The Perfection Steel Body Co.

National Labor Relations Board - Board Decisions

Nov 12, 1941

36 N.L.R.B. 851 (N.L.R.B. 1941)

In the Matter of THE PERFECTION STEEL BODY COMPANY ( A. K. A. THE
PERFECTION BURIAL VAULT COMPANY) and LOCAL 1151, INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, AFFILIATED WITH THE A. F. OF L.
Case No. C-1909-Decided November 12, 1941
Jurisdiction : burial vault and truck body manufacturing industry.
Unfair Labor Practices
Company-Dominated Union: organization held to be a continuation
and illegal successor of an earlier company-dominated organization
ordered disestablished by the Board by reason of its formation immediately
following disestablishment of previous organization; the continuity of per-
sonnel acting as officers, committeemen, and active adherents in both organ-
izations ; the participation therein by. persons closely allied to management ;
'the failure of the successor to adopt.a constitution or bylaws ; the respondent's
failure to differentiate clearly between the two organizations ; and the
financial and other support which the respondent granted it by : granting it
financial assistance derived from commission on the sales of products dis-
pensed by vending machines placed on company property ; and granting it
recognition and a closed-shop without attempting to check upon the validity
of its claim to be employee majority representative.
Remedial Orders: employer ordered to disestablish successor-dominated organi-
zation and to cease giving effect to contract with it.
Mr. Max-W. Johnstone, for the Board.
Mr. Herman L. Weisman and Mr. Arthur Richenthal, of New
York City, for-the respondent.
Mr. A. G. Skundor, of New Castle, Pa., and Mr. Paul Hutchings,
of Washington; D. C., for the Union.
Mr. David H. Karasick, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Local 1151, International Association of
Machinists, affiliated with the A. F. of L., herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Eighth Region (Cleveland, Ohio), issued
its complaint dated February 12, 1941, against The Perfection Steel
36 N. L. R. B., No. 177.
851
852 DECISIONS OF NATIONALLABO'R RELATIONS BOARD
Body Company (also known as The Perfection Burial Vault Com-
pany), Galion, Ohio, herein called the respondent, alleging that the
respondent had engaged in. and was engaging in unfair labor prac-
tices 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. Copies of the complaint accom-
panied by notice . of hearing thereon were duly served upon the
respondent, the Union, and Buckeye Metal Workers Association,
herein called Buckeye.
Concerning the unfair labor practices, the complaint, as amended,
alleged in substance : (1) that the respondent from on or about
August 5, 1940, prior thereto, and at all times since said date, by its
officers and agents, has interfered with the rights of its employees
to form, join, or assist labor organizations and to bargain collectively
through representatives of their own choosing; (2) that upon charges
filed by the Union, a complaint was issued against the respondent and
a hearing was held in July 1938 which resulted in the issuance of a
Decision and Order on April 23, 1940,1 wherein the Board found that
the respondent had dominated and interfered with the formation and
administration of Galion Metal Workers Association, herein called
Galion, and ordered the respondent to disestablish Galion ; and (3')
that from on or about August 5, 1910, and at all times since that date,
the respondent has dominated and interfered with the formation and
administration of Buckeye and contributed support thereto.
On February 28, 1941, the respondent filed its answer to the com-
plaint admitting the holding of the prior hearing and the entry
of the Board's Decision and Order therein, but averring that, in com-
pliance with the aforesaid Decision and Order, it posted a notice
on August 5, 1940, which had been approved by the Board. The
respondent also denied the commission of any of the unfair labor
practices alleged in the complaint and further averred that no valid,
proper, or sufficient charge had been filed in the present case in com-
pliance with the Board's rules.
Pursuant to notice, a hearing was held at Galion, Ohio, on March
10, 11, 12, and 28, 1941, before Henry J. Kent, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the
respondent and the Union were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties. At the conclusion of the Board's
case, counsel for the Board moved to conform the complaint to the
proof. The motion was granted without objection. During the
'Matter of The Perfection Steel Body Company ( a. k. a. The Perfection Burial Vault
Company) and Local 1151, International Association of Machinists, A. F. of L., 23
N. L. it. B. 99.
THE PERFECTION STEEL BODY COMPANY 853
hearing, counsel for the Board moved to strike paragraphs 2 and 3
and part of paragraph 5 of the respondent's answer.2 The motion
was denied. Motions of the respondent to dismiss the complaint on
the following grounds were denied by the Trial Examiner during the
course of the hearing: (1) that no labor dispute existed between the
respondent and any organization entitled to be a labor organization
under the Act; (2) that none of the matters complained of affect
interstate commerce within the meaning of the Act; and (3) that
the Board had failed to make out a prima facie case. During the
course of the hearing, the Trial Examiner also denied a motion of
the respondent to strike all evidence concerning the efforts to acquire
members for Buckeye, on the asserted ground that no connection
had been established by the Board between any such matters testified
to, or acts related thereto by the witnesses, and the respondent. He
further denied a motion of counsel for the Board to strike from the
record all testimony of Harry Cobey, the respondent's president, and
Winthrop A. Johns, an attorney for the Board, pertaining to a con-
ference held in July 1940 in which they, along with Herman L.
Weisman, counsel for the respondent, agreed on the form of the
notice subsequently posted by the respondent on August 5, 1940.
The Trial Examiner reserved ruling on, and thereafter in his Inter=
mediate Report denied, the following motions of the respondent.
(1) to dismiss the complaint on the ground that there had been
neither a valid, fair, proper, nor sufficient charge or investigation of
said charge preliminary to the issuance of the complaint; (2) to dis-
miss the complaint on the ground that no valid, proper, and sufficient
complaint under the Act or the Rules and Regulations of the Board
had been served; and (3) to strike all testimony relating to the
acquisition of members by Buckeye after September 27, 1940, on the
asserted ground that all such efforts were made pursuant to a closed=
shop provision, of the Buckeye contract dated September 16, 1940.
