The East Ohio Gas Co.

National Labor Relations Board - Board Decisions

Feb 15, 1963

140 N.L.R.B. 1269 (N.L.R.B. 1963)

THE EAST OHIO GAS COMPANY 1269
cumstances of this case, we do not feel that such minor participation
in the selling procedure suffices to make the news vendors employees
of the Employer.
The Board has stated, "The legislative history of the 1947 amend-
ments shows that Congress intended that the Board recognize as em-
ployees those who `work for wages or salaries under direct supervision,'
and as independent contractors, those who `undertake to do a job for
a price, decide how the work will be done, usually hire others to do
the work, and depend for their income not upon wages, but upon the
difference between what they pay for goods, materials, and labor and
what they receive for the end result, that is, upon profits.' 11 4 In bal-
ancing these criteria establishing independent contractors as opposed
to employees, we find that under the circumstances of this case, par-
ticularly since the news vendors are free to select their own locations
and are free to sell competing newspapers, the Employer does not
exercise sufficient control over the manner and means of the vendors'
operations to constitute the vendors employees of the Employer.5
[The Board dismissed the petition.]
4 Los Angeles Evening Herald and Express, etc., 102 NLRB 103
5 Hearst Consolidated Publications, Inc, et al., 83 NLRB 41 ; Los Angeles Evening
Herald and Express, etc, supra.
The East Ohio Gas Company and The Natural Gas Workers
Union Local 555, Building Service Employees' International
Union, AFL-CIO. Case No. 8-CA-2795. February 15, 1963
DECISION AND ORDER
On October 29, 1962, Trial Examiner James A. Shaw issued his
Intermediate Report, finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Intermediate Report. Thereafter, the Respondent filed ex-
ceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings 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 brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modification.
140 NLRB No. 140.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent contends that the decision in Dickey, formerly
d/b/a Ohio Hoist and Mfg. Co. v. N.L.R.B., 217 F. 2d 652 (C.A. 6),
should govern the instant case on the ground that the facts therein
are "substantially similar" to those in the instant case. We disagree.
The court in Dickey found that the respondent therein was not
obligated to bargain after the Blacksmiths, the duly elected bargain-
ing representative of the employees, merged with a numerically larger
international union, the Boilermakers, because the merger was effected
without a vote by the employees and the Blacksmiths lost control
of its own affairs when it was accorded only a small proportion of the
officer positions in the amalgamated union. In contrast to Dickey, it
is conceded by the Respondent in the instant case that the affiliation
of the independent Natural Gas Workers Union, herein called
NGWU, with the Building Service Employees' International Union
as a new local thereof was carried out through an election conducted
by NGWII. Both our dissenting colleague and the Respondent never-
theless take the position that the 701-to-509 vote for affiliation in effect
invalidated the election because less than half of NGWU's member-
ship voted, and because some 397 nonmembers were not eligible to
vote although in the unit. We find no support for this view as it is
a well-established principle that in the conduct of a democratic elec-
tion, where, as here, adequate opportunity to vote is provided to all
those 2,592 employees eligible to vote, the decision of the majority
actually voting is binding on all.' In any event, we find, in agreement
with the Trial Examiner, that after the affiliation the NGWU main-
tained its identity as a separate entity with the same membership,
officers, and committees. Accordingly, we conclude that Dickey is
inapplicable to the instant case.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.'
MEMBER RODGERS, dissenting :
I do not agree that Respondent violated Section 8 ( a) (5) of the
Act by refusing to recognize and bargain with Local 555 of the Build-
ing Service Employees' International Union, AFL-CIO. The issue,
as I see it, is not simply whether proper steps had been taken to
effect the affiliation of Natural Gas Workers with the International
which resulted in the chartering of Local 555; rather, the issue is
1 S IV Evans & Son, 75 NLRB 811; Cochran Co, Inc, 112 NLRB 1400, 1408-1409.
2 See Union Carbide and Carbon Corporation v N L.R B , 244 F 2d 672, wherein the
Court of Appeals for the Sixth Circuit held that its decision in Dickey was not con-
trolling because there were, after consolidation of two International union's, no changes
in the membership or officials of the local, which had been affiliated with one of the
Internationals, or in the local's day-to-day relationship with the company
'The Appendix is amended by deleting the words "60 days from the date hereof" in
the penultimate paragraph of said notice and inserting in its place the words "60 con-
secutive days from the date of posting .. . .
THE EAST OHIO GAS COMPANY 1 27 1
whether Respondent had good reason to believe that the newly
chartered 555 did not represent a majority of the Respondent's
employees.
First, it cannot be gainsaid that Local 555 is a different organization
from the independent Natural Gas Workers which had represented
Respondent's employees. While in many respects the structure of
Local 555 was the same as the independent union, it is clear that unlike
the latter, Local 555 was an affiliated organization, paid per capita
dues to its International, and was subject to the International's
constitution.
Secondly, it is quite apparent from the vote that affiliation with
the International was far from the overwhelming wish of the members
of the independent. In fact, of the 2,592 members eligible to vote, only
1,210-less than half the membership-voted on the question. And
of those who did vote, 509 voted against affiliation, while 701 of the
votes cast were for affiliation. Thus, in terms of the total membership
of the independent, only 27 percent of the members expressed them-
selves as favoring affiliation. Moreover, the record establishes that
there were some 397 employees who were in the unit and represented
by the independent but who were not members of that independent.
Because the affiliation vote was limited to the independent's member-
ship, these 397 employees were clearly denied an opportunity to express
their preference on the significant change that was being canvassed.
It certainly is arguable that the nonmembership of these 397 in and
of itself represents their repudiation of the independent to begin with;
but, in any case, when the 701 vote is measured against the total number
of employees in the unit-including both members and nonmembers-
then we have a bare 24 percent of the employees voting, for the vital
change of representation by an affiliated union in place of the
independent.
Under these circumstances, I think the Respondent had good reason
to doubt the majority status of the affiliated Local 555. For this
reason, I would not find that Respondent violated Section 8(a) (5)
in refusing to extend recognition to Local 555.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by the Natural Gas Workers Union,' on May 4 and June 13,
1962, herein called the Union, the General Counsel on June 19, 1962, issued a
complaint alleging that The East Ohio Gas Company, the Respondent herein, had
refused to bargain collectively with the Union since on or about May 4, 1962, as
the representative of its employees in the appropriate unit found below, and that
by such conduct engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act. In due course the Respondent filed its answer in
which it admitted that it refused to bargain with the Union "commencing on or
about May 4, 1962 . . . because the Union had announced to Respondent that
1 See infra in re change of name of Charging Party herein
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union had decided to affiliate with Building and Service Employees' Interna-
tional Union AFL-CIO," but by way of "avoidance" further denied in substance
that it had refused to bargain collectively with " .. . the representative of its
employees, and that it has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(5) ." or (1) of the Act.2 A hearing in
the matter was held before Trial Examiner James A. Shaw at Cleveland, Ohio, on
August 6 and 7, 1962.
