O. U. Hofmann & Sons

National Labor Relations Board - Board Decisions

Mar 23, 1944

55 N.L.R.B. 683 (N.L.R.B. 1944)

In the Matter of O. U. HOFMANN, O. F. HOFMANN, AND PHILLIP
HOFMANN, INDIVIDUALLY AND AS CO-PARTNERS TRADING AS O. U.
HOFMANN & SONS and UNITED ELECTRICAL, RADIO & MACHINE
WORKERS OF AMERICA, C. I. 0.
Case No. 4-C-1375.Decided March W , 1944
DECISION
AND
ORDER
On December 30, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondents
had engaged in and were engaging in certain unfair labor practices
affecting commerce, and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the re-
spondents filed exceptions to the Intermediate Report and a support-
ing brief. Pursuant to notice, oral argument, in which the respond-
ents and the Union participated, was held before the Board in
Washington, D. C., on March 2, 1944.
The Board has considered the rulings of the Trial Examiner, and
finds that no prejudicial error was committed. The rulings, with one
exception noted below, are hereby affirmed. The Board has con-
sidered the Intermediate Report, the respondents' exceptions and
brief, and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following exception :
The Trial Examiner found that the Regional Director's determina-
tion that Edward Hofmann was ineligible to vote, the sole contested
issue in this case, was final and binding and not subject to review; and
he accordingly excluded all evidence offered by the respondents as to
the-basis for the Regional Director's determination. The respondents
then offered to prove that the Regional Director's determination was
based on the admitted fact that Edward Hofmann, the challenged
voter, was the son of O. U. Hofmann, one of the individual co-partners,
from which fact the Regional Director concluded that Edward Hof-
mann was not an employee within the meaning of Section 2 (3) of the
55 N. L . R. B., No. 121.
6E3
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act.' We accept the offer of proof in lieu of evidence, and find that
no prejudicial error was committed by the Trial Examiner.
The respondents contend that the Regional Director's conclusion
was erroneous on the ground that Edward Hofmann was an employee,
not of his parent, but of the co-partnership, because under the ap-
plicable local law a co-partnership is a legal entity separate and dis-
tinct from the individual co-partners. As we held in Matter of
Blount, et al.,2 in seeking to apply the policy and provisions of the
Act to each case we are not bound by common law or local statutory
conceptions, although we take such matters into consideration. We
find that O. U. Hofmann, O. F. Hofmann, and Phillip Hofmann are
employers within the meaning of Section 2 (2) of the Act; that Ed-
ward Hofmann, the son of employer O. U. Hofmann, is not an em-
ployee within the meaning of Section 2 (3) of the Act; and that the
Regional Director's determination was not incorrect as a matter of
law.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, O. U. Hofmann, O. F. Hof-
mann, and Phillip Hofmann, individually and as co-partners trading
as O. U. Hofmann & Sons, Philadelphia, Pennsylvania, and their
agents, successors, and assigns, shall :
1. Cease and desist from:
(a) Refusing to bargain collectively with United Electrical, Radio
& Machine Workers of America, C. I. 0., as the exclusive representa-
tive of all their production and maintenance employees, excluding
superintendents, foremen, supervisory employees, and office and cleri-
cal employees, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(b) Engaging in any like or related acts or conduct interfering
with, restraining, or coercing their employees in the exercise of the
right to self -organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities, for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Seotion
7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Electrical,
Radio & Machine Workers of America, C. I. 0., as the exclusive rep-
1 Section 2 (3) of the Act provides in part that the term "employee" shall not include
any individual "employed by his parent."
2 37 N . L. R. B. 662, enf'd 131 F. (2d) 585 (C. C. A. 8), cert. den., 318 U. S. 791.
0. U. HOFMANN & SONS 685
resentative of all their production and maintenance employees, ex-
,cludmg superintendents, foremen, supervisory employees, and office
and clerical employees, in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment;
(b) Post immediately in conspicuous places throughout their plant
in Philadelphia, Pennsylvania, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to their
employees stating: (1) that the respondents will not engage in the
,conduct from which they are ordered to cease and desist in para-
graphs 1 (a) and (b) of this Order, and (2) that the respondents
will take the affirmative action set forth in paragraph 2 (a) of this
Order;
(c) Notify the Regional Director for the Fourth Region in writ-
ing, within ten (10) days from the date of this Order, what steps
the respondents have taken to comply herewith.
INTERMEDIATE REPORT
Mr. Eugene M Purver, for the Board.
Mr. Lloyd J. Schumaclcer, for the respondents.
