Pacific Airmotive Corp.

National Labor Relations Board - Board Decisions

Nov 26, 1947

75 N.L.R.B. 283 (N.L.R.B. 1947)

In the Matter of PAC] 1 rC AIIIMOTIVF CORPORATION and INTERNATIONAL
ASSOCIATION OF MACIIINISrs1 LODGE 1309 , DIST. 87
Case No. PO-C-1484 .-Decided November 06,1947
Mr. Thomas J. Davis, Jr., for the Board.
Victor Ford Collins, Esq., of Los Angeles, Calif., by Mr. Frank J.
Kanne, Jr., for the respondent.
Mr. A. C. McGraw, of Oakland, Calif., for the Union.
DECISION
AND
ORDER
On March 11, 1947, Trial Examiner Sidney L. Feiler 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 the respondent cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report , the respondent 's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent , Pacific Airmotive
Corporation , Fresno, California , and its officers, agents , successors and
assigns shall:
1. Cease and desist from :
(a) Refusing to bargain with International Association of Machin-
ists, Lodge 1309, Dist. 87, as the exclusive bargaining representative
75 N. L. R. B., No. 38
283
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all its employees at its Fresno branch at Fresno, California, engaged
in the maintenance, repair, and servicing of aircraft and aircraft
engines, except for guards, office clericals, salesmen, group leaders, and
all supervisors;
(b) In any other manner interfering with the efforts of Interna-
tional Association of Machinists, Lodge 1309, Dist. 87, to negotiate
for or represent the employees in the aforesaid unit as their exclusive
bargaining agent.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Associa-
tion of Machinists, Lodge 1309, Dist. 87, as the exclusive bargaining
representative of the employees in the unit set forth above, with
respect to rates of pay, wages, hours of employment, or other con-
ditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement;
(b) Post at its offices in Fresno, California, copies of the notice
attached to the Intermediate Report, marked "Appendix A." 1 Copies
,of said notice, to be furnished by the Regional Director for the
Twentieth Region, shall, after being duly signed by the respondent or
its representative, be posted by the respondent immediately -upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees ai*e customarily posted. Reasonable steps shall be taken
by the respondent to insure that said notices are not altered, defaced,
or covered by any other material;
(c) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps have
been taken to comply herewith.
INTERMEDIATE REPORT
Mr. Thomas J. Davis, Jr, for the Board.
Victor Ford Collins, Esq., of Los Angeles, Calif, by Mr. Frank J. Kanne, Jr.,
for the respondent.
Mr. A C McGraw, of Oakland, Calif, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by International Association of Machinists, Lodge 1309,
District 87, hereinafter referred to as the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Twentieth Region
Said notice , however , shall be , and it hereby is, amended by striking from line 3 thereof
the words " The Recommendations of a Tiial Examiner" and substituting in lieu thereof the
words "A Decision and Order " In the event that this order is enforced by a decree of a
Circuit Court of Appeals, there shall be inserted in the notice, before the words "A Decision
and Order," the words "A Decree of the United States Circuit Court of Appeals Enforcing."
PACIFIC AIRMOTIVE CORPORATION 285
(San Francisco, California), issued its complaint dated November 29, 1946,
against Pacific Airinotive Corporation, Fiesno, California, herein called the re-
spondent, alleging that the respondent had engaged in and was 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,
Herein called the Act. Copies of the complaint, together with notice of hearing
thereon, were duly served upon the respondent and the Union.
With respect to unfair labor practices, the complaint alleges in substance that
the respondent on April 18, 1046, refused, and thereafter continued to refuse, to
recognize the Union as the duly designated exclusive representative of its em-
ployees in an appropriate unit for the purpose of collective bargaining. In its
answer, dated December 6, 1946, the respondent denies that its activities at
Fresno constitute interstate commerce within the meaning of the Act, admits that
it has refused to bai gain with the Union, but alleges that the Union is not the duly
constituted bargaining representative of its employees in an appropriate unit.
