The Heller Brothers Co. of Newcomerstown

National Labor Relations Board - Board Decisions

Jun 4, 1938

7 N.L.R.B. 646 (N.L.R.B. 1938)

In the Matter of THE HELLER BROTHERS COMPANY OF NEWCOMERSTOWN
and INTERNATIONAL BROTHERHOOD OF BLACKSMITHS, DROP FORGERS,
AND HELPERS
Cases Nos . C-370 and R-56,9.-Decided June 4, 1938
File, Rasp, and Small Tool Manufacturing Industry-Interference, Restraint,
and Coercion: engendering fear of loss of employment for union membership;
expressed opposition to labor organization; threats of retaliatory action; ques-
tioning regarding organization meeting; circulation of antiunion statement
among employees for signature ; threat to close plant-Company-Dominated
Union: initiation ; domination of and interference with formation and administra-
tion ; financial and other support ; discrimination in favor of, in recognition as
representative of employees ; activities on company time and property-Check-
O ff : agreement for, with members of company-dominated union ; acquiescence
in, not free choice of employees ; employer ordered to reimburse employees for
amounts deducted from wages as dues for company-dominated union-Investi-
gation of Representatives: controversy concerning representation of employees:
employer's refusal to grant recognition of union-Prior Election: conducted by
employer ; designation of company-dominated union on ballot, illegal ; results
of, disregarded-Unit Appropriate for Collective Bargaining: production and
maintenance employees, excluding foremen, assistant foremen, clerical employees,
timekeepers, and watchmen ; no controversy as to-Representatives: proof of
choice : comparison of pay roll and union charter sheet and application cards-
Certification of Representatives: upon proof of majority representation.
Mr. Max W. Johnstone, for the Board.
Mr. N. C. Murray, of Newark, N. J., for the respondent.
Mr. James A. Glenn, of Coshocton, Ohio, for the Union.
Mr. Russell E. Lyons, of Coshocton, Ohio, for the Independent.
Mr. Howard Lichtenstein, of counsel to the Board.
DECISION
ORDER
AND
CERTIFICATION OF REPRESENTATIVES
STATEMENT OF THE CASE
Charges and amended charges having been filed by International
Brotherhood of Blacksmiths, Drop Forgers, and Helpers, herein called
the Union, the National Labor Relations Board, herein called the
646
DECISIONS AND ORDERS 647
Board, by James P. Miller, Regional Director for the Eighth'Region
(Cleveland, Ohio) issued and duly served its complaint dated Novem-
ber 8, 1937, against The Heller Brothers Company of Newcomerstown,
Newcomerstown, Ohio, the respondent herein, alleging that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (2), and
Section 2 (6) and (7), of the National Labor Relations Act, 49 Stat.
449, herein called the Act. On November 16, 1937, the respondent
filed its answer denying the essential allegations concerning the
unfair labor practices, but admitting that its business affects com-
merce within the meaning of the Act.
Concurrently with the filing of the charges and the amended charges
herein, on September 2, and November 6, 1937, respectively, the Union
also filed with the same Regional Director a petition and an amended
petition, alleging that a question affecting commerce had arisen con-
cerning the representation of the respondent's employees and request-
ing an investigation and certification of representatives pursuant to
Section 9 (c) of the Act.
On October 18, 1937, the Board, acting pursuant to Article III,
Sections 3 and 10 (c) (2), and Article II, Section 37 (b), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered a consolidation of the proceedings and authorized the Re-
gional Director to conduct an investigation of representatives and to
provide for an appropriate hearing upon-due notice.
Pursuant to notice, duly served upon the respondent, the Union,
and File and Tool Workers Union, herein called the Independent,
a labor organization purporting to represent employees directly af-
fected by the investigation of representatives, a hearing on both the
petition and the complaint was held at Coshocton, Ohio, from De-
cember 6 to 10, 1937, before Charles B. Bayly, the Trial Examiner
duly designated by the Board. At the commencement of the hearing,
the Independent's motion to intervene in the proceedings was granted
by the Trial Examiner to the extent that its interests appeared in
the petition and in the allegations of the complaint. All the parties
were represented by counsel, participated in the hearing, and were
afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues. At the
conclusion of the hearing, both the respondent and the Independent
filed memoranda on the evidence adduced at the hearing.
