Pioneer Electric Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 771 (N.L.R.B. 1946)

In the Matter of O'KEEFE AND MERRITT MANUFACTURING COMPANY
AND L. G. MITCHELL, W. J. O'KEErE, MARION JENKS, LEWis M.
BOYLE, ROBERT J. MERRITT, ROBERT J. MERRITT, JR., AND WILBUR G.
DURANT, INDIVIDUALLY AND AS CO-PARTNERS, DOING BUSINESS AS
PIONEER ELECTRIC COMPANY and UNITED STEELWORKERS OF AMERICA,
STOVE DIVISION, LOCAL 1981, C. I. 0., and STOVE MOUNTERS INTER-
NATIONAL UNION OF NORTH AMERICA, LOCAL 125, AFFILIATED WITH
AMERICAN FEDERATION OF LABOR; INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
LOCAL 389, AFFILIATED WITH AMERICAN FEDERATION OF LABOR; IN-
TERNATIONAL MOULDERS & FOUNDRY WORKERS UNION OF NORTH
AMERICA, LOCAL No. 374, AFFILIATED WITIi AMERICAN FEDERATION OF
LABOR; DISTRICT LODGE 94, FOR AND ON BEIIALF OF ITS AFFILIATE LOCAL
311 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS ; BROTHER-
HOOD OF PAINTERS, DECORATORS & PAPERHANGERS OF AMERICA, LOCAL
792, AFFILIATED WITH AMERICAN FEDERATION OF LABOR; Los ANGELES
COUNTY DISTRICT COUNCIL OF CARPENTERS, UNITED BROTI-IERHOOD
OF CARPENTERS 6', JOINERS OF AMERICA, AFFILIATED WITH AMERICAN
FEDERATION OF LABOR; AND REFRIGERATOR FILTERS UNITED ASSOCIA-
TION, LOCAL 508, AFFILIATED WITH AMERICAN FEDERATION OF LABOR,
PARTIES TO TILE CONTRACT
Case No. 21-C-2689.-Decided August 96, 1946
Messrs. Maurice J. Nicoson and Eugene M. Purver, for the Board.
Mr. Cecil W. Collins, of Los Angeles, Calif., for the respondents.
Katz, Gallagher d Margolis, by Mr. Milton S. Tyre, of Los Angeles,
Calif., for the CIO.
Messrs. Arthur Garrett and John Leo Harris, of Los Angeles, Calif.,
for the Stove Mounters, the Moulders, and the Carpenters.
Mr. Dale 0. Reed, of Los Angeles, Calif., for the IAM.
Mr. John Stevenson, of Los Angeles, Calif., for the Teamsters.
Messrs. Alexander H. Schullrnan and David S. Smith, of Los
Angeles, Calif., for the Painters.
Miss Ruth E. Bliefield, of counsel to the Board.
DECISION
AND
ORDER
On May 31, 1946, Trial Examiner Henry J. Kent issued his ;Inter-
mediate Report in the above-entitled proceeding, finding that the
70 N. L R B., No. 59.
771
712344-47-vol. 70-50
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the respondents, the
AFL, and the CIO filed exceptions to the Intermediate Report and
supporting briefs. Pursuant to notice to all parties, oral argument,
requested by the respondents, was held before the Board at Wash-
ington, D. C., on July, 30, 1946. All parties appeared and participated
in the oral argument. The Board has reviewed the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and briefs of the parties, and the entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except as hereinafter modified.
1. The respondents alleged that the partnership respondent was
improperly served with notice of the proceedings and that the appear-
ance entered on the record was only for those members of the partner-
ship respondent as to whom proper service had been made. The re-
spondents contend that the interest of the partners in the partner-
ship property cannot be bound unless all partners are properly served
with process. Return receipts indicating service by registered mail on
all members of the partnership were introduced into the record.
These indicate that each member of the partnership, or his agent,
signed a receipt, and Wilbur G. Durant, the manager of the partner-
ship respondent, admitted at the hearing that he had been personally
served with notice. Section 11 (4) of the Act, and Article V of the
Rules and Regulations provide for the service of all complaints, orders,
and other processes and papers of the Board by registered mail.
Article V of the Rules and Regulations further provide that the "veri-
fied return by the individual so serving the same, setting forth the
manner of such service shall be proof of the same, and the return post
office receipt or telegraph receipt therefor when registered and mailed
or telegraphed as aforesaid shall be proof of service of the same."'
Under the provision for the liberal construction of the Rules and
Regulations 2 and the afore-mentioned sections of the Rules and Regu-
lations, it is clear that the Board is not bound by technical require-
ments as to service. Where, as here, a respondent is put on notice
' It is also to be noted that Section 2 of Article V of the Rules and Regulations provides :
Sac. 2 Same by parties ; proof of service -Service of papers by a party on other
parties shall be made by registered mail or in any manner provided for the service of
papers in a civil action by the law of the State in which the hearing is pending. When
service is made by registered mail, the return post-office receipt shall be proof of serv-
ice When service is made in any manner provided by such law , proof of service shall
be made in accordance with such law.
Article IX of the Rules and Regulations
O'KEEFE AND MERRITT MANUFACTURING COMPANY 773
and is aware of the action and his rights and liabilities thereunder, and
service has been made in accordance with the provisions of the Act,
it is sufficient to bind all members of a partnership even in the absence
of proof that each partner was served personally. We therefore find
that all members of the partnership respondent are bound by the
Decision and Order herein.
2. The respondents except to the finding of the Trial Examiner that
they are engaged in conducting a single business enterprise and are
therefore jointly and severally liable for the unfair labor practices
found by the Trial Examiner. They contend that the lease to the part-
nership was entirely valid, having been made under an absolute legal
right; that the partnership respondent had been in existence for some
time prior to the lease and was not formed for the purpose of evading
the requirement to bargain with the CIO in accordance with the
Board's certification of that organization; and that the partnership
respondent is not the alter ego of the corporate respondent. We find
this contention also to be without merit. It is clear from the record
that there is a considerable community of interest between the two
respondents. All members of the partnership respondent, except one
who is an employee of the corporation, are stockholders in the cor-
porate respondent. The corporate respondent bears part of the part-
nership respondent's pay-roll expenses. since by the terms of the lease
the corporate respondent pays for the pension fund, insurance, con-
tributions to the Five and Over Club, and bonuses for the partnership
respondent's employees. Also, the corporate respondent indirectly
bears all salary expenses for the partnership respondent's employees,'
inasmuch as under the terms of the lease the corporate respondent' pays
all labor costs plus 21/2 percent. While certain OPA and tax advan-
tages have had some influence on the decision to transfer the manufac-
turing operations of the corporate respondent to the partnership re-
spondent, it is apparent that a major consideration was also the desire
to be removed from the AFL unfair list. This could only be accom-
plished by signing a contract with the AFL. The employees, however,
had voted for the CIO as their bargaining agent and that organization
had been certified by the Board. It is true, as the dissenting opinion
states, that the election was held while the respondents were recon-
verting to peacetime production, but the record shows that the number
of persons employed by the respondents during the period in question
remained relatively stable. Both at the time of the election and at
the time of the transfer of employees from the corporate respondent
to the partnership respondent, the total number of employees was
approximately 341. Furthermore, there is no showing of change in
the type of the respondents' employees during the same period. Where,
as here, the evidence indicates that the transfer to the partnership was
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motivated by two reasons, one legal and the other illegal, the burden
was on the respondents to separate the two, viz, to show that the lease
and transfer would in any event have taken place absent the illegal
motivation.' This the respondents have failed to do. We therefore
find that the partnership respondent is liable for the unfair labor
practices found herein and that the corporate respondent has violated
Section 8 (5) 'of the Act by its refusal to bargain with the CIO. We
also find that, under the circumstances set forth herein, the partner-
ship respondent's contract with the AFL is invalid and should be set
aside.
3. Exceptions have also been taken to the findings of the Trial Ex-
aminer relating to speeches made by William J. O'Keefe and Cecil
Collins, and to the validity of the consent election as a result of which
the CIO was certified. We have considered. the record and the briefs
of the parties, and we concur in the findings of the Trial Examiner.
4. We find no merit in the CIO's exceptions to the Trial Examiner's
dismissal of the allegation that the respondents attempted by offers,
of payment of money to influence representatives of the CIO to sur-
render its position as the exclusive bargaining representative of the
employees and to discontinue further activity on behalf of the CIO.
We agree with the Trial Examiner that these allegations of the com-
plaint should be dismissed.
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'Keefe and Merritt Manu-
facturing Company and L. G. Mitchell, W. J. O'Keefe, Marion Jenks,
Lewis M. Boyle, Robert J. Merritt, Robert J. Merritt, Jr., and Wilbur
G. Durant, individually and as co-partners, doing business as Pioneer
Electric Company, Los Angeles, California, and their officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Urging, persuading, warning, or coercing their employees
to join Stove Mounters International Union of North America, Local
125, AFL; International Brotherhood of Teamsters, Chauffeurs,
Warehousemen'& Helpers of America, Local 389, AFL; International
Moulders & Foundry Workers Union 'of North America, Local No.