Pursuant to notice a hearing was held at Fresno, California, on December 12,
1946, befoi e the under signed, Sidney L Feiler, the Trial Examiner duly designated
by the Chief Trial Examiner The Board and the respondent were represented by
counsel ; the Union, by a representative. Full opportunity to be heard, to examine
and ci oss-examine witnesses, and to introduce evidence bearing on the issues was
afforded all parties At the commencement of the hearing the respondent moved
to amend its answer to specifically deny the allegations in the complaint as to
the nature and extent of its Fresno operations This motion was granted without
objection After all the evidence had been offered, all parties presented oral
iirgunient Opportunity was then afforded the parties to file briefs and proposed
findings of fact and conclusions of law. Briefs were received from all the parties ;
the brief from the Union also contained proposed conclusions of law.
Upon the entire record in the case, and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
i rink iiUSi\FSS OF THE 1iESPONDFNr
The respondent is a California corporation having its principal office and place
of business in Glendale, Cahfoini,i Detailed information concerning the history
and business of the respondent is contained in Amendment No 3 to Registration
Statement, dated April 2, 111-16, and filed by the respondent with the Securities
and Exchange Commission The following material taken from that statement
i,^ pertinent herein
The business of this Company now consists of. (1) Repair, overhaul, modi-
fication, and seivicing of airplanes, aircraft engines, accessories, propellers,
instruments, and parts; (2) manufacture and sale of specialized aircraft tool-
ing and equipment for use in the ,is-enibling, servicing, and maintenance of
aircraft; (3) selling at wholesale and retail of aircratt engines, parts, acces-
sories, and geneal acioi:mtical supplies, (4) export of aircraft parts, ma-
terials, and supplies, including equipment m,inufactured by the Company,
(5) acting as manufacturer's agent; (6) assembly of propellers shipped in
a "knock-down" condition fiom original nianufactuies; (7) operation of
airport at San Jose, Califonnia; (8) acting as authorized distributor and
jobber, as well as authorized repair stations for many well-known aeronau-
tical lines; (9) manufacturer of engines for use in model airplanes, and (10)
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generally conducting a complete business in the aircraft supply and service
field.
The Company maintains its executive offices at 6265 San Fernando Road,
Glendale 1, California, and also maintains plants and offices to conduct its
operations at Lockheed Air Terminal, Burbank, California ; Glendale, Cali-
fornia; North Hollywood, California ; Oakland, California ; San Diego, Cali-
fornia ; San Jose, California ; Fresno, California; Seattle, Washington ;
Kansas City, Missouri, and Anchorage, Alaska.
There is set forth in the following a more detailed description of the busi-
ness and activities carried on by the Company :
Seance
(a) The Company holds five Civil Aeronautics Authority approved repair
station certificates and engages in the repair, overhaul, service, modification
and reconversion of practically all types and sizes of airplanes, airplane
engines, radios, instruments, propellers, parts, and accessories These services
are performed for domestic and foreign air lines, industrial and business firms,
air freight carriers, charter service operators, flying schools, privately owned
airplanes, and for manufacturers in the aviation industry.
(b) The Company assembles aircraft propellers, which are shipped to it
in a disassembled condition for final assembly and test. Such propellers
when completed, are delivered mainly to airframe manufacturers and to their
customers.
Manufacturing
(a) The Company manufactures over 350 items of specialized aviation tools
and equipment for use in the maintenance, repair, overhaul and service of
airplanes, engines, propellers, accessories, and parts. This equipment is
being sold to air lines and overhaul stations, both for domestic and foreign
use.
(b) The Company manufactures and sells miniature engines, under the
trade name of "Dennymite," for use in model airplanes.
Stores
(a) The Company ni:rintains stores at several of its locations which carry
inventories of engines, engine parts, accessories, instruments, radios, and
general aeronautical supplies These are sold at wholesale or retail to air
lines, air freight carriers, charter service operators, dealers, airframe manu-
facturers, and to private flyers.
