Majestic Lamp Mfg. Corp.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 180 (N.L.R.B. 1963)

180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay, wages, hours of employment, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody such an understanding
in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed by us at our
Massillon, Ohio, plant, including truckdrivers and firemen, but excluding
office clerical employees, professional employees, guards, and supervisors
as defined in the Act.
BROWN LUMBER CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, 44115, Telephone No.
Main 1-4465, if they have any questions concerning this notice or compliance with
its provisions.
Majestic Lamp Mfg. Corp . and Textile Workers Union of Amer-
ica, AFL-CIO and Local Union 686, International Brother-
hood of Electrical Workers, AFL-CIO, Party to the Contract.
Case No. 4-CA-2668. June 27, 1963
DECISION AND ORDER
On April 22, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Respondent and the General Counsel did not
file exceptions to the Intermediate Report, and the Charging Party
filed exceptions only to a portion of the remedy recommended by
the Trial Examiner.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions,' and recommendations z
of the Trial Examiner.
1 In the absence of exceptions thereto, we adopt the Trial Examiner's unfair labor prac-
tice findings and conclusions pro forma.
Although we do not adopt the Trial Examiner's reasons for denying dues reimburse-
ment, particularly that given in the last two sentences of the section entitled "The
Remedy" in the Intermediate Report, we find that in the circumstances of this case re-
imbursement is not appropriate Cf Air Master Corporation, et al, 142 NLRB 181 ,
Durali.te Co., Inc, 132 NLRB 425.
143 NLRB No. 31.
MAJESTIC LAMP MFG. CORP. 181
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner, as modified herein.3
I We find merit to the Charging Party's exception to the wording of the Trial Examiner's
recommended notice, and accordingly the titth paiagraph 'ot the notice eont.rnied in the
Appendix to the Intermediate Report is amended to read
WE WILL NOT In any related manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, loin, or assist
Textile Workers Union of America, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or auy other mutual did or
protection, or to refrain from any or all such activities
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Textile Workers Union of America , AFL-CIO, herein called TWU, filed a charge
against Majestic Lamp Mfg Corp., herein called Respondent , on June 27, 1962,
and an amended charge on November 29, 1962 The General Counsel of the
Board, through the Regional Director for the Fourth Region, issued a complaint,
dated November 29, 1962, an amendment to the complaint , dated November 30,
1962, and an amended complaint , dated February 6, 1963. The allegations against
Respondent are, in substance , that at a time when TWU was requesting recognition
as exclusive bargaining agent for Respondent 's production and maintenance em-
ployees, Respondent , through two supervisors , participated in organizational ac-
tivities of Local Union 686 , International Brotherhood of Electrical Workers,
AFL-CIO, herein called IBEW , and thereafter recognized IBEW as exclusive
bargaining agent and executed a contract containing a union -seniority clause with
the IBEW , all in violation of Section 8(a)(1), (2 ), and (3 ) of the Act. In its
answer , Respondent denies the commisison of unfair labor practices.
With all parties represented , a hearing was held before Trial Examiner Ramey
Donovan on February 19 and 20, 1963 , at Jim Thorpe, Pennsylvania . The Gen-
eral Counsel and the Respondent at the close of the hearing made oral argument and
subsequently filed briefs.
Upon the entire record , and based upon my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a Pennsylvania corporation with its principal office and place of
business in Lansford, Pennsylvania. Respondent manufactures lamps, lighting fix-
tures, and related products. During the past year Respondent purchased and
received materials at its Lansford plant valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were transported to said location from
States of the United States other than Pennsylvania It is found that Respondent
is engaged in interstate commerce within the meaning of the Act.
II THE LABOR 'ORGANIZATION INVOLVED
TWU and IBEW are labor organizations within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1. The facts
a. Background
Respondent had been a manufacturer of lamps and lighting fixtures for many
years in New York City. While in that city, Respondent had been a member of
an employer's association in the industry in which it was engaged. The association
represented Respondent for collective-bargaining purposes and had contractual
relations with Local 3, IBEW.
In June 1961, Respondent moved to Lansford, Pennsylvania. I take official
notice that this general area of Pennsylvania has been and is an economically
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
depressed area. A local citizens' group, the Carbon-Schuykill Industrial Develop-
ment Committee, herein called the CSIDC, was instrumental in bringing Respondent
to Lansford pursuant to an effort to bring new industries to the area. The CSIDC
assisted Respondent by securing a plant site and finar cing the plant building.