At the onset of the hearing herein, the Utility Workers of America (AFL-CIO),
by its counsel, Bernard A. Berkman, of Day and Berkman, Cleveland, Ohio, filed a
motion to intervene ". for the reason that it claims to represent a substantial
number of the employees in the unit described in paragraph 6 of the complaint, and
as a consequence, has a vital interest in the outcome of this case " In support of its
position, it filed an affidavit and voluminous exhibits. The General Counsel ob-
jected to its motion to intervene. After careful consideration I denied the motion
for the following reasons: (1) The issues before me involved alleged violations of
the Act and was not a representation proceeding; and (2) an examination of the
exhibits proffered by the Utility Workers Union in support of its motion to intervene
consisted for the most part of documents in support of its contention that it repre-
sented a substantial number of the Respondent's employees involved herein, and
matters pending in an interunion dispute between it and the Building Service Em-
ployees' Union. In the circumstances I denied its motion to intervene .3
During the course of the hearing the General Counsel moved to ". . . amend
the complaint and all the formal documents to reflect the correct name of the
Union at this time " I granted his motion. The purport of the motion is found in
the caption herein where I have substituted "The Natural Gas Workers Union Local
555, Building Service Employees' International Union, AFL-CIO," for "The Natural
Gas Workers Union" as shown in the complaint.
At the close of the hearing all parties were advised of their rights to present oral
argument and/or file briefs with me. The General Counsel and counsel for Re-
spondent presented oral argument in support of their respective positions. On or
about September 10, 1962, briefs were received from counsel for the Respondent
and the Union They have been carefully considered by me.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, and the answer admits, that The East Ohio Gas Company
. is a public utility, with its principal office and place of business located in
Cleveland, Ohio, where it is engaged in the sale and distribution of natural gas
and gas appliances and the furnishing of related services"; in the course and conduct
of its business operations, Respondent annually does a gross volume of business
in excess of $250,000, and receives materials, products, and goods, including natural
gas, valued in excess of $50,000, directly from sources outside the State of Ohio.
Upon all of the foregoing, I find that the Respondent herein is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATIONS INVOLVED
Upon the record considered as a whole I find that the Natural Gas Workers Union
and Building Service Employees' International Union, AFL-CIO, are labor or-
ganizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The complaint alleges, the answer admits, and I find that the following em-
ployees of the Respondent constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 8 (b) of the Act-
All office, shop, and outside employees, but excluding all professional em-
ployees, confidential employees, administrative assistants, secretaries, employees
classified as senior, guards and supervisors as defined in the Act.
See infra for a more detailed discussion of the Respondent's position
3 The motion to intervene and documents in support thereof were placed in the record
and were marked as "Trial Exaniiner's Exhibits No. 1, at seq"
THE EAST OHIO GAS COMPANY 1273
B The alleged violations of Section 8(a)(5) and ( 1) of the Act
No proper understanding of the issues herein could be had without a brief history
of the relationship between the Respondent and the Natural Gas Workers Union.
The record shows that the Union was organized sometime in 1937. Since that time,
or over the years for a quarter of a century , it has represented the employees in the
above-found appropriate unit for the purposes of collective bargaining . Their rela-
tions were amicable and satisfactory to all concerned until sometime in 1958, dis-
cussed infra.4
Since its inception the Union has been an "independent" organization . Its prin-
cipal offices have always been in Cleveland , Ohio, and under its constitution the
membership is ". . . divided into districts , called locals , in order to provide geo-
graphical representation for the members ." 5 The record shows that there are nine
locals, as follows:
(1) Canton Local-Canton, Ohio
(2) North Canton Local-North Canton, Ohio
(3) Transmission Local-Flushing, Ohio
(4) Wooster Local-Dover, Ohio
(5) Akron Local-Akron, Ohio
(6) Youngstown Local-Youngstown, Ohio
(7) Warren Local-Warren, Ohio
(8) Lake Shore Local-Ashtabula, Ohio
(9) Cleveland Local-Cleveland, Ohio
Since the executive committee of the Union plays an important role in the events
we are concerned with herein , particularly as regards the "affiliation " issue, I feel
that it would be helpful to all to insert below the following pertinent excerpts from
the "Constitution of the Natural Gas Workers Union ," as effective "September 1958."
ARTICLE III
Executive Committee Organization
SECTION 1 . The membership shall be divided into districts , called Locals,
in order to provide geographical representation for the members. The Execu-
tive Committee shall be the governing body of the Union and shall have the
right to change the districts so that complete and fair representation shall al-
ways be maintained
SEC. 2. Each Local shall be entitled to a committeeman for each 100 mem-
bers or fraction thereof, located therein.
SEC. 3 The District Committeemen elected shall constitute the Executive
Committee . The Executive Committee shall elect from their own membership
a President, Vice-President , Secretary , Treasurer , and Sergeant -at-Arms at an
organization meeting of the Executive Committee , to be held not more than thirty
days following the regular annual election of the Committeemen.
SEC. 4. Special meetings of the Executive Committee may be called by
the President at any time for reasons by him deemed sufficient, or whenever
conditions may warrant it. The President shall call a special meeting of the
Executive Committee upon written application to him of seven district commit-
teemen The call of any special meetings shall state the purpose thereof and
no business shall be transacted except as set forth in the call.
SEC. 5. No committeeman or committeemen shall be entitled to vote in
the Executive Committee whose Local has not paid over to the Treasurer of
the Executive Committee the per capita tax and all the indebtedness of his Local.
SEC. 6. Voting on any question by the Executive Committee will be con-
ducted on the basis of a system of points as follows - Each Local will be entitled
to one point for each member who is paid up as of January 31st and July 31st
of each year, and the total points of such Local will be divided equally among
the Executive Committeemen for such Local . For example , a Local having
150 paid up members would have two Executive Committeemen and each
would be entitled to vote 75 points The Treasurer of the Executive Committee
in February and August each year will notify the Treasurer of each Local as
to the number of points which the Executive Committeemen from such Local
will be entitled to vote during each determination period.
* See Infra for President Nagle's letter to the members of the Union dated May 1962
General Counsel ' s Exhibit No 5
6 See General Counsel's Exhibit No 3
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above the importance of the foregoing excerpt will be apparent below
in the section of this report that deals with the action of the executive committee at
its regular meeting on April 11, 1962.
