Leland-Gifford Co.

National Labor Relations Board - Board Decisions

Aug 24, 1951

95 N.L.R.B. 1306 (N.L.R.B. 1951)

1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
LELAND-GIFFORD COMPANY. and UNITED STEELWORKERS OF AMERICA,
CIO. Case No. 1-CA-753. ' August 24, 1951 .
Decision and Order
On April 25, 1951, Trial Examiner James A. Shaw issued his Inter-
mediate Report in this proceeding, finding that the Respondent had
engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) -of the Act, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
Thereafter the Respondent filed exceptions to the Intermediate Report
and a supporting brief. '
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial. errors were committed.
The rulings are hereby affirmed. The Board has considered the In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in the 'case,' and hereby adopts the findings,3 conclu-
sions, and recommendations of the Trial Examiner with the following
additions and modifications :
The facts giving rise to the controversy in `this case are as . follows.
The Union was certified in 1943 as the bargaining representative for
all production and maintenance employees of the Respondent's
Worcester, Massachusetts, plant, excluding, among others, all "super-
visory employees with authority to hire, promote, • discharge, disci-
pline, or otherwise effect changes in the status of employees, or ef-
fectively recommend such action." 4 Since 1944, the- Union has
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[ Members Houston , Reynolds , and Styles].
' The Respondent 's request for oral arkument is hereby denied, as the record , exceptions,
and brief adequately present the issues and positions of the parties.
8 The Trial Examiner 's Intermediate Report contains certain minor misstatements which
do not affect our ultimate findings. We note the following . corrections : ( 1) James Harry
Owen Champlin worked in the automatic ( rather than the "automotive ") screw machine
department ; ( 2) Louis Robert Basilissa testified that he had been told , early in 1943,
that he was a foreman with the right to recommend hiring, and that he "took it for
granted" that he could recommend discharges at that time ; ( 3) William Desmond Lowell
entered the Respondent ' s services in 1925, not 1936 ( when he was told he was a super-
visor ) ; ( 4) James Joseph Kenney testified that he had never been told he had authority
to hire or fire ; (5 ) Daniel J. Cunningham was told that he was a foreman in either 1938
or 1939, not 1935 or 1936 ; ( 6) Carl William Hillerstrom testified that he had been told
that "he had charge of the department " and that, although he "had never been told he
had such a right," he "understood" he could "recommend firing or laying off" an employee
for "inferior work ," but had never done so; ( 7) Robert McElroy testified that he was told
he was a foreman in the electrical control department in 1940 ; he has worked in the elec-
trical maintenance department since 1944 or 1945 ; ( 8) Ernest S . Nelson testified that he
was told he was a foreman about 35 years before the hearing , not 20 , and that he had had a
man transferred about 20 years earlier. •.
'Leland- iford Company, 51 NLRB 1349.
95 NLRB No. 184.
LELAND-GIFFORD COMPANY 1307
requested information concerning the individual rates of pay, job
classifications, and rate ranges and requested various changes in the.
description of the bargaining units .5 In 1944, pursuant to an order
of the war Labor Board, the Respondent furnished the Union with
a list of job classifications and rate ranges. It was not ordered to
turn over the individual ='rate's or the names of employees working in
the various.job classifications, and did not do so. During the nego-
tiations' for the current contract, the Union again requested that the
Respondent furnish'it with a list of the jobs in the plant with their
rates and a list of the employees in the bargaining unit with their
rates of pay. In'connection with their request for a list of all em-
ployees in the bargaining unit, the Union also requested that the
Company "clarify the bargaining unit," asserting that the Company
should recognize it as the representative of those "foremen" and
"assistant foremen" who were regularly engaged in production work
in departments which contained no individuals whom the Company
classified as "employees."
At the first bargaining "conference, July 17, 1950, the Company
took no position on the Union's .request. for information but asserted
that the Board had established the bargaining unit in 1943. and had
at that time excluded the "foremen" and "assistant foremen" in ques-
tion from the bargaining unit," thereby precluding the Company
from changing the "'application of the bargaining-unit" without some
approval by the Board. The Union contended that the duties
presently performed by these individuals, not their titles, determined
whether they were in the bargaining unit, and that their duties had
changed since the original certification by the Board. At the second
conference, on July 21, 1950, the Union renewed its request for the
wage information, asserting that it needed the information in order
to bargain intelligently on wages and for the purpose of administer-
ing the agreement, particularly in view of employee complaints
concerning "inequities in the rate structure," which the Union could
not assess without the requested information. The Company ex-
pressed concern over the disruption which would occur if the em-
ployees learned the individual rates. Both parties restated their
earlier positions on the "alleged supervisors."
