Reading Batteries, Inc.

In the Matter of READING BATTERIES, INC. and UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA, LOCAL No. 128 Cases Nos. C-865 and R-794.-Decided January 9, 1940 Battery Manufacturing Industry-Interference, Restraint, and Coercion: anti-union statements by respondent's general manager-DiscrimSbnation: charges of not sustained-Strike: sit-down-Strikers : discharge of, who par- ticipated in sit-down strike and were convicted of forcible detainer , as ter- minating employment-Unit Appropriate for Collective Bargaining : production employees, excluding executives, supervisors , foremen , clerical employees, and those having power to hire and discharge ; stipulation as to-Representatives: proof of choice : membership in union ; union's majority lost subsequent to valid discharges-Collective Bargaining : no refusal to bargain when union had majority ; bargaining after union lost 'majority not considered ; allegations of refusal to bargain dismissed-Investigation of Representatives : question concerning representation : respondent denied union's claim to majority; Board unable to determine present extent of union's membership-Employee Status: laid-off temporary employees with no subsequent expectation of employment, as terminating-Remedial Order: special form of: . preferential reemployment ordered as to one employee-Election Ordered: at time hereafter directed by the Board. Mr. Joseph F. Castiello, for the Board. Stevens d Lee, by Mr. Henry W. Lee and Mr. John H. Bertolet, of Reading, Pa., for the respondent. Mr. Saul C. Waldbaum, of Philadelphia, Pa., for the United. Mr. Willard Young Morris, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On November 1, 1937, and January 12, 1938, United Electrical, Radio and Machine Workers of America, Local No. 128, herein called the United, filed with the Regional Director for the Fourth Region (Philadelphia, Pennsylvania) charges and amended charges, respec- tively, alleging -that Reading Batteries, Inc. of Muhlenberg Town- ship, Berks County, Pennsylvania, herein called the respondent, had engaged in and was engaging in unfair labor practices affect- 19 N. L. R. B., No. 29. 249 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing commerce, within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On January 12, 1938, the United filed with the Regional Director a petition alleging that a question affecting -commerce had arisen concerning the representation of employees of the respondent and requesting an investigation and certification of representatives pur- suant to Section 9 (c) of the Act. On March 3, 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 investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On the same day, the Board, acting pursuant to Article III, Section 10 '(c) (2), and Article II, Section 37 (b), of said Rules and Regu- -lations, ordered a consolidation of the two cases. Thereafter the Board, by the Regional Director, issued its com- plaint dated April 16, 1938, copies of which were duly served upon the respondent and the United. On April 28, 1938, the Board is- sued and duly served on the respondent an amended complaint, sub- stantially similar to the original complaint. The amended complaint alleged in substance: (1) that the respondent discriminatorily ter- minated the employment of seven named employees 1 on or about October 15, 1937, William Berger on or about October 20, 1937, and Thomas Heckman on or about October 25, 1937, and at all times thereafter refused to reemploy said employees; (2) that the re- spondent on or about November 29, 1937, and at all times thereafter discriminatorily refused to reinstate Oliver Rauenzahn, Jr., Bernard Guthier, William Moyer, Paul Frederick, and Donald Oririsbee ; (3) that the respondent at various times since October 1937, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act; and (4) that, although the United had been designated by a majority of the respondent's em- ployees within an appropriate unit as their representative for the purposes of collective bargaining, the respondent on or about October 23 and 25, 1937, and at all times thereafter, refused to bargain collectively with the United as the exclusive representative of such employees. By its answer, duly filed and amended, the respondent denied having engaged in the unfair labor practices alleged in the amended complaint. Pursuant to notice, a- hearing on the . amended, complaint-: and the petition was held from April 28 to May .5,-1938, before-Joseph L. 1 Russell Gauby, Austin Gauby, Paul Adams, Francis Saul , Edward Katzenmoyer, Harold Hauck, and William Dwyer. READING BATTERIES, INCORPORATED 251 Maguire, the Trial Examiner - duly designated :by the Board. The Board and the respondent were represented by counsel and partici- pated 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 . During the course of the hearing the Trial Examiner made numerous rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On August 17, 1938, the Trial Examiner filed his Intermediate Report in which he found, that the respondent had engaged in, and was engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. He recom- mended that the respondent cease and desist from such unfair labor practices and take certain affirmative action remedial of their effect. The Trial Examiner also recommended that the amended complaint be dismissed with respect to Donald Ormsbee, alleged to have been discriminatorily denied