The Trial Examiner also reserved ruling on, and thereafter in his
Intermediate Report denied, a motion of counsel for the Board to
strike the testimony of Herman L. Weisman, counsel for the.
respondent, which the Trial Examiner had permitted to be taken in
lieu of an offer of proof with respect to the July 1940 conference.
' These paragraphs averred, by way of affirmative defense, that, following the Decision
and Order in the prior case (see footnote 1, supra), the respondent conferred with an
attorney for the Board, and as a result of the conference, on August 5, 1940, posted in its
plant a notice, approved by the Board, which informed the employees that the respondent
was willing to comply with the Order of the Board and was withdrawing recognition from
Galion, the labor organization which. the Board had found to be company-dominated in
that proceeding; and further averred that the respondent granted recognition to Buckeye,
the labor organization alleged to be company; dominated in the present case, in reliance
upon certain representations relative to the scope and effect of the Board's Order in the
prior case , alleged to have been made by the attorney for the Board ' to the respondent at
the time of the conference.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing rulings of the Trial Examiner are hereby affirmed.
During the course of the hearing, the Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
After the hearing, the respondent filed a brief with the Trial
Examiner. On June 14, 1941, the Trial Examiner issued his Inter-
mediate Report, copies of which were duly served upon all parties.
The Trial Examiner found 'that the respondent 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
Act. He recommended that the respondent cease .and desist there-
from, and take certain remedial action.
Thereafter, the respondent filed a brief and. exceptions to the Inter-
mediate Report. Pursuant to notice to all parties, a hearing for the
purpose of oral argument was held before the Board in Washington,
D. C., on August 14, 1941. The respondent and the Union appeared
by counsel and presented oral argument. The Board has considered
the respondents. briefs and exceptions sand, insofar as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, an Ohio corporation, owns and operates a plant at
Galion, Ohio, where it is engaged in the manufacture, sale, and dis-
tribution of burial vaults, bodies for trucks, dump bodies, and platform
bodies. In 1940, the respondent expended approximately $600,000
for the purchase of materials used in the manufacture of its products,
about 50 per cent of which were shipped to it from points. outside the
State of Ohio. During the same year, the respondent's gross sales
amounted to approximately $1,148,000, of which approximately 90
per cent was derived from sales requiring shipments to points outside
the State of Ohio.
II. THE ORGANIZATIONS INVOL"QED
Local 1151, International Association of Machinists, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the respondent.
Galion Metal Workers Association was an unaffiliated labor organi-
zation admitting to membership only employees of the respondent.
THE PERFECTION STEEL BODY COMPANY 855
Buckeye Metal Workers Association is an unaffiliated labor organi-
zation admitting to membership only employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
On April 23, 1940, in a prior proceeding against the respondent, the
Board entered its Decision and Order ,3 in which it found that Galion
was company-dominated and ordered the respondent to disestablish
that labor organization.
Between the 19th and 26th of July 1940, Winthrop A. Johns, an
attorney for the Board, held a conference in the city of Galion with
Harry Cobey, the respondent's president, and Herman L. Weisman,
the respondent's attorney. As a result of this conference, a proposed
form of notice, as set forth in full in the margin 4 was tentatively
3See footnote 1, supra . At the request of both the . Board and the respondent, the
transcript and exhibits of the former hearing were incorporated by reference in the record
of the present proceeding.
4 NOTICE TO EMPLOYEES OF PERFECTION STEEL BODY COMPANY
As you know charges were filed against this Company with the National Labor
Relations Board alleging violation of the National Labor Relations.Act. The basis
of the charges was that the Galion Metal Workers Association was a labor organ-
ization dominated by the Company . There was a trial about two years ago. The trial
resulted in a finding by the National Labor Relations Board that the Galion Metal
Workers Association at its inception was a company union and not the result of a
free exercise of the rights of all employees to self -organization.
While we do not agree with the conclusion of the National Labor Relations Board,
we see no benefit to anyone from further litigation . The Company is, therefore,
willing to comply with the order of the National Labor Relations Board , dated April
23, 1940 , and as part of such compliance is posting this notice to inform the employees
of the facts.
1. Because the Company is being ordered to do so, it is withdrawing recognition
from the Galion Metal Workers Association as the collective bargaining agency of
the employees.
2. Because the Company is being ordered to do so , it is ceasing to give effect
to the agreement of April 15, 1940, which is the renewal of the agreement of
March 31, 1938, and extensions thereof.
3. However, the Company will continue to live up to all conditions and promises
concerning hours of work, pay, seniority, and so forth , as recited in the most
recent agreement dated April 15, 1940.
4. The Company is at all times willing to bargain collectively with any labor
organization selected by at least a majority of its employees in the exercise of
their rights to self-organization and to bargain collectively through representatives
of their own choice. The Company will not in any manner interfere with, restrain,
or coerce its employees in -the exercise of such rights . We desire that our employees
shall enjoy all their rights under the National Labor Relations Act.
5. Until a majority of the employees select an agency for collective bargaining
in the place of the Galion Metal Workers Association, there is no binding agree-
ment between the Company and its employees , but the employees will continue to
get the benefits of the agreement dated April 15, 1940, as stated in paragraph
No. 3 above.
6. These benefits will continue until a new agreement can be worked out between
the Company and any representative chosen by a majority of its employees.
7. If any question arises in the future about who represents the majority of our
employees, we will withhold recognition until the proper bargaining agency has
peen certified by the National Labor Relations Board.
PERFECTION STEEL BODY COMPANY,
By----------------------------------------
H. C_,onav, President
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed upon subject to later approval by the Board. On July 31,
1940 Johns sent a letter to Weisman stating, among other things, that
the Board had approved the proposed form of notice. On August 5,
1940, the respondent posted copies of the said notice on its bulletin
boards.
