Coldwell Lawnmower Company

In the Matter Of COLDWELL LAWNMOWER COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE No. 757, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Cases Nos. C-1017 and R-987.-Decided Aitgust 1; 1939 Lawnmower Manufacturing Industry-Interference, Restraint , and Coercion.- anti-union statements ; interrogating employees regarding union activity- Company-Dominated Union: encouragement of unaffiliated organization by super- visory employees and hostility to outside organization responsible for formation ; respondent ordered to refuse to recognize-Unit Appropriate for Collective Bar- gaining: all employees at plant including painters engaged in production and service repairmen but excluding employees of shipping department and of extra- parts department other than service repairmen, watchmen, firemen, janitors, sweepers , elevator operators , and clerical and supervisory employees ; production.: painters and service repairmen included over objection of union representatives- Representatives : proof introduced by union requires election-Collective Bar- gaining: union and employer unable to agree upon appropriate unit ; unit sought by union excluding production painters contested by employer , found to be prop- erly included in unit; complaint dismissed as :to refusal to bargain collectively- Investigation of Representatives : controversy concerning representatives of em- ployees : claim of union that it represented majority of employees within appro- priate unit disputed by company-Election Ordered: time for and eligibility date to be fixed after effect of unfair labor practices dissipated ; company-dom- inated union excluded from ballot. Mr. Gordon O'Hanlon, for the Board. Cassedy & Northrop, by Mr. George M. Northrop, of Newburgh, N. Y., for the respondent. Mr. S. L. Newman, of Long Island, N.Y., and Mr. Paul Hutchings, of Washington, D. C., for the Union. Mr. Augustus W. Bennett, of Newburgh, N. Y., for C. E. B. A. Mr. Albert J. Hoban, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On April 4, 19,38, International Association of Machinists, Lodge, No. 757, affiliated with the American Federation of Labor, herein called 14 N. L. R. B., No. 3. 38 COLDWELL LAWNMOWER COMPANY 39 the Union, filed with .the Regional Director for the Second Region (New York City) a petition alleging that a question affecting com- merce had arisen concerning the representation of employees of Cold well Lawnmower Company, Newburgh, New York, herein called the respondent, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On April 16, 1938, 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 the Regional Director to conduct an investigation and to provide for an appropri- ate hearing upon due notice. On April 25, 1938, the Union filed charges, and on June 15, 1938,. amended charges with the Regional Director. The amended charges alleged that the respondent had engaged in and was engaging in un- fair labor practices affecting commerce, within the meaning of Sec- tion 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. On July 15, 1938, the Board, acting pursuant to Article II, Section 37 (b), and Article III, Section 10 (c) (2), of said Rules and Regula- tions, ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for the purpose of hearing, and that one record of the hearing be made. On July 18, 1938, the Board, by the Regional Director, issued its complaint, alleging that the respondent had engaged in and was engag- ing in unfair labor, practices affecting commerce, within the meaning of Section 8 (1), (2), and (5) and Section 2 (6) and (7) of the Act. Copies of the complaint and an accompanying notice of hearing were duly served upon the respondent, upon the Union, and upon Coldwell Employees 'Benevolent Association, herein called the C. E. B. A.9 a: labor organization alleged in the complaint to be dominated' and supported by the respondent. With respect to the unfair labor practices the complaint alleged in substance that the respondent (1) during the months of March and April 1938 refused to bargain collectively with the Union as the duly authorized representative of the respondent's employees in an ap- propriate bargaining unit; (2) dominated and interfered with the formation and administration . of the C. E. B. A. and contributed support to it; and (3) by the foregoing and other acts interfered with,. restrained, and coerced its employees in the exercise of the rights guar- anteed in-Section 7 of the Act. The respondent duly filed its answer in which it admitted the allegations of the complaint relating to the nature and scope of its 'business but denied it had engaged in the, unfair labor practices alleged in the complaint. Pursuant to the notice, a hearing was held in Newburgh, New York, on August 8,-9, and 10, 1938, before Herbert A. Lien, the Trial Ex- 190935-40-vol. 14-- 4 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aminer duly designated by the Board. The Board, the respondent, and the C. E. B. A . appeared by counsel, and the Union by a repre- sentative . At the commencement of the hearing, counsel for the C. E. B. A. moved to intervene . The Trial Examiner granted the motion in the representation proceeding but denied it with respect to the hearing upon the complaint.'