reinstatement . Copies of the Intermediate Report were duly served upon the respondent and the United. There- after the respondent filed a brief and exceptions to the Intermediate Report. On July 25 , 1939, the respondent filed a supplemental brief and on August 3, 1939; the United filed a brief . Pursuant to notices duly served on the respondent and the United, hearings for the pur- pose of oral argument were had before the Board in Washington, D. C., on March 23 and July 25, 1939 . The respondent appeared by counsel and the United by its representative . Both parties partici- pated in the hearings. The Board has considered the exceptions to the Intermediate Report and , in so far as they are inconsistent with the findings, conclusions, and order hereinafter set forth , finds them to- be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Readiny Batteries, Inc., is a Pennsylvania corporation , havinf its principal office and only ' plant in Muhlenberg Township, Berke County, Pennsylvania . It is engaged in the manufacture and sale of wet acid-type batteries and battery parts. The principal materials used by the respondent are grid metal oxides, cases , separators, sul- phuric acid , covers, vents , compounds , stenciling paste, lacquer, and corrugated cartons. In .1937 approximately 65 per cent of the mate- rials used in the respondent 's plant were shipped into Pennsylvania from other States. During .the same year, the respondent produced 75,000 batteries valued at $250,000, approximately 56 per cent of which were shipped to point outside Pennsylvania. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America, Local No. 128, is a labor organization affiliated with the Congress of Indus- trial Organizations. It admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Prior to 1937 there was no labor organization in the respondent's plant. During the last week of September 1937, Peter Besch, field organizer for the United Electrical, Radio and Machine Workers of America, began an organizational campaign among the respond- ent's employees and among the employees of the Bowers plant, located nearby. On October 17 the United held a meeting at which an em- ployee from the Bowers plant was elected president, Edward Katzenmoyer vice president, William Berger financial secretary, and Russell Gauby treasurer. The United decided at this meeting that it represented a majority of the respondent's employees, and a deci- sion was made to attempt negotiations with the respondent. Meanwhile, union organization had come to, the attention of the respondent and on October 12 a notice was posted on the respondent's time clock, announcing a meeting to be held during the noon hour of that day. The respondent's secretary and general manager, John Turner Moore, Jr., addressed the assembled employees concerning the United and the organizational activities growing out of the mem- bership drive. Moore testified that he called the meeting because he had heard that a sit-down strike was imminent; that upon hearing of the threat- ened strike, he went immediately to Rauenzahn, an employee on the respondent's assembly line, and was told by- the -latter that a sit-down strike was, in fact, threatened.; that he, Moore, asked Rauenzahn not to resort to such tactics; and that Rauenzahn agreed that the union members would continue working until the return of Wahl, the respondent's vice president who was then out of town. Moore testified that he told the assembled employees of the threatened sit- down strike and the agreement to defer action until Wahl's return ; that he expressed his dissatisfaction with the "constant turmoil" in the plant; that he assured his employees that the respondent's officers would attempt to "straighten this whole thing out as quickly as we could"; and that he urged the employees to feel free to come to him or Wahl to discuss any grievances they might have. Rauenzahn testified that prior to October 13 there had been no threat or intention of striking and that the underlying cause of the contemplated sit-down strike was Moore's failure to live up to ' READING BATTERIES, INCORPORATED 253 the promise he made to William Berger and Edward Katzenmoyer immediately after the. speech of October 12 that he would give them the respondent's decision with respect to a requested wage increase by the end of the day. The request for such wage increase was prompted by Moore's speech, and since no other cause existed for strike action prior to the speech, we do not accept Moore's alleged reasons for calling the meeting which we find was called by the re- spondent to impede the United's membership drive. Moreover, the respondent's purpose in calling the meeting is ap- parent from the tenor of Moore's remarks to the assembled employees. His remarks at this meeting on October 12, as testified to by the Board's witnesses, may briefly be summarized as follows : Moore asked them why they wanted to join an outside union and put money into something without knowing where it went; he suggested that perhaps a desirable alternative would be to form their own union and at the end of the year.. use the money for parties; that if the. "shop went union" the respondent would have to increase the wages and therefore the prices of its products, which could only result in a loss of orders and a consequent lay-off of employees. Of nine employes who were called by the respondent to testify at the hearing, eight were questioned concerning