TWU filed a petition for certification on October 2, 1961. With District 50,
United Mine Workers, a labor organization, as an intervenor, the aforesaid petition
was processed and a consent election was arranged by the Board for October 20,
1961. According to the uncontroverted testimony of employee Hruska, who sub-
sequently 1 engaged in organizational activity on behalf of IBEW and became
the IBEW shop steward, some representatives of CSIDC came to the plant on
October 19, 1961, and addressed the employees of Respondent. As testified to by
Hruska, the substance of what was said was that the employees should not put
too much pressure upon Respondent and cause union trouble that might adversely
affect the new plant.2 The foregoing address by the CSIDC people took place on
Respondent's premises during the noon hour.
At the election on October 20, of a total of 30 eligible voters, 15 voted for TWU,
15 voted for no union, and District 50, UMW, received no votes. The TWU
filed objections to the election, with timely service thereof upon the Board's Regional
Director and upon the Respondent. However, TWU did not make timely service
upon District 50, UMW, and the objections to the election were dismissed on this
procedural ground in accordance with the Board's Rules and Regulations. The
Regional Director thereupon certified that none of the choices on the ballot had
received a majority of the votes and that no labor organization is the exclusive
representative of all the employees in the unit.
Employee Castagna, who had engaged in organizing activity on behalf of TWU,
testified credibly that the day after the election he spoke to Ebenstein, president of
Respondent. Castagna said that he was thinking of quitting in view of the election
result. Ebenstein assured him that such a step was unnecessary and that he did
not hold Castagna's TWU activity against him. Ebentein did state, however, that
"You should have got another union," observing that the one that Castagna had been
supporting, TWU, had a strike down south and was a sort of radical outfit.
b. The 1962 events
In January 1962, and by February 13, TWU had secured 15 new authorization
cards from among Respondent's employees? By letter, dated February 13, sent
from its office in Newark, New Jersey, to Respondent in Lansford, Pennsylvania,
TWU claimed that it represented a majority of Respondent's production and main-
tenance employees .4 The letter stated that the Union was ready, upon request, to
prove its majority "through any impartial and reputable organization such as the
American Arbitration Association, the Federal Mediation and Conciliation Service,
the Honest Ballot Association or any other organization of like nature and reputa-
tion that you would care to suggest." It was also stated that the TWU requested
recognition as bargaining agent in the above unit and requested that negotiations
on a contract commence immediately at a mutually convenient time and place.
Respondent at no time replied to this letter or communicated with TWU.
' Commencing around March 1962.
' The Evening Record, a local Lansford newspaper, quoted a public statement issued by
the,CSIDC on October 18 with respect to the situation at Respondent's plant, including the
impending election. The gist of the statement was that the CSIDC, in bringing industry
to the region, had given assurances that although unionization would probably come
eventually there would be "sufficient time to become established and get their production
underway before they are faced with union demands . . . . Production began at the
Majestic Lamp Company . . . on August 18 . . . . The Board of directors feels that this
Company has not had sufficient time to . . . reach the minimum production for successful
operation."
The same newspaper account also stated that on the morning of October 19, the CSIDC
formed a Labor-Management Citizens' Committee. "The committee planned to meet in a
body with employees of the Majestic Lamp Manufacturing Corporation of Lansford at
noon today and appeal to the workers to vote for 'no union' for at least a period of six
months."
8 On February 9, 1962 , TWIT filed a Section 8(a) (1) charge against Respondent alleging
that since October 19, 1961 , Respondent had interfered with, restrained, and coerced its
employees. This charge was dismissed by the Regional Director of the Board
' On February 16, TWIT secured an additional authorization card and also secured a card
on February 17; 2 more cards were obtained on March 3, 1 on March 7, and 1 on March 26,
for a total of 21 in a unit of 31 employees.
MAJESTIC LAMP MFG. CORP. 183
Employee Hruska, who had campaigned for District 50, UMW, prior to the
October 20, 1961, election and who was the observer for that Union at the elec-
tion, testified that just prior to the election he advised the District adherents that
he was going to vote "no union" and said that they could do likewise 5 Judging
by the election results, this is what was done since District 50 received no votes.