. The respondent, the Union, the C. E. B. A., and the Board all participated in the hearing. 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 hearing counsel for the respondent moved to dismiss the complaint on the ground that the evidence adduced did not substan- tiate the allegations of the complaint . The Trial Examiner reserved decision upon the motion. In the course of the hearing the Trial Ex- aminer made a number of other rulings upon motions and upon objections to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 2, 1938, the Trial Examiner filed his Intermediate Report in which he denied the aforesaid motion of respondent, found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce , within the meaning of Section 8 (1), (2), and ( 5) and Section 2 (6) and (7) of the Act, and recommended that the respondent cease and desist from its unfair labor practices and take certain affirmative action to effectuate the policies of the Act. The respondent and the C. E. B. A . thereafter filed exceptions to the Intermediate Report and to various rulings of the Trial Examiner. On November 19, 1938, the respondent requested permission to file a brief and to argue orally before the Board . Pursuant to notice of hearing duly served upon the parties , a hearing was held before the Board in Washington, D. C., on April 13, 1939, for the purpose of oral argument . The Union was represented by cotmsel and partici- pated in the argument. Neither the respondent nor the C. E. B. A. appeared . The respondent filed a brief which has been considered by the Board. The Board has considered the exceptions filed by the respondent and the C. E. B. A . and, except in so far as they are consistent with the findings of fact, conclusions of law, order , and direction set forth below, finds them to be without merit. 'Since the Board's order based upon the allegations in the complaint would not run :against the C. E. B. A. its presence was not necessary for the Board to determine whether the respondent had violated the statute or to make an appropriate order against it. National Labor 'Relations Board v. Pennsylvania Greyhound Lines, Inc. and Greyhound Management Company, 303 U. S. 261 (1938). Under the circumstances the Trial Exam- iner, in denying the motion of the C. E. B. A. to intervene in the complaint case, com- mltted no prejudicial error. COLDWELL LAWNMOWER COMPANY 41 Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Coldwell Lawnmower Company is a New York corporation en- gaged in the production, sale, and, distribution of hand and power lawnmowers. Its plant is located in Newburgh, New York, where .it normally employs between 100 and 115 persons. The principal .raw materials used by the respondent are castings, steel, handles, rollers, boxes, screws, nuts, bolts, and bearings. Approximately 8 per cent of the castings and over 95 per cent of the other raw ma- terials are shipped to the respondent's plant from points outside the State of New York. For the fiscal year.Widing July 31, 1938, the value of the raw materials purchased was approximately $200,000 and during the same period the value of respondent's finished prod- ucts was approximately $450,000. Eighty per cent of the hand mowers and 65 per cent of the power mowers manufactured by re- spondent are shipped to points outside the State of New York. H. THE ORGANIZATIONS INVOLVED International Association of Machinists Lodge No. 757, affiliated with the American. Federation of Labor, is a labor organization ad- mitting to membership production employees of the respondent, ex- cluding painters, extra-parts department employees, shipping-depart- ment employees, and supervisory and clerical employees. Coldwell Employees Benevolent Association is an unaffiliated labor organization, admitting to membership all employees of the respond- ent excluding salaried employees. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint and petition alleged that all employees of the re- spondent engaged at its Newburgh plant, exclusive of shipping de- partment, extra-parts department, painters, and supervisory and cler- ical employees constitute a unit appropriate for the purposes of collec- tive bargaining. At the hearing the respondent made no objection to the alleged appropriateness of the unit but in its brief asserted that the exclusion of employees in the .shipping and extra-parts depart- ments and of painters was apparently unfair. The respondent made no objection to the exclusion of supervisory or clerical employees. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, In accordance with our usual practice, we find that they should be excluded from the appropriate unit. The employees in respondent's shipping department are engaged in receiving, packing, and shipping. They work under a different foreman from the production employees and most of their work is performed on a separate floor. Part of their work is of a clerical nature. We shall exclude them from the unit. The employees engaged in the extra-parts department receive orders for parts from owners of hand and power lawnmowers manu- factured by the respondent and fill the orders from a stockroom of extra parts which the respondent maintains on the sixth floor of the plant. They do no production work, receive different wages, and possess clerical qualifications not required of production employees. We