Semi-Steel Casting Co.

National Labor Relations Board - Board Decisions

Mar 14, 1946

66 N.L.R.B. 713 (N.L.R.B. 1946)

In the Matter of SEMI-STEEL CASTING COMPANY and INTERNATIONAL
MOLDERS & FOUNDRY WORKERS OF NORTH AMERICA , LOCAL 59, A. F. L.
Case No. 14-C-916.-Decided March 14, 1946
DECISION
AND
ORDER
On May 23, 1944, The Trial Examiner issued his Intermediate Re-
port in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
affecting commerce, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. Thereafter, counsel for
the respondent duly filed exceptions to the Intermediate Report and
a supporting brief. On December 13,1945, the Board at Washington,
D. C., heard oral argument, in which the respondent participated.
The Board has considered the rulings of the Trial Examiner at the
hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following
additions:
The Trial Examiner found, and we agree, that on January 18, 1944,
and at all times thereafter, the respondent violated the Act by refus-
ing to bargain collectively with the Union as the exclusive repre-
sentative of all its employees in the agreed appropriate unit. The
record shows that on October 30, 1943, the respondent and the Union
entered into a consent-election agreement which provided in part
(1) that the Board's Regional Director should conduct an election by
secret ballot in accordance with the customary procedures and
policies of the Board to determine whether or not the employ-
ees desired to be represented by the Union for the purposes of
collective bargaining; (2) that the respondent might file objections
thereto within 5 days and that the Regional Director should promptly
investigate such objections; and (3) that the determination of the
66 N. L . R. B., No. 94.
713
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director should be final and binding upon any question
raised by the respondent relating in any manner to the election.
On November 4, 1943, the Regional Director duly conducted the elec-
tion, pursuant to the terms of the agreement.' Thereafter, the re-
spondent, by a letter dated November 8, 1943, duly filed objections
relating to the election.
On November 29, 1943, the Regional Director issued an election
report, pursuant to the terms of the agreement, in which he over-
ruled the respondent's objections on the merits and found and deter-
mined that the Union had been designated and selected by a majority
of the employees in the agreed appropriate unit and therefore was
the exclusive collective bargaining representative of all the employees
therein. The respondent was advised of the Regional Director's
action, as Connor Shanley, the respondent's secretary-treasurer and
manager, admitted at the hearing before the Trial Examiner. Subse-
quently, on January 18, 1944, and again on a later occasion, the
respondent advised the Union, during the course of discussions in-
volving a proposed collective bargaining agreement which had been
prepared and submitted by the Union, that it would not recognize
the Union as the employees' exclusive collective bargaining repre-
sentative.
The respondent does not dispute that it refused to bargain col-
lectively with the Union, but contends that its conduct was not
violative of the Act because the Union was not selected by a majority
of the employees within the agreed appropriate unit. In support of
its position, the respondent contends principally that the ballot of
employee Flemings, which the Regional Director refused to count,
should be counted as a vote against the Union, and that, if so counted.
the Union would have failed to receive a majority of the votes. How-
ever, the ballot was not marked in conformity with the official instruc-
tions, clearly printed both on the sample ballot contained in the
printed election notices and on the actual ballot cast by Flemings,
that an "X" should be marked in the square of the voter's choice and
that the ballot "must not be signed." Thus, no mark of any kind
appeared in any square, and the ballot was signed by Flemings. The
respondent nevertheless insists that, because the signature was written
wholly on the "no" side of the ballot, Flemings' intent clearly ap-
peared to be to vote against the Union. We do not agree that the
intent of the ballot was clear; nor can Flemings' subsequent testimony
at the hearing be permitted to remove the ambiguity of his ballot,
for otherwise no election could be relied upon as a final expression
3 The tabulation of the ballots showed that there were approximately 129 eligible
voters, and that 119 ballots were cast, of which 59 were marked for the Union, 58
against the Union , and 2 were declared void by the Regional Director,
SEMI-STEEL CASTING COMPANY 715
of the choice of the electorate. Moreover, even if the intent were
clear, Flemings' identification of his ballot would, under our pre-
viously established practice in conducting elections pursuant to Sec-
tion 9 of the Act and regardless of a possibly contrary practice under
local law applicable to other types of elections,2 render the ballot
void.3 Accordingly, we find as did the Trial Examiner, that the
Regional Director's ruling with respect to Flemings' ballot was
proper.
The respondent also contends that the Union was not selected by
a majority, because the number of votes for the Union was not more
than half the number of eligible voters or the number of votes actually
cast. However, as we have repeatedly held, the majority concept in a
Board election refers to a majority of the valid votes.4 There were
117 valid votes, of which the Union received a majority of 59.5 Ac-
cordingly, we find this contention without merit.
The respondent next contends, in effect, that the election was in-
valid on the ground that, although the Regional Director knew that
the employees were illiterate, he did not adequately advise them, and
particularly Flemings, how to register their choice at the election.
However, the respondent had agreed in the consent-election agree-
ment that the customary notice of the election was sufficient; and the
evidence shows that at the election the Regional Director's repre-
sentative offered the voters whatever assistance they were willing to
accept in marking their ballots a We find no merit in the respondent's
contention.