B. Buckeye
On August 5, 1940, the day on which the respondent posted the
notice, Kenneth Pfahler, the president of Galion, posted notices on
the company bulletin boards , calling a special meeting of that organi=
zation, to be held the same night at the Knights of Columbus hall in
the city of Galion. Edward Host, an employee who appeared as a
witness for the Board , testified that on August 5 or 6, 1940, he had the
following conversation with Walter Sutter , a former committeeman
of Galion who was elected treasurer of Buckeye at the meeting held on
the evening of August 5:
Well, I asked him what he was going to do, since they put that
notice up , and he told me that they was going to change the name
and start over. I asked him what if the Labor Board did not certify
another company union, and he says they didn't need, the Labor Board
to certify it.
Counsel for the respondent did not cross -examine Host, and . Sutter,
who appeared as a witness for the respondent , stated that he did not
recall this conversation ,, but that he "might have " made the state-
ments attributed to him by Host. We find that Sutter made the
statements related above, as testified by Host.
The meeting on the evening of August 5 was attended by about
40 members . Pfahler, who had been Galion 's president for 3 years,
opened the meeting and presided . He stated that as everyone had
read the company notice all knew the purpose of the meeting. A
motion to disband Galion was then passed and a recess ensued. Fol-
lowing the recess, which lasted between 10 and 15 minutes , the meet-
ing was again called to order by Pfahler and the employees present
agreed to reorganize an unaffiliated organization , for which they
adopted the name of Buckeye later in the meeting. Pfahler sug-
gested that an election of officers be held and distributed blank
sheets of paper to be used as ballots . Both before the recess and
thereafter, at least until the new officers were elected , Dougherty,
secretary of Galion, continued to act as the secretary of the meeting.
The minutes of the entire meeting, both before and after the recess,
were taken in the first instance by Dougherty , and later by Carpenter,
the newly elected secretary , and were then transcribed by Dougherty
in the minute book of Galion . In such transcription Dougherty
omitted to mention the motion to disband Galion and the recess, and
THE PERFECTION STEEL BODY COMPANY 857
did not otherwise clearly differentiate between the events which pre-
ceded and those which followed the recess.'
All the newly elected officers of Buckeye 6 had previously served
as committeemen of Galion; that is, as elected representatives from
their respective departments in the plant. Metzger, vice president
of Buckeye, had been one of the original promoters of Galion. Gus
Lowmiller, former, committeeman in Galion, acted as a Buckeye com-
mitteeman. Pfahler and Dougherty, although not elected to office
in Buckeye, continued actively to promote its organization. For a
short time after he had been elected secretary, Carpenter worked
nights, and Dougherty acted as secretary in Carpenter's place.
Dougherty also acted as spokesman for the Buckeye committee in
subsequent negotiations which resulted in the execution of a con-
tract, discussed hereinafter, 'although he was neither an officer nor
5 Dougherty 's transcription of the minutes of the August 5 meeting , as they appeared
in the Galion minute book, is as follows :
MINUTES
Aug. 5, 1940
GALION METAL WORKERS' ASSOCIATION
Meeting opened at 8 PM-39 members present [ sic]-Treas. report approved as
read, Discussion on organization-motion by L. Metzger that we organize then
write to NLRB for recognition , nomination for Pres. Daniels , Metzger, Englehorn,
Crall, Pfleiderer , Hosack-Motion that second high man be V. Pres. motion carried-
nomination for Sec . Carpenter , G. Finical , J. Patterson , W. Sutter , K. Garvick-
motion that second high man be Treas . motion carried.
Pres . Elected--------------------------------------- Daniels.
V. Pres . Elected-----------------------------------• L. Metzger.
Sec. Elected---------------------------------------. Carpenter.
Treas. Elected-------------------------------------. W. Sutter.
Name selected for organization Buckeye Metal Workers. Motion take Ins. out of
checks but no dues Motion carried. Motion that the old Tres. make out a check
to new Tres . to dep . in Bank in name of new org. Motion carries. Motion use same
agreement but change name. Motion carries. Motion that Sect . see a lawyer and
have lawyer wright to N . L. B. & see if they will recognize this org. Motion carried.
Motion that we get quart of beer for each mbr. 42 mbrs. present. Motion carried.
John P. Chapman, Field Examiner for the Board , interviewed Dougherty shortly after
the Union had filed its charges in this case . At that time , Dougherty produced Galion's
minute book . Chapman testified that the minutes appearing above were written on the
last page of Galion ' s minute book , and are a verbatim copy of the minutes as written.
Dougherty testified that he acted as secretary of Galion until that organization was dis-
handed and again acted as secretary after the recess and until Carpenter was elected
secretary from which time Carpenter took the minutes . With respect to the minutes
themselves , Dougherty first testified that the minutes relating to Galion appeared on one
page of Galion 's minute book, while those relating to Buckeye were written on another
page of the same book; later , however, he testified that the minutes which he had shown
to Chapman were a condensed version which lie had prepared and that the first three
lines of the minutes which appear above , ending with "Discussion on organization" were
on one page of the book, while the balance was written on another page . Subsequently,
but before the hearing in this case , Dougherty destroyed the Galion minute book; and,
at the hearing, he was unable to advance a satisfactory explanation for this act. We
find, as dial the Trial Examiner , that the minutes set forth herein are substantially as
they appeared in Galion's minute book , as testified by Chapman.
0 Ambrose Daniels was elected president ; Louis Metzger, vice president ; Vern Carpenter,
secretary ; and Walter Sutter , treasurer . Daniels resigned the office of president on
September 18, 1940, upon his promotion to the position of foreman of the night shift.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a member of Buckeye's bargaining committee. Dougherty had pre-
viously been the spokesman for the Galion committee in similar nego-
tiations which resulted in the Galion contract. Despite his active
interest in and activities on behalf of Buckeye, Dougherty admitted
that he had never paid any dues to that organization. As noted
hereafter, a motion for the payment of dues was passed at the Buckeye
meeting on September 9.
