Eaton Brothers Corp.

464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The field service employees are stationed in various parts of the coun try at Government aviation stations, where they are engaged in super- vising the maintenance of, and instructing others in the use of, the equipment manufactured by the Employer. They report at least once a week to the head of the field service department, who supervises them and also supervises the home service engineers and the technical writer attached to his department; the home service engineers and the technical writer are included in the unit currently represented by the Petitioner. The home service engineers answer the technical inquiries made by the field service engineers. They receive about the same' amount of pay. Home service engineers have transferred to field service and field service engineers to home service. In view of the foregoing, and as the Petitioner has expressed its desire to accept these employees as part of the existing unit, we find that the field service engineers may be included in the unit with the employees currently represented by the Petitioner. The Employer has recently promoted three field service engineers to service area supervisors in three newly established area offices. As these area supervisors have the power effectively to recommend hire and wage increases, they are supervisors within the meaning of the, Act and shall be excluded from the unit. Accordingly, we shall direct an election in Lester, Pennsylvania, in the following voting groups : All aviation gas turbine division field service engineers reporting to the Employer's South Philadelphia Works in Lester, Pennsylvania, excluding all other employees and all supervisors as defined by the Act. If a majority of the field service engineers vote for the Petitioner, they will be taken to have indicated their desire to join the employees in the existing unit; the Petitioner may then bargain for them as part of such unit, and the Regional Director is instructed to issue a certification of representatives to that effect. [Text of Direction of Election omitted from publication in this volume.] EATON BROTHERS CORP. and TExTILE WORKERS UNION OF AMERICA, C. I. O. Case No. 3-CA-365. March 6, 1952 Decision and Order On July 11, 1951, Trial Examiner Reeves R. Hilton 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 98 NLRB No. 82. EATON BROTHERS CORP. 465 take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the General Counsel and the charging Union, but not the Respondent, filed exceptions to the Intermediate Report and supporting briefs. The General Counsel's request for oral argu- ment is denied, as the record and the briefs adequately present the issues and positions of the parties. The Board has reviewed the rulings of the Trial Examiner made 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' Order Upon the entire record in this 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, Eaton Brothers Corp., Hamburg, New York, and its officers, agents , successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating its employees concerning their union affiliations, activities, or sympathies, or any other aspect of their union activities. (b) In any other manner interfering with , restraining, or coercing its employees in the exercise of the right to self -organization, to form labor organizations , to join or assist Textile `Yorkers Union of Amer- ica, C. 1. 0., or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all of such activi- ties, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. i We do not adopt the Trial Examiner's conclusion that the Union 's "scant" inalority on November 3 would not support a finding of a violation of Section 8 (a) (5) of the Act Rather, we agree with the General Counsel that any numerical majority , regardless of its size , is sufficient for the purposes of this section of the Act A. S Beck Shoe Corpoaation, 92 NLRB 1457 But we agree with the Trial Examiner that , thereafter, there was neither a request for bargaining nor a refusal to bargain Further , we do not adopt the Trial Examiner 's apparent conclusion that supervisor Kasprzak 's proanion activity was "perfectly propel " or that her procomnnttee conduct- which the Trial Examiner concedes would "ordinarily " be a violation of the Act-was, therefore , similarly proper However, we make no unfair labor practice finding'biased on such activity or conduct, as neither was alleged in the complaint as a violation of the Act 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its plant located at Hamburg, New York, copies of the notice attached hereto and marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that the said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Third Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, except insofar as it alleges that the Respondent violated Section 8 (a) (1) of the Act with respect to interrogation of its employees, be, and it hereby is, dis- missed in its entirety. MEMBER STYLES took no part in the consideration 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, as amended, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies, or any other aspect of their union activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, C. I. 0., or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." EATON BROTHERS CORP. 467 labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. EATON BROTHERS • CORP.. 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 and Recommended Order STATEMENT OF TIIE CASE Upon an amended charge duly filed by Textile Workers Union of America, C. I. 0., herein called the Union, the General Counsel of the National Labor Relations Board, herein called the General Counsel, by the Regional Director for the Third Region (Buffalo, New York), issued a complaint dated March 26, 1951, against Eaton Brothers Corp., herein called the Respondent or the Company, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, with copies of the amended charge, and notice of hearing were duly served upon the Respondent and the Union. The complaint alleges in substance that the Respondent: (1) On and after October 31, 1950, refused to bargain collectively with the Union as the exclusive bargaining representative of its employees in a unit appropriate for the purposes of collective bargaining; and (2) on and after the above date, (a) interrogated its employees concerning their union affiliation, (b) threatened and warned the employees to refrain from assisting the Union, or becoming or remaining mem- bers thereof, (c) offered and granted economic benefits and privileges to its employees, and (d) urged its employees to form their own committee for the purpose of adjusting grievances when the Union was the exclusive bargaining representative of all of its employees in the bargaining unit. By the foregoing acts and conduct the Respondent thereby engaged in violations of Section 8 (a) (1) and (5) of the Act. The Respondent on April 5, 1951, duly filed its answer wherein it admitted certain allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to notice