6 As all violations on which we base our findings occurred within the 6 months' period
preceding the filing of the charge on August 7, 1950, we find no merit in . the Respondent's
contentions that, because the controversy existed earlier , a finding of refusal to bargain
is barred by the provisions of Section 10 (b) of the Act. We also find it unnecessary to
adopt the Trial Examiner ' s explication of the relation between admissible background
evidence and proof of illicit motivation.
During the course of conducting the election , the Board agent approved the list of
eligible voters to which the parties stipulated , excluding individuals in these job
descriptions.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the next conference, on August 7, the Union renewed its request
for information concerning individual wage rates, claiming that
"there was favoritism and . . . inequities between employees" and
that the information it had requested would "do away with a lot of
talk that already existed in the shop," rather than causing, as the
Company contended, talk among the employees with a corresponding
loss of production. The Union also pointed out that other companies
furnished such information. The Union again attempted to persuade
the Company to consider those individuals whom it classified as "fore-
men and assistant foremen, but who were actually doing production
and maintenance work',' as included in the bargaining unit, pointing
out that other companies had changed the "status of foremen and
assistant foremen when their duties expired as a result of not having
anyone . . . to supervise," without getting special permission from
the National Labor Relations Board. The Union also offered to with-
draw the charge which it had filed on August 7, if the Respondent'
would join it in requesting the Board to clarify the status of these
individuals. This the Respondent refused to do. On August 9, the
Union proposed to sign a new agreement, stating to the Respondent
that it was not thereby waiving its right to proceed with the charge;
the Company agreed that the National Labor Relations Board should
determine the "status" of the alleged supervisors. On August 10, the
Company agreed to furnish the Union with wage information. The
parties signed the current contract on September 11, 1950, effective
as of August 10.
During the course of meetings held in October 1950, for the purpose
of investigating the present charges, the Union renewed its request
for the information which it had been promised in August and was
told that the data was being prepared. On November 6, 1950, the
Union told the Company that it regarded the delay in the presentation
of the information as unreasonable, demonstrating that the Company
did not intend to supply it, and threatened to file an additional charge
with the Board unless the Respondent complied by November 10, 1950.
On November 10, Francis E. Flynn, the union president, asked Andrew
L. Wilkinson, the Respondent's personnel and industrial relations
director, for the individual rates and the rate ranges. Wilkinson
offered to give him the rate ranges on the various job classifications
but said that he couldn't give him the individual rates because the
rates of the individuals were personal and confidential-"the prop-
erty of the individual alone, unless he so desired to give that infor-
mation to some one else." 7 Flynn refused to accept Wilkinson's
offer of limited information, and the Union filed an amended charge
7 The Trial Examiner erred in stating that the Respondent 's position was that all of
the information requested by the Union was the property of the individual employees.
LELAND-GIFFORD COMPANY 1309
alleging that the Respondent had refused to bargain by refusing to,
furnish the Union with payroll data concerning employees within the.
bargaining unit.
The Trial Examiner found that the Respondent violated Section
8 (a) (5) and 8 (a) (1) (1) By refusing to furnish the Union a list of
its employees, identifying them by name, their job classifications,
their hourly rates, and other pertinent wage information; and (2)
by refusing to bargain concerning the "job status" of certain indi-
viduals established by the record to be "foremen" or "assistant f ore-
men" who, at the time of the refusal to bargain concerning them, were
not supervisors within the meaning of Section.2 (11)' of the Act.
The Trial Examiner regarded these as two distinct and separable
issues. We believe, however, that by segregating the questions' in that-
manner the Trial Examiner may have broadened the issues in this
case beyond those which, on the record before us, we are called upon
to decide. We see no occasion for deciding here whether the "job
status" of the "foremen" or "assistant foremen" was a matter on which
the Respondent was obliged tb bargain with the Union. It seems
clear from the facts set forth above that the real dispute in this case
did not arise from any efforts by the Union to bargain in any; -
general fashion as to the "job status" of these individuals. It sought
information as to the individual wage rates of all employees includ-
ing those of the "foremen" and "assistant foremen" who .were regu-
larly engaged in production work in departments which contained no-
employees for them to supervise. It was denied such information
on the general ground that the Respondent'was not obligated to dis-
close such information, and, as to the "foremen" and "assistant
foremen" in question, on the added ground that such individuals were
supervisors and thus outside the bargaining unit. The issues posed
therefore are: (1) Whether the Respondent was under an obligation
to furnish the Union with a list of the individual wage rates; and
(2) if it was, whether the "foremen" and "assistant foremen" in
question were "employees" so that the obligation to disclose the indi-
vidual wage rates included them.
