Ralston Purina Co.

In the Matter of RALSTON PURINA COMPANY and FLouR, FEED AND CEREAL WORKERS' FEDERAL UNION No. 19184 Cases Nos. C-1457 aind R-1553.-Decided June 12, 1940 Animal Foods Industry-Interference, Restraint, and Coercion: anti-union <tatements by foremen-Settlement: of 8 (2) charges given effect where re- spondent not found to have engaged thereafter in unfair labor practices with respect thereto-Company-Dominated Union: charges of, dismissed-Investiga- tion of Representatives: controversy concerning representation of employees : rival unions ; refusal to recognize petitioning union ; prior grant of exclusive recognition to competing labor organization-Unit Appropriate for Collective Bargaining: all hourly paid mill •employees, including millwrights and main- tenance employees, but excluding supervisory employees, watchmen, chemists, laboratory workers, and the office force-Election Ordered: at such time in future .as Board may direct. Mr. Edward D._ Flaherty, for the Board. Kenefick, Cooke, Mitchell, Bass & Letchworth, by Mr. Lyman M. Bass and Mr. Lawrence R. Goodyear, of Buffalo, N. Y., for the Respondent. Mr. Daniel B. Shortal, of Buffalo, N. Y., for the Federal. Mr. Vincent T. Ray, of Buffalo, N. Y., for the Association. Mr. Herbert B. Galton, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On March 7, 1939, Flour, Feed and Cereal Workers' Federal Union No. 19184,1 herein called the Federal, filed with the Regional Director for the Third Region (Buffalo, New York) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Ralston Purina Company, herein called the respond- ent, at its plant in'Buffalo, New York, and requesting an investiga- ' The formal - papers were amended at the hearing to designate the Federal as stated herein. 24 N. L. R. B., No. 62. 625 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On March 24 and June 6, 1939, the Federal duly filed with the Re- gional Director charges and amended charges alleging that the respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce, within the-meaning of the Act. On August 2, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the A.ct, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article III, Section 10 (c) (2), and Article II, Section 36 (b), of said Rules and Regulations , further ordered that the representation and complaint cases be consolidated for the purposes of hearing and for all other purposes. On August 12 and 31, 1939, the Federal filed further amended charges with the Regional Director. Upon the charges and amended charges, the Board, by the Regional Director, issued its complaint, dated August 31, 1939, against the respondent, alleging that the re- spondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. Copies of the complaint were duly served upon the respondent, the Federal, and Purina Labor Or- ganization, herein called the Association. With respect to the unfair labor practices, the complaint alleged in substance that from about July 23, 1937, to and including the date of the complaint, the respondent (1) dominated, supported , and inter- fered with the administration of the Association; ( 2) terminated the employment of John Sprada on or about March 22, 1938, and Leonard Rybarczyk on or about November 11, 1938, and thereafter refused to reemploy them because of their membership in the Federal ; and (3) by the foregoing and other specified acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On September 16, 1939, the Association filed with the Regional Director a motion to intervene in the proceedings. The Regional Director granted this motion, limiting the intervention to matters directly affecting the Association. The respondent filed with the Regional Director a motion for a bill of particulars . The respondent and the Association thereafter filed their answers to the complaint denying that the respondent had engaged in the alleged unfair labor practices. The respondent, in its answer, asserted that the allegations of the complaint referring to events prior to., July 20, 1937, "have been previously considered adjudicated and settled" by the Board and the RALSTON PURINA COMPANY 627 Regional Director, "and its orders fully complied with, and in each and all particulars are res adjudicata." Pursuant to notice duly served upon the respondent, the Federal, and the Association, a hearing was held at Buffalo, New York, from October 2 to 12, 1939, before Webster Powell, the Trial Examiner duly designated by the Board. The Board, the respondent, the Federal, and the Association were represented by counsel and 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 inception of the hearing, the Trial Examiner denied the respondent's motion for a bill of particulars. At the conclusion of the Board's case and at the end of the hearing, both the respondent and the Association moved to dismiss the com- plaint, upon which motions the Trial Examiner reserved ruling and denied them in his Intermediate Report, thereafter filed. The Trial Examiner granted the Board's motion to dismiss the allegations of the complaint as to John Sprada and Leonard Rybarczyk. During the course of the hearing, the Trial Examiner made several rulings on other 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 committed. The rulings are hereby affirmed. Following the hearing, the respondent and the Association filed briefs with the Trial Examiner. On December 29, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the respondent, the Federal, and the Association. In his Intermediate Report, the Trial Examiner found that the respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act and recommended that the respondent cease and desist therefrom and, affirmatively, withdraw all recognition from and completely dis- establish the Association as the collective bargaining representative of its employees. On January 29, 1940, the respondent and the Association filed ex- ceptions to the Intermediate Report. Pursuant to leave granted by the Board to all parties, the respondent and the Association filed briefs with the Board. On April 4, 1940, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The