S. W. Evans & Son

In the Matter of S. W. EVANS & SON and AMERICAN FEDERATION OF LABOR Case No. 4-C-4-4b.-Decided January 17, 1949 DECISION AND ORDER On June 18, 1948, Trial Examiner Sidney Lindner issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. He also recommended that the com- plaint be dismissed in so far as it alleged that the Respondent engaged in certain other unfair labor practices. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Respondent's request for oral argument is hereby denied because the record and the exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- man panel consisting of the undersigned Board Members.* The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.2 The Board has considered the Interme- diate Report, the exceptions and brief filed by the Respondent and i No exceptions were filed by any party to the findings and recommendations of the Trial Examiner to dismiss certain allegations of the complaint. *Chairman Herzog and Members Houston and Gray. 8 The Respondent moved to dismiss that part of the complaint based upon acts alleged to have been committed more than 6 months prior to the date upon which the charges were filed. The Trial Examiner denied the motion and the Respondent has excepted to this ruling. The Board has heretofore ruled that Section 10 (b) of the amended Act imposes no limitation upon the issuance of complaints in any case in which the charges were filed and served within 6 months after August 22 , 1947, the effective date of the amendments to the Act. Matter of Itasca Cotton Manufacturing Company, 79 N. L. R. B. 1442. The charges in the instant case were timely filed and served. 81 N. L. R. B., No. 23. 161 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record in the case, and hereby adopts the findings,3 conclu- sions, and recommendations of the Trial Examiner, with the modifi- cations noted herein. • ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, S. W. Evans & Son, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with American Federation of Labor as the exclusive bargaining representative of all production and maintenance employees of the Respondent, including the receiver- shipper helper, and the truck driver, but excluding guards, watchmen, factory and office clericals, foremen, and all other supervisors within the meaning of the Act; (b) In any other manner interfering with, restraining, and co- ercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist American Federation of Labor or any labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any and all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act, as guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 4 (a) Upon request, bargain collectively with American Federation of Labor as the exclusive bargaining representative of all the em- ployees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Post at its plant in Philadelphia, Pennsylvania, copies of the notice attached hereto, marked "Appendix A." Copies of said no- tice, to be furnished by the Regional Director for the Fourth Region, 8 We agree with the Trial Examiner's conclusion that the Respondent violated Section 8 (a) (1) of the Act in the manner particularized. We do not, however, rely upon his finding that the Respondent committed such violations by the "totality of such statements and conduct." I In the event that this order is enforced by a decree of a Court of Appeals , there shall be inserted before the words • "A DECISION AND ORDER" the words "DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." S. W. EVANS & SON 163 shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Fourth Region in writ- ing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent, in violation of Sec- tion 8 (a) (1) of the Act (a) intimidated and harassed employees known to be leaders in the Union, (b) sought to keep and did keep under surveillance its employees' union activities and meeting places, (c) offered special rewards and inducements to its employees for procuring information concerning the union activities of its em- ployees, (d) engaged in conduct and statements on the day of the election, referred to in the Intermediate Report, to influence employees not to vote in the said election, and (e) posted a notice to its em- ployees derogating the Union's status as exclusive bargaining representative. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMERICAN FEDER- ATION OF LABOR or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become or remain members of this Union, or any other labor organization. WE WILL BARGAIN collectively upon request with the above- named Union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, 829595-50-vol. 81-12 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees including the re- ceiver-shipper helper and the truck driver but excluding the guard, watchmen, factory and office clericals, and foremen and all other supervisors. S. W. EVANS & SON, Employer. By-------------------------- (Representative ) (Title) Dated------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. John H. Wood, Jr., and Miss Helen F. Humphrey, for the General Counsel. Messrs. Geoffrey J. Cunniff, John Harper, and William N. J. McGinniss, of Philadelphia, Pa., for the Respondent. Mr. Ralph E. Schmidt, of Philadelphia, Pa., for the Union. STATEMENT OF THE CASE Upon a charge duly filed on January 22, 1948, by American Federation of Labor, herein called the Union, the General Counsel' of the National Labor Relations Board, herein called the Board, by the Regional Director of the Fourth Region (Philadelphia, Pennsylvania), issued a complaint dated April 2, 1948, against S. W. Evans & Son, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and