American Machine and Foundry Company

In the Matter of AMERICAN MACHINE AND FOUNDRY COMPANY 1 and LOCAL 1233 OF UNITED ELECTRICAL RADIO & MACHINE WORKERS OF AMERICA, C. I. O. Ceases Nos. C--683 and R-7,30-Decided August 14, 1939 Industrial Machine Mani-nfact urbng Industry-Interfercnec, Restraint, and Coercion : anti-union statement made by employment manager-Co-iapany-Donmi- nated Union : charges of, dismissed-Unit Appropriate for Collective Bargaining: production, maintenance, receiving and shipping employees , store clerks , and in- spectors having no supervisory duties over other inspectors , at Brooklyn, New York, exclusive of supervisory and clerical employees , foremen, assistant fore- men, inspectors who direct the work of other inspectors , technicians , engineers, draftsmen, watchmen, timekeepers , and the rest-room matron-Investigation of -Representatives : controversy concerning representation , stipulated-Nlection Ordered: to take place at such time as the Board shall hereafter direct. Mr. Mark Laruter, for the Board. Rogers, Ramsay ci Hoge, by Mr. H. H. Rwnsay and Mr. Clifton Cooper, both of New ' York City, for the respondent. Mr. Frank Schemer and Mr. David Schribner, both of New York City, for the Union. Sweet di Sweet, by Mr. Irving Sweet and Mr. Samuel Sweet, both .of New York City, for the Association. Mr. Francis Hoague, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On October 20, 1937, Local 1233 of United Electrical Radio Machine Workers of America, C. I. 0., herein called the Union, filed with the Regional Director for the Second Region (New York City), a petition alleging :that a question affecting commerce had arisen concerning the representation of employees of American Machine and Foundry Company,, Brooklyn, New York, herein called the respond- I The petition , the charge, and the complaint referred to the respondent as "American Machine & Foundry Company , Inc." The Board and the respondent stipulated, however, that the correct designation is "American Machine and Foundry Company." 14 N, L. R. B., No. 39. 497 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent, and requesting an investigation and certification of representa- tives pursuant to Section 9 (c) of the National Labor Relations Act,. 49 Stat. 449, herein called the Act. On October 28, 1937, the Union filed with the said Regional Direc- tor charges which, as amended by charges filed by the Union on, November 3, 1937, alleged that the respondent had engaged in and. was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of' the Act. On December 16, 1937, 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 investigation of the question concerning representation and authorized the Regional Di- rector 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 fur- ther ordered that the representation case and the case involving the charges filed by the Union be consolidated for the purposes of hearing. Upon the amended charges filed by the Union, the Board, by the Regional Director for the Second Region, issued its complaint dated December 17, 1937, against the respondent, alleging that it had en- gaged in unfair labor practices affecting commerce within the mean- ing of Section 8- (1) and (2) and Section 2 (6) and (7) of the Act. Copies of the complaint, the petition, the Board's order of consolida- tion and direction of investigation and hearing, and notices of hear- ing on the complaint and on the petition, were duly served upon the respondent, the Union, and the Association. In respect to the unfair labor practices the complaint as amended alleged in substance: (1) that the respondent initiated, formed, and sponsored a labor organization known as Employees Association of the American Machine and Foundry Company, herein called the As- sociation, by permitting the recruiting of membership on company time and on company property, and that thereafter the respondent in divers ways expressed favoritism for the Association by the exten- sion of unusual and extraordinary privileges to it and its members, in contrast to the antagonism which the respondent exhibited to the Union; (2) that the respondent spread a rumor that membership in the Association was a condition of employment in the respondent's plant; and (3) that the respondent suggested, warned, and threatened its employees not to become or remain members of the Union, and kept under surveillance meetings and meeting places of the Union. AMERICAN MACHINE AND FOUNDRY COMPANY 499 On December 21, 1937, the respondent filed an answer to the com- plaint, admitting the allegations as to the nature of its business, but ,denying. that it had engaged in the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held in New York City from .February 14 through February 28, 1938, before Harold Stein, the Trial Examiner duly designated by the Board. The Board, the re- spondent, the Union, and the Association were represented by coun- sel and participated in the hearing. At the outset of the hearing the Association moved to intervene generally. The