374, AFL; District Lodge 94, for and on behalf of its. affiliate, Local
311, International Association of Machinists; Brotherhood of
Painters, Decorators and Paperhangers of America, Local 792, AFL;
and Los Angeles County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, AFL; encourag-
3 See N. L. R. B. v. Remington Rand, Inc., 94 F. ( 2d) 872 ( C. C. A. 2 ), cert. denied 304-
U. S. 676.
O'KEEFE AND MERRITT MANUFACTURING COMPANY 775
ing membership in any of the above named organizations ; and dis-
couraging membership in United Steelworkers of America, Stove
Division , Local 1981 , CIO, or any other labor organization of their
employees ;
(b) Recognizing or in any manner dealing with the IAM and the
AFL labor organizations named in the preceding paragraph, or any of
them, as the exclusive representatives of the respondents ' employees
for the purposes of collective bargaining in respect to wages, rates of
pay, hours of employment, or other conditions of employment, unless
and until said organizations, or any of them, shall have been certified
by the National Labor Relations Board as the exclusive representa-
tives of such , eniployees;
(c) Giving effect to the union-shop contract dated January 2, 1946,
and signed on January 31, 1946, with the IAM and the AFL labor
organizations named in paragraph 1 (a) above, or any modification,
extension , supplement , or renewal thereof, or to any superseding or
like agreement with them;
(d) Refusing to bargain collectively with United Steelworkers of
America, Stove Division, Local 1981, CIO, as the exclusive representa-
tive of all production and maintenance employees at the Los Angeles
plant of the respondents , excluding office clerical employees, guards,
parcel post clerks, draftsmen , timekeepers , material expediters, pat-
tern makers and pattern maker helpers other than those working in
sheet metal , experimental laboratory workers, and supervisory em-
ployees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees , or effectively
recommend such action , with respect to rates of pay, wages, hours
of employment , and other conditions of employment;
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act: -
(a) Withdraw and withhold all recognition from Stove Mounters
International Union of North America, Local 125, AFL; Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen
Helpers of America, Local 389, AFL; District Lodge 94, for and on
behalf of its affiliate, Local 311, International Association of Machin-
ists; Brotherhood of Painters, Decorators and Paperhangers of Amer-
ica, Local 792, AFL; and Los Angeles County District Council of
Carpenters, United Brotherhood of Carpenters and Jointers of Amer-
ica, AFL, as the exclusive representatives of their employees for the
purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other conditions of employment, unless and
until the said organizations, or any of them, shall have been certified
by the National Labor Relations Board as the representatives of such
employees;
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Upon request, bargain collectively with United Steelworkers of
America, Stove Division, Local 1981, CIO, as the exclusive representa-
tive of all production and maintenance employees at the Los Angeles
plant of the respondents, excluding office clerical employees, guards,
parcel post clerks, draftsmen, timekeepers, material expediters, pat-
tern makers and pattern maker helpers other than those working in
sheet metal, experimental laboratory workers, and supervisory em-
ployees with authority to hire, promote, discharge, discipline, or other-
wise effect changes in the status of employees, or effectively recommend
such action, with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement;
(c) Post at their plant at Los Angeles, California, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being duly signed by the respondents' representative, be
posted by the respondents immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the respond-
ents to insure that said notices are not altered, defaced, or covered by
other material;
(d) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this order, what steps
the respondents have taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby is,
dismissed insofar as it alleges that the respondents violated the Act
by attempting by offers of payment of money to influence representa-
tives of the CIO to surrender the CIO's position as the exclusive bar-
gaining representative of the employees, and to discontinue further
activity on behalf of the CIO.
MR. GERARD D. REILLY, dissenting in part :
While I agree with my colleagues that the closed-shop agreement
signed by the partnership respondent with the A. F. of L. is invalid
and that the corporate respondent refused to bargain with the C. I. O.
in accordance with the certification of that organization by the Board,
I am unable to agree with that part of the remedy which orders the
partnership respondent to bargain with the C. I. O.
During the war the corporate respondent was engaged in the pro-
duction of generators and the partnership respondent was engaged in
the production of parts for the generators. Both respondents had
offices and manufacturing facilities in the same building. In 1944 the
C. I. O. filed a Petition for Investigation and Certification of Repre-
sentatives with the Board. At the conferences with respect to this
O'KEEFE AND MERRITT MANUFACTURING COMPANY 777
petition, the inclusion of the partnership respondent in the election
was discussed. This petition was later dismissed by the Board because
of the failure of the C. I. O. to make a substantial showing of repre-
sentation. In 1945 the C. I. O. engaged in another organizational
campaign, and in October 1945 it filed another Petition for Investiga-
tion and Certification of Representatives. This petition sought a unit
of only the employees of the corporate respondent and did not include
the employees of the partnership respondent. The election was held
and certification issued during a reconversion period when the part-
nership respondent was finishing its wartime production orders and
the- corporate respondent was reconverting to the manufacture of
stoves. Because of this reconversion by the corporate respondent, the
A. F. of L. threatened to reinvoke a secondary boycott of the corporate
respondent's products which had been started in 1936 or 1937. The
corporate respondent, because of the threat of the boycott, appealed to
its employees to vote for the A. F. of L., but they chose the C. I. O.
instead.
In January 1946, the partnership respondent signed a closed-shop
agreement-,with the A. F. of L. During this same month the corporate
respondent transferred substantially all its employees to the partner-
ship respondent. It is conceded that one of the reasons for the transfer
was that under OPA regulations the partnership respondent could
obtain higher prices for its products because it was a new producer in
the field.
On these facts, I feel that the change in the operations of the corpo-
rate respondent was not for the purpose of escaping the obligation to
bargain with the C. I. O. imposed by the Board's certification of that
organization. Also, the C. 1. 0., in my opinion, knew the circumstances
regarding the existence of the partnership respondent at the time
that it filed its petition, and, nevertheless, chose not to include the em-
ployees of the partnership respondent in the unit sought. I do not,
therefore, feel that the partnership respondent, which was not a party
to the original representation case, should be required to bargain with
the C. I. O. without a new election among its employees, although I
would direct the partnership respondent to refrain from bargaining
with either union unless and until it has been certified by the Board.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 bargain collectively upon request with United Steel-
workers of America, Stove Division, Local 1981, C. I. 0., as the
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive representative of all the employees in the bargaining
unit described herein with respect to rates of pay, hours of
employment, or other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed
agreement. The bargaining unit is: All production and main-
tenance employees at our Los Angeles plant excluding office
clerical employees, guards, parcel post clerks, draftsmen, time-
keepers, material expediters, pattern makers and pattern maker
helpers other than those working in sheet metal, experimental
laboratory workers, and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action.
We will not recognize Stove Mounters International Union of
North America, Local 125, A. F. of L.; International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 389, A. F. of L.; International Moulders and
Foundry Workers Union of North America, Local No. 374,
A. F. of L.; District Lodge 94, for and on behalf of its affiliate,
Local 311, International Association of Machinists; Brotherhood
of Painters, Decorators and Paperhangers of America, Local 792,
A. F. of L.; and Los Angeles County District Council of Carpen-
ters, United Brotherhood of Carpenters and Joiners of America,
A. F. of L., as the exclusive representatives of any of our em-
ployees for the purpose of collective bargaining, or give effect
to the contracts now existing with said organizations, unless and
until said organizations, or any of them, shall have been certified
by the National Labor Relations Board as the representatives of
our employees.
We will not urge, persuade, warn, or coerce our employees to
join the I. A. M. or any of the A. F. of L. unions above-named,
and we will not discourage membership in United Steelworkers
of America, Stove Division, Local 1981, C. I. 0., or any other
labor organization, or encourage membership in the I. A. M. or
any of the above-named A. F. of L. unions, or any other labor,
organization.
All our employees are free to become or remain members of
United Steelworkers of America, Stove Division, Local 1981,
C. I. 0., or any other labor organization.
O'KEEFE & MERRITT MANUFACTURING Co.
Dated ---------- By --------------------------------------
(Representative ) ( Title)
PIONEER ELECTRIC COMPANY
Dated --------- By ------------------------------------- -(Representative ) ( Title)
O'KEEFE AND MERRITT MANUFACTURING COMPANY 779
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Messrs. Maui ice J. Nicoson and Eugene M. Perver, for the Board.
Mr. Cecil W. Collins, of Los Angeles, Calif., for the respondents.
Katz, Gallagher & Margolis, by Mr. Milton S. Tyre, of Los Angeles, Calif., for
the CIO.
Messis. Arthur Garrett and John Leo Barris, both of Los Angeles, Calif., for
the Stove Mounters, the Moulders and the Carpenters.
Mr. Dale 0. Reed, of Los Angeles, Calif., for the IAM.
Mr. John Stevenson, of Los Angeles, Calif., for the Teamsters.
Messrs. Alexander H. Schullman and David S. Smith, both of Los Angeles,
Calif., for the Painters.
ERRATUM
On May 31, 1946, the undersigned issued his Intermediate Report in the above
entitled matter. On page 8, line 9, the word "assuming" is hereby corrected to
read "assuring "
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the United Steelworkers of
America, Stove Division, Local 1981, C. I. 0., herein called the CIO, the National
Labor Relations Board, herein called the Board, by its Regional Director for the
Twenty-first Region (Los Angeles, California), issued its second amended com-
plaint dated February 21, 1946, against O'Keefe and Merritt Manufacturing Com-
pany, herein called the corporation respondent and L G. Mitchell, W. J. O'Keefe,
Marion Jenks, Lewis M. Boyle, Robert J. Merritt, Robert J. Merritt, Jr., and
Wilbur G. Durant, individually and as co-partners, doing business as Pioneer
Electric Company, herein called the partnership respondent, while both companies
herein are jointly called the respondents, alleging that the above-named respond-
ents had engaged in and am c engaging in unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of tile
National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the
complaint, amendments to the complaint, and notices of hearing were duly served
upon the respondents, the CIO, Stove Mounters International Union of North
America, Local 125, AFL, herein called the Stove Mounters ; International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
389, AFL, herein called the Teamsters ; International Moulders and Foundry
Workers Union of North America, Local 374, AFL, herein called the Moulders ;
District Lodge 94, for and on behalf of its affiliate Local 311 of the International
Association of Machinists, herein called the IAM ;'Brotherhood of Painters, Dec-
orators and Paperhangers of America, Local 792, AFL, herein called the Painters;
Los Angeles County District Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America, AFL, herein called the Carpenters and Refrig-
erator Fitters United Association, Local 508. AFL, herein called the Refrigerators.
With respect to the unfair labor practices, the complaint alleged in substance
(1) that the respondents have interfered with, restrained, and coerced their
employees in the exercise of the rights guaranteed in Section 7 of the Act by the
following acts and conduct ; (a) inducing and attempting to induce said employees
to transfer their union affiliation from the CIO to one of the several American
1
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federation of Labor unions above mentioned , or the IAM ; ( b) transfeiring or
pretending to transfer the operation of the business from the corporation respond-
ent to the partnership respondent ; ( c) contributing to and encouraging member-
ship in one of the several American Federation of Labor unions above mentioned,
or the IAM, by instigating and soliciting membership in said labor organizations ;
(d) entering into a contract with the several American Federation of Labor unions
above mentioned , and the IAM,, at a time when none of said labor organizations
was the duly designated exclusive bargaining agent for the said employees within
the meaning of the Act ; ( e) attempting by offers of payment of money and other
inducements to influence and persuade John A. Despol and G J. Conway, repre-
sentatives of the C10, to surrender the CIO's position as duly designated exclusive
bargaining representative of the employees , and to discontinue further activity on
behalf of the CIO ; (f ) threatening their employees with discharge or other disci-
plinary action if they joined . the CIO, refused - to withdraw from membership in
the CIO, assisted the CIO, or designated the CIO as their bargaining agent; (g)
questioning employees concerning their membership in or desires for membership
in or designation of the CIO ; ( 2) that on or about November 20, 1945, and at all
times thereafter , the respondents failed and refused to bargain with the CIO as
the representative of their employees in a duly certified appropriate bargaining
unit; and ( 3) that by the said acts the respondents engaged in and are now
engaging in unfair labor practices within the meaning of Section 8 (1) and (5)
and Section 2 (6) and ( 7) of the Act.