It, may be noted that Metzger, Carpenter, and Lowmiller were
gang leaders at the time of their selection as officers and committee-
man,, respectively, of Buckeye. Gang leaders are responsible for
and layout the work of men working under them. Although they
do not have the power to hire and discharge employees, they recom-
mend which employees working under them should be retained in case
of lay-offs.7
The minutes of the meeting of August 5, 1940,8 show, and we so
find, that' the organizers of Buckeye resolved merely to cha Iige'the
name of the organization appearing on, but otherwise to use, the
same agreement which the respondent had entered into with Galion.
At the August 5 meeting or shortly thereafter, it was decided to
have cards printed for use in soliciting employees to designate Buck-
eye as their collective bargaining representative. These cards were
later printed and paid for from Galion Rinds, The money was re-
funded by Buckeye 2 or 3 weeks before the hearing. A motion was
also passed at the August 5 meeting, after Galion had been disbanded
and Buckeye had been formed, directing the treasurer of Galion to
draw a check for the balance remaining in Galion's treasury and
deliver it to the treasurer of Buckeye. It does not appear whether
or not these funds were ever actually transferred. Two or three
weeks prior to this hearing, however, a pro-rata distribution of the
Galion funds was made among its former members. The rent of
the hall on August 5 was also paid from Galion funds. ,
No constitution or bylaws were ever drafted or adopted by Buck-
eye. Sutter, the treasurer, testified that Buckeye operates without
Any. such rules of procedure.
Shortly before September 9, 1940, Ralph Cobey, the soil of the re:
spondent's president, was solicited by a local milk dealer to install a
vending machine in the. plant to dispense milk and other cold drinks,
under an arrangement to pay commissions on all goods dispensed.
'+ Paragraph 5 of the contract entered into by the respondent with Galion in April 1940,
as well as the identical paragraph of the contract dated September 16, 1940, with Buckeye,
provides in part as follows : In case of a lay-off, workers having the least seniority shall
be laid off first, providing older employees can qualify to do the work required. In that
case a representative of the employees, selected from their group, shall confer with the
gang leader and/or foreman to decide whether or not the worker or workers are qualified
to do the job."
8 See footnote 5, supra.
THE PERFECTION STEEL BODY COMPANY 859
According to the uncontradicted testimony of Daniels, the president of
Buckeye at that time,9 which we find to, be in accord with the facts,
Ralph Cobey told the solicitor to take the matter up with Pfahler, and
Pfahler in turn referred the solicitor to Daniels. Daniels then secured
the approval of Harry Cobey, the respondent's president. Harry
Cobey testified without contradiction, and we find, that the milk dealer
also presented the proposal to him, and that he told the milk dealer,,
"maybe you had better tell some of the committeemen from their or-
ganization'or somebody, and if you can get them sold on the proposi-
tion, it is perfectly all right with me." On September 9, 1940, the
,plan was submitted to and approved by the members of Buckeye.
The machine was then installed at the plant. The respondent paid
for the electric current to run it, and Buckeye received the commissions
from the sales. Sometime later, a similar arrangement with-respect
to commissions was made in relation to candy-vending machines which
were installed in the plant.
According to the contradicted testimony of Dougherty, Which we
find to be in accord to the facts, cards designating Buckeye as collec-
tive bargaining representative were first secured by Buckeye on Sep-
tember 9 or September 16 and were signed between one of those dates
and October 1. Thus, Buckeye was assured of financial support
through vending-machine sales prior to or at the time that it began
to seek designations from the employees. We note in this connection
that at the Buckeye meeting of September 9, the organization, after
accepting the vending-machine proposal, fixed dues at 25 cents per
month. The dues of Galion had been 50 cents per mouth.
A number of employees were solicited to join Buckeye during work-
ing hours in the plant. It appears from the Buckeye minutes of Sep-
tember 16 that the organization, in addition to using the authorization
cards referred to above, decided to solicit employees to sign dues check-
off authorizations. Dougherty and Sutter were appointed to draft
the form.10 Metzger, a gang leader, and Pfahler, who was in charge
of the maintenance gang,11 each displayed a check-off authorization
blank on his work bench. Metzger, on being questioned regarding his
9 As noted above, Daniels resigned as president and member of Buckeye on September
18, 1941, when he was made a foreman by the respondent.
10 The check-off authorization adopted reads as follows
WE THE UNDERSIGNED AGREE TO HAVE 25¢ DEDUCTED FROM OUR PAY
ON THE FIRST PAYDAY OF EACH MONTH TO BE TURNED OVER TO THE
BUCKEYE METAL ASSOC. FOR OUR DUES. WE THE UNDERSIGNED AGREE
TO HAVE THE BUCKEYE METAL WORKERS ASSOCIATION TO REPRESENT
ME FOR COLLECTIVE BARGAINING.
The record does not disclose whether or not the respondent granted Buckeye a check-off
privilege.
13 Pfahler had two men to assist him in maintenance work. Like the gang leaders in
the plant , Pfahler did not have authority to hire or discharge. He was paid 82% cents
per hour, while one of his assistants received 70 cents, and the other 65 cents, per hour.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
solicitation , of employees to sign dues check-off authorizations, an-
swered :
One of the slips was given to me and laid on my desk back there-
not my desk but my work bench, and it was left there, if anybody
wanted to come sign, and I put the notice on the black board that
nobody should sign or would be able to sign any of these during
working hours; and it was left there ht night.
Pfahler also admitted that one of these check-off forms was placed
upon his work bench one evening, that he did not remove it, and that:
"It laid there the next morning, so far as I know."