shall exclude extra-parts department employees from the appro- priate unit. Nominally in the extra-parts department but performing a dif- ferent function are the service repairmen whose work consists of repairing lawnmowers shipped to the plant by the respondent's cus- tomers. During the grass-cutting season one of the service repair- men frequently leaves the plant to service machines. The service repairmen do the same type of mechanical work as the production. employees. We shall include them within the appropriate unit.' The Union contended that painters should be excluded from the appropriate unit because they are not eligible, for the Union but are within the jurisdiction of another labor organization affiliated with the American Federation of Labor. The painters at the respondent's plant work on an assembly line. Lawnmowers are assembled except for tires and guard rollers and after being put through a washing process are painted with spray guns. The tires and guard rollers are then attached and the machines tested. The painters are under the supervision of the foremen of the departments in which they work. There is no paint foreman. The respondent in its brief objected to. the exclusion of painters on the ground that the work they performed was an integral part of the production process. It is clear that the interests of the painters are similar to those of the other employees. on the assembly line and there was evidence in the record tending to, show that under certain circumstances they could be represented by- the Union. . We find that painters must be included within the appro- priate unit. At the hearing, S. L. Newman, a representative of the Union,. pointed out on the pay roll of March 1, 1938, the employees who! 2 See Matter of Joe Lowe Corporation and Independent Union o f Confectionery Workers, Local 1, 13 N. L. R. B. 672 and Matter of La Plant -Choate Manufacturing Co., Inc. and United' Farm Equipment Workers Organizing Contniitten . Local 16, affiliated with the C. I. O.,. 13 N. L. R. B. 1228. COLDWELL LAWNMOWER COMPANY 43 would come within the groups classified in the union petition as ship- ping department, extra-parts department, painters, and clerical and supervisory employees. In addition to the employees already consid- ered he stated that watchmen, firemen, janitors, sweepers, elevator op- erators, timekeepers, draftsmen, and the traffic manager's assistant should be excluded from the appropriate unit. Upon the basis of the record, it is clear that the two timekeepers, the draftsmen, and the traffic manager's assistant should be excluded because they perform supervisory and clerical functions. The respondent agrees that the employees designated on the pay roll as watchmen and firemen should not be within the appropriate unit. The janitors, sweepers, and eleva- tor operators are under the supervision of the foreman who is in charge of the shipping department and are classified with that de- partment by the respondent. The manner in which the respondent classifies them and the functions which are normally associated with such designations indicate that the janitors, sweepers, and elevator operators should be excluded from the appropriate unit. We find that all employees of the respondent at its Newburgh plant, including painters engaged in production and service repair- men, but excluding employees in the shipping department and em- ployees in the extra-parts department other than service repairmen, watchmen, firemen, janitors, sweepers, the elevator operators, and clerical and supervisory employees constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and will otherwise effectuate the policies of the Act. 2. The alleged refusal to bargain On March 1, 1938, S. L. Newman, grand lodge representative of the Union, wrote to the respondent stating that he had been in- structed by the employees to submit a proposed agreement which he inclosed with the letter. On March 18, Hayden W. Wagner, the respondent's vice president and general manager, acknowledged re- ceipt of Newman's letter and stated he would give it careful atten- tion and notify Newman when he-was prepared to discuss it further. On March 31, after another request by Newman for a conference, the representatives of the Union and the respondent met in Wag- ner's office . Newman stated that the Union represented a majority of respondent's employees exclusive of shipping , and extra-parts de- partment employees, painters , and supervisory and clerical employees. Wagner took the position that painters should be included within the appropriate unit. A discussion with respect to painters ensued and finally Wagner. suggested that the Union take the matter up 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Board. Another conference, attended by a Field Examiner of the Board, was held on April 4, but the parties, adhering to the positions they had previously taken, could not agree upon an appro- priate unit. The painters, as we have found, are properly included in the bar- gaining unit. Inasmuch as the respondent's refusal to bargain with the Union was predicated upon its insistence on their inclusion, which the Union. opposed, we are of the opinion that the respondent has not refused to bargain collectively within the meaning of the Act. The allegations of the complaint