Thereafter , the respondents filed a joint answer admitting , in effect, some of
the allegations in the complaint , but denying engaging in the unfair labor prac-
tices alleged. The said answer also affirmatively averred that the employees of
the corporation respondent had become dissatisfied with the CIO and for that
reason voluntarily shifted their allegiance to the various American Federation
of Labor unions named above , or to the IAM ; that the partnership respondent
was an independent legal entity engaged in its own business prior to the transfer
of certain manufacturing facilities by the corporation respondent to the partner-
ship respondent ; that the said transfer of business operations was consummated
for proper business reasons and not for the purpose of evading any obligation of
the respondents to bargain with the CIO; and that the partnership respondent
being under no legal obligation to bargain with any labor organization entered
into collective bargaining agreements with the above -named American Federation
of Labor unions, and the TAM, after receiving proper proof that the said organi-
zations represented a majority of its employees in an appropriate unit. The
Stove Mounters , the Carpenters , and the Moulders filed separate answers putting
in issue the material allegations of the complaint insofar as they pertained to
these said organizations.
Pursuant to notice , a hearing was held at Los Angeles , California , on March
6, 1946, and from March 13 to -March 28, inclusive , 1946, before the undersigned,
Henry J. Kent , the Trial Examiner duly designated by the Chief Trial Examiner.
The Board , the respondents , the CIO, the Stove Mounters, the Carpenters, the
Moulders , the IAM, the Painter s and the Teamsters were all represented by coun-
sel and participated in the hearing .5 Full opportunity to be beard, 4o examine and
5 Although counsel for the respondents entered a general appearance and filed a joint
and general answer on behalf of all of the respondents with the Board's attorney prior to
the opening of the hearing on March 6, 1946, on March 13, 1946, the second day of the
hearing, he stated on the record that he was only appearing for those respondents duly
served with service of process, and in his brief contends, in effect, that some of the co-
partners were not legally served with process. The record shows that due service of process
O'KEEFE AND MERRITT MANUFACTURING COMPANY 781
cross-examine witnesses, and to produce evidence bearing on the issues was af-
forded all parties. -At the opening of the hearing, counsel for the respondents
and the several American Federation of Labor unions moved orally for a continu-
ance for further time to file answers to prepare for hearing. Counsel for the
Board conceded that by reason of delays in mail deliveries, some of the parties
served were entitled to a continuance of 1 or 2 days. The undersigned, over
the objection by counsel for the CIO, granted an extension of time of 5 days
to file answers and adjourned the hearing 1 week. At the close of the presenta-
tion of evidence by the Board on Friday, March 22, 1946, counsel for the several
American Federation of Labor unions moved orally for a continuance for further
time for preparation. The undersigned granted an adjournment to March 26
over objections from counsel for the CIO. Prior to presenting evidence on be-
half of the respondents, their counsel, by written motions moved that the allega-
tions of the complaint be dismissed. Both motions were denied without prejudice
to later renewal. At the conclusion of the hearing, these motions were renewed
by counsel for the respondents and the undersigned ruled that the said motions
would be further considered and disposed of in his Intermediate Report. At the
conclusion of the hearing, counsel for the Board moved to conform the complaint
to the proof with respect to formal matters, and the motion was granted without
objection. Counsel for the Painters also at this time moved to dismiss the alle-
gations of the complaint insofar as they concerned the Painters. Ruling was
reserved and is disposed of below in this report. Counsel for the Stove Mounters,
the Moulders, and the Carpenters presented oral argument before the undersigned
but argument was waived by all other parties. All counsel were granted 20
days to file briefs with the undersigned and briefs have been received respectively
from counsel for the respondents, the Board, the Stove Mounters, the Moulders,
the Carpenters and the Painters. ,
Upon the basis of the foregoing and on the entire record, after having heard
and observed the witnesses and considered all of the evidence, the undersigned
makes the following:
FINDINGS Or FACT
I THE BUSINESS OF THE RESPONDENTS
The situs of the alleged unfair labor practices is a certain manufacturing plant
in the city of Los Angeles, California. The plant was owned and operated by
the corporation respondent for many years, in connection with its business opera-
tions until shortly after the beginning of.the last World War, when certain changes
in plant operations were effected as set forth below.
A. The business of the coiporation respondent
O'Keefe and Merritt Manufacturing Company is a California corporation orig-
inally chartered in 1920 with its principal office and plant at Los Angeles, Cnli-
by registered mail was made upon all the respondents as provided by Section 11 (4) of the
Act. Furthermore , assuming there had been defective service on any respondent , objections
to such service was waived by the entry of a general appearance and the filing of general
answer, on behalf of all respondents . The record shows that Refrigerator Fitters United
Association , Local 508 , A. F. of L., named in the complaint as a party to the contract, did
not, in fact , sign the contract Although duly served with process , it failed to enter an
appearance or otherwise participate in the hearing Counsel for International Brotlieihood
of Electrical Workers, Local Union B-11, A F. of L moved orally for leave to intervene
at the opening of the hearing . The undersigned granted counsel further time to present a
written motion respecting intervention . Thereafter , by letter in evidence , its counsel with-
drew the request for leave to intervene.
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fornia. Prior to about February 4, 1946,8 it was engaged in the business of manu-
facturing and selling gas appliances and electric refrigerators, except for a period
during the last World War beginning early in 1942 until shortly after V-J Day
(to wit, August 14, 1945), when it was solely engaged as a prime contractor in
the manufacture of electrical generator sets and various types of ammunition for
the United States Government. During 1945, the corporation respondent sold
products of an approximate value of $2,000,000, of which about 10 percent in
value was sold in and shipped to States of the United States other than the State
of California. It admits that it is engaged in commerce within the meaning of
the Act.
During all the times material herein, and at the time of the hearing, the officers
of the corporation respondent consisted of Daniel P. O'Keefe, president, W. J.
Boyle, vice president, and Robert J. Merritt, secretary-treasurer. The directors
are Daniel P. O'Keefe, Robert J. Merritt, W. J. Boyle, Lucille Merritt, and Wil-
liam J. O'Keefe, the latter also serving in the capacity of general manager for
O'Keefe and Merritt, when it was operating its own production facilities. The
stock in the corporation is owned approximately as follows : Daniel P. O'Keefe
23.7 percent ; William J. O'Keefe 4.8 percent ; Robert J. Merritt 12.5 percent ;
Lucille A. Merritt 16.8 percent; Robert J. Merritt, Jr., 4 percent; W. J. Boyle
8.7 percent ; Louis Boyle 8.3 percent ; Evelyn Boyle 8.3 percent ; Blanche Boyle
8 3 percent ; Phyllis J. Mitchell 4.8 percent ; W. J. and L. W. Boyle, trustees, .1 per-
cent ; Marion E Jenks .1 percent ; John E. Boyle .1 percent ; and Arline B. Oli-
phant .1 percent.
B. The business of the partnership respondent
Pioneer Electric Company, the partnership respondent, was formed in 1942
by Robert J.I Merritt, Louis Boyle, and Willis Boyle for the purpose of engaging
as asub -contractor in the manufacture of war materials on a contract entered
into by the corporation respondent with the United States Government as the
prime contractor On or about January 1, 1944, Robert J. Merritt, Jr., became
a member of the partnership firm. All manufacturing operations of the partner-
ship were carried on in a part of the O'Keefe and Merritt plant under lease to the
partnership at a monthly rental of $500. By September 17, 1945, all of the govern-
inent contracts had been cancelled and over 80 per cent of its employees had been
terminated.
On or about November 15, 1945, the 'partenersbip firm was again enlarged by
taking in W. J. O'Keefe, Marion Jenks, W. G. Durant, and L. J. Mitchell,' at
which time Willis J. Boyle withdrew from the partnership firm. Durant, the
managing partner, owns a one-fourth interest and the other six partners each
own a one-eighth interest in the partnership firm. New articles of partnership
were entered into which indicate that the partnership intended to engage in the
manufacture and sale of electrical equipment. From November 20, 1945, to
January 31, 1946, it employed about 15 production employees.
On or about January 31, 1946, the corporation respondent transferred to the
partnership respondent all of its manufacturing facilities and. on or about the
9 As further appears below, corporation respondent on this date transferred substantially
all of its manufacturing facilities and production employees to Pioneer, the partnership re-
spondent, retaining only its technical designing staff, its sales and service organization and
some of its maintenance employees.
7It will be noted that all members of the partnership firm ate either officers , directors,
or stockholders of the O'Keefe and Merritt corporation , except Durant and Mitchell. Du-
rant, since 1942 , was chief engineer, and Mitchell , for a longer period of years, had been
serving as auditor for the corporation respondent . Mitchell is also the husband of Phyllis
J. Mitchell, a stockholder of the corporation respondent and a daughter of Daniel O'Keefe,
its president.
O'KEEFE AND MERRITT MANUFACTURING COMPANY 783
same day, transferred approximately 300 of its production employees to the
pay roll of the partnership respondent. The partnership respondent has since
that time continued to operate all of the manufacturing facilities at the Los
Angeles plant. Pioneer admits that it is engaged in commerce within the mean-
ing of the Act.
II THE ORCANIZATIONS INVOLVE[)
United Steelworkers of America, Stove Division, Local 1981, affiliated with the
Congress of Industrial Organizations; Stove Mounters International Union of
North America, Local 125, affiliated with the American Federation of Labor;
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local 389, affiliated with the American Federation of Labor ; District
Lodge 94 for and on behalf of its affiliate Local 311 of the International As-
sociation of Machinists; Brotherhood of Painters, Decorators and Paperhangers
of America, Local 792, affiliated with the American Federation of Labor ; and
Los Angeles County District Council of Carpenters, United Brotherhood of
Carpenters and Joiners of America, affiliated with the American Federation of
Labor, are all labor organizations admitting to membership employees of the above-
named respondents at their Los Angeles, California, plant.