As to the first issue, we agree with the Trial Examiner's conclusion
that the Respondent's refusal to supply any information concerning
the individual wage rates constituted a refusal to bargain in violation
of Section 8 (a) (5) and 8 (a) (1).8 The Respondent contends that
8 The Trial Examiner erroneously stated that the refusal to supply information was
specifically alleged in the complaint as a violation of Section 8 (a) (5). However, it.
was so specified in the second amended charge, the Respondent did not request a bill
of particulars , and the matter was fully litigated . Accordingly , we find no prejudice in
proceeding upon the general 8 (a) (5) allegation of the complaint . Cf. Tower Hosiery
Mills, Inc., 81 NLRB 658, 666, enfd . 180 F . 2d 701, cert . den. 340 U. S. 811.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the cases cited by the Trial Examiner in support of this conclusion °
are inapposite, for the following reasons: (1) The Respondent did
not refuse to grant lists of employees to the union, having supplied'
the Union with general job rates, classifications, and seniority lists;
(2) here is no evidence in this case that the refusal to grant the re-
quested information impeded negotiations or the processing of griev-
ances; and (3)• the Union had bargained away the right. to obtain the
information in issue. We find no merit in these contentions.
As to the first contention, the record establishes that the Respondent
has never supplied the Union with the type of information which
the Board has considered necessary to the effective exercise of the
bargaining representative's legitimate function of representing em-
ployees in contract negotiations and of protecting its proper interest
in the manner in which an employer administers an existing con-
tract, i. e., information as to the names of the employees in the unit.
along with their individual wage rates and job classifications.- The
,fact that the Respondent supplied the Union with some information of
this general type is insufficient to satisfy its statutory obligation.',-
As to the Respondent's second contention, the record establishes
that union representatives asserted that they were concerned with
possible wage inequities, among various similar job classifications,
and it is apparent that the information requested was relevant to that
subject in connection with contract negotiations as well as the polic-
ing of the administration of any contractlz
The Respondent's contention that the Union bargained away the
right to request the individual wage data is apparently based on the
fact that the 1948 contract contained provisions requiring the disclo-
sure by the Respondent of certain information (not including that in
issue here), and a further clause which stated, "This agreement con-
tains the entire agreement between the parties and no matters shall be
considered which are covered by the written provisions stated herein."
We need not decide, as the Trial Examiner did, whether this clause
was operative during the period in' 1950 covered by the complaint
herein, for we are satisfied that, in any event, the clause in question
was not intended, and cannot be construed, as a waiver by the Union of
its right to obtain data necessary to the effective administration of a
contract.
B Cincinnati Steel Castings Company, 86 NLRB 592; The B. F. Goodrich Company,
89 NLRB 1151.
10 Aluminum Ore Company v. N. L. R. B., 131 F. 2d 485 , 487 (C. A. 7).^ enfg..39
NLRB 1286, on this point, and rejecting the contention that such information was,,
confidential , to be secured by the Union from the employees involved.
11 General Controls Co.; 88 NLRB 1341, 1342.
1' Yawman & Erbe Manufacturing Company, 89 NLRB 881; General Controls Co., supra.
We note, in this connection , that the record contains no evidence that the Respondent
ever asked for the reasons which impelled the Union to request the information in issue.'
LELAND-GIFFORD COMPANY 1311
We therefore conclude that the refusal to furnish to the Union a
list of employees, identifying them by name, with their job classifica-
tions, hourly rates, and other wage information constituted a violation,
ofSection 8 (a) (5) and8 (a) (1) of the Act.
Turning to the second issue, we also agree with the Trial Examiner's.
conclusion that certain "foremen" and "assistant foremen" were "em-
_ployees," rather than supervisors within the meaning of Section 2 (11) ,.
when the Union requested the above information concerning all em-
ployees; and that they were therefore included within the appropriate
bargaining unit, both as defined by the Board certification and in the
recognition clause of the contract,13 and included among the individuals
concerning whom the Respondent was obligated to furnish the wage
data.
The record shows that at the peak of its production during World
War II the Respondent was organized into various small departments,
62 in number, employing a total of 500 employees. At that time, at
least 1 foreman was iii charge of each department. After V-J Day, the
number of departments was reduced to about 25 or 30, and by Septem-
ber 1949, when the last layoff was made, the number of employees was
reduced to between 100 and 125. As a result of this slackening in
business and concommitant shifts in the work involved, some of the
"foremen" and "assistant foremen" were shifted to other departments
where they were employed in production work; others found them-
.selves without anyone to supervise and themselves regularly engaged
in production work.