the meeting of October 12 and the gist of Moore's remarks. Only one could recall anything that Moore said, which was to the effect that although he, Moore, believed in unions, he thought that the employees should handle their own troubles; that if they had any grievances they should see him about it personally. In view of the consistent testimony of the Board witnesses concerning Moore's speech, and the inability of all but one of the respondent's witnesses to recall anything that Moore said, we find that Moore,addressed his employees substantially as the Board witnesses testified. On October 16, 1937, Moore called a second meeting of the respond- ent's employees. Moore testified that his reason for calling the meet- ing, which was held during working hours, was to give the men "our own picture of the business that we were doing, and in what way they were sharing in that business"; that he thought it necessary to speak to them at that time because the work of the preceding week had been inferior; and that he attributed the inferior work to "the agitation that was going on." Moore, on being questioned at the hearing, explained his word "agitation" as follows : "I mean by 'agita- tion' the efforts on the part,of some of the agitators to get these men, apparently, in the union, to talk to them during working hours, and that sort of thing." On further' questioning about his word "agi- tators" Moore said that he had particular reference to Besch, Rauen- zahn, Guthier (who like Rauenzahn was employed on the assembly line), Katzenmoyer, and Berger. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Moore further testified that he told the assembled employees that if they wanted "the C. I. O. union, that we would help them get it. I said on the other hand, if they merely wanted„ somebody to con- tribute a dollar a week to, we would have a damn nice party at the end of the year." According to Moore, he explained the growth of the respondent's business stating that he felt that the' employees were sharing properly in the improvement and he warned them against careless work. We are satisfied, on the basis of Moore's own testi- mony, that the respondent called this second meeting for the purpose of further discouraging membership in the United. Our finding is strengthened by the testimony of Board witnesses to the effect that Moore, during his address, predicted a lay-off of employees if the United succeeded in enlisting the employees. In addition to the statements which we have found that Moore made to the respondent's assembled employees, similarly in private conversations he attempted to discourage membership in and activity on behalf of the United. According to the testimony of Rauenzahn and Guthier, on October 15 Moore, apparently still fearing a strike, summoned them to his office and inquired whether they intended to come to work the following Monday. He went on to say that he did not see how an "outsider" could offer the employees more than they were getting. When Rauenzahn and Guthier told Moore that they would report for work on the following Monday, Moore said : "That is fine. I think, if our fellows stick together, we have this thing licked." Moore denied making any reference to union activ- ities when he talked with these two employees. However, since we have found that Moore had already given expression to his opposi- tion to the United, we find the statements attributed to him on this occasion by Rauenzahn and Guthier to be consistent with Moore's attitude toward membership in the United. We accept the .testimony of Rauenzahn and Guthier in this regard. William Moyer, an employee in the respondent's forming room, testified that on or about October 15, he was called into Moore's office. After discussing an increase in wages, Moore inquired of Moyer as to the latter's feeling toward the United. Moyer's testimony concern- ing part of the conversation is as follows : He (Moore) made a remark to me about the unions. He says I could think he was a son of a bitch as long as I thought it to myself, but he says when I started thinking, or telling someone else, that is, when he disapproved of it, and lie said, "that is how to feel about the union" . . . I could approve the union as long as I kept quiet, but if I started circulating and going around he would have to leave me go. READING BATTERIES, INCORPORATED 255' Moore denied making any threating statements to his employees. We credit Moyer's version of the conversation. Thomas Heckman testified that Wahl asked him why he had joined the "union" and whether or not he was satisfied with the wages he was receiving, pointing out that if the "shop went union" he would be one of the first to be laid off on a seniority basis. Wahl impliedly denied making such statements. We accept Heckman's testimony as to these statements made by Wahl. Berger testified that a few days after he joined the United, Moore called him into the.office, asked him why he had joined, and stated, "If we got a union we will lose a couple of orders, and that will throw a lot of men out of work. . . ." Moore denied making the state- ment attributed to him by Berger. However, because of Moore's hostility towards and methods of opposing the United which we have already found, we accept Berger's testimony in this regard. We find that the respondent, by the activities set forth above, has interfered with, restrained, and coerced 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 and other