within the meaning of Section 8 (a) (1) and (a) (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended by Public Law 101, 80th Congress, Chapter 120, 1st Session, herein called the Amended Act. These statutes are herein referred to jointly as the Acts. Copies of the complaint, the charge upon which it was based, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that the Respondent : (1) since on or about January 19, 1948, and at all times thereafter has refused to bargain collectively with the Union, although the Union was the representative of a majority of the employees in an appropriate unit ; (2) from on or about November 1946; until on or about January 1948, by other specified acts interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Respondent's answer duly filed admits the jurisdictional allegation of the complaint and that the Union is a labor organization within the meaning of Section 2 (5) of the Act. Although admitting that it refused to bargain collec- 1 The General Counsel and his representative at the hearing are called herein the General Counsel. 11 S. W. EVANS & SON 165 tively with the Union, it denies that the Union on April 30, 1947, or at any other time represented a majority of its employees in the alleged appropriate bargaining unit and avers that the election conducted by the Board was invalid and unlawful and was conducted as a result of a proceeding which denied to the Respondent due process of law. It further denies the commission of any unfair labor practices. Prior to the hearing, a motion by the Respondent's counsel to dismiss the com- plaint on the grounds that the charge upon which the complaint was based failed to set forth a clear and concise statement of facts as required by the Board's Rules and Regulations and further that the charge was filed more than 6 months after certain alleged unfair labor practices occurred, was denied. His alternative motion for a Bill of Particulars was granted to the extent that the General Counsel was ordered to furnish the names of Respondent's officers, agents, rep- resentatives, and employees who made statements and committed the acts complained of, alleged in the complaint to be interference, restraint, and coercion." Pursuant to notice a hearing was held at Philadelphia, Peuns.^ lvania, on April 28, 29, and May 3, 1948, before the undersigned, the Trial Examiner duly desig- nated by the Chief Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by its organizer. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence hearing on the issues was afforded all parties! At the outset of the hearing the Respondent's counsel renewed his motion to dismiss the complaint as made prior to the hearing. This motion was denied: At the conclusion of the submission of evidence by the General Counsel, in support of his case-in-chief, counsel for the Respondent moved to dismiss several allegations of the complaint for lack of proof. The motion was granted with respect to the allegations that the Respond- ent from on or about November 1946 until on or about January 19, 1948, interfered with, restrained, and coerced its employees in the exercise of the rights guaran- teed in Section 7 of the Act in that it sought to keep and did keep under surveillance its eniplo. ees' iynion activities and meeting places, and offered special rewards and inducements to its employees for procuring information is These motions made prior to the hearing were ruled on by Trial Examiner William E. Spencer. 2 The exclusion by the undersigned of certain testimony offered by the Respondent is discussed hereinafter. 3 The Respondent also set forth in its brief that the complaint issued herein was at sub- stantial variance with the charge , in that nowhere in the charge is there any mention of any of the charges alleging violation of Section 8 (1) of the Act or Section 8 (a) (1) of the Amended Act alleged in paragraph 8 of the complaint . That every single element in a complaint issued by the Board need not be covered by a charge filed with the Board has been expressly decided by the Supreme Court. National Licorice Co. v. .V L. R B., 309 U. S. 350 Furthermore, as Mr. Justice Jackson stated in N. L. R. B. v. Indiana and Michigan Electric Company, et al, 318 U . S 9, " . . . The charge is not proof, it merely sets in motion the machinery of an inquiry . When a Board complaint issues, the question is only the truth of its accusations . The charge does not even serve the purpose of a pleading . Dubious character, evil or unlawful motives or bad faith of the informer cannot deprive the Board of its Jurisdiction to conduct the inquiry." (Emphasis supplied.) The Respondent also contended at the hearing and in its brief that since the charge was filed on January 22 , 1948, and some of the violations alleged under paragraph 8 of the complaint took place between the fall of 1946 and spring of 1947 , that under Sec- tion 10 (b) of the Amended Act , the General Counsel is precluded from issuing a complaint. It is the undersigned 's opinion that Section 10 (b) of the Amended Act imposes no limita- tion upon the issuance of complaints in any case in which the charges have been filed within 6 months after August 22, 1947, the effective date of the amendments. See Smartley v. Pennsylvania Sugar Company, 108 F. ( 2d) 603 (C. C. A. 4) ; Anderson v. General, etc.. 134 Minn. 21, 158 N. W. 715. 