respondent, the Federal, and the Association were represented by counsel and participated therein. On April 30, 1940, the Association filed with the Board a petition for leave to offer in evidence a copy of a.card authorizing the Association .to represent the signer for col- lective bargaining and a list of employees who signed such cards, in order that the Association's name might be placed upon the ballot 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in any election that the Board might subsequently order.. Since the record as made at the hearing is complete with respect to the status of the Association, the petition is hereby denied. The Board has con- sidered the exceptions of the respondent and the Association and, save as they are consistent with the-findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Ralston Purina Company, the respondent, is a Missouri corporation having its principal office and place of business at St. Louis, Missouri. It is engaged in the manufacture, sale, and distribution of animal chows, animal sanitary products, wheat, corn, and oat cereals. The respondent maintains and operates plants and branches throughout the United States and in Canada. The respondent manufactures at its Buffalo, New York, plant, which is the only plant involved in the instant proceeding, animal chows, wheat, corn, and oat cereals for animal consumption. The raw mate- rials used in the manufacture of these products include grains, oils, molasses, yeast, and animal sanitation materials. During the fiscal year ending September 30, 1939, the respondent purchased for its Buffalo, New York, plant raw materials valued at approximately $5,950,000, of which about 70 per cent were purchased outside the State of New York. During the same fiscal year, the value of the products manufactured and distributed by the respondent had a value' of ap- proximately $7,500,000, of which about 75 per cent were shipped to points outside the State of New York. The respondent employs at its Buffalo, New York, mill, approxi- mately 190 employees, of whom about 173 are engaged in production and maintenance work. H. THE ORGANIZATIONS INVOLVED Flour, Feed and Cereal Workers' Federal Union No. 19184 is a labor organization affiliated with the American Federation of Labor, admitting to its membership employees of the respondent. Purina Labor Organization 2 is an unaffiliated labor organization admitting to its membership "any mill worker" of the respondent, excluding employees "who hold a foreman or office position." 2 Formerly known as Purina Feedcraft Association. RALSTON PURINA COMPANY 629 III. THE UNFAIR LABOR PRACTICES A. Alleged domination and interference with the administration of the Association 1. Events prior to July 23, 1937 The Federal started its organizational drive in the respondent's Buffalo, New York, plant in April 1937. On May 19, 1937, the Fed- eral filed charges with the Regional Director alleging that the re-' spondent was dominating and interfering with the administration of the Association and contributing support to it. On July 19, 1937, after representatives of the Federal, the Association, and the respond= ent had conferred with the Regional Director, Lloyd Hedrick, man- ager of the respondent's plant, sent ' the following letter to the Association, in care of Oscar Hay, president : GENTLEMEN : At the recent conference had between Mr. Henry J. Winters, Regional Director of the National Labor Relations Board, Mr. Oscar Hay, President of your Association, with his adviser Mr. Edward Murray, Mr. Lloyd Hedrick, Manager of the Buffalo Branch of Ralston Purina Company and its attorney Mr. Bass, the Regional Director questioned the legal propriety of the half-hour payments to the members of your Association for its regular monthly meetings and for expenses contributed to you for the use of stenographic services, time and materials for the publication entitled "Feedcraft Facts", as well as the furnish- ing of the Company's property without charge to you for these meetings. To obviate any charge of impropriety or illegality that the Company is in any way seeking to dominate or interfere with the formation or administration of your Organization or is con- tributing financial or other support to it, the Company herewith formally confirms its advices to you that it will not hereafter pay any expenses for the above-mentioned half-hour's time or furnish any of its property for the use of the monthly or any other meet- ings of your Association and will not permit at its expense the use of stenographic service, time and materials for the publication entitled "Feedcraft Facts" nor will it otherwise, or in any way, contribute financial or other support. to your Association either directly or indirectly. Our Company desires to fully comply with the law and assumes that the attitude of the Association will be the same. The Management has never interfered, nor will it in the future interfere, in the election of your officers, the conduct of your meet- ings or the subjects that you have brought up, or may bring up, 283035-42-vol. 24-41 630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from time to time with the Management for the purpose of col- lective bargaining relating to wages, hours and working condi- tions, or the right to collectively bargain with it by any or all of its employees or their properly accredited representatives with reference to hours, wages and working conditions. Kindly bring this communication at once to the attention of your officers and members. The respondent sent a copy of this letter to the Regional Director and stated that it had "desisted from the acts set forth in the letter and will not continue any of such acts or practices in the future." The Federal was satisfied with this letter and withdrew its charges on July 23, 1937. Thereafter, the activity of the Federal in the plant subsided, not to be revived until January 1939. 