motion was granted in so far- as the proceedings involved 'the allegation that the respond- ent had engaged in unfair labor practices within the meaning of Sec- tion 8 (2) of the Act. The Association was also permitted to par- ticipate in the proceedings fully in so far as they involved the repre- .sentation case. During the presentation of evidence dealing with the complaint case and prior to the introduction of evidence concerning representation, the Regional Director served notice of hearing in the representation case upon Pattern Makers' League of America, Inter- national Molders' Union of North America, and International Asso- ciation of Machinists, labor organizations which had in 1937 claimed to represent employees affected by the investigation. On February 16, 1938, Harold Ware appeared at the hearing on behalf of the Pattern Makers Association of New York and Vicinity and consented to a waiver of service and attendance at the hearing. On February 23, 1938, a representative of the International Association of Ma- lchinists appeared at the hearing, but did not participate in the pro- ceedings. Full opportunity to be heard, to examine and cross-ex- amine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing; the Trial Ex- aminer made various rulings on motions and on objections to the ad- mission 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 May 13, 1938, the Trial Examiner filed his Intermediate Re- port, finding that the respondent had engaged in unfair labor prac-. tices affecting commerce within the meaning of Section 8 (1) and Section 2 .(6) and (7) of the Act, and recommending that the re- spondent cease and desist therefrom and take certain specified affirma- tive action to effectuate the policies of the Act. He further recom- mended that the complaint be dismissed in so far as it alleged that the respondent had engaged in unfair labor practices within the mean- ing of Section 8 (2) of the Act. Thereafter the respondent, the Union, and the Association filed . exceptions to the Intermediate Re- port, and the respondent and the Association filed briefs. 500 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD Pursuant to notice , a hearing was held before the,Board in Wash- ington, D. C., on March 23, 1939, for the purpose of oral argument. The respondent, the Union , and the Association were represented by counsel and participated in the oral argument. The Board has considered the exceptions to the Intermediate Re- port and, in so far as the exceptions are inconsistent with the find- ings, conclusions, and order set forth below, finds no merit in them. Upon the entire record in the case, the'Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT . American Machine and Foundry Company, a. New Jersey corpora- tion, having its principal office and a plant in Brooklyn, New York, is engaged in the manufacture , sale, and distribution of bakery, cigar, cigarette , and other manufacturing machinery . It ordinarily employs approximately 900 production and maintenance employees at its Brooklyn plant. During 1937 the.respondent purchased more than 75 per cent of the materials used by it from outside the State of New York. Dur- ing the same year the respondent shipped more than 75 per cent of its manufactured products to purchasers outside of the State of New York. II. THE ORGANIZATIONS INVOLVED Local 1233 of the United Electrical Radio & Machine Workers of America is a labor organization affiliated with the Committee for Industrial Organization , admitting to its membership all hourly paid production, maintenance, shipping, and receiving employees at the respondent's Brooklyn plant, excluding supervisors , foremen, assist= ant foremen , clerical workers, technicians , engineers, draftsmen; watchmen, timekeepers, and the matron. Employees Association of the American Machine and Foundry, Company is an unaffiliated labor organization ,.admitting to its mem- bership all production , maintenance, shipping, and receiving em- ployees at the respondent's Brooklyn plant, excluding foremen, assist- a nt foremen , and clerical workers, but including watchmen. III. THE UNFAIR LABOR PRACTICES A. Chronology of events For some years prior to 1937 there had been no substantial organi- zational activity among the employees of the respondent . In the spring of 1937, however , the International Association of Machinists, affiliated with the American Federation of Labor, began an organi- AMERICAN MACHINE AND FOUNDRY COMPANY 501 zational campaign among the employees and established a local com- posed of employees of the respondent. In May 1937 the local voted to change its affiliation from the American Federation of Labor to the- Committee for Industrial Organization. On July 9, 1937, United Electrical. Radio & Machine Workers of America, Local 1233, herein called the Union, was chartered. During the following months, the- Union conducted a membership drive, distributed pamphlets, and held numerous meetings. During the latter part of May 1937, a small group of employees: began to