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerning the union activities of its employees. At the conclusion of the testi- mony the General Counsel moved to amend the pleadings to conform to the proof as to minor matters not going to the substance of the complaint. This motion was granted without objection Although offered an opportunity to do so, none of the parties presented oral argument before the undersigned at the hearing. The parties were granted the privilege of submitting briefs and/or proposed findings of fact and conclusions of law or both for the consideration of the undersigned. Briefs were received from counsel for the Respondent and from the General Counsel on June 7, 1948. Upon the entire record in the case, and from his observation of the witnesses, the undersigned orders the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 4 S. W. Evans & Son, a Pennsylvania corporation, is engaged in electroplating and in the manufacture of umbrella frames at its plant in Philadelphia, Pennsyl- vania. The Respondent annually purchases for use at its plant raw materials valued in excess of $100,000 of which approximately 50 percent represents ship- ments from points outside the Commonwealth of Pennsylvania. During a similar period the Respondent manufactured finished products valued in excess of $100,000 of which approximately 50 percent represents shipments to points outside the Commonwealth of Pennsylvania. The Respondent admits that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED American Federation of Labor is a labor organization which admits to member- ship employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Organizational activities of the Union among the Respondent's employees began in or about October 1946. Olympia Perry, an employee in the Respondent's frame assembly departments since August 1945, testified that her foreman, Charles Heintz, in October 1946, came to her place of work and asked if she had received a letter from the Union and if she was going to the union meeting. Perry replied that she had received such a letter but did not know whether she was going to the meeting. Whereupon Heintz said, "Well, if you go, report back to me who was there and what was said and what went on." The following day Heintz inquired if Perry had attended the union meeting and she replied that she had not. Mary Thul, a springer in the Respondent's frame assembly department for a period of 10 months prior to April 1947, testified that during November 1946, Charles Heintz came to her machine and asked if she had received a letter from the Union. Thal replied that she had not. Heintz then inquired if she would show him the letter when she received it. Thal said "that she would not mind." Thul received a letter from the Union 3 or 4 days after this conversation and while Heintz was adjusting her machine, she so advised him. Heintz took the letter from Thul and putting it in his pocket asked Thul whether she would 4 The findings are based on a stipulation of the parties entered on the record. I The frame assembly department is also referred to herein as Department 40. S. W. EVANS & SON 167 attend the meeting. Thul answered that she would like to go in order to hear what was said there, and added that she did not think there was anything wrong in attending a union meeting. Heintz then advised Thul that the Respondent had a girl at every union meeting who reported back the names of all employees in attendance. Heintz remarked, "You see the blondie in front of me? I know she attends the meetings and I will guarantee that she won't be here too long." In it third conversation which took place sometime in March or early April 1947, Heintz asked Thul if she had yet attended any union meetings. Thul answered that she had not, that she was not too interested in unions because she worked at one place for 23 years where they did not have a union. Heintz then offered his opinion that unions were no good. He told Thul that it would cost her $10 to join, and that whatever benefits the girls would obtain by having the Union in the plant would be more than offset by assessments and other union levies during the year. After some further conversation regarding the relative merits of unions, Heintz stated, "They have tried to get unions in here for the last 30 years and never got one in yet and we'd rather close the place down before we would ever get a union in here, which happened before and then we rehired again." Georgeanna Melton, who was employed as an inspector in Department 40 during the fall of 1946 and up to January 1947, testified that in early December 1946, Heintz, in a conversation with her at her work table, inquired if she knew who was passing the union cards around. Melton answered that she did not know. Heintz stated that he intended to fire anyone who had anything to do with the Union adding, "I hope you are not one of them." Later in December 1946, Heintz asked Melton if she knew whether Elsie Emmett ° was passing the union cards around. Melton quit her employment during the month of January 1947, because of illness. She applied for reinstatement to her job in February. Heintz interviewed her in the plant employment office and said, "Ann, you are a good worker and I would like to have you back, but I understand you are one of the leaders in this union and we are not going to have a un on in our plant," stating further that the Respondent would never have a union in its plant and that he would fire anyone who had anything to do with the Union. Heintz then remarked that there was a union meeting the night before and inquired if Melton attended. When Melton answered yes, Heintz asked her which of Re- spondent's employees were there and Melton replied that she did not remember the names. Charles Heintz categorically denied having made the statements ascribed to him by Perry. Heintz testifying with respect to his three conversations with Thul, categorically denied that he at any time asked her whether she received a letter from the Union and whether she