2. Events subsequent to July 23, 1937 The day following the receipt of Lloyd Hedrick's letter, Hay called the Association representatives together and reported to them the substance of the July 19 letter. He thereafter posted on the bulletin board in the mill the following typewritten memorandum : PFA [Association] Okayed by Labor Relations Board : Several weeks ago the Flour, Feed, and Cereal Workers Union, Local 19184, filed a complaint with the Labor Relations Board that the Purina Feedcraft, Association was a company controlled and dominated union, and as such should be restrained from oper- ation under the Wagner Labor Law. Mr. Winters, head of the regional Board, held an informal hearing in the Board office at which Mr. Lloyd Hedrick and his attorney, Mr. Bass, Ed Murray and myself were present. Mr. Winters opened the hearing by the reading of the complaint which was denied. He then asked for a recital of the histrory I sic] . of PFA. Ed Murray, being one of the founders of the organization told of its beginning and of its desire to further the interests of its members through organization and by coop- eration and understanding with the management. He told how for the time being it had been unnecessary to charge dues be- cause meeting [sic] were held at the plant and Feedcraft Facts were mimeographed by the office staff. This was done as a con- tractual obligation of the Ralston Purina Company to the Purina Feedcraft Association in consideration of the Association's promise to cooperate with the company on matters concerning wages, laws and working conditions to the best of its ability, and as set forth in writing in our annual contract. I then told of all RALSTON PURINA COMPANY 631 the advantages of a self-governed group in our mill, of our cor- dial relationship with the management, and of the achievements of PFA in bettering wages, hours, and working conditions of its members. Duly impressed by these facts and in addition, by the vigorous denial that the company had ever given, donated or contributed any sum of money or gift to any member of the Association, Mr. Winters remarked on the good job done by Feedcraft in these troublesome times and discovered the complaint as groundless. However, he held that meetings on company time and prop- erty, and publication of Feedcraft Facts by them, might, in the lack of a clear interpretation of the Wagner Labor Law, be construed as a technical violation, and advised us that to be on the safe side of the law, PFA should rewrite its constitution to allow for the payment of dues, publish Feedcraft Facts at its own expense and hold its meetings away from the plant. Acting on this advice, I have consulted Mr. Gibson Gardner of the law firm of Ray, Gardner & Treble, 514 M & T Building. As a result, Mr. Ray is handling the re-drafting of the constitu- tion and Mr. Gardner is looking after the re-drawing of the contract to take advantage of the clean slate given PFA by the Labor Board. Very shortly we will present the newly drafted constitution for ratification and also request approval of the new contract being prepared by Mr. Gardner as a result of Mr. Winter's sound advice. Thus, exactly three years following its organization, The Purina Feedcraft, [sic] Association has passed through the last test of suitability to the purpose of providing self government for its members, and has been found to supply every service that can be offered, better than any other organization could possibly do it. I thank each member for his strong support and ask that it be continued. (Signed) OSCAR HAY. The Trial Examiner found that "There was no showing that the Board had either `discovered' the complaint against the Association to be `groundless' or had given the Association a `clean slate' as Hay claimed.... '' There was no showing, on the other hand, that the memorandum misquoted the Regional Director or inaccurately inter- preted the statements made at the conference. Thereafter James Hedrick, superintendent of the plant, called a/ meeting of the foremen and conveyed to them the substance of tho July 19 letter. He told them "that we should not become involvd in any discussion with any employee as to the merits of the Flour and 632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cereal Workers' Union as against the P. L. O. [Association]. Nor could they even give advice if a man asked for it . . . I told them that our interests were only that the men regardless of their affiliation, should do their work and receive fair treatment . . ." Early in August 1937, at another meeting of the foremen, Lloyd Hedrick "read the entire letter [of July 19] to every. man there, so that they had a very clear and definite understanding, and furthermore, I laid down the law at that meeting that every detail of that letter was to be observed." He further instructed "that there would be no posting of bulletins of any kind for either organization." On December 29, 1936, the Association was recognized by the respondent as the collective bargaining agent of "all the mill em- ployees" who were members of the Association. On August 17, 1937, the respondent met with the Association representatives. The min- utes of that meeting state that "Oscar [Hay] asked where Lee Ken- nedy belonged to office or to mill and whether or not be could belong to P. F. A. [Association]. Mr. [Lloyd] Hedrick explained he belonged to mill, therefore he could belong to P. F. A." The Trial Examiner found that this was clear evidence that the respondent continued to interfere in the affairs of the Association. The respond- ent in its brief contends that Hay sought only to ascertain whether Lee Kennedy was covered by the contract between the Association and the respondent. The respondent's pay roll for September 27, 1939, lists another "Kennedy" (W. R. Kennedy) and it argues that the identity in name of these employees raised a doubt with respect to the duties of each at the time of Hay's inquiry. Under the circum- stances, we do not believe that this isolated inquiry which appears in a minute book listing numerous meetings between the respondent and the Association from August 1937 to September 1939, constitutes evidence of the respondent's interference with the Association. Following the advice of the Regional