Mr. Max Helfand, for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on December 4, 1943, by United
Electrical, Radio & Machine Workers of America, CIO, herein called the Union,
the National Labor Relations Board, by its Regional Director for the Fourth
Region (Philadelphia, Pennsylvania), issued its complaint, dated December 4,
1943, against 0. U. Hofmann, 0. F. Hofmann, and Phillip Hofmann, individually
and as co-partners, trading as 0. U. Hofmann & Sons, herein called the re-
spondents, alleging that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (1) and
(5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat.
449, heiein called the Act. Copies of the complaint accompanied by notice of
hearing were duly served upon the respondents and the Union.
With respect to the unfair labor practices, the complaint alleged in sub-
stance that the respondents on or about August 13, 1943, and thereafter, refused
to bargain collectively with the Union as the exclusive representative of their.
employees within an appropriate bargaining unit, although the Union repre-
sented a majority of the employees in said unit, thereby interfering with, re-
straining, and coercing their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
The respondents filed their answer, dated December 13, 1943, which in sub-
stance admitted that the unit agreed upon was appropriate and that the re-
spondents refused to bargaiii with the Union, but denied that they had thereby
committed unfair labor practices for the averred reason that the Union did not
represent a majority of the employees.
Pursuant to notice, a hearing was held on December 16, 1943, at Philadelphia,
Pennsylvania, before David Karasick, the undersigned Trial Examiner duly
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designated by the Chief Trial Examiner. The Board and the respondents were
represented by counsel, and the Union by its representative. All parties par-
ticipated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing upon the issues was afforded
all parties.
At the close of the hearing, counsel for the Board moved to conform the com-
plaint to the proof with respect to formal matters. A similar motion was made
by counsel for the respondents with respect to the answer. Both motions were
granted without objection. Counsel for the Board and for the respondents pre-
sented oral argument before the undersigned at the close of the hearing. The
parties were given opportunity to file briefs with the undersigned. No briefs
have been received.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
O. U. Hofmann and his two sons, O. F. and Phillip Hofmann, are co-partners„
doing business under the name of 0 U. Hoffmann & Sons. The respondent part-
ners maintain a single manufacturing plant and place of business at Philadel-
phia, Pennsylvania, where they are engaged in the manufacture and sale of
welded steel products and general machine work. For the period of approxi-
mately one year, the respondents have purchased raw materials valued at about
$50,000, approximately 20 percent of which was shipped to the respondents' plant
from places located outside Pennsylvania. During the same period of time,
the respondents sold finished products valued in excess of $100,000, approximately
50 percent of which was shipped from the plant of the respondents to places
located outside Pennsylvania. For the purposes of this proceeding, the respond-
ents concede that they are engaged in commerce within the meaning of the
Act.'
H. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization which admits to
membership employees of the respondents.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively; interference, restraint, and coercion
1. Background
The Union began organization of the respondents' employees in June 1943, and
on July 9 filed a Petition for Investigation and Certification of Representatives
with the Regional Office of the Board in Philadelphia.' On August 5, 1943, the
respondents and the Union entered into a consent election agreement, and pur-
suant thereto an election was conducted under the supervision of the Regional
Director on August 10, 1943. Of 45 ballots cast, 1 ballot was challenged by the
Union, 1 ballot, was void, 22 ballots were cast for and 21 ballots against the
I The foregoing facts and figures are derived from a stipulation entered into between
the parties at the commencement of the hearing.
2 Case No. 4-R-1190.
0. U. HOFMANN & SONS 687
Union. On August 12, an informal hearing was held by the Regional Director for
the purpose of investigating the facts with respect to the challenged ballot. As
a result of the hearing so held, the Regional Director informed the parties that
he sustained the challenge and ruled that the voter was ineligible to participate
in the election. His "Report on Consent Election," noting the fact that be had
sustained the challenge and designating the Union as the exclusive bargaining
representative of the employees in the agreed unit, was issued on August 16,
1943.
On August 20, 1943, the respondents filed with the Regional Office "Objections
To Report on Consent Election," wherein they stated in substance that the
Regional Director had erred in sustaining the challenge with respect to the one
challenged ballot, and had erred in finding that the Union had been selected by a
majority and was therefore the exclusive bargaining representative of the em-
ployees in the agreed unit On August 23, the Regional Director, by letter,
informed counsel for the respondents that after due consideration the objections
to the "Report on Consent Election," were overruled, citing, in support of his
action, Sections III, VIII, and IX of the consent election agreement?