would give the same to him when she did receive one. He further denied that he took the union letter from Thul during the second conversation with her. With respect to the third conversation Heintz testified that Thul told him that she worked at a plant for 23 years, that she did not belong to a union and did not see why a union was necessary in the Respondent's plant, stating further that it was her opinion that the Respondent should raise the employees' pay a nickel and a union would not be necessary there and that the employees would be better off. Testifying in contradiction to Mel- ton's version of conversations with him, Heintz stated that at or about Christmas of 1946, he made a statement to her that it was not permissible for any employee to pass union cards around the plant during working hours and that if he caught 6 Elsie Emmett was a wrapper employed in Department 40. 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD anyone doing it while on duty, that person would be discharged.' He denied asking her if she knew who was passing the union cards around. He also denied asking her if Elsie Emmett was passing union cards around the plant and making the statement that the Respondent would discharge anybody who had anything to do with the Union. Heintz further testified that in February 1947 he saw Melton in the employment office when she returned to the plant seeking reemploy- ment. He stated that Melton wanted a job as chief inspector , that she felt that she could make good in such job, and that in return for the better job she would be glad to furnish information to the Respondent regarding union activities in the plant. Heintz advised her that the Respondent did not have any work at that time and could not reemploy her. He denied mentioning anything about a union meeting and asking her who was in attendance at such a meeting. Heintz also testified that about a week or two after he saw Melton in the employment office she appeared on the fourth floor of the plant, which houses Department 40, at about 5 o'clock in the afternoon and wanted to know from him if he had made up his mind to put her back to work. Heintz told her that she would have to see the personnel manager for reemployment. From his demeanor on the witness stand Heintz impressed the undersigned as an unreliable witness. Heintz' over-all testimony disclosed him to be an evasive witness. Perry and Melton on the other hand impressed the undersigned as forthright witnesses. Thul although garrulous at times was in the opinion of the undersigned a credible witness. The undersigned finds that by the statements and conduct of its foreman, Charles Heintz, in interrogating its employees concerning their union activities ; in his statement to Thul that the Respondent would "rather close the place down before we would ever get a union in here, which happened before and then we rehired again"; as well as Heintz' remark to Thul indicating knowledge of those present at the union meeting B and by the totality of such statements and conduct, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. Further alleged acts of interference, restraint, and eoe)cion The complaint alleges that the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act in that it intimidated and harassed employees known to he leader'; in the Union. The record reveals that the only known leader of the Union employed in the plant was its president, Joseph Weikel, employed in the heat treating department. Weikel testified that early in February 1947, Louis Tartaglia, the Respondent's plant superintendent, spoke to him at his place of work in a joking manner, and asked him about the Union, addressing him as "Mr. President." Early in April 1947, Tartaglia asked Weikel how the Union was coming along and how many members it had. Weikel replied that between 160 and 180 em- ' Other than Heintz' testimony, the Respondent did not offer any proof to show that it had a no-solicitation rule in effect at any time, or that it warned its employees of any such policy. 8 Although Heintz' remarks to Thul indicating knowledge of those present at the union meeting are not sufficient in the opinion of the undersigned to establish that the Respondent engaged in surveillance which is separately alleged in the complaint as violative of Section 8 (1) of the Act , and which as shown heretofore was dismissed at the end of the General Counsel's case upon motion of the Respondent 's counsel , nevertheless , such expression is sufficient to foster the impression that the Respondent did engage in surveillance and hence was as intimidatory in character as surveillance itself. See Matter of Harold W. Baker Co , 71 N. L. R. B. 44. S. W. EVANS & SON 169 ployees had applied for membership. Tartaglia then told Weikel that person- ally he did not like unions and that a union would not be good for the Respondent. Tartaglia at the same time warned Weikel that if he caught him doing anything out of line he would be fired. Tartaglia denied asking Weikel how many members were enrolled in the Union. He admitted telling Weikel on several occasions that if he caught him out of line he would be fired. Tartaglia explained that he had received several complaints regarding Weikel and that he personally caught Weikel smoking in restricted areas and reprimanded him for such infraction. Tartaglia's testi- mony in this regard and his explanation for having talked with Weikel on several occasions is credited. The undersigned also credits his denial that he did not ask Weikel how many members there were in the Union. Weikel also testified that during April 1947, Harry Gabriel , foreman of De- partment 30, where ribs and stretchers were assembled for frames of umbrellas, while