Director as contained in the memorandum, the Association secured the services of an attorney and proceeded to draft a constitution, which was adopted at a meeting of the Association on September 22, 1937. The constitution, inter alia, provided for 25-cent monthly dues, a representative executive board consisting of 3 officers and 6 departmental representatives, and a mechanism for the settlement of grievances. It also provided that notices of annual and special meetings should be posted on the bulletin board in the plant at least 10 and not-more than 20 days before the time appointed for the meeting, and that proposed amendments should be posted on the bulletin board in the plant at least 10 days before the date of the meeting at which the amendment was to be considered. On September 16, 1937, the Association representatives met with the management to discuss a contract for, the; ensuing year. Accord- RALSTON PURINA COMPANY 633 ing to the minutes of this meeting, Lloyd Hedrick asked whether the respondent had a legal right to contract with the Association. Hay replied that the Association "had a majority, which could be proved by record of paid-up dues." Shortly thereafter the Association sub= mitted to the respondent authorization cards of a majority of the employees .3 On November 1, 1937, the respondent entered into an exclusive bargaining contract with the Association, recognizing it as the bargaining representative of all the employees in the plant, except employees having the power to hire and discharge, foremen, watch- men, and the office force. After checking authorization cards again submitted by the Association, the respondent on November 1, 1938, re- newed its contract with the Association for an additional year with the provision that the contract could be renewed upon the consent of both parties.4 There is some evidence that the Association used company property for the purpose of transacting union business. About January 1938, Hay requested permission from James Hedrick to conduct an Associ- ation election on company property. Although such permission was denied, nevertheless the Association conducted a nominating election for officers and representatives on the respondent's property. There- after, the election was held on the respondent's property "right out- side of the locker door" and the employees voted as they left work. During the election, a sheet of paper containing the names of the various candidates appeared on the respondent's bulletin board. On January 31, 1938, the results of the election were posted on the bulletin board and remained there for about 2 weeks. On January 10, 1939, the Association held its annual election outside the plant. As the employees in the elevator failed to appear at the election because they were working, it was decided at the election that these men should be permitted to vote. Daniel Martone, the Asso- ciation secretary, gave Richard Brown, an employee, about 10 or 12 ballots and told him to secure the votes of the employees in the ele- vator. Martone told Brown that it was permissible to distribute the ballots during working hours. Brown went through the six floors of the elevator and secured the votes of six employees while they were working. At one time Brown passed about 50 feet from John Lyle, foreman of that department. Lyle testified that he did not see Brown during this time. 8 A majority of these cards were signed in 1934 and authorized the Association to represent the signers under Section 7 (a) of the National Industrial Recovery Act. The record does not disclose that the Association offered or the respondent requested proof that the employees who had signed such cards were paid -up members of the Association. It appears from the testimony of Hay that in fact only 51 employees had paid their dues. It should be noted, however, that no provision for the payment of dues to the Association existed prior to September 1937, although dues were collected in August 1937. 4 The record does not disclose whether or not the proof submitted by the Association consisted of the same cards that had been submitted in 1937. 634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the early part of 1938, the Association devised a method of raising money, which it called a "Grand Drawing." Tickets for the Grand Drawings were sold by members of the Association to employees and to other individuals. Part of the proceeds was awarded to the individuals holding the winning tickets and the remainder to the Association. Grand Drawings were held on March 23, 1938, December 1, 1938, and July 15, 1939. Because the Grand Drawings and on one occasion a card party had proved successful methods of raising money, the Association discontinued the collection of dues on August 1, 1938. Some tickets were sold inside the plant. Lloyd Hedrick purchased a book of tickets for the first Grand Drawing and paid "between a dollar and a dollar and a quarter" for it out of his personal funds. Two brief notices relating to the Grand Drawings appeared in the "Safety Guard," a weekly publication devoted to safety work which is printed by the respondent. In April 1939, after the Association resumed its collection of dues, some dues were collected in the respondent's locker room during the lunch hour. Hay appointed William Gray, an employee in the bull gang,5 to collect dues. About the first part of May 1939, Gray asked Frank Christen, an employee who had charge of the bull gang during the absence of the head of the bull gang, for time off to collect dues for the Association. Christen asked Gray if he had any authority to take time off, and Gray answered that Hay "has said Jim [Hedrick] said it was okay." Gray thereafter .left work and collected dues for about an hour during working hours. Hay admitted that he made such a statement to Gray but testified that he had not received such permission from James Hedrick. James Hedrick testified that he had not given Hay such permission. The Trial Examiner found that "regardless of whether or not James Hedrick gave permission to Hay, Gray collected dues on company time and property with the permission of acting supervisor Christen." On the facts as found by the Trial Examiner, however, and under the circumstances, we do not believe that the respondent is chargeable with Christen's action herein. The Association, as described above, customarily posted on the bulletin board notices relating to its affairs. In February 1939, shortly after the Federal had resumed its activities, a Federal officer asked Lloyd Hedrick for permission to post notices on the bulletin board. Lloyd Hedrick replied that no notices of any organization could be posted except the minutes relating to the bargaining meetings between the Association and the respondent. In 1939 the Federal and the respondent agreed that neither the Federal nor the Association would be permitted to solicit members on company property. From May until July 1939, however, Martone, . 