We now come to what I consider the most important issue herein . He has reference
to the affiliation of the Natural Gas Workers Union with the Building Service
Employees' Union, AFL-CIO, and its effect upon the relations between the Union
and the Respondent
As indicated above the parties herein enjoyed amicable relations for almost a
quarter of a century before the affiliation issue arose. The question of affiliation
became of importance sometime in 1958. I predicate my finding in this regard upon
the credible testimony of John Nagle who, at all times material herein, was president
of the Natural Gas Workers Union, and as expressed by him in a letter which he
sent to the employees shortly before the vote on affiliation was to be taken on May 18,
1962. In that letter he pointed out to the membership the difficulties the executive
committee of the Union had been faced with in its negotiations with the Respondent
since sometime in 1958 when it retained a ". . . professional labor negotiator." Since
the letter itself is a part of the record herein,6 I feel that the following excerpt would
be beneficial to all concerned, primarily because it sums up the reasons for the action
of the executive committee that led up to the issues we are faced with herein.
FELLOW MEMBERS: Next Friday you will vote on the recommendation of
your officers that the Natural Gas Workers Union affiliate with the Building
Service Employees International Union, AFL-CIO.
There has been an obvious effort within and without the East Ohio Gas Com-
pany to throw confusion and doubt into your decision. I feel compelled to give
you in this message before the election, a full explanation of the background
and all facts relating to our recommendation for affiliation I hope you will
read it carefully and that it will dispel any confusion or misinformation that
might affect your vote.
Contrary to the company's letter, our Union will remain just as it is. The
constitution and by-laws of the Natural Gas Workers Union will remain in effect
until and unless the membership changes them. Relationship of the locals to
NGWU will continue as it is. You will continue to elect your own officers. Our
Union will be exactly the same except we will have the added strength, the im-
proved bargaining tools gained by affiliation
Prior to 1958, the relationship between the company and the Union was
entirely different than it is today. We dealt with officers of the Company-most
of whom had grown up in its service-who knew the gas business and knew
our problems. In 1958 they brought in a professional labor negotiator. Since
then, our dealings with the company have not been the same. A more rigid
attitude prevails. Before 1958, the Union never had to take a grievance to
arbitration Since then, we have been forced to arbitrate four cases We have
had more grievances since 1958 than in the entire prior history of our Union
Contract negotiations have become battles of statistics with the Company
well armed with facts and figures provided by the American Gas Association
and the Associated Industries.
The Union has been forced into attempting to meet and refute these statistics
with facts and figures of its own. We find we need broad information that only
a top research department can give us.
Obviously, a Union of 2,600 members cannot afford to maintain a full-time
research department staffed with skilled researchers, clerks and typists to prepare
briefs and draftsmen to produce charts and graphs. Only a laree International
pooling the modest contribution of hundreds of thousands of members can
undertake such an operation.
In this chanPed atmosphere and in the face of these new needs , your officers
saw the necessity of affiliation with an International Union We appointed an
Affiliation Committee to investigate the various International Unions having
membership in the gas industry.
That the membership of the Union had foreseen the possibility that affiliation with
a larger labor organization might to be its best interests sometime in the future is
found in article XIII of its constitution, as effective September 1958, which is set
forth below -
ARTICLE XIII
Affiliation of the Natural Gas Workers Union with any other union or
organization must be approved by the Executive Committee by an affirmative
6 See General Counsel's Exhibit No. 5
THE EAST OHIO GAS COMPANY 1275
vote of three-fourths of the points voted, and ratified by a majority vote of the
ballots cast by the members at a Local meeting. [As to points see section 6 of
constitution.]
Before we get into the activities of the executive committee of the Union that led
up to the vote on affiliation, I feel that we should insert herein at this point the
following stipulation of the parties regarding the number of employees in the unit
and other pertinent facts:
The parties stipulate that on May 4, 1962, there were 2,989 employees
employed by the Company in the bargaining unit described in paragraph 6 of
the Complaint and, further that on May 4, 1962, there were 2,592 members of
the Natural Gas Workers Union in the employ of the Company who on that
date were having their dues to said union checked off by payroll deduction
authorization.
According to the record, the contracts between the parties herein over the years
have been for at least 1-year duration with the provision that May 31 was the "key
date," so to speak. For example, the contract that we are concerned with herein was
signed by the parties on August 25, 1960, and was to be ". . . in effect until and
including May 31, 1962, and for renewal periods of one (1) year thereafter, unless
it is canceled by either party as of May 31, 1962, or any May 31st thereafter, by
giving notice in writing at least sixty (60) days prior to the termination date of
May 31, 1962, or any annual termination date thereafter." 7 The pertinence of this
observation will be apparent below in my summation of the events that led up to
the vote by the membership of the Natural Gas Workers Union concerning affilia-
tion with the Building Service Employees' Union AFL-CIO, on May 18, 1962.
Under the constitution of the Natural Gas Workers Union the president of the
Union may call a meeting of the executive committee at any time to consider prob-
lems that he deems of importance to the entire membership. For reasons which
have been set forth hereinabove in the excerpt from Nagle's letter to the employees
sometime in May 1962, and at the request of many of the locals, he called a meeting
of the committee in Anril 1961 for the purpose of discussing affiliation with a larger
labor organization. The unshot of this meeting was that he, as president of the
Union, appointed an affiliation committee to meet with several International unions
and to submit a report with their findings and recommendations in 1 year, or in
April 1962, to the executive committee.
At the meeting of the executive committee in April 1962, the affiliation committee,
through its chairman. Charles Voelker, submitted its report. The gist of its report
was that after considering the constitutional and internal organization of several
international unions they had reached the conclusion that the Building Service
Employees' Union, AFL-CIO, was the " best union suitable for the Natural
Gas Workers Union." 8 After considerable discussion the executive committee
voted on the question of affiliation. What transpired at the meeting in this regard
is set forth below in the following excerpt from Nagle's uncontradicted and undenied
testimony which is fully credited by me
Q. Now, after you appointed this committee in April of 1961, when was it
that the committee submitted its report and recommendation to the executive
committee?
A As outlined in our constitution there is two executive committee meetings
a year In April of 1962. under the order of standing committee a report was
made by Mr. Charles Voelker the chairman of the affiliation committee to
Hive his renort on internationals that they checked with and he made a report
on our unions, and the suggestion was made that Building Service Emnlovees
International Union was the best union suitable for the National Gas Workers
Union
O Were any reasons stated as to why this union was selected?
Mr TRrrscs-1T.ER: I will object.
TRTAT. Ex&MTNER• Well, I will admit it due to what hannened this morning.
You have your exception. I'm going to overrule it. Technically you are cor-
rect no nuestion about it
Go ahead, answer the question.
