Packard Motor Car Co.

In the Matter Of PACKARD MOTOR CAR COMPANY and INTERNATIONAL UNION, UNITED AUTOMOBILE. AIRCRAFT AND AGRICULTURAL IMPLE- MENT WORKERS OF AMERICA, LOCAL 12 (CIO) Case No. 8-C-1865.-Decided September 30, 1.9.6 Mr. Richard C. Swander, for the Board. Marshall, Melhorn, Wall c Bloch, of Toledo, Ohio, by Messrs. Arnold F. Bunge, F. W. Fennell, of Toledo, Ohio, and Mr. Carl W. Bivins, of Detroit, Mich., for the respondent. Mr. Lloyd L. Speidell, of Toledo, Ohio, for the Union. Mr. Wm. C. Baisinger, Jr., of counsel to the Board. DECISION AND ORDER On July 15, 1946, Trial Examiner Arthur Leff issued his Intermedi- ate Report in the above-entitled proceeding, finding that the respond- ent Packard Motor Car Company had engaged in 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 Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a support- ing brief. Pursuant to notice and at the request of the respondent, on September 19, 1946, the Board heard oral argument at Washington, D. C. The respondent appeared and participated in the argument; the Union did not appear. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief filed by the respondent, the arguments advanced at the oral argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board 71 N L R. B., No. 13. 66 PACKARD MOTOR CAR COMPANY 67 hereby orders that the respondent, Packard Motor Car Company, and irs officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 12 (CIO), as the exclusive representative of all guards and fire marshals employed at the respondent's Toledo, Ohio, plant, excluding the chief (or captain), lieutenants and sergeants, with respect to wages, rates of pay, hours of employment, or other condi- tions of employment; (b) Engaging in any other acts in any manner interfering with the efforts of International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America, Local 12 (CIO), to negotiate for or represent the employees as the exclusive bargaining agent in the aforesaid bargaining unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 12 (CIO), as the exclusive bargaining representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, or other conditions of employment. (b) Post at its plant at Toledo, Ohio, copies of the notice attached to the Intermediate Report herein marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's representa- tive, 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 re- spondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Eighth Region in writing, within ten (10) clays from the date of this Order, what steps the respondent has taken to comply therewith. MR. JAMES J. REYNOLDS, JR., took not part in the consideration of the above Decision and Order. ' This notice , however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words: "The recommendations of a Trial Examiner" and substituting in lieu thereof the words : "A decision and order." In the event that this order is enforced by decree of a Circuit Court of Appeals , there shall be inserted , before the words "A Decision and Order," the words : - "A decree of the United States Circuit Court of Appeals enforcing." 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. Richard C. Swwander, for the Board. Messrs. Marshall, Meihorn, Wall & Bloch, of Toledo, Ohio. by Messrs. Arnold F. Bunge; F. W. Fennell, of Toledo, Ohio, and Mr Carl W. Bivnns, of Detroit, Mich., for the respondent Mr. Lloyd L Speidell, of Toledo, Ohio, for the Union. STATEMENT OF THE CASE Upon a charge duly filed' by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 12 (CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued its com- plaint dated May 16, 1946, against the Packard Motor Car Company, herein called the respondent, alleging that the respondent has engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 3 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance : (1) that all guards and fire marshals, excluding the chief, lieutenants, and ser- geants, employed at the respondent's Toledo, Ohio, plant, constitute a unit appro- priate for the purposes of collective bargaining; (2) that at an election con- ducted on May 26, 1944, under the supervision of the Board's Regional Director for the Eighth Region, a majority of the employees in the said unit designated the Union as their representative for the purposes of collective bargaining, (3) that at all times since May 26, 1944, the Union has been the exclusive representa- tive of the employees in the said apropriate unit; and (4) that since on or about January 15, 1945, the respondent has refused to bargain collectively with the Union as the exclusive, representative of the employees in said unit. The respondent thereafter filed its answer in which it admitted that at the election on May 26, 1944, a majority of the persons in the unit, alleged as appro- priate, cast ballots in favor of the Union, and that at all times on and after January 15, 1946, the respondent has refused to bargain collectively with the Union as the exclusive bargaining representative of the persons in said unit, but the respondent otherwise denied the allegations of the complaint with respect