III. THE UNFAIR LABOR PRACTICES
A. Background of labor relations and chronology of events
As noted above, the corporation respondent was engaged in the manufacture
and sales of gas stoves, other gas appliances, and electric refrigerators for many
years prior to the last World War. In 1936 or 1937, the American Federation of
Labor attempted to organize its employees and at the time issued a charter to a
local union comprised of employees at the plant. This union, however, was never
accorded recognition as a bargaining representative of the employees. The plant
was struck by the A. F. of L. in 1936 or 1937, picketed until the United States
entered the last World War, and the company has thereafter continued to be
posted on the American Federation of Labor's Unfair List. During the winter
of 1943 and 1944, a CIO organization, other than the charging union herein,
attempted to organize the plant and at the time filed a petition for Investigation
and Certification of Representatives. The Board, on April 29, 1944, dismissed the
petition because of failure of the petitioning union to make a substantial showing
of representation.8
In September 1945, the CIO, as herein named, started an organizational cam-
paign among the corporation respondent's employees and some of the A F. of L.
unions herein named engaged in a competing campaign at or about the same
time. On October 23, 1945, the CIO filed a petition for Investigation and Certifi-
cation of Representatives ° Subsequently, on November 14, 1945, the corporation
respondent, the CIO, and the Los Angeles Metal Trades Council, A. F. of L., en-
tered into a consent election agreement 1° and an election was held under the
8 Matter of O'Keefe & Merritt Manufacturing Company and O'Keefe & Merritt Division,
Local 2018 , affiliated with the United Steelworkers of America, 010 , 56 N L . R. B. 102.
° Case No. 21-R-3110
10 The record fails to show to what extent, if any, employees had designated any of the
craft unions to serve as their representative According to the evidence, the Stove Mount-
ers, Carpenters, Moulders and Teamsters of the A F of L. and the I. A. M. were the only
craft organizations apparently claiming to represent any of the employees at the time the
election was held it is noted that 11 B McMurry, a representative of I A AT, signed
the consent election agreement on behalf of the Los Angeles Metal Trades Council, A. F.
of L. This fact would lead the employer to regard the I. A. M. as an affiliate of the
A. F. of L regardless of the actual status of I. A. M , and the organization would benefit
by any pro -A. F. of L . activities by the employer.
0
784 DECISIONS OF, NATIONAL LABOR RELATIONS 'BOARD
auspices of the Board on November 20, 1945, which was won by the CIO. A
Tally of Ballots was duly served on all parties which shows: that there were 341
eligible voters in the unit; that 296 ballots were voted ; and that the CIO re-
ceived 177 votes, Los Angeles Metal Trades Council, A. F of L., 114, and that 5
votes were cast for neither. The Regional Director thereafter duly served upon
the parties his Consent Determination of Representatives dated November 28,
1945, finding that the CIO was the majority representative for the employees of
the corporation res,jondent in the unit set forth in the consent election agreement.
No objections to the conduct of the ballot, nor to the Regional Director's deter-
mination of representation based on the results &f-the election were filed by any
of the parties participating in the election, but counsel for the respondents herein
now asserts that the election was invalid for reasons further discussed below in
the report and which is found to be lacking in merit.
Following the said certification, the CIO requested the corporation respondent
to bargain with it as the majority representative of its production and maintenance
employees. Several bargaining conferences were held during December 1945
and January 1946, but no collective bargaining agreement was ever consummated.
During January 1946, when the CIO was agressively attempting to negotiate an
agreement, the corporation was concurrently negotiating with the partnership
respondent concerning the transfer of all of its manufacturing facilities to the
partnership. On January 31, 1946, the corporation respondent transferred, by
lease, all of its manufacturing facilities, together with the employees engaged
on such operations at the Los Angeles plant, to the partnership On or about the
same day, the partnership entered into a union shop agreement with the I. A. M_
and various American Federation of Laboi unions who participated as parties
in this proceeding covering all of the employees presently on the partnership
company's pay roll."
Following the transfer of operations and of the employees to the partnership,
the CIO again requested the corporation to bargain for all of the employees in
the previously certified unit. The corporation agreed' to resume bargaining
negotiations respecting the approximately 40 production and maintenance em-
ployees still remaining on its pay roll, but refused to bargain regarding the em-
ployees transferred to the pay roll of the partnership.
B. Interference, restraint, and coercion prior to the consent election
On or about October 1, 1945, during the initial stages of the CIO's organizational
drive, employee Charles Spallino, the then president of the Five and Over Club,
and employee John Levasco Y2 were in the office of Daniel O'Keefe, the president
11 The record shows that on November 20, 1945, the date of the election , the partnership
had approximately 15 production and maintenance employees on its pay roll and that the
number of such employees did not materially increase until January 31, when it took over
the 300 former employees from the corporation. The record fails to show that there has
been any substantial change in the number of employees on either ,the corporation or part-
nership pay rolls since that time.
12 Charles Spallino , herein called ' Spallino , has been an employee of the corporation in
one of its various production and service departments for about 19 years. His brother
Joseph Spallino is presently the plant superintendent of the corporation respondent. John
Levasco has been continuously employed since 1936, except for a break in his service when
he served in the United States Navy during World War H. He returned to work in April
1945 and was given the job as chief plant inspector, which he held until shortly after V-J
Day, when he was transferred to a job as material expediter . During the latter period,
he also , on occasions , served as an agent of the corporation in connection with the sale of
surplus machinery at the plant.
The Five and Over Club was organized' in 1936 by President O'Keefe for the alleged
purpose of functioning as an employees ' social and benefit organization. All employees
with over 5 years service, including office and clerical employees , were eligible to mem-
0
O'KEEFE AND MERRITT MANUFACTURING COMPANY 785
of the corporation respondent. Either Levasco or Spallino asked O'Keefe what
action the Five and Over Club should take concerning the activities of the CIO
or the A. F. of L. during the then current organizational drives. According to
,the testimony of O'Keefe, Spallino and Levasco, which is in general agreement,
O'Keefe told the two employees that he would rather not have to deal with either
of the Unions, but if he was obliged to, he would prefer to deal with the A F of L.
in order that the company's name might be stricken from the latter's unfair list,
thus, assuming a better market for the company's products. O'Keefe then told
them that he did not want to dictate the policy for the Five and Over Club and
requested them to speak to Cecil Collins, the respondent's counsel herein, con-
cerning the matter.13 A few days later, the two men met with Collins and engaged
in a similar conversation with him According to Spallino's version, which the
undersigned credits, Collins told them : it looked as if one of the two unions would
succeed in organizing the plant ; that it would be better for the company if the
A. F. of L. prevailed ; that he would arrange to have an A. F. of L. representative
meet with them in a few days; that a few days later John Roberts, a representa-
tive of the Stove Mounters, A. F. of L., came to the plant while Spallino and
Levasco were working and requested a plant guard to call them to the plant en-
trance; that they met Roberts there and at the time Roberts handed them about
100 application cards; that after receiving the cards, Spallino proceeded to solicit
other employees to sign some of the cards during working hours; and that a few
days later Spallino returned about 38 to 40 signed cards to Roberts after signing
his, Spallino's name on them as a witness to the applicants' signatures.1A
About 3 weeks before the election, according to the following uncontradicted
testimony of Spallino which the undersigned credits, he and Levasco were
called to Collins' othee and met several A. F of L. representatives who were present
there. The union representatives asked Spallino in the presence of Collins,how
the employees in the various departments generally expressed themselves in
respect to A. F. of L. or CIO affiliation. Spallino told them that a considerable
number of the employees favored the CIO and advised them to hold some A. F. of
L. meetings for the employees and stated, at the time, that he could arrange to
hire a hall near the plant to hold such meetings, whereupon Roberts, the Stove
Mounters' representative, authorized Spallino to make arrangements to rent the
hall. The hall was rented by Spallino and thereafter A. F. of L. handbills were
passed out at the plant inviting the employees to attend an A. F. of L. meeting
to be held there about 2 weeks before the election.
The meeting was attended by approximately 30 employees, and about a week
later another A. F. of L. meeting was held at the same place.'
bership. Since its organization , Spallino served as vice-president for 4 years and as presi-
dent for 3 years and was its president during the year 1945 It apparently engaged in some
of the functions of a labor organization, because it sought to intervene in the representa-
tion case above mentioned [56 N. L. R. B. 1021, decided by the Board in April 1944, but its
status was not determined in those proceedings because the petition was dismissed on other
grounds. There are no allegations in the complaint regarding it, and it asserted no interest
in this proceeding. The record shows that.in February 1945, pursuant to a request from
President O'Keefe, Spallino appointed a grievance committee, picked from members of the
organization to present grievances on behalf of all employees of the corporation, and that
as president of this organization he was permitted to leave his work, almost at will, to
visit all departments of the plant in connection with the activities of the organization
11 The record shows that, in addition to representing the respondents as legal counsel at
this hearing, Collins was also labor relations advisor for both of the respondents
14 Levasco gave no testimony concerning Roberts' visits to the plant in connection with
the card transactions Neither Collins nor Roberts testified at the hearing
15 Roberts or none of the A. F. of L. representatives present at this meeting were called'
to testify concerning it and Spallino's testimony was not refuted by Levasco in respect to-
these incidents.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A day or two before the November 20 election , Spallino and Levasco met with
President O'Keefe in his office and engaged in a conversation concerning the
contents of a document that might be used either as the basis for a handbill to be
distributed on behalf of the Five and Over Club before the election or as the basis
of a speech before Five and Over Club members. O'Keefe , after considering the
contents , told the two employees , after first suggesting some amendments to the
statements made in the paper, that it would then sound too much like a speech
that might be delivered by him and recommended that it not be used as he would
personally deliver a speech to the employees before the election.
On November 20, 1945, shortly after the corporation's employees returned from
lunch, O'Keefe caused all of them to be assembled in the plant and addressed
them concerning the election to be held at 4: 30 on that afternoon . In his speech
he stated in substance , that although he thought all unions were bad, he believed
it was up to the employees to decide for themselves which of the 2 competing unions
was the lesser of two evils ; that if the A. F. of L. won, the company could sell
more of its products than it could if the plant was organized by the CIO ; that if .
he were an employee working in the stove industry he would prefer to vote for
the A. F. of L. because substantially all organized plants in the stove industry
worked under A. F. of L. agreements ; and that if an employee found it necessary
to change his job he would be unable to get work in such union shops unless he
first joined the A. F. of L. He ended his speech with a request that they all vote
and to vote for one of the two unions on the ballot rather than for neither or-
ganization.