A There were Several reasons where the committee checked the Building
'-ervice F.mnlovees Tnternational Union No 1 was the autonomy Marv of the
International unions-the executive committee of these international unions had
"!mutes from artielo XXTTT of the a^reement between the parties that we are eon-
eernod with herein See General ('ounwel's Exhibit No 2
8 Quotes from Nagle's credible te$tlmonv
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the right to sanction contracts , to come in and negotiate contracts . Other rea-
sons was the very good and large research department of the Building Em-
ployees International Union had , which we felt that we needed , and their staff
officers and other officers that we met we felt that they could do us a very
good job also . That they represented several of the other large gas workers
in this area surrounding Ohio.
TRIAL EXAMINER : All right.
Q. Do you remember the approximate date of that meeting , Mr. Nagle?
A. The joint conference was held on April 11, 1962.
Q. Now, after Mr. Voelker made his report and recomendation what next
transpired at this meeting regarding affiliation?
A. Under the order of new business a motion was made, seconded, con-
siderable amount of time was spent on questioning, it was made by Mr. William
Moran, it was voted on , the vote was carried by over three-fourths of the points
voted outlined in our constitution for the order of affiliation.
Q. Now, did the union inform the company of this action by the executive
committee?
A. Yes, sir; we informed the company.
Q. When?
A. On April the 23rd we informed the company of this action
What transpired after the above-mentioned meeting of the executive committee
of the Union will be discussed in detail below . Suffice it to say at this stage of the
report that prior to the meeting referred to above the Union had notified the
Respondent by letter dated March 19, 1962 , that it desired to cancel the agreement
between the parties , in accordance with article XXIII thereof , and to start nego-
tiation for a new contract to become effective after May 31, 1962 , the expiration
date of the agreement in question . The Respondent replied to the Union's letter
on March 21 , 1962, and advised that " . . we are prepared to commence negotia-
tions with the Union's wage and grievance committee on the new terms of a mutually
satisfactory agreement on Monday, April 16, 1962, at 10 a.m ., in room 345 at the
Statler-Hilton Hotel , Cleveland , Ohio." 9
As indicated above the parties met on April 16, 1962. According to Nagle about
all that was accomplished at this meeting was the presentation of demands by the
parties for changes in the contract . Insofar as the issues herein are concerned nothing
of consequence occurred . At the close of the meeting the parties agreed to meet
again on April 23, 1962 . The importance of this date will be apparent below
On Monday morning , April 23, 1962 , the Utility Workers of America, AFL-CIO.
passed out a "handbill" to the employees of the Respondent in Cleveland. Ohio,
that contained , inter alia , information relative to the executive committee 's decision
on April 11, 1962, to affiliate with the Building Service Employees Union . According
to the record, it was from this "handbill" that officials of the Respondent herein
first learned of the executive committee 's action in this regard . It was in the light
of this incident that the parties herein met for their second discussion regarding
a new contract on the afternoon of April 23, 1962.
According to the record , the most important matter discussed at the meeting on
April 23, 1962 , was the action of the executive committee in voting for affiliation
with the Building Service Employees' Union According to Nagle , the representatives
of the Company who were at the meeting were considerably perturbed by the execu-
tive committee 's action in voting for affiliation His version of what transpired at
the meeting in this regard is found in the following excerpt from his testimony:
. . Mr. Roadley mentioned that due to the fact that we had voted
we had voted by the executive committee to affiliate . that this was great
concern to management and that he would have to look on this matter in an
entirely different wav than he did in the previous meetings , and lie would have
to have a check with the top management of the East Ohio Gas Company.
f Emphasis supplied. ]
Roadley was assured by William H. Corrigan . Esq., counsel for the Union, who
was present at the meeting, that " . the same officers would be running the Union:
it would be the same Union There would be no changes in the negotiating com-
mittee and this would be the same Union."
Very little was accomplished by the parties at the meeting on April 23, 1962. as
to contract negotiations , primarily because of the injection of the question concerning
the action of the executive committee in voting for affiliation on April 11, 1962.
e Quotes from Respondent 's Exhibit No 5, which is a letter to Nagle from David T
Roadley , employee relations director.
THE EAST OHIO GAS COMPANY 1277
Though the parties met three or four times after April 23 , 1962, to discuss the terms
of a new contract , nothing of importance was accomplished . This brings us up to the
meeting of May 4 , 1962, which I consider most important insofar as the issues herein
are concerned.
According to the credible testimony of Nagle, Roadley, the Respondent 's chief
negotiator , at the onset of the meeting on May 4, 1962 , handed the following
letter to the representatives of the Union:
THE EAST OHIO GAS COMPANY
East Ninth at Superior, Cleveland 14, Ohio
To All Employees Represented by the Natural Gas Workers Union:
Contract negotiations begun April 16 with the Natural Gas Workers Union
were recessed today by management.
We regret that this action was necessary. It was taken only after serious
and careful consideration.
This week at one of the negotiating sessions management's negotiating
committee was told that affiliation with another union had been authorized
by the Union's Executive Committee and would soon be submitted to the
membership for ratification. A third union has also entered the picture.
The action of the Executive Committee of the Natural Gas Workers Union
placed us in a position of not knowing who represents our employees. Further,
we do not know whether the contract we have been negotiating will be with
the Natural Gas Workers Union, with some other union, or whether contract
negotiations may have to start over again from the beginning.
We therefore are recessing negotiations until the union desired by the majority
of our employees is determined. This may involve a National Labor Relations
Board election and certification. When this decision is made we will be glad
to resume negotiations immediately.
Sincerely,
R. W. RAMSDELL.
Insofar as contract negotiations are concerned, this was the last meeting between
the parties involved herein.
As an aftermath of the May 4, 1962, meeting, two important incidents occurred
on the same date. Insofar as the issues herein are concerned the most important was
the filing of the original charge by the Union. The second was the filing of an RM
petition by the Respondent herein, which was denied by the Regional Director for the
Eighth Region, Cleveland, Ohio, on May 17, 1962.10
As indicated above the vote on the question of affi liation was to be held on May 18,
1962. According to Nagle the members of the Union were furnished information
regarding ". . . articles sent out by the Executive Committee of the Natural Gas
Workers Union, also a letter by the International was sent out, postal cards were sent
out advising them of this meeting."" As I interpret the phrase "meeting," Nagle
had reference to the meeting of the members of the various locals of the Union to
vote on the question of affiliation at the places designated in a circular which he mailed
to them about a week before the the election.12 The importance of this letter insofar
as the issues herein are concerned is that it conveyed to the membership the primary
reasons for the action of the executive committee to vote in favor of affiliation with
the Building Service Employees' International Union, AFL-CIO, at its meeting on
April 11, 1962. For that reason I feel that this portion of the letter in question
should likewise be inserted herein Another reason is that it goes to the contention
of the General Counsel that the members of the Union were well aware of the issues
at stake prior to and at the time of the election.