a hearing was held at Buffalo, New York, on April 18, 19, and 20, 1951, before the undersigned duly designated Trial Examiner. The Gen- eral Counsel and the Respondent were represented by counsel and the Union by its international representative. All parties participated in the hearing and were afforded an opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence pertaining to the issues. At the conclusion of his case-in-chief, the General Counsel moved to amend the complaint by adding as a party to these proceedings Eaton Brothers Equipment Corporation, which motion was taken under advisement by the undersigned. The motion, for the' reasons set forth below, is now granted. At the conclusion of the General Counsel's case-in-chief, counsel for the Respondent moved to dismiss the complaint for lack of proof, which motion was denied by the undersigned. At the conclusion of the case, counsel renewed the above motion which was taken under advisement by the undersigned. The motion is disposed of by the recom- 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nlendations in this Report. At the conclusion of the hearing the General Counsel moved to conform the pleadings to the proof as matter of form, which motion, without objection, was granted by the undersigned. The General Counsel and counsel for the Respondent presented oral argument at the close of the hearing and thereafter filed briefs with the undersigned. Upon the entire record in the case, and from my observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New York corporation and maintains its office, plant, and retail store at Hamburg, New York, where it is engaged in the manufacture and sale of grass mats for cemetery use and store window displays. In the course of its operations the Respondent during the year 1950 purchased raw materials valued in excess of $100,000, of which about 40 percent was shipped to the Respondent's plant from places outside the State of New York. During the same period the Respondent manufactured and sold products valued in excess of $100,000, of which more than 40 percent was shipped to customers outside the State of New York. The Respondent is also engaged in the local sale and repair of garden tractors, lawn mowers, tools, and related equipment, which products are manufactured by national concerns and are, apparently, distributed by the Respondent on a franchise basis. While the record does not reveal the amount of the above pur- chases and sales, the Respondent states that the dollar volume of this business exceeds that of its grass mat operations. The Respondent admits that its manufacturing operations affect commerce within the meaning of the Act but asserts that its equipment sale and repair business is of a purely local nature. The undersigned finds that the Company IS engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Textile Workers Union of America, C. I. 0., is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The Company's operations The Respondent's business is conducted and directed by W. Kenneth Eaton and his brother, Maxwell T. Eaton, president and treasurer, respectively, of the Company. Maxwell Eaton stated that the Respondent commenced opera- tions in 1934 and for a number of years was engaged exclusively in the manufacture of grass mats and artificial flowers. The Company eventually discontinued the artificial flower operations. However, in conjunction with the latter operations, the Company "developed" a new phase of business, namely, the sale and distribution of garden equipment. Upon entering into this business the Company added a wing to its plant and established a repair shop for the purpose of maintaining and repairing the equipment thus sold. Maxwell Eaton further stated that the equipment division is, and has been, operated separate and apart from the Company's manufacturing operations' 1 Eaton further declared that the equipment division was under the control of his brother and that he had nothing to do with it, other than to do "some of the accounting work and stuff like that... . " In the light of the entire record and the events set forth below, the assertion or contention that Kenneth Eaton had exclibsive control over this phase of the business is rejected. 11 EATON BROTHERS CORP. 469 Maxwell Eaton described the Company's manufacturing operations as follows : The Company purchases "rafia," a natural palm, imported from Madagascar, which is cut into desired dimensions, sewn on burlap covering , dyed, and trimmed for shipment . The above process is performed in three departments, namely, grass manufacturing ( or sewing), dyeing, and trimming. All of the foregoing operations are performed by women, except for one man employed in the dyeing department. B. The supervisory staff At all times material herein, James R. Storms was plant superintendent in full and complete charge of the grass mat operations ; Theresa Kasprzak was floorlady over the grass department, and Mary R. Sheetz was floorlady in charge of the trimming department. Kasprzak and Sheetz, according to Maxwell Eaton, performed the usual duties of foreladies, were responsible for production, assigned work to employees , received a higher rate of pay than production workers, and made recommendations to Eaton and Storms in regard to the layoffs and promotions of employees. Richard Fierle was supervisor in charge of the employees , all men, in the equipment repair shop. The undersigned finds that each of the above-named individuals is ,a super- visory employee as defined in Section 2 (11) of the Act. C. Union organizational activities The record fails to disclose any history of union activities at the plant prior to October 195, and the evidence relating to organization on this date is vague in that it cannot reasonably be determined when and under what circumstances the employees first became interested in unionization , the leaders of such movement , or how the initial meeting with the union representative, Walter F. Padgett, was arranged . Although Padgett appeared as a witness he did not testify concerning these matters. Bertha Krauss, who was employed in the sewing department, stated that the first meeting with Padgett was held in October at the West End Inn, at Hamburg. Krauss said she learned of the meeting through Bonna Grimm and that five or six of the employees attended the same, including Grimm, Donna Kent, Amelia O'Neill, and Bertha Styles . Krauss was not too certain as to what transpired at the meeting other than that Padgett "gave us a pep talk, I guess, to get a raise and he got us to sign the cards ." According to Krauss all of the employees present signed individual cards accepting membership in the Union and designating the Union as their agent for the purposes of collective bargaining. At the same time a union committee , composed of Kasprzak , Grimm, and Krauss, was appointed. Krauss, however, stated that she did not engage in any organizational work but she did attend three or four union meetings. Apparently , Grimm was the most active adherent of the Union for the record reflects that she distributed union cards among the women employees while at the plant and a number of these employees , including Kasprzak and Sheetz, signed the same. Most of the cards are dated October 27 , some are undated, but in any event all of the cards were signed prior to October 31. Three of the repair shop employees also signed cards at the plant, each bearing the date of November 3. D. The refusal to bargain On October 31 John Walski, international representative of the Union, tele- phoned Kenneth Eaton and informed him that the Union represented the 2 All dates refer to 1950 , unless otherwise stated. 