Dahlstrom Metallic Door Co.

In the Matter of DAHLSTROM METALLIC DOOR COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 307 Cases Nos. C-942 and B468.-Decided February 17, 1939 Metal Products Manufacturing Industry-Unit Appropriate for Collective Bargaining : production and maintenance employees , excluding supervisory and clerical employees-Representatives : proof of choice : signed union membership application cards ; proof of authenticity of signatures held sufficient, where officers of union testify as to union membership , and respondent has within its means power to disprove authenticity of signatures and fails to do so ; charge of coercion in securing signatures held unfounded where type of coercion alleged mere oral persuasion-Collective Bargaining: refusal to recognize union despite offer to prove majority representation by consent election or comparison of membership cards ; employer ordered to bargain with union upon proof of majority representation-Investigation of Representatives : petition for, dis- missed, in view of order to bargain. Mr. Edward D. Flaherty, for the Board. Rogerson, Clary cC Hewes, by Mr. J. Russell Rogerson, of James- town, N. Y., for the respondent. Mr. Daniel B. Shortal, of Buffalo , N. Y., for the United. Mr. Allan Lind, of counsel to the -Board. DECISION AND ORDER STATEMENT OF THE CASE On May 27, 1938, United Electrical, Radio & Machine Workers of America, Local No. 307, herein called the United, filed a charge with the Regional Director for the Third Region (Buffalo, New York), alleging that Dahlstrom Metallic Door Company, Jamestown, New York, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On June 18, 1938, the United filed with the Regional Director a petition alleg- ing that a question affecting commerce had arisen concerning the representation of employees of the respondent, and requesting an investigation and certification of representatives pursuant to Section 11 N. L. R. B., No. 38. 408 DAHLSTROM METALLIC DOOR COMPANY ET AL. 409 9 (c) of the Act. On June 28, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an in- vestigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice and, acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, further ordered that the two cases be consolidated for the purpose of hearing. On July 13, 1938, the Board, by the Regional Director, issued its complaint and a notice of hearing, copies of which were duly served upon the respond- ent and the United. In respect to the unfair labor practices the complaint alleged, in substance, that the respondent on May 13, 1938, and at all times there- after refused to bargain collectively with the United as the exclusive representative of the production and maintenance employees of the respondent, said employees constituting an appropriate bargaining unit and a majority thereof having designated the United as their representative for collective bargaining. On July 25, 1938, the respondent filed an answer denying the un- fair labor practices charged in the complaint and affirmatively alleg- ing that authorizations purporting to evidence the authority of the United to represent the employees of the respondent were obtained by veiled threats, coercion, and misrepresentation, and did not con- stitute the free act of said employees. The answer further alleged that a majority of the employees do not desire the United to repre- sent them for the purposes of collective bargaining, but desire to evidence their choice of a bargaining agent by secret ballot. Pursuant to notice a hearing was held in Jamestown, New York, on July 25 and 26, 1938, before Charles E. Persons, the Trial Exam- iner duly designated by the Board. The Board, the respondent, and the United were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the close of the Board's case, counsel for the respondent moved to dismiss the complaint. The motion was denied. At the close of the hearing the United moved to dismiss the respondent's answer to the complaint, particularly that portion which alleged affirmative de- fenses. The Trial Examiner reserved ruling at the hearing but sub- sequently denied the motion in his Intermediate Report. During the course of the hearing the Trial Examiner made a number of rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner made at the hearing 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 15, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. The Trial Examiner found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act. On October 1, 1938, exceptions to the Intermediate Report were filed by the respondent and request was made for oral argument. Pursuant to notice duly served upon all parties, oral argument was had before the Board at Washington, D. C., on January 17, 1939. The respondent was represented by counsel, the United by a repre- sentative; both participated in the argument. The Board has fully considered the exceptions to the Intermediate Report and, in so far as they are inconsistent with the findings, conclusions, and order hereinafter made, finds them without merit. Upon the entire record in these cases, the Board makes the fol- lowing : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Dahlstrom Metallic Door Company is a New York corporation en- gaged, at Jamestown, New York, in the manufacture, sale, distribu- tion, and installation of metal doors, trim, building equipment, moulding, automobile frames, partitions, and other metal specialty work. The principal raw materials used by the respondent are steel, bronze, brass, aluminum, structural iron, cork, felt paper, asbestos, paint, lumber, and abrasive. The value of such raw materials used during the calendar year 1937 was approximately $800,000. Approxi- mately 75 per cent of the raw materials were delivered to the re- spondent's plant from States other than the State of New York. The value of the respondent's finished products in the year 1937 was approximately $1,500,000. Approximately 77 per cent of such prod- ucts were shipped to points outside of the State of New York. II. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America, Local No. 307, is a labor organization affiliated with the Committee for Industrial Organization. It'admits to membership all production and maintenance employees of the respondent, excluding supervisory and clerical employees. DAHLSTROM METALLIC DOOR COMPANY ET AL. 411 III. THE UNFAIR LABOR PRACTICES A. The appropriate unit In its petition the United claimed that the appropriate bargaining unit consisted of all hourly paid employees of the respondent. The complaint alleges that all production and maintenance employees of the respondent constitute an appropriate unit. At the hearing William Hart, president of the United, testified that the United admits to membership all production and maintenance employees of the re- spondent, except clerical and supervisory employees, and that the employees admitted to membership constitute an appropriate unit. No objection was raised by the respondent to such a unit. We see no reason for deviating from the unit suggested by the United at the hearing. We find that the respondent's production and maintenance em- ployees, excluding clerical and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the respondent's employees the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. B. Representation by the United of a majority in the appropriate unit The complaint alleges that on or before May 13, 1938, the United had been designated by the employees of the respondent in an appro- priate unit as their representative for the purposes of collective bar- gaining. The respondent's printed pay-roll lists for the periods ending May 7 and June 16, 1938, were introduced in evidence, as were the United's application for membership cards and a copy of part of its financial records. A comparison of the names on the application cards and the financial records of the United with the pay rolls of the respondent reveals that of the 310 employees in the appropriate unit on May 7, 1938, approximately 295 had joined the United and that of the 290 employees in the appropriate unit on June 16, 1938, approxi- mately 274 had joined the United. In further support of its claim to represent a majority of the re- spondent's employees the United presented the testimony of its former and present presidents, its recording secretary, and its financial secre- tary, who testified, subtantially, that almost all the employees in the unit had joined the United. They based their testimony upon their personal knowledge of the employees, their examination of the books of the United, and their observation at its meetings. Johnson, the financial secretary, further testified that he had passed out 32 appli- cation cards to the employees sometime in December 1937, and shortly thereafter had received them back from the employees signed and 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filled out. A number of witnesses, in addition, identified their signa- tures on the application cards. At the hearing the respondent requested 310 subpenas for the stated purpose of examining each employee as to whether his signature on the application card was genuine and whether it was procured by veiled threats, coercion, and misrepresentation as contended in the answer. The Trial Examiner refused the request. No'specific proof was offered at the hearing that the signatures were coerced. At oral argument before the Board counsel for the respondent revealed the nature of the veiled threats, coercion, and misrepresentation which the respondent had sought to prove. He stated that organizers of the United had told non-union employees that if they delayed in joining they would be charged a higher initiation fee later on, and that if they failed to join they would lose their jobs when the United obtained a closed shop. Such statements, if made, did not deprive the employ- ees of their free will in designating the United and are, therefore, without effect upon the validity of the signed applications. It was not contended that the alleged coercion and misrepresentation took any form, other than oral persuasion by organizers. While we have ordered an election where the rejection of an offer to prove coercion by physical violence left a substantial doubt whether the union repre- sented the free choice of the employees,' the instant record raises no such doubt. The respondent also contested the authenticity of the signatures on the application cards. It examined the cards and the records of ,the United, but claimed it had no way of verifying the signatures on the cards. The record reveals, however, that the respondent had in its possession the signed applications of over 75 per cent of its employees for group insurance. No valid reason was advanced why the signatures on the insurance application cards could not have' been compared with the signatures on the cards submitted by the United. The respondent's objections to the authenticity of the signa- tures on the United's application cards must be rejected.2 We find that on May 7, 1938, and at all times thereafter the United was and has been the duly designated representative of a majority of the respondent's employees in an appropriate unit and that by virtue of Section 9 (a) of the Act it was and is the exclusive repre- sentative of all employees in the unit for the purpose of collective bargaining. 'Cf. Matter of Fisher Body Corporation and United Automobile Workers of America, Local 76, 7 N. L. R. B. 1083. ' See Matter of Richfield Oil Corporation and Marine Engineers Beneficial Association No. 79, 7 N L R B. 639, 643; Matter of The Jacob Bros. Co . Inc. and, United Electrical and Radio Workers of America, Local No 1226, 5 N. L R. B. 620. DAHLSTROM METALLIC DOOR COMPANY ET AL. 413 C. The refusal to bargain 1. Background Since June 1933, the employees of the respondent had been organ- ized in an independent organization called the Dahlstrom Employees' Union which was affiliated with Jamestown Organized Metal Crafts, a. labor organization composed of employees of the respondent and three other metal plants in Jamestown, New York. The respond- ent's employees were known as Local No. 2 of the Organized Metal Crafts. From 1933 to 1937, Local No. 2 bargained with the respondent and relations between the union and the respondent were quite cordial. In the fall of 1937, the members of Local No. 2 began considering affiliating with the Committee for Industrial Organization. On November 11, 1937, a straw ballot was taken among the members on the question of affiliation. The resulting vote was 225 in favor and 127 opposed to such affiliation. Beginning December 13, 1937, applications for membership, desig- nating the United as bargaining agent, were circulated among the employees of the respondent. At a meeting of Local No. 2 on February 10, 1938, it was reported that 290 members had signed the applications for membership. Thereafter, a motion was made and carried proposing affiliation with the United as of March 1, 1938. On March 24, 1938, the employees of the respondent were granted a charter, dated March 2, and became Local No. 307 of the United. 