2 See Matter of 0. U. Hofmann & Sons, 55 N. L. R. B. 683, 684.
The respondent ' s argument that the secrecy of the ballot in a Board election is a
privilege of the individual voter and may be waived by him, as it claims is the law in
local political elections , is without merit. The Board's election rules are designed not
only to protect the anonvmity of the individual voter but also to assure the entire elec-
torate that the vote will be as free and uncoecced as possible. See Matter of A. J. Tower
Company, 60 N. L. R. B. 1414.
8 Matter of Burlington Mills Corpotatioa, 56 N. L R. B 365, 368
4 See, in addition to the cases cited in the Intermediate Report, Matter of The Stand-
ard Lnne & Stone Company , 57 N L R. B 227, enf'd, 149 F. ( 2d) 435 (C. C. A 4),
cert. denied 66 S. Ct. 28. See also Matter of The Sorg Paper Company, 9 N. L. R. B.
136, 137, where the Board , in answering the Company's objection that ambiguous ballots
should be included in determining whether the Union received a majority, stated.
In determining the question of a majoiity, only ballots validly cast are to be con-
sidered . Void votes cannot contribute to their total
To a similar argument in Matter of American Tobacco Company, Inc., Richmond Smok-
ing Branch , 10 N. L. R B 1171, 1172, the Board stated :
In determining whether a labor organization has obtained a majority of ballots
cast, the Board does not consider blank or void ballots but only ballots validly cast.
5 The respondent argues that another ballot, which the Regional Director refused to
count because marked in both the "Yes" and "No" squares, should be counted as a valid
vote, making a total of 118 However, the Regional Director 's agent and the authorized
observers of the parties, including a representative of the respondent , certified this ballot
as void after inspecting it; and counsel for the respondent admitted at the hearing
before the Trial Examiner that the ballot could not be considered as a vote for or against
the Union . We thus find no merit in this argument .
n Flemings admitted at the hearing that the Regional Director's representative re-
peatedly offered to assist him in marking the ballot properly to register his choice
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent also argues for the invalidity of the election on the
ground that the Regional Director forbade the respondent from talk-
ing to its employees relative to the election. The record does not
support this argument. Moreover, the respondent prior to the elec-
tion did advise its employees how to vote their choice. There is no
merit in the respondent's argument.
Finally, the respondent contends that the Union has lost its ma-
jority since the refusal to bargain, particularly in view of the turn-
over of employees. This argument is without merit as a defense
either to the refusal to bargain or to an affirmative order requiring
the respondent to remedy its refusal by bargaining with the Union
upon request.? We find that any loss in the Union's majority status
is attributable to the respondent's unlawful refusal to bargain. More-
over, for the reasons expressed in our Supplemental Decision in
Matter of Karp Metal Products, Incorporated,$ we find that the
policies of the Act will best be effectuated by requiring the respondent
to bargain collectively with the Union, upon request.
The Motion to Intervene
At the hearing before the Trial Examiner, a group of 5 employees
filed a "Motion to Intervene" on the ground that the "consent election
did not result in a selection of a collective bargaining representative
by a majority of the employees in a unit as required by the National
Labor Relations Act," for the reasons set forth in an "Answer of
Intervenors" attached to the Motion. This Answer admitted the
allegation of the Board's complaint that the unit therein set forth
was and is appropriate; that 129 employees within the unit were
eligible to vote; and that 119 eligible employees appeared and cast
their ballots, of which 59 we-.-e for, and 58 against, the Union; and
2 were rejected as void. The Answer further alleged that the
2 rejected ballots were votes against the Union and should have been
counted as such, and that the 59 ballots cast for the Union thus did
not constitute a majority of the 119 votes cast or a majority of the
employees in the unit; it denied that the respondent violated Section
8 (5) and (1) of the Act. The issues raised by the alleged inter-
venors thus do not differ from those raised by the respondent, which
we have found to be without merit.
At the hearing the Trial Examiner denied the Motion to Intervene.
Subsequent to the issuance of the Intermediate Report, the alleged
'Matter of Franks Bros Company, 44 N 1. R B 898, enf'd, 137 P. ( 2d) 989
(C.C A.1),afrd321U S 702
851 N. L R B 621 See also Matter of Douglas Silk Products Co., Inc, 63 N. L
R B. 1280; Matter of Palm Beach Broadcasting Corp , 63 N. L. R. B. 597.
SEMI -STEEL CASTING COMPANY 717
intervenors filed exception to the ruling of the Trial Examiner and
a supporting brief.
No explanation has been offered of the alleged intervenors' failure
to file their objections to the election with the Regional Director
after the tabulation of the ballots but prior to the certification of the
Union, a timely and orderly procedure recognized by the Board's
Rules and Regulations. At no time have the alleged intervenors
challenged the appropriateness of the unit or claimed that reasonable
notice of the election was not given, that adequate notice was not given
of the place to vote or the manner of voting, or that the election was
conducted unfairly. Nor do they seek to intervene for the purpose
of adducing testimony on such matters.
