A. O. Smith Corp.

A. O. SMITH CORPORATION 321 appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees ,including truckdrivers, but excluding all office clerical employees, guards, professional em- ployees, and supervisors as defined in the Act., [Text of Direction of Election omitted from publication.] The panties stipulated that the dispatcher was the only supervisor outside of the Employer's officer,., within the meaning of the Act. A. 0. Smith Corporation and United Electrical, Radio and Machine Workers of America, Local 1004 and International Brotherhood of Electrical Workers, Local 1710, AFL-CIO, Party to the Contract. Case No. 21-CA-2851. December 5, 1958 DECISION AND ORDER On May 8, 1958 , Trial Examiner Martin S. Bennett issued his Intermediate Report in the above -en titled proceeding , finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of Section 8(a) (1),(2 ) and (3) of the Act and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner further recom- mended that an allegation of an independent violation of Section 8(a) (1) of the Act by the Respondent be dismissed . Thereafter the Respondent and the General Counsel filed exceptions , and the Re- spondent filed a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers , Jenkins, and Fanning]. 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 In- termediate Report, the exceptions and the brief, and the entire record in the case, and hereby adopts the findings, conclusions , and recom- mendations 1 of the Trial Examiner. I To the extent that the recommended remedy may be construed not to require re- imbursement to the original four employees at Anaheim for sums paid the IBEW sub- sequent to November 7, 1957, pursuant to the contract, we do not adopt it, and those employees will be reimbursed for such sums. 122 NLRB No. 49. 505395-59-vol. 122 22 '322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 A. O. Smith Cor- poration, Anaheim, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Giving effect to, performing, or in any way enforcing its agreement of November 7, 1957, with the IBEW, or any extension, renewal, modification, or supplement thereof, or any other contract with said union applicable to the Anaheim plant which may now be in force. (b) Recognizing the IBEW, or any successor thereto, as the col- lective-bargaining representative of its Anaheim employees unless and until the said labor organization shall have demonstrated its exclusive majority representative status pursuant to a Board-con- .ducted election among the Respondent's employees. (c) Discriminating against employees in regard to terms and con- ,ditions of employment, except to the extent permitted under Section 8(a) (3) of the Act. (d) Interfering with, restraining, or coercing its employees in the right to engage in or refrain from engaging in any or all of the activities guaranteed them by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, -executed in conformity with 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 recognition from the IBEW or any successor labor organization as the representative of its employees at Anaheim, California, unless and until such labor organization shall have demonstrated its exclusive majority representative status pur- suant to a Board-conducted election among the Respondent's em- ployees. (b) Reimburse all Anaheim employees for initiation fees and dues paid to the MEW subsequent to November 7, 1957, pursuant to the contract or any superseding agreement between Respondent and the IBEW. (c) Post at its plant at Anaheim, California, copies of the notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being signed by Respondent's authorized representative, 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." A. 0. SMITH CORPORATION 323 be posted by it immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent, to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director 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 against the Re- spondent with respect to the allegation concerning an independent violation of Section 8(a) (1) of the Act, based upon an alleged state- ment contained in paragraph 8 of the complaint concerning the rea- son for removing the Aeronautical Division from Los Angeles to Anaheim, be, and it hereby is, dismissed. 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 give effect to, perform, or in any way enforce our agreement of November 7, 1957, with International Brother- hood of Electrical Workers, Local 1710, AFL-CIO, or any ex- tension, renewal, modification, or supplement thereto, or any other contract with that organization which may now be in force covering our Anaheim plant. WE WILL withdraw and withhold all recognition from Inter- national Brotherhood of Electrical Workers, Local 1710, AFL- CIO, or any successor thereto, as the collective-bargaining repre- sentative of the employees of our Anaheim plant unless and until said organization shall have demonstrated its exclusive majority representative status pursuant to a Board conducted election among our employees. WE WILL NOT encourage membership in said labor organiza- tion, or in any other labor organization, by discriminating in any manner against our employees in regard to terms and conditions of employment, except to the extent permitted under Section 8(a) (3) of the Act. WVE WILL reimburse our Anaheim employees for all initiation fees and dues paid to International Brotherhood of Electrical Workers, Local 1710, AFL-CIO, subsequent to November 7, 1957. WE WILL NOT interfere with, restrain, or coerce our employees in the right to engage in or refrain from engaging in any or 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all of the activities guaranteed them by Section 7 of the Na- tional Labor Relations Act, except to the extent that such right may be affected by all agreement requiring membership in a labor organization as a condition of employment, executed iil conformity with Section 8(a) (3) of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement executed in conformity with Section 8(a) (3) of the Act. A. 0. S-)rrrl-I CORPORATION, Employer. Dated- --------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 clays from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding is brought pursuant to a complaint issued by the General Coun- sel of the National Labor Relations Board against A. O. Smith Corporation, herein called Respondent. The complaint, dated January 29, 1958, alleged that Respond- ent had engaged in unfair labor practices within the meaning of Section 8(a)(1), (2) and (3) of the National Labor Relations Act. Copies of the complaint, the