mutual - aid and protection as guaranteed in Section 7 of the Act. B. The alleged discriminatory lay-offs The amended complaint alleges that on October 15, 1937, the re- spondent discriminatorily terminated the employment of and at all times thereafter refused to reemploy Russell Gauby, Austin Gauby, Paul Adams, Frances Saul, Edward Katzenmtoyer, Harold Hauck, and William Dwyer. At the hearing Moore and Wahl testified that Dwyer was laid off on October 18, Dwyer himself testifying that he was laid off on October 15. In view of our findings, hereinafter made, it is unnecessary to resolve the conflict. To render discussion more convenient, we shall consider Dwyer's lay-off to have occurred on October 15. The respondent contends that such lay-offs were necessary be- cause of seasonal diminution of incoming orders, which became ap- parent in September but which did not require a curtailment of production until the middle of October when a production back- log had been exhausted. The record supports, the respondent's con- tention. _ Shortly before October ,1, the;, respondent - prepared a' schedule of its employees according to their respective departmental seniority. The lay-offs were made, except as to Hauck, strictly on a basis of departmental seniority. An employee named Tessier was retained in preference to Hauck, although having less seniority. The 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent gives two reasons for this departure from its seniority policy,' neither of which is controverted : (1) Hauck's work was in- ferior, about which he had been warned at various times, even being put on a 2-week 'probationary period; and (2) Tessier was married, whereas Hauck was not. Tessier was also a member of the United. From all the evidence we find that the respondent did not termi- nate the employment of the above-named employees because of their union membership and activity. We-shall discuss the respondent's refusal to reemploy the above- named employees in subsection C (2) below, in connection with its refusal to reinstate other employees named in the complaint. William Berger' entered the respondent's employ in July 1937, doing work on the generators and at times in the shipping and re- ceiving departments. He joined the United in the latter part of September and on October 17 was elected to the office of financial secretary of the United. Berger was laid off by the respondent on October 20, 1931. The respondent advances as its principal reason for laying off Berger the lack of work which had occasioned the lay-off of the other men on October 15. It is undisputed that Berger was at the time of his lay-off the junior employee in his department. Moore and Wahl testified to deficiencies in the work and conduct of Berger, stating that their only reason for retaining him until October 20 was that they desired to complete the backlog of production. Berger, in his testimony, stated that the only time he ever received a complaint with respect to his work was on the day lie was laid off when Wahl complained to him that orders had gone out incor- rectly. Berger denied being responsible for such irregularities. In view of our finding below, .however, it is unnecessary to resolve this issue. In an attempt to establish the respondent's reason for laying him off, Berger testified that on October 18 he with other members of a union committee conferred with Moore and that Moore inquired of Besch who the newly elected officers were and wrote down their names, including Berger's name as financial secretary. Besch, who kept a diary of events, placed the conference referred, to by Berger as taking place on October 23, which was 3 days after Berger's lay-off. Hence, accepting evidence which by its nature would tend to be more. reliable, we do not find that Moore knew that Berger held an office in the United at the time of his lay-off and the lay-off of the other employees on October 15. From all the evidence we find that the respondent did not discrimi- natorily terminate Berger's employment. We shall consider the. re- spondent's refusal to reemploy Berger in subsection C (2) below. '"Thomas Heckman entered the respondent's employ on June 21, 1937. He was assigned to help Owens, a, watchman, do general clean- - READING BATTERIES, INCORPORATED - 257 ing work at night and occasionally load and unload trucks. Heckman was on his way to work in the evening of October 25 when Wahl met him. Wahl drove Heckman back home in his car and on the way told him that a sit-down strike had begun that afternoon.2 Wahl instructed Heckman not to report for work until called for. Heck- man inquired of Moore a few weeks later if lie might return to work and was told that things were still unsettled. He was not replaced. Both Moore and Wahl, at the hearing, stressed, as their reason for terminating Heckman's employment on October 25, their fear that Heckman, an old man,3 might be injured if trouble occurred as a result of the strike. They further testified that Heckman's work was not satisfactory, that it was reported to them that Heckman was drunk on one occasion. The contention was made at oral argu- ment before the Board that an reason for not wanting Heckman to work as watchman at that time was that he was a member of the United, other members of which labor organization were on strike at the respondent's plant. Whether the respondent's officers were concerned about Heckman's welfare, or the protection of their own property,4 