We conclude that the alleged intervenors are not necessary parties
to this particular proceeding. Section 10 (b) of the Act permits
intervention "in the discretion of the member, agent, or agency con-
ducting the hearing or the Board." We are of the opinion, and find,
that the Trial Examiner's denial of intervention was not prejudicial
and not an abuse of that discretion, but was in conformity with the
Act and in accordance with the customary procedures and policies
of the Board.9 The concern expressed in the dissenting opinion with
respect to the substantial interest of the "employees," as contrasted
to that of the "parties," in the selection of a bargaining representative
is unfounded. The democratic process inherent in our secret election
machinery, in which all eligible employees have a right to participate,
adequately safeguards the interest of the employees in selecting or
rejecting a representative. Accordingly, we affirm the Trial Ex-
aminer's ruling.
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 respondent. Semi-Steel Casting Com-
pany, St. Louis, Missouri, and its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Molders k
Foundry Workers of North America, Local 59, A. F. L., as the ex-
clusive representative of all its employees engaged in the production
of castings, excluding drivers, office and clerical employees, watchmen,
See N L R B V National Licorice Co , 309 IT ' 150: Amalgamated Utility Workers,
et at v Consolidated Edison Company , 309 U S 261, Oughton , et at. v . N L. R B ,
118 F. ( 2d) 486 (C C. A. 3) ; Hatter of Bites-Coleman Lumber Company , et at, 4 N 7.
R B 679, enf'd 98 F. (2d) 1S (C C A 9) ; Matter of Lane Cotton Mills Company, 9
N I, R B 952, enf'd 111 F. (2d) 814 (C C A 5)
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract laborers , maintenance men, and supervisory employees with
authority to hire, promote , discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such
action, in respect to rates of pay, wages, hours of employment, and
other conditions of employment;
(b) In any manner interfering with the efforts of International
Molders & Foundry Workers of North America, Local 59, A. F. L..
to bargain collectively with Semi-Steel Casting Company, St. Louis,
Missouri.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Molders
& Foundry Workers of North America, Local 59, A. F. L., as the
exclusive representative of all its employees engaged in the produc-
tion of castings , excluding drivers, office and clerical employees
watchmen , contract laborers , maintenance men, and supervisory em-
ployees with authority to hire, promote, discharge, discipline, of
otherwise effect changes in the status of employees, or effectively
recommend such action , in respect to rates of pay, wages, hours of
employment , and other conditions of employment ;
(b) Post at its plant in St. Louis, Missouri, copies of the notice
attached hereto , marked "Appendix A." Copies of said notice, to b-
furnished by the Regional Director of the Fourteenth Region, shad
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places.
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that the said notices are not altered, defaced, or covered by any other
material;
(c) Notify the Regional Director of the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
MR. GERARD D. REILLY, dissenting :
The majority decision upholding the findings of the Trial Ex-
aminer is amply supported by the evidence which he received. Pe-
cause of a ruling of his, however, which in my opinion was erroneous.
I believe the Board should reverse his holding and remand the case
with instructions to entertain the motion to intervene.
Our finding that the Company in these proceedings should have
recognized the complaining union as a bargaining representative of
its employees is predicated upon a Regional Director's certification of
the results of a consent election . Under a stipulation entered into by
SEMI-STEEL CASTING COMPANY 719
the Company and the Union, the Regional Director's rulings on the
election were to be final. Therefore, since he (after a tabulation of
the vote) pronounced the Union the majority representative of the
employees, the Board may properly take the position, on an analogy
to the views held by the courts with respect to arbitration awards,
that any party to the stipulation was estopped from asserting the
contrary.
None of the employees, however, was a party to the consent-election
agreement. Consequently I am at a loss to understand how the
principle of law which operates against the Company in these pro-
ceedings has any application to the four employees who sought to
intervene for the purpose of showing that the Regional Director
erred in finding the complaining union to have been the representative
designated by the majority of the employees in the appropriate unit."'
It would seem to me that the denial of the motion by the Trial Ex-
aminer on the ground that they had no interest in the case constituted
clear error. The fact is that the employees under the statute have
the most substantial interest of any party in the determination of a
question of representation.ll The employees, not being parties to the
stipulation executed by their employer and the Union, have not there-
fore waived their right to be heard.12
On' the remand, the individual employees should be permitted
to intervene and should be given an opportunity to introduce evidence
bearing upon the appropriateness of the unit, whether reasonable
notice of the election was given, whether adequate notice was given
of the places to vote and the manner of voting, and as to any other
facts bearing upon the fairness of the election. If, following the
remand, the Board is satisfied that the election was fairly conducted,
10 Sec. 8 (5) incorporates by reference the provisions of Sec. 0 (a).
11 If a majority representative Is validly designated, the employees lose their right to
bargain individually with their employer, N. L. R. B. v. J. I. Case , 321 U S. 332, and
may even be compelled to join the majority organization as a condition of employment
under the provision to Sec. 8 (3) of the Act.