At 4: 15 o'clock, and just prior to the election which began at 4: 30 o'clock on
that same-afternoon," Spallino called a meeting of the Five and Over Club in
the plant." The meeting was opened by Spallino who introduced Levasco. Le-
vasco made a speech stating that he had been a member of the A. F. of L. for a
number of, years, that substantially all stove factories had A. F. of L contracts,
requested all of those present to vote for the A. F. of L. in the election and also
told them that the CIO could not shut off the company's supply of steel as allegedly
had been threatened by that union if the plant did not go CIO. Immediately fol-
lowing the close of this meeting, the employees attending it, who thereafter cast
ballots,,'went to the polls to vote. Spallino and Levasco were the two A. F of L.
observers at the election
Conclusions
The above-described course of conduct by the corporation respondent discloses
an intention to frustrate self-organization among its employees Not only were
Spallino and Levasco permitted openly to engage in pro-A. F. of L. activities
on company time and property but such activities were actually sponsored and
encouraged by Collins who certainly could only be regarded as an important
figure in the hierarchy of the plant management. Moreover, O'Keefe's speech
to the employees on the day of the election unmistakably warned the employees
that their job security was contingent upon the success of the A F. of L in the
election. The coercive nature of O'Keefe's speech is self evident.18 The cor-
poration respondent's defense that O'Keefe's speech was protected by the con-
stitutional guarantees of free speech is discussed in the next section and found
to be without merit. Furtherriiore, peimitting the Five and Over Club to hold
16 The day shift at the plant ended at 4 30 o'clock.
17 Admittedly , pursuant to a request from Spallino , the foremen in the various plant de-
partments announced the time and place of the meeting to the employees working under
them About 200 Five and Over Club members attended and were paid for the 15 minutes'
time spent at the meeting.
16 See Matter of A. J Showalter Company, 64 N. L. R. B. 573, and cases cited therein,
especially N L. R B. v. Star Publishing Co , 97 F. (2d) 465 ( C. C A. 9).
O'KEEFE AND MERRITT MANUFACTURING COMPANY 787
a pro _A. F. of L. meeting in the plant, on company time, immediately prior to
the opening of the polls likewise constituted interference with the right of
employees freely to select their own bargaining representative.
Upon all the foregoing, and upon the basis of the entire record, the undersigned
finds that the respondent, by its entire course of conduct, including the sponsor-
ing of the A. F. of L. activities of Spallino and Levasco among its employees on
company time and property, the questioning of Spallino and Levasco, in the
presence of Collins, by A. F of L. representatives regarding the union affiliations
of the employees, O'Keefe's warning to the employees that their economic security
depended upon the success of the A. F of L. in the election and in permitting
the holding of a pro-A. F. of L. meeting in the plant just prior to the opening
of the polls, interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
0. The refusal to bargain and other acts of interference after the election
1. The November 27, 1945, speech of President O'Keefe
On November 27, a week after the election, O'Keefe delivered a second pro-
A. F of L speech to the respondent corporation's employees in the plant during
working hours On this occasion, he told them in substance that he was dis-
appointed in the results of the election ; that Merritt, Sr., the secretary and
treasurer of the corporation respondent and W. J. Boyle, its vice president who
previously had dealings with the CIO were both discouraged and wanted to sell
the business; that because nuiny of the products made in the plant were gen-
erally installed by mechanics belonging to the A. F. of L., such products might
just as well be stamped "made in Japan" if an A. F. of L. label on them was
lacking ; and that "if we wish to do business with the buildcrs and in the San
Francisco territory, we have two alternatives-to contract enough of our labor
to'a firm with an A. F. of L. contract that would be satisfactory to the A. F. of L.
in older that they would take its off the unfair sheet-or to take advantage of
time possibilities to sell this busilness to someone who has an A. F. of L. organiza-
tion." (Italics supplied.) Clearly this speech was an appeal to the employees
to consider dropping their affiliation with their recently designated bargaining
representative, the CIO. and to affiliate with the A. F. of L. It tends to explain
the future course of conduct followed by the respondents, discussed in detail
below.
The corporation respondent contends that the statements made by O'Keefe
in both of his speeches were not violative of the Act, and were privileged under his
constitutional right of free speech. The undersigned does not agree, for O'Keefe
in both speeches unmistakably warned the employees that their economic security
depended upon the ability of the corporation to effect some arrangement that
would permit it to sell its products free of the threatened or existing boycott of
the A. F. of L and clearly constituted an appeal to them to affiliate with the
A. F. of L, thus constituting interference with their right freely to select a bar-
gaining representative of their own choice. The coercive nature of the state-
ments made in both of the speeches is self-evident and hence, does not fall within
the constitutional guarantee of free speech"' That O'Keefe's warning was
prompted by an apprehension, even if well founded, that its business would suffer
unless it was able to manufacture its products in a manner satisfactory to the
A. F. of L. does not alter the force or effects of his statement 20 upon the employees
1 See N. L. R. B. v. Virginia Electric & Power Company, 319 U S 533.
20 See N L R B V. Trojan Powder Company, 135 F. (2d) 337 (C. C A. 3), cert. den.
320 U. S. 768.
712344-47-vol. 70-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the exercise of their statutory rights, or remove it from the ambit of the Act."
It is now well settled that an employer's fear of economic reprisal, or loss of
business, resulting from the unionization of his employees, does not justify a
commission of unfair labor practices.22 In any event, whether or not O'Keefe's
speeches were per se violative of the Act, they were part and parcel of a pattern
of course of conduct the total effect of which was an interference with the rights
of the employees freely to select their own bargaining representatives, and, as
such, were not protected by the constitutional right of free speech.
2. The appropriate unit and the union's majority representation therein
As noted above, the Regional Director on November 28, 1945, issued his Con-
sent Determination of Representatives, in the earlier representation proceeding R8
finding that all production and maintenance employees employed at the Los
Angeles plant of the company, excluding office clerical employees; guards; parcel
post clerks ; draftsmen ; timekeepers ; material expediters ; pattern makers and
pattern maker helpers other than those working in sheet metal; experimental
laboratory workers; and supervisory employees with authority to hire, promote,
discharge, discipline or otherwise effect changes in the status of employees, or
effectively recommend such action, constituted a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of the Act,
pursuant to the terms of the consent election agreement previously entered into
on November 14, 1945. No objections were raised to the conduct of the ballot
or to the determination of the Regional Director.
Counsel for the respondents, however, now asserts that the election was invalid
because Spallino, one of the A. F. of L. observers at the said election, admitted
during the present hearing that he favored the C. I. O. and was not in good faith
trying to advance the cause of the A F. of L. at the time the election was held.
The undersigned finds no merit in this contention. ' The respondent has no right
to dictate to a participating union in a Board election whom the latter shall
appoint as observers, and certainly the Board is under no duty to police the
outside activities of observers selected by participating unions to act at elec-
tions. There was no substantial evidence in the record indicating that Spallino
engaged in any improper conduct at the election that would justify setting it
aside.
The undersigned finds, in accordance with the previous determination of the
Regional Director, as noted above, that all production and maintenance em-
ployees at the Los Angeles plant of the corporation respondent, excluding office
clerical employees ; guards ; parcel post clerks ; draftsmen ; timekeepers ; material
expediters ; pattern makers and pattern maker helpers other than those working
in sheet metal ; experimental laboratory workers ; and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act. He further finds that at all times material herein, the
C10 was the duly designated bargaining representative of a majority of the
21 See N L. R. B. v. Poison Logging Company, 136 F. (2d) 314 (C. C A. 9).
22 See N. L R B. v. Star Publishing Company, 97 F. (2d) 465 (C. C. A.,9), in which
the Court stated : " * * * The Act prohibits unfair labor practices without regard to
the factors causing them. * * * It permits no immunity because the employer may
think that the exigencies of the moment require infraction of the statute . In fact, nothing
in the statute permits or justifies its violation by the employer." See also N. L R. B. v.
Gluck Brewing Company, 144 F (2d) 847 (C. C. A. 9) ; Matter of A J. Showalter Com-
pany, 64 N. L R B 573 , and Matter of Lakeshore Electric Mfg. Corp ., 67 N. L R . B. 804.
23 Matter of O'Keefe and Merritt Company and United Steelworkers of America, Stove
Division, Local 1981 , C70, Case No . 21-R-3101.
O'KEEFE AND MERRITT MANUFACTURING COMPANY 789
employees in the aforesaid appropriate unit and that, pursuant to the provisions
of Section 9 (a) of the Act, the CIO was at all such times, and now is, the ex-
clusive representative of all the employees in the aforesaid unit for the purposes
,of collective bargaining with respect to rates of pay, wages, hours of employment
and other conditions of employment.
3. The refusal to bargain ; the scheme devised for the purpose of attempting
to circumvent bargaining with the CIO
a The bargaining negotiations with the CIO
Following its certification, the CIO requested a bargaining conference with
the corporation respondent for the purpose of negotiating a collective bargaining
agreement. Cecil Collins, counsel and labor relations advisor for both of the
respondents, was delegated to represent the corporation at the bargaining
negotiations. On or about December 15, 1945, Collins met with CIO Repre-
sentative John Despol, at Collins' office in the plant. On this occasion Despol
presented a proposed agreement. Collins agreed to consider its terms and
provisions and to meet again with Despol after he had had an opportunity for
study. Later in December 1945, and shortly before Christmas day, a second
meeting was held in Collins' office. On this occasion Despol pressed the CIO's
demand for a 25-cent per hour general wage increase and for a closed-shop.
Collins took the position that the company would not grant the 25-cent general
wage,increase but would agree to a wage increase equal to or better than the
then going rates in the industry. He also turned down the closed-shop pro-
vision and stated, in the alternative, that the company would grant a mainte-
nance of membership clause coupled with a 15-day escape clause, neither of
which proposals was acceptable to the CIO. After further discussion the
meeting ended with an understanding that the corporation would further con-
sider the contract proposals and resume negotiations in a few days.
On January 3, 1946, at the third bargaining conference held also in Collins'
office, Despol was present for the CIO, while Collins, and Fred Rotter, the corpo-
ration's personnel manager, were present as representatives of the corporation.
Collins also invited employees Levasco, Frank Doyle, Sanchez and Derose, all
of whom except Doyle were affiliated with the A. F. of L., to attend the meeting
as observers. The employee group remained present during the entire meeting.