The Trial Examiner premised his finding that such "foremen" and
"assistant foremen" were "employees" on an analysis of their functions
and duties at the time of the Union's request for the wage information
and at the time of the hearing. The Respondent,, however, contends
,that all of these individuals have been for many years, and are still,
supervisors, even though, because of the slack of work, particular
foremen may find themselves without anyone to supervise. The Re-
,sporldent asserts that the supervisory authority of, these individuals
has never been revoked and they may, with fluctuations in the Respond
vent's business, again find themselves with employees whom they will
supervise. In support of this contention the Respondent relies on- the
-Ohio .Power Company case 11 which held that the test of supervisory
status was the existence rather than the use of power of the type
specified in Section 2 (11).
The short answer to this contention is that during any period rele-
vant to our decision in this case no supervisory powers existed in'the
18 The recognition clause in the contract incorporates the language of the certification
which specified the Union as the bargaining representative of "all production and
;main ;ienance employees."
14 Ohio Power, Company v. . N. L. R. B., 176 F. 2d 385. ( C. A. 6), cert. denied, 339 U: S. 899.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
individuals involved, for not only were the alleged powers not exer-
cised, they could not be exercised. The facts relative to these individ-
uals disclosed by the record, and set out in detail in the Intermediate
Report, demonstrate conclusively that during the period in which the
Respondent denied the Union the wage data concerning the "fore-
men" and "assistant foremen" in question, these individuals could not
exercise any of the powers prescribed in Section 2 (11) of the Act,
either because they had no employees working under them as to whom
such powers might be exercised or because they were assigned to de-
partments in which no part of their duties then ,performed contem-
plated the exercise of supervisory powers. It seems clear to us that an
individual cannot be deemed to possess the powers of a supervisor so
long as his job is such that there can be no opportunity to exercise such
.Powers.'-' The "foremen" and "assistant foremen" whose status is at
issue here undoubtedly possessed supervisory authority in the past, and
it may well be that at some uncertain future time they may be assigned
to duties which afford an opportunity to exercise such authority again.
But it is clear that such was not the case during the period covered by
the complaint herein, and, so far as the record before us shows, is not
.the case now.
We therefore find that the Respondent violated Section 8 (a) (5)
and Section 8 (a) (1) by refusing and failing to give to the Union a
list of all employees in the appropriate unit, identified by name, de-
partment, and showing (a) their job classifications, (b) hourly rates,
and (c) other pertinent wage information.
Order
Upon the entire record in this case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
'Relations Board hereby orders that the Respondent, Leland-Gifford
Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America, CIO, as the exclusive representative of Respondent's pro-
duction and maintenance employees, including factory clerks and tool
crib attendants, employed at its Worcester, Massachusetts, plant, exclu-
sive of executives, engineer department employees, office and clerical
employees, stock chasers, guards, and all supervisors as defined in
Section 2 (11) of the Act.
(b) Interfering in any manner with the efforts of United Steel-
workers of America, CIO, to bargain collectively with Respondent on
behalf of all employees in the aforesaid unit.
15 "A power is 'an ability on the part of a person to produce a change in a given legal
. relation by doing or not doing a given act." . See Restatement, Agency, § 6.
LELAND-GIFFORD COMPANY .1313
2. Take the following affirmative action, which the.Board finds will
effectuate the policies of the Act :
(a) In further performance of its duty to bargain collectively with
United Steelworkers of America, CIO, as the exclusive representative
of all its production-and maintenance employees, furnish to the Union
upon its request a list of all employees in the appropriate unit, identi-
fied by name, department, and showing (a) their job classification, (b)
hourly rates, and (c) other pertinent wage information.
(b) Post at its plant at Worcester, Massachusetts, copies of the no-
tice attached hereto and marked "Appendix." 1°. Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by. any other material.
(c) Notify the Regional Director for the. First Region, in writing,
within ten (10) days from the date of this Decision and Order, what
steps the Respondent has taken to comply herewith.
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor.
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with UNITED STEEL-
WORKERS OF AMERICA, CIO, as the exclusive representative of all
our employees in the bargaining unit described below.
WE WILL NOT in any manner interfere with the efforts of the
above-named union to bargain collectively with us on behalf of all
our employees in said bargaining unit.
WE WILL FURNISH the union, upon request, a list of all employees
in the *unit described below by name, hourly rates, job classifica-
tions,' and other pertinent wage information.
The bargaining unit is :
All production and maintenance employees, including fac-
tory clerks and tool crib attendants, exclusive of executives,
engineer department employees, office and clerical employees,
16 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order," the words, "A Decree
of the United States Court of Appeals Enforcing."
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stock chaser, guards, and all supervisors as defined in Sec-
tion 2 (11) 'of the National Labor Relations Act, as amended.
LELAND-GIFFORD' COMPANY,
Employer.