passing through his department, asked him how his work was coming along, and advised him that for his (Weikel's) sake not to have anything to do with the Union if he knew what was good for him. Gabriel testifying in con- tradiction to Weikel's version of the conversation, stated that it was his custom to go down to the heat treating department to confer with the foreman there regarding faulty work that was received in his department. On one occasion while Gabriel was walking through the department he talked with Weikel merely saying "Hello ! Joe; how's things going?" The undersigned credits Gabriel's testimony in this regard. As noted above Weikel admitted that when he was addressed as "Mr. Presi- dent" by Tartaglia, the latter was talking to him in a joking manner. Upon all the foregoing, the General Counsel, in the opinion of the undersigned, has failed to establish that the Respondent intimidated and harassed employees known to be leaders in the Union and it will accordingly be recommended that the said alle- gation of the complaint be dismissed. Paragraph 8, subdivision F, of the complaint alleges that the Respondent violated Section 7 of the Act in that it engaged in conduct and statements on the day of the election to influence employees not to vote in the said election. The General Counsel adduced testimony from Thul to the effect that at about 4 p. m. on April 30, she was standing on a street corner opposite the front plant gates and about 25 feet from the gate. That from her position she saw Leonard Shallcross, th- personnel manager, Charles Heintz, and Tartaglia standing at the front gate She testified that as the employees left the plant at the completion of their shift, the three management officials motioned the employees in a direction opposite from the location of the polling place where the Board election was being conducted. Thul admitted that she did not hear any conversation between the management officials and the employees as they were leaving the plant. Perry testified that she was also in front of the plant gate at about 4 p. in. on April 30, and that she saw Tartaglia, Shallcross, Gabriel, Charles Heintz and his son, Rudolph Heintz, who is also a foreman at the plant, stationed at different gates within the plant premises. She stated that she was about 4 feet from Charles Heintz and heard him say to several girls as they were leaving the front plant gate, that if they wanted to keep their jobs they had better not vote. Perry admitted that she did not know who the girls were to whom Heintz addressed his remarks. She testified that she recognized them as employees having seen them on previous occasions coming in and out of the plant. She further admitted that none of the girls to whom Charles Heintz spoke are still at the plant and she did not know the name of a single employee to whom he spoke. 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Certainly Thul's testimony that she saw some supervisory employee motioning employees in a direction opposite from the polling place, cannot be accepted as evidence of the fact that such employees were influenced not to vote in the said election. Furthermore, even crediting Perry's testimony regarding Heintz' re- marks, there is no substantial evidence that the said remarks were made to em- ployees. None of the people to whom the remarks were made were produced as witnesses by the General Counsel. Under the circumstances the undersigned is of the opinion and finds that the General Counsel failed to prove by substantial evidence that employees were influenced not to vote in the said election and accordingly, will recommend that the said allegation of the complaint be dismissed. Paragraph 8, subdivision G, of the complaint alleges that the Respondent violated Section 7 of the Act in that it posted a notice to its employees derogating the Union's status as exclusive bargaining representative. The notice reads as follows : To All Employees of S. W. Evans & Son: The American Federation of Labor has seen fit to circulate hand-bills amongst you referring to a decision of the National Labor Relations Board. We think ii is our duty to tell each one of our employees exactly how we feel with respect to this decision. This Company does not intend to sit down and bargain with the American Federation of Labor as your representative, because it feels that the decision of the National Labor Relations Board was wrong and unfair to the great majority of our employees. On April 30, 1947, only 57 out of 176 employees voted for this Union. We now have 283 employees on our Shop Payroll. We do not intend to allow a Union which represents only a small number of our employees to decide the wages, hours and working conditions of the great majority. Because of the unfairness of this decision both, to the great majority of the employees and to the Company, we will not abide by it unless ordered to do so by the United States Court. S. W. EVANS & SoN, By WAYNE S. EVANS, President. The said notice was posted on the plant bulletin board and a copy sent to the Union in answer to its request to bargain. The undersigned does not interpret the said notice as one derogating the Union's status as exclusive bargaining representative.' Furthermore, even assuming arguendo that the notice is in derogation of the Union's status as exclusive bargaining representative, nevertheless, it is clear that it is the Respondent's opinion of its interpretation of the Board's Decision and Certification of Repre- sentatives, and sets forth the Respondent's views regarding its future dealings with the Union ; it does not contain any threats of reprisal, or force or promise of benefit and is therefore protected under Section 8 (c) of the Amended Act. Accordingly it is found that the said notice is not in violation of the Acts and it will be recommended that the said allegation of the complaint be dismissed. Cf. Matter of Crompton-Highland Mills, Inc., 70 N. L. R. B. 206. S. W. EVANS & SON 171 C. The refusal to bargain 1. The appropriate unit and representation by the Union of a majority therein On January 14, 1948, after a hearing duly held, the Board issued its Decision and Certification of Representatives 10 wherein it found that all production and maintenance employees of the Respondent at its Philadelphia, Pennsylvania, plant, including the receiver-shipper helper and the truck driver, but excluding the guard, watchmen, factory and office clericals, foreman and all other super- visors constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. In its answer the Respondent did not deny the appropriateness of the unit as alleged in the complaint but averred as follows : The Respondent is without knowledge as to whether or not the allegations with respect to the appropriate bargaining unit as set forth in Paragraph 4 of the Complaint are true and correct, and having no knowledge thereof, Respondent demands proof of the same. The Respondent is further advised by Counsel, and, therefore, avers that Paragraph 4 is a conclusion of law with respect to which no specific denial is necessary. In the instant proceeding the Respondent did not seriously contest the ap- propriateness of the unit, but did seek to adduce testimony relating to matter in existence at the time of the representation hearing. It was not shown that this testimony was newly discovered or unavailable or not known to the Re- spondent at the time of that hearing. As a matter of fact it appears from the record in the representation hearing that the Respondent refused to offer any testimony whatsoever.11 The issues having already been litigated, the undersigned excluded this testimony offered by the Respondent.12 The matter excluded appears in the transcript as a proffer and shows that it is the Respon- dent's position that prior to the prehearing election held on April 30, 1947, the Respondent insisted that it be heard on the question of the appropriateness of the unit since it claimed there were substantial issues involved, including the status of 5 leaders or assistant foremen, 6 factory clericals, 2 heads of the shipping department and truck drivers. In addition it claimed there was a question as to whether or not the Respondent's working force would not be materially decreased at that time, and that shortly prior to the election it was decreased by 110 employees. The record in the representation hearing shows that the Union agreed to exclude from the appropriate unit all office and factory clericals and the assistant foremen named at the hearing by the Respondent's personnel manager. The Board also considered and dealt with the shipping department employees and the truck driver in its Decision and Certification of 10 Matter of S W. Evans t Son, 75 N. L. R B 811. A prehearing election was con- ducted on April 30, 1947, and a hearing was held on June 25, 1947. 11 The record does reveal, however, that pursuant to a request of the hearing officer pre- siding at the representation hearing, the Respondent stated "that its position on unit is that the unit should be all production and maintenance employees including the truck driver , but excluding assistant foremen , heads of the Shipping Department, factory clericals, office clericals, and all supervisory employees within the Board's definition of that word." 12 Matter of Pittsburgh Plate Glass Company, 15 N. L. R. B. 515, enf'd 113 F. ( 2d) 698 (C. C A. 8), aff'd 313 U. S . 146; Matter of West Kentucky Coal Company, 57 N. L. R. B. 89, enf'd as mod, 152 F. (2d) 198 (C. C. A. 6), cert. denied 328 U. S. 866; Matter of Allis- Chalmers Manufacturing Company, 70 N. L. R. B. 348, enf'd 162 F. ( 2d) 435 (C. C. A. 7) ; Matter of Swift and Company, 63 N. L. R. B . 718, enf'd as mod. 162 F. (2d) 575 (C. C. A. 3). 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Representatives, referred to supra. Under all of the circumstances, the under- signed finds in accordance with the Board's previous determination that all production and maintenance employees of the Respondent at its Philadelphia, Pennsylvania, plant, including the receiver-shipper helper and the truck driver, but excluding the guard, watchmen, factory and office clericals, foremen and all other supervisors, have at all times material herein constituted and do now constitute an appropriate unit within the meaning of the Acts ; he finds further that said unit will insure to the employees of the Respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectu- ate the purposes of the Act. At the close of the election on April 30, 1947, a Tally of Ballots was furnished the parties. The Tally showed that there were approximately 307 eligible voters and that 82 ballots were cast of which 54 were for the Union, 1 against the Union and 27 were challenged. In its Decision and Certification of Representa- tives referred to supra, the Board noted that the record in the representation hearing disclosed that between March 29 and April 30, 1947, the date of the election, 113 of the listed employees appearing on the pay roll of March 29, 1947, which was furnished the Board by the Respondent, were "permanently ter- minated" and that 18 additional employees on the list were supervisors and ineligible to vote. The Board accordingly found that at the time of the election there were approximately 176 eligible voters. As appears further from the Board's Decision and Certification of Representatives, supra, and from the record in the