The Standard Transformer Co.

THE STANDARD TRANSFORMER COMPANY Appendix 669 NOTICE TO ALL MEMBERS OF PAINTERS' DISTRICT COUNCIL NO. 6, BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, AFL, AND FURNI- TUBE FINISHERS , LOCAL UNION 725, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL 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, as amended, we hereby notify you that : WE WILL NOT restrain or coerce employees of THE HIGBEE COMPANY, Cleveland, Ohio, in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, as guaranteed to them by Section 7 of the Act. PAINTERS' DISTRICT COUNCIL No. 6, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL, By ----------------------------------------- (Representative) (Title) FURNITURE FINISHERS, LOCAL UNION 725, BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, AFL, 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. THE STANDARD TRANSFORMER COMPANY and INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO. Case No. 8-CA- 397. December 28, 1951 Decision and Order On June 25, 1951, Trial Examiner Sydney S. Asher, Jr., issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent 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. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter the Respondent and the 97 NLRB No. 107. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Counsel filed exceptions and supporting briefs, and The Standard Transformer Workers, Inc., referred to in the Intermediate Report as the Independent, filed exceptions.,, 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 affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and adopts the findings, conclusions, and recommendations of the Trial Examiner with a modification in the recommended affirmative action to be taken by the Respondent. We agree with the Trial Examiner that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act by refusing on November 2, 1950, and at all times thereafter, to bargain collectively with International Union of Electrical, Radio & Machine Workers, CIO, as the exclusive rep- resentative of its employees in the appropriate unit .2 We do not adopt the Trial Examiner's recommended order to the extent that it orders the Respondent to reimburse its employees for any dues deducted from their wages pursuant to the checkoff provision of the Respondent's contract with The Standard Transformer Workers, Inc., dated June 6, 1950. There is no evidence in the record that the Respondent enforced an involuntary checkoff, or otherwise unlawfully coerced its employees into paying dues.3 We therefore do not order reimbursement to the employees of dues deducted under the checkoff provision of the illegal contract. 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, The Standard Transformer Company, its officers, agents, successors, and assigns, shall : ' The Respondent has requested oral argument . In our opinion the record , the excep- tions, and briefs fully present the issues and the positions of the parties . Accordingly, this request is denied. 2N. L R. B. v. A. J. Tower Company, 329 U. S. 324; N. L. R. B. v Capitol Greyhound Lines et al., 140 F. 2d 754 (C. A. 6), certiorari denied 322 U. S. 763: Semi-Steel Casting Company of St. Louis v . N. L. R. $., 160 F. 2d 388 (C. A. 8), certiorari denied 322 U. S. 758; Aetna Fire Brick Company, 56 NLRB 849; Miehle Printing Press & Manufacturing Co., 58 NLRB 1134 ; Ferriss-Lee Lumber & Mfg. Co., 71 NLRB 989; Highland Park Manu- facturing Company, 84 NLRB 744 , enforcement denied on other grounds , 184 F. 2d 98 (C. A. 4), affirmed 341 U. S. 322 ; McMullen Leavens Company, 83 NLRB 948; Merrimac Hat Corporation, 85 NLRB 329 ; International Shoe Co, 87 NLRB 479; General Armature & Manufacturing Co., 89 NLRB 654. Contra : N. L. R. B. v. Sidran Sportswear, 181 F. 2d 671 (C. A. 5), denying enforcement of the Board 's order. 8 Peerless Quarries, Inc., 92 NLRB 1194 ; Salant & Salant, Inc., 88 NLRB 816. THE STANDARD TRANSFORMER COMPANY 671 1. Cease and desist from : (a) Interrogating its employees concerning how they intend to vote in any election to be conducted by the National Labor Relations Board, or concerning their union affiliations or activities. (b) Threatening economic reprisal against its employees if they assist, become members of, remain members of, or choose as their bargaining representative International Union of Electrical, Radio & Machine Workers, CIO, or any other labor organization, or fail to remain members of, or to retain as their bargaining representative The Standard Transformer Workers, Inc., or any other labor-organi- zation. (c) Offering its employees wage increases, additional vacations or vacation pay, or any other economic benefits, if they refrain from assisting, becoming members of, or remaining members of Interna- tional Union of Electrical, Radio & Machine Workers, CIO, or any other labor organization, and continue their membership in and activi- ties on behalf of The Standard Transformer Workers, Inc., or any other labor organization. (d) Ordering or directing representatives of The Standard Trans- former Workers, Inc., or any other labor organization, to negotiate with the Respondent, or to call a meeting of its members, or otherwise interfering with the administration of any labor organization. (e) Ordering or directing its employees to attend any meeting of The Standard Transformer Workers, Inc., or any other labor organi- zation. (f) Soliciting or encouraging the solicitation of its employees to sign petitions favoring retention of The Standard Transformer Work- ers, Inc., or any other labor organization, as their bargaining agent. (g) Furnishing The Standard Transformer Workers, Inc., or any other labor organization, with a meeting place, refreshments, or any other material aid. (h) Executing any contract or agreement with The Standard Trans- former Workers, Inc., or any other labor organization, concerning wages, hours, or other conditions of employment, after having ren- dered illegal aid and assistance to the contracting labor organization, or at a time when a valid question concerning the representation of its employees is pending. (i) Recognizing The Standard Transformer Workers, Inc., or any successor labor organization, as the representative of any of its em- ployees for the purpose of dealing with the Respondent concerning grievances, labor disputes, wages, hours, or other conditions of em- ployment, unless and until the said labor organization has been certi- fied by the National Labor Relations Board. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (j) Performing or giving effect to its contract of June 6, 1950, with The Standard Transformer Workers, Inc., or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding entered into with the said labor organiza- tion relating to grievances, labor disputes, wages, hours, or other con- ditions of employment unless and until the said labor organization has been certified by the National Labor Relations Board. (k) Refusing to bargain collectively with International Union of Electrical, Radio & Machine Workers, CIO, as the exclusive repre- sentative of all its employees in the appropriate unit with respect to wages, hours, or other conditions of employment. (1) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of Electrical, Radio & Machine Workers, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the-extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from The Standard Transformer Workers, Inc., or any successor labor organization, as the representative of any of its employees for the purposes of dealing with the Respondent concerning grievances, labor disputes, wages, hours, or other conditions of. employment, unless and until the said labor organization has been certified by the National Labor Relations Board. (b) Upon request, bargain collectively with International Union of Electrical, Radio & Machine Workers, CIO, as the exclusive repre- sentative of all production and maintenance employees of the Respon- dent employed at its Warren, Ohio, plant, excluding office and clerical employees, professional employees, guards, and supervisors as defined in the Act, with respect to wages, hours, and other conditions of em- ployment, and if an understanding is reached, embody such under- standing in a signed agreement. (c) Post immediately at its plant in Warren, Ohio, copies of the attached notice marked "Appendix A".' Copies of said notice, to be furnished by the Regional Director for the Eighth Region (Cleveland, Ohio) shall, after being duly signed by the Respondent's representa- 4 In the event that this Order is enforced by a decree of a United States Court of Appeals there shall be inserted before the words, "A Decision and Order," the words, "A Decree of the United States Court of Appeals Enforcing." THE STANDARD TRANSFORMER COMPANY 673 tive, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the said notices are not altered, defaced, or covered by any other material. (d) Notify the said Regional Director, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges that the Respondent violated Section 3 (a) (1) and (2) of the Act by paying a bonus to its employees in June 1951. CHAIRMAN HERZOG and MEMBER STYLES took no part in the consid- eration of the above Decision and Order. 