The Gruen Watch Co.

610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grievances. Schertzel may discuss with employees mistakes in work discovered in inspection and give corrective measures to be taken if minor adjustments are required . Schertzel on infrequent occasions substitutes for the regular foreman, when the latter is absent. The Regional Director made no recommen- dation with respect to Schertzel' s status. Because the counting of the ballots of Balcerzak and Schertzel, even if both were valid, would not affect the results of the election, we shall make no finding as to the status and eligibility of Schertzel, and we direct that the ballot of Balcerzak remain uncounted. Because the Petitioner failed to receive a majority of the valid ballots cast, we certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for United Automobile Workers of America, AFL, and that the said labor organization is therefore not the exclu- sive representative of employees in the appropriate unit.] THE GRUEN WATCH COMPANY, THE GRUEN NATIONAL WATCH CASE COMPANY and INTERNATIONAL ASSOCIA- TION OF MACHINISTS, AFL, Petitioner and INTERNA- TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-CIO, Petitioner and METAL POLISHERS, BUFFERS, PLATERS AND HELPERS INTERNATIONAL UNION, A. F. OF L., LOCAL NO. 68. Cases Nos. 9-RC-1445 and 9-RC- 1359. April 29, 1954 SUPPLEMENTAL DECISION AND CERTIFICATION OF REPRESENTATIVES Pursuant to a Decision and Order of the Board,' which set aside the election of February 1, 1952, a new election was held under the direction and supervision of the Regional Director for the Ninth Region on March 20, 1953, among the employees in voting unit 1.2 The results of the election as shown by the tally of ballots, were that of approximately 27 eligible voters, 26 cast valid ballots, of which 21 were for the International Association of Machinists, AFL, herein called the IAM, and 5 were against participating labor organizations. There was 1 challenged ballot. On March 27, 1953, the Employer filed timely objections to the election in voting unit 1 contending that employees therein were restrained and coerced by (1) threats of harm if they 1103 NLRB 3. 2 An election was also held for voting unit 3 in connection with which the Board issued a certification of results of election. 108 NLRB No. 104. THE GRUEN WATCH COMPANY 611 did not join or vote for the IAM; ( 2) false and erroneous rep- resentations that employees would have to join the IAM after the election , and unless they joined and paid a substantial fee before the election , they would have to pay a much larger fee thereafter ; ( 3) threats and representations that if em- ployees did not join the IAM before the election , there would be ways of making them do so after the election , such as breaking their tools and spoiling their work; and (4) other misrepresentations , restraints , and coercion impairing the free exercise of the rights guaranteed in Section 7 of the Act. Thereafter , the Regional Director conducted an investigation, and on June 30, 1953 , issued his report on objections in which he found that the objections raised no substantial issues af- fecting the results of the election and recommended that they be overruled. On July 9, 1953, the Employer filed exceptions to the report on objections and requested that a hearing be held on the issues herein. On September 29, 1953, the Board ordered a hearing on all factual issues raised by the second objection of the Employer. A hearing was held on November 6 , 10, 11, and 12, 1953, before Richard C. Curry, hearing officer. On December 10, 1953, the hearing officer issued his report on objections, a copy of which is attached hereto, recommending that the Em- ployer's second objection be overruled. The Employer filed timely exceptions to the hearing officer ' s report, and a sup- porting brief. The Board has reviewed the rulings of the hear- ing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in these cases , the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer, as the parties stipulated, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All tool and die makers and their apprentices at the Employer's Norwood plant in Cincinnati, Ohio, excluding all other employees, office and clerical employees, guards professional employees , and supervisors as defined in the Act. 5. With respect to objections ( 1) and ( 3), we find it unneces- sary to determine whether or not the conduct in question occurred. The Regional Director found that there was no evi- dence that the participants involved were other than rank-and- 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD file employees or unknown persons whose actions are not shown to be attributable to the IAM. The Employer' s exceptions do