charges upon which it was based, and notice of hearing thereon were duly served upon Respondent.' The complaint alleged that (1) Respondent was signatory to a collective-bar- gaining agreement dated December 12, 1955, with United Electrical, Radio. and Machine Workers of America, Local 1004, herein called the UE, covering certain employees at its Los Angeles plant for a period of time extending to December 11, 1958; (2) on or about November 7, 1957, Respondent entered into a union-security agreement with the IBEW, covering certain employees at its Anaheim, California, plant; (3) this contract was entered into at a time when the IBEW was not the representative of such employees and the UE was; (4) certain representatives of Respondent stated that Respondent transferred various operations from the Los Angeles to the Anaheim plant because Respondent could not operate under the UE contract; and (5) Respondent has required employees covered by the Novem- ber 7, 1957, contract to pay fees and dues. Respondent's duly filed answer ad- mitted.the existence.of the contract with the UE; alleged that the Anaheim plant was a separate appropriate bargaining unit; denied that the UE represented a. majority of the Anaheim employees; and denied the commission of any unfair, labor practices. Pursuant to notice, a hearing was held at Los Angeles, California, before the duly designated Trial Examiner on March 5 and 6, 1958. The parties were repre- sented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing, oral argument was presented by the General Counsel and briefs have been received from the UE and Respondent. 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 RESPONDENT Respondent A. O. Smith Corporation is a New York corporation which main- tains plants in several States of the United States including several plants in the 'Copies of the pleadings and related documents were also served upon International Brotherhood of Electrical Workers, Local 1710, AFL-CIO, herein called the IBEW' and designated above as Party to the Contract. A. 0. SMITH CORPORATION 325 Los Angeles, California, area. It is engaged in the manufacture of meters, service .station pumps , submersible pumps, gun mounts, and other products relating to military use. During the 12-month period preceding the issuance of the instant complaint, Respondent shipped products valued in excess of $50,000 from its California plants to points outside the State of California. I find that the opera- tions of Respondent affect commerce and that it would effectuate the purposes of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATIONS INVOLVED United Electrical , Radio and Machine Workers of America, Local 1004, and International Brotherhood of Electrical Workers, Local 1710 , AFL-CIO, are labor -organizations admitting to membership the employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Introduction The General Counsel contends that Respondent gave unlawful support to the IBEW by entering into a union-security contract with that labor organization cov- ering the employees of its Anaheim, California, plant. He has proceeded on two parallel theories (1) recognition was premature because the newly established expanding plant did not have a representative number of personnel, and (2) Respondent granted recognition to the 1BEW at a time when the UE also sought recognition, thus creating a question concerning representation, a situation which should have been resolved through the processes of the Board and not by Re- spondent. Initial treatment is given to the General Counsel's first contention. A consideration of Respondent's organizational structure in the Los Angeles area reveals the following. Respondent operates a plant in Los Angeles which is known as the Pacific Coast Works and employs approximately 500. Production is now concentrated primarily in nonmilitary work; as an adjunct to the Pacific Coast Works, Respondent also operates a foundry at Maywood, California, in the Los Angeles area. The instant case stems from the transfer in 1957 of certain military operations from the Los Angeles plant to a new plant in Anaheim. Prior to the period mate- rial herein, the fall of 1957, certain military operations were performed at the Los Angeles plant; these amounted to approximately 4 percent of production. There was no separate organic military department as such, but the work was performed for the aeronautical department headed by Arnold Prosser, then assist- ant general manager of the Pacific Coast Works, by regular divisions of the plant; intracompany charges were made for the use of personnel on this military pro- duction which included components for aircraft. In June of 1957 it was decided to set up a separate, independent division in a new plant to handle solely military operations. On August 1 Prosser was desig- nated as manager of the Aeronautical-Western Division of Respondent and func- tioned in this role at the Los Angeles plant. On October 1 a new plant was leased at Anaheim, California, 20 miles distant from the Los Angeles plant. The intent was to establish the Anaheim plant as an independent operating facility of Respond- ent consistent with company policy.2 Prosser's immediate subordinate on the new venture was Robert L. Green, designated as manager of engineering and sales for the Aeronautical-Western Division. Green was previously a sales engineer in charge of engineering for the aeronautical department at the Los Angeles plant and together with Prosser went on the payroll of the new division on August 1. From October 1 through November 1 there was discussion concerning the operations to be transferred from Los Angeles to Anaheim. Selected for transfer were manufacturing operations on a pump, bomb ejector, gun mount, and a cylin- der. There was uncertainty only as to the transfer of the pump, but on the morn- ing of November 1 it was finally decided to move the pump together with the other items. All of these items had been previously produced in the aeronautical department at Los Angeles. It is to be noted that the Anaheim plant had no personnel manager as such until the second week in November when White was appointed to the position. Prior to that date personnel duties devolved upon Green for the reason, as he put it, that there was no one assigned to the job and he assumed the duties. Also 2In 1955 Respondent had given thought to moving the entire Los Angeles facility to another location elsewhere in California but this was abandoned. It is clear, and I find, that the move to Anaheim was of a different nature and Involved solely the military production. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD playing a role in personnel work was Ray Haeger , personnel manager at the Los. Angeles plant . Although Haeger ostensibly had no official connection as such with the Anaheim plant, he was very much in the picture in discussions of the transfer of personnel from Los Angeles to Anaheim, and in discussion of attempts by the UE to obtain recognition at Anaheim. At no time did Haeger claim that he lacked authority to discuss the Anaheim. operation and I find that he held himself out as an agent of Respondent for that purpose. Nor did anyone in Respondent's organization connected with the Ana- heim plant or in Milwaukee headquarters ever claim that Haeger was acting. beyond his authority during this time when the Anaheim plant was being set up. B. Recognition of the IBEW The UE has been the collective -bargaining representative , at least since Decem- ber 12, 1955 , of the production and maintenance employees of the A. O. Smith Corporation , Pacific Coast Works with the customary exclusions; also excluded from the unit were welding division employees, these consisting of a group repre- sented by another labor organization . This agreement as modified has been ex- tended through December 11, 1958, and it contains a union-security clause requir- ing new employees to join the UE I month after entrance into the employ of the company. On or about September 25, 1957, Prosser held a meeting with representatives of the IBEW. He testified that he wished to operate without a labor organization in the new plant but had the problem of obtaining electrical workers to install equipment and was aware from experience that these men were likely to be mem- bers of the IBEW. Anticipating problems in securing such personnel he met with the IBEW "for the purpose of discussing labor rates ." While he claimed that he did not discuss the recruitment of personnel he further testified that "we wanted to determine what type of a union they were." According to Green , manager of engineering and sales, he and Prosser had planned prior to November 1, 1957, to recruit 18 employees for initial production. This planning was predicated upon the transfer of the pump work, one of the four types of work ultimately transferred . The decision to transfer the pump work was made on the morning of November 1 and, as a result , the estimate of 18 personnel was reaffirmed as of that date. According to Prosser they planned an increase in personnel to a figure of 25 by March 1, 1958. Green further testified , however, that prior to November 5, on an unspecified date but apparently shortly before , it became necessary to push back production on certain cylinders for Convair . As a result, his estimate of manpower was reduced on November 5 from 18 to 15. This figure, as in the case of the pre- vious figures, does not include salaried personnel but only unsalaried production and maintenance personnel. As set forth , personnel duties at Anaheim had been assumed by Green in the absence of an official personnel man. Green uncontrovertedly testified that he hired two employees on October 27 or 28, and a third on October 31 . A fourth started on November 1 or 4. It appears that all four men were new employees who had not worked at Los Angeles. It is also clear that as of the afternoon of November 1, as Green testified, it had been decided definitively which products would be transferred to Anaheim. Respondent's officials also knew at that time which employees at Los Angeles would be affected by the move, viz, those Los Angeles employees who had been working on the military work. In this respect it is to be noted that the move did not involve any changes in the products manufactured . It involved rather a splitting off of the small volume of military production from the much larger civilian production and establishing the former in a separate division . The move affected seven employees most of whom had lengthy tenure and who had ex- pressed concern to their foreman, Shuffield, over possible loss of work. Indeed , Green spoke with three of the seven employees, Wogberg, Stone, and Poissant , on the afternoon of November 1, concerning their situation and employ- ment prospects at Anaheim . All three as well as a fourth , Davis, were exemplary employees whom Green was willing or desirous to hire at Anaheim . In fact. Green then decided to hire these four employees at Anaheim , but did not tell them so, pending their decision to quit at Los Angeles and be rehired at Anaheim, consistent with Respondent's personnel practice . This is discussed in more detail hereinafter. A. O. SMITH CORPORATION 327 Returning to the picture as it existed on November 1, it is clear that Respond- ent had three or four employees on the Anaheim payroll.3 It appears that an IBEW representative appeared on the scene on or about November 1 and obtained signatures from the employees then working there. The signature of the fourth employee was obtained prior to November 5. None of these four employees were then performing production work. While they were scheduled to be production workers, Prosser testified that at the time "they were assisting in preparing a plant for production." Stated otherwise, and as Green conceded, production did not start until November 8, although Green elsewhere testified that two men started on production on November 7. In fact, equipment was in the process of being moved from Los Angeles to Anaheim during the week of November 4. Late in the afternoon of November 1, Prosser was personally handed a letter bearing the same date wherein an international representative of the IBEW advised Respondent that his labor organization represented a majority of the production. and maintenance employees at Anaheim and requested a meeting to discuss nego- tiation of a contract. Prosser testified that he immediately telephoned Respond- ent's labor relations department in Milwaukee, Wisconsin, notified them of the letter, and requested instructions. Apparently he was instructed to inspect the IBEW's proof of majority because on November 4 he contacted the IBEW and arranged a meeting at the plant for November 5. The meeting was duly held on November 5 and the IBEW presented its four designation cards. Prosser veri- fied the signatures and on November 5 sent the following letter to the IBEW: Membership cards of Local Union #1710, International Brotherhood of Electrical Workers signed by all of the production and maintenance employees of the A. O. Smith Corporation, Aeronautical, Western Division, Anaheim, California were presented to and examined by Messrs. T. White, O. Peters. and the undersigned