On January 17, 1938, the Trial Examiner filed his Intermediate
Report in which he found that the respondent had engaged in and
was engaging in the unfair labor practices alleged in the complaint.
He accordingly recommended that the respondent cease and desist
1 06 7 91-38-vol yr--42
648 NATIONAL LABOR RELATIONS BOARD
from engaging in the unfair labor-practices, that it cease ,giving,rec.
ognition to and that it disestablish the Independent as the collective
bargaining representative for any of its employees, and that it reim-
burse the members of the Independent for the dues it had deducted
from their wages on behalf of the Independent, out of money in the
respondent's possession or under its control.
Thereafter, the respondent and the Independent filed exceptions
to the Intermediate Report and to various rulings of the Trial
Examiner, and together with the Union, presented oral argument
before the Board. In addition, the three parties filed briefs. The
Board has reviewed the rulings of the Trial Examiner on motions
and on objections to the admission of evidence, and finds that )no
prejudicial errors were committed: The rulings-are-hereby affirmed.
The Board has also considered the exceptions to the Intermediate
Report, and finds them to be without merit.
On February 10, 1938, the respondent petitioned the Board to make
part of the record herein a notice which it had posted on its bulletin
boards in its plant on December 28, 1937, advising its employees that
they might join or not join any labor organization without fear of
discrimination; that no solicitation by any labor organization would
be permitted on company time, and that supervisory employees were
forbidden to engage in any form of union activity. The respondent's
,petition is hereby granted.
Upon the entire -record in the case, the Board- makes the following :
FINDINGS OF FACT
I. THE 13USINESS OF THE RESPONDENT
The respondent, The Heller Brothers Company of Newcomerstown,
is an Ohio corporation engaged in the manufacture and sale of files,
rasps, and small tools in its plant at Newcomerstown, Ohio. The
respondent is a subsidiary and operates as a plant of Heller Brothers
Company, a corporation having its principal offices and another plant
at Newark, New Jersey.
The respondent's annual purchases of raw materials, which con=
sist principally of file steel, amount to, approximately $650,000.
Approximately 60 per cent of such steel is shipped to the plant from
points outside Ohio. The respondent's annual sales of finished prod-
ucts amount to $2,055,000, approximately 90 per cent of which are
shipped outside the State to dealers and distributors in all of the
principal cities of the United States.
The respondent normally employs about 800 workers and has an
average monthly pay roll of from $50,000 to $70,000.
: DECISIONS AND ORDERS 649
H. THE ORGANIZATIONS INVOLVED
International Brotherhood, of Blacksmiths, Drop Forgers and
Helpers is a labor organization affiliated with the American Feder-
ation of Labor. It admits to membership all the respondent's pro-
duction and maintenance employees, except supervisory employees,
clerical employees, and watchmen.
File and Tool Workers Union is an unaffiliated labor organiza-
tion admitting to membership all employees who are on the respond-
ent's pay roll for a period of not less than 30 days, except super-
visory employees.
III. THE UNFAIR LABOR PRACTICES
A. Interference with the f ormation and administration of the
Independent
Union activity in the respondent's plant commenced in June 1935.
Although the conduct of the respondent before July 5, 1935, the
effective date of the Act, cannot constitute unfair labor practices
within the meaning of the Act, it foreshadows and explains the
events and activities which occurred thereafter and which are sub-
ject to the Board's jurisdiction.
On Friday, June 28, 1935, the Union held a mass meeting in the
town of Newcomerstown., Some 300, of the respondent's employees
attended, elected temporary officers, and listened to an address by
a Union organizer." 'On 'the, following 'Monday morning, Ethel
Buchanan, an employee who had attended the meeting and who later
became an officer of the Independent and of the Union, was called
to the office of Byron Crater, the respondent's superintendent. Crater
discussed the Union meeting, advised Miss Buchanan that the re-
spondent would close its plant if the employees joined, and stated
that the respondent wanted an inside organization.
The same afternoon, with the temporary officers of the Union,
Miss Buchanan was called to the office of A. G. Heller, the general
manager, for a discussion of working conditions in the plant. The
employees at first discussed the Bedaux system, which had been
recently introduced into several departments and which was evi-
dently causing considerable dissatisfaction among the employees.
The conference was then directed to the subject of union activity,
and the respondent made clear that it.did not desire such activity in
the form of outside union organization. The employees present were
told that they were "free American citizens," that they could join
the Union but kvould be replaced if they did, that if they formed a
"local" organization, the respondent would donate $5,000 to it. The
testimony of Board witnesses with respect to this conference was
not denied.