Thereafter, Hruska sought to form an independent union. He next began organiz-
ing for the IBEW and secured 19 authorization cards in April 1962 and 2 on
May 2, 1962, for a total of 21 in the unit of 31. Of the 21 IBEW card signers,
9 employees had previously signed TWU cards in the January-March 1962 period .6
There is no evidence that the nine duplicate signers had notified TWU or taken
other definitive action to rescind their TWU cards. In its brief, Respondent argues
that the facts that the IBEW cards were signed subsequent to the TWU cards estab-
lishes that the latter designations were repudiated.
Although Hruska was apparently the titular head of the IBEW organizing effort
among the employees, the role of two other individuals in Respondent's employ
requires description.
Heid had worked for Respondent for 10 years, commencing when the plant was
located in New York City. In New York, Heid was head of the polishing depart-
ment. He came to the Lansford plant in July 1961, and, from that time until the
present, his wages, plus room and board in Lansford, were paid by Respondent.
Respondent also pays Heid's weekly commutation expenses covering Heid's trans-
portation from Lansford to New York on Friday evenings and his return on Sun-
day. Heid was foreman of the polishing department at Lansford. At the Lansford
plant, Heid initially began training 8 or 10 men in Respondent's operation. Re-
spondent has stated that Heid at that time was a "working foreman." During the
course of instruction Heid made recommendations to Ebenstem regarding the ability
and potentiality of the various employee trainees under his jurisdiction. Some of
the men were terminated on Heid's recommendation while those he approved were
continued as employees. In the early part of 1962, there were three or four men
in the polishing department in addition to Heid and this number was thereafter in
creased to a total of six. Heid received $2 an hour and then $2.121/2 an hour in
1962, plus, as has been mentioned, his room and board and weekly transportation to
and from Lansford and New York. In 1962, the employees in Heid's department
were paid $1.25 or $1.30 an hour. Heid testified that as foreman, his duties con-
sisted of "Giving out jobs to the men, making production, see [that] the work is
done right." He stated that if the employees in his department do not do their
work properly, "I return it to them and make them do it right." Heid reports to
the plant manager about the men under him and makes recommendations regard-
ing the competence of these men. As foreman, Heid worked initially about 6 hours
daily with his own hands in the course of training and supervising. This amount
of time was later reduced to about 5 hours out of 8. On the list of eligible voters
for the October 1961 Board election, approved by Respondent and the two unions,
Heid's name was not included, nor did Heid vote in the election. Respondent's "List
of Hourly Employees" on the payroll of February 14, May 4 and 15, and July 10.
1962, does not include Heid and on another list of personnel from January 1, 1962,
the job description "Foreman" appears next to Heid's name 7 I find that Heid in
the course of his employment at the Lansford plant in 1961 and 1962 was a supervi-
sor within the meaning of the Act and that his title, financial arrangements with Re-
spondent, and his duties identified him with management.
Mersel had been in Respondent's employ for 12 years. He came to the Lansford
plant in June 1961 but at the time he advised Respondent that he was not certain
how long he would stay at the Pennsylvania plant .8 Respondent states that when
Mersel came to Lansford his title was temporary working foreman. During his
initial employment at Lansford Mersel instructed 12 to 14 employees in the as-
sembly operation. Mersel recommended to Ebenstein that three men be retained
as permanent employees and this was done. Ebenstein himself hired two other
5 Hruska had secured about eight District 50 cards.
e Among the nine duplicate signers the two extremes of the lapse in time between the
signing of two cards were: Lazorchick, March 26, 1962, TWU card, and April 11, 1962,
IBEW card ; Matta, January 12, 1962 , TWU card, and May 2, 1962, IBEW card. The
average time gap between the signing of the two cards by the nine employees was 67 days
° Counsel for Respondent stipulated that Heid's name was eliminated from the "List
of Hourly Employees" aforementioned "because these people [Held and Mersel] were not
considered part of the work force for purposes of determining majority status of the
Union among the work force."