' In reaching this conclusion , I have reviewed the authorities apparently relied upon by
the Trial Examiner , as well as other cases relating to the matter of intervention. In
Oaghton v. N. L. R. B, 118 F. ( 2d) 486 (C. C. A. 3), where the court held that denial
of a similar motion to intervene was not reversible error, it was conceded that the union
had been the majority bargaining representative , the purpose of the intervention merely
being to show loss of majority . In the National Licorice case ( 309 U. S. 350 ), It was
likewise conceded that the charging union had been validly designated as the majority.
At best these cases merely stand for the principle that in an employer 's petition for
review, he may not raise the right of a stranger to intervene . They should not be con-
strued as a mandate to the Board . It will be remembered that in N. L. R. B. v. Penn-
sylvania Greyhound Lines, Inc , 303 U. S. 261 , the Supreme Court held that it was not
necessary In a proceeding against an employer for maintaining an allegedly company-
dominated union In violation of Subsection 8 (2), to join the union as a necessary party.
Nevertheless it is significant that the Board , as a matter of policy, amended its Rules and
Regulations subsequent to this decision , so as to make such labor organizations parties to
the proceedings even though the defenses advanced by such organizations in cases involv-
ing Subsection 8 (2) are usually identical with the positions taken by the respondent
employers. The same principle should be applicable here.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it may proceed with an order under Section 8 (5). If not, it should
dismiss the complaint. In making this determination, so far w-,
the claims asserted .by the intervening employees are concerned, the
fact that the Company and the Union consented to the election and
agreed to be bound by the rulings of the Regional Director should
be wholly disregarded.
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 not in any manner interfere with the efforts of Inter-
national Molders & Foundry Workers of North America, Local
59, A. F. L., to bargain collectively with Semi-Steel Casting
Company, St. Louis, Missouri.
We will bargain collectively upon request with the above-hauled
union as the exclusive representative of all employees in t',c
bargaining unit described herein with respect to rates of pay.
wages, hours of employment, and other conditions of employment
The bargaining unit is:
All employees engaged in the production of castings, excludilq,'
drivers, office and clerical employees, watchmen, contract laborers,
maintenance men, and supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect change.,
in the status of employees or effectively recommend such action.
SEMI-STEEL CASTING COMPANY
Employer.
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.
INTERMEDIATE REPORT
Mr. Keith TV. Blinn, for the Board.
1Jr. Joseph T. Davis, of St. Louis, Mo., for the respondent
ltr Allen H. Whittington , of St. Louis, Mo., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on January 25 , 1944, by International Molders &
Foundry Workers of North America , Local 59, affiliated with American Fed-
eration of Labor , herein called the Union , the National Labor Relations Board,
herein called the Board , by its then Regional Director for the Fourteenth
SEMI-STEEL CASTING COMPANY 721
Region (St. Louis, Missouri), issued its complaint on March 23, 1944, against
Semi-Steel Casting Company, St. Louis, Missouri, herein called the respondent,
alleging that the respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Copies of the complaint, accompanied by notice of hear-
ing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in sub-
stance: (1) that all the respondent's employees engaged in the production of
castings, excluding drivers, office and clerical employees, watchmen, contract
laborers, maintenance men, and supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise affect the status of the employees.
or effectively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining, as agreed by the respondent and the Union
in Case No 14-R-801; 1 (2) that at an election conducted by the Board on No-
vember 4, 1943, pursuant to the Agreement for Consent Election in Case No.
14-R-801, the employees in the aforesaid appropriate unit designated and
selected the Union as their representative for the purposes of collective bar-
gaining; (3) that at all times since November 4, 1943, the Union has been, and
continues to be, the exclusive representative of all the employees in the said
appropriate unit; (4) that on or about November 29, 1943, and continuously
thereafter, the Union requested the respondent to bargain collectively and
the respondent has continuously refused; and (5) that by such refusal, the
respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act
On March 31, 1944, the respondent filed an answer admitting the allegations
of the complaint as to the corporate existence of the respondent and the nature,
character, and extent of the business transacted by it, and further admitting
that the Union is a labor organization within the meaning of the Act, that the
unit alleged in the complaint is an appropriate unit for the purposes of collec-
tive bargaining, and that the Union has, on or about November 29, 1943, and
at certain times thereafter, requested the respondent to bargain collectively
with it as the representative of the employees of the respondent in an appro-
priate unit, and that it has continuously refused to do so. The answer denied
that at the election held on November 4, 1943, the Union was designated and
selected as their bargaining representative by a majority of the employees in
the appropriate unit or that the respondent's refusal to bargain collectively
with the Union constituted an unfair labor practice, or related to or affected
commerce. The answer affirmatively averred, in susbstance, that, for the
reasons more fully set forth in said answer,' the election of November 4, 1943,
was not determinative and the results thereof as certified were "erroneous.
arbitrary, wrongful and without authority of law."
Pursuant to notice, a hearing was held on May 1 and 2, 1944, at St. Louis,
Missouri, before Howard Myers, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the respondent, and the Union
were represented by counsel. All parties participated in the hearing and full
opportunity was afforded them to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues. At the outset
i Matter of Semi -Steel Casting Company and International Molders & Foundry Workers
of North America , Local 59 , A F L, Case No 14-R-801.