at a meeting held November 5, 1957 with Messrs. W. E. Creveling and H. M. Fesperman, representatives of Local 1710. This exami- nation showed that all of the production and maintenance employees of the Aeronautical, Western Division were members of and represented by your union. Therefore, in reply to your letter of November 1, 1957 the A. O. Smith Corporation, Aeronautical, Western Division, Anaheim, California does recog- nize Local Union #1710, International Brotherhood of Electrical Workers as the Collective Bargaining agent for all production and maintenance em- ployees of the A. O. Smith Corporation, Aeronautical Western Division and- we are therefore willing to commence negotiations of a collective bargaining agreement covering these employees. We are available to begin such negotiations at a mutually convenient time. On November 7, two days later, Respondent and the IBEW signed a contract running through November 15, 1960, covering the Anaheim plant; it contained a clause requiring all employees to join the IBEW 30 days after the date of the contract or after hiring in the case of new employees. There were 17 production and maintenance employees at Anaheim by the end of November; 18 by December 31; 21 by January 21; and 25 by March 1. There are now from 21 to 24 em- ployees on the payroll. As described below, employees Stone, Wogberg, and Davis of the Los Angeles plant started work at Anaheim on November 9 and employee Poissant on Novem- ber 11. All four testified that several days after they started, they were sum- moned to the office, individually, to confer with Prosser and Green and that the IBEW contract was discussed. According to Poissant and Davis, they were told that they would be required to join the IBEW. Stone recalled a reference to- union security and both Stone and Wogberg "understood" they had to join. Green admitted that on these occasions he went over the IBEW contract with each man. He further testified that the men were not told they had to join but admitted that he did point out the union-security clause of the contract to them. I find that the men were put on notice that the contract gave them 30 days to join the IBEW on penalty of discharge. C. Analysis and conclusions It is clear from the foregoing that at the time Respondent recognized the IBEW, November 5, 1957, there were four employees on the Anaheim payroll and that the IBEW represented all four. It is equally clear that production had not started a According to Prosser, the fourth was hired on November 4. Green testified that the fourth was hired on November 1. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the plant and that all four men were not on production until November 8, the day after the contract was executed. Furthermore, as set forth above, at the time recognition was extended to the IBEW, Respondent had projected an immediate and substantial expansion in personnel and that expansion was realized in due course. At the very least Respondent planned to commence operations with 15 employees. Indeed, Green conceded that four people were not enough to operate the plant based upon a minimum production schedule. In addition to the foregoing there is the fact that at the time recognition was granted, Respondent's officials at Anaheim knew that four UE members from the Los Angeles plant possessing 11 to 19 years of seniority and experience would probably be starting at Anaheim. While they did not actually start at Anaheim until a later date, Stone, Davis, and Wogberg, on November 9, and Poissant on November 11, a brief consideration of the history preceding their move to Ana- heim will demonstrate the rather extensive knowledge of their impending arrival on the part of Anaheim officials. On or about Friday, November 1, seven employees in the Los Angeles plant who were to be affected by the transfer of operations to Anaheim were given a 5-working-day layoff notice effective Friday, November 8. There had been a number of meetings between the UE plant committee and officials at the Los Angeles plant concerning the Anaheim operation. The UE claimed on these occasions that their Los Angeles contract would be or should be applicable to Anaheim.4 What is significant here is that Prosser admitted he knew prior to November 4 that the UE wished to negotiate concerning the use at Anaheim of Los Angeles personnel. In fact, he had admittedly discussed this subject during October. And, as stated, Green admitted that he knew on the afternoon of November 1 which men would be affected by the move. He also admitted that he had made up his mind to hire Stone, Davis, Poissant, and Wogberg, all of whom he had interviewed but had not advised as to his intent. This involved Respondent's personnel policy of not transferring rank-and-file employees but rather requiring a quit at Los Angeles and a new hiring at Anaheim. The fact still is that at least by November 4, Green told these four men, all of whom had displayedi interest, that he would consider them for employment; all four were UE members in good standing whose dues were checked off through the month of November. Indeed, as Davis testified and I find, Green told him on November 4 that if he wished to he could work at Anaheim.5 Bearing in mind that the jobs of these four were to be eliminated at Los Angeles, it hardly seems doubtful that the men would not have transferred. And while their lengthy seniority would have entitled them to bump employees of less seniority, this would have involved a reduction in pay at Los Angeles. The four men transferred on the indicated dates and are performing basically the same type of work at Anaheim as they did at Los Angeles. While the evidence by Respondent attempts to establish a dichotomy between the operations of Prosser and Green, the fact is that these two men were the two top management representatives at Anaheim, were getting the operation started, were admittedly in daily contact with each other, and, on November 4, Prosser discussed with Green, his acting personnel manager, the demand of the IBEW for recognition. There can be little doubt that Green and Prosser discussed the transfer of the four employees to Anaheim.6 I find it difficult to believe that Personnel Manager Haeger, at Los Angeles, who was handling the details of the "transfer" of the four men and who was purporting to speak for the Anaheim plant with the UE representatives, did not communicate with Green and Prosser, neither of them a personnel man, concern- ing the four admittedly valuable employees. Haeger testified that during Novem- ber Respondent's labor relations department in Milwaukee had instructed him as to the position he should take with the UE on the latter's claim that its contract covered Anaheim; that is, he in effect was authorized to speak for Anaheim. 