8 Mersel left Respondent's employ about a rear later, in July 1962
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assemblers. After the training period Mersel worked in the assembly department
and he testified that he was also in charge of that operation. Thereafter, a new
foreman was hired for the department and Mersel "broke him in" in Respondent's
particular operations. Ebenstein from time to time would ask Mersel how things
were going in the department and, if some finished product came from the depart-
ment that was not satisfactory, Ebenstein admonished Mersel that it was the latter's
responsibility to see that the products emerged in the proper condition. Mersel
would tell Ebenstein that he was busy on assembly production and that the new
foreman should check the products. Ebenstein replied that the foreman was new
and that Mersel should still look after such matters. Employees in the department
continued to consult Mersel on work problems during this period. Mersel testified
that in April or May 1962 he was given the title of foreman.9 As foreman, Mersel
testified credibly, his duties were to take full charge of the assembly department.
It was his responsibility to see that the work was performed properly, to keep produc-
tion records, to lay out the work, to be in charge of the stock, and to assign work
to employees. There were five or six employees in his department. Throughout
his employment at the Lansford plant Mersel received $2.30, an hour, plus 4 hours a
week at overtime (1 hour a day), plus room and board, and weekend transporta-
tion expenses between Lansford and New York. Employees in the assembly depart-
ment received $1.30 an hour. Both before and after April 1962, Mersel attended
management meetings convened by Ebenstein. Those present were Ebenstein, the
plant manager, the bookkeeper, and all the foremen, including Mersel and Heid.
Topics discussed were production problms, possible improvements, and problems in
the various departments. Like Held, Mersel was not on the eligibility list of em-
ployees who could vote in the 1961 election and he did not vote. On the payroll
lists, discussed previously with respect to Held, the same facts and observations apply
to Mersel as were stated regarding Heid. I find that during his employment at the
Lansford plant in 1961 and 1962 Mersel was a supervisor within the meaning of
the Act and was at all times identified with management by reason of his duties, job
description, and financial arrangements with Respondent.
Both Heid and Mersel had been members of Local 3, IBEW, in Respondent's
plant in New York. Heid had allowed his membership to lapse in December 1961
while at Lansford but when Hruska began organizing for the IBEW in April 1962
Heid signed an IBEW card. Mersel remained an IBEW member while at Lansford.
During April and May 1962 when Hruska was securing IBEW cards and when the
IBEW was holding organizational meetings in the town of Lansford, Heid and
Mersel affirmed to the employees in the plant and at the meetings that they were
IBEW members in New York and that they considered the IBEW to be a good
union. A substantial number of the IBEW cards were signed at two meetings in
Lansford prior to May 15, 1962. Heid, in this period, told employees in his depart-
ment that he would rather pay dues to IBEW than TWU and that the IBEW label
on Respondent's products would help Respondent's business . At one of the meet-
ings Heid informed the employees that "the old man definitely wanted the IBEW
in." Business Agent Reeser stated that without the IBEW label other firms would
not hang Respondent's products. Heid testified that at these IBEW meetings he
told the employees that all the fixtures made by the Company had to have a union
label and that the IBEW label would aid the Company's business. At the May 2
meeting employee Sabol expressed opposition to the IBEW. On the same occa-
sion Sabol's foreman, Heid, told Sabol that he was too "radical" and Heid un-
successfully attempted to have Sabol sign up in the IBEW. The Heid-Sabol con-
versation at the meeting took place in the presence of other employees, including
those in Heid's department. Heid, in words or in substance, said to Sabol that,
as head of the department, he, Heid, wanted Sabol to join the IBEW so that all
his employees would thus be members of the same union.10
Although an employer is responsible for the conduct of supervisors regardless of
the employer's specific knowledge of such conduct, the evidence in this case estab-
lishes that Respondent was aware of at least Heid's participation in the IBEW
organizing activities. Heid testified that Ebenstein asked him if he attended the
IBEW meetings and Heid said that he did. When Heid said to Ebenstein that he
9 On General Counsel's Exhibit No. 16, furnished by Respondent and covering the period
January 1, 1962, to August 31, 1962, the job title of "Foreman" appears next to Mersel's
name
I° Held testified, "I tried to make him change his mind to join it [IBEW] because being
the head of my department I said, All the boys will he the same members ' "
MAJESTIC LAMP MFG. CORP. 185
would like to sign up with the IBEW in Lansford , the latter replied that he had
no objection."
On May 3, 1962 , the IBEW wrote to Respondent claiming that it represented a
majority of the employees . Reeser, who wrote the letters, stated therein that he
would be away until May 11 but would thereafter like to meet with Respondent.