5 The bull gang is "the crew of men who pick up the odds and ends off of the floor." RALSTON PURINA COMPANY 635 secretary of the Association, had several talks during working hours with Richard Jacobs, an employee in the molasses department, con- cerning Jacobs' delinquent dues. 3. Conclusions with respect to the Association The Trial Examiner found, substantially on the basis of the facts set forth above, that the respondent continued its domination of and interference with the administration of the Association and con- tinued to accord support to it. He found that although the respondent ceased the activities specifically set forth in its letter of July 19, 1937, to the Association, thereafter it performed and permitted the per- formance of other activities in support of the Association and failed to remove "the taint of its previous connection with the Association." We do not agree with the conclusions of the Trial Examiner. As we have noted above, both the Regional Director and the Fed- eral approved the letter of July 19, 1937, in which the respondent advised the Association that it was discontinuing certain forms of support. All the parties were satisfied with the settlement thus ef- fected and the Federal withdrew its charge that the respondent had dominated the administration of the Association. Presumably the Regional Director and the Federal believed that the respondent's undertaking, as enunciated in the letter, removed the respondent's "taint of its previous connection with the Association." We do not pass upon the efficacy of the settlement in removing the effects of the unfair labor practices alleged to have been committed prior to July , 23, 1937. It is plain from the record that the respondent was not required under the settlement to disestablish the Association as a collective bargaining representative of its employees or otherwise to refrain from treating with it as a labor organization. We have held that effective administration of the Act requires that we give full effect to a settlement or compromise of unfair labor practice charges which the Regional Director or other agent of the Board has ap- proved 6 unless the employer is shown to have continued to engage in the unfair labor practices thus settled or compromised.' We shall, "See Matter of Corn Products Refining Company and United Cannery, Agricultural, Packing & Allied Workers (f America, Local 169, 22 N. L. It. B. 824; Matter of J. Dunitz, doing business under the firm name and style of Gloray Knitting Mills and Joint Council of Knit Goods Workers Union, International Ladies Garment Workers Union, Local #155, 19 N. L. R. B. 712 ; Matter of Wickwire Brothers and Amalqamated Ass'n of Iron, Steel & Tin Workers of North America, Lodge #1985, through S. W. O. C., afjlli- ated with the C. I. 0., 16 N. L. R. B. 316; Matter of Shenandoah-Dives Mining Com- pany and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. It. B. 885. ' See Matter of Chambers Corporation and Allied Stove Mounters and Stove Processors International Union, Local No. 36 (A. P. of L.), 21 N. L. It. B. 808; Matter of Harry A. Halff, doing business as The Half Manufacturing Company and International Ladies' Garment Workers' Union, 16 N. L. R. B. 667; Matter of Ingram Manufac- turing Company and Textile Workers Organizing Committee, 5 N. L. R. B. 908. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therefore, advert to a consideration of the respondent's activities subsequent to July 23, 1937. We have observed that the memorandum posted by the Association was not shown to have been an unreasonable interpretation of the conference which led to the settlement of the charges filed by the Federal. We have also concluded that the isolated item in the Asso- ciation minute book with respect to the status of Lee Kennedy finds reasonable explanation in the record and under the circumstances present herein does not support a finding of employer interference with the administration of the Association. Similarly, in the absence of a showing that the respondent, or anyone on its behalf, dictated or ratified the action of the Association in making provision in its con- stitution for the use of the respondent's bulletin board, we do not conclude that the provision itself constitutes evidence of the respond- ent's support. We have held that an employer's recognition of a labor organization as the exclusive representative of his employees constitutes unlawful support where such labor organization presents but flimsy or no evi- dence of its majority status and where the employer has reason to believe that such status does not exist.' It must be noted in the instant case, however, that for one and one-half years after the settlement of the earlier charges, the Federal withdrew from the respondent's plant and made no claim thereafter until 1939 to represent a majority of the respondent's employees. Under these circumstances, in the absence of a showing that the Association did not represent a majority of the employees, we cannot find that the respondent acted precipitately or unreasonably in accepting the proof of membership offered by the Association in 1937 and 1938 and in bargaining collectively with it.,' The Trial Examiner found that the Association was permitted in 