On September 23, 1940, the respondent entered into a closed-shop
contract with Buckeye.12 Metzger, Lowmiller, and Carpenter, all gang
leaders, were three of the six members of the Buckeye committee who
signed the contract. With the exception' of the closed-shop provision,
a change from departmental, to plant-wide seniority, and a slight
change with respect to overtime pay and vacations, the Buckeye con-
tract is identical with the Galion contract which had been executed in
March 1940.
The Buckeye committee met with President Cobey and Superintend-
ent Brick on two or three occasions prior to the time the contract was
executed. These conferences appear to have taken place in Septem-
ber, although the exact date of each is not shown in the record. At the
first conference, Cobey agreed to grant recognition to Buckeye pro-
vided that its committee furnished proof that Buckeye represented a
majority. Later, shortly after September 9 or 16,13 Dougherty, who
accompanied the committee and acted as its spokesman although he
was not a member, gave Cobey a typewritten list of names which
Dougherty had prepared and which he claimed had been copied from
the signed authorization cards. Cobey testified that at this point he
"had the girl come in from the timekeeper's office, with a list of the
payroll, and took time out to check the names, and found that they
had better than 80 per cent of the signers who were men who were
working for us [the respondent] at that time." Both Dougherty and
Gaylen Althouse, an employee and member of the Buckeye commit-
tee, testified that Dougherty submitted the list of names to Cobey, but
neither mentioned the fact that Cobey then proceeded to check the list
against the pay roll. Dougherty declared that he "put that [the list
of Buckeye members] on Mr. Cobey's desk, or passed it over to him,"
while Althouse stated that Cobey "looked this list over" and "said
it looked as if we [Buckeye] had a larger percentage of men in the
12 Although the contract itself is dated September 16, 1940, we find, as did the Trial
Examiner, that it was actually executed on September 23, 1940, as testified by Metzger,
who succeeded ' Daniels as president of Buckeye on September 18.
1, As noted above, the cards designating Buckeye as collective bargaining agent were
secured either on September 9 or September 16 and were signed between one of those
dates and October 1.
THE PERFECTION STEEL BODY COMPANY '861
shop." In any event, Cobey did not ask to see the authorization cards,
and explained his failure to do so by saying : "I had no reason to doubt
Eddie Dougherty." 14 He informed the committee that he would grant
recognition to Buckeye, and the terms of the contract were then dis-
cussed. Cobey objected only to the closed-shop clause, stating that
some of his older employees were members of the A. F. of L. and that
he would not like to discharge them as they were good workmen and
good mechanics were then hard to replace. He requested the commit-
tee to reconsider the closed-shop demand 'in view of his'p'osition.
The Buckeye committee reported back to a meeting of Buckeye
members. According to Gaylen Althouse, a committeeman, some of
the employees said at this meeting that there would not be ally changes
in the contract, that it would have to be the same as it was or they
would tear the contract up and would have no union at all. Metzger
testified that after he stated the objections raised by Cobey one of the
group said: "The hell with it. They will sign it the way it is or we
will tear it up." Grover Cole, the respondent's stock clerk, testified
that it was agreed at the meeting that if the respondent did not want
a closed shop, the organization would be dropped and the agreement
torn up. The foregoing testimony of Althouse, Metzger, and Cole was
not contradicted. We find that the employees at this meeting of Buck-
eye made the statements attributed to them by Althouse, Metzger, and
Cole.
According to Cobey's undenied testimony, when he agreed to sign
the closed-shop contract after the committee again reported that the
members wanted a closed shop, he told the committee :
If that is the way you feel about it, we will do it, but now,
while I am signing it, I would like to have a promise from you.
I would like to have you fellows take this up with the National
Labor Relations Board at Cleveland, and see if you can't " get
recognition. It might possibly help me out down there.
We find that Cobey made the statement, as related by him, to the
members of the Buckeye committee.
On September 27, 1940, the respondent posted a notice on the bul-
letin boards stating that it had signed a contract with Buckeye
'*The record in the prior case ( see footnote 1, supra ), which was incorporated by ref-
erence in the record of the present proceeding , indicates that Cobey also granted recogni-
tion to Galion , after he had previously refused the Union 's request for recognition , without
adequately checking the authenticity of Gallon ' s claim that it represented a majority of
the employees . In our decision in that case we found as follows :
"Moreover , the record is not clear that Cohen [Cobey ] examined the Association's
[Gallon 's] list of members to determine whether it represented a majority of., the
respondent 's employees . The only list of members of the Association [ Galion] to which
reference was made at' the hearing was appended to the ' constitution of the 'Association
[Galion ] and Cohen [Cobey ] testified that he bad never examined the constitution."
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"similar to the contract previously in force" with Galion, except for
certain provisions set forth in the notice as follows: . -
Overtime will be paid for all time in excess of 8 hours in any
one day or 40 hours in any one week. All employees will be
required to be members of the Association. Men working here
on September 16th will have until October 16th to become mem-
bers and new employees will have 30 days from the date of
employment.
Shortly after the notice of September 27 was posted, requiring all
employees to join Buckeye, Superintendent Brick and Vere Finical,
the machine-shop foremen, questioned several employees about their
union affiliation and informed them that they must either join
Buckeye or be discharged.
On October 12, 1940, A. G. Skundor, a representative of the Union,
wrote to Cobey. He expressed objection therein to the closed-shop
contract and accused Buckeye of being company-dominated. On
October 24, 1940, the Union filed charges with the Board, alleging
that Buckeye was a company-dominated labor organization. On
October 25, 1940, Cobey wrote to Metzger, suggesting that Buckeye
waive the closed-shop provision until the Board had "made a ruling"
on the question. Metzger transmitted this suggestion to Buckeye and
recommended that it be followed. This recommendation was ap-
proved and, accordingly, the provision has never been enforced.
C. Concluding Findings
The circumstances related above convince us that the respondent
dominated and interfered with the formation and administration of
Buckeye and contributed financial and other support thereto in viola-
tion of the Act. Here, as the Supreme Court of the United States
has said in a similar situation," though "no one fact is conclusive"
w See N. L. R. B. v. Link Belt Company, 311 U. S. 584, rev'g 110 F. (2d) 506 (C. C.
