces-
sitated the lay-off of seven nailed employees, including Graff.
Graff was elected a director of the Association On or about March
10, 1937. Thereafter, in April 1937, at a meeting of the Association
directors, Graff was alone in opposing the plan then under discussion
to reorganize the Association. At a director's meeting held shortly
thereafter, Graff reasserted his opposition to the plan and suggested
that the question of reorganization be submitted to the, employees
for a vote by secret ballot. As stated above, this procedure was fol-
lowed and resulted in the defeat of the proposal by a vote of 104
to 36. In May 1937 the reorganization issue was revived and con-
temporaneously therewith a movement to reorganize the respondent's
employees was begun by the Federal. At approximately the same
time a Federal committee composed of seven employees, including
Graff, who took the initiative in the negotiations. called upon Holt
and unsuccessfully sought to obtain recognition of their union as the
collective bargaining representative of the respondent's employees.
The respondent contends that Graff's lay-off was occasioned solely
by adverse business conditions and, in support of its contention, intro-
duced uncontroverted testimony that its sales declined markedly in the
months of June, July, and August 1937. Moreover, on May 18 and 25 ,
1937, prior to Graff's dismissal, other group lay-offs had occurred in
Graff's department.
Graff's disapproval of the plan to reorganize the Association was
shared by a large majority of the respondent's employees at that time,
as shown by the results of their balloting. Moreover, of the seven per-
sons, including Graff, on the Federal committee which sought to nego-
tiate with the respondent, four were still in the respondent's employ at
the time of the hearing and there is no evidence of discrimination as to
the other two. Of a subsequent Federal committee of three which
called on Holt for a similar purpose, at least two were still in the
respondent's employ at the time of the hearing.
EXCEL CURTA1\ CO\1PANY, INC. 569
A consideration of all the evidence leads us to conclude that the evi-
dence does not support the allegation in the complaint, as amended, that
Graff was discriminatorily discharged. We find that the respondent
did not discriminate in regard to Graff's hire or tenure of employment to
discourage membership in a labor organization.
C. E. Hull was employed by the respondent on May 26,1936, to oper-
ate an electric welding machine and continued in such capacity for
approximately 30 days, after which time, according to the respondent,
it was discovered that he was an incompetent welder and incapable of
performing the work for which he had been employed. Hull had had
little previous experience in the operation of an electric welding machine
prior to his employment by the respondent and at the hearing he ad-
mitted that he was unable to perform successfully the welding work
required by the respondent. Upon discovering his incompetence as a
welder the respondent took Hull off the welding job and assigned him
to various other tasks at which he worked until May 29, 1937, when he
was laid off, along with 13 other employees, for the stated reason that
work was slack. The respondent contends that Hull was selected to
be laid off in accordance with the seniority rule then in effect in the plant.
The record contains no evidence to rebut the respondent's contention in
this respect.
Hull was one of the charter members of the Federal and at the time of
his lay-off occupied the office of recording secretary thereof. He did
not, however, actively participate in Federal affairs at the plant.
Hull did not seek reinstatement after his lay-off and the respondent
contends that even had he done so it would have been justified in refus-
ing to reemploy him for the reasons that he (1) was an incompetent
workman, (2) wasted time by conversing with his fellow employees
during working hours, (3) quarrelled with his foreman, and (4) after
his lay-off threatened to bomb the respondent's plant. In respect to
the respondent's first contention, Hull was admittedly incompetent to
perform the work for which he had been initially employed. The evi-
dence relative to the respondent's second and third contentions is insuf-
ficient to warrant the making of findings with respect thereto. As to
the respondent's fourth contention, while Hull denied that he had ever
threatened to bomb the respondent's plant, from all the evidence we
believe that he did voice such a threat but without serious intent.
In his Intermediate Report, the Trial Examiner found that the
respondent did not discriminate in regard to Hull's hire and tenure of
employment to discourage membership in a labor organization. The
Machinists did not except to this finding. We agree with the Trial
Examiner.
We find that the respondent did not discriminate in regard to Hull's
hire or tenure of employment to discourage membership in a labor
organization.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H.- 0. Demean was first employed by the respondent as a flat tool
and die maker in October 1935. He was laid off in May 1936 but was
subsequently reemployed in the respondent 's inspection department
,in September 1936. He voluntarily resigned from his last-named
employment after working only 5 days . Thereafter , in January 1937,
John F. LeVan, the respondent 's works manager, sought out Denman
and offered him employment as foreman of the flat tool and die depart-
,,ment. Denman accepted LeVan 's offer and commenced work as such
.a foreman on January 11, 1937.