to the unfair labor practices. The respondent's answer also sets forth, by way of justification of its refusal to bargain, certain affirmative defenses which will be referred to and considered in the section below entitled, "The unfair labor practices." Pursuant to notice, a hearing was held on June 17, 1946, at Toledo, Ohio, before the undersigned, Arthur Leff, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented at the hear- ing by counsel and the Union by a representative 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 close of the Board's case, the under- signed granted a motion of counsel for the Board to conform the pleadings to the proof as to dates and minor variances At the close of the hearing, the respondent moved to dismiss the complaint for lack of proof The motion is hereby denied. Only counsel for the Board availed himself of the opportunity afforded to all 1 The charge was filed on November 7, 1945. PACKARD MOTOR CAR COMPANY 69 parties to present oral argument before the undersigned. On July 8, 1946, the re- spondent filed a brief. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT' 1. THE BUSINESS OF THE RESPONDENT Packard Motor Car Company, a Michigan corporation with its principal office in Detroit, Michigan, owns and operates several plants in and about the Detroit area. At Toledo, Ohio, it operates a plant owned by the Defense Plant Corpora- tion where it is engaged in experimental work in connection with jet propelled air- craft engines and the manufacture of such engines. The respondent's Toledo plant is alone involved in this proceeding. In the course and conduct of its busi- ness, the respondent causes a substantial amount of raw materials and sup- plies used by it in the manufacture of its products to be delivered and trans- ported to its Toledo plant from and through States of the United States other than the State of Ohio. It also causes large quantities of the products manu- factured by it to be sold and transported from its Toledo plant to and through States of the United States other than the State of Ohio. During the 12 months' period preceding the date of the hearing, the respondent purchased raw materials valued in excess of $500,000, a substantial portion of which was shipped to its Toledo plant from points outside the State of Ohio. During that same period more than half of the respondent's finished products, valued in excess of $1,000,- 000, was shipped by it to points outside of the State of Ohio. The respondent admits that it is engaged in commerce within the meaning of the Act. H. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 12. affiliated with the Congress of Industrial Or- ganizations, is a labor organization admitting to membership employees of the respondent' IN. THE UNFAIR LABOR PRACTICES A. The unit alleged as appropriate; representation by the Union of a majority therein On May 19, 1944, the Union and the respondent entered into an AGREEMENT FOR CONSENT ELECTION, approved by the Board's Regional Director foi the Eighth Region, providing for an election by secret ballot to be conducted under the supervision of the Regional Director to determine whether the respondent's plant protection employees at its Toledo plant desired to be represented by the Union. The parties agreed that All guards and fire marshals, but excluding chief, lieutenants and sergeants, constitute a unit appropriate for the purposes of collective bargaining 2 There is no dispute as to the facts in this case . All findings made herein are based either upon stipulated facts or upon uncontradicted evidence. 8 Local 12 is an amalgamated local to which are affiliated a number of separate "units" from different plants throughout Toledo. Each unit is in the nature of a branch or sub- local and is individually organized, having its own officers and negotiating committee and conducting its membership meetings separately. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 26, 1944, an election was held pursuant to the agreement Of the 35 eligible voters, 31 voted, and 26 cast ballots in favor of and 5 in opposition to representation by the Union. On May 31, 1944, the Regional Director, in accord- ance with the provisions of the agreement, issued his CONSENT DETERnIINA- TION OF REPRESENTATIVES, finding and certifying that the Union was the exclusive representative of all the employees in the unit defined above for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment.' B. The refusal to bargain Following its designation as bargaining representative, the Union commenced negotiations with the respondent for a collective bargaining agreement in the plant protection unit. Thereafter and until January 15, 1945, the respondent willingly niet and bargained with the Union whenever it was requested to do so. During that period, contract proposals and counter-proposals were exchanged. However, no final contract was consummated, the delay being attributable, for a time, to, the desire of the parties first to conclude negotiations on a contract in the pro- duction and maintenance unit, and later, to the reluctance of the Company to agree to any wage increase