For more than a year, your Affiliation Committee has studied or met with
representatives of various organizations which either sought or welcomed our
affiliation. The Committee and your officers made careful comparisons of the
benefits, the cost and the effect of each possible affiliation.
One organization charges $2 monthly per capita which would involve our
raising our dues substantially or reducing operation of our own Union to minor
grievance handling.
10 See infra in re a second RM petition filed by the Respondent.
n Quotes from Nagle's credible testimony.
12 See supra in re a portion of this letter
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Another, charging $1 per capita, takes over all contract negotiations at the
national level, leaving our Union with little more than advisory capacity in our
own contract.
It would require pages to relate details of all the studies and discussions. It
became the final conclusion and recommendation of your officers that we affiliate
with the Building Service Employees International Union, AFL-CIO for these
principal reasons:
1. Building Service maintains our right to operate our own Union, establish
our own bargaining goals, conduct our own negotiations with their assistance
if we ask it but without interference and retain full control of our own funds.
2. Building Service is in high standing in the AFL-CIO and affiliation with
it brings us into the mainstream of American labor and affords us the support
of its 15,000,000 membership in our legislative and economic programs. We
will be able to participate in the local and State AFL-CIO bodies and make our
voices heard about legislation in the public utility field.
3. Building Service has an outstanding research department capable of giving
us the national data and statistics we need as tools at the bargaining table and
in arbitration proceedings. It has full-time legislative representation in Wash-
ington and potent legislative connections in Ohio.
4. Building Service per capita is 70 cents per month, within our means at our
present dues, and affords the additional benefit of a death gratuity which pays
up to $500 to the beneficiaries of deceased members.
It was on the basis of our understanding of the needs of our Union and on
the basis of our best judgment of how these needs could be most fully met that
we submitted the recommendation for affiliation on which you will vote at your
local meeting May 18.
Attendance of Local Union meetings of the Natural Gas Workers Union is
generally above the average of other Unions but there remain a number of
members who do not regularly attend. Some of these have told us they have
confidence that their officers, who are their fellow employees, will only present
matters beneficial to the Union and its members.
We appreciate this confidence. But the meeting of May 18 is of vital im-
portance to each individual member. We have made a recommendation which
we believe is to your benefit. We need more than your confidence. We want
your support and your vote for affiliation.
Sincerely yours,
JOHN D. NACLa, President.
The vote on affiliation went off as scheduled. The result of the election is found
below in General Counsel's Exhibit No. 7, the contents of which were stipulated by
the parties at the hearing herein.
Affiliation Vote-May 18, 1962
For Against
Akron-------------------------------------------- 122 46
Canton-------------------------------------------. 57 64
Cleveland----------------------------------------- 340 200
Lake Shore---------------------------------------- 31 31
North Canton-------------------------------------- 42 47
Warren------------------------------------------- 35 10
Wooster------------------------------------------- 24 8
Youngstown--------------------------------------- 45 81
Transmission 13------------------------------------- 5 22
Total--------------------------------------- 701 509
A summation of the foregoing shows that of the total of 1,210 members of the
Union who voted in the election, 701 were for and 509 were against affiliation.
Since one of the major defenses of the Respondent to the issues herein is predicated
upon the lightness of the vote cast on the affiliation question, I feel that at this point
we should take a look at the record in this regard. The record shows that at the
Is As I interpret the record, the "Transmission" Local was actually located in Cadiz.
Ohio, but the notice of election shows that its members were to vote at the city hall in
Flushing, Ohio Since Flushing is only a few miles southwest of Cadiz I am convinced
that the voting was conducted there because it was convenient to the membership In
any event this was a matter for the executive committee to handle and was an internal
affair of the Union. Consequently, I see no need for further comment in this regard
THE EAST OHIO GAS COMPANY 1279
time of the election on May 18, 1962, there were 2,590 members of the Union, whose
dues were deducted from their paychecks each month under the terms of the contract
which expired May 31, 1962. Consequently, since there were 1,210 votes cast in the
election, then only 47 percent of the membership chose to exercise their rights in
this regard. Since I will dispose of this issue below, I deem further comment in
this regard unnecessary at this stage of the report Suffice it to say that insofar as
this record is concerned the lightness of the vote has been of little concern to the
membership of the Union as a whole, since only 10 of its members have expressed
their feelings in this regard by resigning from the Union.
That the Respondent was greatly perturbed by the prospect of the membership of
the Union voting for affiliation with the Building Service Employees' International
Union, AFL-CIO, has been discussed above, particularly as regards what Roadley
said at the meetings between the parties on April 23 and May 4, 1962 Further evi-
dence of its concern is found in a letter that was sent to the employees of the Re-
spondent after the election by its president, R. W. Ramsdell, on May 23, 1962, which
in effect sums up its position as regards one of the major issues herein. Consequently
it is inserted below:
THE EAST Onto GAS COMPANY
East Ninth at Superior, Cleveland 14, Ohio
MAY 23, 1962.
To All East Ohio Employees:
In balloting last Friday, Natural Gas Workers Union members voted on the
question of affiliation with the Building Service Employees' Union. The result
of the voting, as reported by the newspapers, was "2 to 1" in favor of affiliation
with "52%" of the union members voting. The result of the voting as reported
to us, was about 700 for affiliation and about 500 opposed. This means that
less than 50 per cent of the union members voted with less than a 27 per cent of
union members voting for affiliation.
It has been and will continue to be our policy to recognize and deal with
the bargaining agent chosen by a majority of our employees. Since a 27 per
cent vote for affiliation is far less than a majority we cannot now accept the
Building Service Employees' Union as the bargaining representative for our
employees. In view of this, we cannot now resume negotiations.
The company recently filed a petition with the National Labor Relations
Board requesting a representation election. However, the National Labor
Relations Board dismissed our request because it was filed before the May 31
expiration date of our contract with the Natural Gas Workers Union. We are
permitted to refile this petition after May 31, which we intend to do, hoping
to secure a quick settlement of the representation question through the Labor
Board.
Although our contract with the Natural Gas Workers Union will soon ex-
pire, we will continue in effect the wages, hours, and employee benefits until
the question of representation is decided.
Sincerely,
R. W. RAMSDELL.
As indicated above there were no contract discussions between the parties after
May 4, 1962. However, the record does show that they did meet on three or four
occasions thereafter to discuss matters that were of importance to all concerned,
such as certain portions of the contract that would still be in effect after the ex-
piration date on May 31, 1962
One of the major contentions of the Respondent herein is that it was under no
duty to bargain with Natural Gas Workers Union after its affiliation with the Build-
ing Service Employees ' Union , for the reason that the "union " it had bargained with
for years had ceased to exist, and was, as its counsel put it at the hearing herein, a
"dead duck." On the other hand the General Counsel contends that other than
a change in name there have been no changes in the structure of the "union" since
its affiliation with the Building Service Employees' International Union , AFL-CIO.