2. The appropriate unit
The consent election agreement, to which the respondents were parties, provided
that all production and maintenance employees, excluding superintendents, fore-
men, supervisory employees, and office and clerical employees, constitute an
appropriate bargaining unit. The respondents admit in their answer and con-
ceded at the hearing, that the unit so agreed upon is appropriate.
In accordance with the consent election agreement, the undersigned finds that
all production and maintenance employees, excluding superintendents, foremen,
supervisory employees, and office and clerical employees, at all times material
herein constituted and that they now constitute a unit appropriate for the pur-
3 The sections of the consent election agreement to which reference was so made provide
as follows :
III Procedure
Said election shall be held in accoidance with the Act, the Rules and Regulations.
and the customary procedures and policies of the Board ; provided that the determina-
tion of the Regional Diiector shall be final and binding upon any question ( including
questions as to the eligibility of voters ) raised by either party hereto relating in any
manner to the election and not specifically coveied in this Agreement.
VIII. Objections
Objections to the conduct of the ballot or to a determination of representatives based
on the results thereof, may be filed with the Regional Diiector within five (5) days
after the closing of the polls and copies of such Objections niust be served upon the
other party If Objections are duly fired, the Regional Director shall promptly investi-
gate the matters contained in such Objections
IX. Election Report
The Regional Director shall, upon the completion of his investigation of the Objec-
tions, if any, or otherwise upon the espnation of the period within which Objections
may be filed, issue a Report on Consent Election. Such Report shall contain a tally
of the results of the ballot and the Regional Director's rulings, if any, on challenged
ba'lots and Objections If Objections are sustained, the Regional Director may in his
Report include an Order voiding the results of the election and in that event shall be
empowered to conduct a new election under the terms and provisions of this Agree-
ment at a date, time, and place to be determined by hum If Objections are over-
ruled or if none have been filed, the Regional Director shall, in his Report, include a
finding and determination as to whether the employees in the Unit have selected the
Union as their bargaining representative.
-688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
poses of collective bargaining with respect to rates of pay, wages, hours of
employment, or other conditions of employment, and that said unit insures to
employees of the respondents the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuates the policies of the Act.
3. Representation by the Union of a majority in the appropriate unit
The Regional Director, in his "Report on Consent Election," found that the
Union had been designated and selected by a majority of the employees in the
agreed unit as the exclusive bargaining representative In arriving at this
finding, the Regional Director ruled that the one voter whose ballot was chal-
lenged was not eligible to participate in the election The final tally thus showed
that, of the 43 valid ballots cast, 22 votes were cast for and 21 votes against
the Union.
The respondent contends that the Regional Director erred in finding that the
one person whose ballot was challenged was ineligible to vote For the reasons
stated hereafter, the undersigned finds this contention to be without merit.
The undersigned finds that on and at all times since August 10, 1943, the Union
has been the bargaining representative of a majority of the employees in the
aforesaid appropriate unit, and that by virtue of Section 9 (a) of the Act, the
Union has been at all times since August 10, 1943, and is now, the exclusive
representative of all employees in the aforesaid unit for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours of employment, and
.other conditions of employment.
4. The refusal to bargain
On August 12 and again on September 13, the Union wrote to the respondents,
requesting that the parties meet for the purpose of negotiating a collective bar-
gaining agreement, and on the latter date enclosed a copy of a proposed contract
Counsel for the respondents conceded at the hearing that the respondents failed
to reply to either of these requests by the Union to bargain.
5 Concluding findings
As noted above, the respondents raise no question as to the appropriateness of
the unit, and admit that they have refused to bargain with the Union. They con-
tend, however, that the Regional Director erred in ruling that the one person
whose ballot was challenged was ineligible to vote, that the Union therefore did
not represent a majority of the employees in the unit; and that the action of the
respondents in refusing to bargain with the Union under such circumstances
has not been in violation of the Act. In support of their position, the respond-
ents sought to introduce evidence which they contended would show that the
Regional Director had ruled erroneously with respect to the one challenged ballot.
Upon objection, the undersigned excluded such evidence 6 The undersigned finds
As noted above, the Union won the election by one vote after the one ballot challenged
had been ruled invalid by the Regional Director Counsel for the iespondents admitted at the
hearing that the respondents did not know whether the challenged ballot had been cast for
or against the Union
5 The respondents cited the Board's decision in Matter of the Monte Glove Company, Ine,
17 N. L R B 405, as authority for their position that they weie entitled to review the
findings of the Regional Director made puisuant to the consent election agreement in Case
No 4-R-1190 The case so cited is not in point, however, since the consent election agree-
ment there involved provided only that disputes "concerning the eligibility of a particular
employee, and challenged ballots, shall be determined by the Regional Director," and did
not, as in the consent election agreement here involved, provide that any such deteiinina-
tion should be "final and binding "
O. U. HOFMANN & SONS 689
that the Regional Director's determination with respect to the challenged ballot
in this case is final and binding upon the parties, as expressly provided in the
consent election agreement,' and is not subject to review.