that the respondent has so refused will, accordingly, be dismissed. B. Interference, restraint, and coercion In October 1935, at the request of several employees of the re- spondent whose wages had been reduced 10 per cent, the Union at- tempted to organize the respondent's plant. A number of employees became active members of the Union. Soon after organization was under way, John Schultz, who was foreman of the motor-mower department and had authority to hire and discharge employees, be- gan to combat the organization of the plant. He spoke to active members of the Union and urged them to abandon the organization. At one time he asked each employee in his department whether he was a member of the Union. In January 1936, half the pay cut was restored. Several months later Wagner announced the restoration of the remaining 5 per cent and commended the employees upon their loyalty. The charge and complaint did not allege that the respondent en- gaged in unfair labor practices before April 1937. Accordingly, we do not find by the acts set forth above, the respondent interfered with the rights of its employees guaranteed in Section 7 of the Act. Nevertheless, the activities of Schultz form an important part of the history of labor relations at the plant and as such are helpful in de- termining the effect upon its employees of acts of the respondent which occurred after April 1937.. There was little organizational activity in 1936 after the restoration of the pay cut. However, some employees had retained membership in the Union and others joined in 1937. By November 2, 1937, the Union represented a substantial number, of the respondent's employees and, for the purpose of acquainting the respondent with the activities of the Union, one Peterson, its international vice president, visited the plant office and introduced a union committee to Wagner. Three days later, at 3:30 p. m. Wagner called a meeting of em- ployees in the plant. At the hearing he testified that his purpose in bringing the employees together was to explain the National Labor COLDWELL LAWNMOWER COMPANY 45 . Relations Act to them because several employees had asked their foremen whether they had to join the Union.. At the meeting, Wagner read from Federal Regulation of Labor Relations, a bulletin issued by the Chamber of Commerce of the United States, a copy of which was introduced in evidence. He also read parts of the Act itself to the employees, adding personal ex- planations and examples. He admitted that the portion of the bulletin which he read to the employees did not inform them of their rights under the Act but was only an explanation of the posi- tion in which the employer found himself. The extract was critical of the Act and suggested clarification of the definition of collective bargaining. Wagner stated that the Act was unfair because it tied the em- ployer's hands. He told the employees that he would not agree to a closed shop and reminded them that they could always come and talk to him. In defining the term "labor organization" he pointed out that the company union had won an election conducted in a nearby plant. Witnesses testified that the speech discouraged membership in the Union. On the other hand, according to the testimony of Robert McClintock, a service employee, who later became president of the Association, it indicated to him that he could not be discharged for forming an "association" in the shop. After Wagner's speech, Schultz continued to discourage member- ship in the Union. In December he told Harold Terry, an engine inspector, that he knew Terry was the only member of the Union at one end of the plant and warned him that someone else could be put on his job. From the time of the earliest efforts at organization until early in 1938, many members of the Union believed Schultz was discrim- inating against them because of their union activity and complained of Schultz to union officials. In one case, after a conference with union officials, the respondent reinstated an active member who had been laid off by Schultz during a slack period when men with less seniority were retained. On January 21, 1938, Newman, on behalf of the Union, conferred with Wagner and John M. Nalle, the respondent's factory, manager, and discussed other alleged acts of interference and discrimination by Schultz. During the conversation Newman mentioned that the Union would soon submit a collective bargaining proposal to the respondent. 'Wien the conference was concluded Wagner promised Newman that within a few days the Union would know what action had been taken with regard to Schultz. Approximately 1 hour later Schultz was discharged. Although Nalle testified that he was dismissed because he was actively critical 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Nalle, the circumstances of his termination and the testimony of other witnesses lead us to conclude that Schultz was discharged be- cause Wagner and Nalle knew the charges of interference which Newman had made could be substantiated. On Wednesday, March 23, 1938, while Newman was waiting for Wagner to fix a date for a collective bargaining conference on the proposed agreement which the Union had submitted, the foremen in the respondent's plant distributed copies of a circular entitled "Coldwell Lawnmower Company Labor Relations