By -------------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material. '
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed by United Steelworkers of America, CIO, here-
in called the Union, the Regional Director for the First Region (Boston,-Mas-
sachusetts) of the National Labor Relations Board, herein called the 'Board,
issued a complaint dated January 29, 1951, against the Leland-Gifford Company,
Worcester, Massachusetts, herein called the Respondent. The complaint alleged
that Respondent had engaged in and was engaging in unfair labor practices of
fecting commerce within the meaning of Section 8 (a) (1) and (5) and Section
2 (6) and (7) of the National Labor Relations Act, as amended, Public Law
101, 80th Congress, 1st Session, herein called the Act. Copies of the charge,
the complaint, and notice of.hearing thereon, were duly served on the Respondent
and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that on . or about May 16, 1950, and at various times thereafter, the
Union requested Respondent to furnish it with certain information relating to
rates of pay, wages, hours of employment, or other conditions of employment as
the exclusive representative of all the employees in the appropriate unit de-
scribed hereinbelow ; that since on or about May 16, 1950, and at all times there-
after Respondent did refuse and continues to refuse to furnish said Union with
the above-described information, and that by such conduct has refused to bar
gain collectively with the Union as the exclusive representative of all the em-
ployees in the unit described hereinbelow, and that by. the acts described above
the Respondent did engage in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act. That by the acts described above the
Respondent did interfere with, restrain, and coerce and is interfering with, re-
straining, and coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act and thereby did engage in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act. Respondent there-
after filed its answer on February 7, 1951, in which it admitted its corporate
structure, and that it is engaged in interstate commerce within the meaning
of the Act. The Respondent also admitted in its answer in substance- that the
unit described hereinbelow is appropriate and that it has been so designated by
the Board. The answer further alleged in substance that the Respondent' has
at all times bargained in good faith with the Union, and that at the time of the
hearing herein was a party to a collective bargaining contract with the Union
dated August 10, 1.950, but actually signed September 11, 1950. It further denied
the commission of any of the unfair labor practices alleged in the complaint.
The answer further alleged that the Respondent was without knowledge, except
by hearsay, that the Union is a labor organization within the meaning of the
Act.
LELAND -GIFFORD COMPANY 1315
Pursuant to notice a hearing was held on February 20, 21, 22, and 23, 1951,
at Worcester , Massachusetts , before-the undersigned Trial Examiner , duly des-
ignated by the Chief Trial Examiner . The General Counsel and the Respondent
were represented by counsel , the Union by a lay representative . Full opportunity
to be-heard , to examine and cross-examine witnesses , and to introduce evidence
bearing upon the issues was afforded all parties.
At the close of the hearing counsel for the Rbspondent , filed 13 motions to dis-
miss the complaint against the Respondent as to certain individuals whose status
as employees was one of the paramount issues involved herein' All of the in-
dividuals named in said motions testified at the hearing herein. The motions
were couched in identical language, except for the names of the individual em-
ployees designated therein. They read as follows :
COMPANY'S MOTION To Dismiss BECAUSE OF SIX MONTHS' LIMITATION
Now comes the Company in the above entitled action and moves that the
complaint against the Company for not bargaining with the Union for and
on behalf of.
[name of employee]
be-dismissed because the matter occurred more than six months prior to filing
of the charge with the Board , and six months prior to the service of a copy
of the complaint upon the Company , as provided under Section 10, (b) of the
Labor Management Relations Act.
The following employees were named in the " motions described above : Robert
W. MacElroy , Ernest S. Nelson , Frank J. Rozinski ; James H. Champlin, John
. F. Gustafson , Leo W. Gaynon , Louis R. Basilissa , 'William D . Lowell, Philip J.
Meyers, Robert R. Richardson , Daniel J. Cunningham , Carl W. Hillerstrom, and
James J. Kenney.
At the hearing the undersigned denied the above motions insofar as they
related to the applicability of Section 10 (b) of the Act but reserved ruling on
the question of dismissal generally as to the designated individuals in the sep-
arate motions . The undersigned has reconsidered his ruling in this regard and
-hereby denies each of said motions in their entirety for reasons which will be
shown hereinafter.
In its brief the Respondent takes exception to the undersigned 's rulings as,
regards the applicability of Section 10 (b) of the Act, and contends that since
the status of the above employees had been at issue for more than 6 months
prior : to the filing of the charge , the Board by virtue , of the provisions of
.Section 10 ( b) is precluded from issuing a complaint based on said charge. In-
asmuch as the above motions were filed with the undersigned at the conclusion of
the hearing , he, by necessity , must look to the entire record in the case in order
to justify his rulings on said motions . In the first place ( and in the final analy-
sis), the purpose of filing said ' motions was to strike the testimony of the em-
ployees named in said motions , since their testimony went to the heart of the
issues raised by the pleadings which " will be discussed hereinafter.