A. 7), and enf'g Matter of Link-Belt Company and Lodge 1604 of Amalgamated) Association
of Iron, Steel and Tin Workers of North America, through the Steel Workers Organizing
Committee , affiliated with the Committee for Industrial Organization, 12 N. L . It. B. 854,
See also N . L. R. B. v. Swift and Company, 116 F. (2d) 143 (C. C. A. 8 ) enf'g Matter
of Swift d Company and United Packing House Workers Local Industrial Union #814,
15 N. L. It. B. 992, where the court, in upholding the Board 's finding that a successor
labor organization was employer -dominated, said :
The acts of assistance and interference on the part of respondent in the organiza-
tion of the new labor organization could not be .judged in isolation by themselves
alone . If that were possible, the holding would have to be that the acts did not amount
to the domination or interference prohibited by the Act. But only a few days
intervened between the respondent ' s posting its declaration of the impossibility of
continuing the old organization and the completion of the new organization and
the recognition thereof by the employer. The facts found by the Board upon sub-
stantial evidence sufficiently sustain its finding that there was a material degree
of interference and domination on the part of the respondent in the formation and
:administration of the new labor organization.
THE PERFECTION STEEL BODY COMPANY 863
the "whole congeries of facts" lead to the conclusion that Buckeye
was not a free choice of the respondent's employees.
On August 5, 1940, the same day that the respondent posted the
notice. withdrawing recognition from Galion as collective bargaining
representative of its employees, Galion was disbanded and Buckeye
was organized. The respondent asserts in its brief that the effect
of. the posted notice was to "wipe the slate clean." Whatever effect
such notice might have under other circumstances, it had no such
effect in this case, for while the purpose of the notice was to inform
the employees of their right to organize without interference by the
respondent, the sequence of events attendant upon the formation of
Buckeye and the respondent's actions with relation to that organiza-
tion. effectively dispelled the avowal of freedom which the notice
itself contained. Moreover, we are convinced that, despite the post-
ing of the notice, the similarities of time'and circumstance surround-
ing the disbanding of Galion and the formation of Buckeye were
such as to preclude the employees from disassociating the two
organizations.
A striking similarity existed between the elected officers and com-
mitteemen of Galion and those of Buckeye. We. have previously
noted- that all the elected officers of Buckeye had served as committee-
men of Galion, and that two of them, as well as one of the Buckeye-
committeemen, were gang leaders who exercised managerial fiin'c=
tions.1e Coupled with this was the fact that Pfahler, head of the
maintenance gang and Galion's president, and Dougherty, Gallon's
secretary, were active and leading spirits in the formation of Buckeye.
The continuity of personnel acting as officers, committeemen, and
active adherents in both organizations, and the recognition of and
dealing with such personnel by the respondent, was reasonably cal-
culated to, and did, produce the impression that Galion and Buckeye
were one and the same organization. Walter Sutter, the former
committeeman of Galion who was elected treasurer of Buckeye, ex-
pressly stated to Host, ,in employee, the intention merely to "change
the name [of Galion] and start over." That such an intention was
18 The respondent contends in its brief that it is not responsible for the activities of
ilteizger and Carpenrer, regardless of their status as gang leaders "and assuming they
(lid interfere to some extent in Buckeye , since there is no evidence whatever linking
the respondent with their activities ." Upon this record , there is no merit to this con-
tention . See International Association of Machinists, at at . V. N. L. R .. B., 311 U. S. 72,
aff'g 110 I. (2d) 29 ( App. D . C.), and enf'g Matter of The Serrick Corporation and
International, Union, United Automobile Workers of America , Local No. 4.49, 8 N . L. R. B.
621 ; H . J. Heinz Company v. N. L. It . B., 311 U . S. 514 , aff'g 110 F . ( 2d) 843 (C. C. A. 6),
and enf g Matter of H. J. Heinz Company and Canning and Pickle Workers , Local Union
No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America,
American Federation, of Labor, 10 N. L. R. B . 963 ; N. L. It. B. v . Link-Belt Company, et
al., 311 U. S. 584 , rev'g 110 F. ( 2d) 506 (C. C. A. 7) and enf'g Matter of Link-Belt Company
and Lodge 1604 of Amalgamated Association of Iron, Steel and Tin Workers of North
-America , through the Steel Workers Organizing Committee affiliated with the Committee
for Industrial Organization , 12 N. L . R. B. 854.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general and was not confined to Sutter is shown by the resolution at
the meeting of August 5, to the effect that the contract which the
respondent had entered into with Galion should be taken over by
Buckeye upon merely changing the name of the contracting organiza-
tion. Moreover, the respondent itself regarded Galion and Buckeye
without distinction, as is illustrated by the fact that Ralph Cobey, the
son of the respondent's president, referred the milk dealer, who had
proposed the installation of the milk-vending machine in the plant,
to Pfahler, who had been president of Galion, as the representative
of the employees. It was Pfahler, it will be recalled, who, following
the dissolution of Galion, reconvened the assembled employees for
the purpose of forming Buckeye, while Dougherty resumed his posi=
tion as. secretary and took the minutes of the meeting in Galion's
minute book. The minutes which Dougherty transcribed show a
failure to differentiate between Galion and Buckeye. Despite the
active part which .Dougherty played in the affairs of Buckeye, he
'admitted that he had never paid dues to that organization. After
the recess at the August 5 meeting, a motion was passed directing the
treasurer of Galion, notwithstanding the fact that that organization
had already been disbanded and ostensibly no longer existed and the
further fact that the meeting purported at that stage to be a meeting
of Buckeye, to transfer the money in Galion's treasury to Buckeye.