650 NATIONAL LABOR RELATIONS BOARD
Presumably the respondent's words of caution had the desired
effect and for the next 5 months there was little union activity among
I he respondent's employees. On November 12, 1935, however, an-
other Union mass meeting was called and addressed by an Ameri-
can Federation of Labor organizer. Miss Buchanan's testimony
regarding the respondent's reactions to this meeting is typical of the
testimony of other witnesses and was not controverted by the
respondent. On the following day, Clarence Bricker, her foreman,
approached her with a long list of names and clock numbers and
asked her if she had attended the Union meeting. He then made a
notation on the paper and proceeded to question other employees.
Later the same day some 15 employees were discharged. Howard
Burris, one of the employees so discharged, testified that he was laid
off by his foreman because he washed his hands too many times.'
Three days later the power was shut off during working hours
and the employees were instructed by their foremen to attend a
meeting in the box room of the plant. Both Crater and Heller
addressed this meeting. After Crater had described how union
organization and a strike had led to violence at a Cleveland file fac-
tory, he introduced Heller. Miss Buchanan's version of Heller's
remarks is not denied :
Well, he talked pretty much on the same lines that he had
back in June 1935. He stated that we were free American citi-
zens and could still join the American Federation of Labor but
we would be replaced if we did, and that they didn't want the
American Federation of Labor in their plant and that they
would fight that organization to the bitter end; if we would
join another organization, not the American Federation of
Labor, to be known as the Heller Brothers Fraternal Associa-
tion he would donate $5000.
Immediately following the meeting, foremen throughout the plant
solicited the employees to sign the following statement :
As an employee of Heller Brothers Company I am opposed
to organizing with or to become affiliated with any outside labor
organization. I am in favor of a company employees associa-
tion to negotiate through a duly authorized committee of my
fellow workers.
On the following Monday shop representatives were elected in each
department and dispatched to the box room of the plant by foremen
to initiate an employees organization. Howard Wolfe, who was so
elected and who later became the first president of the Independent,
1 These employees were later reinstated and their discharges are not in issue in this
proceeding.
DECISIONS AND ORDERS 651
testified, when called as a witness for the Independent, that he was
elected representative of the machine shop and then sent to the box
room by his foreman. His complete ignorance of the reason. for the
election is amply shown in his own testimony :
I went over into what is known as the box department .. .
When I went over there, there was perhaps 10 or 12 others in
there. When I went in there, we sat down on the lumber where-
ever we could find a seat and I talked to the rest of them. Since
I didn't know why I was there, and I found out that the rest
of them didn't know why they was there. After we talked a little
another group came in until there was in the neighborhood of
some 19 in that building, and after a while Mr. Crater, the Super-
intendent, came up to that meeting and he said : "Have you fel-
lows organized?" He said, "Do you know anything about organ-
izing?" And that is the first that I knew that that was the
purpose that they wanted us to organize. He said, "If you don't,
maybe I can help you." And I said, "I can organize you." And
he said, "Very well; the meeting is yours."
Wolfe was then appointed chairman of the meeting, and after secur-
ing Heller's approval, called a mass meeting in the box room on the
evening of November 19. This meeting, as were the others, was held
on company time. It was attended by about 300 employees including
those on the night shift, who were paid for this time during their
attendance. Wolfe announced that 439 employees had signed up to
cooperate in forming an organization; officers and an executive board
were elected.
Thereafter meetings were held in the school at Newcomerstown, and
the Independent within 2 months obtained 467 dues-paying members.
Meanwhile the officers and the executive board were preparing a con-
stitution and bylaws. Wolfe, who had been elected president of the
Independent, admitted consulting the respondent 10 or 12 times dur-
ing the preparation of these documents and receiving from the re-
spondent a copy of a Plan of Employee Representation of the Car-
negie Steel Company as a form to follow. In addition, the Independ-
ent desired the approval of the respondent before adopting a final
constitution and bylaws. The minutes of the meeting of December 13,
1935, contain the following statement :
Meeting was opened by Pres. H. Wolfe who explained reason
for calling off mass meeting scheduled for this date. Reason being
that By-laws presented to Heller Bros. for signature had not yet
been acted on and since everyone was interested in that question
it was decided to postpone mass meeting until some definite deci-
sion had been made by the Company.