The respondent 's affirmative defense is hereinafter more fully stated in the section
entitled , "The respondent ' s contention ," p. 5, infra
686572--46-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the hearing , counsel for five named employees ' filed a written motion on
grounds therein stated to intervene "in behalf of themselves and all other
employees of respondent who may care to join with them ," and to file their
answer herein , a copy of the proposed answer being attached to the motion to
intervene. On objection by counsel for the Board, on the ground that the
movants had no interest in the proceeding , the motion to intervene was denied.4
At the conclusion of the taking of testimony, counsel for the parties partici-
pated in oral argument before the undersigned. At the conclusion of the hear-
ing, the parties were given leave until May 10, 1944 , to file briefs with the
undersigned' A brief has been received from respondent 's counsel.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT'
Semi -Steel Casting Company , a Missouri corporation , has its principal offices
and place of business in St. Louis , Missouri , where It is engaged in the manu-
facture, sale , and distribution of semi-steel and iron castings . During 1943,
the respondent purchased upwards of 2500 tons of pig iron and 1800 tons of
sand , valued in excess of $90,000, of which more than 50 percent was purchased
and shipped to its plant from points outside the State of Missouri . During
the same year , the respondent sold and shipped finished products , valued in
excess of $200,000, of which approximately 2 or 3 percent was sold and
shipped from its plant to points outside the State of Missouri . The remaining
97 or 98 percent of the finished products was sold and shipped to the St. Lome
plants of the Wagner Electric Corporation and the Emerson Electric Manufac-
turing Company, both of which are engaged in commerce within the meaning
of the Act.
The respondent admitted that it is engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATION INVOLVED
International Molders & Foundry Workers of North America , Local 59, affili-
ated with the American Federation of Labor, is a labor organization admitting
to membership employees of the respondent.
3 Nick Harman, Benjamin Weber, James Ellis and Mike Ehret.
'The grounds for intervention , as set forth in the motion to intervene, were substan-
tially as follows : The movants are employees of the respondent and as such are
affected by the designation of a bargaining representative ; they are opposed to the
Union's acting as their bargaining representative "and are of the belief that a majority
of the employees in the particular unit involved are likewise opposed to the selection
of such Union" ; they assert that the vote at the consent election was not determinative
of a choice of representative by a majority of the employees in the appropriate unit;
and that "the acts and conduct " of the Board , as set forth in their proposed answer,
were "without authority in law and violative of the constitutional guarantees " afforded
the movants "by the Constitution of the United States."
5 At the request of the respondent's counsel the time to file briefs was subsequently
extended to May 15.
'The findings in this section are based upon a stipulation entered into at the hearing
by counsel for the Board and counsel for the respondent.
SEMI-STEEL CASTING COMPANY
III. THE UNFAIR LABOR PRACTICES
A. Chronological sequence of events
723
During 1943 , the Union conducted a campaign for the purpose of organizing
the respondent 's employees and on or about October 15 , 1943, filed with the
Board its petition for investigation and certification of representatives. On
or about October 30, the respondent and the Union entered into an Agreement
for Consent Election which was approved by the Regional Director.
The parties therein agreed among other things as follows :
All employees engaged in the production of castings, excluding drivers,
office and clerical employees , watchmen , contract laborers , maintenance
men, and supervisory employees with authority to hire, promote , discharge,
discipline, or otherwise [affect] the status of employees , or effectively rec-
ommended such action * * * constitute a unit appropriate for the pur-
poses of collective bargaining.
An election by secret ballot shall be conducted under the direction and
supervision of the Regional Director among all employees in the unit who
were employed by the Employer during the pay-roll period ending October
28, 1943 , including employees who did not work during such pay-roll period
because they were ill or on vacation or temporarily laid off, but excluding
employees who have since quit or been discharged for cause, to determine
whether or not they desire to be represented by the Union for purposes
of collective bargaining.
Said election shall be held in accordance with the Act , the Rules and Regu-
lations and the customary procedures and policies of the Board, provided
that the determination of the Regional Director shall be final and binding
upon any question ( including questions as to the eligibility of voters)
raised by either party hereto relating in any manner to the election and
not specifically covered in this Agreement.
The Regional Director thereafter prepared the usual printed Notice of Elec-
tion, copies of which were posted throughout the plant several days before
the election . The notice contained a facsimile of the ballot ' to be used at the
election , and advised the employees as to the time and place of balloting and
what categories of employees were eligible to vote.
The balloting was duly conducted on November 4 and a Certification of
Conduct of Election , on the regular form used by the Board in such cases, was
made by authorized observers on behalf of the respondent , the Union , and the
Regional Director , stating that the balloting was fairly conducted , that all
eligible voters were given an opportunity to vote their ballots in secret, and
that the ballot box was protected in the interest of a fair and secret vote.
The observers also executed a Certification of Counting and Tabulating of
Ballots, attesting that the approximate number of eligible voters was 129, and
that 119 ballots were cast , of which 59 were cast for the Union , 58 against,
and 2 were voided.