meet informally on the factory roof during the lunch hour- to discuss ways and means of thwarting the Union's organizational drive. The group decided to constitute themselves a committee,. called the Protest Committee, to oppose the Union. The Protest. Committee met on the evening of June 15, 1937, at the home of Carlos, Freddi, one of its members, and decided that opposition to the Union might be most effectively carried on by formation of an unaffiliated- plant organization. It was decided that the committee should meet. again in a week's time for the purpose of forming such an organi- zation. On the morning of June 17 Walter Pierson, another member of the- Protest Committee, apparently on his own initiative, asked Clarence- Caffrey, the respondent's employment manager, if it would be per- missible for the contemplated organization to use the respondent's-- name as part of its own name. Caffrey thereupon arranged for Pier- son to see George E. Wentz, the respondent's vice president and gen- eral plant manager. There was introduced in evidence at the hearing a stenographic record of Pierson's interview with Wentz. In so far as, here material, it reads as follows: Mr. WENTZ. You asked for an appointment to discuss the form- ing of an employees' association of some'sort? Is this correct?' Mr. PIERSON. Yes, I have been here 19 years and quite a few of the old employees are still employed here and we can't see any- one from the outside coming in here to give us orders, so I ask : you, Mr. Wentz, for permission to form a company union, as I think it would be better for the men and better for the Company,- so I would like to go ahead and organize the men to handle our- own affairs. Mr. WENTZ. You know, Mr. Pierson, the Company has no right to favor or disfavor any organization or organizing; for that. reason, the Company itself, and I, in particular, as a representa- tive of the Company, cannot authorize you to go ahead and do that-that is, to form an organization. I can't stop you from doing so either, if you think it is for, the best interests of the employees. We are prohibited, by law, from taking any active-- .502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sides; either way. I suppose you know that-that we are pro- hibited by law from taking any active sides? You as an em- ployee can do as you please. Mr. PIERSON. I understand that. Mr. WENTZ. We can't approve or disapprove. As a matter of. fact we do not take sides . . . but I would like to point out to you that there is a lot of work involved in such a proposition. You are up against competition from the regular organized unions. Mr. PIERSON. I understand, but once we have a company union and have an agreement, signed by the Company, whatever is bar- gained for they can't break, at least not until the time is up. Mr. WENTZ. I haven't looked into that. You are probably right. As I say, you are on your own. I can't object to an ex- pression from employees that is very worthwhile-unless com- pelled to do so by law, and I am not compelled to do that. Mr. PIERSON. All right,. Mr. Wentz, I will go ahead with form- ing our own shop union, among our own men, appointing a coin- mittee to help take care of the paraphernalia. Mr. WENTZ. I can't see any objection: A hard road to run. Mr. PIERSON. I will try. If you do not try you won't succeed. I do not think there is any law that prevents us from- organizing. Mr. WENTZ. You have been here 19 years and you have never been laid off- in all that time. Have you been treated fairly? Mr. PIERSON. I have. Most of the employees and a great many of the employees feel that way. I try to satisfy the Company to the best of my ability. I know the production men and know what is going on and how the boys feel and at the present time I am willing to help along. Mr. WENTZ. You probably know more about that than we do. Mr. PIERSON. So I think I will proceed. Mr. WENTZ. I can't do anything to stop you. Mr. PIERSON. I will have the necessary papers printed, appli- cations, etc. and ask the men to sign of their own free will and accord. Mr. WENTZ. I do not see anything out of order. Mr. PIERSON. I think the men will agree and see my point of view. About all I have to say on this subject right now. After Pierson's departure, Wentz telephoned-a subordinate and ascer- tained that Pierson was not employed in any supervisory capacity. On June 22, 1937, Wentz met with two representatives of the Union to discuss certain lay-offs which the Union felt might have been dis- criminatory. At this time, Wentz informed the Union represetmta- AMERICAN MACHINE AND FOUNDRY COMPANY 503 tives that the Union "would be granted the privileges to which they were entitled." During the weeks which followed Pierson's conversation with Wentz, the members of the Protest Committee directed their efforts toward organization of an unaffiliated organization of employees. Application cards were printed, temporary officers appointed, and arrangements made for the holding of meetings in the cafeteria at the respondent's plant. The