Only shortly before the hearing and after the Board had issued its
complaint, does it appear that a pro-rata distribution of Galion's
funds. was made among its former members. Galion fluids were used
to pay the rent for the hall on August 5, and also for the printing of
the authorization cards of Buckeye; only in the latter instance was
the money refunded by Buckeye, and that occurred only shortly before
the hearing in this case.
Although authorization cards, check-off authorization forms, and
formal contract were prepared, neither a constitution nor bylaws
setting forth the scope and purpose of the organization or defining
the rights and duties of its members were ever adopted.
The expression of intention by Sutter to "change the name [of
Galion] and start over"; the formation of Buckeye immediately fol-
lowing the disestablishment of Galion during a meeting at which
Galion's president acted as chairman and Galion's secretary took the
minutes in Galion's minute book and which in other respects also was
not clearly differentiated from a meeting of Galion; the election as
Buckeye officers of Galion committeemen, two of whom in addition
were gang leaders; the continued active participation in Buckeye
affairs of Galion's president and secretary; the use of Galion's funds
by Buckeye; the respondent's failure to differentiate clearly between
Galion and Buckeye; the failure of Buckeye to adopt a constitution
or bylaws; and the other circumstances hereinabove set forth, lead us
THE PERFECTION STEEL BODY CO1V1PANY 865
to the conclusion that Buckeye was but a continuation of Galion and
its illegal successor.
Following Buckeye's formation, the respondent granted financial
and other support to that organization. On September 9, 1940, or
simultaneously with its efforts to procure members _17 Buckeye was
assured of the financial support to be derived from commissions on the
sales of products dispensed by the vending machines. The support
so granted is attributable to the respolident.18 The proposal which led
to the installation of the milk-vending machine was referred by Ralph
Cobey, the son of the respondent's president, to Pfahler, Galion's
last president; while Henry Cobey referred the matter to the com-
mitteemen of Buckeye. Further, the machine was placed on company
property and utilized electricity 'provided by the respondent.1°
The respondent argues in its brief that this did not constitute
financial support and that "if the employees gained anything from
the installation of these machines, it was a return to them of their
own funds." However, the arrangement agreed upon, with the re-
spondent's consent, was not that all the employees would receive the
benefit of the commissions, but that Buckeye and its members would
be the recipients. It is significant that on September 9, 1940, at the
same meeting that approved the proposal concerning the installation
of. the milk machine, it was decided that the dues of Buckeye would
be only 25 cents per month, while the dues in Galion had been double
that amount. In its brief, the respondent asserts 'that the clues in
Buckeye were set at that figure, not because it was assured of the
support in question, but because "Buckeye had a closed shop." It
was not until 10 days later, however, that the first mention of a desire
for a closed shop was made in the minutes of the Buckeye meetings,
and not until 4 days after that, when the contract was signed on
September 23, 1940, that the members of Buckeye were certain that
Cobey would accede to their closed-shop demand.
The participation in Buckeye's affairs by persons closely allied to
management could not possibly have been ignored by either the
employees or the respondent, for of the six members of Buckeye's
negotiating committee who signed the contract, three-Metzger, Car-
penter, and Lowmiller-were gang leaders.
As noted above'21 the respondent granted recognition and a closed
17 As noted above , the cords designating Buckeye as collective bargaining agent were
secured either on September 9 or 'September 16 and were signed between one of those dates
and October 1.
18 See Matter of Sussex Dye & Print Works , Inc., and Bernard If. Armour and Federa-
tion of Dyers , Finishers, P3` ihters and Bleachers of America , 34 N. L . R. B., No. 81.
19 While the cost of the electricity was small, its payment by the respondent and the
permissive use of its property for the milk - and candy-vending machines which accumulated
commissions for the benefit of Buckeye signified to the employees that the respondent
favored Buckeye.
20 See footnote 14, supra.
4.33118-42--vol. 36-56
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shop to Buckeye without attempting to check upon the validity of
its claims to be the majority representative-a course of conduct in
strange contrast to the respondent's previous refusal to accept or even
investigate the membership claims which had been presented by the
Union, but strikingly similar to its hasty recognition of Galion:?'
As heretofore related, the employees, when informed of Cobey's
disinclination to accept the closed-shop provision in the proposed
contract, variously threatened to tear up the agreement or to dissolve
Buckeye. That the employees expressed themselves in such a manner
indicates that they regarded Buckeye and the agreement as something
which the respondent desired, and the abandonment of either or both
as something which the respondent would wish to avoid. Even before
he had signed the closed-shop contract, Cobey was uncertain of its
validity, as well as of the legitimacy of Buckeye itself, as shown by
the fact that he requested the Buckeye committee to secure "recogni-
tion" from the Board, because, to use Cobey's own words, "It might
possibly help me out down there." 22 ,
In view of the foregoing, we find that the respondent established,
maintained, and assisted Buckeye by unfair labor practices. The
closed-shop contract, having been made with a labor organization thus
unlawfully' sponsored, constituted a violation of the Act and was
invalid in its inception.23 By executing the contract and by requir-
ing membership in Buckeye as a condition of employment, the re-
spondent provided further support to that labor organization.24
Moreover, in view of the illegality of the closed-shop contract, the
21The respondent contends that the last paragraph of the notice which it had posted on
August 5 , 1940 ( see footnote 4, supra ), to the effect that. it would not grant recognition
to a labor organization until such organization had been certified by the Board , applied
only to a situation involving conflicting claims of rival labor organizations , and that no
such situation was present in this case. Under the circumstances of this case, it is
unnecessary for as to decide whether or not the respondent violated the provision of the
notice in question by granting recognition to Buckeye . 'Moreover , we do not agree with
the respondent 's contention that there were no conflicting claims of rival labor organiza-'
tions in this case . The Union had shown a continuing interest in the representation of
the respondent's employees, having filed charges with the Board in both the present and
the prior case , and having presented its claim to the respondent that it represented a
majority of the employees even before Galion was unlawf ]ly granted recognition. The
formation of Buckeye immediately following the disestablishment of Galion effectively
forestalled the Union in any further attempts to organize the employees.