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 interrogate our employees concerning how they intend to vote in any election to be conducted by the National Labor Relations Board, or concerning their union affiliations or activities. WE WILL NOT threaten economic reprisal against our employees if they assist, become members of, remain members of, or choose as their bargaining representative INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, or any other labor organization, or fail to remain members of, or to retain as their bargaining representative THE STANDARD TRANSFORMER WORKERS, INC., or any-other labor organization. WE WILL NOT offer our employees wage increases, additional vacations, or vacation pay, or any other economic benefits, if they refrain from assisting, becoming members of, or remaining mem- bers Of INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, or any other labor organization, and continue their membership in and activities on behalf of THE STANDARD TRANSFORMER WORKERS, INC., or any other labor organization. WE WILL NOT order or direct representatives of THE STANDARD TRANSFORMER WORKERS, INC., or any other labor organization, to negotiate with us, or to call a meeting of its members, or otherwise interfere with the administration of any labor organization. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT order or direct our employees to attend any meet- ing of THE STANDARD TRANSFORMER WORKERS, INC., or any other labor organization. WE WILL NOT solicit or encourage the solicitation of our em- ployees to sign petitions favoring retention of THE STANDARD TRANSFORMER WORKERS, INC., or any other labor organization, as their bargaining agent. WE WILL NOT furnish THE STANDARD TRANSFORMER WORKERS, INC., or any other labor organization, with a meeting place, re- freshments, or any other material aid. WE WILL NOT execute any contract or agreement with THE STANDARD TRANSFORMER WORKERS, INC., or any other labor organ- ization, concerning wages, hours, or.other conditions of employ- ment, after having rendered illegal aid and assistance to the contracting labor organization, or at a time when a valid question concerning the representation of our employees is pending. WE WILL NOT recognize THE STANDARD TRANSFORMER WORKERS, INC., or any successor labor organization, as the representative of any of our employees for the purposes of dealing with us con- cerning grievances, labor disputes, wages, hours, or other conditions of employment, unless and until the said labor organ- ization has been certified by the National Labor Relations Board. WE WILL NOT perform or give effect to our contract of June 6, 1950, with THE STANDARD TRANSFORMER WORKERS, INC., or to any modification, extension, supplement, or renewal thereof, or to any other contract, agreement, or understanding entered into with the said labor organization relating to grievances, labor disputes, wages, hours, or other conditions of employment, unless and until the said labor organization has been certified by the National Labor Relations Board. WE WILL NOT refuse to bargain collectively with INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, as the exclusive representative of all our employees in the appropriate unit with respect to wages, hours, or other conditions of employ- ment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organiza- tion, to form labor organizations, to join or assist INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement re- THE STANDARD TRANSFORMER COMPANY 675 quiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL withdraw and withhold all recognition from THE STANDARD TRANSFORMER WORKERS, INC., or any successor labor organization, as the representative of any of our employees for the purposes of dealing with us concerning grievances, labor disputes, wages, hours, or other conditions of employment, unless and until the said labor organization has been certified by the' National Labor Relations Board. WE WILL bargain collectively, upon request, with INTERNA- TIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, C10, as the exclusive representative of all our employees in the bargain- ing unit described herein with respect to wages, hours, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargain- ing unit is : All production and maintenance employees employed at our Warren, Ohio, plant, excluding office and clerical em- ployees, professional employees, guards, and supervisors as defined in the National Labor Relations Act. THE STANDARD TRANSFORMER COMPANY, 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 STATEMENT OF THE CASE This case involves allegations that The Standard Transformer Company, herein called the Respondent, unlawfully interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, in violation of Section 8 (a) (1) of the Act ; dominated , contributed to the sup- port of, and interfered with the administration of The Standard Transformer Workers, Inc., herein called the Independent, in violation of Section 8 (a) (2) of the Act; and failed and refused to bargain collectively with International Union of Electrical, Radio & Machine Workers, CIO, the charging party, herein called the IUE , as the exclusive representative of its employees in an appropriate bargaining unit, in violation of Section 8 (a) (5) of the Act. The issues, framed by a complaint and answer duly filed ,' were fully litigated at a hearing before I Both the Respondent and the Independent were served with copies of the charge, amended charge , complaint , and notice of hearing. The Respondent filed an answer, the Independent did not. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me in Warren, Ohio, on March 6 and 7, 1951. Counsel for the General Counsel of the National Labor Relations Board, herein called the General Counsel, counsel for the Respondent, and representatives of the IUE participated fully in the hearing.- The Independent was not represented at the hearing. At the close of the session of March 7, on motion of the General CounseI,,the hearing was continued Indefinitely. Thereafter, on March 15, 1951, an order was issued formally closing the hearing. Briefs have been received from the Respondent, the General Counsel, and the Independent, and have been duly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 2 The Standard Transformer Company is an Ohio corporation, with its princi- pal office and place of business in Warren, Ohio. It is engaged in the manu- facture, sale, and distribution of electrical transformers. In the course and .conduct of its business operations, the Respondent annually purchases raw materials exceeding $1,600,000 in value, of which more than 30 percent is shipped to the Respondent's plant in Warren, Ohio, from points outside the State of Ohio. The finished products of the Respondent's Warren, Ohio, plant amount to more than $3,000,000 in value per annum, of which in excess of 95 percent is shipped from its Warren, Ohio, plant to points outside the State of Ohio. In view of the above facts, I find that the Respondent is engaged in com- merce within the meaning of the Act. II. THE ORGANIZATIONS INVOLVED 8 International Union of Electrical, Radio & Machine Workers, CIO, and The Standard Transformer Workers, Inc., are labor organizations within the mean- ing of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events prior to the Board election On June 11, 1948, the Respondent entered into a collective bargaining agree- ment with the Independent, governing the wages, hours, and conditions of employment of the Respondent's employees. This agreement was to continue in effect for 1 year, with provision for automatic renewal for a second year, in the absence of the 30 days' written notice by either party that it desired to cancel or amend the contract. On May 26, 1949, the parties executed an "ad- dendum," which provided that the 1948 contract should be continued for the second year, with certain changes not here material. In January 1950, the Respondent laid off between 20 and 25 employees, thus reducing its-working force to about 100. During May, 1950, the parties met a number of times to negotiate a new con- tract. On these occasions, the Respondent was represented either by W. F. Parker, its president, or by Oscar L. Bowden, its superintendent, or by both. The Independent requested a wage increase of 15 cents an hour, and a continua- tion of the then existing 45-hour week. Parker and Bowden pointed out that 2 The findings of fact contained In this section are based upon the allegations of the complaint and the admissions of the answer. 