which it was, not reasonably sure the War Labor Board would approve and to the efforts of the Union to obtain informal assurance from the War Labor Board that its proposed wage increase would be approved upon joint application. About January 15, 1945, David C Lindsay, the respondent's industrial relations manager, advised the Union's negotiating committee that the respondent would no longer recognize the Union as the bargaining representative of its plant protec- tion personnel. The respondent's determination to withdraw recognition, as the union committee was informed at that time, was based upon the decisions of the Sixth Circuit Court of Appeals in N L R. B. v Federal Truck Co and N L R B. v Jones and Laughlan Steel Corporation, 116 F (2d) 718. Notwithstanding Lindsay's advice, the Union thereafter persisted unsuccess- fully in efforts again to secure recognition. In February 1945, the Union referred the dispute concerning recognition to the United States Conciliation Service, but the attempt of the Conciliator to bring about a settlement of the dispute through direct negotiations proved of no avail On May 19, 1945, the Conciliation Service certified the dispute to the National War Labor Boat d. There the matter rested until September 18, 1945, when at a meeting before the Regional War Labor Board, the parties in effect were advised by the Chairman of the Regional Board that his agency could not be expected to consider the issue of recognition, since the National War Labor Board had declined to assert jurisdiction on that question in a prior case where a similar issue involving plant protection employees had been raised.r Shortly after October 17, 1945, when the respondent's guards and fire marshals were demilitarized, the Union renewed its demand for recognition, but the respond- ent continued to adhere to its position. J At that time the Union was, as it still is, the recognized exclusive bargaiping repre- sentative for the respondent's production and maintenance employees . The plant protec- tion employees in Local 12 were originally merged with the production and maintenance employees in a common organizational "unit" ( see footnote 3, above ). However, at the insistence of the respondent, the Union, in June 1944, set up a separate organizational unit for the respondent 's plant protection employees . This unit has its own officers and negotiating committee , and meets separately from the production and maintenance unit. 5 At that time , it was also suggested by the Regional War Labor Board that consideration be given to a procedure under which grievances of plant protection employees might be ad- justed by direct dealing between an employees ' grievance committee and the respondent without reference to the Union. PACKARD MOTOR CAR COMPANY 71 Since January 15, 1945, the respondent has not only refused to negotiate with the Union, but it has taken unilateral action with respect to the terms and conditions of employment of its guards and fire marshals. In June 1945, the respondent, without notifying or consulting the Union, filed an application with the Eleventh Regional War Labor Board, requesting leave to grant its plant protection employees vacations with pay for the year 1944 or to make a payment in lieu thereof on the same basis that employees in other bargaining units had been granted such benefits The Union first received notice of this application when the War Labor Board after it was filed, wrote the Union requesting an expression of its position with regard thereto. Although protesting the failure of the respondent to negotiate with it concerning the vacation plan, the Union, after a meeting of its plant protection unit, advised the War Labor Board that it had no objection to that agency processing the application The respondent admits that since on or about January 15, 1945, it has refused to bargain collectively with the Union in the unit of guards and fire marshals which was defined in the consent election agreement as a unit appropriate for the purposes of collective bargaining. C. The petition of October 6, 1945 On or about October 6, 1945, there was presented to the respondent a petition, signed by a majority of the guards and fire marshals in the unit alleged as appropriate, reading as follows : We the undersigned desire to form an association , whereby we may be represented as a collective body and call this Association by a name selected by it's members . And not controlled by any other organization , but our own guard unit. We can appoint a committee to bring our grievances before our superior officers to be settled for the benefit of all members and the Packard :Motor Car Co., and have a more corporative [ sic] understanding among our- selves. We can appoint a committee to represent us as a body for increase in salary and any grievances that arises , these things cannot be done alone, but can be done collectively We can set a time and place for meetings and draw a book of rules such as other police and fire departments have, we all can help each other in a more friendly way for all concerned. The respondent took no action with respect to this petition , and, so far as the record discloses , the proposal to form an Association was not further pursued. D. The duties, responsibilities, and status of the guards and fire marshals The respondent's plant protection force, together with its maintenance depart- ment, is under the general supervision of its plant engineer The force consists of guards, fire marshals, and their supervisors. Since the opening of the plant in August 1943, the complement of this force has ranged in number from 26 to 52. Of these, 7, a captain (or chief), 3 lieutenants, and 3 sergeants are supervisors with authority effectively to recommend changes in employee status ; the others, the guards and fire marshals, admittedly perfoim no supervisory functions The guards and fire marshals were enrolled as Auxiliary Military Police from August 1943, when the respondent took over the operation of the Toledo plant, until October 17, 1945. They were also deputized as sheriffs of Lucas County, Ohio On October 17. 1945, the guards and fire marshals were demilitarized by order of the United States Army authorities, but they have since continued to retain their status as deputy sheriffs. Both during and following their period of militarization, their duties and responsibilities, as well as their relationship 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the respondent, except where otherwise indicated below, have remained sub- stantially unchanged. Their duties, in brief, consist of the detection and prevention of fire, theft, sabotage and disorder in the plant. There are two kinds of guards, those who patrol the plant property and those who have fixed posts. It is the duty of the patrolling guards to observe the conduct of employees and others with regard to matters of safety, the violation of laws and company rules, the protection of government property against acts of sabotage and espionage, and the main- tenance of the security of restricted areas The fixed post guards, who are stationed principally at the various entrances and exits of the plant property, are required to keep out trespassers, to identify all persons and vehicles entering or leaving the plant property, and to inspect all vehicles, equipment, lunch boxes, and parcels coming into or going out of the plant property. The fire marshals are principally concerned with protecting the plant premises against fire, includ- ing the inspection and maintenance of fire-fighting equipment. But when not on duty as such, the fire marshals act as guards and are then responsible to the captain, lieutenant, and sergeants of the guards All guards, but not fire marshals, are armed. Both guards and marshals, while on duty, wear uniforms supplied by the respondent; these are the same now as during the militarization period save for the omission of auxiliary military police shoulder patches. As auxiliary military police, the guards and fire marshals were subject to the Articles of `Var. They were required to take an oath and enter into an agreement with the United States that they would support and bear allegiance to the Constitution of the United States, that they would faithfully discharge their duties as civilian auxiliaries of the military police to protect war materials, war premises, and war utilities, and that they would obey any orders issued in connection therewith by the President of the United States, as Commander-in-Chief, or his duly authorized officers As auxiliary military police, the guards were empowered to make arrests without warrant under the Sabotage and Espionage Act As deputy sheriffs, the guards are peace officers under the laws of Ohio and, as such officers, are charged under the law with preventing injury to property, breaches of the peace, and criminal offenses, and are empowered to arrest and detain persons found violating Ohio laws or village or city ordinances until a warrant can be obtained As deputy sheriffs, these guards take an oath to support the Constitution and Laws of the United States and the State of Ohio Neither militarization nor deputization has basically affected the respondent's control and supervision of the guards, or its authority to determine their hours, wages, and terms and conditions of employment.' Both during and after their period of militarization, the guards and fire marshals have been hired through the respondent's personnel office where their applications have been initially received and where they have been interviewed through the captain of the guards, himself an employee of the respondent. The responsibility and authority to dis- charge or discipline them has remained vested in the respondent 7 Their wages, In a circular dated March 17, 1943, over the signature of the Chief of Staff of the General Staff Corps it was stated : 6 b (1) Basically, the militarization of plant guard force does not change the existing system of hiring, compensation, and dismissal; all remain primarily a matter between the guards and the plant managements. Guards in the employ of a private employer may, as heretofore, be dismissed by that employer- However, during the period of militarization, the respondent's right to discharge (and the guard's right to resign) was subject to approval by the responsible Army representa- tive who could withhold his approval when he had reason to believe that the efficiency of the plant's guard force would be impaired thereby. PACKARD MOTOR CAR COMPANY 73 paid by the respondent, their hours of work, their working conditions, and their daily individual work assignments have been determined exclusively by the respondent without reference either to superior authorities of the United States Army or to the Sheriff of Lucas County.' With respect to the laws and regula- tions affecting social security, unemployment insurance, and workmen's com- pensation, the guards and fire marshals have been considered as possessing the same status as other employees of the respondent. E. The respondent's contentions, and conclusions with respect thereto The respondent does not dispute that, but for the other considerations urged by it, its plant guards and fire marshals exclusive of supervisory employees would constitute a proper grouping for purposes of collective bargaining. But it takes the position that it is undei no obligation to bargain with the Union as the exclusive bargaining representative in the unit which it previously agreed was an appropriate one. It contends: (1) that the guards and fire marshals are required to act in the interest of the respondent and for that reason are "employers" and not "employees" within the meaning of the Act; (2) that the nature of the duties and obligations of the guards and fire marshals is such that their representation by the same union which represents production and maintenance workers would create a conflict of interests and allegiance on their part, would be incompatible with their obligations to the respondent and the public, and would be detrimental to the public interest, and that, therefore, the policies of the Act would not be effectuated by a finding that they constitute an appropriate unit; and (3) that the union, in any event, has lost its status as majority representative in the unit alleged as appropriate. These contentions are hereinafter considered in the order indicated. 1. As -to the contention that the plant guards and fire marshals are not "employees" within the meaning of the Act Substantially the same contention has heretofore been considered by the Board on numerous occasions and, in each instance, has been ruled on adversely to the respondent's position ° It is clear from the record, and the respondent concedes, that the guards and marshals exercise monitorial and not supervisory functions. While it is true that the respondent may have delegated to its plant protection 8 In two respects, how ever, the right retained by the respondent during the militariza- tion period to determine hours of work and to give orders and instructions as to work assignments was subject to qualification This is indicated in the following excerpt from an address to the plant guards deliveied by the Army representative on the assump- tion of Army command: In understanding the auxiliary police function , the first step is to get a clear understanding of the relations of the plant guard to the Packard Company. Under normal conditions , the plant operates entirely under its own chief and is trained by hint and his officers It follows the regulations prescribed by the Packard Com- pany The Commanding Officer for the Army Air Forces at the Packard Company takes command only in two instances namely a During the actual periods of instructions given to guards in military subjects by a member of the AAF b In case of special emergencies Apait from a limited number of general instructions defining the guards' duties as aux- iliary military police. the only control ever actually exercised by the military authorities, as far as the record shows, consisted of drill and instruction in gun practice and first aid, consuming appioxiinately an hour a week paid for by the respondent. The Sheriff of Lucas County has never exercised any control whatsoever over the guards. ° See e. g., Matter of Dravo Corporation, 52 N L R B 322 , Matter of Armour and Company, 63 N L. R B 1200 , Matter of Briggs-Indiana Corporation, 68 N. L. R. B. 587. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel certain duties, the performance of which requires them to protect interests, of the respondent, this circumstance alone does not, as urged by the respondent, make them part of management or bring them within the definition of "employer" as used in the Act. In any event, in determining whether or not the guards and marshals are "employees" within the meaning of the Act, it is their relationship to the respondent rather than to other employees that is the point at issue. i As stated by the Board in the Armour case : 10 If the incidents of a particular service relation are such as to permit collective bargaining between those who receive services and those who render them, for changes in the terms and conditions of performing the service, the statutory objectives [i. e, the adjustment of disputes as to wages, hours, and working conditions] are capable of achievement and the relation may