652 NATIONAL LABOR RELATIONS BOARD
During the month of January 1936 , negotiations for the respondent's
approval, of the organization still continued . At the respondent's sug-
gestion a . clause in the constitution providing for appeal to this Board
was deleted . On January 11, Heller ,, by letter to the Independent,
approved the revised bylaws and offered the organization substantial
gifts:
We have noted your revised bylaws and it appears to us that
we will be able to accept same as we note you have added a bene-
ficial and fraternal feature to same, under which we further
understand we will be able to accept a check-off system.
Furthermore , under these conditions we are willing to contrib-
ute to the treasury of such an organization, and also will build
a club house for you and if the town does not build a swimming
pool in the near future , we will also furnish such a pool.
Although the record is not clear , it appears that the constitution and
bylaws were approved in final form some time in February . On March
31, 1936, the respondent transferred to the Independent a stock certifi-
cate of 50 shares of 7 per cent preferred stock valued at $5000, and
paying an additional 1 per cent bonus dividend.2
In April 193'6 , the Independent hired an employee , who had been
temporarily laid off by the respondent , to solicit signatures. These
signatures were obtained on cards which on one side authorized the
respondent to deduct dues of 50 cents a month from the signer 's wages,
and on the other, designated the member's beneficiary under the bene-
fit provisions of the Independent 's constitution . Such solicitation was
conducted during working hours, and the cards so signed were intro-
duced at the hearing as proof of membership in the Independent.
Several of the cards were not signed , although the respondent used
them as authorizations for the check-off.
For the next year the Independent flourished with but little competi-
tion from the Union. Union members likewise joined the Independent,
several of them testifying that it was necessary in order to continue
working for the respondent . In October 1936, and again in January
1937, the Independent negotiated general wage increases ; seniority
rules were established and individual grievances presented. The
wage increase in January amounted to 5 cents an hour, although the
Independent had requested a 10-per cent increase.
On May 25, 1937 , the Union again commenced a membership drive,
and on that day notices of a Union meeting for the following day
appeared throughout the plant. At the same time the respondent
posted a bulletin defending the Independent and calling the employees'
s In 1937 the Independent received $400 as a dividend on this stock.
DECISIONS AND ORDERS 653
attention to their right to organize any form of "employee organiza-
tion." The first two paragraphs of this bulletin emphasize its contents :
Since the action of the Supreme Court upholding the validity
of the National Labor Relations Act, reports have dome to us from
some of our employees that they are being told they must join
a labor organization and that their independent association
known as The File & Tool Workers Union is illegal.
Any such statements are entirely false. The Supreme Court did
not declare that independent employees associations are illegal.
Some 350 employees attended the Union meeting on May 26, and a
formal charter application was signed. By July 16, the Union had
approximately 325 members and was gradually gaining the support
of the majority of the respondent 's employees , despite the respondent's
efforts to discourage Union membership. In July 1937, Everett
McElhaney , an employee , signed a statement prepared by his fore-
man, Walter•1VIcPhersoii, to the 'effe 'ct that he had been solicited during
working hours to join the Union. Margaret Miller, another employee,
testified that she had signed a similar statement prepared by
McPherson , several days before the hearing in this case . In August
a notice of a Union meeting was followed by notices distributed by
foremen advising Union members that those employees on the night
shift were "expected to be on the job." Such conduct of the respondent
is significant in revealing the respondent 's preference for the Inde-
pendent. As we have indicated above, solicitation for the Independent
was permitted to be carried on during working hours ; furthermore,
absences from work for the purpose of attending Independent meet-
ings were never discouraged . Indeed, the respondent 's preference
was openly expressed , the minutes of the Independent meeting of
August 10 , 1937, containing the following statement :
Pres. Neff announces that H. B. Co. are not in favor of the
A. F. of L. This was announced by request of Heller Bros. Co.
The respondent made-no effort at the hearing to deny the authen-
ticity of this announcement.
Competition between the Union and the Independent apparently
reached its height in September and October 1937. On September 27
the Union , claiming a majority of employees, requested recognition
from the respondent and asked that an election be held among the
employees, without the name of the Independent on the ballot. The
respondent refused to consent to an election on such terms, but on
October 22 arranged and conducted an election in which the names of
both Unions appeared on the ballots. The record shows that the
respondent must have known that a petition had been filed by the
654 NATIONAL LABOR RELATIONS POARD
Union with this Board. It chose, however, to proceed with the elec-
tion in the face of Union protests against the use of its name on the
ballots, and despite advice from the Regional Director for the Eighth
Region that such election would be unlawful and the results void.