The respondent also lists in the aforementioned statement companies for whom
its acts as distributor and manufacturer's agent Several of the concerns men-
tioiied have been found by the Board to be engaged in interstate commerce within
the meaning of the Act
The respondent concedes that it is engaged in interstate commerce and also ad-
mits that in a recent representation proceeding relating to its operations at Bur-
bank, California, it conceded that it was subject to the Act as to its activities at
Burbank. However, it denies that its operations at Fresno, California, which are
the subject of this proceeding, are in interstate commerce'
' On Mai ch 6. 1946, C C Smith, the respondent's Industrial Relations Director, addressed
a letter to the Board in answei to its request foi ilifounation as to the lespondent's busi-
ness in connection with a representation petition filed as to the Fresno operations The
concluding paragraph of that letter is as follows
PACIFIC AIRMOTIVE CORPORATION 287
The, respondent commenced operations at Fresno in February 1946, when
it purchased materials and equipment from a local concern at Chandler Field
The operations at Fresno are described by the respondent in its afore-mentioned
registration statement as, "Engine and aircraft maintenance and overhaul,
general aeronautical supply sales " The operations at Fresno are in charge of
a manager who receives his instructions from top supervisory officials at the
respondent's headquarters While some quantities of materials and supplies
are purchased directly by the Fresno branch, the great majority of its supplies
are received from the respondent's main warehouses located elsewhere since
the respondent uses a system of central purchasing. A. L. Schluttig, assistant
to the vice president and also in charge of the Fresno operations at the time of
the hearing, was unable to specify the points of origin of shipments to the
respondent of items purchased centrally and later requisitioned for use at
Fresno? However, he identified various items used at Fresno as made by
companies distributing their products Nation-wide and who have been found
by the Board in prior cases to be engaged in interstate commerce.' In addition,
the Fresno branch on advice from the home office purchases approximately three
or four hundred dollars worth of material and supplies each month from points
outside the State of California.
The Fresno branch supplies parts to dealers in the territory approximately
100 miles north and south of Fresno. About 500 airplanes are based in that
territory and the respondent has business relations with approximately 10
dealers In addition the respondent leases space from the city of Fresno at
Chandler Field. The general nature of the respondent's operations at that
field, according to Schluttig, is air-frame repair work, recovering, painting, -and
engine tests . Employees also have been engaged since the summer of 1946 in
dismantling B-24 engines. The parts are sent to the respondent's Glendale
branch and are used for replacement work on DC-3 and other commercial air-
craft. The DC-3 airplanes are the type used by regularly scheduled airlines
engaged in interstate commerce
The sales and services by the respondent at its Fresno operation for 1946
totaled $96,337.41 up to November 30. The bulk of the work performed was
on small-type aircraft not engaged in interstate operations. There was intro-
duced in evidence a statement of the respondent's accounts receivable at the
Fresno operation for the month of November 1946, and it was stipulated that
it was typical and showed substantially the same customers, with the exception
of Union Oil Company and Fire Company Adjustment Bureau, that the respondent
dealt with in the other months of 1946 Some of these customers were operators
of airfield, Civil Aeronautics Administration, U. S. Forestry Service, Mazzei-
It is our earnest desire, at all times, to cooperate with the NLRB and to assist
them in any particular case which may be appearing before the Board. The informa-
tion requested by the Board in subject case would require it great deal of time and
effoit to compile and since the Company is in Interstate Commerce, it is raising no
question as to the National Labor Relations Board's jurisdiction In view of these
facts, we would appreciate the Board withdrawing their request for the indicated
information
The respondent now takes the contrary position.
"There was no substantial dispute as to the factual background of the respondent's
Fresno business , and the findings herein are based principally upon time testimony of
Schluttig.