then be held to be one of employer and employee. N. L. R. B. v. Hearst Publications, Inc., 322 U. S. 111; N. L. R. B. v. B. A. Blount, 131 F. (2d) 585. (C C. A. 8), cert denied, 318 U. S. 791 Thus. wherever the wages, or hours, or other conditions under which services are performed are fixed by the recipient of the service-the statutory objectives are capable of achievement, and unilateral or individual determination of such terms or conditions may appropriately be displaced by collective bargaining. The status of the guards and fire marshals in their relationship to the respond- ent has been described above. As has been noted, the respondent, during as as well as after the period of militarization, has retained substantial power to. hire and discharge the plant guards, has issued orders to them, has supervised the manner in which they performed their duties, and has reserved to itself the right to determine their compensation, their regular hours of work, and other terms and conditions of their employment. It is found that, in important aspects, the terms and conditions under which the guards and fire marshals work are subject to determination by collective bargaining with the respondent and that their relationship to the respondent is such as to require the protection of the Act. It is, accordingly, concluded and found that the guards and fire marshals are employees of the respondent within the meaning of the Act. 2. As to the contention that the policies of the Act would not be effectuated by a i"inding that the guards and fire marshals constitute an appropriate unit This contention, likewise, has been raised in many other cases previously considered by the Board and has been uniformly decided adversely to the respondent's position here." In its previously decided cases the Board has taken into account, as the undersigned does here, the considerations of public policy and alleged conflict of interest and allegiance which the respondent stresses. There is nothing in the record of the instant case to indicate that the duties, obligations, and status of the respondent's guards and fire marshals has ever, now or in the past, differed materially from that of militarized or deputised plant protection employees who the Board has consistently held may form appropriate bargaining units. To support its position, the respondent relies, as it has from the outset, on the decisions of the Sixth Circuit Court of Appeals in the Jones & Lenghltn case 12 as well as the decisions of the United States Circuit Court of Appeals fo, the 10 Cited in footnote 9 11 See, e. g., Matter of Dravo Corporation, supra ; Matter of Armour and Company, saapra; Matter of International Harvester Company/, 61 N L R B 912 and cases therein cited 17 N. L. R B. v Jones & Laughlin Steel Corporation, 146 F (2d) 718 (C C. A 6), cert. granted, judgment vacated, case remanded for further consideration 325 U S. 838, decision on remand, 154 F. (2d) 932, 17 L. R. R. 1270. PACKARD MOTOR CAR COMPANY 75 Seventh Circuit in the E. C. Atkins Company case.13 The Board has not acqui- esced in those decisions." Following the decisions relied on by the respondent and in the light of the opinions expressed therein, the status of militarized and deputized guards has been re-examined by the Board. After such re-examination, the Board has reiterated its earlier conclusions that there is no incompatibility between union membership and honest, faithful performance of duty by deputized or militarized guards, and that the public-interest will be furthered not by denying such employees opportunity to bargain collectively concerning the terms and conditions of their employment, but by creating separate bargaining units limited to such employees, as was done here 15 For the Board to hold, as the respondent urges, that there must be not only a separation of units but a separation of unions, would require the Board to assume a power, not granted to it under the Act, to impose a limitation upon what representative the employees, in the exercise of the rights guaranteed them by the Act, may choose as their bargaining agent. The requirement that militarized or deputized plant protection employee units be established separate and apart from units of employees who are not militarized or deputized has been met in the instant case. As noted above, the guards and fire marshals have been organized into a separately functioning union group, with separate meetings and separate officers from among their own number. On the record, the undersigned is satisfied, and he finds, that this separation has been, and will continue to be, one of fact as well as form. Under the circumstances, and notwithstanding the fact that the instant case arises within the territorial jurisdiction of the Sixth Circuit Court of Appeals which has held to the contrary, the undersigned is constrained to adhere to the clear policy of the Board as presently established. He accordingly finds that the respondent's contentions, noted above, are without merit. 