Collins opened the negotiations by stating in the presence of the A. F. of L.
adherents that the company would not grant a closed-shop to the CIO but at
most would only agree to a maintenance of membership provision with a 15-day
escape clause. Also during this meeting, according to the testimony of Rotter,
Levasco and Doyle, Collins told Despol that further negotiations regarding a
contract would probably be a waste of time, because the corporation was about
to formulate a plan to transfer its manufacturing operations to the partnership
respondent and that if the deal were consummated there would be few em-
ployees left for the CIO to represent ; that Despol then accused Collins of
"kidding" him, told Collins the CIO had expended large sums of money in
organizing the plant and would strike it an agreement was not signed; and
that Collins then told Despol if the deal went through he would endeavor to
have the company reimburse the Union for its organizing expenses if the latter
would refrain from striking the plant and litigate any controversy between the,
company and the CIO before the Board or the courts. Despol denied that any
such or similar conversation took place at this meeting, but further testified
that, several weeks later, Collins on two occasions had personally offered Despol
money to sell out the CIO and permit the A. F. of L. to take over the plant."
21 These two later incidents are further discussed below in Section III, E.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Based upon a consideration of all of the evidence in the record , especially the
statements made by O'Keefe in his November 27 speech in which he publicly
announced to all of the employees that, even at that time, such a plan was
being considered, and from his observation of the witnesses, the undersigned
accepts the above version of the conversation as testified to by Rotter, Levasco
and Doyle as credible and finds it to be true. After further general discussion
between Collins and Despol concerning seniority, holiday pay and night shift
bonuses without arriving at any definite understanding, the meeting closed with
an understanding that the negotiations would be continued on January 8.
Employees Cunningham , Castro, Daley , and Arlotti , all A . F. of L. adherents,
attended the January 8 meeting in response to an invitation from Collins.
Despol objected to the presence of any committee purporting to represent the
A. F. of L. He did not insist on their leaving because he said the discussion
would be limited to procedural questions not concerned with wages, but stated
that from then on he would not consent to bargain in the presence of such a com-
mittee. No definite and binding commitments on any substantial matters were
agreed upon at this meeting. At the close of the meeting, Despol requested
the company to submit written counter-proposals to all provisions in the pro-
posed CIO agreement not acceptable to the company. Collings agreed to do so
within one week but none were ever submitted to the CIO.
The last bargaining conference was held at Collins' office in the plant on
January 25, 1946, attended only by Despol and Collins. The question of wages
and a vacation plan was discussed Collins on behalf of the corporation re-
spondent tentatively agreed to grant wage increases of from 10 to 15 percent
over existing rates then being paid in the industry, varying according to job
classifications, but the CIO stood firm on its former demand of 25 cents per
hour general increase. The meeting closed with a further demand from Despol
that the company submit written counter-proposals to every provision in the
CIO's proposed agreement not acceptable to the company. As noted above, and
further discussed below, the corporation respondent transferred approximately
300 of about 340 employees constituting the unit found above to be appropriate
to the partnership respondent on January 31, 1946. Thereafter in response to a
further request to bargain, directed to the corporation respondent, the latter
agreed to resume bargaining negotiations respecting the approximately 40 em-
ployees still remaining on its pay roll, but refused to bargain regarding the
transferred employees.
b. The joint liability of both companies in 7ecpect to the refusal to bargain and
other unfair labor practices
During the month of January 1946, while the CIO was vigorously pressing
its demands for a collective bargaining agreement, as discussed above, the cor-
poration and the partnership respondents were proceeding to carry out a plan to
effect a transfer of the corporation's manufacturing operations at the plant to
the partnership and at the same time the partnership was conducting preliminary'
negotiations with the craft unions regarding a collective agreement for all
production employees of both respondents at the plant although at the time it bad
only 15 employees on its pay roll. Admittedly, the certification of the CIO'was,
at the least, one of the motivating causes resulting in those activities, as President
O'Keefe testified :
Q. You knew there was an election conducted at your factory by the
National Labor Relations Board, did you not?
A. Yes.
I
O'KEEFE AND MERRITT MANUFACTURING COMPANY 791
Q. And do you know who won the election?
A. Yes.
Q. Did that election have anything to do with this leasing?
The witness : Well, it probably did something.-
Q. (By Mr. Collins) What did it have to do with it?
A. Well, we were on the unfair list with the A. F. of L. and all our
business come, or not all of it but a lot of it was done with the Building
Trades, and I figured that we could lease to someone who would work under
a contract, that would be satisfactory to the A. F. of L., we would probably
be getting off the unfair sheet.
By an agreement dated January 2, 1946, but not signed until January 31, 1946,
the corporation transferred the manufacturing operations together with the
employees engaged in such operations to the partnership. In summary the
agreement provides: the corporation shall let and the partnership shall take
over all of the plant building, excepting therefrom, for the use of the corporation,
all front office space, the service department and warehouse space, including all
production machinery and equipment for a term beginning January 31, 1946
[italics supplied] and ending December 31, 1946; that the partnership will
manufacture all products required of it by the corporation on a cost plus basis,
the corporation to furnish all raw materials required for processing and to keep
the premises in repair ; that all employees of the corporation affected by the
change in operations shall be hired by the partnership with no loss in wages or
other advantages, including seniority; and that the partnership respondent,
absent the express consent of the corporation respondent, will manufacture only
those items which the lease expressly requires it to make for the corporation.
The agreement further provides that the corporation shall bear the additional
expense required of continuing certain employee benefits, namely, the pension
fund, paid up insurance, contributions to the Five and Over Club and Christmas
bonuses, which had previously been established by the corporation company at
the plant. Clearly, by making these contributions to employees then on the
partnership respondent's pay roll the corporation respondent is still contributing
to the said employees what may be regarded as supplementary wage inducements.
In addition, President O'Keefe, in another speech delivered to the employees
on February 1, 1946, the day after the transfer agreement and the union shop
contract with the A. F. of L. were signed, told them that the partnership would
formally take over all manufacturing operations on February 4, 1946; that the
corporation would continue to operate the sales, service and shipping depart-
ments; that the partnership company was granting increased rates on all manu-
facturing operations ; 26 and that the corporation company would pay to all of
the transferred employees back wages for the period from January 1 to February
4, 1946, based on the difference between what they would receive under the new
wage scales and the scales in effect during January 1946, these payments to be
made on March 1, 1946, to all transferred employees continuing to work for the
partnership respondent until March 127
"Although the record fails to show the actual date of signing, it does show that the
closed-shop agreement with the craft unions, which also bears the date of January 2, 1946,
as the apparent date of execution, was not signed until January 31, 1946, the date of the
beginning of the term provided in the lease Consequently, the undersigned concludes and
finds that both agreements were signed on the same day, namely, January 31, 1946.
20 Wage increases were granted to the craft unions in the union-shop contract.
21 The contract provided that all employees covered "shall within 15 days become and
remain zaembers" of the craft unions, parties to the contract.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing facts, the undersigned concludes and finds that
not only did the transferred employees receive contributions of wages from both
employers subsequent to the transfer of operations, but the promise of the back
pay awards constituted further assistance to the craft unions for it is obvious
that this promise was made to induce all employees who had not previously
joined one of the craft unions promptly to do so.
Furthermore, the facts above clearly show : respondents are engaged jointly
in conducting a single business enterprise, the effective control of which is vested
in the corporation respondent ; that not only did the corporation respondent,
both before and after the consent election, assist the craft unions in their efforts
to organize the employees, but the partnership respondent also rendered material
assistance to the said craft unions by joining in the scheme to divide up the
operations of the corporation respondent's business in order to circumvent
self-organization of the employees. The record plainly shows that the partnership
respondent did not wait until the transfer of the operations and of the employees
involved was an accomplished fact but proceeded to negotiate a collective bar-
gaining agreement covering a group of employees despite prior knowledge that
they had previously designated the CIO as their representative. Since the cer-
tification, as noted above, had been made on November 28, 1945, it certainly con-
tinued in full force and effect until January 31, 1946, when the union-shop con-
tract was signed with the craft unions. The decisions of the Board and of the
Courts, extending over a period of many years have well established that loss of
membership by a designated union daring the period when the employer is re-
fusing, contrary to the provisions of the Act, to recognize and deal with it as the
iepresentative of its employees, will not be considered as an impairment of the
right of the certified union to continue to represent the employees, nor a termina-
tion of the obligation of the employer to bargain with it 2' Certainly the pur-
pose of the Act may not be circumvented by a scheme rigged with the purpose
and intent of setting aside the certification of a collective bargaining representa-
tive selected as the result of self-organization by employees.' It would be
implausible to find that the transfer of part of his plant operations by an em-
ployer subject to restraint under the Act relieved transferees with knowledge
of his burdens '° 0
Since the record fails to show that the partnership respondent participated in
any dealings concerning a transfer scheme prior to January 3, 1946, the under-
signed finds that it is not responsible for any of the unfair labor practices com-
mitted before that date. He further concludes and finds, however, that respond-
dents are responsible and liable for any unfair labor practices committed by
either on or after January 3, 1946, for it is obvious that the activities of the
respondents since that time, are so related and intermingled that findings and
an order directed solely against the corporation respondent would be neither
accurate, nor afford an effective remedy.
c. Conclusions with respect to the refusal to bargain
Clearly on the basis of the facts above, the respondents at all times on and
after January 3, 1946, refused to bargain with the CIO, the designated representa-
tive of the production and maintenance employees in an appropriate unit, as found
above. Not only did the corporation respondent invite unauthorized employees
18 See Board's Supplemental Decision in Matter of Karp Metal Products Co., Inc., 51
N. L. It. B 621 ; Franks Bros. Company v. N L R. B , 321 U. S. 702
29 Cf. Matter of Norwich Dairy Company, Inc. and Vermont Dairy Company, Inc., 25
N. L. It. B. 1166.
80 Cf. N. L R B. v Kiddie Kover Manufacturing Company, 105 F (2d) 179 (C. C. A. 6).
O'KEEFE AND MERRITT MANUFACTURING COMPANY 793
to attend a bargaining conference with the CIO held on that date, which in itself
clearly indicates a refusal to bargain," and later the corporation respondent,
although specifically requested to submit counter-proposals to the demands of the
CIO, at all times thereafter, refused and neglected to do so Of course, con-
temporaneous bargaining with the A. F of L. with respect to the employees in
the appropriate unit in itself constituted a refusal to bargain with the C. I. O.
Furthermore, as shown above, the respondents availed themselves of the op-
portunity presented to use the January 3 meeting as a sounding board to an-
nounce the scheme to shift over the plant operations to the partnership respond-
ent. In view of O'Keefe's November 27, 1945, speech to the employees, discussed
previously above, the announcement made at the meeting clearly was made with
the purpose and intent of notifying the employees that they were to be given
another opportunity to select the A. F. of L. as exclusive bargaining representa-
tive. Following the announcement, the partnership respondent proceeded to
negotiate a union-shop contract with the A. F. of L. and IAM group, as more
particularly discussed below, before the deal to transter the plant operations was
fully worked out and closed.