LeVan testified that prior to that time the respondent had decided
,in the interest of economy to place the flat and roller die departments
under the supervision of a single foreman, and that, as a step toward
effectuating the respondent 's plan in this respect , he employed Denman
as foreman of the flat die, department with the understanding that he
would proceed to learn roller die work and eventually assume the
supervision thereof in addition to his other duties. While Denman,
at the hearing, denied that his learning of roller die work was stated
as a condition of his employment , he admitted that it was understood
that he should eventually take over the supervision of that department.
The Trial Examiner, who had opportunity to,observe the witnesses,
accepted LeVan's version of the employment agreement as the more
credible , In view of this and of the improbability that the respondent
would have permitted Denman to supervise a type of work with which
he was unfamiliar , we find that his learning of roller die work consti-
tuted a condition of Denman's employment.
Denman continued in the capacity of foreman of the flat die depart-
ment for approximately 11 months , during which period the roller die
,department was supervised by Edwin M. Sriver. On March 1, 1938,
the respondent demoted Denman to ordinary bench work as a tool
and die maker, and Sriver assumed supervision over both departments.
Denman continued to work as a tool and die maker until October 15,
1938, when he was discharged.
The complaint alleges that Denman was demoted to bench work
by reason of his membership in and activity on behalf of the Machin-
ists. Denman occupied the union offices of recording secretary and
acting business agent. His union affiliation and activities were known
to the respondent since at or about the time it hired him as foreman.
His demotion on March 1, 1938, preceded by several months any real
organizational activity on the part of the Machinists , which, in so far
as the record shows, commenced in October 1938.
The respondent contends that Denman was demoted because he
failed to learn roller die work within a reasonable time after his
employment .. At the hearing Denman denied that lie was incapable
EXCEL CURTAIN COMPANY, INC. 571
of doing such work, but admitted that he was not expert at it. He
,had had no previous experience in roller die work prior to his employ-
ment by the respondent and the evidence indicates that his duties as
foreman of the flat die department did not present an opportunity
to gain such experience. Nor is there convincing evidence that
Denman exerted himself to become familiar with roller die work in
'his spare time. Some evidence was introduced, however, to show
that Sriver, who assumed Denman's duties upon his demotion, was
inexpert in flat die work. There is no question that the greater part
of Sriver's experience and skill lay in the realm of roller die work,
but Sriver had also previously served as foreman of both the flat and
roller die departments. LeVan testified that in view of such previous
experience lie considered Sriver more competent than Denman for
the position in question.
In view of the respondent's knowledge of Denman's union affiliation
throughout the considerable period of his employment and his failure
to gain a proficient knowledge of roller die work, we find, as did the
Trial Examiner, that Denman was demoted for reasons other than
his union membership and activities.
We find that the respondent did not discriminate in regard to
Denman's hire or tenure of employment to discourage membership
in a labor organization.
Andrew Bretr was employed as a tool and die maker by the re-
spondent on or about April 5, 1937, and continued in such capacity
until his discharge on March 3, 1939. He was a member of the
Machinists but evidence as to his activities therein is lacking.
Bretz claims that lie was discharged because he refused to comply
with Holt's request that employees of the tool and die and experi-
mental departments indicate in his presence their preference, for a
collective bargaiunng representative. Bretz's contention is uncon-
vincing. Of the 14 employees affected by Holt's request on that occa-
sion, 7 indicated their preference for the Factory Committee; 4 indi-
cated a desire to bargain individually; Bretz and another employee,
George Norris, ref used to indicate their preferences; and one Schmidt
designated the Machinists as his preference. Both Norris and
Schmidt were still in the respondent's employ at the time of the
hearing and the record contains no indication that either has suffered
by reason of his act on the above-described occasion.
The respondent contends that it discharged Bretz because he was
an incompent die maker and for the further reason that his aggres-
sive espousal of certain political views caused trouble between him
and his fellow employees. The evidence relative to Bretz's alleged
incompetency and his political activities is conflicting, and we find
572 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
it unnecessary to resolve the conflicts with respect thereto. The evi-
dence is convincing, however, that Works Manager LeVan had been
dissatisfied with Bretz's efficiency'for a considerable period of time.