1938 to conduct an election of officers on company property, to use the respondent's bulletin board, to sell tickets for the "Grand Drawings" on company property, and otherwise to promote the Association dur- ing working hours. Having discredited the respondent's denials that it was aware of such activities, the Trial Examiner concluded that for these indicia of support to the Association the respondent is respon- sible. We believe, however, that other, undisputed facts in the record require consideration in the evaluation of the Trial Examiner's con- 8 See Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1538, 6 N. L. R. B. 654, 102 F. (2d) 383 (C. C. A. 7), 106 F. (2d) 454 (C. C. A. 7), enf'd N. L. R. B. v. The Falk Corporation, 308 U. S. 453; Matter of Blossom Products Corporation and International Ladies' Garment Work- ers' Union, 20 N. L. It. B. 335; Matter of Arma Engineering Company and Committee for Industrial Organization, 14 N. L. It. B. 736; Matter of Continental Oil Company and Oil Workers International Union, 12 N. L. R. B. 789. See Matter of Rosedale Knitting Company and Rosedale Employees Association and American Federation of Hosiery Workers, 20 N. L. R. B. 326. RALSTON PURINA COMPANY 637 clusions. The respondent employs about 173 production and mainte- nance employees in a plant over a half block wide, one block deep, and in some places six stories high. Acting for the management and exer- cising supervision over these employees scattered throughout the plant are but seven foremen. It should be noted, as described above, that when Brown distributed ballots in the six floors of the elevator during the January 1939 election, the testimony shows that only one foreman was within his observation, and at a distance of 50 feet from him. In the absence of further evidence we do not conclude that the foreman had or should have had knowledge of his activity. Similarly it should be noted that the 1938 election was conducted on company property admittedly after the respondent's superintendent had expressly refused to grant such permission. The use of company property for the conduct of union affairs may be proscribed by the Act whether or not there has been a showing that the employer had knowledge of such use where the circumstances plainly raise the inference that the employer should have had knowl- edge and especially where a similar use of company property is denied a rival union. We are of the opinion that such circumstances are not present in the instant case. Moreover, the record is clear that the Federal, to the limited extent that it maintained an interest in enlisting the respondent's employees between 1937 and 1939, sim- ilarly utilized the respondent's property. In the latter part of 1937 a member of the Federal posted on the bulletin board a notice signed, "anti-P. F. A. [Association] committee." On at least two occasions the Federal used the bulletin board to post notices relating to its activities. Although Martone, the Association secretary, sought during working hours to induce Richard Jacobs, an employee, to pay his dues to the Association, Joseph Kranski, the most active member of the Federal, freely admitted that he often "talked union" during working hours. Under the circumstances here present, we are of the opinion that the record does not support a finding that the Association, by the use of the respondent's property, was afforded privileges denied to the Federal or that the respondent's prestige was discriminatorily enlisted on behalf of the Association as against the Federal'0 On the basis of all the evidence we do not find that the respondent has dominated or interfered with the administration of the Associa- tion or contributed support to it subsequent to July 23, 1937. We shall therefore give effect to the settlement of July 23, 1937, and 10 We do not believe that Lloyd Hedrick 's purchase of tickets to a Grand Drawing in 1938 amounted to a contribution of financial or other support to the Association. The record discloses that the respondent regularly purchased advertising in the "American Labor Reporter," a newspaper published in the interest of the American Federation of Labor. 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we shall dismiss the complaint to the extent that it alleges the com- mission of unfair labor practices within the meaning of Section 8 (2) of the Act. B. Interference, restraint, and coercion Shortly after Adam Banish, an employee in the molasses depart- ment, joined the Federal in June 1939, Bert Smith, his foreman, approached him during working hours. According to the testimony of Banish, which was uncontradicted, Smith "got wind that I [Ban- ish] had joined the A. F. of L., which I did not deny, and he asked me if that was the truth, and I admitted it, and he asked me what I was going to gain by that, and I answered him that I saw where the biggest majority of the fellows are signed up, I may as well stay with them . . . He says I was making a mistake by doing that." Smith then left and entered into a conversation with Alex Bielecki, an employee who was an Association representative. About an hour and a half later, Bielecki told Banish that Smith said "that I [Ban- ish] was a damn fool for joining up, after all the breaks I got." We find that Smith made the statements attributed to him by Banish. The respondent in its brief admits that these remarks were deroga- tory to the Federal, but claims that they do not as a matter of law constitute a violation of the Act. Smith exercises supervisory au- thority over about 35 employees. It is clear that the respondent is responsible for the acts of such a supervisory employee 11 Rybka 'and Banish testified that John Lyle, a foreman, said in June or July 1939, that "if Frank Wilczak was not so active in union affairs he would get 21/2 to 5-cents more an hour." Lyle denied that he made this statement. The Trial Examiner, relying upon the testimony of Rybka, Banish, and George Wilczak, an em- ployee, found that Lyle made this statement attributed to him. Al- though George Wilczak did not testify relative to any such statement made by Lyle, we nevertheless credit the testimony of Rybka and Banish and find that Lyle made the statement attributed to him. We find that, by the foregoing remarks of Smith and Lyle, the " See Swift and Company v. N. L. R. B., 106 F. (2d) 87 (C. A. A. 10), enf'g as mod. Matter of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300.7 N. L. R B."69; N. L. R. B . v. The A . S. Abell Company, 97 F. (2d) 951 (C. C. A. 4 ), enf'g as mod . Matter of The A . S. Abell Company and International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union, No. 31, 5 N. L. R. B . 