3. As to the contention that the Union has lost its status as majority representative The respondent's contention in this respect is based upon the petition signed by a majority of the guards and fire marshals which was submitted to it on or about October 6, 1945. Prior to the time the petition was signed and ever since January 15, 1945, the respondent, as it admits, had refused to bargain with the Union in the unit herein found to be appropriate although the Union then unquestionably commanded a majority in that unit. The respondent's refusal to bargain was based upon grounds wholly unrelated to the Union's majority status and upon grounds, more- over, which have been found herein to be untenable. The Supreme Court has recognized that The unlawful refusal of an employer to bargain collectively with its em- ployees' chosen representatives disrupts the employees' morale, deters their organizational activities, and discourages their membership in unions '3 N. L R B. v. E. C. Atkins & Co., 147 F. (2d) 730 (C. C A. 7), cert. granted, judgment vacated, case remanded for further consideration 325 U. S. 838, decision on remand, 18 L. R R 2092 (decided May 31, 1946) 14 See, e g., Matter of Tampa Shipbuilding Company, Inc, 62 N. L. R. B. 954; Matter of Armour and Company, supra; Matter of General Cable Corporation, 68 N. L. R. B. 660 (decided June 17, 1946). At this writing, the time for the Board to file wilts of certiorari in the second Jones it Laughlin decision and in the second Atkins decision has not yet expired Its intention to do so and its continued nonacquiescence is, however, reflected by the General Cable decision which was issued after the Atkins and the Jones it Laughlin decisions on remand were handed down. 15 See, e. g., Matter of Armour and Company, supra, Matter of Tampa Shipbuilding Com- pany, Inc., supra. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and has, therefore, upheld the principle established by the Board that an employer is not excused from his obligation to bargain exclusively with the particular union which represented a majority of the employees at the time of the wrongful refusal to bargain because, subsequent to the refusal, the Union failed to retain its majority.'" In the instant case it is reasonably clear from the background circumstances and in part from the petition itself, and it is found, that the employees at all times desired collective bargaining representation and that it was only because of the respondent's unlawful refusal to accord recognition to the representative of their original choice that they found it necessary to seek some other means to achieve their objectives. It is further found that but for the respondent's un- lawful refusal to recognize the Union after January 15, 1945, the plant guards and fire marshals would have remained members of the Union. The undersigned accordingly concludes that even if the petition of October 6, 1945, is construed as a repudiation of the Union by a majority in the 'unit, this did not affect the status of the Union as the exclusive representative of all the employees in the unit. F. General conclusions On the basis of the foregoing it is concluded and found as follows : 1. The bargaining unit consisting of all guards and fire marshals at the re- spondent's Toledo plant, exclusive of the chief (or captain), lieutenants and ser- geants, to which the parties stipulated in the consent election agreement of May 19, 1944, will insure to the employees therein the full benefit of their right to self-organization and to collective bargaining, and will otherwise effectuate the policies of the Act, and it constitutes and at all times material herein con- stituted a unit appropriate for the purposes of collective bargaining. 2 On and at all times after May 26, 1944, the Union was the duly designated bargaining representative of a majority of the employees in the afoiesaid bar- gaining unit, and, puisuant to the provisions of Section 9 (a) of the Act, the Union was on May 26, 1944, and at all times thereafter has been and is now the exclusive representative of all the employees in the aforesaid unit for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3 The respondent by refusing on January 15, 1945, and at all times thereafter, to accord recognition to the Union and to negotiate with it with respect to a con- tract covering the employees in the unit herein found to be appropriate, as well as by unilaterally making application to the War Labor Board in June 1945 for vacation privileges or vacation pay for such employees, has refused to bargain collectively with the Umoq as the exclusive representative of its employees in the 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" ro Franks Bros Comipany v. N. L. R. B , 321 U. S. 702. See also, N. L. R. B. v. P. Lorillard Company, 314 U. S. 512. 