In view of all the circumstances we are of the opinion, as was the
Trial Examiner, that the record fails to support the allegation of
the complaint that Bretz was discharged because of mason member-
ship- or activity. We find that the respondent did not discriminate
in regard to Bretz"s hire or tenure of employment to discourage
membership in a labor organization.
D. The alleged refusal to bargain with, the Machinists
The Machinists claims that the tool and die makers and experi-
mental men employed at the respondent's plant constitute a unit
appropriate for the purposes of collective bargaining. By letter
dated October 29, 1938, the Machinists advised the respondent that
it represented a majority of the respondent's employees in such a
unit and requested a conference for the purposes of negotiating a col-
lective bargaining agreement and discussing the discharge of H. O.
Denman. The respondent replied on November 4, 1938, stating that
its employees had designated the Factory Committee as their collec-
tive bargaining agent, challenging the appropriateness of the unit
sought by the Machinists, requesting proof of majority representation
by the Machinists, and refusing to discuss Denman's case on the
ground that he was discharged for cause. By letter dated November
12, 1938, the Machinists submitted to the respondent the suggestion
that a comparison between company and union records be made by
two "men of the cloth" for the purpose of determnnng the majority
status of the union. The Machinists further stated in the letter that
unless the respondent agreed to the bargaining unit originally pro-
posed, accepted the suggested procedure for resolving the question of
majority representation, and, in addition, agreed to discuss the case
of Denman, the Machinists would file a petition and charge with the
Board for a final determination of the aforesaid matters. On No-
vember 26, 1938, the respondent replied, reiterating that the employees
whom the Machinists claimed to represent had designated and were
satisfied with the Factory Committee as their collective bargaining
agent and repeating its request for proof of the Machinists' repre-
sentation of a majority of such • employees. On January 12, 1939,
representatives of the Machinists and the respondent met and dis-
cussed a proposal submitted by the Machinists that a consent election
be held among the employees in question for the purpose of deter-
mining their desires relative to a collective bargaining representative
By letter dated February 15. 1939, the respondent rejected the pro-
EXCEL CUR PAIN COMPANY, INC. 573-
posed consent-election procedure, stating that it felt uncertain con-
cerning the appropriateness of the unit sought by the Machinists
and suggesting that the Machinists submit its claim to the Board.
On March 2, 1939, the Machinists addressed a further letter to the
respondent, urging it to reconsider its decision and accept the proce-
dure of a consent election. On March 15, 1939, the respondent replied,
restating its preference for an election conducted pursuant to Board
direction.
The complaint, as amended, alleges that the respondent refused to
bargain collectively with the Machinists on November 26, 1938, and
on February 15 and March 15, 1939. On November 26, 1938, the re-
spondent had in its employ 14 persons in the claimed appropriate unit.
At the hearing the Machinists introduced into evidence authorizations
for representation and applications for membership in the Machinists
signed by seven employees in that unit and H. O. Denman. We have
hereinabove found that Demean was discharged on October 15, 1938,
prior to, the respondent's alleged first refusal to bargain with the
Machinists. We do not find that his discharge constituted an unfair
labor practice. Denman was, therefore, not an employee of the re-
spondent who can be considered as a member of the Machinists for the
purpose of proving its majority representation on November 26, 1938.
Excluding Denman, it is apparent that the Machinists did not represent
a majority of the employees in the claimed unit on November 26,
1938.
On February 15, 1939, the respondent still had in its employ 14
persons in the claimed appropriate unit. The Machinists introduced
evidence indicating that on that date it represented nine persons. Two
of these, however, were Denman, who cannot be counted in determining
majority representation for the reasons stated above, and one Klopfen-
stein, whose employment with the respondent was terminated prior to
February 15, 1939, under circumstances which do not appear in the
record and who, therefore, must also be excluded from such a determi-
nation. Excluding Klopfenstein and Denman, the Machinists did not
represent a majority of the employees in the claimed appropriate unit
on February 15, 1939.
On March 15, 1939, the respondent had in its employ 16 persons in
the claimed appropriate unit. The Machinists' evidence indicates that
on that date it represented nine persons. This figure includes, how-
ever, not only Denman and Klopfenstein, but in addition, Andrew
Bretz, who was discharged on March 3, 1939, prior to the respondent's
alleged refusal to bargain on March 15, 1939. We have found that
Bretz's discharge did not constitute an unfair labor practice and there-
fore lie must be excluded from our computation for the same reason
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that we have excluded Denman. It is thus apparent that the Machin-
ists did not represent a majority of the employees in the claimed
appropriate unit on March 15, 1939.