Policy" bearing the signature of Hayden W. Wagner, vice president-general manager. While the circular did not refer to the proposed agreement and although Nalle testified that it was modeled upon the labor-rela- tions policy of a large public-utility corporation, a careful examina- tion of the copy introduced in evidence leads us to conclude that in substance the circular was a reply to the demands of the Union made directly to the employees in an effort to discourage union membership. The major proposals of the Union related to union :membership, hours of employment, seniority rights, vacations, pro- cedure for taking up grievances, rates of pay, and rules for appren- tices. The labor-relations policy unmistakably sets forth the reply of the respondent to each of the union demands with the exception .of the conditions under which apprentices would be' employed. We -do not credit the vague explanations of Wagner and Nalle that the -publication of the labor-relations policy had no relation to the tender ,of the proposed union agreement. We find that the respondent by the acts of Schultz set forth, above -which occurred after April 1937, by the acts of Wagner in conducting the meeting of November 5, 1937, and by the publication of the re- spondent's labor-relations policy interfered with, restrained, and -coerced its employees in the exercise of the rights guaranteed in "Section 7 of the Act. C. Coldwell Employees Benevolent Association In early May 1937, Nalle, who had shortly theretofore undertaken his duties as factory manager, called at the office of Schultz, the fore- man of the motor-mower department. Nalle, who knew some of the men in the plant we members of the Union, asked Schultz whether there was an independent labor organization in the plant. Schultz said he did not know and went into the shop, returning with Edward McClintock, a machinist who afterwards became a member of the board of directors of the C. E. B. A. Schultz asked McClintock in the presence of Nalle if there was an organization in the shop and the latter replied that some of the men belonged to the Union but he did not know how many. Nalle then said : "It is only a matter COLDWELL LAWNMOWER COMPANY 47 of time before we have to have an organization in here because of the shop being organized." At this point Na.lle was called out of the office but the significance of his statement may be gathered from the subsequent actions of the foreman. As soon as Nalle had left the office Schultz asked McClintock if the men knew anything about a shop union. When McClintock said he did not know, Schultz had him call several other employees into the office and informed them that if they ever wanted to know how to form a shop union he would be glad to help them. Schultz's open encouragement of a shop union immediately after Nalle's departure leads us to conclude that the latter, who admittedly knew that some of the men belonged to the Union, had indicated, to Schultz that the respondent favored the formation of an independent labor organization. Rumor of what occurred in Schultz's office spread throughout the. plant but no steps were taken. toward the organization of an inde- pendent union until late in March 1938. After the Union had sub- mitted its proposed agreement and the respondent had issued the statement of its labor-relations policy, Robert McClintock, a service repairman and cousin of Edward McClintock; discussed the forma- tion of such an organization with other employees. He testified that lie first got the idea from Charles Nelson, who about 6 months before had said that the employees in the plant should have a shop union. Nelson was one of the men brought into Schultz's office by Edward McClintock in May 1937. On Saturday, April 16, Robert McClintock retained August W.. Bennet, a Newburgh attorney, to draft bylaws. On Monday morn- ing he left the plant and conferred with Bennet at the latter's office. McClintock testified that he did not receive permission to leave the plant. However, he deducted three-quarters of an hour from the working time reported for that day. During the day Bennet drafted bylaws and ordered application, forms and authorization cards from a local printing company. They were billed to the C. E. B. A., a name selected during the morning con- ference, and were picked up by McClintock after work. On Tuesday, April 19, McClintock went through the entire shop. distributing the application forms and authorization cards. At the machine or bench of each employee lie placed one form and one card. and asked the employee to read them. He left one copy of the bylaws. on each floor. By Wednesday evening 50 signed cards had been. returned to McClintock's desk. McClintock testified without contradiction that he conducted his organizing activities for the C. E. B. A. on the respondent's time and property without the respondent's permission. In our opinion, how 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, the respondent's repeated discouragement of membership in the Union and its attempts, through Nalle and Schultz, to promote an unaffiliated labor organization, served as an indication to McClintock, here tantamount to express permission, that his activities would not be impeded or censured by the respondent. On Wednesday, April 20, McClintock, this time through