we think they were justified in laying off Heckman as they did. We reject their con- tention that he was laid off because of improper conduct or unsatis- factory work as being inconsistent with the attitude of the respond- ent's officers toward and expressions to Heckman at the time of his lay-off. In view of the diminution in the respondent's production which followed the strike and the fact that no one was hired to replace Heckman, we do not find that the respondent discriminatorily refused to reinstate him. We find, however, that he was laid off with the understanding that he was to be later reemployed. C. The alleged refusal to bargain, the strike, and the refusals to reinstate 1. Chronology On October 23 Besch and a committee of the United conferred with Moore and Wahl.' Besch, as spokesman for the group, stated to Moore and Wahl that the United represented a majority of the respondent's employees and presented a proposed contract. Although Moore and Wahl challenged the claim that the United represented a majority of the employees, they discussed the proposed contract and asked to be permitted to submit it to the respondent's directors and stockholders. 2 The strike is more fully discussed below. 3 At the time of the hearing Heckman was 60 years. old. 4 See Matter of United States Stamping Company and Enamel Workers Union No. 18650, 5 N. L. R. B. 172, 186. 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 24, 1937, at a meeting of the United, a decision was reached to insist that the respondent give a written statement promis- ing to place the employees laid off on a preferential list for reinstate- ment and assure the United that there would be no lock-out during negotiations. On October 25 Besch and the United committee met with Wahl and Moore and presented the above demand, which Moore and Wahl, after conferring with counsel, refused. Rauenzahn and Guthier, upon being informed of the outcome of the conference, stopped work and began a sit-down strike. They were joined around 1: 30 p. m. by William Moyer. Later in the afternoon of the same day, Rauenzahn, Giithier, and Moyer were notified by Moore and Wahl that they were discharged and were tendered their pay in full. When asked, they refused to leave the respondent's plant. During the evening of October 25, Berger, Dwyer, Russell Gauby, Austin Gauby, and Hauck, all of whom had been laid off a few days before, entered the respondent's plant through a window, for the purpose of joining Rauenzahn, Guthier, and Moyer in the sit-down strike. As Berger came in he was knocked unconscious by the respondent's watchman, who was attempting to prevent the men from entering. Upon..regaining con- sciousness a few minutes later, Berger left the plant "with"Hauck- who had been reminded by Rauenzahn that his mother might disapprove of his participation in the sit-down strike. The six remaining strikers stayed in the plant. During the evening of October 26, a group of persons, whose identity is not disclosed by the record, came into the plant by the back door. As they entered, Rauenzahn, Dwyer, and Guthier, fearing violence and not wishing to be implicated, left the plant. The unnamed invaders chased the respondent's watchman out of the plant and in a few minutes left the plant themselves. Moyer, A. Gauby, and R. Gauby remained sitting down inside. Shortly be- fore midnight, local police came with warrants and arrested these three strikers. Warrants had also been sworn out for the other par- ticipants in the sit-down strike. Besch arranged bail for Moyer and the Gauby brothers, and the following morning brought" the five other sit-down strikers to the police authorities as he had promised. The arrests were made on charges of forcible entry and forcible detainer, except as to Berger, Moyer, Rauenzahn, and Guthier, who were also "charged with assault and battery." The strike continued, by peaceful picketing, until the latter part of November 1937. During the month of November several conferences were held between representatives of the respondent, the United, the" Board, 6 The charges were subsequently dropped as to Moyer, on representations by him that .he could obtain a promised job outside Pennsylvania. The remaining seven participants in the sit-down strike were convicted for forcible detainer only. At oral argument, counsel for the United stated that all sentences had been suspended. READING BATTERIES, INCORPORATED 259 and the United States Department of Labor. Throughout these con- ferences the respondent consistently denied that the United repre- sented a majority of its employees. In a letter dated December 22, 1937, the respondent stated that it did "not see the need of any further negotiations with the Union." There were no further conferences between the respondent and the United. 