17 The finding of a violation of Section 8 (1) of the Act , herein made , derives wholly from the respondent 's violation of Section 8 (5). At oral argument before the Trial Examiner, counsel for the Board , relying on Mail Department Stores Company v. N.' L R. B., 326 U S 376, argued in effect that the respondent's unilateral War Labor Board application constituted a violation of Section 8 (1), independently of its refusal to bargain. The complaint , however , does not contain an allegation to that effect. Moreover, and while the unilateral application was in derogation of the Union 's right to recognition and representa- tion in such matters, the undersigned is not persuaded on the record of this case , that the respondent made this application in bad faith for the purpose of emphasizing to the em- ployees that there was no necessity for a collective bargaining agent and thereby under- mining the influence of the Union. ' PACKARD MOTOR CAR COMPANY IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 77 The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefioni and take certain affirmative action designed to effectuate the policies of the Act. Because of the basis of the respondent's refusal to bargain as indicated in the facts found, and because of the absence of any evidence that danger of other unfair labor practices is to be anticipated from the respondent's conduct in the past, the undersigned will not recommend that the respondent cease and desist fiom the commission of any other unfair labor practices. Nevertheless, in order to effectuate the policies of the Act, the undersigned will recommend that the respondent cease and desist from the unfair labor practices found and from any other acts in any manner interfering with the efforts of the Union to- negotiate- for or represent the employees as exclusive bargaining agent in the unit herein found appropriate. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, Local 12, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5), of the Act. 2. All guards and fire marshals employed at the respondent's Toledo, Ohio, plant, excluding the chief (or captain), lieutenants, and sergeants, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3 International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, Local 12 (CIO), was on May 26, 1944, and at all times thereafter has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on January 15, 1945, and at all times thereafter, to bargain collectively with International Union, United Automobile, Aircraft and Agricul- tural Implement Workers of America, Local 12 (CIO), as the exclusive repre- sentative of all its employees in the aforesaid unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7'of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondent, Packard Motor Car Company, and its officers, agents, successors, and assigns shall : 1. Cease and desist from: (a) Refusing to bargain collectively with International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, Local 12 (CIO), as the exclusive representative of all guards and fire marshals employed at the respondent's Toledo, Ohio, plant, excluding the chief (or captain), lieutenants and sergeants. (b) Engaging in any other acts in any manner interfering with the efforts of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, Local 12 (CIO), to neVotrate for or represent the employees as the exclusive bargaining agent in the aforesaid bargaining unit. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request bargain collectively with International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, Local 12 (C10), as the exclusive bargaining representative of all employees in the bar- gaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment. (b) Post at its plant at Toledo, Ohio, copies of the notice attached to the Intermediate Report herein marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eighth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) File with the Regional Director for the Eighth Region, on or before ten (10) (lays from the date of the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless on or before ten (10) days from the receipt of the Intermediate Report the respondent notifies said Regional Director in writing that it has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceedings (including rulings upon all motions or objections) as lie relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such state- ment of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the parties and shall file a copy with PACKARD MOTOR CAR COMPANY 79 the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. ARTHUR LEFF, Trial Examiner. Dated July 15, 1946 APPENDIX A NOTICE TO ALL EMPLOYEES Pm snant 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 engage in any acts in any manner interfering with the efforts of International Union, United Automobile, Aircraft and Agricultural Im- plement Workers of America, Local 12 (CIO), to negotiate for or represent the employees in the bargaining unit described below. We will bargain collectively upon request with the above-named union as the exclusive i epresentative of all employees in the bargaining unit described below witli respect to rates of pay, hours of employment or other conditions if employment. The bargaining unit is All guards and fire marshals employed at the Toledo, Ohio, plant, excluding the chief (or captain), lieutenants and sergeants. PACILARD MOTOR CAR COMPANY, Dated-------------------- By---------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 717734-47-vol 71-7