In support of his contention that administratively the "union" is still the same, he
offered the credible testimony of Nagle, who testified as follows in this regard:
Q. Now, does the Natural Gas Workers Union have the identical officers
and offices that it had prior to affiliation?
A. That is correct, sir; yes, sir.
Q In regard to the composition of the executive committee , has it been
changed in any manner by virtue of the affiliation?
A. No, sir.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. In regard to the negotiation or grievance committees , both on the na-
tional level so to speak and the 9 locals , have they been changed in any manner?
A. No, sir.
Q. Has the manner or ,mode of collecting dues from members been changed
in any manner by virtue of the affiliation?
A. Yes, sir.
Q. In what manner?
A. Well, after our meeting originally with management , approximately the
29th of May, the question of collecting dues came up and management said that
on this dues question they would have to check into a few things . On the 13th
of June, 1962 , the union was advised that there would be no more checkoffs
of dues by the East Ohio Gas Company to the Natural Gas Workers Union.
TRIAL EXAMINER : Pardon me again for interrupting . That was in your con-
tract that expired.
The WITNESS : That is correct, sir.
TRIAL EXAMINER : That provision was in there?
The WITNESS : Yes, sir
TRIAL EXAMINER : And the notice of the company came after the expiration
date of the contract?
The WITNESS : That is correct, sir.
TRIAL EXAMINER : So we are clear as we go along.
Q. So, Mr Nagle , did-the change in the manner and the mode of collecting dues
come about by virtue of affiliation or by virtue of the expiration of the contract?
A. By virtue of the expiration of the contract.
As indicated in the above excerpt the last month that the Respondent checked
off dues was for the month of May 1962.
Another contention of the Respondent 's is that by affiliating with the Building
Service Employees ' International Union, the "Union ," that is the Natural Gas Work-
ers Union , was to all intents and purposes literally "swallowed up," so to speak, by
a larger union that has around 300,000 members . Since counsel 's contention in this
regard was well stated at the hearing herein, I feel that it should be inserted herein;
consequently , it follows below.
Q. (By Mr TRITSCHLER .) Mr. Nagle, do you know how many members there
,are in the Building Service Employees ' International Union?
Mr. RoSENBLOOM : Objection
TRIAL EXAMINER : I will sustain it. I don 't see where this has any materiality.
Mr. TRITSCHLER : I will show it is quite pertinent.
Mr ROSENBLOOM : It is pertinent , the figures are available through the De-
partment of Labor. It is published every morning.
Mr. TRITSCHLER : Do you want me to argue the matter?
TRIAL EXAMINER: Yes.
Mr. TRITSCHILER : I think the pertinence of it is very important . As a matter
of fact, I believe there was a letter from the General President of the Interna-
tional Union to the new members, from the Natural Gas Workers Union that
states-going further with this point , if I may, and the facts are already in the
record that this Union has about 2600 members in the Building Service Em-
ployees' International Union, from the statements made in the letter which I
have handed to you, Mr. Shaw , states that the Building Service Employees' In-
ternational Union has over 300,000 members.
Now, the governing document , of course , which Mr. Nagle agrees binds The
Natural Gas Workers Union, is the constitution and the bylaws of the Inter-
national, which are in evidence as Respondent 's Exhibit No 1 and according
to this document , the delegates to the convention are the governing body of
the organization , and delegates to these conventions are elected by the locals,
and each Local has certain representatives who elect delegates to this convention.
We would like to kind of show how little influence the Natural Gas Workers
Union is going to have with respect to the way these conventions are going
to be run , because they will probably have, from my calculations , five or six
out of a number of each 600, because their constitution states there shall be one
delegate for each 500 members or less, and I delegate for every additional 500
members.
Though I rejected the evidence that counsel offered in support of his contention
in this regard on the grounds of materiality to the issues herein, nevertheless he feels
that the foregoing well states the Respondent 's attitude toward the affiliation of the
"union" with the Building Service Employees ' International Union, AFL-CIO.
THE EAST OHIO GAS COMPANY 1281
Why the Respondent should be concerned about the internal affairs of the "union"
involved herein is a matter that will be disposed of below.
On June 1, 1962, the Respondent filed another RM petition with the Board's
Regional Office in Cleveland, Ohio, Case No. 8-RM-294. On or about June 19,
1962, it was denied by the Regional Director for the Eighth Region on the grounds
that the complaint herein had been issued.
Though negotiations between the parties ceased on May 4, 1962, the parties herein
did meet to discuss certain matters that were in effect under the contract that was
to expire on May 31, 1962. As I see it, one of the most important was that pertain-
ing to employee benefits and union dues deduction. At a meeting on May 29,
1962, the parties reached a "tentative" agreement as regards employee benefits and
certain other matters. On the same date, R. W. Ramsdell, the Respondent's presi-
dent, sent the following letter to the employees in the unit we are concerned with
herein.
THE EAST OHIO GAS COMPANY
East Ninth at Superior, Cleveland 14, Ohio
MAY 29, 1962.
To All East Ohio Employees:
Today, at the request of the Wage & Grievance Committee, as provided in
the current working agreement, management representatives met with them to
discuss matters which would be of concern upon the expiration of the working
agreement on May 31, 1962.
We expressed our wish to continue normal operations throughout the com-
pany after midnight May 31 and assured the Committee that this would be
done. The Committee then informed us that no work stoppage was
contemplated
Company representatives then stated that until further notice all employee
benefits, as well as wages, hours and working conditions provided for in the
current agreement, will be continued in effect after the agreement's expiration,
with the following exceptions:
1 Individual employee grievances will be processed under the established
procedure, except for arbitration.
2 Relationships with union representatives as covered by Article IV
of the agreement will not be continued after May 31. Requests of indi-
^idiuals of the type provided for under this article will be considered on
an individual basis.
3. Since there is a doubt as to the legality of the presently filed authori-
zations for Union dues deduction, no decision will be made regarding this
until the latter part of June when deductions are ordinarily withheld
We told the committee we would promptly file a petition with the National
Labor Relations Board for a determination of the proper collective bargaining
representative. It is our sincere hope that the Board's determination will be
made promptly so that we can resume orderly collective bargaining at the
earliest possible date.
Sincerely,
R. W. RAMSDELL.
Conclusion
After long and careful consideration of the record herein, and the briefs and argu-
ments of the parties involved, I am convinced that in the final analysis there is but
one important issue herein, to wit, did the Respondent engage in conduct violative of
Section 8 ( a)(5) nad (1) of the Act by refusing to bargain with the Natural Gas
Workers Union on May 4, 1962 , and thereafter, because its executive committee
had voted to affiliate with the Building Service Employees International Union,
AFL-CIO? In my opinion it did. My reasoning in this regard will be discussed
below.