3 Some of the items mentioned by Schluttig were engine pacts for Continental , Lycoming,
and Franklin motors, Motorola radios , Pioneer and Kolzman instruments , and Geneial
Electric lamps.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hill Aeronautics and Pacific Air Lines , charter carriers , and U . S. Coast Guard.
These individual accounts with the exception of âIazzei-Hill were small in
dollar value for the month . Some repair jobs and checking have also been
done for Transcontinental and Western Airlines, but no major work has been
undertaken for them . Work also was performed in July 1946 for a charter
carrier based in Arizona.
Employees also have been engaged since August 1946 in making repairs on a
large airplane owned by the Union Oil Company and malting it ready for tests
and licensing by the Civil Aeronautics Administration . Employees from other
locations were used for certain special work on this airplane.
The Fresno branch has not performed any work outside the State of California.
Such work has been referred to the home office.
Conclusions
The respondent contends that its operations at Fresno do not constitute inter-
state commerce within the meaning of the Act. It maintains that the opera-
tions at Fresno are separable from the other operations of the respondent at
other centers and that while the respondent is engaged in interstate commerce
the operations at Fresno are not integrated with the interstate activities ; and
as to the business at Fresno itself, the work performed there is intrastate in
character and that certain work relied on as being in inteistate commerce were
isolated tiansactions inconclusive in nature, and occurred after the election
held herein on March 19, 1946. The Board and the Union contend that the
Fresno operations are integrated with the respondent's other operations and
that independently thereof the nature of Fresno operations make the respondent
subject to the Act.
The undisputed facts established that a close relation exists and has existed
between the Fresno operation and the other operations of the respondent. A
substantial portion of the materials and supplies used at Fresno are obtained
by requisition from stores accumulated by central purchasing. The respondent
does not argue that these purchases were not originally made in interstate com-
merce, but it maintains that these purchases cane to rest at the respondent's
warehouse facilities in California and that the later shipments to Fresno form
no basis for a finding that the respondent's Fresno operations are thereby subject
to the Act. The undersigned does not accept this argument. The respondent's
purchases at its main branch had to be made with due regard for the require-
ments at Fresno. To disregard this normal flow of materials and supplies
would be to set up a barrier or artificial separation which does not exist in
fact. It cannot be said that a labor dispute at Fresno would not interfere
with the purchases and flow of goods to the respondent's main facilities since
those purchases of necessity in part reflect the needs at Fiesno The contrary
is true. The remaining purchases at Fresno to the extent of three to four
hundred dollars per month were admittedly made in interstate commerce
The organizational set-up of the respondent indicates quite clearly that a
main purpose was to establish various branches giving standardized service
and serving as outlets for materials and equipment purchased in interstate
commerce.
The undersigned concludes that the operations at Fresno are planned and do
operate as an integrated part of the respondent's complete operations and for
that reason and because of the effect of the Fresno operations upon the re-
PACIFIC AIRMOTIVE CORPORATION 289
spondent's purchases in interstate commerce the undersigned finds that those
operations affect commerce within the meaning of the Act.4
Certain aspects of the work at Fresno during 1946 are indicative of the close
relationship between the other parts of the respondent's organization and the
Fresno branch. When the respondent undertook to dismantle aircraft engines
to add their parts to its stores, that work was assigned to the Fresno branch.
Conversely, when the Fresno branch undertook reconditioning work for the
Union Oil Company mechanics were assigned from the amain headquarters of
the respondent to assist in their work.
The evidence as to the repair work performed at Fresno indicates that for
the most part it consisted of repairs to airplanes not engaged in interstate opera-
tions. However, the Fresno branch did perform work for or made sales to
charter carriers, governmental agencies and companies engaged in interstate
commerce.
The undersigned concludes and finds that at all times here relevant the respond-
ent at its Fresno branch has been engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
International Association of Machinists, Lodge 1309, Dist. 87, is a labor organi-
zation admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES ; THE REFUSAL TO BARGAIN
A. The appropriate unit; rep) esentatcon by the Union of a majority therein
The Union filed a representation petition on January 24, 1946. On March
15, 1946, the Union and the respondent signed an Agreement for Consent Election.