In the considered opinion of the undersigned , counsel for the Respondent mis-
interprets Section 10 ( b) of the Act. The Board and the appellate dourts have
cheld'that the proviso to Section 10 (b) is a statute of limitations and specifically
limited to the issuance of complaints by the Board. The proviso to Section 10 (b)
reads as follows :
'Each of the individuals involved and their testimony adduced at the hearing herein
will be discussed in detail hereinafter.
2 The record shows this employee's name to be Rozinski , while motion spells it Mrozinski.
961974--52-col. 95-84
1316 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Provided, That no complaint shall issue based upon any unfair labor
practice occurring more than six months prior to the filing of the charge
with the Board and the service of a cops thereof upon the person against
whom said charge is made, .. .
It is abundantly clear from the record that the purpose of the General Counsel
in calling the employees named in the above motions was twofold: (1) To show
the Respondent's attitude over the preceding years towards bargaining with the
Union as regards the status of said employees; and (2) to sustain the allega-
tion in the complaint that the Respondent by its refusal to bargain on behalf of
said employees violated Section 8 (a) (5) of 'the Act. In order to sustain his
allegation in this regard the General Counsel of necessity had to show the posi-
tion of the Union and the Respondent in the past as regards the status of the
employees named. above. Hence the question is posed, is evidence tending to
show the position of the parties in the past in this regard and admittedly beyond
the 6-month period admissible in evidence? The undersigned is convinced that
it is and he so finds. In the first place we are concerned with the admissibility
of evidence tending to show the state of mind of the parties before the 6-month
period, and their separate positions in this regard. The authorities 6 in general
are in accord that such testimony is admissible in evidence. Wigmore in Vol. 2,
Sec. 396, comments as follows on this question :
Where an emotion of hostility at a specific time is to be shown, the exist-
ence in the same person of the same emotion at another time is in general
admissible. What that limit of time should be must depend largely upon
the circumstances of each case, and ought always to be left to-the discretion
of the Trial Court.4
As will be shown hereinafter no proper understanding of the issues involved
herein could be had without the elicitation of testimony of what had transpired
in this regard in the past, otherwise all concerned would be groping in the dark:
It has been well said that "What is past is prologue-Study the past." 6 That
the Board and the courts are in accord with this principle is evidenced by the
following excerpts from numerous cases. -
In Federal Trade Commission v. Cement Institute, 333 U. S. 683, 705; rehear-
ing denied, 334 U. S. 839, the Supreme Court said :
The consideration given these 'activities by the Commission was well
within the established judicial rule of evidence that testimony of prior or
subsequent transactions, which for some reason are barred from forming
the basis for a suits may nevertheless be introduced to show the purpose and
character of the particular transactions under scrutiny. (Emphasis sup-
plied.
The Board in several cases has considered Section 10 (b) and its effect on the
admissibility of evidence under the proviso.' Particularly germane to the is-
sues involved herein was the Board's finding in the Luzerne Hide and Tallow
Company, 89 NLRB 989, in which case the Board said :
S See WiSmore on Evidence (3rd Edition), Vol. I, Secs. 51, 102, 148, et' seq., 172 ;
,Vol. 2, Sees. 245, 301, 304; Vol. 3, Sec. 960.
4 The undersigned took this position throughout the hearing herein, and limited the
parties to negotiations and discussions as regards the status of the above employees to
the years 1948, 1949, and 1950.
6 Legend appearing at the approach to the National Archives Building, Pennsylvania
Avenue entrance, Washington, D. C.
6 See also Clark Phonograph Record Co., 78 NLRB 34; Arelson Manufacturing Co.,
8S NLRB 761; Florida Telephone Corporation, 88 NLRB 1429; Sun Oil Company, 89
NLRB 833.
LELAND-GIFFORD COMPANY 1317
We agree with the Trial Examiner that Section 10 (b), of the Act does not
prohibit the introduction of evidence of events which occurred before the
prescribed 6-month period. That section prevents the issuance of a com-
plaint upon such acts. It does not foreclose the Board from adcepting evi-
dence of those events for the purpose of throwing light upon acts which hap-
pened within the 6-month period. (Emphasis supplied.)
In view of the foregoing the undersigned is convinced and finds that Sec-
tion 10- (b) is a statute of limitations, but that evidence of events that occurred
prior to the statutory 6-month limitation are admissible to prove violations of
the Act that occurred within the statutory period of 6 months as set forth in the
proviso to Section 10 (b) of the Act.
After filing the above motions to dismiss, counsel for the Respondent then filed
a motion to dismiss the complaint in its entirety, again predicating his action in
this regard on the proviso to Section 10 (b) of the Act. The undersigned re-
served ruling thereon. It is hereby denied in its entirety for reasons set forth
above and hereinafter.
The General Counsel at the close of the hearing moved to have the complaint
conform to the proof as regards minor matters, such as names, dates, etc. The
motion was granted without objection.