Ebenstein replied on May 8, suggesting that Reeser call him on May 14 so that
they could arrange a meeting. The meeting was thereafter arranged for May 15.
Reeser, Ebenstein , and Respondent's attorney, Miness, met at the plant on May 15.
Ebenstein contacted McCartney , the secretary of the CSIDC, and asked her to
secure a neutral party to check the IBEW cards. McCartney called the Reverend
Yolton , a minister in the United Church of Christ . Yolton testified that McCartney
asked him to go to the plant to count the union votes. By 10 a.m. on May 15
Yolton was at the plant. In Ebenstem 's office, in the presence of Reeser and Miness
as well as Ebenstem , Yolton was given a list of employees and the IBEW cards.
Yolton checked the cards against the list . There was a card with Heid's name
but when he could not find the name on the list Yolton inquired about the fact.
Yolton testified that either Ebenstem or Miness or both informed him that Heid
was in a supervisory capacity and therefore could not be considered as eligible.
In checking the cards against the list Yolton saw that the IBEW had a majority.12
However, Yolton said that he would like to talk to the individual employees to
verify the fact that they had signed the cards . Ebenstein then summonded Hruska
to accompany Yolton and to introduce him to the signers of the cards . Yolton
and Hruska went through the plant, with Hruska introducing Yolton to the individ-
ual signers . Yolton asked each person, in substance , if he had signed the card
bearing his name or if that was his signature , and the employee affirmed that fact.13
There is no evidence that TWU had been apprised of the card check arrangement
or that Respondent had apprised it of the IBEW claim. TWU's continuing interest
was known to Respondent since on May 2, 1962, TWU had filed a Section 8 (a) (1)
and (5 ) charge that Respondent had refused to bargain with TWU since February
1962 This charge was extant on May 15, 1962, but was ultimately dismissed. As
far as appears , Yolton was completely unaware of any TWU claim that it rep-
resented a majority . Yolton thereafter returned to the office and prepared a written
statement to the effect that IBEW had cards signed by a majority of the employees.14
Although Respondent on May 15, 1962 , recognized the IBEW as the exclusive
bargaining agent for the production and maintenance employees , it was not until
July 5, 1962, that Respondent and IBEW sat down and negotiated a contract.15
By its terms the contract provided for a union shop and for checkoff of dues. After
ratification , the contract was executed on July 10, 1962.
Conclusions
Without repeating the evidence heretofore set forth, I conclude that the conduct
and activities of supervisors Heid and Mersel constituted illegal interference with
and assistance and support to the IBEW in its organizing of Respondent's employees
and its attainment of a majority of card designations . The active participation on
behalf of the IBEW and the support and assistance rendered to the IBEW by two
supervisors in this small plant of 31 employees has exceeded reasonable bounds and
has tainted the status of the IBEW as the purported free choice of a majority of
the employees in the appropriate unit. The execution of a contract provding for
exclusive recognition of the IBEW and providing for compulsory membership in
that organization under these circumstances compounds the illegal interference,
assistance , and support and, additionally , constitutes illegal discrimination . I there-
11 Mersel testified that on one occasion when he and Reid were conversing in the plant,
Ebenstein came up and asked Held if he had gone to the meeting and Held answered in
the affirmative.
12 There were 21 IBEW cards dated prior to May 15 , 1962 . The cards were dated in
April 1962 with the exception of two , dated May 2, 19G2
1S Hruska stood nearby or next to Yolton during the conversation No mention was
made by Yolton about TWU to the employees and nothing had been said to Yolton about
the TWU by Ebenstein , Reeser, or Miness
14 Yolton testified that as he prepared the aforesaid statement he said , "Well, I guess
the next step is to have an election " He was informed , however , by Reeser that the card
check was in lieu of an election to make the IBEW the bargaining representative.
15 At the bearing, Ebenstein was asked why almost 2 months elapsed before the parties
commenced negotiating a contract . He replied , "I can't answer you because I don't know "
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fore find that Respondent's conduct is violative of Section 8(a)(1), (2), and (3)
of the Act.