3 The findings of fact contained in this section are based upon the allegations of the complaint and the admissions of the answer. THE STANDARD TRANSFORMER COMPANY 677 business conditions were unfavorable , and that the Respondent's plant was overstaffed. They explained that if the Respondent granted a wage increase of 15 cents an hour, it would be necessary to lay off 18 to 28 employees, which they were reluctant to do. Furthermore, they stated that the hourly cost of labor was increased by about 5 percent, because overtime premium rates required the Respondent to pay 471/2 hours' pay for 45 hours' work. They also took the position that if wages were increased 5 percent or more, the Respondent would be forced to cut its hours to 40 hours per week. Finally, Bowden suggested that the present hours and pay be continued for a period of 90 days, in which case no employees would be laid off during that period. The Independent did not agree to this proposal' In mid-May, Bowden called into his office certain employees who were not members of the Independent's bargaining committee and inquired if they thought the employees would accept a wage increase of 15 cents an hour. Ac- cording to Bowden, this was "my method of getting a consensus of opinion of the feeling of the men that have made that Company." On May 31, 1950, the IUE wrote to Parker, requesting recognition as the, exclusive bargaining agent of the Respondent's employees' This letter was, received about June 1, 1950. So far as the record shows, it was never answered. Early in June 1950, several employees who were members of the Independent's negotiating committee told Bowden that they would not attend further negotiat- ing meetings because the employees had voted that they should not do so.. Bowden, accompanied by a witness, then approached these employees and stated : "I, as superintendent of the Standard Transformer Company, wish to see you_ in my office immediately." In accordance with this order, the employees gathered in Bowden's office and discussed the ability of the Respondent to grant a wage. increase in the face of the then existing business conditions. On June 5, Bowden called to his office employee Richard Marsh, vice president of the Independent,' and employee Horace Sewell, chairman of the board of- trustees of the Independent! Bowden explained that business was slack and that the Respondent therefore found itself compelled to lay off some employees, He also stated that the Respondent was willing to grant a wage increase of 15 cents an hour, if the Independent would agree to reduce the workweek from_ 45 to 40 hours. He then told Marsh and Sewell that the Independent would * There is some evidence that Bowden also offered a wage increase of 5 percent. How- ever, I deem it unnecessary to make a finding in this respect. I It is not clear on what date the IUE commenced to organize the Respondent's employ- ees. Employee Richard Marsh testified that he received a telephone call from a rep- resentative of the IUE on May 29 or 30 with reference to a demand by the IUE for bargaining rights, and that he was approached on June 5 by some of his fellow employees with a request that he sign an authorization petition in favor of the IUE 6A few days prior to June 5, the president of the Independent had resigned , leaving- Marsh the highest ranking official in the Independent. On June 5, Marsh tried to band. his resignation to the Independent's secretary and to the chairman of its board of trustees. Both officials of the Independent refused to accept Marsh 's resignation . Marsh finally placed the resignation in the pocket of the chairman of the board of trustees. Later that day, when Bowden requested Marsh to come into his office , Marsh explained that he had attempted to resign his position as vice president of the Independent. Bowden replied : "Well, that is all right , just come in anyway." 'The finding that Bowden called only Marsh and Sewell into his office is based upon Marsh's credited testimony . Although Sewell testified, his testimony did not cover the conference of June 5. Bowden , called by the General Counsel as an adverse witness, testified that, on this occasion, he "only called those people who were represented to me as being on the negotiating committee and with whom I had had previous meetings," and that they numbered about 9 or 10 employees . It appears likely that Bowden confused this particular incident with prior negotiations with the Independent 's entire negotiating- committee. Bowden's testimony in this respect is therefore rejected. 986209-52-vol. 97-44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to have a membership meeting that afternoon, after working hours, to vote on whether or not it would accept the Respondent's offer.' Marsh pointed out that there was not sufficient time to reserve a hall for the meeting. Bowden then reserved a room for the Independent's meeting at the Warner Hotel. In addition, in accordance with customary procedure, Bowden arranged for the Respondent to supply Marsh and Sewell with notices of the meeting. Marsh and Sewell later posted these notices at the plant. In accordance with these arrangements, the. Independent held a membership meeting at the Warner Hotel after working hours that afternoon. At the hour scheduled for the meeting, a quorum was not present.° Marsh reported to Bowden by telephone that a few additional members were needed to secure a quorum, that those present were hungry and impatient, and that it was difficult to keep them there. He urged Bowden to assist in getting certain named absent members to attend the meeting. Bowden agreed to do so. Bowden then conveyed this information to some of the foremen, who in turn requested the absent members to attend. Bowden also ordered refreshments to be served to those members who were present at the meeting. Finally, additional mem- bers appeared at the meeting, and the total reached a number sufficient to permit the Independent to act. Bowden then telephoned to Marsh and inquired if the Independent had enough members present at the meeting. Marsh replied that a quorum was now present. The members of the Independent then pro- ceeded to discuss and adopt the Respondent's contract terms. After the meeting adjourned, Marsh reported the action of the membership to Bowden by telephone. The cost of the meeting room and the refreshments was borne by the Respondent. On the same day, June 5, the Respondent laid off 28 nonsupervisory employees.10 On the morning of June 6, Bowden summoned the officers of the Independent to his office and presented to them, for their signatures, a contract embody- ing the terms agreed to. Among those present were Bowden, his secretary, Marabelle Sutton, Sewell, Betty McKelvey, secretary of the Independent, Arthur Busefink, acting president of the Independent, and Steve Chesnak, a member of the Independent's negotiating committee. As secretary of the Independent, McKelvey was asked to sign the contract. Chesnak stated that he thought that McKelvey should know that she was not required to sign if she did not care to do so. McKelvey then made a motion to adjourn the meeting. This motion was seconded by Chesnak. McKelvey and Chesnak started to leave the room, but Arthur Busefink said : "Just a minute, there has to be a majority to vote on it before a meeting can be adjourned." Bowden then stated : "That's all right, let them go." McKelvey and Chesnak left the room and Sewell then called to order a meeting of the remaining trustees of the Independent. Bowden and Sutton remained in the room during the course of this meeting. While it does not appear that any formal action was taken removing McKelvey from 8 The finding that Bowden Informed Marsh and Sewell that he wanted the Independent to have a meeting that evening is based upon the credited testimony of Marsh. Although Sewell testified, he did not testify with respect to this particular incident. Bowden denied that he had told Marsh and Sewell that the Independent had to have a meeting that afternoon . His denial in this respect is not credited. ° There was some evidence that employees sympathetic to the IUE congregated in the neighborhood of the entrance to the Warner Hotel and attempted to intimidate members of the Independent from attending the meeting. As the complaint before me does not allege that any unfair labor practices were committed by the IUD, I deem such evidence Inapposite. 