Let us first consider certain factual situations concerning which there is no dispute
between the parties involved herein. For example, the record shows that the
Natural Gas Workers Union and the Respondent have had contractual relations
for at least a "quarter of a century" before the issues herein arose . Unquest"anably,
the Respondent was well aware of the internal structure of the Union , such as the
location of its nine locals , the administrative "set-up" thereof such as the executive
committee , and the duties of its elected officials I am also concerned that the
Respondent was familiar with the "Constitution and By-Laws" of the Union not only
at times material herein, but had been for years , and in particular article XIII
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof that specifically set forth certain procedures in the event that the membership
of the Union at some time might decide to affiliate with another labor organization.14
Consequently he feels that the eventual exercise of the constitutional provision by the
Union's executive committee concerning affiliation was not as complete a surprise
to the Respondent as its counsel indicates in his brief. Assuming that the Re-
spondent was unaware of either the constitutional provision as regards affiliation or
the discussions between the Union and certain international unions as regards the
question of affiliation, then the question arises of what concern was it to the Re-
spondent, since it obviously was strictly an "internal union" matter? In my opinion.
the question of affiliation was strictly an internal union matter and of no concern
of the Respondent. To find otherwise would, to me at least, be indicative of inter-
ference with and domination of the internal affairs of a labor organization that
borders on the activities prohibited by Section 8(a)(2) of the Act. Though I
recognize the fact that the Respondent will be obliged to negotiate and bargain
with a larger and better staffed organization than the "Union" by virtue of the
affiliation, nevertheless I am convinced that this issue is likewise beside the point, so
to speak, for the simple reason that the employees of the Union chose to affiliate
with the Building Service Employees' International Union, AFL-CIO, in accordance
with specific language of its constitution and bylaws. Moreover, though it is now
and has been since May 23, 1962, an affiliate of the larger organization, it still re-
tains its identity, as a labor organization, "Natural Gas Workers Union, Local Union
No. 555 of the Building Service Employees' International Union." 15 In addition
the Union still is the same administratively regardless of its affiliation insofar as its
executive committee and other administrative officials are concerned, and in its day-
to-day relations with its members and the public in general.
Insofar as I am concerned, one of the most disturbing reasons advanced by the
Respondent as a defense to its refusal to bargain with the Union after it was
informed of the action of the executive committee on the affiliation issue is its
contention that since only approximately 27 percent of the membership of the Union
voted for affiliation in the election on May 18, 1962, it was under no obligation legal
or otherwise to bargain collectively with the Building Service Employees' International
Union, AFL-CIO, because it was not selected by a majority of its employees in
the appropriate unit. To be sure the tally of the ballots sustains the Respondent's
contention concerning not only the lightness of the vote, but the narrow margin by
which the action of the executive committee to affiliate with the International was
approved by the membership, 701 to 509. At first blush this factor might be deemed
of considerable importance by some, but not to me for the following reasons In the
first place the record herein already shows that the members of the Union were
kept fully informed regarding the coming election from the time the executive
committee voted to affiliate with the International, right up to the date thereof,
May 18, 1962, by means of letters and other literature, not only by the Union,
through President Nagle, but by the Respondent as well, through letters from
no less a personage than its president, R. W. Ramsdell. In such circumstances, I
am convinced and find that the apathy of the members of the Union in failing
to exercise their right to vote is no defense to the Respondent's refusal to bargain.
The Board has had this question before it on numerous occasions in the past.
For example, in a case that is in many respects similar to the situation we are
concerned with herein, Waterway Terminals Corporation, 120 NLRB 1788, the
Board found, inter alia, as follows:
Local 207, an amalgamated Local, had been considering a change of affilia-
tion for several months and, with the consent of ILWU, Local 207 changed
its affiliation to UPWA and its local number to 591. The testimony reveals that
the action taken by Local 207 was not schismatic, but that the assignment to
Local 591, UPWA, on November 4, 1957, was a complete transfer of its
collective-bargaining contracts, "including obligations and benefits in, under,
and to," and ",all the rights in and to the check off dues of members of the
units involved herein.. ." The current officers of Local 207 became the
officers of Local 591. According to the local president, Local 207 went out of
existence when the "merger" was completed.
The Petitioner contends that the meeting at which the disaffiliation action
was taken was not called by sending a notice to each member and advising
them of the purpose of the meeting as required by the bylaws. The record reveals
that notice of the special membership meeting was posted at the various opera-
tions and stated that its purpose was to meet with officials of ILWU and
14 See supra for complete text of article XIII.
15 See Respondent's Exhibit No 3.
THE EAST OHIO GAS COMPANY 1283
UPWA. The Employer testified that only 12 of its approximately 70 employees
were present at this meeting, and that several of its employees have requested
cancellation of dues checkoff authorizations.
The Board has held that in representation proceedings whether or not the
membership meeting is called in conformity with the Union's constitutional
requirements or whether or not the assignment of contracts or assets are
proper, is no concern of the Board. Accordingly, we find no merit to this
contention. Local 591, UPWA, which has the same officers as were elected in
Local 207, ILWU, has succeeded to the previously existing status of Local 207,
ILWU, as the bargaining representative of the Petitioner's employees. The
record here shows that the affiliation with UPWA has had no effect upon the
structure, functions, or membership of the Local Union. The only change in the
status of the Local Union appears to be one of designation and affiliation.
When the foregoing is considered in the light of the facts herein, I am convinced
that the Respondent's contentions concerning the lightness of the vote is without
merit and I so find.
As I see it what we are primarily concerned with herein is an internal union
problem insofar as affiliation of the Union and the International are concerned
Whether the employees acted wisely or otherwise in affiliating with the International
is no concern of either the Board or the Respondent. This is a problem for the
"employees" themselves to resolve. If it should dawn upon them in the future
that they acted unwisely in affiliating with the International, they still have a remedy
as "employees" to correct it by use of the Board's processes.
Though the apathy of the membership of the Union is deplorable, insofar as the
vote on affiliation is concerned, it is not a rarity in our society, as is evidenced in many
of our political elections both on the national and State level from the office of the
Presidency to a township trustee.16
In the final analysis the important factor is the right to vote and the opportunity
to exercise that right without intimidation from any source. Such was the case herein.
In the circumstances, I reject the Respondent's contention in this regard.
Now as to status of the Union after affiliation. The record clearly shows without
contradiction that the membership of the Union and its administrative "set-lip"
remain exactly the same as before affiliation: the Respondent will be dealing
with the same officers and committees that it was prior to affiliation.