request for use of the cafeteria was made by Pierson to Samuel M. Pastorfield, Jr., who rented the space for'the cafeteria from the•respondent for $25 a month under a lease terminable on 30 days' notice. Pastorfield communicated with Clar- ence Caffrey, the respondent's employment manager, who in turn con- sulted Wentz. The latter stated that he had no. objection to such use of the cafeteria providing order was maintained. Pastorfield then arranged with Pierson for use of the cafeteria by Pierson's group. It was agreed that payment of $5.00 should be made each time meetings were held. Meetings attended by many employees of the respondent were held by the Protest Committee at the cafeteria at the close of work on June 24 and 29, 1937. At the meetings, the members of the Protest Com- mittee spoke of their plan for -the formation of an unaffiliated organi- zation of employees and explained that its main purpose was to act as a buffer to the organizational drive of the Union; Excerpts from newspapers were read and exhibited for the purpose of showing that disorder and violence had accompanied organization by the C. I. O. in other plants. Further meetings were held at the cafeteria on July 8, 14, and 21, 1937, at which attendance was limited to employees who had signed the application cards prepared by the Protest Committee. At the July 8 meeting, permanent officers were elected, the members of the Protest Committee were designated as an Executive Council of the new organization which adopted the name "Employees' Association of the American Machine & Foundry Company," and various parts of a proposed constitution were drafted and discussed. At the meetings on July 14 and 21, 1937, further steps were taken relative to the drafting of the constitution. The constitution was adopted at a meeting held on August 18, 1937. On July 22, 1937, the Executive Council designated at the meeting on July 8 informed Wentz that the "older employees in the plant have formed an association," stated that the Association had a membership of over 400 employees, and requested that the Association be recog- nized as bargaining representative of the members of the Association. After considerable discussion, Wentz agreed to recognize the Associa- tion as bargaining representative of its members and stated that the 90935-40-vol. 14--33 504 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD respondent would issue a statement of policy with regard to which the Association might submit written criticisms if it so desired. On July 23, 1937, the respondent, posted on the bulletin boards at the plant a statement of policy which provided in part as follows: The management has been approached by the Committee of the American Machine & Foundry Employees' Association, who stated that they represented 400 to 500 employee members, and requested that they be recognized as a bargaining agency in dealing with the management. The management recognizes this committee as a bargaining agency for those employees it represents, and for the information of all its employees, the management presents the following as its general labor policy : The management recognizes the right of every employee to dis- cuss with the management in any way he pleases, matters affecting his employment. The statement of policy then set forth the respondent's existing policy with regard to wages, hours of work, and other conditions of employment. It concluded with the following statement : It has been and will continue to be the policy of the Manage- ment to cooperate with its employees, and to that end it will meet with any employee or any committee of employees or their duly authorized representatives to discuss, consider and endeavor to adjust any grievances or complaints as to wages, hours and conditions of employment, and as a reasonable requirement, the Management requests that major complaints be reduced to writ- ing and a copy of the complaint furnished to the Management at least twenty-four hours before a proposed discussion. Indi- vidual or minor grievances, should be taken up with depart- ment foremen or supervisors for immediate settlement, if possi- ble, and, if necessary, the Supervisors, the Superintendent or the General Works Manager, are agreeably available for con- sideration of reasonable complaints. On August 25, 1937, the Association conferred with Wentz relative to an increase in the minimum wage of employees in "Department 29" at the plant. Although Wentz refused to increase such minimum wage, he agreed to appoint a committee to consider the possibility of promotions for the more ambitious employees. On September 14, 1937, the Association requested a general wage increase on the ground that the Association had "to show some action for the benefit of the organization." Wentz denied this request, stating : I may be under the wrong impression. As I understand, the Association was conceived and gotten together in the spirit of AMERICAN -MACHINE AND FOUNDRY COMPANY 505 good will, for your protection and the Company's, and that good