2. The refusals to reinstate The amended complaint alleges that the respondent on and since November 29, 1937, discriminatorily refused to reinstate Oliver Rauenzahn, Bernard, Guthier, William Moyer, Paul Frederick, and Donald Ormsbee. We have already discussed the participation in the sit-down strike by Rauenzahn, Guthier, and Moyer. Following the strike they ap- plied for reinstatement, but the respondent. refused to reinstate them. Under the circumstances related above we do not find that the respondent's refusal constituted an unfair labor practice. Paul Frederick quit work on October 25, 1937, and joined the strike. He participated in the picket line for a while and then found work elsewhere. He 'did not ask for reinstatement until the hearing. Under such circumstances, we find that the respondent did.not .dis- criminatorily refuse to reinstate him. Donald Ormsbee did not appear at the hearing to testify. Moore testified that Ormsbee never reported for work after October 23', 1937; that some 2 months before the hearing, he, Moore, had telephoned Ormsbee and offered him work; and that Ormsbee failed to report for work the following Monday, although he had so promised. We accept Moore's testimony in this regard. We find that the respond- ent did not discriminatorily refuse to reinstate Ormsbee. As indicated above under subsection B, the complaint alleges that the respondent laid off and thereafter refused to reemploy Russell Gauby, Austin Gauby, Paul Adams, Francis Saul, Edward Katzen- moyer, Harold Hauck, William Dwyer, and William Berger. Production in the respondent's plant reached its peak in the late summer or early fall when it customarily hires additional employees. The tenure of these employees is necessarily of indefinite duration, depending upon the amount of business which follows the production peak. Seven of the above-named employees had been hired for the first time by the respondent between June and September 1937. Only Saul had previously been employed by the respondent and he had voluntarily terminated hiS previous term of employment early in 1937. . All these employees were hired to meet the demands of the respondent's peak season. -As we have found, their lay-off on October 15-mid 20 was occasioned- by a decrease in production and did not constitute an unfair labor practice. 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Following the strike all these employees, except Adams, applied for reinstatement, at times singly and at other times in groups. On these occasions they were told by Moore or Wahl either that there Was no work available or that consideration for reemployment could not be given those who had engaged in the sit-down strike while the criminal charges arising from their participation therein were pend- ing. Adams did not apply for reinstatement but was offered rein- statement and resumed work for the respondent in January 1938. We have found that Russell and Austin Gauby, Hauck, Berger, and Dwyer participated in the sit-down. strike and were subsequently convicted, of forcible detainer as a result of their activities therein. Under the circumstances, we do not find that the respondent's refusal to consider them for reemployment constituted an unfair labor practice. There remains for consideration the refusal to reemploy Saul and Katzenmoyer. At the time of the hearing the respondent had hired only two persons who were not in its employ immediately prior to October 15, 1937. One of these, Scott Cronrath had previously been employed in the respondent's forming room fora period of about 2 years but had voluntarily left its employ with the understanding that he. could return if the venture that he was undertaking did not suc- ceed. Cronrath returned to work for the respondent in November 1937. He was placed in the forming room where he had had con- siderable experience, and where, by contrast, Katzenmoyer had only worked for approximately 2 months. The other employee, Frederick Moore, was a brother of the respondent's general manager and was hired on a temporary basis to take the place of an employee suffering from lead poisoning. Thus, it appears that the respondent had valid reasons for hiring these new employees. In any event, the record affords insufficient basis for finding that Saul and Katzenmoyer were refused reemployment because of their membership in and activity in behalf of the United. 3. The refusal to bargain a. The appropriate unit It was stipulated at the hearing that the unit appropriate for the purposes of collective bargaining should consist of all the respond- ent's production employees, exclusive of executives, supervisors, fore- men, clerical employees, and those having the right to hire and dis- charge.' We see no reason for not accepting the unit agreed upon. 6 One Samuel Merkel is employed as a checkman for all operations relating to charging, forming, and finishing of batteries . He gives orders to the men engaged in the work over which be has supervision , but works alongside of them doing the same kind of work that they do. He has no power to hire or discharge employees , and the United considers him eligible for membership . We find that Merkel is a production employee and not a supervisor. READING BATTERIES, INCORPORATED 261 We find that the production employees of the respondent, excluding executives, supervisors, foremen, clerical employees, and those having. the power to hire and discharge, constitute an appropriate unit for the purposes of collective bargaining, and that such a unit insures to the employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectu- ates the policies of the Act. ' b. Representation by the United of a majority in the appropriate unit The complaint alleges that on or about October 23 and 25, 1937., and at all times thereafter, the respondent refused to bargain collec- tively with the United as the exclusive representative of its employees in the appropriate unit. The respondent's pay-roll lists for October 23 and 25, 1937, which were introduced in evidence, contain the names of 31 employees in the appropriate unit. We must determine whether, in addition