not advert to any specific , substantial evidence which con- troverts these conclusions . Therefore , we find no merit in objections ( 1) and (3).9 Concerning the second objection , on which the hearing was held, the record shows that on January 11, 1952, Lodge No. 729, District Lodge No. 34, IAM, passed a resolution offering the employees of the Employer a reduced initiation and re- instatement fee of $7.50 for journeymen and specialists until "further notice." The standard initiation fee was $25 for journeymen and specialists ; reinstatement fees ranged from $50 to $ 100. The above reduction was pursuant to a provision in the IAM's bylaws permitting concessions during an organi- zational campaign.4 The record further shows that shortly before the election of March 20 , 1953, some employees were informed by William J. Goodman and Less Talbott , two active Union adherents , that the reduced rate would be in effect before the election. The Employer contends that as a result employees were led to believe that under the terms of the resolution the reduced rates would be withdrawn immediately after the elec- tion. According to the Employer, the effect of these state- ments was to induce employees to pay $ 7.50 to the Union before the election in order to avoid the hardship of paying $ 25 or more if the Union won. The practice of offering special reduced initiation fees during a union's organizational campaign has been traditionally used by unions to attract new members . The Board has held that such a practice during a preelection campaign does not in and of itself interfere with the conduct of an election . 5 In the instant cases it is clear that the IAM offered the employees a benefit in the form of reduced initiation fees as an induce- ment to join the Union . The benefit was in no way contingent on how the employees voted in the election or on the results of the election. Undoubtedly , the IAM in this manner may have secured additional adherents before the election. But the interest of these employees in a union victory was centainly no greater , and perhaps less , than that of employees who might have paid the standard , higher initiation fees. In the absence of evidence that the employees would be rewarded or penalized because they voted for or against the Union, we cannot find that the IAM ' s conduct in these cases was sufficient to warrant setting aside the election . There is no evidence in the record to support the Employer' s contention that the JAM falsely represented that employees would have to join SMartnan Bag Company , Inc., 103 NLRB 456. 4Contrary to the contention of the Employer , employees in the voting unit indicated that they expected to be assigned to Lodge No. 729 of the IAM although only the International was on the ballot. 5 J. J. Newberry Co., 100 NLRB 84, 86-87; The Root Dry Goods Company d/b/a The Root Store, 88 NLRB 289, 290-291. THE GRUEN WATCH COMPANY 613 ' the Union after the election. Accordingly, we find that the Employer's second objection is without merit.6 With respect to the last objection, the Regional Director finds that no evidence was submitted or developed during his investigation that revealed other misrepresentations, re- straints , or coercion impairing the free exercise of the rights granted in Section 7, of the Act. As the Employer does not except thereto, we adopt the Regional Director' s finding that the fourth objection is without merit. We hereby overrule the Employer ' s objections and find that its exceptions do not raise substantial or material issues regarding the conduct of the election. Upon the basis of the March 20, 1953, tally of ballots for voting unit 1, we shall certify the IAM as the collective-bar- gaining representative of the employees in that unit. [The Board certified the International Association of Ma- chinists , AFL, as the designated collective -bargaining repre- sentative of the Employer' s employees in unit 1 herein found appropriate.] Chairman Farmer and Member Rodgers took no part in the consideration of the above Supplemental Decision and Certifi- cation of Representatives. 