will is shown by the fact that we get together on a friendly basis which, ..I understand, was the object in having an associa- tion. Any problems arising were to be presented and talked over and a conclusion arrived at . . . fairly, if not satisfac- torily. Mr. DeGeorge's remark that men come to him and say-"Why don't I get something, I belong to the Association," doesn't make sense. I can't raise a man's wages because of the fact he is an association member. I hope I make myself clear on that point; that would be discrimination pure and simple. If the Federation of Labor and the C. I. O. come to me I would say the same thing. I would raise a man according to his record, regardless of his affiliations. I hope you will not lose track of what your association stands for. At the conclusion of the conference, a representative of the Associa- tion stated that the Association was not attempting to bring "pres- sure" on the respondent and Wentz declared that all -deserving employees would be granted increases promptly upon application. Charles Benna, an employee of the respondent at the time in ques- tion, testified that during the first week in October 1937 he went to the office of Clarence Caffrey, the respondent's employment man- ager, relative to a prior accusation by Caffrey that Benna had several pieces of aluminum in his locker and that Caffrey at such time asked him if he "was mixed up with the bunch on the fourth floor to carry on the dirty work . . . to carry on the C. I. O. propaganda." Benna further testified that Caffrey also stated that if Henry Goerke, supervisor in the department in which Benna worked, knew that Bemia was a C. I. O. member he would give Benna "hell, because they would have not have any C. I. O. establishment there." Caffrey testified at the hearing as a witness for the respondent, but was not questioned relative to the statements attributed to him by Benna. We find that Caffrey made such statements to Benna. On November 3, 1937, William Gilbert, an organizer for the United Electrical Radio & Machine.Workers of America, requested that the Union be mentioned by name in a notice similar to that posted on July 23 recognizing the Association as the bargaining representative of its members. Wentz refused the request made by Gilbert on the ground that the matter had already been discussed at a meeting with an agent of the Board and stated that he would wait until the respondent was ordered by the Board to post such notice. The Union had on October 28, 1937, filed charges that the respondent. had engaged in unfair labor practices within the meaning of Sec- tion 8 (1) and (2) of the Act and the meeting referred to by Wentz apparently related to such charges. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On a number of occasions following November 3, 1937, the re- spondent conferred with the Association relative to individual griev- ances, various minor adjustments of policy, and a demand for over- time pay for two millwrights. The respondent also met on a num- ber of occasions with a committee from the Union relative to the respondent's general lay-off policies, but took the position that such was not a matter for negotiation. B. The alleged domination of- and -inter f erence t with the Association We have set forth above the facts disclosed by the evidence rela- tive to the formation of the Association and its dealings with the respondent. We are of the opinion that such facts do not establish that the respondent has dominated or interfered with the formation or administration of the Association or contributed support to it. The respondent apparently first learned that the formation of the Association was contemplated on June 17, 1937, at which time Wentz discussed the matter with Pierson, a member of the Protest Com- mittee which had previously been formed by a number of the em- ployees. Although Wentz at such time made a number of statements which might conceivably be interpreted as favoring an organization such as proposed, we do not think that his remarks considered as a whole may properly be interpreted as constituting any domination or interference. Nor do we think that the statements made by Wentz on subsequent occasions constituted domination or interference with the Association. The evidence shows that on July 23, 1937, the respondent, at the request of the Association, posted a notice recog- nizing the Association as the bargaining representative of its mem- bers and that on November 3, 1937, the respondent refused to post a similar notice recognizing the Union as the bargaining representa- tive of its members. However, prior to the date on which the Union requested such notice, the petition for investigation and certification of bargaining representatives and the charges of unfair labor prac- tices had been filed. Under such circumstances, we do not think that the respondent's refusal to post the notice constituted any unfair labor practice. Although the respondent apparently had ultimate control over the use of the cafeteria, we do not