At the close of the hearing all parties were given an opportunity to argue orally
before the undersigned ; only the General Counsel chose to do so. The parties
were also advised as to their right to file briefs and proposed findings of fact
and conclusions of law. Only the Respondent took advantage of this oppor-
tunity ; its brief was received on March 12, 1951, and has been carefully con-
sidered by the undersigned.
Upon the entire record in the case, the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Leland-Gifford Company is a Massachusetts corporation with its principal
office and place of business located in Worcester, Massachusetts, where it is
engaged in the manufacture, sale, and distribution of machine tools. During
the past 12-month period it purchased raw materials value at-approximately
$500,000, of which approximately 50 percent was purchased and. shipped to it
from points outside the Commonwealth of Massachusetts. During the same
12-month period the corporation sales of finished products were in excess of
$500,000, of which approximately 550 percent was sold and shipped to points out-
side,the Commonwealth of Massachusetts.
The undersigned finds ,that the Respondent herein , Leland-Gifford Company, is
engaged in commerce within the meaning of the Act.
- II. THE ORGANIZATION INVOLVED
Upon the record as a whole, the undersigned finds that the United Steelworkers
of America is a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and representation by the Union of the majority therein
The complaint alleges, the answer admits, and the undersigned finds that all
production and maintenance employees, including factory clerks and tool crib
1318 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
attendants of Respondent employed at its Worcester plant, exclusive of execu-
tives, engineer department employees , office and clerical employees , stock chasers,
guards, and all supervisors as defined in Section 2 (11) of the Act, constitute a
unit appropriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
The Union was certified by the Board as the duly designated representative of
the employees in the above -found appropriate unit as the result of a Board-
ordered election held September 15, 1943' Thereafter the Respondent and the
Union entered into contractual relations which have continued without inter-
ruption up to and including the present time. The present contract was signed
September 11, 1950, effective as of August 10,•1950, and is of 1 year's duration.
The Respondent makes no contention that the Union at all times material herein
does not represent a majority of the employees in the above -found appropriate
unit. Accordingly the undersigned finds that the Union has been and still is the
exclusive representative for the purpose of collective bargaining of a majority
of the employees in the appropriate unit described above.
B. The alleged refusal to bargain
1. The events leading up to the issues involved herein
At the time the Union was certified by the Board as the statutory representa-
tive of the employees in the above -found appropriate unit, the Respondent was
working at full capacity. It operated 2 separate and distinct departments at
that time., One was engaged in the manufacture of propellor shafts for airplanes,
and the . other machine tools. At that time the Respondent employed approxi-
mately 1,200 employees , 700 in the aircraft division and 500 in the machine tool
division . Shortly after V-J Day the Respondent 's orders from the Government
for aircraft parts were canceled and the aircraft department was closed . There-,
after and up to and including all times material herein the Respondent 's opera-
tions have consisted solely of the manufacture of machine tools. The primary
business of the Respondent is the manufacture of "sensitive " drilling machinery.
The machines are. specially designed to do a special job for a particular customer.
As a result , some machines are small and others large, many weighing several
tons. Due to the peculiar nature . of the business the Respondent manufactures
no "stock" machines . Hence the Respondent ' s business by its very nature is
always in a state of flux , one month up and the next month down, all dependent
upon the receipt of orders. For example, following V-J Day the Respondent's
business gradually decreased and it was forced to lay off at various times
numerous employees . As a result of, this reduction in force employment de-
creased from a peak of approximately 500 in the appropriate unit in 1945 to be-
tween 100 and 125 in September 1949, when the last general layoff was made.
This situation prevailed until sometime in September 1950, when orders began
to increase , resulting in a corresponding . increase in the number of employees.
and at the time of the hearing herein had reached a total of approximately 300 in
the appropriate unit. . , . -
One of the results of the reduction in force was that some employees who had
been supervisors during the war years were now engaged in production work.
Many of them were working in departments alone, doing the same work as rank-
and-file production workers. , In All, the Respondent had at all times material
herein between 20 and 25 departments , each of which during the war years was
See Leland-C-iford Company, 51 NLRB 1349.