Aside from the aforedescribed support and assistance to the IBEW, I also find
that the disparity of treatment accorded the IBEW's claim for recognition as con-
trasted with the complete ignoring of the same claim by TWU constituted illegal
support and assistance to the IBEW. First of all, it is not unreasonable to believe
that, quite apart from the activities of the two supervisors, some employees may
have signed IBEW cards because, since February 1962, Respondent had refused
to reply to the TWU claim and demand and had completely ignored that union.16
Whether this was in fact the employees' motivation or not, Respondent's disparate
treatment of the two unions was a manifest disadvantage to one union and an ad-
vantage to the other competing union which prevented a free choice by the employees.
Secondly, in addition to ignoring the TWU communication completely since Feb-
ruary 1962, Respondent gave no consideration to the proffered proof that the TWU
made that it represented a majority of the employees. Respondent limited itself
to a consideration of the IBEW cards. No steps were taken to review and compare
the evidence which both unions claimed to have in support of their claims to rep-
resent the employees. Further, the Board has long recognized that authorization
cards are a notoriously unreliable method of determining majority status of a union
as a basis for making a contract where competing unions are soliciting cards,
because of the duplications which then occur.17
Respondent admitted "that it preferred dealing with the IBEW because it char-
acteristically represents employees in our industry and is therefore familiar with
the operation and considerations and problems characteristic of our industry." It
also appears from Ebenstein's testimony that Respondent felt free to ignore any
claims or demands of TWU for at least a year after the October 1961 election.
Since there is no Section 8(a)(5) allegation before me it is of course unnecessary
to deal with this section as such. However, it is essential to examine what duty,
if any, Respondent owed to TWU in the postelection period, for if Respondent was
free to ignore TWU for a year in the postelection period, its conduct in the instant
case might warrant a different appraisal 18 There are in fact several putative pro-
positions that come to mind regarding the effect of the October 1961 election. Thus,
(1) Respondent was free to ignore any representation claims by TWU or any other
union for 1 year after the election; (2) Respondent was free to ignore any claim
during the aforementioned period by the TWU or any other union that participated
unsuccessfully in the election but was not free to ignore the claims of a union that
had not participated in the election; (3) while proposition (1) is true, Respondent,
however, can, if it wishes, consider the claims of any union but, if it does, it must
also consider the claims of competing unions and must not treat the claimants
disparately.
The foregoing matters are best resolved by bearing in mind the existence of
Section 7 and Section 8(a)(1) and (5) of the Act.19 By its terms Section 9(c)(3)
of the Act does not affect the above-mentioned sections nor does the legislative
history of Section 9(c)(3) lead to a different conclusion. Section 9(c)(3) is a
prohibition on the conduct of an election by the Board within 12 months of a prior
valid election. The vitality of Section 7 and Section 8(a)(1) and (5) and other
sections remains.20
10 Nine employees who had signed TWU cards in January, February, and March 1962
later signed IBEW cards.
17 Respondent's argument in its brief that because IBEW cards were signed subsequent
to the TWU cards they therefore had greater validity is not necessarily correct. In any
event, on May 15, 1962, when Respondent recognized IBEW, Respondent did not know such
to be the fact. Respondent did not see or seek ito'see the TWU cards prior to the hearing
TWU had secured cards prior to the October 1961 election ; it secured new cards in 1962
and for all Respondent knew, when it recognized the IBEW, the TWU cards may have
been contemporaneous with or subsequent to the IBEW cards.
19 It should be emphasized that I am not here discussing the assistance and support to
IBEW by Respondent's supervisors Such conduct is by itself illegal regardless of the
presence of a rival union such as TWU
"And, of course, Section 8(a)(2) and other sections
21 "There is no absolute right vested in an employer to demand an election," N L R B. v.
Trimfit of California, Inc, 211 F 2d 206, 209 (C A 9), and a Board election is not the sole
means by which a union can secure recognition as bargaining representative. United Mine
Workers of America v. Arkansas Oak Flooring Co., 351 U.S 62: Daniel G. Leach and Doyle
MAJESTIC LAMP MFG. CORP. 187
With respect to a union's claim for recognition upon an employer where the
union represents a majority of the employees in an appropriate unit, the employer
may legally reject that claim if there is a good-faith doubt that the claiming union
does in fact represent a majority. The employer may be in a particularly strong
position to assert such doubt following the claimant union's defeat in a Board
election 21 As previously stated, I am not dealing in this case with a Section 8(a) (5)
allegation but with an allegation under Section 8(a)(2). Enough has been stated,
I believe, to establish that the postelection claim of the TWU was such that by
ignoring it in the first instance before IBEW appeared and then by according IBEW's
claim disparate consideration when that union made its claim, and by entering into
the instant contract with IBEW, Respondent accorded illegal support and assistance
to the IBEW in violation of Section 8(a)(1), (2), and (3) of the Act.22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connec-
tion with their operations 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 its free
flow.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It is recommended that Respondent withdraw and withhold recognition from
IBEW until and unless it is certified by the Board 23 I further recommend that, in
the first instance following the issuance of this report, Respondent recognize no
labor organization as exclusive bargaining agent except pursuant to a certification
by the Board.