think that the renting of the cafeteria for use by the Association constituted the rendering of support to the Association inasmuch as there is no evidence that a similar use would not have been granted the Union if request had been made therefor. Evidence was presented at the hearing relative to numerous in- stances of Association activity during working hours both in solicit- ing members and in performing various internal functions of the AMERICAN MACHINE AND FOUNDRY COMPANY 507 Association. We conclude that the evidence establishes that Olsen, an assistant foreman, knew of solicitation on behalf of the Associa- tion by Ryberg, a shipping clerk, on one occasion early in July 1937. The evidence does not establish that otherwise anyone in a super- visory position was aware of the activities on behalf of the Associa- tion. The respondent's plant is a large machine shop and the noise of the work is ordinarily so great as to prevent one from over- hearing a conversation at any great distance. The employees are given considerable freedom in moving about the plant. The duties of Freddi and Pierson, to whom most of the activities were attrib- uted, took each of them into every department in the plant. The other employees were continually leaving their places of work in order to obtain tools from the tool crib and from other departments. The respondent appears to have been lenient regarding general talk among the employees as long as it did not interfere with their work. A complete time system was maintained whereby the respondent was always cognizant of the output of each employee. This would nat- urally tend to obviate the need for strict supervision as to idleness of employees. Some conversation between the men was necessary to their work. Witnesses for the Association testified, and it is reason- able to believe, that the Association men were careful not to be seen by supervisory employees while engaging in activity on behalf of the Association during working hours. Furthermore, there is evi- dence that there was activity on behalf of the Union during work- ing hours, although none of this evidence showed that any member of the supervisory force was aware of it. We find that the respondent has not dominated or. interfered with the formation or administration of the Association or contributed support to it. C. Interference, restraint, and coercion We have found above that during the first week in October 1937 Clarence Caffrey, the respondent's employment manager, asked Charles Benna, an employee, if he "was mixed up with the bunch on the fourth floor to carry on the dirty work . . . to carry on the C. I. O. propaganda," and stated that if Henry Goerke, supervisor in the department in which Benna worked, knew that Benna was a C. I. O. member he would give Benna "hell, because they would not have any C. I. O. establishment there." We find that by the aforesaid statements the respondent has inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the unfair labor practices of the respondent set forth in Section III above, occurring in connection with the operations of the respondent described in Section I above, have 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 the free flow of commerce. V. THE QUESTION CONCERNING REPRESENTATION At the hearing, the Union and the Association each claimed to represent a majority of the employees of the respondent within an appropriate unit and desired to establish their respective claims as bargaining representative. The respondent conceded that there existed a question concerning the representation of its employees. We find that a question has arisen concerning the representation of employees of the respondent. VI. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations 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. VII. THE APPROPRIATE UNIT All parties agree that the appropriate unit should include all hourly paid production, maintenance, receiving, and shipping employees, store clerks, and inspectors having no supervisory duties over other inspectors, and should exclude supervisory and office employees, fore- men, assistant foremen, technicians, engineers, and draftsmen. The Union would also exclude watchmen, timekeepers, the matron of the women's rest room, and inspectors who direct the work of other inspectors. The Association would include these employees. We conclude that the timekeepers,2 the rest-room matron, the 2 See Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steel, and Tin Workers of North America, Local No. 1657, 6 N. L. R. B. 780; Matter of American Radiator' Company (Bond Plant , and Terminal Plant ) and Amalgamated -Association of Iron, Steel & Tin Workers, Lodges 1199 and 1629, 7 N. L. R. B. 452. AMERICAN MACHINE AND DOUNDRY COMPANY 509 watchmen,' and the inspectors who direct the work of other inspec- tors, should be excluded from the unit. It is to be noted with regard to this conclusion that although the Association desires that the time- keepers and rest-room matron be included in the unit, such employees