10 The General Counsel does not contend that this layoff was discriminatory or otherwise violative of the Act. THE STANDARD TRANSFORMER COMPANY 679 the office of secretary,' Howard Stantial was then elected secretary of the Independent, and affixed his signature to the contract in that capacity. The other representatives of the Respondent and the Independent also signed. On the same day, June 6, the IUE filed a petition with the Board, requesting certification as the representative of the employees in the appropriate unit described hereafter." On the following day, June 7, the Regional Director notified the Respondent of the filing of this petition. On June 7, the negotiating committee of the IUE " asked Bowden if they could meet with Parker. Bowden replied that Parker would not meet with any group representing the IUE, but would meet with them as employees. The IUB negotiating committee then conferred with Parker in his office. They asked Parker to negotiate with the IUE, and requested reinstatement of the employees who had been laid off on June 5, with reimbursement for loss of pay. Parker replied that he could not grant recognition to the IUE. In connection with the representation petition filed by the IUE, a conference of all interested parties was scheduled to be held in mid -June, probably around June 15. After working hours on the preceding evening, Bowden called a meet- ing of the trustees of the Independent and certain foremen at the Buena Vista Restaurant. He distributed a number of papers bearing the following wording: PETITION I, the undersigned , desire to be represented by the Standard Transformer Workers, Inc., and no other organization in this matter of collective bar- gaining with the Standard Transformer Company. Dated June 15, 1950. Bowden instructed Robert George, a clerk in his office, to mimeograph addi- tional copies, and informed those present that he wanted to have as many of these petitions signed as possible. He then read a list of names of employees to be contacted and asked who knew them and would be willing to request them to sign.14 It was then arranged for certain of those present to contact certain employees that night and return to the Buena Vista. Accordingly, those present took copies of the petitions to the homes of several employees that night. They instructed the employees to sign or not to sign, as they chose, and then to place the petitions in sealed envelopes and return them. When this had been done, those who were originally gathered at the Buena Vista returned there for another session. Bowden instructed certain of the employees present to meet him the next morning at the Doughnut Hole. Others were told to deliver signed or unsigned petitions to Bowden at Pond's Clothing Store during lunch hour the following day. In addition, Bowden instructed Sewell to work for only an hour the next day and then check out. On the following day, in accordance with these arrangements, certain employees met Bowden at the Doughnut Hole. Among these was Sewell who, according to instructions, had worked for an hour and checked out. He was later paid for the entire day's Again names of em- 11 Sewell testified that when McKelvey left the room It was "assumed" that she was no longer secretary of the Independent. "Case No. 8-RC-911. 18 This committee included Chesnak who, until the previous day, had acted as a member of the Independent's negotiating committee. As previously related, Chesnak had walked out of the meeting between the Respondent and the Independent on June 6. 14 According to Sewell, these were "people that we thought we could talk to . . . people that we thought that we could best approach on this matter." 15 The finding with respect to Bowden's instructions to Sewell to work for only an hour is based upon Sewell's credited testimony. Bowden did not deny giving Sewell these instruc- tions, but testified that he could not recall doing so. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees were discussed and assigned to those present to visit for the purpose of obtaining signatures to the petitions. They were instructed to bring the petitions- to Pond's Clothing Store at noon. Meanwhile, Marsh had gone to work that morning and obtained a supply of blank petitions from George. Marsh distributed them to other trustees of the Independent at the plant, and personally solicited approximately five em- ployees to sign petitions in the plant during working hours.10 In accordance with previous arrangements, the various, individuals who had obtained signatures on petitions brought them to Pond's Clothing Store at noon and delivered them to Bowden. Most of these petitions were in sealed envelopes. The envelopes- were opened and the petitions separated into two piles-one pile containing the signed petitions and the other containing the unsigned. Bowden and some of the trustees of the Independent counted the number of petitions in each- pile.17 The petitions were then delivered by Busefink and Sewell to the attorney who represented the Independent, apparently for use in connection with the conference held later that day concerning the IUE's petition. B. Interference, restraint, and coercion The complaint (as amended at the hearing) alleges, the answer (as amended at the hearing) admits, and I find, that the Respondent, in June 1950: a. Through its supervisors Joe Smelko, Raymond Spurk, Ray Dell, and Caryl Griswold, threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of the IUE. b. Through its supervisors, Brad Ward and Joe Smelko, interrogated em- ployees concerning how they intended to vote in the election to be conducted by the National Labor Relations Board, and concerning their union affiliations and activities. c. Through its supervisors, Smelko, Spurk, Dell, and Griswold, warned and ,threatened its employees that many employees would be laid off, others reclass- ified, the plant operations curtailed and possibly the entire plant shut down, if the employees chose the IUE as their bargaining representative. d. Through its supervisors, Ward, Smelko, Spurk, Dell, and Griswold, offered its employees wage increases and other benefits if they would refrain from assisting, becoming members of, or remaining members of the IUE and would continue their membership and activities on behalf of the Independent. It is now well settled that such interrogation,' threats of economic reprisal for union activities,18 and offers of economic benefits to induce employees to' refrain from joining one union and continuing their membership in another, constitute interference, restraint, and coercion of employees violative of Sec- tion 8 (a) (1) of the Act. It is so found. C. Domination, support of, and interference with the Independent 1. Admitted allegations of the complaint The Complaint (as amended at the hearing) alleges, the answer (as amended at the hearing) admits, and I find, that the Respondent: 16 The finding with respect to Marsh's activities that morning are based on Marsh's credited testimony. Bowden testified in this respect as follows : "As far as having them signed on company time, I have no recollection of ever permitting such activity or either authorizing such activity under any conditions." 11 There was some evidence that Bowden checked the signatures on the petitions, against a list in his possession. I deem it unnecessary, however, to make a finding in this respect. Is Standard-Coosa-Thatcher Company, 85 NLRB 1358. 19 A, Kravitz & Company, 89 NLRB 1415. THE STANDARD TRANSFORMER COMPANY 681 a. On or about June 1, 1950, through its supervisor, Oscar L. Bowden, ordered representatives of the Independent to negotiate with the Respondent. b. On or about June 5, 1950, through its supervisor, Bowden, notified and ordered its employees to attend a meeting of the Independent, and at the same time ordered representatives of the Independent to call a meeting of its members. c. On or about June 15, 1950, through its agent, R T. Beckler,20 and its super- visor Bowden, circulated petitions among its employees in favor of the Independ• ,ent, and encouraged and solicited its employees to sign these petitions for the purpose of encouraging membership in the Independent and discouraging mem- bership in the IUE. d. In June 1950, through its supervisors, Smelko and Spark, offered its employees additional vacations and vacation pay if they would retain the Independent as their bargaining agent. e. In June 1950, through its supervisors, Smelko and Spurk, promised employees ,benefits, in that the plant would be kept open if the employees retained the Independent as their bargaining agent, and threatened that the plant would be closed if the employees selected the IUE as their bargaining representative. f. In June 1950, through its supervisor, Bowden, solicited, permitted, and ,encouraged the solicitation of its employees, on company time and premises, to sign petitions favoring retention of the Independent as their bargaining agent. g. On or about June 6, 1950, paid for and furnished the Independent with a meeting place and refreshments at said meeting of the Independent. The General Counsel does not maintain that the facts warrant a finding that the Respondent completely dominated the Independent, but merely contends that the admitted facts prove that the Respondent rendered illegal aid and assistance to the Independent, and interfered with its administration. It is clear that the admitted conduct of the Respondent constitutes illegal aid and assistance to the Independent, as well as interference with its administration, and that the Respondent thereby violated Section 8 (a) (2) of the Act. I so find. It is further found that this conduct also constitutes interference, restraint, and coercion of employees, proscribed by Section 8 (a) (1) of the Act n 2. The wage increase The complaint alleges, and the General Counsel maintains, that the Respondent offered its employees a wage increase in June 1950, if they would keep the Independent as their bargaining agent, thus contributing additional aid and support to the Independent, in violation of Section 8 (a) (1) and (2) of the Act. The Respondent contends that the wage increase was not offered to the employees "if they would keep the Independent as their bargaining repre- sentative," and moved to dismiss the complaint in this respect. Ruling on this motion was reserved. It is now denied. It will be recalled that, during the negotiations for a new contract in May 