644; Matter of Jrffrrson Lake Oil Company , Incorporated and Sulphur Workers Local Union No . 2.1195 . 16 N. L. R. B. 355 . See also , International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with the International Associa- tion of Machinists, at al. v. N. L. R. B., 110 F. ( 2d) 29 ( C. A. for D. C.), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No . 459, 8 N. L. R. B. 621. RALSTON PURINA COMPANY 639 respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Joseph Kranski joined the Federal in April 1937 and became the most active organizer for the Federal in the respondent's plant. Lloyd Hedrick admitted that he "heard" that Kranski was active in Federal affairs. On December 27, 1938, Kranski was transferred from the molasses department to a job in the elevator department which paid a lower hourly rate. The respondent claims that it did not transfer another employee with less seniority than Kranski, be- cause that employee was less able to do the job. There is conflicting testimony as to whether the respondent at the time of the transfer gave Lyle instructions to "ride" Kranski, and whether Lyle actually did "ride" Kranski. The Trial Examiner, upon the testimony of Rybka, Banish, and George Wilczak, found that Lyle admitted that the respondent gave him instructions to "ride" Kranski and that he did "ride" Kranski. The Trial Examiner also concluded that Kranski was transferred to a less desirable position in the elevator department where he was subjected to continual criticism because he joined and assisted the Federal. We do not agree with the Trial Examiner's conclusions. Kranski testified that he had been previously transferred 5 times since he began work for the respondent in August 1934 and that each time he received the rate of pay according to the particular job clas- sification. In one transfer, he received a lesser rate of pay. Kranski's job in the molasses department was a temporary one. Furthermore, at the time of Kranski's transfer, the Federal was not active in the plant and had not been active since July 1937. We find that the respondent did not instruct Lyle to "ride" Kranski. We find further that the respondent did not engage in an unfair labor practice by reason of the transfer.12 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III B, 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 12 Early in 1939, Martone hung a rag doll on a pipe which was near the place of work occupied by Henry Pvzywuski, a scaler in the molasses department who was a member of the Federal. A sign, which read "union hanging," was affixed to the doll. The doll remained hanging on the pipe for about two to three hours, before Pvzywuski removed it. The foreman was present in the department during the time this incident took place. The 'Trial Examiner found that in the failure of the foreman to discipline Martone, the respondent evinced to its employees its favoritism toward the Association. In the absence of any evidence of repetition of similar instances, we place no significance upon this isolated incident and find that it did not interfere with the rights of employees under the Act. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order that it cease and desist from such prac- tices and, to effectuate the policies of the Act, we will order the respondent to post notices stating that it will not engage in the conduct from which it is ordered to cease and desist. The respondent's em- ployees will thus be assured that they may exercise the rights guaran- teed by the Act without fear of interference, restraint, or coercion. We shall dismiss the complaint in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (2) and (3) of the Act. VI. THE QUESTION CONCERNING REPRESENTATION In its petition filed on March 7, 1939, the Federal claimed that it represented a majority of the respondent's employees in an appro- priate unit and that the respondent had refused to recognize it as the collective bargaining representative of a majority of the em- ployees therein. As described above, .the respondent had granted such recognition to the Association.13 We find that a question has arisen concerning the 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 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 APPROPRIATE UNIT The Federal and the Association agree that the appropriate unit consists of all hourly paid mill employees, excluding supervisory >s At the hearing neither the respondent nor the Association asserted that the contract between these parties constituted a bar to the representation proceeding . If the contract has been renewed since November 1939, it has been renewed after March 1939 when,the Federal had asserted its claim herein and therefore cannot constitute a bar to our deter- mination of representatives . See Matter of Silvray Lighting Inc. and International Brotherhood of Electrical Workers Local Union No. 3, 18 N. L. R. B. 719. RALSTON PURINA COMPANY 641 employees,14 watchmen, and the office force. In addition the Federal desires to exclude millwrights, maintenance employees, chemists, and laboratory workers. As previously noted, in 1937 and 1938 the respondent entered into exclusive bargaining contracts with the Association, covering all employees of the respondent at its Buffalo, New York, plant, except "employees having the power to hire and discharge, foremen, watch- men and office force." Millwrights and maintenance employees were included within the terms of these contracts, and the Association bargained for them. Laboratory workers were excluded