Since Respondent has unlawfully assisted the IBEW and, by executing a union-
security clause contract with that organization, has unlawfully conditioned employ-
ment upon membership in the assisted union, reimbursement to the employees for
all dues and other fees exacted from them and paid to the IBEW would be an ap-
propriate remedy.24
Although the circumstances of this case are in many respects not distinguishable
from situations where the reimbursement remedy has been imposed, I do not recom-
mend reimbursement here. The employees have been represented by a legitimate
labor organization. They might have chosen another union but for Respondent's
conduct and might have been better represented, depending upon their views if
H Wallace d/b/a Brookville Glove Company, 114 NLRB 213, affd 234 F. 2d 400 ('C A 3)
See also Ekco Products Company (Sta-Brste Division), 117 NLRB 137; Rocky Mountain
Phosphates, Inc, 138 NLRB 292
a It would appear that each situation would depend on Its own circumstances In the
Instant case, if TWU In February 1962 was basing its claim on cards secured prior to the
October 1961 election that would be one situation Another situation would be if the
TWII In February or March 1962 had presented to the Employer 30 signed cards, dated
In those months, and If the 30 employees individually came to the Employer and affirmed
their allegiance to TWII. A third situation would be one where the Employer simply
ignores the claim of TWU Including the offer to substantiate the Union's claims
22 Respondent of course recognized IBEW on May 15, 1962, and was not affected in that
action by the later dismissal of TWU's Section 8(a) (5) charge In any event, Section
8(a) (2) under which Respondent has been presently found to have acted Illegally is dis-
tinct from Section 8(a) (5).
In May 1962, with two union claimants Respondent had a variety of alternatives, in-
cluding nonrecognition of either, members only recognition with each union, an election
conducted by a neutral third party or perhaps the Reverend Yolton procedure, with Yolton
having both the TWU and the IBEW cards and resolving the ultimate desires of the em-
ployees by fair and impartial means. The Section 9(c) (3) aspect of the case and other
factors would tend to provide insulation to the Employer from the classic Midwest Piping
doctrine Midwest Piping & Supply Co., Inc., 63 NLRB 1060; Novak Logging Company,
119 NLRB 1573.
21 N.L R.B. v District 50, United Mine Workers of America (Bowman Transportation,
Inc.), 355 U.S. 453, 463.
24 Virginia Electric and Power Company v. N L R.B., 319 U.S 533, 539-541 ; N L R B. v
Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et at
(Mechanical Handling Systems), 273 F. 2d 669 (C.A. 7) ; Quality Coal Corporation, et at.,
139 NLRB 492.
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
freely exercised , but I do not assume that the employees were worse off after than
prior to their representation by the IBEW. The circumstances persuade me that
the employees would have paid dues to TWU or some other union if not to the
IBEW . The dues inured to the IBEW directly and not to the Employer. While
the Employer had the benefit of having contractual relations with a union that he
preferred , I have no basis for assuming that the IBEW was the creature of the Em-
ployer and was derelict in seeking to represent the employes effectively or that it
was compliant to the Employer . While there is no reason to believe that Respond-
ent opened its plants in Lansford as a matter of pure altruism , there can be no question
of the fact that the area is badly depressed economically . This is part of a national
as well as a local problem in which the National and State Governments as well as
the community are concerned . I believe that the policies of the Act can be
effectuated by the remedy above recommended without the additional imposition of
dues reimbursement on Respondent . For the reasons previously stated I do not
believe that the omission of reimbursement will be onerous or unjust to the em-
ployees. Reimbursement might well have no serious effect upon the Respondent
but, insofar as it is consistent with effectuating the policies of the Act , I am of the
opinion that the better the financial condition of Respondent 's business in Lansford
the better it will be for all concerned , including the employees and the area as a
whole. If total dues of 31 employees at $3 per month for approximately 12 months
comes to roughly $ 1,100, I am of the opinion that in the long run the money will
serve better as capital for jobs , wages, and profits and the long-term interest of em-
ployees than in individual reimbursement parcels of about $36 each in the cir-
cumstances of this case.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions of fact and law, and upon the entire
record in the case, I recommend that Respondent , Majestic Lamp Mfg. Corp., its
officers, agents , successors and assigns , shall:
1. Cease and desist from:
(a) Assisting and contributing support to Local Union 686, International Brother-
hood of Electrical Workers, AFL-CIO, or to any other labor organization.