9 98066-vol 98-53---31 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the Company and requested that a meeting be arranged. Although Eaton could not recall the details of the conversation, it is obvious that he agreed to hold such a meeting for the parties actually conferred on November 3. Walski, on October 31, also addressed a letter to the Company stating that the Union represented the employees and requesting that an early meeting be held for the purpose of negotiating an agreement. The Company admitted that it received this communication several days after it was written. On November 2 the Union filed a petition for certification ' with the Board and the Regional Director, by letter dated November 6, notified the Company of the action thus taken. On November 3 a meeting was held at the plant which was attended by Pad- gett and both of the Eatons. Padgett testified that at the outset of the meeting the Eatons asked the purpose thereof, whereupon Padgett requested that the employees' union committee be permitted to attend the conference. The Eatons were reluctant to have the committee present at the inception of the meeting, so Padgett explained, "I represented a majority of their employees and I wanted to reach some kind of an agreement with them." The Eatons inquired as to "what type of an agreement" he was referring to and he replied : I told them that would depend upon them, whether they felt that I represented the majority, or if they was going to question that I represented the majority, we could do a number of things. One, we could submit cards to the State Mediation Board for a card check, or we could agree that there should be a National Labor Board's election, or that we could agree to other things. Seemingly at this point the union committee, composed of Kasprzak, Krauss, and Grimm, joined the meeting. Padgett then requested the Eatons to sign an "interim agreement" with the Union which provided, inter alia, that the Company : (a) Agree to a consent election to be conducted by the Board; (b) refrain from discouraging member- ship in the Union ; (c) recognize the Union, if it was chosen, as the representative of its employees and enter into a union-shop agreement with it; (d) make any wage increases effective as of November 3; (e) recognize the Union's right to represent its employees pending the conduct of the election; and (f) post copies of the agreement at its plant until determination of the election. Padgett said the agreement was discussed by the parties both before and after the arrival of the union committee. One of the Eatons told Padgett that since he was not familiar with bargaining techniques, he would not sign the agreement until he discussed the matter with his attorney. This was satisfactory to Padgett and the meeting concluded with the Eatons promising to call Padgett in regard to the interim agreement within the next few days. Maxwell Eaton was hazy concerning the details of the meeting with Padgett but he stated that Padgett claimed to represent a majority of the Company's employees. There is nothing in the record to indicate that Eaton questioned Padgett's assertion or that he requested any proof of majority. In any event Padgett offered no evidence to substantiate his claim that the Union represented a majority of the'employees. Eaton further stated that as Padgett was leaving he "threw" the interim agreement on the desk and said "he would like to have it signed sometime." Eaton denied that the interim agreement was discussed at the meeting, or that he even read the same. However, he admitted that he told Padgett he was inexperienced in such matters and that it was necessary for him to confer with his attorney in regard to the agreement. 8 Case No. 3-RC-583. EATON BROTHERS CORP. 471 The remaining individuals attending the meeting, although called as wit- nesses at the hearing , did not testify in regard to this phase of the case. Padgett, having received no word from the Company by November 9, telephoned the plant on-this date and talked to one of the Eatons. Padgett asked that Eaton meet with him that morning but he refused to do so. He then inquired if the Company intended to sign the interim agreement , or consent to a Board- conducted election, and Eaton answered both inquiries in the negative. Pad- gett told Eaton he had information that the Company had been interrogating and intimidating the employees and, unless the Company stopped these activities, he would recommend the employees cease work until such time as the Company agreed to an election . Eaton replied that Padgett could not threaten him, that he would operate the Company as he wished, the same as Padgett could run the Union, and terminated the conversation by hanging up the phone. Kenneth Eaton, in substance , admitted the foregoing conversation , except that he denied Padgett requested a meeting be held that morning, or at any other time. The parties stipulated that on November 13, the Company and the Union executed an agreement, in customary form, providing that the Board conduct an election among the employees, in the same bargaining unit as alleged in the complaint, for the purpose of determining whether the employees desired to be represented by the Union for the purposes of collective bargaining . However, no election has been held pursuant to the agreement, for on November 16 the Union filed the original charge in this proceeding, alleging violation of Section 8 (a) (1 )of the Act, which, on March 16, 1951, was amended to include a viola- tion of Section 8 (a) (5) thereof. On March 29, 1951 , the petition for certifica tion was withdrawn by the Union without prejudice. E. Contentions of the parties The General Counsel contends that the Company refused to bargain collec- tively with the Union, which represented a majority of its employees in an appropriate unit, especially when it is considered that the Company at the same time engaged in a course of conduct designed to discourage membership in the Union. Further, the General Counsel contends that the Company initially refused to grant recognition to the Union and later entered into a consent-elec- tion agreement merely for the purpose of obtaining additional time within which to dissipate the Union's majority. The Company denies that it refused to bargain with the Union and also asserts that the unit set forth in the complaint is inappropriate for the purposes of collective bargaining. Conclusions Before considering the contentions of the parties, it must be pointed out as fundamental that where the