The Agreement provided that an election by secret ballot should be conducted on
March 19, 1946, among the respondent's employees in the following appropriate
unit:
All employees of the Corporation's Fresno Branch at Fresno, California,
engaged in the maintenance, repair, and servicing of aircraft and aircraft
engines, except for guards, office clerical, and all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, salesmen
and group leaders.
The day before the election two employees eligible to vote were sent from
Fresno to another city for business reasons. The respondent brought this situa-
tion to the attention of a representative of the Board and an agreement was
reached that the two men would be allowed to cast their ballots by mail i
4 N L R. B. v Virginia Electric d Pou er Company, 314 U S. 469, affirming on this point
115 F. (2d) 414 (C C. A 4), enf'g 20 N. L. R. B. 911; Williams Motor Company v N. L.
R. B, 128 F. (2d) 960 (C. C. A. 8), enf'g 31 N. L R B. 715; N L R B v. Schmidt Bak-
ing Co, Inc, 122 F. (2d) 162 (C. C A 4), enf'g 27 N. L. R. B. 864; Matter of Pangbvrn
Company, lite, 64 N L R. B. 1551 ; Matter of Atlantic Company, 65 N. L. R. B. 1274.
G Respondent's Objections to Conduct of Election ( Bd. Ex 17 ), pg 2. There is a dis-
pute as to the extent of the agreement concerning the voting procedure . The Regional Di-
rector in his Report on Objections to Election ( Bd Ex 16 ) found that the respondent had
agreed not only to the procedure of allowing the absent employees to vote by mail, but also
to a delay in the counting of ballots until all the ballots could be commingled . The actions
of the respondent immediately after the election tend to negative such an agreement The
evidence presented at the hearing , in the opinion of the indersigned , does not sufficiently
establish the making of a definite agreement for the commingling and counting of ballots
at a later date.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 19, 1946, the election was held at Fresno as scheduled . The respond-
ent and the Union each designated an observer to watch the balloting At the
conclusion of the balloting, the Board Field Examiner inattendance sealed the
ballots in an envelope and he and each of the observers signed their names across
the flap. The observers signed a Certification on Conduct of Election. The Field
Examiner then informed representatives of the respondent that he was taking
the ballots to the Regional office at San Francisco and that all parties would be
informed when a count of the ballots would be made
On March 20, 1946, the respondent sent a telegram to the Regional Director
objecting to the conduct of the election on the grounds that the votes were not
counted and tabulated as soon after the election as feasible, that a tally of ballots
was not furnished to the parties at the conclusion of the election, that the author-
ized observer for the respondent was denied his privilege and duty of verifying
the tally by reason of the removal of the ballots to San Francisco, and that the
ballots were removed from the place of election prior to their count and tabulation.
On March 25, representatives of the respondent and the Union met with the
Field Examiner at the Board office in San Francisco for the purpose of counting
the ballots. When the respondent pressed its objections, the counting was post-
poned.
The Union then filed a memorandum on the objections , dated March 26, 1946,
in which it maintained that the procedure sought to be followed by the Board
was fair and that the objections were specious The respondent in its reply to
the Union 's memorandum reiterated its position . It called attention to para-
graph 6 of the "Agreement for Consent Election," which provides :
Observers-Each party hereto will be allowed to station an equal number
of authorized observers , selected from among the nonsupervisory employees
of the Employer, at the polling places during the election to assist in its
conduct, to challenge the eligibility of voters , and to verify the tally. As
soon after the election as feasible , the votes shall be counted and tabulated
by the Regional Director , or his agent or agents . Upon the conclusion of the
counting , the Regional Director shall furnish a Tally of Ballots to an
observer designated by each party for such purpose.