When all of the foregoing is considered in the light of the fact that the employees
themselves had, as of the dates of the hearing herein, taken no action to indicate
their dissatisfaction with either the action of the executive committee or as regards
the light vote in the election on May 14, 1962, in voting for affiliation with the
International, I am convinced that the contention of the Respondent that Natural Gas
Workers Union, Local 55'5, Building Service Employees' International Union, AFL_
CIO, was not at any time material herein the representative of its employees, is like-
wise without merit, and I so find.17
In my opinion, the facts in the Harris-Woodson case are somewhat similar to those
we are faced with herein I am also convinced that the following excerpt from the
decision of the United States Court of Appeals for the Fourth Circuit is applicable
to the issues herein. In that case the court, speaking through Chief Judge Parker,
held, inter alia, as follows: 18
Two questions are raised by the company in opposition to the enforcement
of the order . and (2) whether it was proper to direct the company to
bargain with the local union after its change of affiliation. We think that both
questions should be answered in the affirmative.
There is as little substance in the second question raised. It was the local
union which the employees chose as their bargaining representative; and the
fact that they desired it to represent them in collective bargaining was not
affected by its change either of name or affiliation. On the contrary, it is per-
fectly clear that the only purpose of these changes was that it might be enabled
16For example reference is made to the votes for and against Thomas Jefferson John
Quincy Adams, Rutherford B Hayes, Benjamin Harrison. and the popular vote for
Woodrow Wilson in 1912, for the office of President of the United States of America
17 See supra in re Nagle's testimony that 10 members of the Union expressed their dis-
satisfaction by resigning from the Union.
18 N L R B v. Harris-Woodson Company, Inc, 179 F. 2d 720 (C A. 4), 77 NLRB 819;
amended 85 NLRB 1215
681-492-63-vol. 140-82
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby to bargain in behalf of the employees Metaphysical arguments as to
the nature of the entity with which we are dealing should not be permitted to
obscure the substance of what has been done or to furnish a smoke screen
behind which the company may with impunity defy the requirements of the stat-
ute that it bargain with the representative that its employees have chosen. The
identity of that representative , composed entirely of the company 's employees,
was not changed either by its change of name or its change of affiliation. See
Continental Oil Co v . N.L R.B. , 10 Cir, 113 F. 2d 473, 477 [Emphasis
supplied I
Upon all of the foregoing , I conclude and find that the Respondent herein, ". .
commencing on or about May 4, 1962 , and at all times thereafter ... did refuse and
continues to refuse to bargain collectively with the Union as the exclusive collective-
bargaining representative of all the employees in the unit " described and set forth
herein above , " . in that Respondent terminated and discontinued bargaining nego-
tiations and refused to meet and negotiate with the Union because the Union had an-
nounced to Respondent that the Union had decided to affiliate with Building Service
Employees ' International Union , AFL-CIO"; and that by such conduct did thereby
engage in and is engaging in unfair labor practices within the meaning of Section
8(a)(5) and ( 1) oftheAct19
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 described in section 1, 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
Having found that the Respondent has engaged in unfair labor practices by refusing
to bargain collectively with the Union 20 as the exclusive representative of its em-
ployees in an appropriate unit. I will recommend that the Respondent , upon request,
bargain collectively with the Union
Upon the basis of the above findings of fact , and upon the entire record in the
case , I make the following-
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act
2 The following employees of Respondent constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 ( b) of the Act:
All office, shop , and outside employees , but excluding all professional em-
ployees , confidential employees , administrative assistants , secretaries , employees
classified as senior , guards, and supervisors as defined in the Act.
3 At all times since May 4 , 1962 , the Union has been the exclusive representative
of all employees in the appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit on May 4, 1962 , and thereafter , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a)(5) of the Act
5. By said acts the Respondent has interfered with , restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , and pursuant
to Section 10(c) of the Act . I recommend that the Respondent , The East Ohio Gas
Company, its officers , agents, successors , and assigns , shall
19 Quotes from paragraph numbered 8 of the complaint
-0 When the word "Union" is used In section V . "The Remedy ," I have reference to
The Natural Gas Workers Union Local 555, Building Service Employees ' International
Union . AFL-CIO.
THE EAST OHIO GAS COMPANY 1285
1. Cease and desist from:
(a) Refusing to bargain collectively with The Natural Gas Workers Union Local
555, Building Service Employees' International Union, AFL-CIO, as the exclusive
representative of its employees in the appropriate unit found above.
(b) Engaging in any like or related acts or conduct interfering with the efforts of
The Natural Gas Workers Union Local 555, Building Service Employees' Interna-
tional Union, AFL-CIO, to negotiate for or represent the employees in the said
appropriate unit as the exclusive bargaining agent.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with The Natural Workers Union Local
555, Building Service Employees' International Union, AFL-CIO, as the exclusive
bargaining agent in the appropriate unit found at ove, with respect to rates of pay,
wages, hours of employment, or other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed agreement.
(b) Post at its offices in Cleveland, Ohio, and at its branch offices in Ohio, copies
of the attached notice marked "Appendix." 21 Copes of said notice, to be furnished
by the Regional Director for the Eighth Region, shall, after having been duly signed
by an authorized representative of the Respondent, be posted by it immediately upon
receipt thereof, and be maintained by it for 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 Respondent to insure that said
notices are not altered, defaced, or covered by other material.
(c) Notify the Regional Director for the Eighth Region,22 in writing, within 20
days from the receipt of this Intermediate Report and Recommended Order, what
steps the Respondent has taken to comply herewith
21 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommendations of a Trial Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "Pursuant
to a Decree of the United States Court of Appeals, Enforcing an Order" for the words
"Pursuant to a Decision and Order"
121f this Recommended Order is adopted by the Board, this provision shall be modified
to read- "Notify the Regional Director for the Eighth Region, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT engage in any acts in any manner interfering with the efforts
of The Natural Gas Workers Union, Local 555, Building Service Employees'
International Union, AFL-CIO, to negotiate for or represent the employees in
the bargaining unit described below.
WE WILL bargain collectively, upon request, with The Natural Gas Workers
Union, Local 555, Building Service Employees' International Union, AFL-CIO,
as the exclusive representative of all the employees in the bargaining unit de-
scribed below, with respect to rates of pay, wages, hours of employment, or
other conditions of employment, and, if an agreement is reached, embody it
in a signed contract. The bargaining unit is:
All office, shop, and outside employees, but excluding all professional
employees, confidential employees, administrative assistants , secretaries,
employees classified as senior, guards, and supervisors as defined in the Act.
THE EAST OHIO GAS COMPANY,
Employer.
Dated------------------- BY-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465, if
they have any question concerning this notice or compliance with its provisions.