employer is alleged to have refused to bargain col- lectively with the Union or the representative of his employees, it must show not only that it represented a majority of the employees concerned but also that it has requested the employer to enter into bargaining negotiations. While the request need not be formal, nor made in any particular manner , the Union must make it sufficiently clear to the employer that his employees desire to enter into negotiations through their designated bargaining agent. (N. L. R. B. v. Colum- bian Stamping and Enameling Company, 306 U. S. 292 , 297-298.) Here the evidence plainly discloses that at the meeting on November 3, Padgett did not demand recognition of the Union as the exclusive bargaining agent of any or all of the Company's employees nor did he request the Company to bar- gain collectively with the Union concerning the usual subjects of bargaining negotiations. Instead Padgett outlined the various methods that might be 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Utilized in resolving the question of whether or not the Union represented a majority of the Company's employees. In an effort to secure a speedy determina- tion of this question, Padgett requested the Company to sign an interim agree- ment with the Union whereby the Company would agree to a consent election to be conducted by the Board and to refrain from certain conduct proscribed by the Act. Moreover, as apparent upon the face of this agreement the Union un- equivocally conditioned any obligation on the part of the Company to engage in collective bargaining upon its receiving a majority of the votes cast in the elec- tion. It is obvious therefore that the Union was neither seeking recognition nor attempting to bargain collectively but was simply endeavoring to expedite the determination of its majority status through normal Board procedures. Under similar circumstances the Board, in The Solomon Company, 84 NLRB 226, decided that such a request was insufficient to support aviolation of Section 8 (a) (5) -of the Act. There the Board held that written notification by the Union to the -Company of its intention to file a petition for certification and requesting the latter to participate in a cross-check of union cards to determine the question 'of majority was not a "clear and unequivocal demand for recognition," par- ticularly since it did not represent a majority, and that the Company's inter- pretation of the letter, that it was merely a proposal for determining the majority status, was reasonable. (Accord: Bausch & Lomb Optical Company, 69 NLRB 1104.) Again, in N. L. R. B. v. Valley Broadcasting Company, 189 F. 2d 582 (C. A. 6) decided June 1, 1951 (28 LRRM 2148), the Court refused to grant enforcement of the Section 8 (a) (5) provisions of the Board's order because there was no substantial evidence indicating that the Union "ever presented respondent with a clear demand to bargain." While, as stated above, the Union was not bound to follow any prescribed formula in requesting the Company to enter into collective bargaining negotia- tions it was certainly required to inform the Company concerning its position as representative of the employees and what, if any, demands it was making upon the Company. At the only meeting between representatives of the Union and the Company, it is clear, and it so found, that Padgett merely asked the Company to agree to a consent election in order to establish its majority status and at no time did he request recognition as the exclusive bargaining agent of any of the Company's employees, or that the Company enter into bargaining negotiations with'-the Union. Of course, an employer should cooperate with a labor organization claiming to represent its employees, to a reasonable extent, in an effort to resolve its majority status and here the Company did so cooperate by executing the agreement for a consent election 10 days after the first meeting of the parties. It is true that the Union, at the same time that the Company orally agreed to confer with it, October 31, addressed a letter to the Company to the effect that it represented a majority'of the employees and requesting that a meeting be arranged. In the light of the events that transpired at the meeting held on the agreed date, the undersigned does not consider the letter as important or as supplying an effective request for bargaining negotiations when no such demands were presented at the meeting. Apparently the parties themselves attached no significance to the letter for there is nothing in the record to indicate that the terms thereof were discussed at the meeting. Similarly, the telephone conversation, on November 9, between Padgett and Kenneth Eaton fails to show that the Company refused to bargain on that date. On this occasion Padgett, in brief, asked Eaton if he was going to sign the interim agreement, complained that the Company was interrogating, as well as meeting with, its employees, threatened the Company with strike action, and requested that a con- ference be held chat morning. Eaton admitted the substance of the conversa- tion but denied that Padgett made any request for a meeting with the Company. EATON BROTHERS CORP. 473 The testimony, of course, is conflicting as to whether Padgett requested a meeting during this conversation. When it is considered that shortly prior thereto the Company had readily agreed to, and did, meet with the Union, the undersigned, upon the basis of all the evidence, is unable to find that the Union, on November 9, made any demand that the Company meet with it for the purpose of entering into bargaining negotiations. By reason of the foregoing the undersigned finds that the Union failed to make a valid request upon the Company to engage in collective bargaining negotiations on behalf of its employees, hence the Company has not engaged in any conduct in violation of Section 8 (a) (5) of the Act. It follows that the General Counsel's contention that the Company's original refusal to bargain and its subsequent signing of the consent-election agreement were motivated by a desire to gain time to dissipate the Union's majority is purely an academic theory, inapplicable in this case. First the Union's strategy and course of action made it unnecessary for the Company to assume any position concerning bargaining rights whereby its motives, be they good or bad, might be tested. Secondly, granting that the Company engaged in unfair labor practices unrelated to its refusal to bargain (cf. Roanoke Public Ware- house, 72 NLRB 1281), this conduct cannot be used as a substitute for a legitimate request to bargain collectively when in fact no such demand was ever made. The Appropriate Unit and the Union's Majority Although it is not mandatory, in view of the above findings, to make any determination with respect to the appropriate unit and the Union's majority, since both parties raise questions in these respects it seems proper to discuss and dispose of these issues. The complaint alleges that all production and maintenance employees, exclusive of retail store, office, and clerical employees, and statutory