'a Cobey did not, however , make such a request until lie had already granted recognition
to Buckeye, nor did lie suggest that the closed-shop provision of the contract be waived
until October 25, 1940, nearly 2 weeks after he had received the Union's letter alleging
that Buckeye was an unlawful organization and stating that a copy of such letter was
being forwarded to the Regional Office of the Board, and the day after the charges in
this case had been filed with the Regional Director by the Union.
23A closed-shop agreement entered into between an employer and a labor organization
is valid only if it meets the requirements of the proviso to Section 8 (3) of the Act.
The language of that proviso expressly excludes from its protection an agreement which
is made with a labor organization "established , maintained, and assisted by any action
defined in . . . [ the] Act as an unfair labor practice ." See Matter of Williams. Coal
Company, et at. and United Mine Workers of America, District No. 23, 11 N. L. R. B. 579.
'A See Matter of Sussex Dye d Print Works, Inc., and Bernard R. Armour and Federa-
tion of Dyers, Finishers, Printers and Bleachers of America, 34 N. L. R. B., No. 81.
THE PERFECTION STEEL BODY COMPANY 867
posting of the notice of the closed-shop agreement in the plant on
September 27, 1940, the subsequent interrogation. conceiving union
membership, and the warnings of Superintendent Brick and Foreman
Finical that the terms of the contract would be enforced constituted
further acts of interference, restraint, and coercion and support of
Buckeye.
From the foregoing facts, and upon the basis of the entire record
in this, as well as in the prior proceeding,25 we find that the respond-
ent dominated and interfered with the formation and administration
of Buckeye and contributed financial and other support to it, and that
it thereby, and by entering into the closed-shop contract with Buckeye,
by posting notice thereof in the plant, and by the interrogation and
warnings of Superintendent Brick and Foreman Finical, interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the re-
spondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic., and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices within the meaning of Section 8 (1) and (2) of the Act,
we shall order the respondent, pursuant to the mandate of Section
10 (c) and in order to effectuate the purposes and policies of the
Act, to cease and desist therefrom, and to take certain affirmative
action.
We have found that the respondent has dominated and interfered
with the formation and administration of Buckeye and has con-
tributed financial and other support to it. Its continued existence is
.a consequence of violation of the Act, thwarting the purposes of the
Act and rendering ineffective a mere order to cease the unfair labor
practices.26 In order to effectuate the policies of the Act and free
2s See footnote 3 supra.
28 See Consolidated Edison Co. v. N . L. R. B., 305 U . S. 197 , 236, aff'g as modified 95 F.
(.2d) 390 (C. C. A. 2, and enf 'g as modified in other respects Matter of Consolidated Edison
Company of Nev) York, Inc., et at. and United Electrical and Radio Workers of America,
affiliated with the Committee for Industrial Organization , 4 N. L. R. B. 71, where the
Supreme Court said :
The continued existence of a company union established by unfair labor practices
or of a union dominated by the employer is a consequence of violation of the Act
whose continuance thwarts the purposes of the Act and renders ineffective an.y'order
restraining the unfair labor practices.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees of the respondent front such domination and inter-
ference, and the, effects thereof, we will order the respondent to
withdraw all recognition from and disestablish Buckeye as the rep-
resentative of any of its employees for the purposes of collective
bargaining. We have further found that the respondent's contract
with Buckeye is invalid under the Act. We will order the respond-
ent to cease and desist from giving effect to said contract, as well
as to any extension, renewal, modification, or supplement therof, -and
to any superseding contract which may now be in force. Our Order,
however, is not to be construed as a requirement that the respondent
vary its relations with its employees in such matters as wages, hours,
vacations, and seniority, which the respondent has established in
performance of the contract we have here found to be invalid; though
this proviso, of course, does not afford the respondent the privilege
of imposing upon its employees membership in Buckeye as a condi-
tion of employment.
Upon' the basis of the foregoing findings of fact and upon the
entire record and proceedings in the case, the Board makes the fol-
lowing :
CONCLUSIONS OF LAW
1. Local 1151, International Association of Machinists, affiliated
with the A. F. of L., and Buckeye Metal Workers Association, are
labor organizations, and Galion Metal Workers Association was a
labor organization, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of Buckeye Metal Workers Association, and by contributing
support thereto, the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (2) of the
Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
ORDER
.
Upon the basis of the above 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 re-
spondent, The Perfection Steel Body Company, also known as The
Perfection Burial Vault Company, Galion, Ohio, its officers, agents,
successors, and assigns shall:
THE PERFECTION STEEL BODY COMPANY 869
1. Cease and desist from :
(a) Dominating or interfering with the administration of Buck-
eye Metal Workers Association, or with the formation or adminis-
tration of any other labor organization of its employees and from
contributing support to Buckeye Metal Workers Association or to
any other labor organization of its employees;
(b) Recognizing Buckeye Metal Workers Association as the rep-
resentative of any of its employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment;
(c) Giving effect to its contract, dated September 16, 1940, with
Buckeye Metal Workers Association or to any extension, renewal,
modification, or supplement thereof, or to any superseding contract
with said Buckeye Metal Workers Association which may now be
in force;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as-guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from Buckeye Metal Workers Asso-
ciation as the representative of any of its employees for the purpose
of dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, and completely disestablish said Buckeye Metal Workers
Association as such representative;
(b) Post immediately in conspicuous places throughout its plant
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating that the
respondent will not engage in the conduct from which *it is ordered
to cease and desist in paragraphs 1 (a), (b), (c), and (d) of this
Order, and that it will take the affirmative action set forth in para-'
graph 2 (a) of this Order;
(c) 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.
Mr. Gerard D. Reilly took no part in the consideration of the
above Decision and Order.