to these 31 employees, Russell and Austin Gauby, Adams, Saul, Katzen- moyer, Hauck, Dwyer, and Berger, who were laid off during the preceding 2 weeks, retained their status as employees and thus should be considered in determining the total number of employees in the appropriate unit. We have already described the fluctuations in the respondent's production, the circumstances under which the above-named em- ployees were hired and the reasons for their lay-off. The relevant inquiry is whether their temporary tenure of employment embraced a reasonable expectation of subsequent reemployment. The respond- ent has no established custom of preferentially hiring employees laid off during slack periods. The names, addresses, and telephone num- bers of such employees are recorded by the respondent, but only those employees who are considered desirable are offered reemployment when additional services are required. With the exception of Saul, all the above-named men had been hired by the respondent for the first time in 1937. With respect to Saul, the record discloses, as we have described above, that he had voluntarily left the respondent's employ early in 1937 and had been rehired for the peak season later in the year. It is significant in analyzing the respondent's employ- ment policy that Cronrath, who was reemployed in November 1937, had obtained an express promise from the respondent that he would be taken back should a venture which he had left to undertake fail. It is further, significant that the strike described above was called in part because the respondent refused to place on a preferential list for reemployment the men who were laid off on October 15 and 2O.7 'It is true that Adams was reemployed in January 1938. The record shows, however, that Wahl was under obligation to Adams ' father and that the obligation was the principal motivating factor in his reemployment . We cannot say, therefore , that Adams was reem- ployed In accordance with an established policy of rehiring former employees. 283030-41-vol. 19-18 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We conclude that Russell and Austin Gauby, Adams, Saul, Katzen- moyer, Hauck, Dwyer, and Berger did not have a reasonably definite expectancy of reemployment and that their employee status was ter- minated at the time of their respective lay-offs.8 Accordingly, on October 23 and 25, 1937, there were 31 employees in the appropriate unit. On October 23, when the United undertook the negotiations with the respondent, 16, employees in the appropriate unit were members of the United. On October 25, as we have indi- cated above, three of such members engaged in a sit-down strike and were discharged," thus reducing the number of employees in the unit to 28 and the number -represented by the United to 13. The only relevant changes in the pay roll occurred in November 1937 when Cronrath, a non-union employee, was hired, and in January 1938, when Adams, a member of the United, was reinstated. We find that on October 23 and 25, 1937, the United represented a majority of the employees in the appropriate unit and that thereafter the United lost its majority status. c. The alleged refusal to bargain On October 23, 1937, when the United requested recognition as the exclusive,bargaining agent of the'respolident's employees, the'respond- ent, as we have already indicated, questioned the United's claim to represent a majority of its employees, but asked to be permitted to submit the United's proposed contract to its directors and stockholders. On October 25, 1937, the United demanded the written assurances, referred to above, which the respondent refused to give. The sit-down strike followed immediately. We find that the respondent's action in questioning the United's majority, accompanied, as it was, by a request that, it be given time to submit the United's proposed contract to its directors and stock- holders did not constitute a refusal to bargain. On October 25, the United made demands, not that the respondent recognize it and bargain with it as exclusive bargaining representative, but that the respond- ent immediately make certain concessions. The respondent's refusal to accede to these demands was not a refusal to bargain. Since, as we have already found, the United did not represent a majority of the respondent's employees after the discharge of three of its members, it is unnecessary to consider in this respect the events subsequent to October 25, 1937. 8 Their participation in the strike subsequent .to their lay-off did not, of course, continue or revive their employee status since they could not have been considered employees whose work had ceased as a consequence of a labor dispute. Should our finding in the text be to the contrary, it is obvious that subsequent to October 25, 1937, only Saul and Katzenmoyer could have been counted as employees in the appropriate unit. Rauenzahn , Guthier, and Moyer. RE:4DING BATTEiRIES, IiiNCORPO!RATED IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE 263 The activities of the respondent set forth in Section III, A above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial rela- tion to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in certain unfair labor practices. We shall, therefore, order it to cease and desist therefrom. We have found that the respondent was justified in laying off Thomas Heckman on October 25, 1937, and that the respondent did not subsequently discriminatorily