B. Conclusions with respect to the activities of the respondent
An analysis of the record together with the respondent's brief
clearly establishes the facts recited above, many of which are admitted
by the respondent. The respondent contends, however, that its activi-
ties do not constitute unfair labor practices within the meaning of the
Act, that its conduct does not amount to domination and interference
with the administration of a labor organization as proscribed by the
Act, and finally, that to disestablish the Independent as a collective
bargaining agency would deprive the respondent's employees of their
right to join a labor organization of their own choosing as guaranteed
under the Act. An examination of these contentions in the light of
the record indisputably reveals their lack of merit.
The respondent admits that it "inspired" the idea for the organiza-
tion of its employees and initiated the first mass meeting of Novem-
ber 15, 1935. Its patent desire to have its employees organize into
an inside association within 3 days after the Union had held a meet-
ing leads unmistakably to the conclusion that the respondent realized
the value of such an organization in combatting the Union. Its subse-
quent actions in fostering the Independent and discouraging member-
ship in the Union confirms this conclusion.
The respondent admits that it was consulted in the drafting of
the Independent's constitution and bylaws, but maintains that its
approval was necessary because of the provisions contained therein
regarding the arbitration of disputes, the check-off of dues from
wages, the benefit plan, and the closed shop, this latter provision
being rejected by the respondent.3 That such provisions, more prop-
erly the subjects of collective bargaining, were drafted into the
constitution and bylaws in the form prescribed by the respondent
is eloquent testimony of the respondent's solicitude for the Independ-
ent, and the latter's unconcealed concern that its organization meet
with the approval of the respondent. With a donation of $5,000
in the balance, the Independent readily subordinated the employees'
interests to those of the respondent.
The respondent's additional contention that the Independent,
secured many substantial benefits in the form of wage increases,
seniority rules, the abolition of the Bedaux system, and the settle-
8 Although the respondent adopted the check-off of Independent dues, no provision there-
for appears in the constitution and bylaws e introduced at the hearing.
DECISIONS AND ORDERS 655
ment of gi ievances, is equally without merit in proving the. absence
of domination or control over the affairs of this organization. We
recognize that the employer frequently .makes some concessions to
such a labor organization in order to secure and retain control over it.
The respondent further admits its contribution of $5,000 to the
Independent, and the illegality of this gift under the Act, but offers
the following defense :
True, the contribution may have had' the effect of making
the employees more friendly to Respondent as they would be
made more friendly if Respondent doubled their wages or bet-
tered their lot in any other way . . . and encouragement of
friendliness is not "coercion", "domination", or "control".'
However, the Act specifically defines as an unfair labor practice
the contribution of financial or other support by an employer to any
labor organization. The respondent's contribution here falls directly
within -this, -proscription of- the Act.
Finally, the respondent protests that if its activities from 1935
to April 1936, did constitute unfair labor practices, it has ceased
supporting or otherwise interfering with the organization efforts of
its employees ; that today the Independent is a genuine union com-
pletely representing the untrammeled desires of its members. As we
have indicated above, however, the respondent's unfair labor prac-
tices did not cease after its gift of $5,000 to the Independent; it
continued unmistakably to show its favoritism for it and to dis-
courage Union organization at every opportunity. The respondent
continued to permit the solicitation of members for the Independent
during working hours, yet denied the same privilege to the Union ;
it ignored absences of Independent members to attend meetings, yet
discouraged its employees from attending Union meetings. In May
1937, to offset a Union drive for members, it posted bulletins an-
nouncing the legality of the Independent under the Act. Finally,
in October, with full knowledge that the machinery of the Board
had been invoked to determine the representative of its employees,
it chose to ignore Union and Board protests, and without permission
used the name of the Union in sponsoring and conducting an election
of its own. In the face of such discriminatory conduct, the respond-
ent's contentions are without merit. No cease and desist order alone
could possibly remove the effects of the respondent's discriminatory
activities which it has carried on for the past 3 years. The notice
posted by the respondent on its bulletin boards on December 28,
1937, is neither adequate enough to destroy the respondent's domina-
tion of the Independent, nor complete enough to be considered as a
substitute for the posting of a notice which we ordinarily require
4 Brief on Behalf of Respondent, p. 17.
656 NATIONAL LABOR RELATIONS BOARD
in our orders. The Independent has been indelibly branded as the
respondent's organization and must accordingly be disestablished as
a collective bargaining agency for any employees.