Since the evidence does not establish that the Machinists , on Novem-
ber 26, 1938, on February 15 or March 15, 1939, or at any other time
represented a majority of the employees in the unit claimed by it to
be appropriate , we find it unnecessary to consider at this point the
question concerning the appropriateness of such a unit . We find that
the respondent did not refuse to bargain collectively with the Machin-
ists as the representative of its employees in an appropriate unit.
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 re-
spondent described 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 obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices . We shall order it to cease and desist therefrom and to
take certain affirmative action which we find necessary to effectuate
the policies of the Act.
We have found that the respondent dominated and interfered with
the formation and administration of the Factory Committee and con-
tributed financial and other support thereto. We shall order the
respondent to withdraw all recognition from the Factory Committee
as a labor organization representing any of its employees for the
purpose of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other conditions
of employment , and to disestablish the Factory Committee as such
representative . We shall also order the respondent to cease giving
effect to the Factory Rules, as well as to any extension , renewal, modi-
fication, or supplement thereof, or to any contract with the Factory
Committee which may now be in force, without prejudice, however,
to the assertion by the employees of any legal rights they may have
acquired under the Factory Rules or under any such contract.
We have found that the respondent did not discriminate in regard
to the hire or tenure of employment of Louis K. Graff, C. E. Hull,
H. 0. Denman, and Andrew Bretz. We shall, therefore, order that
the complaint, as amended , in so far as it alleges such discrimination,
be dismissed.
EXCEL CURTAIN- COMPANY, INC. 575
Having found that the evidence fails to sustain the allegations of
the complaint that the respondent refused to bargain with the Machin-
ists as the representative of a'majority of its employees, we shall order
that the complaint, as amended, in so far as it alleges such refusal
to bargain, be dismissed. We have, however, found that the respond-
ent, in numerous ways, favored, assisted, and encouraged membership
in the Factory Committee and indicated its preference for dealing
with it while discouraging membership in other labor organizations,
including the Machinists. The respondent's refusal to cooperate with
the Machinists in its attempt to prove its status as a majority repre-
sentative as contrasted with the facility with which the respondent
recognized the Factory Committee as a majority representative and
the respondent's inquisition into the union preferences of the em-
ployees claimed by the Machinists to be represented by it are indicative
of the respondent's hostile attitude toward the Machinists. Since we
are directing that an election be conducted among the employees in
an appropriate unit to determine whether or not they desire to be
represented by the Machinists and since the respondent has shown a
predisposition to commit unfair labor practices, and, in particular,
with reference to the Machinists, we are of the opinion that the policies
of the Act will best be effectuated by requiring the respondent to
bargain collectively with the Machinists upon request, in the event
that the Machinists is designated in the election by a majority of the
employees as their representative for purposes of collective bargaining,
and is certified by the Board as the exclusive representative of all
employees in an appropriate unit for such purposes. We will so
order.6
VI. THE QUESTION CONCERNING REPRESENTATION
As stated above in Section III, D, the respondent, when requested
to do so by the Machinists, refused to recognize it as the collective
bargaining representative of the employees in a unit claimed to be
appropriate and questioned its status as representative of a majority
of such employees. In its amended answer to the complaint, as
amended, the respondent denies that the Machinists represents a
majority of the employees in said unit.
We find that a question has arisen concerning representation of
employees of the respondent.
VII. THE APPROPRIATE UNIT
As stated above, the Machinists claims that the tool and die makers
and experimental men employed at the respondent 's plant constitute
G See Matter of West Kentucky Coal Company and United Mine Workers of America,
District No. 43. 10 N. L R. B 88
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a unit appropriate for the purposes of collective bargaining. None
of the parties coiiteiids that other employees also should be included
in the unit. The Machinists desires to exclude foremen from the unit.
No objection was made to this and we shall exclude foremen. The
respoiicleiit opposes the inclusion of experimental men in the unit,
-contending that the type of work performed by such employees at
the respondent's plant does not require sufficient skill to warrant their
classification with tool and die makers.
The respondent employs two experimental men, James McFarran and
Alex Schmidt, whose duties consist of templet making, model building,
and hand production work on small orders. It is the templet-making
phase of the employment of McFarran and Schmidt which forms the
basis of the Machinists' argument for their inclusion in the bargaining
unit. The respondent admits that the making of certain classes of
templets requires the services of skilled craftsmen. It maintains, how-
,ever, that in view of the simplicity of the templet types required for its
purposes, no such special skill is needed. It was not disputed that
templet makers, as a class, are generally regarded as skilled workers
and that they generally are included in units with tool and die makers
under collective bargaining agreements between the Machinists and
employers.