1950, the Independent demanded a wage increase of 15 cents an hour and continu- ation of the then existing 48-hour week. On June 5, after having received notice • of the IUE's representation claim, the Respondent offered to execute a contract with the Independent providing for the requested 15 cents an hour wage increase, if the workweek was reduced from 48 to 40 hours. The issue is whether such 20 The complaint alleges that Beckler is an agent and supervisor of the Respondent. The Respondent admits that Beckler is its agent but denies that he is a supervisor. n The Respondent's brief admits that "sufficient admissions of Section 8 (a) (1) and Section 8 (a) (2) violations have been made to warrant an order in those regards." The Independent's brief admits that "the admissions of the Company support an order requiring it to cease and desist from assisting the Independent , or any other labor organization." [Emphasis in original.]I 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct, in the face of the rival claim of the IUE, constitutes illegal assistance to and support of the Independent'* The granting of a wage increase during a union's organizational campaign is not per se violative of the Act. As the Board has said, "What is unlawful under the Act is the employer's granting or announcing such benefits (although pre- viously determined upon bona fide) for the purpose of causing the employees to accept or reject a representative for collective bargaining."" (Emphasis in original.) It is significant that, so far as the record shows, the wage increase here in question was not decided upon until after the Respondent was aware of the representation claim of the IUE. In view of this fact, and in view of other contemporaneous illegal aid and assistance rendered by the Respondent to the Independent, I am convinced, and find, that the wage increase of June 6, 1950, was granted for the purpose of influencing the employees to retain the Independent as their bargaining representative, and to reject the IUE. As such, it constituted illegal aid and assistance to the Independent violative of Section 8 (a) (2) of the Act. Moreover, such conduct constituted further interference, restraint, and coercion of the employees, in violation of Section 8 (a) (1) of the Act!' 3. Validity of the contract of June 6 The General Counsel contends that the contract of June 6 is invalid, because it was signed at a time when the Respondent had been notified of the IUE's claim for recognition. Conversely, the Respondent and the Independent maintain that the contract is valid because, at the time the contract was signed, the Inde- pendent represented a majority of the employees in the appropriate unit, and the IUE had not filed a representation petition with the Board. With respect to the Independent's majority on June 6, the record indicates that on June 5, of a working force of approximately 70 employees in the appropriate unit after the June 5 layoff, or 98 employees before the layoff, between 58 and 61 employees had their dues to the Independent checked off, under the terms of the then existing contract between the Respondent and the Independent. On this date, however, the IUE had already commenced to organize the employees, and it is likely that some employees whose dues were being checked off to the Inde- pendent had, at that time, designated the IUE as their bargaining representative u In addition, the contract under which the dues were being checked off was about to expire. Moreover, in view of the illegal aid and assistance rendered to the Independent on June 5, it cannot be said that the Independent's majority on June 6, if indeed it then had a majority, was uncoerced. In any event, for reasons stated hereafter, the question of whether or not the Independent actually repre- sented a numerical majority of the employees in the appropriate unit on June 6 is immaterial. I therefore make no finding with respect thereto. 18 The Respondent's brief points out that "the wage increase resulted in a loss of earn- ings to the employees." It is true that, due to the shortening of the workweek, the actual take-home pay of the employees after the wage increase was less than it had been previously. Notwithstanding this fact, however, the increase in hourly rate must be looked upon as a wage increase , as it resulted in greater pay for each hour worked. sa Hudson Hosiery Company, 72 NLRB 1434, 1437. 24 Compare Pacific Plastic & Mfg. Co., Inc., 68 NLRB 52, 77; Wire Rope Corporation of America, Inc., 62 NLRB 380, 381-2; and Federal-Mogul Corporation, Federal-Mogul Service Division, 76 NLRB 17. 24 For example, McKelvey, who was secretary of the Independent, had solicited another employee to join the IUE on June 5; Chesnak, who was a member of the Independent's negotiating committee, attended a meeting of the IUE on June 5, and was a member of the IUE's negotiating committee on June 7. THE STANDARD TRANSFORMER COMPANY 683 There are two reasons why the contract of June 6 must be considered invalid. In the first place, at the time of the execution of the contract, the Respondent was well aware of the IUE's representation claim. This claim, made while bargain- ing negotiations were in progress between the Respondent and the Independent, created a question concerning representation which could best have been resolved by resort to the machinery of the Board-machinery which any of the parties could have invoked and which the IUE did invoke by filing its petition 8 days after it made its request for recognition. Under these circumstances, the Re- spondent should not have resolved the question of representation in favor of either of the competing organizations R° For the Respondent to recognize and bargain with the Independent on the basis of a representative status depending merely on the number of employees whose dues were currently being checked off under a contract which was about to expire, in disregard of the IUE's claim, was violative of the Act27 In the second place, it should be recalled that on June 5, the day before the contract was signed, the Respondent interfered with the Independent's adminis- tration and contributed illegal aid and support to the Independent. This as- sistance, even without the existence of the question concerning representation referred to above, rendered the Respondent's subsequent recognition of, and contract with, the Independent unlawful. The Respondent could not have been unaware of the advantage given the Independent by signing a contract with that organization 28 It is accordingly found that, by negotiating and entering into a contract with the Independent on June 6, 1950, during the pendency of the IUE's claim for recognition, and at a time when the Respondent was rendering unlawful aid and assistance to the Independent, the Respondent interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. It is further found that, by this conduct, the Respondent contributed additional illegal aid and assistance to the Independent, in violation of Section 8 (a) (2) of the Act.R9 26 The IUE's representation claim, followed as it was within 10 days by the filing of a petition , was sufficient to create a question concerning representation and to prevent the subsequent contract between the Respondent and the Independent from being a bar to a representation proceeding . General Elects ac X-Ray Corporation, 67 NLRB 997 ; Fifteenth Annual Report of the National Labor Relations Board ( 1950) 70. 27 I. Spiewak & Sons, 71 NLRB 770, 772 , enforced as modified with respect to other matters, 179 F. 2d 795 ( C. A. 3), rehearing denied March 11, 1950 ; and International Harvester Company ( Canton Works ), 87 NLRB 1123. The cases of N. L. R. B. v. The Standard Steel Spring Company, 180 F. 2d 692 ( C. A. 6), and William Penn Broadcasting Company, 93 NLRB 1104, cited by the Respondent , are distinguishable from the instant case on their facts. In the former , a period of several months elapsed between the filing of the petition and the signing of the contract , during which all the employees sought in the petition joined the contracting union. In the latter, the General Counsel failed to prove that the unit sought by the petitioning union was appropriate, and hence that a valid question concerning representation existed. I note in passing that the Board has recently , upon reconsideration , vacated part of its former decision and remanded the case for further hearing. 94 NLRB 1175. , 28 I. Spiewak & Sons, supra, at page 771 ; Elastic Stop Nut Corporation, v. N. L. R. B., 142 F. 2d 371, 379-80 (C. A. 8), certiorari denied, 323 U. S. 722. 