We find that the respondent, by its activities described above, has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act; has dominated
and interfered with the formation and administration of the Inde-
pendent and has contributed financial and other support to it ; and
that by its conduct it has discouraged membership in the Union.
The record discloses that the respondent engaged in the check-off
of dues from the wages of Independent members on the basis of
authorizations secured from such employees, for the most part, dur-
ing working hours. As we have indicated above, the wages of_sev-
eral employees were thus subject to the check-off, even though they
had not signed such authorizations. The Trial Examiner recom-
mended that the respondent "make an equitable financial adjustment
out of moneys' in its hands or under its control by reimbursing such
members of (the Independent), employees of the respondent, who
have thus paid dues, in an amount at least equal to the sums so
paid."
It seems plain to us that the authorization by an employee for
the check-off of dues owed to an organization which his employer
has formed and continues to dominate cannot be considered as
having been voluntarily given by the employee. When check-off
authorizations are sought under such conditions the employee is
placed in the position of permitting the check-off or of putting him-
self squarely upon record as openly opposed to the Company's
wishes. No employee confronted with such an option can be regarded
as having exercised free choice. Thus the same.pressures by the
respondent which compelled its employees to abandon their free
choice of representatives enforced their acquiescence in the check-off.
Under these circumstances we will restore the' status quo b'y ordering
the respondent to reimburse its employees for amounts deducted from
wages as dues for the Independent.
We shall not, however, require the Independent to restore to
the respondent the $5,000 stock certificate or the dividends received
therefrom. The respondent and the Independent stand in pari de-
licto and any disposition of assets as between the two would have no
effect upon the restoration to the employees of the rights of which
they have been deprived.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re=
DECISIONS AND ORDERS 657
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the sev-
eral States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE QUESTION CONCERNING REPRESENTATION
As indicated in Section III above, the respondent refused to recog-
nize the Union for the purposes of collective bargaining in Sep-
tember 1937, and refused to consent to an election among its em-
ployees without the participation of the Independent. Instead, after
the Union had filed a petition with the Board, and over the protests
of the Union and the Regional Director, the respondent conducted
an election on October 22, 1937. The evidence shows that of 742
employees eligible to vote, 367 cast ballots for the Independent and
192 cast ballots for the Union. It is unnecessary, however, to con-
sider whether or not this election reflects the true desires of the re-
spondent's employees.. We have found that the respondent has dom-
inated and interfered with the formation and administration of the
Independent, and that such domination and interference continued
and was effective at the time of the election. It follows that the
designation of the Independent on the ballots was illegal.5 More-
over, we have invariably followed the policy of disregarding the
results of elections conducted by employers. Experience has shown
that the presence of supervisory employees at the polls, the conduct
of the election on the employer's property, the possibility of hidden
identification marks on the ballots, taken together with prior mani-
festations of preference for a particular labor organization, preclude
the casting of a ballot which registers the free and independent choice
of the employee. Although in the instant case, the mechanics of the
balloting were not impugned, we shall not depart from our usual
policy.
We find that a question has arisen concerning representation of the
respondent's employees.
VI. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above has a close, intimate, and substantial
"See Matter of S. Blechman 4 Sons, Inc . and United Wholesale Employees of New York,
Local 65, Tea,tile Workers Organizing Committee-Committee for Industrial Organization,
4 N. L. R B. 15
658 NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VII. THE APPROPRI ATE UNIT
At the hearing all of the parties agreed and we so find that all of
the respondent's production and maintenance employees, excluding
foremen, assistant foremen, clerical employees, timekeepers, and
watchmen, constitute a unit appropriate for the purposes of collective
bargaining. We further find that said unit will insure to the respond-
ent's employees the full benefit of their right to self-organization
and to collective bargaining and otherwise effectuate the policies
of the Act.
VIII. THE DETERMINATION OF REPRESENTATIVES
It was agreed at the hearing by all the parties that the pay-roll
period ending July 31, 1937, represented a normal period of the re-
spondent's business operations. Of a total of 864 employees on that
pay roll, it was further agreed that 735 of them were included in the
unit we have found appropriate for the purposes of collective
bargaining.