the medium of one man on each floor, announced that a meeting of the new organi- zation would be held the same evening. The meeting was held in a public hall rented by McClintock. Ac- cording to the minutes of the secretary, the meeting was called to order at 8 p. m. by Myron Embler who acted as temporary chairman. Embler is designated as a timekeeper on respondent's pay roll. At the hearing his duties were described by Nalle as those of timekeeper, pay- master, and assistant treasurer. He distributes work to the men from a desk which is located in the foreman's office and checks upon the time spent by each employee on a particular assignment. If the employee takes too much time on the work it is Embler's duty to report that fact to the foreman. As paymaster Embler distributes their pay to the men. The functions which Embler performs at the plant iden- tify his interests with- those of the respondent and his conspicuous par- ticipation in the meeting as its temporary chairman once again indi- cated to the employees that the C. E. B. A. had the approval of the respondent. Embler as presiding officer supervised the nomination and unanimous election of Robert McClintock as president of the C. E. B. A. McClintock then took the chair and other officers as well as a bargaining committee were elected. After the 30 employees pres- ent had decided to adopt a permanent meeting place, a fixed date for monthly meetings and dues of 50 cents per month, the meeting was adjourned to the next regular meeting in May. Apparently there was no discussion concerning a request for recognition by the respondent. Nevertheless, on April 22, McClintock delivered a letter to Wag- ner's office which advised the respondent that the C. E. B. A. repre- sented a majority of its employees and demanded that all negotia- tions with employees of the respondent affecting wages, hours, or conditions of employment be conducted solely and exclusively through the C. E. B. A. Wagner sent for McClintock and informed him that a petition had been filed with the Board by the Union requesting certification and the question was one for the Board to decide before the respondent entered into negotiations with any labor organization. Thereafter, on April 25, the Union filed charges with the Regional, Director alleging' that the respondent had dominated and interfered with the formation of the C. E. B. A. It is clear from the testimony of the officers of the C. E. B. A. that the organization was formed only in part for the purpose of COLDWELL LAWNMOWER COMPANY 49 dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of work. its immediate function was to prevent certification of the Union by the Board. The haste with which it was organized and its single- :handed administration by Robert McClintock corroborate testimony .of its officers concerning its purpose. Although the absence of a program of its own and its opposition to an outside labor organization do not constitute the C. E. B. A. -an employer-dominated organization, the record here convinces us that the respondent's hostility toward the Union, after its indica- tion earlier given by Nalle and Schultz that it would welcome the appearance of an unaffiliated organization, was adopted by the employees, and was directly responsible for the formation of the C. E. B. A.8 We find that the respondent has dominated and interfered with the formation and administration of the C. E. B. A. and has con- tributed support -to it, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in :Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the acts of the respondent set forth in Section III :above, occurring in connection with the operations of the respond- ent 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 REMEDY Having found that the respondent has engaged in certain unfair labor practices we will order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. We have found that the respondent dominated and inter- fered with the formation and administration of the C. E. B. A. and contributed support thereto. The respondent's actions render the C. E. B. A. incapable of serving the employees as a genuine collective B Matter of Crawford Manufacturing Company and Tewtile Workers Organizing Com- mittee, 8 N . L. R. B. 1237, in which the Board said : "Where an employer thus [by diverting and confining the desires of its employees into and within the channel of an inside union] limits his employees to a particular form of labor organization and upon such limitation being imposed , a labor organization of the prescribed pattern springs into being , such an organization , in the absence of any showing to the contrary, must be presumed to reflect, in that respect , the will of the employer . Such an organization is not the result of a free choice, but one whose formation has been interfered with and dominated by the employer, within the meaning of the Act." 