2. The refusal to bargain The newly constituted local of the United, through its international representative, Louis Torre, presented to the respondent a request for collective bargaining by a letter dated May 13, 1938. On May 16 the respondent replied by a letter addressed to Torre stating : "We do not recognize you as representing our employees." Upon receiving the reply, Torre communicated with Hart, president of Local No. 307, and instructed him to arrange a conference with the respondent. On May 18 a committee of the United met with A. G. Dawson, superintendent, and G. E. Johnson, secretary and treasurer of the respondent. The union committee notified the respondent's representatives of the change in affiliation and requested bargaining relations. Dawson informed the committee that the respondent would not recognize the United until it had been furnished "with complete legal proof" of the United's claim to represent a majority of the respondent's employees. Hart replied that he had 360 appli- cation cards signed by employees of the respondent in his possession. Dawson manifested an unwillingness to discuss the matter further and the committee left. On the same day Torre wrote another letter 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the respondent claiming to represent an overwhelming majority of employees and proposing to submit proof of such membership either through having their application cards examined by the Board's Regional Office or by arranging a consent election. No reply to this letter was received by the United. On June 2, 1938, a conference between the United and the re- spondent was arranged by the Regional Office. At the conference a consent-election agreement was discussed paragraph by paragraph. Representatives of the respondent objected to the clause in the agree- ment which provided that the determination of representatives should be decided by a majority of the votes cast in the election. The con- ference broke up without agreement on the understanding that the respondent would inform the United of its decision. On or about June 7 the respondent made known its refusal to agree to a consent election. The respondent contended at oral argument that it should not be bound by the result of an election in which less than a major- ity of those eligible to vote designated the United. We have con- sistently denied similar contentions, holding that a majority of the votes cast in an election shall determine the bargaining agent.3 We find that on and after May 16, 1938, the respondent has refused to bargain collectively with the United as the exclusive representative of its employees in an appropriate unit and has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act.4 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respon- dent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE PETITION Our findings in Section III B above will serve in lieu of a cer- tification of representatives . The petition for investigation and certification of representatives will accordingly be dismissed. s Matter of R. C. A. Manufacturing Company, Inc. and United Electrical 4 Radio Workers of America, 2 N. L. R. B. 159; Matter of American-Hawaiian Steamship Com- pany and Gatemen, Watchmen and Miscellaneous Waterfront Workers Union, Local 38-194; International Longshoremen's Association, 2 N. L. R. B. 195; Matter of Williams Dimond 4 Company, et at and Port Watchmen, Local No . 137, 2 N. L R. B. 859; Matter of Charles Cushman Shoe Company, et al. and United Shoe Workers of America, 2 N. L. R. B. 1015, 1034. * Cf. Matter of Burnside Steel Foundry Company and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge No . 1719, 7 N. L. R. B. 714. DAHLSTROM METALLIC DOOR COMPANY ET AL. 415 Upon the basis of the above findings of fact and upon the entire record in the proceeding, the Board makes the following : CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, Local No. 307, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent, excluding supervisory and clerical employees, constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. United Electrical, Radio & Machine Workers of America, Local No. 307, was on May 7, 1938, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the United Electrical, Radio & Machine Workers of America, Local No. 307, as the ex- clusive representative of its employees in an appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the right of self-organization, to form, join, and assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Dahlstrom Metallic Door Company, Jamestown, New York, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the United Electrical, Radio & Machine Workers of America, Local No. 307, as the exclu- sive representative of its production and maintenance employees, excluding supervisory and clerical employees; 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, 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, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the United Electrical, Radio & Machine Workers of America, Local No. 307, as the exclusive representative of all its production and maintenance employees, excluding supervisory and clerical employees, for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, and other conditions of employment ; (b) Immediately post notices in places where they will be observed by the respondent's employees and maintain such notices for a period of sixty (60) consecutive days, stating that the respondent will cease and desist as aforesaid and will take the affirmative action set forth in paragraph 2 (a); (c) 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 petition for investigation and certification of representatives be, and it hereby is, dismissed.