are not eligible to its membership. Inasmuch as the inspectors in question direct the work of other inspectors, they clearly occupy supervisory positions and have interests which relate them to the management. We find that the hourly paid production, maintenance, receiving, and shipping employees, store clerks, and inspectors having no super- visory duties over other inspectors, of the respondent at Brooklyn, New York, exclusive of supervisory and clerical employees, foremen, assistant foremen, inspectors who direct the work of other inspectors, technicians, engineers, draftsmen, watchmen, timekeepers, and the rest-room matron, constitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to employees of the respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuate the policies of the Act. VIII. TIIE DETERMINATION OF REPRESENTATIVES Both the Union and the Association claimed to represent a major- ity of the employees in the appropriate unit and exhibited to the Trial Examiner a large number of membership application cards. No check was made of the cards against the respondent's pay roll or for the purpose of ascertaining duplications. We find that the ques- tion which has arisen concerning representation can best be resolved by an election by secret ballot. We shall not, however, now fix the date for the holding of the election since the election should not be held until sufficient time has elapsed to permit a free choice of repre- sentatives unaffected by the respondent's unfair labor practices. We shall, ,it the time we specify the date on which the election is to be held, also specify the date on the basis of which eligibility to vote in the election shall be determined. 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. Local 1233 of United Electrical Radio and Machine Workers of America, C. 1. 0., and Employees Association of the American Machine 3 See Matter of Armour cE Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 235, 10 N . L. R. B. 912. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Foundry Company are labor organizations within the meaning of Section 2 (5) of the Act. 2. 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 unfair labor practices within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices, are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 4. The respondent has not engaged in unfair labor practices within the meaning of Section 8 (2) of the Act. 5. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. 6. The hourly paid production, maintenance, receiving, and ship- ping employees, store clerks, and inspectors having no supervisory duties over other inspectors, of the respondent at Brooklyn, New York, exclusive of supervisory and clerical employees, foremen, assist- ant foremen, inspectors who direct the work of other inspectors, technicians, engineers, draftsmen, watchmen, timekeepers, and the rest-room matron, 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 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 respond- ent, American Machine and Foundry Company, Brooklyn, New York, and its officers, agents, and assigns, shall: 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights of 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 purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Immediately post in conspicuous places throughout its plant, and keep posted for a period of at least sixty (60) days from the date of posting, notices to its employees stating that it will cease and desist as aforesaid ; AMERICAN MACHINE AND FOUNDRY COMPANY 511 (b) 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 therewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (2) of the Act. 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- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for purposes of collective bar- gaining with American Machine and Foundry Company, Brooklyn, New York, an election by secret ballot shall be conducted at such time as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Second Region, acting in this matter as agent for the Board, and subject to Article III, Sec- tion 9, of said Rules and Regulations, among the hourly paid produc- tion, maintenance, receiving and shipping employees, store clerks, and inspectors having no supervisory duties over other inspectors, em- ployed in Brooklyn, New York, by American Machine and Foundry Company, Brooklyn, New York, during a pay-roll period which the Board shall in the future specify, exclusive of supervisory and clerical employees, foremen, assistant foremen, inspectors who direct the work of other inspectors, technicians, engineers, draftsmen, watch- men, timekeepers, and the rest-room matron, to determine whether they desire to be represented by Local 1233 of United Electrical Radio & Machine Workers of America, affiliated with the Committee for Industrial Organization, or by Employees Association of the Amer- ican Machine and Foundry Company, for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision, Order, and Direction of Election.