from the provisions of the contracts as office workers. We shall follow the desires of the employees as evidenced by the past bargaining history and accordingly we shall exclude laboratory workers and include millwrights and maintenance employees.15 The Federal desires to exclude chemists from the unit. The record does not reveal whether chemists are included within the meaning of the term "laboratory workers." The Association takes no position in this matter. Chemists have little in common with production and maintenance employees in respect to rates of pay, hours, or other conditions of employment. We shall exclude chemists from the unit. The Federal claims that J. A. Kaznica, Edward Hoppe, and F. W. Karl are assistant foremen and should be excluded from the unit. Kaznica is a scale man in the elevator; Hoppe works in the chowder department; and Karl is a roll tender and feed tester in the mash and poultry units. Kaznica and Hoppe have acted as foremen dur- ing the vacations of their regular foremen in 1938 and 1939. Karl has not acted in the place of his foreman. The supervisory func- tions performed by Kaznica and Hoppe are largely incidental to their regular work as employees in the mill and occupy a period of ' The Union desires to exclude "supervisory " employees. The Association desires to exclude foremen and employees having the power to hire and discharge . We construe the term supervisory employees to include foremen and employees having the power to hire and discharge. u The Federal desires to exclude millwrights and maintenance employees because it claims that when its International charter would be granted in March or April 1940. Its jurisdiction would be defined and the craftsmen would be turned over to the craft unions. In organizing , however, the Federal has solicited the respondent 's maintenance em- ployees. Although at the time of the hearing, none of the respondent 's maintenance employees or millrights were members of the Federal , the Federal states that it would represent any millwrights or maintenance employees who become members. A member of the United Brotherhood of Carpenters and Joiners of America testified at the hearing that his union claimed jurisdiction over the millwrights and maintenance employees, although he did not know whether any of the respondent's maintenance employees or millwrights were members . Such evidence is insufficient to establish the propriety of excluding millwrights and maintenance employees from the unit. See Matter of The Barre Wool Combing Company, Limited and Federal Labor Union No. 21928, Textile Workers, affiliated with the American Federation of Labor, 19 N. L. R. B. 1008; Matter of Selby Shoe Company, Portsmouth, Ohio and Portsmouth Printing Pressmen cE Assistants' Union No. 296 of the I. P. P. & A. U. of N. A., 15 N. L. R. B. 489. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about one or two weeks per year. Karl has not performed any supervisory functions . We shall include Kaznica, Hoppe, and Karl in the unit. We find that all hourly paid mill employees of the respondent at its Buffalo , New York, plant, including millwrights and maintenance employees but excluding supervisory employees , watchmen, chemists,. laboratory workers, and the office force, 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 to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES Both the Federal and the Association claim to represent a majority of the respondent's employees in the appropriate unit, and both sub- mitted evidence in support of their claims. In view of the conflicting claims, we find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. Since the respondent has, by engaging in 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 of the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of rep- resentatives , unaffected by the respondent's unlawful acts. We shall, at 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. Flour, Feed and Cereal Workers' Federal Union No. 19184, and Purina Labor Organization , are labor organizations , within the mean- ing of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the re- spondent 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 (2) and (3) of the Act. RALSTON PURINA COMPANY 643 5. 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. 6. All hourly paid mill employees of the respondent at its Buffalo, New York, plant, including millwrights and maintenance employees but excluding supervisory employees, watchmen, chemists , laboratory workers, and the office force, 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 respondent, Ralston Purina Company , Buffalo, New York, 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 the 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 purpose of collective bargain- ing 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) Post immediately in conspicuous places throughout its plant, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices to its employees stating that the respond- ent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order; (b) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint , in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (2) and (3) 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- tions Act, 49 Stat. 449 , pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Ralston Purina Company; Buffalo, New York, an election shall be conducted at such time as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Third Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all hourly paid mill employees including mill- wrights and maintenance employees of the respondent at its Buffalo,. New York, plant, employed by said respondent during a pay-roll period which the Board shall in the future specify, excluding super- visory employees, watchmen, chemists, laboratory workers, and the office force, to determine whether they desire to, be represented by Flour, Feed and Cereal Workers' Federal Union No. 19184, affiliated with the American Federation of Labor, or by Purina Labor Organi- zation, for the purposes of collective bargaining, or by neither.