28 The Independent's brief states that "most of the Company conduct under attack occurred after the contract was signed" (emphasis in original ) and argues that such conduct should therefore not affect the contract 's validity. However, in holding that the contract was invalid, I have considered only those acts of illegal assistance and' interference which took place prior to the contract 's execution. - The Independent also argues that "there is no showing that the Independent requested that the Company assist it in the respects complained of " Such a showing, however, Is not necessary to a finding that the Respondent violated Section 8 ( a) (1) and (2) of the Act. 1684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The bonus On May 26, 1949, during negotiations for the addendum to the 1948 contract referred to above, Parker wrote to the Independent stating, in part, that business conditions were unsettled, and adding : If, at the close of the current year , which is the fiscal year of the Company, our net returns warrant the payment of a bonus, each and every member of the Company will receive added compensation , but we can not enter into a contract which has a bonus compensation clause, due to the conditions set forth above. So far as the record shows, there was no further mention of a bonus until after the contract of June 6, 1950 , had been signed . On June 7, 1950, as pre- viously related , the negotiating committee of the IUE conferred with Parker. During that conference, one of the spokesmen for the IUE asked Parker What had happened to the bonus which he had promised to pay in May of the previous year. Parker replied that he would look into the matter. Two days later, on June 9, 1950 , bonus checks were distributed to the employees , accompanied by the following statement : JUNE 9, 1950. To all Members of The Standard Transformer Company: Your bonus check is attached , which conforms to the writer's letter of May 26, 1949, from which we quote : [here is set forth the portion of the letter of May 26, 1949 , quoted above.] This letter was called to the writer's attention a few days ago. The check covers the net amount after Social Security, federal and city taxes have been deducted and held by the Company in compliance with the laws. The delay in paying this is due to an oversight on the part of the writer, which I regret. Yours respectfully, W. F. PARSER. WFP/mh. The complaint alleges, and the General Counsel maintains , that this bonus was paid to the employees for the purpose of inducing them to vote against the IUE and for the Independent in the forthcoming Board election , and thus con- stituted additional illegal assistance to the Independent in violation of Section 8 (a) (2) of the Act. The Respondent maintains that the record fails to sub- stantiate this allegation of the complaint , and moved that it be dismissed. Ruling on the motion was reserved. I am not unmindful of the fact that this bonus was paid to the employees while a representation petition was pending , seeking an election to determine whether the employees desired to be represented for purposes of collective bar- gaining by the IUE, the Independent, or neither. Nevertheless , the bonus was promised the employees in 1949, through their then bargaining agent, the In- dependent. At that time, so far as the record shows , the Respondent had not rendered any illegal aid or assistance to the Independent . In addition, the bonus was not actually paid until after representatives of the IUE reminded Parker of his previous promise. Furthermore , the statement accompanying the bonus checks does not even mention the Independent . Moreover, the undenied testi- mony of Marsh indicates that the bonus was paid not only to employees then on the payroll, but even to those who had been laid off as early as January 1950- former employees whose eligibility to vote in the pending election was doubtful. Under these circumstances, I seriously doubt whether the payment of the bonus THE STANDARD TRANSFORMER COMPANY 685 could reasonably have been calculated to influence the employees to vote for the Independent. As I am convinced that the General Counsel has failed to prove that the granting of the bonus constituted illegal aid or assistance to the Inde- pendent, I will recommend that the complaint be dismissed in this respect. D. The refusal to bargain 1. The appropriate unit The complaint alleges, the answer admits; and I find, that all production and maintenance employees of the Respondent employed at its Warren, Ohio, plant, excluding • office and clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act80 2. The IUE's majority status a, The Board election and following events On June 22, 1950, in connection with the representation petition previously filed by the IUE, the Respondent, the IUE, and the Independent entered into an "Agreement for Consent Election," which was duly approved by the Acting Regional Director. It contained, among others, the following provisions : 1. ELECTION.--Such election shall be held in accordance with the National Labor Relations Act, the Board's Rules and Regulations, and the customary procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any question, including questions as to the eligibility of voters, raised by any party hereto relatipg in any manner to the election. * * * * * 6. OBJECTIONS, CHALLENGES, REPORTS THEREON.- . . . If the challenges are determinative of the results of the election, the Regional Director shall investigate the challenges and issue a report thereon. Accordingly, the Regional Director conducted an election on June 29, 1950. The IUE received 34 votes, the Independent 35 votes, 1 vote was cast against both participating labor organizations, 1 ballot was void, and 17 ballots were chal- lenged. The 17 individuals whose ballots were challenged were employees who had been laid off on June 5, 1950, as described above. As the challenges were determinative of the results of the election, the Regional Director, on October 19, 1950, issued and served on the parties his "Report on Objections and Challenged Ballots," in which he found that the employees in question had a sufficient interest to participate in the election, and accordingly overruled the challenges and directed that their ballots be opened and counted. On October 23 the Respondent filed with the Regional Director exceptions to his report on objections and challenged ballots, and a motion for a formal hearing on the challenged ballots 31 In its exceptions the Respondent, among other things, contended that the Regional Director's findings were contrary to law, because he had not afforded the Respondent an opportunity to adduce all the facts in a formal hearing. Copies of the Respondent's exceptions and motion were also 25 This is substantially the same unit described In the 1948 and 1950 contracts between the Respondent and the Independent. 31 The motion read : "The employer moves that the Regional Director schedule a formal hearing to secure the facts which will determine the eligibility of said laid-off employees to vote in the election," `686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'filed with the Board in Washington, D. C. On the following day, October 24, the Board, acting through a member of its staff, wrote to the Respondent, acknowledging receipt of its exceptions and motion, and stating that objections to an election conducted pursuant to a consent election agreement should be filed with the Regional Director. On October 25, 1950, the Regional Director issued and served on the parties a revised tally of ballots, which showed that the IUE had received 51 votes, the Independent 35 votes, that 1 void ballot had been cast, and that 1 ballot had been cast against both participating unions. On October 30, the Regional Director wrote to the Respondent, acknowleding receipt of its exceptions and motion, and stating that the Board had also forwarded additional copies of the exceptions and motion to him "for appropriate action." On October 31, the Regional Director, apparently basing his action upon the revised tally of ballots, certified the IUE as the bargaining representative of the employees in the appropriate unit described above. The IUE, then, on November 1, renewed its demand for recognition. This demand was refused by the Re- spondent on November 2, on the ground that "any certification of [the IUE] as the representative of our employees is invalid and contrary to law unless a formal hearing is first held on the eligibility of the 17 challengees." b. The issues and contentions of the parties The Respondent contends that the question of eligibility of the 17 voters whose ballots were challenged involved a determination of fact, thus necessitating credibility findings, that the Regional Director based his decision upon an ex parte investigation, and that the certification of the IUE was a nullity, because the Regional Director failed to grant the Respondent a formal hearing upon request, and thus deprived it of an opportunity to be heard, to examine and cross-examine witnesses, and otherwise to introduce evidence on its own behalf to impeach or contradict the facts found by the Regional Director .12 The Inde- pendent concurs in the Respondent's position. The General Counsel admits that the Regional Director's findings of fact were based upon an ex parte investigation, but maintains that the Regional Director acted within his rights in conducting an ex parte investigation, and refusing to grant the Respondent a formal hearing. In view of the fact that the Regional Director received the Respondent's excep- tions and motion for a formal hearing and thereafter certified the IUE, it must be deemed that the Regional Director denied the Respondent's motion for a