The respondent maintained that the above provision requires that the ballots
be counted immediately after the voting so that the observer could verify the
tally. While recognizing that special situations might require a departure from
normal procedures, the respondent maintained that that was not the situation
in this case, that it was feasible to count the ballots at the time of the election,
and that a more reasonable procedure would have been to have counted the
ballots on band at the time of the election and to have made a subsequent count
of the mailed ballots, if necessary.
On March 29 , 1946, the Regional Director issued a Report on Objections to
Election in which he considered the objections raised to the conduct of the
election , concluded that they were without merit , and ordered that the ballots
be counted at the Board offices in San Francisco on April 5, 1946.
The Union and the respondent were both represented at the counting of the
ballots, the respondent having designated its Fresno Manager Hawker as
observer without prejudice to its previously expressed objections . The Field
Examiner identified his signature on the flap of the sealed Fresno ballots. The
respondent then checked the signatures of the observers on the flap and also the
signatures on the envelopes of the two ballots that had been received by mail.
The mailed ballots were then intermingled and counted by Hawker and the repre-
PACIFIC AIRMOTIVE CORPORATION 291
sentative of the Union, McGraw. They both then signed a Tally of Ballots certify-
ing that a majority of the votes had been cast for the Union.6
The respondent then filed Objections to Conduct of Elections maintaining and
affirming its previously expressed position. The Regional Director on April 12,
l946, issued a Report on Objections to Election overruling the objections. On
April 22, 1946, he issued a Consent Determination of Representatives finding
that the Union was the designated exclusive collective bargaining representa-
tive of the respondent's employees in the unit set forth in the consent election
agreement.
Conclusions
The sole issue as to the respondent 's refusal to bargain is the validity of the
procedure used in the counting of the ballots. It is true , as the respondent con-
tends, that the election procedure set forth in the Board's Rules and Regula-
tions contemplates an election by secret ballot and the counting of those ballots
and the preparation of a tally immediately thereafter . In this manner, full
effect is given to the twin policies of assuring employees who vote that they can
exercise their freedom of choice secure in the knowledge that the individual
votes will not be disclosed and secondly , that the respective parties will have
full opportunity to observe the counting of the ballots and thus be able to make
timely objections and prevent any fraud or mistake . However, as the respondent
recognizes in its brief , special circumstances do arise where a different pro-
cedure must be employed to protect the rights of all the parties and it has been
held that the Board has wide discretion in determining the election procedure
to be used 7
In the instant case a special situation did arise immediately prior to the
election in that two of the eligible voters were absent from Fresno on the day
of the election on the respondent 's business The two alternatives open to the
parties were to either postpone the election or to proceed and to make provisions
for allowing the two absent employees to cast their ballots. The latter choice
was agreed to prior to the election.
At the conclusion of the balloting at Fresno two alternatives again faced the
parties. There was a strong possibility in view of the small total of ballots,
that the two mailed ballots might be determinative of the election . If the bal-
lots were counted at Fresno and a later count made of the mailed ballots, the
choice of the two absentee voters would have been revealed and the secrecy of
the ballot would have been destroyed as to them The other possibility, and
the one selected by the Field Examiner , was to postpone the count until all the
ballots had been received. In this way the secrecy of the ballot was fully
preserved to all the voters.
- In addition , steps were taken to safeguard the interests of the parties against
any tampering with the ballots After the balloting at Fresno, the two ob-
e The tally was as follows :
Approximate number of eligible voters------- -------------------------- 13
Void ballots--------------------------------------- ---------------- 0
Valid votes counted-------------------------------------------------- 13
Challenged ballots--------------------------------------------------- 0
Votes cast for Union------------------------------------------------- 9
Votes cast against the Union----------------------------------------- 4
'Southern Steamship Co v. N L. R. B, 316 U. S. 31, reversing and remanding 120 F.
(2d) 505 (C. C. A. 3), enf'g 23 N. L. R. B. 26; N. L. R. B. v. 0. U. Hofmann, et al., 147
F. (2d) 679 (C. C. A. 3), enf'g 55 N L. R. B. 683.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
servers and the Field Examiner signed their names across the flap of the
envelope containing the ballots. The ballots remained in custody of the Board.