6As there is sufficient evidence in the record to indicate that some employees joined the IAM and paid the reduced fee throughGoodman, it is unnecessary to pass upon the hearing officer's ruling with regard to the admissibility of cards for the purpose of adducing further proof as to Goodman's organizing activities. HEARING OFFICER'S REPORT ON OBJECTION TO ELECTION Pursuant to a Decision and Order of the National Labor Relations Board, i which set aside the February 1, 1952, election and ordered the Regional Director of the Ninth Region to con- duct a new election, an election was held on March 20, 1953, among the employees in voting unit 1 and voting unit 3.2 The tally of ballots shows that the International Association of Ma- chinists, AFL (herein called JAM), received 21 of the 26 valid ballots cast. The Gruen Watch Company and The Gruen National Watch Case Company (herein called Employer) filed timely objections thereto. On June 30, 1953, the Regional Director of the Ninth Region issued a report on objections to election, recommending that the objections filed by the Employer be overruled. The Board, on September 29, 1953, ordered a hearing on all factual issues raised by the Employer's "... Objection (b), namely, the alleged representations that employees would have to join the Machinists after the election, and that unless they joined and paid a substantial fee before the election, they would have to pay a much larger fee thereafter...." The Re- gional Director for the Ninth Region on October 5, 1953, issued a notice of hearing on objec- tion to election as ordered by the Board. A hearing was conducted on November 6, 10, 11, and 12, 1953, before the above-named hearing officer. The Employer and the JAM appeared by counsel who participated fully in the i The Gruen Watch Company, the Gruen National Watch Case Company, 103 NLRB 3. 2 The Board issued a certification of results of election as to voting unit 3 on September 29, 1953, in its unpublished order directing hearing on objection to election and certification of results. 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hearing and were afforded full opportunity to be heard and to examine and cross-examine witnesses , 3 and the parties were permitted to introduce evidence relating to the factual issue raised by the Employer's objection as ordered by the Board in its aforesaid order.4 The Em- ployer and the IAM filed timely briefs with the hearing officer which have been duly con- sidered in the preparation of this report. Upon the entire record of the case and from the undersigned's observation of the witnesses and consideration of all documentary evidence, he makes the following findings of fact, con- clusions of law, and recommendations to the Board as to the disposition of said objection: FINDINGS OF FACT 1. Lodge No. 729, of District Lodge 34ofthe IAM (herein called Lodge No. 729), on January 11, 1952, pursuant to its "By-laws and Shop Committee Rules,i5 did reduce its initiation and reinstatement fees to $ 7.50, which amount included 1 month's dues 6 for diemaker employees of the Employer .? This special dispensation was uniform for all employees with the exception of the apprentice diemakers, 8 who were required to pay $ 3.50 as an initiation fee.9 Since this special dispensation, which was granted on January 11, 1952, was not rescinded by Lodge No. 729, it is found to have been in continuous effect during all times material hereto. 2. During the period from the date of the special dispensation to the date of the election, March 20, 1953, William C. Smith, senior business representative of District Lodge 34 of the IAM, informed a group of employees of the Employer in voting unit 1 at the plant that membership in Lodge No. 729 could be obtained by paying a reduced initiation or reinstate- ment fee of $ 7.50. 3The hearing officer denied the Employer's motion to separate the witnesses. The Em- ployer moved the Board to entertain an interim appeal to the hearing officer's ruling. The Board granted the appeal and further ruled the hearing officer had erred. Pursuant to the Board's ruling, the hearing officer reversed his prior ruling and the participating parties named their anticipated witnesses, who were excluded from the hearing room until called by the parties. The IAM moved to dismiss the objection on the ground that it alleged an unfair labor practice. The hearing officer reserved his ruling. Said motion is hereby denied. 4 The International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, UAW-CIO, and Metal Polishers, Buffers, Platers and Helpers International Union, A. F. of L., Local No. 68, did not appear at the hearing. 5 Sections 3 and 4, article III, of said "By-laws and Shop Committee Rules," which govern the initiation and reinstatement fees for membership in said Lodge, read: Section 3. Initiation fee of this Lodge shall be Twenty-five Dollars ($25.00) for journey- man and Specialist. Fifty per cent (5066) to accompany the application. The initiation fee for Apprentice shall be Twelve Dollars and Fifty Cents ($12.50). Fifty per cent (50%) to accompany the application. Section 4. The reinstatement fee for Journeyman and Specialist shall be as follows: For the first reinstatement--it shall be for the amount of Fifty Dollars ($50.00). For the second reinstatement--it shall be for the amount of Seventy-five Dollars ($75.00). For the third reinstatement and any reinstatement thereafter - it shall be for the amount of One Hundred Dollars ($100.00). During the process of organizing concession to the initiation fee may be granted by special action of the Lodge. 