exclusions, constitute a unit appropriate for the purposes of collective bargaining. The Company contends that the employees in the equipment repair depart- ment should be excluded therefrom because this phase of the Company's business has always been operated as a separate independent division and has "nothing in common" with its grass mat manufacturing operations. In resolving unit issues, the Board's primary concern is to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment. Here the Company's total operations are relatively small, especially as to the number of employees, and are conducted in one building. While its manufacturing and repair operations are under separate supervisory officials, nevertheless each is ultimately responsible for the per- formance of his duties to the same top management group. Of course, the fact that an employer may make several different products or engage in different types of services does not mean that the employees in each category are, per se, in separate units for the purposes of collective bargaining. Here it appears that the employees, as a group, attended work meetings called by management, that they used the same time clock and that in December and January 1951 the Company granted a Christmas bonus and wage increase, respectively, applicable to all of its employees. Moreover, the Union included the repair department in its organizational efforts and three of the four workers in the department, as discussed below, signed union cards. Of course, no rival labor organization is involved herein. The fact that the grass manufacturing department is staffed with female workers while the repair department employs only male workers, 4 Fifteenth Annual Report of the National Labor Relations Board, pp. 38-39. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the further fact that there is a lack of similarity of skills or interchange- ability of jobs among the employees, while circumstances to be considered, do not overcome the factors set forth above, which clearly indicate that the employees in each department have substantial mutual interests in wages, hours, and conditions of employment. Again, as pointed out by the General Counsel in his brief : "There is nothing in the statute which requires that the unit for bargaining be the only appropriate unit, or the ultimate, or the most appro- priate unit." (Citing A. S. Beck Shoe Corporation, 92 NLRB 1457.) Accord- ingly, it may be that the unit urged by the Company could also be appropriate but in the light of all the evidence the undersigned is not persuaded by the argument that this unit is the only appropriate one and it is rejected. The undersigned therefore finds that the unit alleged in the complaint is appropriate for the purposes of collective bargaining. The payroll records of the Company were offered and received in evidence at the hearing and these records disclose that for the period October 23 to November 4 the Company employed a total of 30 employees in the appropriate unit and for the period November 6 to November 18 it had 29 such employees. Having found that Kasprzak, Sheetz, and Fierle are, and were, supervisors they must be excluded from the unit so that during the above-mentioned periods the Company employed 27 and 26 employees respectively. At the hear- ing the General Counsel produced 20 union cards of employees in the unit, each of which was properly identified as to signature either by testimony or stipulation of the parties. All of the cards, except those of 3 employees in the repair department, were signed on October 27, or at least prior to October 31. With respect to the cards of the repair department employees, William Stein- kerchner testified that he signed a card on November 3; Frederick M. Borchert admitted he signed a card but denied that he placed the date, November 3, thereon and could not recall when he actually signed the card; and William Borchert, Jr., testified to the same effect but stated he signed sometime between Thanksgiving and Christmas. Alice Patton testified that one morning at the plant she and a group of employees signed cards, dated October 27, which were distributed and collected by Grimm. About an hour later Patton stated that she and 3 other employees, Eleanor Hoffmaster, Margaret Brown, and Rose Gervasi' decided "we wanted our cards back," so Patton went to Grimm <vnd asked her to return the cards but she refused to do so and told Patton "it was too late." Eleanor Anielska said that she signed a card, at the request of Grimm, one Friday (apparently October 27) but after oonsidering the matter over the week end she reached the conclusion she "did not want anything to do with" the Union. However, there is nothing in her testimony to indicate that she asked Grimm, or anyone else, to return her card. As appears above, on November 3, there were 27 employees in the bargaining unit' and the General Counsel produced 20 cards signed by employees therein, allegedly executed on or before that date. It is undisputed that 4 of the employees repudiated their cards shortly after signing the same, prior to the commission of any alleged unfair labor practices, so their cards are excluded in considering the majority question (N. L. R. B. v. Vulcan Forging Co., 187 F. 2d 974 (C. A. 6).) Again, the evidence concerning the date on which the Borch- a $heetz was also among these employees. a The General Counsel in his brief states that there are 26 employees in this unit. Obviously he has eliminated Harold Kauffman , repair department employee, whose name appears on the payroll covering this period but which does not appear on the payroll for the period November -6 to 18. The record reveals no valid reasons for excluding Kauffman. so he must be included in the bargaining unit. - EATON BROTHERS CORP. 475 erts signed their cards certainly cannot support the conclusion or finding that they were in fact executed on or before November 3, so they likewise are excluded. Granting full recognition and validity to each of the remaining cards the Union had a scant majority of 1 employee in the unit on the critical date. Assuming, therefore, that the Union made a valid request for bargaining rights on November 3 and offered to prove its majority to the Company, the under- signed is of the opinion that the General Counsel still failed to establish by a preponderance of all the evidence that the Union had a clear majority on the above date so as to warrant a finding that the Company unlawfully refused to bargain collectively with the Union. (Cf. Editorial "El Impartial," Inc., 92 NLRB 1795.) Although incongruous, the record reveals it was the Union, rather than the Company, that initially raised the question of majority status and since, in any event, no evidence of majority was ever presented or tendered to the Company, the undersigned finds that the Company has not engaged in any conduct in violation of Section 8 (a) (5) of the Act. (Marr Knitting, Inc., 90 NLRB 479.) - During the hearing the General Counsel moved for leave to amend his com- plaint in respect to Section 8 (a) (5) allegations therein, by adding as a