By letter to the Regional Director , dated November 8, the respondent objected
to the conduct of the election and to the determination of the representatives
The following is the form of ballot used in the election :
Do you wish to be represented by INTERNATIONAL MOLDERS AND FOUNDRY
WORKERS UNION OF NORTH AMERICA, LOCAL #59, AFL-,
YES NO
q q
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as certified to by the representatives of the respondent, the Union, and the
Regional Director e The Regional Director investigated the validity of the
objections and incorporated his findings and determination in his Election
Report, dated November 29, copies of which were duly served upon the parties,
wherein the Regional Director found and determined that the Union had been
designated and selected by a majority of the employees in the agreed unit as
the exclusive bargaining representative of the employees therein.
On November 30, 1943, the Union wrote the respondent a letter enclosing
copies of a proposed agreement and readjustment in wage rates. On December
15, Charles Blome, the Union's president, telephoned Connor Shanley, the
respondent's secretary-treasurer and manager, requesting a conference to dis-
cuss the contract. Shanley agreed to meet him but no date was set. On
January 3, 1944, Blome again telephoned Shanley and an appointment was
arranged for January 11. On that day Shanley met with Blome and Ed Heisler,
another representative of the Union, but came to no agreement. As Blome
expressed it on the witness stand, "I informed Mr. Shanley that we are dead-
locked on all issues and it would be necessary to proceed along the line and
call in a labor conciliator, which he agreed to." On January 18, the same
parties met with a Conciliator of the United States Department of Labor
Nothing was accomplished at this conference with respect to the proposed con-
tract, or any of its terms, because Shanley announced that, upon advice of the
respondent's attorney, the respondent could not lawfully recognize the Union
as the exclusive representative of the employees for whom the Union sought
to bargain collectively for the reason that the Union had not been selected or
designated as such at the November 4 election. On January 24, the parties
again met with the Conciliator but again nothing was accomplished because
Shanley stated at the outset that the respondent would not recognize the Union
as the bargaining representative of the employees for the reason that the Union
had not been selected or designated as such by a majority of the employees in
the said unit at the November 4 election.
B. The respondent's contention as to the election
The respondent makes no issue as to its refusal to bargain collectively with
the Union, but claims justification therefor on the ground that the Union has
never been established as the statutory representative of its employees in an
appropriate unit Its position, as set forth in its letter of November 8 to the
Regional Director, and in its answer to the complaint herein, is in substance
as follows :
(1) The record shows that the eligibility list agreed on for the purposes
of the election of November 4 contains the names of 129 employees. Of
these, 119 appeared at the polls and voted. The Union received 59 votes,
which was less than a majority either of the total number of employees in
the appropriate unit, or of the total number of employees who appeared
and voted.
(2) The record shows that of the total votes cast, 58 votes were accepted
and certified as against the Union. Two votes were declared void. One
of these was unambiguously marked as against the Union. This vote
should have been accepted as valid and counted, in which event the election
would have resulted in a tie vote
A The grounds of the respondent's objection are hereinafter considered in the section
entitled, "The respondent's contention," p 5, infra
SEMI-STEEL CASTING COMPANY 725
(3) The Regional Director failed to give adequate instructions to the
employees with respect to the mechanics of voting, and restrained the
respondent from so doing, although knowing that many of the employees
were of foreign birth, unfamiliar with the English language and illiterate
(4) The Regional Director restrained the respondent "from talking to
the employees with a view of informing them and from expressing any
kind of opinion" without in any way exercising coercion, while permitting
such privileges to the Union.
(5) "The certification shows 129 employees entitled to vote but due to
illness and other unavoidable causes only 119 were present. It is an
error to certify and conclude that a majority of the employees favored the
proposal * * * without taking into consideration and according such
absentee employees it chance to vote."
C. Findings and conclusions as to the respondent 's contention
As hereinabove found, the election of November 4 was held pursuant to the
terms of an Agreement for Consent Election entered into by and between the
respondent and the Union, and providing, among other things, that "the deter-
initiation of the Regional Director shall be final and binding upon any question
(including questions as to the eligibility of voters) raised by either party
hereto relating in any manner to the election and not specifically covered in
this Agreement." In the absence of arbitrary or capricious rulings, the Board
considers itself "bound by the terms of [an] agreement providing for the
finality and binding effect of the Regional Director's determination to the
same extent as a court is bound by an agreement to abide by an arbitrator's
award," 9 and its position as thus stated has received judicial approval.'0 It
is not, therefore, the function of the undersigned to try de novo the objections
raised before the Regional Director and determined by him, but only to con-
sider in this connection what issues raised by the objections have been deter-
mined by the Regional Director and whether, in making his determinations,
lie has acted arbitrarily and capriciously.
No such showing is made by the respondent as to the Regional Director's
conduct in overruling the objection summarized in numbered paragraph (1)
above. The Agreement for Consent Election specifically provided that the
"election shall be held in accordance with the Act, the Rules and Regulations
and the customary procedures of the Board." Under Board practice, estab-
lished with judicial sanction, it is not necessary for a union to obtain the
votes of a majority of those eligible to vote as a prerequisite to certification
as the exclusive bargaining representative of the employees in an appropriate
unit." In a recent decision12 the Board says, (with respect to the contention
made by the respondent therein that "since less than a majority of eligible
employees participated in the run-off election, the certification issued by the
Board to the Union is invalid.") "We have consistently held that `majority'
9 See Matter of Capitol Greyhound Lines, 49 N L R B 156, 159, and cases cited in
footnote 6, ibid.