During the examination of the Union's financial secretary, the
Union ledger was introduced into evidence listing the names of inem-
bers copied from the charter sheet and application cards since July
2. 1937. At the same time the charter sheet and application cards
were marked for identification. Full opportunity was accorded all
parties to examine the charter sheet and application cards and to
compare them with the respondent's pay-roll record. Equal oppor-
tunity was accorded all parties to cross-examine the Union's financial
secretary, who had custody of these documents, and to cross-examine
the Union's president and recording secretary, both of whom partici-
pated in securing the signatures of Union members. An analysis of
the testimony and the exhibits on the basis of the July 31 pay roll
shows that as of August 15, 1937, and at the time of the hearing the
Union had 390 members,6 which is a majority of the 735 employees
in the appropriate unit.
We find that the Union has been designated and selected by a
majority of the employees in the appropriate unit as their representa-
tive for the purposes of collective bargaining. It is, therefore, the
O There was no showing that the respondent's pay roll changed between July 31 and
August 15, 1937.
DECISIONS AND ORDERS 659
exclusive representative of all the employees in such unit for the
purposes of collective bargaining, and we will so certify.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Blacksmiths , Drop Forgers, and
Helpers, and File and Tool Workers Union are labor organizations,
within the meaning of Section 2 (5), of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of File and Tool Workers Union, and by
contributing financial and other support to that organization, has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2), of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1), of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7), of
the Act.
5. A question affecting commerce has arisen concerning the repre-
sentation of the respondent's employees, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7), of the Act.
6 All of the respondent's production and maintenance employees,
excluding foremen, assistant foremen, clerical employees, timekeepers,
and watchmen, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9 (b) of the Act.
7. International Brotherhood of Blacksmiths, Drop Forgers, and
Helpers is the exclusive representative of all the employees in such
unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
ORDER
Upon the basis of the findings of fact and conclusions of law and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that the respondent,
The Heller Brothers Company of Newcomerstown, Newcomerstown,
Ohio, and its officers, agents, successors, and assigns shall :
1. Cease and desist :
(a) From dominating or interfering with the administration of
File and Tool Workers Union, or with the formation or acimimstra-
tion of any other labor organization of its employees, and from con-
660 NATIONAL LABOR RELATIONS BOARD
tributing financial or other support to File and Tool Workers Union
or any other labor organization of its employees ;
(b) From recognizing File and Tool Workers Union as the repre-
sentative of any of its employees for the purpose of dealing with the
respondent concerning grievances , labor disputes , rates of pay , wages,
hours of employment , and other conditions of employment;
(c) From in any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self -organiza-
tion, to form , join, or assist labor organizations , to bargain collec-
tively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from File and Tool Workers Union
as a representative of its employees for the purposes of dealing with
the respondent concerning grievances , labor disputes , rates of pay,
wages, hours of employment , or other conditions of employment, and
completely disestablish File and Tool Workers Union as such
representative ;
(b) Reimburse the employees who were members of File and Tool
Workers Union for the dues it has deducted from their wages on
behalf of File and Tool Workers Union ;
(c) Immediately post notices in conspicuous places throughout its
plant, and maintain such notices for a period of thirty (30) consecu-
tive days , stating ( 1) that the -respondent will cease and desist as
aforesaid , and (2 ) that the respondent withdraws and will refrain
from all recognition of File and Tool Workers Union as a representa-
tive of its employees for the purposes of collective bargaining and
completely disestablishes it as such representative;
(d) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.
CERTIFICATION OF REPRESENTATIVES
By virtue of and . pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
IT Is HEREBY CERTIFIED that International Brotherhood of Black-
smiths, Drop Forgers, and Helpers has been designated and selected
by a majority of the production and maintenance employees , exclud-
DECISIONS AND ORDERS 661
ing foremen, assistant foremen, clerical employees, timekeepers, and
watchmen, of Heller Brothers Company of Newcomerstown, New-
comerstown, Ohio, as their representative for the purposes of collec-
tive bargaining and that, pursuant to the provisions of Section 9 (a)
of the Act, International Brotherhood of Blacksmiths, Drop Forgers,
and Helpers is the exclusive representative of all such employees for
the purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.