party to the proceedings Eaton Equipment Corporation. It is undisputed that on April 1, 1951, after the issuance of the complaint, a new corporation was organized for the purpose of conducting the equipment sale and repair business of the Company. Counsel for the Company stipulated that the Eatons are the principal stockholders in the new corporation and that they own and control both the old and the new companies. Counsel contends, however, that the new corporation is not a successor company and is not engaged in any busi- ness affecting commerce as defined in the Act. These objections are without substance. Apart from the formation of the new corporation it is plain that the location, operation, and personnel of the repair department remains and con- tinues the same as prior to the act of incorporation. Counsel for the Respondent does not object to the inclusion of the new corporation on the grounds that it was not served with a copy of an amended charge and complaint, so it is deemed that these requirements have been waived. The motion is, therefore, granted. As the name of the new corporation appears in the transcript as Eaton Equipment Corporation and as Eaton Brothers Equipment Corporation, the complaint, limited to Section 8 (a) (5) allegations, is amended by adding thereto as a party Eaton Equipment Corporation and/or Eaton Brothers Equipment Corporation. F. Acts of interference, restraint, and coercion 1. Interrogation of the employees Storms, plant superintendent, stated he first learned of union activity at the plant on October 31, when Kenneth Eaton advised him of his telephone conver- sation with Walski. Storms then went to Maxwell Eaton and remarked : "Well, looks like we've got Union activities." Storms could not recall Eaton's reply to his remark. In any event, whether during the course of this conversation or shortly thereafter, Eaton told Storms that "we wanted to find out what was going on in the plant, so I asked them [sic] to find out what it was." A few days later Storms interviewed each of the women employees at his office, which interviews extended over a period of several days and lasted from 5 to 15 minutes with each employee. According to Storms production steadily declined, com- mencing the latter part of August, so he decided to interview the women employ- ees as he was "suspicious" that declining production may have been attributable to the employees discussing the Union rather than working. Admittedly, Storms 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not mention poor production to the employees prior to the November inter- views, but on one occasion he did discipline two employees by docking 15 minutes of their pay for excessive talking on the job. In conducting his personal inter- views, Storms said he usually opened the conversation by asking the employee: "What is the cause of all this trouble? Why is everybody so riled up?" Gen- erally, the employees told Storms that he was rather an austere, unapproachable person and that he had been unfair in taking disciplinary action against the two girls. It seems clear from the testimony of Storms and the employees who appeared as witnesses that production was discussed during the interviews although the evidence is vague and sketchy concerning the nature and extent of such discussions. Thus, Patton stated that Storms asked her if she had any "trouble" and when she said she did not, he inquired if she was satisfied and enjoyed working for the Company and she replied in the affirmative. She further stated that Storms told her production was down. Barbara Brown related that in addition to some discussion of production, Storms asked if she had any griev- ances against him, but apparently she made no response to this inquiry. Brown stated there was no mention of the Union during the interview but she volun- tarily told Storms she had signed a union card. However, Storms made no com- ment upon receiving this information. Krauss and Styles testified that produc- tion was discussed and that Storms asked them to give him the names of members of the union committee. Storms admitted that he requested this information from four to five of the employees interviewed. Grimm testified that when called to Storms' office he told her he wished "to find out what was wrong that we started the Union," and further informed her that he did not see "why we couldn't get together without it and settle our grievances amongst ourselves." Grimm made no reply to these inquiries. She further stated that production was not mentioned during her interview. 2. Management meetings with the employees Maxwell Eaton testified that after the meeting with Padgett, on November 3, there were rumors at the plant that the Company had signed an agreement with the Union which "upset" the employees and as a consequence production was seriously affected. Moreover, as the employees were asking Eaton, Storms, and their supervisors "what was going on," Eaton decided to hold a meeting on November 7 to discuss the matter with them. Prior thereto, Eaton pre- pared an "Outline of Remarks to Employees" covering subjects he believed to be of interest to the workers,' but stated he "didn't follow these exactly" when he spoke to the employees. Concerning the meeting, Eaton stated that, after telling the employees they were free to leave, he informed them that production was low, that they could not spend all their time talking about union matters, and that the Company had not entered into any agreement with the Union. Eaton denied that he made any suggestions that the employees form their own committee for the purpose of handling grievances with the Company. How- ever, he admitted that some of the employees brought up the subject of grievances at the meeting and be told these employees that had he been informed of any grievances, he would have discussed the same with them but at the present time he "could do nothing." Eaton further stated that on one occasion, he could not recall whether at this meeting or a later one, he advised the employees 4 The topics in the outline relate to (a) the legality of the meeting, (b) the Company has no agreement with the Union, (c) the election to be conducted by the Board, (d) grievances, (e) steady employment, and (f) strikers receive no pay or unemployment benefits. EATON BROTHERS CORP. 477 that the Company would bargain with the Union if an election was held and a majority of the employees desired to be represented by it and that the Company would not discriminate against any of its employees. Kenneth Eaton testified that the above remarks were made by his brother at the meeting of November 7. The meeting thereupon concluded. Krauss, who was present at the meeting, admitted that one of the employees asked that a longer rest period be granted and that Eaton was surprised to hear this suggestion and stated he had no knowledge concerning the time allowed the employees. Apparently, in view of his lack of knowledge in respect to this grievance , Eaton, as related by Krauss, told the employees that "before we even started anything, that is what we should have done , started a committee," as he did not know what was going on at the plant. Kasprzak said that on November 7 Eaton told her he had heard from the Union and to inform the employees that a meeting would be held that day, so she notified the employees and also attended the meeting . Kasprzak could not remember what Eaton said at the meeting but she admitted that grievances were mentioned , at least to the extent that one employee said they wanted more pay. She further stated that Eaton said "something" about a committee but she could not recall "just how it was worded." Anielska , Hoffmaster, and Patton testified that Eaton made no suggestion on the formation of an employees' committee . Dawn McLaughlin could not recall any suggestion of this kind although she remembered that some of the employees mentioned grievances. Grimm testified that the employees , at the above meeting, complained of short rest periods and the docking of several girls for talking . Eaton said he was surprised to learn of so many grievances and perhaps the employees should have the Union but he did not see "why we couldn't get together without it to form a committee through the shop and us girls ." Styles stated that the matter of a longer rest period was brought up at the meeting and that Eaton agreed to increase the time from 5 to 10 minutes . Eaton also told the employees that he preferred to have them "take care of our own business without having a Union organizer coming in." On November 9 Kenneth Eaton , after his telephone conversation with Padgett, addressed a meeting of the employees and in substance stated that the Union had threatened to call a strike at the plant, that the Company had not signed any agreement with the Union , and that a petition for certification had been filed with the Board . Eaton also told the group that members of the Union were required to pay initiation fees and dues and to contribute to a health and retire- ment plan. On November 14 Maxwell Eaton addressed a third meeting of the employees and seemingly informed the group that the Company , on November 13, executed an agreement providing for a consent election to be conducted by the Board. 3. The formation and activities of the employees' committee Krauss stated that about Friday, November 17, or approximately 2 weeks after Maxwell Eaton 's first speech , she attended a union meeting at which Padgett declared that he would stall off the election and file charges against the Company with the Board . Krauss said she did not wish to become "involved in anything like that," or to "start any kind of trouble," so after considering the matter over the week end she decided she no longer desired to be represented by the Union and "was absolutely against it ." The following Monday morning Krauss con- tacted the employees at work and suggested to each that a committee be formed 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the purpose of presenting certain grievances, or demands, which she had already prepared, to the Company. Practically all of the employees agreed to her suggestion. Krauss informed Kasprzak that she was presenting a list of grievances to Eaton, which she showed to her, and Kasprzak said that was an "excellent idea." Krauss, accompanied by Kasprzak, then met with Eaton. Krauss explained her "own idea of everything" to Eaton and informed him that 90 percent of the women were with her, and that "we hoped to drop the Union matter." Krauss then presented her grievances which included a definite 10- minute rest period, a 10-cent per hour wage increase, paid holidays, and a few other items. She stated that the women employees would be satisfied with the granting of these demands and "drop this Union trouble" at the plant. Eaton told Krauss and Kasprzak that "his hands were tied and he could not do any- thing" in respect to their demands. The meeting then concluded. Kasprzak stated that she observed Krauss talking to the employees on the above occasion but she did not hear the subject of her conversation with them. She declared that Krauss contacted the employees without her permission and although she remained away from her place of work, Kasprzak did not say anything to her. After the meeting with Eaton, Kasprzak and Krauss told one or two of the employees what had taken place and they apparently passed along this information to the other employees. - Eaton and Kasprzak testified substantially the same as Krauss concerning the meeting. The record does not disclose any further activities by Krauss, Kasprzak, or any of the employees 8 on behalf of the committee or that any subsequent meetings were held with the Company. 4. The promise of economic benefits to the employees Grimm and Styles testified in substance that at the meeting with Maxwell Eaton on November 7, some of the employees complained that the time clock was erratic and had no bell or alarm. This resulted in the workers being unable to tell precisely when to commence work or when their 5-minute rest period terminated. Eaton said he would "remedy" the clock matter and agreed that the employees should have a 10-minute rest period. Storms conceded that the employees complained to him about the clock which was an old one, of 1917 vint- age, and that he secured a new clock, which was installed on December 26. Grimm stated that the 10-minute rest interval became effective immediately after Krauss and Kasprzak met with Eaton but Styles could fix no date thereon, except that it was not allowed until quite some time after the speech. Other employee witnesses testified that there was no change in the time allowed for rest periods from as early as July until after the installation of the new time clock in Decembers It also appears that the Company gave a Christmas bonus to its employees and in January 1951, granted an 8 percent cost-of-living increase in wages. The General Counsel does not urge that the Company thereby engaged in any unfair labor practices, and the undersigned agrees that there is nothing to indicate the bonus and increase were unlawfully granted. 8 On November 27 and December 4, respectively , the employees addressed letters to the Regional Office of the Board urging that an election be conducted at an early date. Admittedly, these letters were circulated among and signed by the employees during working hours. The General Counsel does not contend that this action constitutes a violation of the Act and the undersigned is of the same opinion. 