The record shows that the partnership, respondent had about 15 production
employees on its pay roll from November 20, 1945, the date of the consent election
in the plant, until January 31, 1946, when the transfer of plant operations and per-
sonnel, to the partnership respondent, was effected. The terms of the lease agree-
ment between the corporation and the partnership precludes the latter from engag-
ing, on the leased premises, without express permission from the corporation, in any
manufacturing operations other than those customarily performed by the corpora-
tion. Hence, the undersigned finds that the 15 partnership employees of necessity
have been absorbed in production and maintenance work now being jointly con-
ducted in the plant by both of the respondents. Thus, the 15 are no longer a
separate and identifiable group and properly form a part of the production and
maintenance unit which has been found to be appropriate. Due to the small
number involved, the votes of the 15 could not have affected the results of the
consent election or rendered it inconclusive. But whether or not the 15 partner-
ship employees now form a part of the appropriate unit does not affect a finding
that the respondents have refused to bargain There was no specific request
made of the partnership respondent. as such, to bargain collectively with the
CIO but such demand had been made on the corporation respondent, and is
deemed, for the purposes of this proceeding, to constitute a continuing demand on
the corporation, which is conducting the same business in the same plant with
the same personnel as the "Pioneer Electric Company." ' Further, the scheme
of transferring operations and personnel was motivated by a determination to
avoid bargaining with the CIO. Since the partnership entered in the union-
shop contract at about the same time as the 300 former employees of the cor-
poration were transferred to it, it is obvious that a formal request to bargain
concerning them would have been merely an idle gesture pending the setting
aside of the union-shop contract found below to be invalid. Upon the basis
of the foregoing facts and the entire record, the undersigned finds that on Jan-
uary 3, 1946, and at all times material thereafter, the respondents have failed
and refused to bargain collectively with the duly designated majority representa-
tive of their employees in an appropriate unit, thereby interfering with, re-
straining, and coercing the employees in the exercise of the rights guaranteed in
Section 7 of the Act.
31 Cf. Matter of Lenno r Furnace Co , Inc, 20 N. L It. B 962; Matter of Jasper Black-
burn Products Corporation , 21 N L. It. B. 1240.
82 Cf Matter of Norwich Dairy Company , Inc., and Vermont Dairy Company, Inc., 25
N. L. R. B. 1100.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The invalid closed shop contract
On some occasion between November 27, 1945 and February 1. 1946, the respec-
tive dates of O'Keefe's second and third speeches to the employees, Collins de-
livered a similar speech to them at a meeting held at the plant during business
hours. Collins, on this occasion, stated in substance : when Mr. O'Keefe outlined
the company's position to them a short time ago, he explained to them that while
he was not trying to sell either union, he felt that the A. F. of L: was the better
choice, because a larger market for the sale of products7would be opened up if
they were working under an A. F. of L. agreement ; that he [Collins] had been
bargaining in good faith with the CIO and offered to pay the highest rates paid
in the stove industry in the area ; 83 and that although the company was willing
to do everything possible to maintain peaceful labor conditions at the plant, none
of its employees would be forced into joining any union 14
The partnership respondent was first brought into the picture on January 3,
1946. The bargaining conference held on that day between the corporation re-
spondent and the CIO, was selected as a sounding board to announce to a group
of employees invited to attend by the corporation that plans were under way to
transfer all manufacturing operations to the partnership, and that when this
deal was consummated there would be few employees left on the pay roll for the
CIO to bargain for. Clearly in view of the background of past unfair labor prac-
tices, as found above, this was but another request to the employees to join
the A. F. of L.
Shortly thereafter, in January 1946, bargaining conferences between the part-
nership company and the craft union commenced. Wilbur Durant, the managing
partner of the partnership, testified that he delegated authority to Collins," some-
time during January 1946, to negotiate an agreement between the partnership
and the craft unions covering all production employees at the plant ; 88 that, at the
time, he [Durant] knew that the CIO previously had been certified as the majority
representative of the corporation employees; that following such bargaining con-
ferences between Collins and the craft union representatives, he and Collins met
with the craft union representatives at Durant's office on January 31. 1946,' and
in about 5 minutes the union-shop contract was signed by all parties; and that
prior to signing the contract no proof had been required of the Unions to show
that they, in fact, represented a majority of the employees involved, because he
had been assured by some of the older employees of the corporation that the
A. F. of L. had signed up a majority and accepted the statements as true.
The craft unions offered no proof respecting their designations as bargaining
agents at the hearing, nor does the record contain any evidence regarding the
bargaining negotiations between the partnership company and the unions, parties
to the contract, other than that appearing in Durant's above testimony.
In respect to this issue, the Painters interposed a special defense, namely,
that because the records fail to show that it specifically participated as a party
88 Obviously, Collins' speech was delivered sometime after December 15, 1945, the date
of the first bargaining conference.
84 He was obviously telling them that a union-shop contract would not be signed with
the CIO, their certified representative, yet a few weeks later a union-shop contract was'
signed with the craft unions absent a clear showing of majority representation.
85 Collins, the attorney of record for respondents, was also their labor relations advisor.
14 At the time these negotiations were going on the partnership had only 15 production
employees on its pay roll. Durant further testified that about 300 of the corporation's
production employees were transferred over to its pay roll. This group of 300 constituted
about 90 percent of all employees in the unit covered by the CIO's certification.
87 It is noted that the contract also bears the date of January 2, 1946, as the purported
date of execution, as did the transfer agreement above mentioned.
O'KEEFE AND MERRITT MANUFACTURING COMPANY 795
in the November 20, 1945, consent election, it was not bound by the designation
of the CIO as a result of those proceedings, and that consequently any evidence
herein is not binding on it. The undersigned finds no merit ih this contention.
The record shows that the names of four employees classified as painters appeared
on the eligible list of voters used at the consent election, that these four em-
ployees voted and the votes were not challenged, and that since the Los Angeles
Metal Trade Council, A. F. of L, was named on the ballot to protect and conserve
the interests of A. F. of L organizations who might have a then present interest
of representation on behalf of any employees, any rights of the painters at
the time were duly protected.
Conclusions
The contract was the culmination of a design on the part of the respondents
to select the A. F. of L. as the exclusive representative of their employees as
a means of circumventing its obligation to bargain collectively with the CIO
as the majority representative of the employees in an appropriate unit. In its
persistent efforts to thwart the self-organization of its employees, the corpora-
tion respondent after its failure to accomplish the defeat of the CIO at the
election enlisted the aid of the partnership to join with it in further attempts
to induce the employees to select the A. F. of L. as their exclusive representative.
Clearly, in view of the background of past unfair labor practices, as found above,
the announcement made at the January 3, 1946, bargaining conference can be
considered only as an effort to destroy the CIO and to bring home to the minds
of the employees that they would soon be given another opportunity to select
the A. F. of L. as their bargaining agent. Strong support for this last conclusion
is evidenced by the unusual conduct of the partnership in proceeding to recognize
the craft unions as bargaining representative of some 300 workers not yet on
its pay roll, concerning whom no evidence of majority representation had been
submitted by the craft unions, and who already had selected the CIO to repre-
sent them.
Assuming that the craft unions could have proved a majority at the time the
contract was entered into, such majority must be deemed vitiated by the inter-
ference of the respondents in connection with the solicitation of such member-
ship. At no time material did the craft unions represent an uncoerced majority
of the employees in the plant. The contract was made with labor organizations
which were assisted by unfair labor practices. -
Accordingly the undersigned finds that by persuading and inducing their em-
ployees to join the craft unions, the respondents interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed in Section
7 of the Act.
E. The alleged attempts of the respondents to bribe CIO representatives
The complaint as amended alleges, in substance, and the answer denies, that
the respondents interfered with the rights of the employees to self-organization
by attempting by offers of payment of money and other inducements to influence
and persuade John A. Despol and G. J. Conway, representatives of the CIO,
to surrender the CIO's position as duly designated exclusive bargaining repre-
sentative of the employees, and to discontinue further activity on behalf of
the CIO.
Despol, the CIO representative at all bargaining con°erences held, testified on
direct examination that at two conversations held with Collins at a restaurant
and cocktail bar in Los Angeles, on January 25 and February 1, 1946, Collins
told him, during the first conversation, that he would give Despol $1000 from his
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legal fees in the case if he would consent to the holding of another consent election
among the employees and cease all CIO activities at the plant, because the com-
pany was obligated to enter into a contract with the A. F. of L. in order to avoid
the boycotting of its products ; that, he, Despol told Collins he could not make
such a deal; that at the second meeting at the same place, on which occasion
Conway was present with Despol, Collins made substantially the same offer to
both Despol and Conway, and later on this occasion, raised his offer to $1500; and
that on February 4 Collins called Despol on the telephone and renewed the
offer."
During his cross-examination, Despol, in substance, admitted that his personal
relations with Collins had been friendly over a period of several years, that they
had frequently gone into a bar together to indulge in alcoholic stimulants, that
even during the present hearing they had taken some friendly drinks together
following the end of the day's session on several occasions On rebuttal, Despol
denied that prior to January 25, 1946, Collins had ever broached the subject
regarding the transfer of operations to the partnership, or had previously stated
that another election would probably result in a change of representatives. The
undersigned concluded, as found above, that Collins and Despol participated in a
similar conversation during the January 3, 1946, bargaining conference in the
presence of several employees who had been invited to attend the meeting by
Collins, thereby discrediting, at least in part, Despol's above testimony. Collins
gave no testimony at the hearing
On the basis of the foregoing facts and the entire record the undersigned deems
that Despol's version of the above incidents have,been overly emphasized and
exaggerated. It is inconceivable to the undersigned that if Despol entertained a
sincere conviction that Collins had offered him a bribe to sell out the CIO, that
Despol would continue his friendly relations with Collins to the extent of still
going into cocktail bars with Collins. The undersigned finds that the allegation
has not been sustained by the proof.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents and each of them as set forth in Section III,
above, occurring in connection with the operations of 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 obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the respondents have engaged in certain unfair labor
practices affecting commerce , it will be recommended that they cease and desist
therefrom and take certain affirmative action designed to effectuate the purposes
of the Act. -
The respondents ' illegal conduct discloses a purpose to defeat self-organization
among their employees motivated primarily by fear of an A. F. of L. boycott.