4 The General Counsel does not contend herein that the Anaheim plant was an accretion to the Los Angeles unit. This, in effect, is also Respondent's position. 6 Green testified that he told two of the four on November 5 and the remainder on November 7 that they had jobs at Anaheim. The contract was signed late on November 7. 6I deem it immaterial to the instant issue whether this be a transfer in the normal sense of the word or whether it was a quit and rehire as Respondent's records demon- strate. Totally aside from the fact that Respondent recognized at Anaheim the lengthy seniority of these' employees for the purposes of vacation and other benefits, the crucial fact is that the Anaheim officials knew that the four men were on their way. A. O. SMITH CORPORATION 329 Haeger also, it must be noted, never told the UE to contact Prosser or others at Anaheim and admitted notifying Anaheim personnel, presumably Prosser or Green, on November 5, that two of the four men were coming over. He also testified that he did not know of the recognition of the IBEW until after Novem- ber 9. However, Haeger did admit that he handled personnel work for Anaheim prior to the time the equipment was moved from Los Angeles to Anaheim , this being the week of November 4, but that he stopped doing so about the time of the move. On the other hand , he admitted that he did get involved at Anaheim when the officials at the latter plant wanted advice and that he learned on Novem- ber 4 from Prosser or Green that they had hired several personnel . Finally, Haeger admitted that he had never had any discussions with the management group in Los Angeles , with Prosser, or even with the labor relations department in Milwaukee as to any line of authority or demarcation between himself and Prosser in the handling of labor relations at Anaheim . I find, in view of the foregoing, that Haeger was still participating, in part at least, in Anaheim personnel work during November. In sum, during the week starting Monday, November 4 , Respondent was in the process of moving equipment from the Los Angeles plant to the Anaheim plant. Production started on a small basis on November 8 and may have been started by two men as early as November 7. Respondent 's complement of personnel totaled four men on November 4 and all were engaged in maintenance work preliminary to production . All four signed IBEW cards and on November 5 and 7, Respondent extended recognition and signed a contract respectively. Not only were these four employees concededly too small a number to carry on mini- mum production , but recognition was extended to the IBEW at a time when Respondent knew that four UE members were coming over from Los Angeles, as they did on November 9 and 11. In addition , as set forth, Respondent re- quired a minimum of 15 production employees by the end of that month and thereafter a still larger number. The General Counsel has placed reliance herein on the Board decision in The Englander Company, Inc., 114 NLRB 1034, 1043, enfd . as modified 237 F. 2d 599 (C.A. 3). In that case, the Board adopted language reflecting its long-stand- ing policy, that "an employer illegally assists and supports a union by granting it exclusive recognition before he has a representative complement in an appropriate unit in his employ . . . such illegal assistance and support is `aggravated where, as here, the agreement that grants recognition also requires the covered employees as a condition of their employment to join and pay dues to a labor organization they have not freely chosen.' " I find that case fully applicable to the present one. In both cases, recognition was extended before the plant was in production and when only a small percent- age of the planned complement of employees was at work, and at that only in maintenance operations preliminary to the commencement of production. Here as there the employees were covered by a union -security agreement which was promptly brought to their attention by management. In view of the foregoing considerations , I find that Respondent lent unlawful assistance and support to the IBEW within the meaning of Section 8(a)(2) of the Act by granting it recognition before Respondent had a representative work force and at a time when the complement of personnel was admittedly in the process of a planned rapid expansion . Furthermore , as the contract covering these em- ployees required them as a condition of their employment to join and pay dues to a labor organization not of their choosing , on penalty of discharge , I find that Respondent has thereby discriminated with respect to terms and conditions of employment, thus encouraging membership in a labor organization within the meaning of Section 8(a)(3) of the Act. I further find that by the foregoing con- duct, Respondent has interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) thereof . See The Englander Company, Inc., 118 NLRB 707; National Electronic Manufacturing Corporation , 113 NLRB 620; Hibbard Dowel Co., 113 NLRB 28; Safeway Stores, Ill NLRB 968; and John B. Shriver Co., 103 NLRB 23, 38 . See also Illinois Malleable Iron Company, et al., 120 NLRB 451. D. The Midwest Piping argument The General Counsel has further urged , as a parallel argument , that recognition was unlawfully granted to the IBEW by Respondent at a time when there was a real question concerning representation, thereby independently violating Section 8(a)(1) and (2) of the Act within the meaning of Midwest Piping & Supply Co., -330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., 63 NLRB 1060, as well as Section 8(a)(3) in view of the union-security agreement that was signed. Some of the facts pertinent to this latter issue have been previously set forth. Initially, as noted, the UE has been the collective-bargaining representative at least since September 12, 1955, of the approximately 500 production and mainte- nance employees of the Pacific Coast Works at Los Angeles with the customary exclusions as well as an excluded unit of approximately 24 represented by another labor organization. The current contract containing the customary 30-day union- security clause does not expire until September 11, 1958. On August 1, 1957, Arnold Prosser, assistant general manager of the Pacific Coast Works, was designated as manager of the Aeronautical-Western Division and on October 1 a new plant was leased at Anaheim. The intent, duly realized, was to operate this as an independent operating