'O N. L R. B. v. Capitol Greyhound Lines, 140 F (2d) 543 (C C A. 6).
"See System Federation No 40 v. Virginian Railway, 300 U. S. 515; Marlin-Rockwell
Coop v N. L R. B, 116 F. (2d) 586 (C C. A. 2), cent denied 313 U S 594; N. L. R. B
v Whittier Mils Co, 111 F (2d) 474, 477 (C C. A. 5). See also Matter of The Cen-
tury Dispensary & Emergency Hospital, 46 N L R B 437, 438, and cases cited in foot-
note 3, ibid.
'- Matter of The Standard Lime & Stone Company, 56 N. L R B. 522 (decided May
17, 1944)
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
means a majority of those participating in the election, subject to the qualifica-
tion that the results of the balloting be representative."
This decision is further persuasive of the reasonableness of the Regional
Director's ruling that in determining whether the Union had received a major-
ity vote, the total of valid ballots cast, rather than the total of ballots cast,
determined the number of ballots necessary to a majority. The Board says:
The basis for this view [that'a `majority' means a majority of those partici-
pating] is that, as in political elections, the failure of eligible voters to vote
in elections held by the Board is construed as an assent to the choice of those
who exercise their franchise, and since the majority principle governs in Board
elections just as in political elections, the majority of those voting controls."
It is a matter of common knowledge that in political elections the issue is
determined by a majority of valid votes cast.
The respondent's objection to the result of the election as certified, on the
ground that the employees who failed to vote at the election by reason of
illness and other unavoidable causes should be accorded a chance to vote, is
implicitly rejected in the Regional Director's ruling that : "The Board has
repeatedly rejected the interpretation of Section 9 (a) of the Act which would
require a labor organization to obtain a majority of those eligible to vote as
a prerequisite to exclusive recognition and has held that Section 9 ( a) entitled
a labor organization to such recognition if it received a majority of the votes
cast at the election." [Citing: Matter of R. C. A. Manufacturing Company,
Inc., 2 N. L. R. B. 169.] The undersigned finds that the action of the Regional
Director in overruling this objection was not arbitrary or capricious, but on
the contrary was based on established procedures of the Board.
With respect to the respondent's contention that one of the ballots which
was voided by the agents of the Board should have been counted as an addi-
tional vote adverse to the Union, the facts are as follows : When George
Flemings, an employee eligible to vote, presented himself at the voting place,
he was handed a ballot by Marie Pierce, a Board Field Examiner and an
observer at the election as the representative of the Regional Director, and,
according to his testimony, which the undersigned credits, the following ensued:
She [Pierce] asked me, she insisted on could she help me, and I told her
no, that I thank her, I think I can make It [the ballot] out myself. She
said if I needed any assistance she would be glad to assist me or give me
a helping hand.
The ballot, which is in evidence, shows on its face the instructions, "MARK
AN 'X' IN THE SQUARE OF YOUR CHOICE" and "THIS IS A SECRET
BALLOT AND MUST NOT BE SIGNED." Instead of marking an X in the
square under "Yes" or "No", as the ballot directed, Flemings signed his name
near the square marked "No". It is the respondent's contention that Flemings
is unable to read, that by placing his name near the square marked "No" he
intended to vote against the Union, and that his ballot should be given effect.
The Regional Director ruled to the contrary. The Act and the Board 's Rules
and Regulations provide for the taking of a secret ballot. As the Board said
in a recent decision," "To permit the counting of ballots which, regardless
of the specific instructions appearing thereon, nevertheless are signed or contain
markings clearly identifying the voter, clearly would open the door to the
exertion of influence such as to prevent the exercise of the voters' free choice."
The respondent's contention that the Board' s agents did not properly instruct
the voters prior to their voting is refuted by the testimony of Its own witness,
'3 Matter of Burlington Mina Corporation , 56 N. L. R. B. 365.
SEMI-STEEL CASTING COMPANY 727
Tony Diguardi, the respondent's bookkeeper and its representative at the elec-
ton Regarding P.erce's instructions to prospective voters, Diguardi testified,
and the undersigned finds, as follows :
* * * as the voters came in she [Pierce] had them come up to the
table and asked them their name, and both Cliff Boylan [the Union's rep-
resentative] and I checked them off the list, and when we O. K.'d them
this Miss Reck [a Board agent] gave out the ballot and Miss Pierce kept
telling the voters as they came in, "Mark your ballots with an 'X' only ;"
on several occasions, I would say about three or four times, a man would
walk up and as the ballot was handed him he would stand there just as
if he didn't know what to do and she [Pierce] would say, "May I help
you, is there anything you don't understand?" and the man would just
stand there and stare and they would say "Yes". Well, then, she [Pierce]
would explain if you want the union to represent you, mark the X in the
box marked "Yes" and if you don't want the union to represent you, mark
your X In the box marked "No".