For example , shortly after the election at the plant, at which time the respondents
learned that the CIO had been designated the majority representative of the
production and maintenance employees , it was sought to coerce them in the
exercise of the rights guaranteed under the Act by warning them , in effect, that
unless they withdrew from affiliation with the CIO and affiliated with the
$8 It is noted that Despol also testified that on the second meeting at the bar when
Despol asked Collins how much President O'Keefe would "kick in" Collins shook his head
indicating that O'Keefe was not involved in the alleged transaction.
O'KEEFE AND MERRITT MANUFACTURING COMPANY 797
A. F. of L. their economic welfare would be jeopardized. Thereafter, as a result
of the scheme or plan adopted by the respondents which culminated in the trans-
fer of the manufacturing operations in the plant from the corporation respond-
ent to the partnership respondent, the respondents succeeded in inducing many
of their employees to shift their union affiliations, thus circumventing the pur-
poses of the Act. That the conduct of the respondents was motivated by fear
of an A. F. of L. boycott is no justification for a violation of the Act 3° Since
the respondents' conduct in these respects interfered with, restrained, and
coerced their employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, this conduct violated
Section 8 (1) of the Act quite apart from the respondents' refusal to bargain
with the CIO.
In connection with the procedures followed in carrying out the scheme to
defeat self-organization among the employees, it is apparent that the mem-
berhsip of the craft unions involved herein was procured with the assistance
of the respondents' unfair labor practices. Consequently, the craft unions'
union-shop contract with the partnership is void and of no effect. The under-
signed will therefore recommend that the respondents give no effect to it.
j Having also found that the respondents have refused to bargain collectively
with the CIO as the certified exclusive representative of all production and
maintenance employees at the plant,90 the undersigned will recommend that
respondents, upon request, bargain collectively with the CIO."
Upon the basis of the foregoing findings and upon the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. O'Keefe and Merritt Manufacturing Company and-L. G. Mitchell, W. J.
O'Keefe, Marion Jenks, Lewis M Boyle, Robert J. Merritt, Robert J. Merritt, Jr.,
and Wilbur G. Durant, a co-partnership doing business as Pioneer Electric
Company, are jointly employers of the employees here involved within the
meaning of Section 2 (2) of the Act.
2. United Steel Workers of America, Stove Division, Local 1981, C. I. 0.;
Stove Mounters International Union of North America, Local 125, A. F. of L.;
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 389, A. F. of L.; International Moulders and Foundry Workers
Union of North America, Local No. 374, A. F. of L.; District Lodge 94, for and
on behalf of its affiliate Local 311 of the International Association of Machinists ;
Brotherhood of Painters, Decorators and Paperhangers of America, Local 792,
A. F. of L ; and Los Angeles County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America, A. F. of L, are all labor organi-
zations within the meaning of Section 2 (5) of the Act.
39 See Matter of Lakeshore Electric Mfg: Corp., et at., 67 N L R B 804
9' It is noted that the partnership for some time prior to the November 20, 1945 election
until January 31, 1946, had only 15 production employees on its pay roll, and that these
employees were not included in the certified unit. However, since the partnership's pay roll
was expanded by the addition of 300 production employees on January 31 and, in the ab-
sence of any showing to the contrary, a fair infei ence arises that the 15 former employees
on the partnership pay roll would have substantially similar interests concerning rates of
pay and working conditions as the transferred employees. The fact that the said 15 em-
ployees were not included in the certified unit does not affect the findings herein
a See the Board' s Supplemental Decision in Matter of Karp Metal Products Co., Inc.,
51 N. L. R. B. 621 ; Franks Bros. Company v. N. L. R. B , 321 U. S. 702.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By refusing on January 3, 1946, and at all times thereafter to bargain with
United Steelworkers of America, Stove Division, Local 1981, C. I. 0., as the
certified exclusive representative of their employees in the unit heretofore found
to be appropriate, the respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
4. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondents have engaged
in and are engaging in unfair labor practices within the meaning of Section 8 (1)
of the Act.
5. 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'Keefe and Merritt Manufacturing Company, a corporation , and L. G. Mitchell,
W. J. O'Keefe , and Marion Jenks, Lewis M. Boyle,, Robert J. Merritt , Robert J.
Merritt, Jr., and Wilbur G. Durant, individually and as co-partners, doing
business as Pioneer Electric Company, their officers , agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Urging, persuading . warning or coercing their employees to join the Stove
Mounters International Union of North America, Local 125, A. F. of L., Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of
America, Local 389, A. F. of L .; International Moulders & Foundry Workers
Union of North America, Local No. 374 , A. F. of L.; District Lodge 94, for and
on behalf of its affiliate Local 311 of the International Association of Machinists ;
Brotherhood of Painters , Decorators and Paperhangers of America , Local 792,
A. F. of L. ; and Los Angeles County District Council of Carpenters , United Brother-
hood of Carpenters and Joiners of America, A. F of L., and from encouraging mem-
bership in any of the above -named organizations , discouraging membership in
United Steelworkers of America , C. I. 0., or any other labor organization of their
employees ;
(b) Recognizing the A. F. of L . labor organizations and the I. A. M. named in
the preceding paragraph , 1 (a), of these Recommendations , or any of them, as
the exclusive representative of their employees for the purposes of collective
bargaining unless and until said organizations , or any of them shall be certified
by the National Labor Relations Board as the exclusive representative of such
employees ;
(c) Giving effect to the union -shop contract dated January 2, 1946, and signed
on January 31, 1946, with the said labor organizations named above in paragraph
1 (b) of these Recommendations , or any modification , extension , supplement, or
renewal thereof , or to any superseding or like agreement with them ;
(d) Refusing to bargain collectively with United Steelworkers of America,
Stove Division , Local 1981 , C I. 0., as the exclusive representative of all produc-
tion and maintenance employees at the Los Angeles plant of the respondents
within the above-found apropriate unit, with respect to rates of pay , wages,
hours of employment , and other conditions of employment.
O'KEEFE AND MERRITT MANUFACTURING COMPANY ' 799
2 Take the following affirmative action which the undersigned finds will effec-
tuate the policies of the Act:
(a) Withdraw and withhold all recognition from the Stove Mounters Interna-
tional Union of North America, Local 125, A. F. of L., International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 389,
A F. of L ; International Moulders & Foundry Workers Union of North America,
Local No. 374, A. F. of L.; District Lodge 94, for and on behalf of its affiliate
Local 311 of the International Association of Machinists ; Brotherhood of Painters,
Decorators and Paperhangers of America, Local 792, A. F. of L.; and Los Angeles
County District Council of Carpenters. United Brotherhood of Carpenters and
Joiners of America, A. F. of L., as the exclusive representatives of their em-
ployees for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment, unless and
until the said organizations, or any of them, shall have been certified by the
National Labor Relations Board as the representatives of such employees;
(b) Bargain collectively upon request with the United Steelworkers of America,
Stove Division, Local 1981, C. I. 0., as exclusive representatives of all production
and maintenance employees at the Los Angeles plant of the respondents within
the above found appropriate unit, with respect to rates of pay, wages, hours of
employment, and other conditions of employment ; and if an understanding is
reached, embody such understanding in a signed agreement ;
(c) Post at the respondents' plant at Los Angeles, California, copies of the
notice attached hereto, marked "Appendix A." Copies of the said notice, to be
furnished by the Regional Director for the Twenty-first Region, shall, after being
duly signed by the respondents' representatives, be posted by the respondents
immediately upon receipt thereof, and maintained by them for sixty (60) con-
secutive days thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the
respondents to insure that said notices are not altered, defaced, or covered by
other material;
(d) Notify the Regional Director for the Twenty-first Region in writing,
within ten (10) days from the receipt of this Erratum to the Intermediate Report
what steps the respondents have taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Erratum to the Intermediate Report, respondents notify said
Regional Director in writing that they will comply with the foregoing recom-
mendations, the National Labor Relations Board issue an order requiring re-
spondents to take the action aforesaid.
The undersigned further recommends that the complaint be dismissed insofar
as it alleges that the respondents violated the Act by attempting by offers of
payment of money to influence represenatives of the CIO to surrender the CIO's
position as the exclusive bargaining representative of the employees, and to
discontinue further activity on behalf of the CIO.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, 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 25, D. C., an original and four copies -of a
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Immediately upon the filing of such state-
ment 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 Regional 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 to the Board within ten (10) days from the date of
the order transferring the case to the Board. Any party desiring to,subniit a
brief in support of the Intermediate Report shall do so within fifteen (15) days
from the date of the entry of the order transferring the case to the Board, by
filing with the Board an original and four copies thereof, and by immediately
serving a copy thereof upon each of the other parties and the Regional Director.
HENRY J KENT,
Trial Examiner.
Dated at Washington, D C., this 4th day of June 1946.
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 bargain collectively upon request with the United Steelworkers
of America, Stove Division, Local 1981, C. I. 0., as exclusive representative
of all the employees in the 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.
The bargaining unit is: All,production and maintenance employees at the
Los Angeles plant of the respondents excluding office clerical employees;
guards ; parcel post clerks ; draftsmen ; timekeepers ; material expediters ;
pattern makers and pattern maker helpers other than those working in sheet
metal ; experimental laboratory workers ; and supervisory employees with
authority to hire, promote, discharge, discipline or otherwise effect changes
in the status of employees or effectively recommend such action
We will not recognize the Stove Mounters International Union of North
America, Local 125, A. F. of L., International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local 389, A. F. of L.;
International Moulders and Foundry Workers Union of North America, Local
No. 374, A. F. of L ; District Lodge 94, for and on behalf of its affiliate Local
311 of the International Association of Machinists ; Brotherhood of Painters,
Decorators and Paperhangers of America, Local 792, A. F. of L ; and Los
Angeles County District Council of Carpenters, United Brotherhood of Car-
penters and Joiners of America, A. F. of L, as the exclusive representative of
any of our employees for the purpose of collective bargaining, or give effect
to the contracts now existing with said organizations, unless and until said
organizations, or any of them, shall have been certified by the National Labor
Relations Board as the representatives of our employees
We will not urge, persuade, warn or coerce our employees to join any of
the A. F. of L unions above named, and we will not discourage membership
O'KEEFE AND MERRITT MANUFACTURING COMPANY 801
in United Steelworkers of America, C. I. 0, or any other labor organization,
or encourage membership in any of the above-named A. F. of L. unions, or
any other labor organizations.
All our employees are free to become or remain members of United Steel-
workers of America, C. I. 0., or any other labor organization.
O'KEEFE & MERRITT MANUFACTURING CO.
Dated---------------------- By --------------------------------------
(Representative ) ( Title)
PIONEER ELECTRIC COMPANY
Dated---------------------- By --------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered , defaced, or covered by any other material.
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