refuse to reinstate him in view of the decreased operations of the respondent's plant. However, we have also found that Heckman's lay-off was originally intended by the respondent and understood by Heckman to be temporary. In view of the respondent's unfair labor practices as set forth in Section III, A above, there is grave danger that. the .respondent will not reemploy Heckman even if his former or a substantially equivalent position is open. In order to effectuate the policies of the Act, we shall require the respondent to place Heckman, for whom work was not available at the time of the hearing, upon a preferential list, for employment as it arises.10 VI. THE QUESTION CONCERNING REPRESENTATION During the negotiations between the United and the respondent after October 25, and at the hearing, the respondent took the position that the United did not represent a majority of its employees. As noted above, the United represented a substantial number of the respondent's employees in October 1937 and in its petition asserted that it represented a majority of the employees. We cannot determine the extent of membership of the United at the present time. We find that a question has arisen concerning the representation of employees of the respondent. 10 Matter of American Numbering Machine Company and International Association of Machinists District #15, 10 N. L. R. B. 536; Matter of American Manufacturing Concern and Local No. 6, Organized Furniture Workers, 7 N. L. R. B. 753; Matter of Benjamin Levine, doing business under the name and style of Estellite Fixtures Company and International Brotherhood of Electrical Workers Local Union No. 438, 6 N. L. R. B. 400. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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. VIII. THE DETERMINATION OF REPRESENTATIVES We find that the question which has arisen concerning the repre- sentation of employees of the respondent can best be resolved by means of an election by secret ballot. Since the respondent has, by engaging in various unfair labor practices, interfered with the exercise by its employees of the rights guaranteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of infor- mation from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful acts. We shall, at the time we specify the date on which the elec- tion is to be held, also specify the date on the basis of which eligi- bility 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. United Electrical, Radio and Machine Workers of America, Local No. 128, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging 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 (3) of the Act. 5. The respondent has not engaged 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 Reading Batteries, Inc., Muhlenberg Town- READING BATTERIES, INCORPORATED 265 ship, Berks County, Pennsylvania, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 7. The production employees of the respondent, excluding execu- tives, supervisors, foremen, clerical employees, and those having the power to hire and discharge, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9. (b) of the National Labor Relations 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 re- spondent, Reading Batteries, Inc., and its officers, agents, successors, and assigns shall: 1. Cease and desist from in any manner interfering with, restrain- ing, 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 en- gage in concerted activities for the purpose of collective bargaining and other mutual aid and protection. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Place Thomas Heckman on a preferential list in the inanner set forth in the section entitled "The remedy" above, and thereafter, in. said manner, offer him employment as it becomes available ; (b) Post immediately in conspicuous places throughout its plant and maintain for a period of at least sixty (60) consecutive days, notices stating that the respondent will cease and desist in the manner aforesaid; (c) Notify the Regional Director for the Fourth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent dis- criminated in regard to the hire and tenure of employment of Russell Gauby, Austin Gauby, Paul Adams, Francis Saul, Edward Katzen- moyer, Harold Hauck, Wiliam Dwyer, William Berger, Thomas Heckman, Oliver Rauenzahn, Jr., Bernard Guthier, William Moyer, Paul Frederick, and Donald Ormsbee. IT IS FURTHER ORDERED that the complaint, as amended, be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices, within the meaning of Section 8 (5) of the National Labor Relations Act. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Re- lations 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, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Reading Batteries , Inc., Muhlenberg Township , Berks County, Pennsylvania, 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 Fourth Region , acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regulations, among the production employees of Reading Batteries , Inc., employed by said company during the pay-roll period which we shall in the future specify, excluding executives , supervisors, foremen, clerical employees, and those having the power to hire and discharge, to determine whether or not they desire to be represented by United Electrical, Radio and Machine Workers of America , Local No. 128,. affiliated with the Congress of Industrial Organizations , for the purposes of collective bargaining.