(b) Giving effect to the collective -bargaining agreement entered into on or about
July 10 , 1962 , with Local Union 686, International Brotherhood of Electrical Work-
ers, AFL-CIO, or to any extension , renewal , or modification thereof, or any other
contract or agreement with said labor organization.
(c) Recognizing the above -named labor organization as the representative of
any of its employees for the purpose of dealing with it concerning wages, rates of
pay, hours of employment , or other conditions of employment , unless and until
such labor organization shall have been certified by the Board as the exclusive repre-
sentative of Respondent 's employees in the appropriate unit.
(d) Requiring as a condition of employment that employees be members of the
above-named labor organization.
(e) In any like or related manner interfering with , restraining , or coercing em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions , to join or assist Textile Workers Union of America , AFL-CIO, or any other
labor organization , to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection or to refrain from any or all such
activities.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Withdraw and withhold all recognition from Local Union 686, International
Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of
its employees , unless and until such labor organization shall have certified by the
Board as such representative.
(b) Post at its plant in Lansford , Pennsylvania , copies of the attached notice
marked "Appendix " 25 Copies of said notice , to be furnished by the Regional
Director for the Fourth Region, shall , after being duly signed by a representative
of Respondent , be posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter , in conspicuous
places, including all places where notices to employees are customarily posted.
25 If this Recommended Order is adopted by the Board , the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice If the Board 's Order is enforced by a decree of a United States Court of
Appeals , the notice will be further amended by the substitution of the words "A Decree
of the United States Court of Appeals , Enforcing an Order" for the words "A Decision
and Order."
YOUNG MANUFACTURING COMPANY, INC. 189'
Reasonable steps shall be taken to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fourth Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps Respondent has taken
to comply herewith.26
2U If this Recommended Order is adopted by the Board, this provision shall be modified
to read : "Notify the Regional Director for the Fourth Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to comply with the National Labor Relations Act,
we hereby notify you that:
WE WILL NOT give effect to the collective-bargaining agreement entered into
on or about July 10, 1962 , with Local Union 686, International Brotherhood of
Electrical Workers, AFL-CIO, or to any extension , renewal, or modification
thereof, or any other contract or agreement with said Local 686.
WE WILL NOT assist or support the above-named labor organization or any
other labor organization.
WE WILL NOT require as a condition of employment that employees be mem-
bers of the above-named labor organization.
WE WILL withdraw and withhold recognition from the above -named labor
organization , unless and until such labor organization shall have been certified
by the Board as the exclusive representative of our employees.
WE WILL NOT in any related manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist any labor organization , to bargain collectively through representatives of
their own choosing , and to engage in concreted activitis for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain from any or
all such activities.
All our employees are free to become or to refrain from becoming or remaining
members of any labor organization of their own choice.
MAJESTIC LAMP MFG. CORP.,
Employer.
Dated------------ ------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate with the Board's Regional Office , 1700 Bankers
Securities Building, Walnut and Juniper Streets , Philadelphia , Pennsylvania , 19107,
Telephone No. Pennypacker 5-2612, if they have any question concerning this
notice or compliance with its provisions.
Young Manufacturing Company, Inc. and Murray McConnell
Young Manufacturing Company, Inc. and Kentuckiana District
Council of Furniture & Woodworkers , United Brotherhood
of Carpenters and Joiners of America , AFL-CIO. Cases _Nos.
9-CA-2735 and 9-CA-93745. June 17, 1963
DECISION AND ORDER
On March 26, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
143 NLRB No. 30.