representation hearing, the Board found in accordance with the agreement of the parties that 24 of the challenged ballots were cast by "per- manently terminated" employees who were ineligible to vote, it therefore sus- tained the challenges to the ballots of the 24 terminated employees and over- ruled the challenge to the other ballot. With respect to the remaining 2 challenged ballots the Board found 1 to be an eligible voter and sustained the challenge to the ballot of 1 other whom the parties agreed at the hearing to exclude as a supervisor. As heretofore noted, the Respondent (lid not offer any testimony at the repre- sentation hearing, but moved to dismiss the proceeding on the following grounds : (1) that the Respondent was entitled to a hearing before the election took place and not afterwards particularly on the unit question; (2) that the record in the representation hearing indicates that no question concerning representa- tion existed, due to the fact that the election conducted by the Board on April 30, as reflected from the Tally of Ballots indicated that a representative number of the employees did not participate in the election. The Board in its Decision and Certification of Representatives, supra, denied the motion in the following language: As already noted the record discloses that :i7 eligible employees of the approximately 176 eligible voters in the unit, voted at the election. It is unfortunate that a more substantial number of those eligible to vote did not see fit to exercise the franchise granted them under the Act. How- ever, it is a well established principle that in the conduct of a democratic election, where adequate opportunity to participate in the balloting is pro- vided all those eligible to vote, the decision of the majority actually voting is binding on all. The indifference or neglect of those failing to exercise the right given them by law should not be permitted to invalidate an other- wise properly conducted election." Consequently, and because we find no 4 Matter of A A. Fagan, et at., 73 N. L. R. B. 680; Matter of A. L. Mechling Barge Lines, 69 N. L. R. B. 838; Matter of Stiesel Construction Corporation, 65 N. L. R. B. 925. S. W. EVANS & SON 173 merit in the other contentions addressed to the validity of this proceeding,° we hereby deny the motion to dismiss. 6 Matter of Lehigh River Mills, Inc, Case No. 4-R-2543. It is the position of the Respondent as set forth in its answer that the Union has not been the representative of it majority of the employees in the appropriate unit. In the instant hearing the Respondent sought to adduce testimony to the effect that shortly after the election on April 30, 1947, the Respondent's working force was decreased by 110 employees. The undersigned excluded the testimony offered by the Respondent for the reasons set forth hereinabove. The Respond- ent did not offer any other proof on the question of majority at the hearing. Accordingly, the undersigned finds that on and at all times after January 14, 1948, the Union was the duly designated bargaining representative of a majority of the employees in the afore-mentioned appropriate uit, and that pursuant to the provisions of Section 9 (a) of the Act the Union was on January 14, 1948, and at all times thereafter has been and is now the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2 The refusal to bargain The complaint alleges and the Respondent's answer admits that on or about January 19, 1948, the Union requested the Respondent to bargain collectively with respect to rates of pay, wages, hours of employment and other conditions of employment and that on or about January 19, 1948, and at all times thereafter, the Respondent refused and is continuing to refuse to bargain collectively with the Union as the exclusive representative of all the employees in the appropriate unit. The Respondent, although admitting that it refused to bargain collectively with the Union, contends in its answer and brief that the Union did not on April 30, 1947, or at any other time, represent a majority of its employees in an appropriate bargaining unit, and that the prehearing election conducted by the Board on April 30, 1947, was invalid and unlawful and denied to the Respondent due process of law. The undersigned has found above that the Union repre- sented a majority of the employees in the appropriate unit. The undersigned also does not find any merit in the second contention of the Respondent. The Board in several recent decisions held that prehearing elections conducted prior to the effective date of the Amended Act are valid.13 Further, the Board held that the employer's contention that the Board exceeded its authority in a prior representation proceeding by conducting a prehearing election, was not a valid defense of its refusal to bargain." The undersigned finds that the Respondent on January 19, 1948, and at all times thereafter has refused to bargain collectively with the Union as the ex- clusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, 18 See Matter of Lehigh River Mills, Inc., 75 N. L. R. B. 280 ; Matter of Farmers Feed Company, et at., 75 N. L R. B. 617. 14 Matter of Underwood Machinery Company, 74 N. L. R. B. 641. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that on January 19, 1948, and at all times thereafter the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. In order to effectuate the policies of the Act, the undersigned will recommend that upon request the Respondent bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit in respect to rates of pay, wages, hours, and other terms and conditions of employment. It has also been found that by the acts and conduct of Foreman Charles Heintz, the Respondent interfered generally with the rights of its employees as guaranteed by the Act. The undersigned will therefore recommend that the Respondent cease and desist from in any other manner interfering with, restrain- ing, or coercing its employees in their rights to self-organization" Upon the basis of the foregoing findings 'of fact and upon the entire record the undersigned makes the following : CONCLUSIONS OF LAW 1. American Federation of Labor is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent, including the receiver-shipper helper and the truck driver but excluding the guard, watch- men, factory and office clericals, and foremen and other supervisors having authority in the interests of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, award or discipline other employees or re- sponsibly to direct them or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment, constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Acts. 3. American Federation of Labor was on April 30, 1947, and at all times since has been, the exclusive representative of all the employees in the said unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Acts. 4. By refusing on January 14, 1948, and at all times thereafter to bargain collectively with American Federation of Labor as the exclusive representative of all its employees in the aforesaid appropriate unit Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Amended Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act the Respondent has engaged in 35 See May Department Stores Company v. N. L R. R, 326 U S 376 affirming as modified 146 F. ( 2d) (C. C . A. 8) enforcing 53 N. L. R B. 1366. S. W. EVANS & SON 175 unfair labor practices within the meaning of Section 8 (1) and 8 (a) (1) of the Acts. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. The Respondent has not engaged in unfair labor practices by : intimidating and harassing employees known to be leaders in the Union ; by engaging in conduct and statements on April 30, 1947, the day of the prehearing election, to influence employees not to vote in said election ; and by posting a notice to its employees derogating the Union's status as exclusive bargaining representative. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law the under- signed recommends that S. W. Evans & Son, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with American Federation of Labor as the exclusive representative of all production and maintenance employees of the Respondent including the receiver-shipper helper and the truck driver but excluding the guard, watchmen, factory and office clericals and foremen and other supervisors having authority in the interest of the employer to hire, trans- fer, suspend, lay off, recall, promote, discharge , assign, reward or discipline other employees or responsibly to direct them or to adjust their grievances or effectively recommend such action if in connection with the foregoing the exer- cise of such authority is not of a merely routine or clerical nature but requires the use of independent judgment ; (b) In any other manner interfering with, restraining, and coercing its em- ployees in the exercise of the right to self-organization, to form labor organ- izations, to join or assist American Federation of Labor or any labor organiza- tion, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request bargain collectively with American Federation of Labor as the exclusive representatives of all its employees in the aforesaid appropriate unit; (b) Post at its plant In Philadelphia, Pennsylvania, copies of the notice at- tached hereto marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fourth Region, shall, after being signed by Re- spondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent committed unfair labor practices by : intimidating and har- assing employees known to be leaders in the Union; engaging in conduct and statements on April 30, 1947, the day of the prehearing election referred to herein, 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to influence employees not to vote in the said election ; posting a notice to its employees derogating the Union's status as exclusive bargaining representative. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board, Series 5, effective August 22, 1947, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Roch:unbeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rul- ings upon all motions or objections) as he relies upon, together with the original and six copies of a brief in support thereof ; and any party may, with the same period, file an original and six copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.85. As further pro- vided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations , the findings, conclusions, recommendations , and recom- mended order herein contained shall, as provided in Section 203 48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections and exceptions thereto shall be deemed waived for all purposes. SIDNEY LINDNE1I, Trial Eianliner. Dated June 18, 1948. APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist AMERICAN FEDERATION OF LABOR or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this Union, or any other labor organi- zation. WE WILL BARGAIN collectively upon request with the above-named Union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: S. W. EVANS & SON 177 All production and maintenance employees including the receiver-shipper helper and the truck driver but excluding the guard, watchmen, factory and office clericals, and foremen and all other supervisors. S. W. EvANS & SoN. Employer. By ------------------------- (Representative ) ( Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.