facility. Certain military opera- tions carried on at Los Angeles were transferred to Anaheim which was to per- form solely military work. This work had previously been performed by the regular divisions at Los Angeles, but intraemployer charges were made to the aeronautical department under Prosser for work performed. As found, no per- sonnel department was established for Anaheim whose complement of personnel is small, ranging up to 21 or 24 at the present time. Until the second week of November Prosser's immediate subordinate, Green, manager of engineering and sales, handled personnel duties; as heretofore found, Ray Haeger, personnel man- ager at Los Angeles also participated in personnel discussions involving the Ana- heim plant. It is clear and I find that the impending transfer of certain operations to Anaheim became a cause of concern to the UE which was disturbed over the effect on its membership at Los Angeles. The news of the October 1 lease became known and on October 3 a meeting was held between Patrick Chaplin, president of Local 1004, accompanied by a union negotiating committee, and two officers of Respondent, Plant Superintendent Robert Houser and Personnel Manager Ray Haeger of the Los Angeles plant. Chaplin, Haeger, and one of the negotiating committee, Chief Stewart Alderete, testified herein as did International Represen- tative Kirkland of the UE. The union committee was formally notified of the lease on this occasion by Haeger. Chaplin testified that the union committee claimed that if the work or -union members were transferred to Anaheim, the UE would demand recognition because its contract was allegedly applicable to that plant. Haeger supplied few -details as to this meeting, but elsewhere testified that the UE did not claim that their contract applied to Anaheim until a subsequent meeting on November 4. However, he admitted telling the UE at a November 1 meeting that Anaheim was -a separate unit and that the UE would have no representation there. Obviously, he would not have spoken thus had the UE not made or renewed a claim for -recognition or representation at Anaheim. Accordingly, I credit Chaplin's version of the conversation.? On November 1, Respondent met again with the union committee and, as Haeger testified, notified them that a decision had been made as to what products -would be moved to Anaheim during the week starting November 4. The fact is, however, that the decision had been made long before as to three of the items to be moved, but the final decision as to the fourth, a pump, had been made only that morning. According to Chaplin, Haeger stated that the UE would have no jurisdiction at Anaheim because the contract did not apply. The UE claimed that this was unfair to UE members, presumably those who were desirous of trans- ferring to avoid reductions in force or cuts in pay. As noted, Haeger told the union committee that this was a separate unit at Anaheim and that the UE would have no representation there. On November 4 another meeting was held. There are a number of conflicts at this point, but it suffices here to Point out, as Haeger conceded, that the UE did contend that the contract was applicable to Anaheim. It will be borne in mind that layoff notices had been issued on November 1 to Los Angeles personnel and that Haeger knew at this point which employees would be affected and would be in the running for Anaheim jobs in order to avoid a cut in pay. As noted, this group included Stone, Davis, Wogberg, and Poissant. Haeger did not on this occa- sion claim that he was unauthorized to speak for Anaheim, but, in fact, speaking 7In 1965, anticipating a transfer of the entire operation from Los Angeles to a new plant, the IJE had attempted while negotiating the 1955 contract, to delete a reference to its being applicable to Los Angeles. This deletion was successfully resisted by Respondent. A. O. SMITH CORPORATION 331 for Respondent as I find, rejected the UE's claim for recognition based upon the Los Angeles contract. The UE did not claim that it had organized any Anaheim employees as of that date and I find that it did not. The record warrants the finding that its claim for recognition was based primarily upon the argument that its contract applied .to the Anaheim operation. At this point, it is in order to recall that on November 1 the IBEW requested recognition at Anaheim in the form of a letter handed personally to Prosser. This claim was based upon cards signed by the three or four employees then working there; there were three employees on the payroll by November 1 and the fourth was hired on November 1 or 4. Prosser telephoned Milwaukee for instruc- tions, received them, and on November 4 arranged a meeting with the IBEW for November 5. Four cards were duly presented and inspected on that date by Respondent and a letter recognizing the IBEW was promptly sent to that organi- zation that same day. On November 7, Respondent and the IBEW signed a con- tract containing the customary 30-day union-security clause. On November 8, production started at Anaheim, although two employees may have been put on production on November 7. On November 6, another meeting was held between the UE and Respondent .and, according to Haeger, the UE persisted in the claim that its contract was applicable to Anaheim. Haeger, it is to be noted, knew on the previous day that two of the four Los Angeles transferees to Anaheim, Poissant, and Davis, were -definitely checking out at the end of the week and moving to the Anaheim plant; he learned on November 7 that Stone and Wogberg would transfer. No mention was made of the recognition of the IBEW at Anaheim, because the UE obviously did not know about it, and, according to Haeger, he did not learn of this until sometime in the week starting November 11, and then only through a casual conversation with Prosser. Haeger conceded, however, that he did transmit the UE's requests for recogni- tion to Milwaukee as promptly as they were made. Accordingly, it is clear that the labor relations office in Milwaukee was apprised of negotiations both at Los Angeles and at Anaheim. While Haeger and Prosser claimed no knowledge of what the other was doing with the respective labor organizations, a contention I do not accept on this record, the Milwaukee office is hardly in a position to -so claim. It is deemed unnecessary therefore to decide a conflict as to whether Haeger told the UE committee on November 6 that the UE should get certified. Another meeting was held on November 7 or 8 with the same results, although Haeger conceded that he told the union committee that they should organize the Anaheim