6This reduction in fees was denoted as a "special dispensation" for the organizational campaign at the Employer's and so will be called hereinafter. 7 These employees of the Employer were included in the stipulated voting unit 1. 6 These employees of the Employer were also included in the stipulated voting unit 1. 9 William C Smith testified that Lodge No. 729 had also granted special dispensation to apprentice diemakers of the Employer's employees which reduced the initiation fee for this class of employees to $3.50. His testimony was not contradicted nor were any objections raised thereto and the hearing officer hereby credits his testimony. THE GRUEN WATCH COMPANY 615 3. Several of the Employer 's employees in voting unit 1 did join or apply for reinstate- ment immediately preceding the election of March 20, 1953.10 4. William J. Goodman , a member of Lodge 729 and an employee of the Employer at all times material to the objection filed herein, did on various occasions have conversation with the employees of the Employer in voting unit 1, which conversation was in substance that the employees in voting unit 1 could obtain membership in Lodge No . 729 by paying $ 7.50, which amount would include the initiation fee and 1 month 's dues. Goodman, during a conversation with Stegman, told him on the day of the election , but prior to the hour of the election, that if the Union won the election and obtained a union-security clause that all the Employer's em- ployees in voting unit 1 would be required to join and to continue their memberssip in Lodge No. 729 as a condition of employment to continue as employees of the Employer. 11 5. Goodman was not an officer or representative of the JAM or Lodge No. 729 , nor was he empowered to represent as an agent the IAM or Lodge No. 729 . He did accept signed application cards and initiation fees and submit both to Lodge No. 729. Each of the employees of the Employer in voting unit 1 who gave his application card for membership or reinstatement in Lodge No. 729 to either Goodman or Talbott knew that these employees were members of Lodge No. 729. They did this voluntarily and, ipso facto, did request Goodman and Talbott to transport and submit their applications to Lodge No. 729. Goodman and Talbott did submit to an officer or representative of Lodge No. 729 the appli- cation cards and fees which they had received from the employees of the Employer in voting unit 1. 6. Frank William Rothe indicated that he was under the impression , from a reading of the bylaws of Lodge No. 729, that if the Union lost, he would be required to pay an additional $42.50 to obtain membership in said Lodge since at one time he had been a member of the IAM. The undersigned does not credit this interpretation of the bylaws of Lodge No. 729 since a perusal of the referred to document discloses that it is not in substance ambiguous and could not foster rationally the concept propounded by this witness; ergo, the undersigned credits the bylaws , since the document speaks for itself, and discredits the witness' testi- mony. CONC LUSIONS From the facts found above , the undersigned concludes that: 1. The reduction in initiation and reinstatement fees to the various classes was uniform as to those classes of employees of the Employer in voting unit 1, that this special dispensa- tion was not improper and did not foster or consummate a financial interest in the results of the election on the part of the employees who joined Lodge No. 729.12 10 Walter Stegman on the date of the election, but prior to the election hour, signed an application card and submitted it to William J. Goodman , another employee. On the following day, after the election, Stegman gave Goodman $7.50 as his initiation fee and first month's dues. Lawrence Snodgrass and Raymond Kemme, within the week prior to the election, signed application cards and gave them with $7.50 each to Les Talbott, anbther employee of the Employer. William Rothe, an employee ofthe Employer who had been a former member of Lodge No. 729, signed an application card for reinstatement the day before the election and gave it and $7.50 to Les Talbott. n The testimony of Goodman was at times marked by hesitancy in responding to the questions put to him despite his apparent intelligence, in what the undersigned believes to have been his efforts to avoid what he considered entrapment ; nevertheless, based upon his demeanor and the corroboration of his testimony by other witnesses, I believe him to have been a truthful witness herein. 