Before the ballots were counted, representatives of the parties were assembled
and the signatures on the flap of the envelope containing the Fresno ballots and
The signatures on the envelopes of the mailed ballots were compared with signa-
tures on file with the respondent. The ballots were then mingled and the count
was made by the parties.
It is clear that precautions were taken to prevent any tampering with the
ballots and there is no allegation of fraud. The respondent's chief contention is
that the consent election agreement prescribed a set procedure which could not be
varied, that there was such a variance, and that the election was a nullity. The
undersigned does not agree The consent election agreement provides in Section
1 thereof, "Said election shall be held in accordance with the National Labor Re-
lations Act, the Board's Rules and Regulations, and the customary procedures
and policies of the Board . . " The experience of the Board, as evidenced in its
decisions, is that special situations do arise in the conduct of elections which
require special arrangements and the Courts have recognized that the Board has
wide discretion in such matters. The sentence quoted above concludes, as follows,
"provided that the determination of the Regional Director shall be final and
binding upon any question, including questions as to the eligibility of voters,
i aised by any party hereto relating in any manner to the election." The under-
signed construes the provision to mean that the Regional Director has discretion
in determining whether an election has been properly conducted. The provision
expressly contemplates that questions may arise in the conduct of an election
and that the Regional Director may make final determination thereon
The evidence establishes that a special situation arose which required a special
procedure in order to protect the secrecy of the ballots cast. The method used
preserved the secrecy of the ballot and also insured against any fraud or ,tamper-
ing with the ballots before they were counted. The undersigned concludes that
the Regional Dii ector acted within the scope of authority as set forth in the
consent election agreement in overruling the objections raised to the election and
in certifying the Union as collective bargaining representative. The undersigned
further concludes that said decisions effectuated the policies of the Act as to
the selection of collective bargaining representatives
The undersigned, therefore, finds that all employees of the respondent 's Fresno
Branch at Fresno, California, engaged in the maintenance, repair, and servicing of
aircraft and aircraft engines, except for guards, office clerical, salesmen, group
leaders, and all supervisory employees with authority to hire, promote, discharge,
discipline , or otherwise effect changes in the status of employees , or effectively
recommend such action, constitute, and at all times material herein constituted,
a unit appropriate for the purposes of collective bargaining . The undersigned
further finds that on and at all times after April 5, 1946, the Union was the duly
designated collective bargaining representative of the employees in said appro-
priate unit.
B. The refusal to bargain
The complaint alleges and the answer admits that the Union requested the re-
spondent to bargain collectively with it as the exclusive representative of all the
8 A. J. Tower Company v. N L R. B., 67 S Ct 324 Matter of Capitol Gi eylotind Lines,
49 N L R B 156, enf'd 140 F. (2d) 754 (C. C. A. 6), cert den 322 U S 763. See also,
Matter of Botany Worsted Mills, 56 N. L R B 370, 382
PACIFIC AIR_MOTIVE CORPORATION 293
employees in the aforesaid,appropriate unit. Letters from the attorney of the
i espondent to the Union dated April 22, 1946 and November 29, 1946, were intro-
duced in evidence In both these letters, the respondent's position, as discussed
above, was set forth and also a refusal to recognize the Union and bargain with it.
The undersigned finds that the respondent on April 22, 1946, and at all times
thereafter, has refused to bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
1V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and 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 respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Because of the basis of the respondent's refusal to bargain as indicated by the
facts found, and because of the absence of any evidence that danger of other
unfair labor practices is to be anticipated from the respondent's conduct in the
past, the undersigned will not recommend that the respondent cease and desist
from the commission of any other unfair labor practices. Nevertheless, in order
to effectuate the policies of the Act, the undersigned will recommend that the
respondent cease and desist from the unfair labor practices found and from any
ether acts in any manner interfering with the efforts of the Union to negotiate
for or represent the employees in the unit herein found appropriate, as exclusive
bargaining representative.