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agency. In order to effectuate the policies of the Act we shall order the respondent to refuse to recognize the C. E. B. A. as representative of any of its employees. VI. THE QUESTION CONCERNING REPRESENTATION As found in Section III above, the respondent on two occasions refused to recognize the Union for the purposes of collective bar- gaining. The contention of the Union in its petition that it repre- sents a majority of respondent's employees within an appropriate unit was disputed by the respondent. We find that a question has arisen concerning representation of employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operation of the respondent described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE I.)ETERMINATION OF REPRESENTATIVES We have found that all employees of the respondent at its New- burgh plant, including painters engaged in production and service repairmen but excluding employees in the shipping department and employees in the extra-parts department other than service repair- men, watchmen, firemen, janitors, sweepers, the elevator operators, and clerical and supervisory employees, constitute an appropriate unit for the purposes of collective bargaining. At the hearing, the Union and the C. E. B. A. introduced evidence of their designation, respectively, by employees within such unit. Having found that the C. E. B. A. is employer dominated, we shall disregard such evidence introduced on its behalf. The nature and quantum of proof intro- duced on behalf of the Union was such, however, that we shall direct that an election by secret ballot be held to resolve the question con- cerning representation which has arisen. In such election, the C. E. B. A. will not be placed upon the ballot, since as we have found, it is incapable of serving as representative of the employees. We shall not at this time fix a date for holding the election but will delay it until such time as we are satisfied that the effects of the respondent's unfair labor practices have been dissipated suffi- ciently to permit a free choice of representative. At the time we direct such an election we will determine the pay-roll date to be used COLDWELL LAWNMOWER COMPANY 51 in ascertaining the eligibility of employees in the appropriate unit to vote. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, Lodge No. 757, and {;oldwell Employees Benevolent Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration of Coldwell Employees Benevolent Associa- tion and by contributing support to it, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The respondent by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not engaged in and is not engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. A question affecting commerce has arisen concerning. the repre- sentation of employees of the respondent, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act., 7. All employees of the respondent at its Newburgh plant, including painters engaged in production and service repairmen, but excluding employees of the shipping department and employees of the extra- parts department other than service repairmen, watchmen, firemen, janitors, sweepers, elevator operators, and clerical and supervisory em- ployees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Coldwell Lawnmower Company, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the admin- istration of Coldwell Employees Benevolent Association, or the for- 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mation or administration of any other labor organization of its: employees, and from contributing support to Coldwell Employees- Benevolent Association or any other labor organization of its employees ; (b) In any other manner interfering with, restraining, or coercing- 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 concerted 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) Refuse to recognize Coldwell Employees Benevolent Associa- tion as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of work ; (b) Immediately post notices to all its employees in conspicuous places throughout its Newburgh, New York, plant, and maintain such notices for a period of at least sixty (60) consecutive days stating that the respondent will cease and desist in the manner set forth in paragraphs 1 (a) and (b) hereof and will take the affirma- tive action required in paragraph 2 (a) hereof; (c) Notify the Regional Director for the Second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act, be, and it hereby is, dismissed. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tion Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, in order to ascertain representatives for the purposes of collective bargaining with Coldwell Lawnmower Company, New- burgh, New York, an election by secret ballot shall be conducted at such time as the Board will in the future direct, under the direction and supervision of the Regional Director for the Second Region, act- ing in this matter as agent for the National Labor Relations Board and. subject to Article III, Section 9, of said Rules and Regulations, among COLDWELL LAWNMOWER COMPANY 53 all employees of the respondent at its Newburgh plant, including painters engaged in production and service repairmen, but excluding employees of the shipping department and employees of the extra- parts department other than service repairmen, watchmen, firemen, janitors, sweepers, elevator operators, and clerical and supervisory employees, to determine whether or not they desire to be represented by International Association of Machinists, Lodge No. 757, for the purposes of collective bargaining. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election.