12J. J. Newberry Company, 100 NLRB 84 at p. 86, wherein the Board stated, "The Em- ployer also alleged in its objections that the Petitioner threatened to impose 'penalties' upon those employees who voted against the Union. The only evidence supporting this objection is that at a preelection organizational meeting, a representative of the Petitioner explained that in the event the Petitioner obtained a union- shop contract, employees joining the Union at that time would be required to pay a $15 initiation fee instead of the $5 fee paid by em- ployees who joined earlier . This announcement was a correct statement of the then effective bylaws of the Petitioner. The Regional Director found nothing improper in this conduct. We 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The statements of Goodman made to employees of the Employer in voting unit 1 were not in themselves sufficient to affect the exericse of the Employer's employees' free choice of representatives as prescribed by the Act. 13 3. Goodman's acts were not the acts of an agent of Lodge No. 729 nor was the acceptance of application cards and initiation fees by Lodge No. 729 an adoption of Goodman as an agent of that Lodge or the IAM. It is a familiar rule of agency that a principal is responsible for the acts of his agent done in furthering the principal's interest within the scope of the agent's general authority even though the principal may not have authorized the acts in question and may in fact have forbidden them. At no time did the IAM or Lodge No. 729 appoint Goodman as an agent or authorize him to act as their agent. 14 The counsel for the Employer in substance contends that William J. Goodman, if not an actual agent, was an apparent or ostensible agent of Local No. 729 or of the IAM. The law of agency is clear that the facts of any given situation determine whether the person alleged to be an agent is an ostensible or apparent agent of a principal . It is the opinion of the under- signed that the entire record does not establish that Goodman was cloaked with the apparent or ostensible authority of an agent for either the IAM or Lodge No. 729, but to the contrary, the evidence clearly evinces that Goodman was performing an act or acts pursuant to the requests of the employees of the Employer in voting unit 1 who approached Goodman because they knew that he was a member of Lodge No. 729. The evidence could not make him an agent of the IAM or Lodge No. 729 but only indicates that he was performing an accommodation for the employees of the Employer in voting unit 1 by acting as their courier to transport and submit their applications and initiation fees to Lodge No. 729. The undersigned is not unmind- ful of the fact that, as found above, Goodman received Stegman's application card prior to the election and received the initiation fee of that individual on the day after the election. It is the opinion of the undersigned that Goodman was not the agent of either the IAM or Lodge No. 729, but only an ordinary member thereof. 15 4. Talbott, another employee, a member of Lodge No. 729, did receive, transport, and submit application cards and initiation fees to Lodge No. 729 from employees of the Em- ployer. This conduct, which is tantamount to the conduct of Goodman, was done pursuant to a request of the employees of the Employer, which conduct, the undersigned concludes, for the same reasons stated above, did not make him an agent of Lodge No. 729 or of the IAM. RECOMMENDATION From the above findings of fact and conclusions of law, the undersigned recommends to the Board that Employer's objection (b), to conduct affecting the results of the election, be over- ruled on its merits. It is the further recommendation of the undersigned, since the JAM received a majority of the valid ballots cast in the election, that an appropriate certification of representatives be issued certifying the TAM as the exclusive bargaining representative of the Employer's employees included in voting unit 1, which the Board found to be an appropriate unit for the purpose of collective bargaining. agree with his conclusion, "Ferro Stamping and Manufacturing Company, 93 NLRB 1459 at p. 1464. We also note that the Employer did not specifically except to this portion of the Regional Director's report." 13Poinsett Lumber and Manufacturing Company, 107 NLRB 234. i4Smith and Goodman both testified to the fact that at no time was Goodman authorized to act for either Lodge No. 729 or the IAM, nor was he an officer or representative of either of these organizations. The testimony of Goodman and Smith was not contradicted. The under- signed believes both of these witnesses to be truthful and credits their testimony. 15Poinsett Lumber and Manufacturing Company, supra; International Union of Operating Engineers, 97 NLRB 386 at p. 401.