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 International Association of Machinists, Lodge 1309, Dist. 87, is a labor organ-
ization within the meaning of Section 2 (5) of the Act.
2. All employees of the respondent ' s Fresno Branch at Fresno, California,
engaged in the maintenance , repair , and servicing of aircraft and aircraft engines,
except for guards, office clerical, salesmen , group leaders , and all supervisory
employees with authority to hire, promote, discharge , discipline , or otherwise
effect changes in the status of employees, or effectively recommend such action,
constitute , and at all times material herein constituted , a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9 (b) of the
Act.
3. International Association of Machinists, Lodge 1309, Dist. 87, was on April
5, 1946 , and at all times thereafter has been the exclusive representative of all
employees in the aforesaid unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
766972-48-vol 75-20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 By refusing on April 22, 1946, and at all tines thereafter to bargain col-
lectively with International Association of Machinists, Lodge 1309, Dist. 87,
as the exclusive representative of all of its employees in the aforesaid appropriate
unit, the respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section S (5) of the Act.
5 By said acts, the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices 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 respondent,
Pacific Airmotive Corporation, Fresno, California, its officers, agents, successors
and assigns shall :
1. Cease and desist from
(a) Refusing to bargain with International Association of Machinists, Lodge
1309, Dist. 87, as the exclusive bargaining representative of all its employees
at its Fresno Branch, at Fresno, California, engaged in the maintenance, repair,
and servicing of aircraft and aircraft engines, except for guards, office clerical,
salesmen, group leaders, and all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action;
(b) Engaging in any other acts in any manner interfering with the efforts
of International Association of Machinists, Lodge 1309, Dist 87, to negotiate
for or represent the employees in the aforesaid unit as exclusive bargaining
agent.
2. Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act :
(a) Upon request bargain collectively with International Association of
Machinists, Lodge 1309, Dist. 87, as the exclusive bargaining unit described
herein with respect to rates of pay, hours of employment, or other conditions of
employment, and if an understanding is reached embody such understanding in
a signed agreement ;
(b) Post at its offices at Fresno, California, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Twentieth Region, shall, after being duly signed by
respondent, be posted by respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by respondent to insure that said notices are not
altered, defaced, or covered by any other material ;
(c) Notify the Regional Director for the Twentieth Region in writing, within
ten (10) clays from the date of the receipt of this Intermediate Report, what steps
respondent has taken to comply herewith
It is further recommended that unless on or before ten (10) days from -the
date of the receipt of this Intermediate Report, respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
9 The Union has submitted four proposed conclusions of law These have been adopted
PACIFIC AIRMOTIVE CORPORATION 295
the National Labor Relations Board issue an order requring respondent to take
the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203 38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof ;
and any party or counsel for the Board may, within the same period, file an
original and four copies of a brief in support of the Intermediate Report.
Immediately upon the filing of such statement of exceptions and/or briefs, 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 Regional Director.
Proof of service on the other parties of all papers filed with the Board shall
be promptly made as required by Section 203 65 As ful tiler provided in said
Section 203 39, should any party desire permission to argue orally before the
Board, request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
SIDNEY L. FELLER,
Trial Examiner.
Dated March 11, 1947.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT engage in any acts in any manner interfering with the efforts
Of INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE 1309, DIST. 87, to
negotiate for or represent the employees in the bargaining unit described
below.
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit
described below with respect to rates of pay, hours of employment or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is:
All employees at the Fresno Branch, Fresno, California, engaged in
the maintenance, repair, and servicing of aircraft and aircraft engines,
except for guards, office clerical, salesmen, group leaders, and all
supervisory employees with authority to hire, promote, discharge,
discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action.
PACIFIC AIRMOTIVE CORPORATION,
Employer.
By ---------------------------------
(Representative) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.