The Machinists appears to be the only union which seeks to bargain
for the respondent's experimental men. It thus appears that the exclu-
sion of these employees from the unit would deprive them of representa-
tion in any form. We are of the opinion that the respondent's experi-
mental men should be included in the bargaining unit.
We find that the respondent's tool and die makers and experimental
men, excluding foremen, constitute a unit appropriate for the purposes
of collective bargaining with respect to rates of pay, wages, hours of
employment, and other conditions of employment, 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 effectu-
ate tie policies of the Act.
VIII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION ON
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 commerce and the free flow
of commerce.
EXCEL_ CTJRTAI\ COMPANY, INC.
Ix. THE DETERMINATION OF REPRESENTATIVES
577
We find that the question concerning representation which has arisen
can best be resolved by means of an election by secret ballot.
Since the respondent has, by engaging in various unfair labor prac-
tices, interfered with the exercise by its employees of the rights guaran-
teed them by the Act, we shall not now set the date for the election. We-
shall hold the election , however, upon receipt of inform,,,ition hton, the-
Regional Director that the circumstances permit a ftee cltoi,:e of repre-
sentatives unaffected by the respondent 's unlawful acts. A.t that time-
we shall determine the pay -roll date to be used in ascertaining who shall'
be eligible to vote in the election.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case , the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Machinists , Lodge 1384, and the Fac-
tory Committee are labor organizations within the meaning of Section.
2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of the Factory Committee and by contributing financial and
other 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. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
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. The respondent has not engaged in unfair labor practices within
the meaning of section 8 (3) and ( 5) of the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of the respondent 's employees within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
7. The respondent's tool and die makers and experimental men,
excluding foremen, 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 above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act, the National Labor Relations Board- hereby crders that the re-
spondent, Excel Curtain Company, Inc., Elkhart, Indiana, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the Fac-
tory Committee or with the formation or administration of any other
labor organization of its employees and from contributing financial or
other support to the Factory Committee or any other labor
organization of its employees;
(b) Recognizing the Factory Committee as the representative of
any of its employees for the purpose of dealing with the respondent
concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment;
(c) Giving effect to Excel Curtain Company, Inc., Factory Rules
and Regulations or to any extension, renewal, modification, or supple-
ment thereof, or to any contract with the Factory Committee which
may now be in force, without prejudice, however, to the assertion by
its employees of any legal rights they may have acquired under Excel
Curtain Company, Inc., Factory Rules and Regulations, or under any
such contract;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from the Factory Committee as the
representative of any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates of
pay,-hours of employment, or other conditions of employment, and
completely disestablish said Factory Committee as such representative;
(b) In the event that International Association of Machinists,
Lodge 1384, is selected in the election hereinafter directed as the repre-
sentative of the employees in the appropriate unit, and is thereafter
certified by the Board as the exclusive representative of such enn-
ployees, then, upon request, bargain collectively with International
Association of Machinists, Lodge 1384, as the exclusive representative
of the respondent's tool and die makers and experimental men, ex-
cluding foremen, in respect to rates of pay, wages, hours of
4einployment, or other conditions of employment;
EXCEL CURTAIN COMPANY, INC. 579
tc) Post immediately- in conspicuous places at its plant in Elkhart,
Indiana, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating: (1)
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), (c), and (d) of
this Order; and (2) that the respondent will take the affirmative action
set forth in paragraphs 2 (a) and (b) of this Order;
(d) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) clays from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, as amended, in so
far as it alleges that the respondent has engaged in unfair labor prac-
tices within the meaning of Section 8 (3) and (5) of the National
Labor' Relations Act, be, and it hereby is, dismissed.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECTED that, its part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Excel Curtain Company, Inc., Elkhart, Indiana, an election by
secret ballot shall be conducted at such time as the Board shall in the
future direct, under the direction and supervision of the Regional
Director for the Thirteenth Region, acting in this matter as agent for
the National Labor Relations Board and subject. to Article III, Sec-
tion 9, of said Rules and Regulations, among the tool' and die makers
and experimental men employed by Excel Curtain Company, Inc.,
excluding foremen, to determine whether or not they desire to be
represented by International Association of Machinists, Lodge 1384,
for the purposes of collective bargaining.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision, Order, and Direction of Election.