9 Kasprzak, Krauss, McLaughlin , Anielska, Hoffmaster, and Patton. EATON BROTHERS CORP. Conclusions 479 Concededly Storms, in his personal interviews with the employees, asked each of the individuals what was causing the "trouble" at the plant and specifically requested four or five of the employees to reveal the names of the members of the union committee. Storms' explanation that the individual interviews were prompted by declining production, commencing several months prior thereto, is certainly not convincing although low production was mentioned in the course thereof. The testimony of Storms discloses that immediately upon his learning of union activities he discussed the matter with Maxwell Eaton, who instructed him "to find out what was going on at the plant," and within a few days Storms called each of the women to his office. This evidence not only refutes the ex- planation offered by Storms but clearly furnishes the motive and purpose in questioning the employees, namely, to secure information concerning the union activities at the plant. Interrogation of this character, even though unaccom- panied by actual threats of discharge or discrimination, is prohibited by the Act. (Standard-Coosa-Thatcher Company, 85 NLRB 1358.) The undersigned therefore finds that by questioning its employees in regard to their union activ- ities the Company thereby engaged in conduct in violation of Section 8 (a) (1) of the Act. The General Counsel contends that Maxwell Eaton, at the meeting of Novem- ber 7, suggested that the employees form their own committee for the purpose of presenting grievances to him. The evidence in respect to this alleged viola- tion is conflicting. Grimm and Styles testified in support of the General Coun- sel's contention but Eaton denied that he made any such suggestion and his denial is substantiated by Anielska, Hoffmaster, and Patton. McLaughlin could not recall any suggestion to this effect. The General Counsel argues that the testimony of Grimm and Styles is corroborated by prior written statements of Kasprzak and Krauss which were received in evidence at the hearing. Assum- ing that the statements have this effect, nevertheless the undersigned does not consider them as decisive of the issue herein. The statements were admitted in evidence only for the purpose of refreshing the recollection of these witnesses, who, after being confronted with their respective statements, still denied that Eaton suggested the formation of an employee committee.10 The General Coun- sel further argues that Eaton's outline of remarks (supra, p. 476) contains language to the effect that he would personally handle future grievances, thereby contradicting his direct testimony at the hearing. This argument is without substance since it overlooks the fact that Eaton stated, and there is no evidence to the contrary, that he did not read the outline verbatim to the employees. Moreover, the events that occurred subsequent to November 7 lend further credence to Eaton's testimony for it is undisputed that when the committee did present grievances, he replied that there was nothing he could do in respect thereto. The undersigned, upon all the evidence, finds that the Company did not urge or suggest the formation of a committee as alleged in the complaint. The record reveals that Krauss changed her attitude toward the Union as a result of Padgett's remarks at a union meeting and that she was the leader of the movement to establish the so-called employees' committee. It is also plain that Kasprzak acquiesced in the plan and accompanied Krauss at the meeting with Eaton. Ordinarily, such action on the part of a supervisory employee 10 The undersigned does not consider it essential to discuss the circumstances under which the statements were executed. This does not mean that the undersigned accepts as true the circumstances as related by Kasprzak and Krauss. 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be in violation of the Act. However, it is equally plain that Kasprzak, while a supervisor, also signed a union card, was a member of the union com- mittee which met with the Company, and was fully cognizant of the fact that the employees, without restraint on her part, were engaging in union activities at the plant. Nor is there any contention, or indication, that Kasprzak joined in these activities for the purpose of destroying or disrupting the Union, or for any other ulterior motives. Thus, to say that it was perfectly proper for Kasprzak to have engaged in activities on behalf of the Union but when she par- ticipated in somewhat similar activities on behalf of the committee she thereby interfered with, restrained, and coerced the employees is a theory rather difficult to accept. The undersigned therefore is unalile to find, upon a pre- ponderance of all the evidence and the reasonable inferences to be drawn there- from, that the Company, by reason of Kasprzak's actions, thereby interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed under the Act, in violation of Section 8 (a) (1) thereof. The entire rest period incident and the replacement of the old clock, to which so much time and energy was devoted, is without substance and is nothing more than a tempest in a teapot. The contention that the bare promise to adjust complaints of this character and nature constitutes a violation of the Act and the entry of a cease and desist order is rejected for, in the opinion of the undersigned, the facts do not warrant or justify such a finding and order. 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 its operations described herein, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The unfair labor practices-the interrogation of employees concerning their union affiliations and activities-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, or coercing its employees in their right to self-organization. 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. Eaton Brothers Corp., and Eaton Equipment Corporation and/or Eaton Brothers Equipment Corporation, and each of them, is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Textile Workers Union of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, to the extent herein found to • be violative of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) thereof. TAYLOR AND BOGGIS FOUNDRY DIVISION 481 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not engaged in any unfair labor practices in violation of Section 8 (a) (5) of the Act. [Recommendations omitted from publication in this volume.] TAYLOR AND BOGGIS FOUNDRY DIVISION OF THE CONSOLIDATED IRON- STEEL MANUFACTURING COMPANY' and INTERNATIONAL UNION,. UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT' WORKERS OF AMERICA, CIO, PETITIONER. Case No. 8-RC-1497. March 6,1952 Decision and Order Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Bernard Ness, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 [Chairman Herzog and Members Houston and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks to represent a unit of production and mainte- nance employees at the Employer's plant.. The Employer and the In- tervenor, International Molders & Foundry Workers Union of North America, AFL, contend that the only appropriate unit is one associa- tion-wide in scope. From 1934 to June 1950 the Employer and the Intervenor bar- gained collectively for the former's employees as a separate unit. In April 1950 the Employer joined a trade association, The Manufac- turers' Protective & Development Association, herein called the Association, which has been bargaining with the Intervenor on an association-wide basis since 1891.2 On June 6, 1950, the Employer, I The name of the Employer appears as amended at the hearing, 2 Kalamazoo Stove and Furnace Company, 61. NLRB 1041. 98 NLRB No. 83.