The Regional Director overruled the respondent's objection to the election
based on the claim of discriminatory restrictions placed upon the respondent
in respect to communicating to the employees its "opinion" on the issues of the
election, or "informing them." No showing of arbitrary and capricious conduct
on the part of the Regional Director in respect to this ruling was made at
the hearing. On the contrary, Connor Shanley, the respondent's secretary and
treasurer, testified and the undersigned finds, that a few days before the
election he held a meeting of the employees in the plant and there instructed
them as to the manner in which they should mark their ballots in order to
comply with instructions . Employee Ben Buza testified, and the undersigned
finds, that at this meeting Shanley held a sample ballot in his hand and told
the employees, "If you want to vote for the company-vote on this [side]-if
you want to put it for the union , put it on this side."
On the basis of the facts as hereinabove found, and of the whole record
herein , the undersigned finds and concludes that the conduct of the Regional
Director in overruling the respondent's objection to the election was not arbi-
trary and capricious, and that the result of the election as determined by the
said Regional Director is binding on the parties to the Consent Election Agree-
ment and on the Board.
D. The refusal to bargain collectively
1. The appropriate unit
The undersigned finds, in accordance with the Consent Election Agreement,
that all of the respondent's employees engaged in the production of castings,
excluding drivers, office and clerical employees, watchmen, contract laborers,
maintenance men, and supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise affect the status of employees, or effectively
recommend such action, constitute a unit appropriate for the purposes of
collective bargaining.
2. Representation by the Union of a majority in the appropriate unit
The undersigned further finds that at all times since November 4, 1943, the
Union has been the bargaining representative of a majority of the employees
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the aforesaid appropriate unit and that , pursuant to the provision of
Section 9 ( a) of the Act , the Union has been at all times since November 4,
1943 , and now is , the exclusive 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. Conclusions as to the refusal to bargain
On the basis of the facts stated and found above, the undersigned finds that
on January 18, 1944 , and at all times thereafter , the respondent has refused
to bargain collectively with the Union as the exclusive representative of its
employees within the appropriate unit, and that the respondent has thereby
interfered with, restrained , and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor
practices, it will be recommended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act. Since
it has been found that the respondent has refused to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate
unit, it will be recommended that the respondent upon request bargain collec-
tively with the Union.
Upon the basis of the above findings of fact and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Molders & Foundry Workers of North America, Local 59,
affiliated with the American Federation of Labor, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All employees engaged in the production of castings , excluding drivers,
office and clerical employees, watchmen, contract laborers, maintenance men,
and supervisory employees with authority to hire, promote, discharge, disci-
pline, or otherwise affect 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.
3. International Molders & Foundry Workers of North America, Local 59,
affiliated with the American Federation of Labor, was on January 18, 1944,
and at all times thereafter has been, the exclusive representative of all the
employees in the aforesaid unit for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
SEMI-STEEL CASTING COMPANY 729
4. By refusing on January 18, 1944, and at all times thereafter , to bargain
collectively with the International Molders & Foundry Workers of North
America, Local 59, affiliated with the American Federation of Labor, as the
exclusive representative of all its employees in the aforesaid appropriate unit,
the respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and
upon the entire record in the case, the undersigned recommends that the re-
spondent, Semi-Steel Castings Company, St. Louis, Missouri, and its officers,
agents and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Molders & Foundry
Workers of North America, Local 59, affiliated with the American Federation
of Labor, as the exclusive representative of all employees engaged in the pro-
duction of castings, excluding drivers, office and clerical employees, watchmen,
contract laborers, maintenance men, and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise affect the status of
employees, or effectively recommend such action ;
(b) Engaging in any like or related act or conduct interfering with, restrain-
ing, or coercing its employees in the exercise of the rights to self-organization,
to form, join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with International Molders & Foundry
Workers of North America, Local 59, affiliated with the American Federation
of Labor, as the exclusive representative of all employees engaged in the pro-
duction of castings, excluding drivers, office and clerical employees, watchmen,
contract laborers, maintenance men, and supervisory employees with authority
to hire, promote, discharge, discipline, or otherwise affect the status of
employees, or effectively recommend such action ;
(b) Post immediately in conspicuous places at its plant in St. Louis, Mis-
souri, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraphs 1 (a) and (b) of these recommendations; and (2) that
the respondent will take the affirmative action set forth in paragraph 2 (al
of these recommendations :
(c) Notify the Regional Director for the Fourteenth Region in writing,
within ten (10) days from the date of the receipt of this Intermediate Report,
what steps the respondent has taken to comply herewith.
730 DECISIONS Ol NATIONAL LABOR RELATIONS BOARD
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional
Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any
party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II of said Rules and Regulations, file with the Board, Rochambeau
Building, Washington, D. C., an original and four copies of a statement in
writing setting forth such exceptions to the Intermediate Report or to any
other part of the record or proceeding (including rulings upon all motions or
objections) as he relies upon, together with the original and four copies of
a brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same
shall serve a copy thereof upon each of the other parties and shall file a copy
with the 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.
HOWARD MYERS,
Trial Examiner.
Dated May 23, 1944.