formal hearing. Moreover, as the eligibility of the 17 challengees depended upon a determination as to whether their layoff had been temporary or permanent in nature, the Regional Director was presented with an issue of fact for his determi- nation. Thus, the issue here is a very narrow one, namely, whether under these circumstances it was error for the Regional Director to make findings of fact based entirely upon his ex parte investigation, and to refuse to conduct a formal hearing. As part of his case-in-chief, the General, Counsel offered evidence tending to prove that the 17,challengees were only temporarily laid off, had a reasonable expectancy of reemployment, and consequently were eligible to vote in the elec- tion . Upon objection by the Respondent, this evidence was excluded, and the General Counsel's offer of proof was rejected. The General Counsel maintains that this ruling was erroneous, arguing that any possible defect resulting from the Regional Director's failure to provide the Respondent with a formal hearing 82 The Respondent's answer herein contains an allegation that the findings of fact made by the Regional Director were erroneous. During the course of the hearing, how- ever, counsel for the Respondent admitted that this allegation was surplusage. THE STANDARD TRANSFORMER -COMPANY 687 on the challenges would be cured if he were allowed to litigate the issue of eligi- bility anew in a hearing before the Trial Examiner. This contention lacks merit. The consent election agreement provides, in effect, that the Regional Director -shall be the sole judge of the eligibility of voters. A trial de novo before a Trial Examiner would not satisfy this requirement, as it would be in the wrong forum. It follows that evidence bearing on the voting eligibility of the challengees is inadmissible, once the case has passed out of the hands of the Regional Director.' Again as part of his case-in-chief, the General Counsel sought to show, by oral and documentary evidence, the extent of the Regional Director's investigation of the challenges. Among the exhibits proffered were affidavits of challengees, super- visors, and others, relating to the nature of the layoffs of June 5, obtained by Board agents during the course of the investigation. Upon objection by the Respondent, this evidence was excluded as anticipating a defense, with leave to aeoffer it at an appropriate stage in the proceedings.34 It is significant that, at the time this evidence was offered, the General Counsel had already made out a prima facie case of refusal to bargain. Moreover, at that stage of the proceed- ings, the Respondent had not yet had an opportunity to present its evidence, and the exact nature of its defense was not clear. Indeed, when it later came time for the Respondent to put on its case, it became evident that the Respondent did not contend that the Regional Director's ex parte investigation had been incom- plete, arbitrary, or capricious, except insofar as he, had refused to conduct a formal hearing36 In'short, the Respondent takes the position that, no matter how carefully the Regional Director may have conducted his ex parte investiga- tion, he nevertheless erred in refusing to grant the Respondent's request for a formal hearing. As that is the narrow issue on which the Respondent bases its defense, the extent of the Regional Director's ex parte investigation, and the thoroughness with which he conducted it, is immaterial." c. Validity of the certification I turn now to the sole issue on which the validity of the IUE's certification must hinge, namely, whether the Regional Director erred in refusing to grant the Re- spondent a formal hearing on the challenged ballots. The Board has several 33 See McMullen Leavens Company, 83 NLRB 948 , 970, 973; Merrimac Hat Corporation, 85 NLRB 329, 333 (footnote 10) ; General Armature & Manufacturing co., $9 NLRB 654, 667. 34 This evidence was not reoffered. as After the General Counsel had rested , the Respondent's counsel made the following statement on the record : Trial Examiner ASHER . Yes. Let me put it this way : You are only attacking on the certification. Mr. SCHWARTZ. That is correct. Trial Examiner Asnan. Based solely on the fact that no hearing was held and you had no opportunity to examine and cross examine witnesses. Mr. SCHWARTZ. That is correct, in accordance with the exceptions and motions filed by the Respondent. Trial Examiner ASHER. That brought in a lot of other things. That is what I want to get clear. Are you relying on- Mr. SCawAnTZ . We are relying at this point in the support of the motion [to dismiss the allegation in the complaint relating to refusal to bargain ] on the fact that the Regional Director's certification, dated October 31, 1950, after having failed and refused to grant a hearing formally requested by the Respondent makes his action in issuing the certification a nullity. Trial Examiner ASHER. Right . Because he didn't hold a hearing? Mr. SCHWARTZ. That is right. "Compare McMullen Leavens Company, 83 NLRB 948, footnote 2. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times held that such action by a Regional Director was proper" The Court of Appeals for the Fifth Circuit later ruled to the contrary in the Sidran case." So far as I have been able to discover, the Board has not passed on this precise point since the issuance of the Sidram, decision, nor has the Supreme Court yet spoken on the issue. The essential nature of notice and formal hearing at which the parties may present evidence has recently been emphasized by the Supreme Court aB And there can be no doubt of the importance to be attached to the right to cross- examine adverse witnesses.40 Nevertheless, these are rights which the parties may voluntarily waive. Bearing in mind the basic nature of these rights, how- ever, they should not lightly be deemed to have been waived. The question then arises whether the signing of the consent election agreement herein constituted such a waiver by the Respondent" As previously noted, the agreement provided that the election should be held "in accordance with . . . the Board's Rules and Regulations." The Board's rules in effect at the time the agreement was executed provided that, in the absence of a consent election agreement, the Board might exercise discretion as to whether or not a hearing on objections or challenged ballots should be held 42 But the consent election agreement substantially invests the Regional Director with all the powers which the Board would have had, absent the consent election" It follows that the consent election agreement constitutes a waiver of the Respondent's right to demand that the Regional Director conduct a formal hearing on objections or challenges. This conclusion is bolstered by the very wording of the consent election agreement. It will be recalled that the agreement provides that "the determination of the Regional Director shall be final and binding upon any question . . . raised by any party hereto relating in any manner to the election" (emphasis supplied). It seems clear, therefore, that the agreement confers upon the Regional Director the sole authority to decide not only the factual issues before him, but also the procedure to be followed in arriving at factual determinations. I am aware that the court in the Sidran case reached a different result. It said : We do not interpret or construe the consent election agreement or the applicable Board rules and regulations as providing for any waiver of a 84 Miehle Printing Press & Manufacturing Co., 58 NLRB 1134 ; Highland Park Manufac- turing Company, 84 NLRB 744, enforcement denied oil other grounds, 184 F. 2d 98 (C. A. 4), affirmed, 71 S. Ct 489 ; and Merrimac Hat Corporation, 85 NLRB 329. The last of these cases was decided by the Board on July 26, 1949. 88 N. L. R. B. v. Joseph Sidran, doing business as Sidran Sportswear, 181 F. 2d 671 (C. A. 5), decided April 25, 1950. 88 Joint Anti-Fascist Refugee Committee v. McGrath , 71 S. Ct. 624. See particularly the opinion of Justice Frankfurter, pages 642 to 650. 40 See Abbott, Civil July Trials, Section 135 (5th ed. 1935). " That such agreements are valid and binding upon the parties who execute them is well established, N. L. R. B. v. A. J. Tower Company, 329 U. S. 324; N L. R. B. v. Capitol Grey- hound Lines, et al., 140 F. 2d 754 (C. A. 6), rehearing denied April 7, 1944, certiorari denied 322 U. S. 763; and Semi-Steel Casting Company of St. Louis v. N. L. R. B., 160 F. 2d 388 (C. A. 8), rehearing denied April 21, 1947, certiorari denied, 332 U. S. 758. In the last- named case, the court of appeals expressly recognized the importance of such agreements in minimizing delay in the administration of the Act. 42 Rules and Regulations of the National Labor Relations Board-Series 5, as amended, Section 203.01 (b). A similar provision appears in the current rules. Rules and Regula- tions of the National Labor Relations Board-Series 6, Section 102.61 (b). 