plant if they felt they had jurisdiction .8 The UE had filed a grievance on November 4 at Los Angeles demanding that Los Angeles employees be transferred to Anaheim or considered therefor in accord- ance with the provisions of its contract at Los Angeles. This grievance went through the various steps of the grievance procedure. On November 14, Superin- tendent Houser of Los Angeles wrote to President Chaplin that the UE contract did not cover Anaheim and that the grievance was denied; this communication followed a third step grievance meeting on November 11. After a fourth step grievance meeting on November 21, Haeger on November 26 wrote Chaplin to the same effect. Haeger reaffirmed the prior decision by Houser, viz, that the contract was not applicable to Anaheim. I deem it significant that Haeger did not make any reference in this communi- cation to another bargaining agent being in the picture at Anaheim, although he allegedly had learned thereof during the week of November 11. Obviously, the context was such that candor would have required such a disclosure. The picture was one of a labor organization, the UE, claiming that its contract was applicable to Anaheim and Respondent contending that it was not. But Haeger concealed the fact that another labor organization had been duly recognized at Anaheim, a fact which presented a far greater obstacle to the UE claim than a mere question of contract interpretation. Haeger's explanation for not mentioning this was that it never occurred to him. As a result, I do not credit Haeger's testimony as to the date he first learned of recognition of the IBEW and the contract. I believe he learned of it much earlier that month. s There is evidence that the four transferees from Los Angeles, all UE members in good standing with dues checked off through the month of November , either refused or failed to sign UE cards which were proffered them during this period or after they started working at Anaheim. I do not consider this under the circumstances to be dispositive of the basic issue. 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also of significance herein is the fact that contemporaneously with the Anaheim situation, the UE was attempting to procure recognition as the representative of certain of Respondent's employees at the Maywood plant. Although the UE had a great majority of signatures to cards from those in the unit and it appears to have been a one-union situation, Haeger took the position that they should get certified by the Board, rejecting a card check or a private election. I deem it unnecessary to resolve the conflict as to whether Haeger informed the UE that this was company policy. The fact is that an election was demanded as the price of recognition in an established plant in significant contrast to the Anaheim situa- tion where there was hasty recognition by card check at a time when a small faction of the planned complement of personnel had not even started production. In sum, the UE had repeatedly claimed and was claiming that its contract with the Respondent covering the Los Angeles plant was applicable to the small plant being set up at Anaheim to which certain of Respondent's operations were being transferred. The General Counsel does not contend that Anaheim was an accre- tion to the Los Angeles unit and the record would seem to indicate that Respond- ent was indeed putting up a separate unit to concentrate on military production. Nevertheless, this production was transferred from the Los Angeles plant and Respondent well knew that certain of the Los Angeles employees, members of the UE, would be transferred to the plant. I find that this created a real question concerning representation at Anaheim. Novak Logging Co., 119 NLRB 1573. I find in view of the foregoing that Respondent did not maintain the neutrality required in the situation. On the contrary Respondent resolved the conflicting representation claims, thus preventing a representative complement of personnel from expressing their free choice of a bargaining representative. It thereby ac- corded unwarranted prestige and support to the IBEW. I find, on this posture of the case, that Respondent by entering into a union-security agreement with the IBEW has engaged in unfair labor practices within the meaning of Section 8(a) (1), (2) and (3) of the Act. Illinois Malleable Iron Co., supra; Novak Logging Co., supra; Pittsburgh Valve Company, etc., 114 NLRB 193; Hibbard Dowel Co., supra; Knickerbocker Plastic Co., Inc., 104 NLRB 514, enfd. 218 F. 2d 917 (C.A. 9); and Sunbeam Corporation, 99 NLRB 546. E. Other allegations The complaint further alleges, as an independent violation of Section 8(a)(1) of the Act, that various representatives of Respondent, on or about November 1, 1957, "did state that one of the reasons for moving the Aeronautical Division from Los Angeles to Anaheim, California, was because the Company could not operate under the UE contract." The record discloses that at the meeting of November 4, according to President Chaplin of Local 1004 and International Representative Kirkland, Personnel Man- ager Haeger was asked why the Los Angeles contract did not apply to Anaheim. Haeger replied that this was because the Los Angeles contract was too rigid. According to Chief Steward Alderete, Haeger stated that the Aeronautical work was being moved from Los Angeles to Anaheim because the contract was too rigid and lacked flexibility. Haeger denied that he at any time stated the work was being transferred because Respondent could not operate under the Los Angeles contract. He admitted stating on November 4 that (1) the Anaheim plant could not operate under the Los Angeles contract because it was contrary to Respondent's policy to have more than one plant in a unit; (2) it would be difficult to handle plantwide seniority in two plants so far apart; and (3) the Los Angeles wage structure could not apply to Anaheim because employees at Anaheim would be required to perform varying tasks in the course of a workday. I have some doubts that this particular allegation of the complaint states an unfair labor practice. On the assumption that it does, only the testimony of Alderete attributes a statement of the nature alleged to Haeger and I find Haeger's version of the incident to be more complete. But, in any event, in the posture most favorable to the General Counsel, a finding based upon this statement would add nothing to the remedy hereinafter recommended. Accordingly, I shall recom- mend that this allegation of the complaint be dismissed. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several. States A. O. SMITH CORPORATION 333 and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent violated Section 8(a)(1), (2), and (3) of the Act by executing and maintaining a union-security agreement with the IBEW. I shall therefore recommend that Respondent withdraw recognition from the IBEW as the representative of its em- ployees at the Anaheim, California, plant and cease giving effect to its agreement of November 7, 1957, with that labor organization, or any modification, extension, supplement, renewal or substitute therefor, unless and until the IBEW shall have been duly certified by the Board as the representative of such employees. Section 9 of the complaint alleges that Respondent has required employees and applicants for employment to pay initiation fees and dues pursuant to the above- described contract. This conduct is not included in the unfair labor practice alle- gations, so I construe it as bearing on the remedy the General Counsel is seeking. This is manifestly a reference to the Board remedy in such situations as this of requiring reimbursement of dues and initiation fees. See e.g., Hibbard Dowel Co., supra. It is true that in some decisions the Board has not ordered the reimbursement of dues on the theory that the employer did not coerce dues payments by means of an involuntary checkoff. See e.g., Milco Undergarment Co., Inc., 106 NLRB 767, and Standard Transformer Company, 97 NLRB 669. See also N.L.R.B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163 (C.A. 7), and N.L.R.B. v. Braswell Motor Freight Lines, 213 F. 2d 208 (C.A. 5). But it is significant that in the last-cited decision, the court expressly distinguished that case from an earlier decision in the same circuit where it enforced a Board order requiring reimbursement of union dues. N.L.R.B. v. Parker Bros. & Co., 209 F. 2d 278 (C.A. 5). The court stressed the fact that in the Parker case, payment of the dues had been coerced under a closed-shop contract. Obviously, for the purpose of this discussion a union-security contract is on the same plane. See also N.L.R.B. v. Local 404, International Brotherhood of Teamsters, etc. (Brown Equipment), 205 F. 2d 99 (C.A. 1); Local 983, United Brotherhood of Carpenters and Joiners of America (0. W. Burke Company), 115 NLRB 1123; United Association of Journeymen & Apprentices, etc., Local 231 (Brown-Olds), 115 NLRB 594; and Hibbard Dowel Co., supra. Although the instant contract has no checkoff clause, it does establish the re- quirement for employees of continued membership in the IBEW in order to retain their jobs. United Association of Journeymen & Apprentices, etc., Local 231 (Brown-Olds), supra. The coercive element in these situations is obviously not the check-off of dues but, more basically, the union-shop clause which requires union membership, and, of course, the payment of initiation fees and dues under penalty of discharge. Broderick Wood Products Company, 118 NLRB 38. This element of coercion is, of course, endemic to any union-security contract and the parties signatory thereto run the risk that the contract is an unlawful one, for a union- security clause is a narrow exception to the broad ban against discrimination which is a policy of the Act and it must, therefore, be narrowly construed. Radio Offi- cers' Union, etc. v. N.L.R.B., 347 U.S. 17. Clearly, under this union-security agreement, the payment of initiation fees and dues has been coerced as the price of employment. Accordingly, to effectuate the policies of the Act, I shall recommend that Respondent refund to the respective employees of the Anaheim plant sums equal to the initiation fees and dues paid by those employees to the IBEW. It is not recommended, however, that this order be made applicable to sums paid by the four employees who joined the IBEW, presumably of their own volition and not pursuant to the contract, prior to November 7, 1957, the date the contract- was executed. Although these funds are presumably in the hands of the IBEW, which in reality is in the nature of a joint tort feasor, there is no charge or complaint before me against that organization, and I am constrained therefore to direct the remedy only against Respondent. 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. Respondent , A. O. Smith Corporation, is engaged in commerce within,the meaning of Section 2( 6) and (7) of the Act. F334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,:: ,2. United Electrical, Radioandi'Machine Workers of America, Local 1004, and International Brotherhood of Electrical Workers, Local 1710, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act. 3. By- contributing support to the IBEW,, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (2) of the Act. 4-By discriminating with respect to terms and conditions of employment, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act: 5. By the foregoing conduct, Respondent has interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the .Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. [Recommendations omitted from publication.] National By-Products Company i and International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, ,Local : No. 452, Petitioner. Case No. 80-RC-1451. December 5,195-8 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before F. T. Frisbey, hear- ing 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 Leedom and Members Bean and Fanning]. Upon the entire record in this case, the Board finds : .1. Capitol Rendering Company, named as the Employer in the petition and herein called Capitol, as well as Greeley Rendering Com- pany and Sterling Rendering Company, herein respectively called Greeley and Sterling; are all local unincorporated branches of Na- tional By-Products Company, an Iowa corporation, herein called National. The record establishes that Dunn, the general manager of Capitol, is directly responsible to National for the operations of Capitol, Greeley, , and Sterling, including the operations involving the employees designated in the the petition, and that the payroll. and bookkeeping necessary to the -personnel administration of these branches is handled through National's central office in Des Moines, Iowa. On these facts, we find that National is the Employer of the employees designated in the petition. Capitol contends that as it is not the Employer and as the petition named, and was served upon, Capitol and not Employer, the 'petition is defective. We do not agree. General Manager Dunn, a representa- 3 The case caption is amended to reflect the correct name of the Employer as established by evidence adduced at the hearing and set forth hereinafter. 122 NLRB No. 48.