Accordingly, the undersigned finds that the respondents, on or about August
10, 1943,' and at all times thereafter, have refused to bargain collectively with the
Union as the exclusive representative of their employees in the unit hereinbefore
found appropriate, and have thereby interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7 of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations of the respondents 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 ob-
structing commerce and the free flow of commerce.
V THE REMEDY
Since it has been found that the respondents have engaged in unfair labor prac-
tices, it will be recommended that they cease and desist therefrom and take cer-
tain affirmative action designed to eflectuate the policies of the Act. It having
been found that the respondents refused to bargain collectively with the Union
as the exclusive representative of their employees in an appropriate unit, it will
be recommended that the respondents, upon request, bargain collectively with the
Union.
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following
CONCLUSIONS of LAW
1. United Electrical, Radio & Maclnne Workers of America, CIO, is a labor
organization, within the meaning of Section 2 (5) of the Act.
2 All production anti maintenance employees of the respondents, excluding
superintendents, foremen, supervisory employees, and office and clerical employ-
ees, constitute a unit appropriate for the purposes of collective bargaining, with-
in the meaning of Section 9 (b) of the Act.
3 United Electrical, Radio & Machine Workers of America, CIO, iNas on Au-
gust 10, 1943, and at all times thereafter has been, the exclusive reps esentative of
all employees in the aforesaid unit for the purposes of collective bargaining, with-
in the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with United Electrical, Radio & Machine
Workers of America, CIO, as the exclusive representative of their employees in
an appropriate unit, the respondents have engaged in and are engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act
5. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondents have en-
See footnote 3, supra.
Although the record indicates that the parties weie orally informed of the Regional
Director's determination on August 12 and the Union requested the respondents to bargain
in a letter sent to them on August 13, the "Report on Consent Election," which found
that the Union had been designated by a majority of the employees , was not issued until
August 16 Cf H. G Hill Stores, Inc, 49 N L R B. 194.
578129-44-vol. 5 5--4 5
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaged in and are engaging in unfair labor practices, within the meaning of Sec-
tion 8 (1) of the Act.
6 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the respondents,
O U Hofmann, O. F. Hofmann, and Phillip Hofmann, individually and as co-
partners, trading as O. U. Hofmann & Sons, Philadelphia, Pennsylvania, their
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Electrical, Radio & Machine
Workers of America, CIO, as the exclusive representative of all production and
maintenance employees of the respondents, excluding superintendents, foremen,
supervisory employees, and office and clerical employees ;
(b) Engaging in any like or related act or conduct interfering with, restrain-
ing, or coercing their employees in the exercise of the rights to self-organiza-
tion, to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purposes of collective baigaining or other mutual aid or protection, as
guaianteed in Section 7 of the Act.
2 Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act:
(a) Upon request bargain collectively with United Electrical, Radio & Ma-
chine Workers of America, C1O, as the exclusive representative of all produc-
tion and maintenance employees of the respondents, excluding superintendents,
foremen, supervisory employees, and office and clerical employees ;
(b) Post immediately in conspicuous places in their plant in Philadelphia,
Pennsylvania, 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 re-
spondents will not engage in the conduct fioni which it is recommended that
they cease and desist in paragraph 1 (i) and (b) of these recounniendations;
and (2) that the respondents will take the afflimative action set forth in
paragraph 2 (a) of these recommendations;
(c) File with the Regional Duector for the Fourth Region on or before ten
(10) days from the date of the receipt of this Intermediate Report, a report
in wi itirig setting forth in detail the manner and form in which the respondents
have complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondents notify said Regional Direc-
tor in writing that they have complied with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondents
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D ('I, an original and four copies of a statement in writ-
ing setting forth such exceptions to the Intermediate Report or to any other
O. U. HOFMANN & SONS 691
part of the record or proceeding (including rulings upon all motions or objec-
tions) as he relies upon, together with the original and four copies of a brief
in support thereof. Immediately upon the filing of such statement of exceptions
and/or brief, the party or counsel for the Board filing the same shall serve a
copy thereof upon each of the other parties and shall file a copy with the Re-
gional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be
made in writing within ten (10) days from the date of the order transferring
the case to the Board.
DAVID KARASICK
Trial Examiner
Dated December 30, 1943.