48 Rules and Regulations of the National Labor Relations Board-Series 5, as amended, Section 203.54 (a) provides, in effect, that where a consent election agreement has been signed, the Regional Director's determinations shall be final, and his certification is given "the same force and effect as if issued by the Board." A similar provision is contained in the current rules. Rules and Regulations of the National Labor Relations Board-Series 6, Section 102 54 (a). THE STANDARD TRANSFORMER COMPANY 689 hearing in such cases. While it is true that under the election agreement respondent consented that the determination of the Regional Director would be final and binding upon the issue as to the eligibility of voters, he did not thereby intend to forfeit his right to submit evidence and to be heard, nor did he intend to confer upon the Regional Director an unbridled administra- tive discretion to decide such an important issue solely upon an ex parte investigation and without any notice to respondent of the source upon which the facts found were based. With all due respect for the court which decided the Sidran case, I am con- strained to follow prior Board precedent, and respectfully to disagree with the Fifth Circuit's narrow interpretation of the consent election agreement. In view of the broad and sweeping language used (particularly the provision that the Regional Director's determination should be "final and binding upon any ques- tion . . . relating in any manner to the election"), I find that the entire scope and conduct of the investigation of the challenged ballots was irrevocably committed to the sole discretion of the Regional Director by the plain terms of the Respond- ent's own agreement. Under these circumstances , the Respondent cannot be heard to complain that it was denied a formal hearing. I therefore find that the Regional Director's certification was valid, and that at all times since October 31, 1950, the IUE has been, and now is, the exclusive representative for the pur- poses of collective bargaining of the employees in the appropriate unit described above, by virtue of Section 9 (a) of the Act" 3. The Respondent's refusal to bargain The complaint alleges, the answer admits, and I find, that on or about Novem- ber 1, 1950, the IUE requested the Respondent to bargain collectively with it as the exclusive representative of the employees in the appropriate unit described above, in respect to wages, hours, or other conditions of employment and that on or about November 2, 1950, and at all times thereafter, the Respondent refused and continues to refuse to bargain collectively with the IUE as the exclusive representative of the said employees. In view of the fact that the IUE had been validly certified by the Regional Director as the exclusive bargaining representa- tive of the employees on October 31, 1950, I find that the above conduct constitutes a violation of Section 8 (a) (1) and (5) of the Act. Accordingly, the Respond- ent's motion to dismiss this allegation of the complaint is denied. 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, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in certain acts of inter- ference, restraint, and coercion. It will therefore be recommended that the Respondent cease therefrom. "I deem it unnecessary to determine whether, absent the consent election agreement, the Respondent would have been entitled as a matter of right to a formal hearing on the challenges, as that question is not before me. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has also been found that the Respondent has violated Section 8 (a) (1) and (2) of the Act, by assisting and supporting the Independent, and by interfering7 with its administration. I will accordingly recommend that the Respondent cease and desist from such conduct, and withdraw and withhold recognition from the Independent unless and until the Independent has been certified by the Board_ The Independent, in its brief, urges that no order be issued which would "destroy" its contract with the Respondent. However, it has been found that the contract of June 6, 1950, between the Independent and the Respondent, was illegal. It will accordingly be recommended that the Respondent cease and desist from perform- ing or giving effect to the said contract, or to any modification, extension, supple- ment, or renewal thereof.46 In this connection, it should be noted that the con- tract contains a provision for checking off the dues of consenting members of the Independent. It will therefore be recommended that the Respondent reimburse its employees for any dues deducted from their wages by the Respondent and paid: to the Independent, pursuant to the terms of the 1950 contract, or any modifica- tion, extension, supplement, or renewal thereof, by paying to each of them a sum of money equal to the total of such dues deducted from his wages 48 Nothing con- tained herein shall, however, be deemed to require the Respondent to vary or- abandon those wage, hour, seniority, or other substantive features of its relations with its employees, established in the performance of the said contract. Having found that the Respondent has refused to bargain collectively with the IUE, I will recommend that the Respondent cease and desist therefrom and, upon request, bargain collectively with the IUE as the exclusive representative of the- Respondent's employees in the appropriate unit with respect to wages, hours, and. other terms and conditions of employment, and embody any understanding reached in a signed contract. In order to insure expeditious compliance with the recommended reimburse- ment order, it will be recommended that the Respondent, upon reasonable request, make any pertinent records available to the Board and its agents.'4 The unfair labor practices found to have been engaged in by the Respondent are of such a character and scope that, in order to insure the employees their full rights guaranteed them by the Act, it will, be recommended that the Re- spondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their right to self-organization 46 It will be further recommended that the allegations of the complaint that the Respondent paid a bonus to its employees in June 1950, in violation of Section 8 (a) (1) and (2) of the Act, be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. International Union of Electrical, Radio & Machine Workers, CIO, and The Standard Transformer Workers, Inc., are labor organizations within the meaning of Section 2 (5) of the Act. - 45 The Independent, in its brief, states : "An order to discontinue recognition of the Independent and of its contract would penalize the Independent and its members, and, is not warranted under the facts of this case." However, such a remedy is the usual concomitant of a finding that the Respondent has violated Section 8 (a) (1) and (2) of the Act, and there is nothing in this record warranting a departure from the Board's normal remedy in such situations. 4e N. L. R. B. v. I. Spiewak it Sons, 179 F 2d 695 (C. A. 3), rehearing denied March 11, 1950, Surprise Candy Company, 66 NLRB 1. -I F. W. Woolworth Company, 90 NLRB 289. 48 See May Department Stores Company, doing business as Famous-Barr Company v. N. L. R B., 326 U. S. 376. PARAMOUNT TEXTILE MACHINERY CO.. 691' 2. By assisting and supporting The Standard Transformer Workers, Inc.,.. and by interfering with its administration , the Respondent has engaged in and- is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 3. All production and maintenance employees of the Respondent employed. at its Warren, Ohio, plant, excluding office and clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section- 9 (b) of the Act. - 4. International Union of Electrical, Radio & Machine Workers, CIO, was- on October 31, 1950, and at all times thereafter has been, and now is, the exclu - sive representative of the Respondent's employees in such unit for the purposes of.collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing on November 2, 1950, and at all times thereafter, to bargain, collectively with International Union of Electrical, Radio & Machine Workers, CIO, as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. - 6. By the above conduct, and by otherwise 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 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices within the- meaning of Section 2 (6) and (7) of the Act. 8. By paying a bonus to its employees in June 1950 , the Respondent did not., violate the Act. [Recommended Order omitted from publication in this volume.] PARAMOUNT TEXTILE MACHINERY Co. and TEXTILE WORKERS UNION OF AMERICA, CIO. Case No. 13-C'A--555. December 28, 1951 Decision and Order On July 30,1951, Trial Examiner Horace A. Ruckel issued his Inter-- mediate Report in the above-entitled proceeding, finding that the- Respondent 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. The Trial Examiner further found that the- Respondent had not committed another unfair labor practice and rec-- oinmended that that allegation of the complaint be dismissed. There- after, the Respondent filed exceptions to the Intermediate Report and- a supporting brief; the General Counsel filed a statement in support of, and a statement of exceptions to, the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner ' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Reynolds,- and Styles]. 97 NLRB No. 104.