LELAND-GIFFORD COMPANY 1319
in charge of an alleged supervisor or foreman . Since these employees were
engaged in production work and kept on the payroll .wh-ile. other production em-
ployees with many years of seniority were being laid off, considerable dissension
developed among the remaining rank-and-file employees , who felt that the em-
ployees in question should he included in the appropriate unit. The Union as
the exclusive representative for the employees who were in the appropriate unit
took the same viewpoint . , The Union's concern .in this regard was primarily
economic . For some time prior to the negotiations of the 1948 contract the Union
had requested the Respondent to (1) furnish it with a list of all employees in the
appropriate unit with their job classifications , maximum and minimum hourly
rates, and other pertinent wage information . The Union ' s position in this regard
was that it was. absolutely necessary for it to have such information before it
so that it could intelligently process grievances of employees as regards wages
and the like, and that without such information it could not honestly and fairly
process a grievance of an employee . Moreover it had no way of knowing whether
a grievance was meritorious or not, and that absent such information dissension
and rancor was being created among the employees in the unit-many of whom
honestly felt that inequities and inequalities existed in the hourly rates paid other
employees who were doing like or similar work; ( 2) bargain with the Union
with respect to the so-called former supervisory employees who at this time were
actually engaged in production work. The Union 's position and concern in this
regard was that since this group of employees were 'hourly paid and doing pro-,
duction work the same as other employees in the appropriate unit , it was nec-
essary to have them included therein so that their hourly rates could be considered
in the Union's administration and policing of the contract , particularly as regards
alleged wage inequities and inequalities.
Not only did the Union urge and request the Respondent to furnish the above
information as to wage rates, and a redetermination of the status of the above-;
described employees during the . negotiations for the 1948 contract , but repeatedly,
did so throughout - its 2-year duration.
Under the terms of the 1948 contract , which was for 2 years' duration , either
party could terminate the contract by giving written notice to the other of its.
desire to do so not more than 70 days or less than 60 days prior to the end of
the period of the contract , which was August 10, 1950.
The Respondent throughout the negotiations for the 1948 contract and during
its duration refused to accede to the Union 's demand as regards the above.
Its position was then and still is that it is not required to furnish the Union
with the requested information as regards names of employees within the appro-
priate unit, their job classifications , hourly wage rates, and other pertinent wage
information . The Respondent 's position in this regard has always been that
the information requested by the Union was of a personal and confidential
nature and the "property of the individual alone," and that for this reason it
would not divulge such information to the Union. Wilkinson , personnel manager
for the Respondent , testified credibly in substance that if the Union desired the
above information it could secure it from the individual employees in the unit.
The Respondent 's position as to the status of the alleged supervisory employees
was and still is that these employees were considered as supervisors at the time
of the election herein in 1943, and as such were precluded from voting in said
election ; and that since the Board made a determination as to their status at
that time , they still are supervisory employees , regardless of the fact that by
a reduction in force many of them work alone in the various departments and
have no employees under their supervision.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 5, 1950, the Union wrote the Respondent that it desired to terminate'
the contract and to exercise its prerogative under, the termination clause of
the 1948 contract, and requested that the Respondent meet with it for the-pur-
pose of negotiating a new contract. On June 9, 1950, the Union again wrote
the Respondent in regard to terminating the contract.8
The Respondent complied with the Union's request, and agreed to meet with
its representatives for the purpose of negotiating a new contract. The first
meeting of the parties was held at the Sheraton Hotel, in Worcester, Massachu-
setts, on July 17, 1950. At this meeting the Union again requested the Re-
spondent to (1) furnish it with a list of all employees, their job classifications,
hourly rates, etc. ; (2) bargain with the Union as to the status of certain alleged
supervisory employees which -have heretofore been described above. The Re-
spondent again refused to give the Union the wage information requested, and
refused to bargain with the Union regarding the alleged supervisory employees
on the theory that the Board having once made a determination as to their status
in 1943, it was powerless to take any action in this regard without the approval
of the Board. The Union then requested that the Respondent join with it in
a request to the Board to assist the parties in clarifying the issue. This the
Respondent refused to do. The Union then, in an effort to bring the issue of
the disputed supervisory employees to the attention of the Board, filed an unfair
labor practice charge against the Respondent on August 7, 1950, in which it
alleged a refusal to bargain on this issue. The Union's purpose in filing the
above charge against the Respondent was to put the issue squarely up to the
Board and let it determine the issue. On August 9, 1950, the parties met again
and at that time Roy H. Stevens, field representative for the Union, explained
to the Respondent the Union's purpose in filing the above charge. The Respond-
ent at this meeting agreed with the Union that the charge should stand and
that the Board should determine the issue. On August 10, 1950, the parties met
again , and at this meeting the Respondent agreed to furnish the Union with
the wage information described above. At this time the parties were still in
disagreement as to the status of the disputed supervisory employees. They were
also in agreement that an hourly wage increase should be granted by the Re-
spondent, but had not yet reached an agreement as to the amount. During the
rest of August and the early part of September 1950, the parties met at various
times and finally reached an agreement as regards wages. The Respondent
agreed to grant a 12-cent per hour wage increase effective as of August 14, 1950,
across the board, which was satisfactory to the Union. On September 11, 1950,
the parties signed a new contract for 1 year effective as of October 1, 1950.
After the contract was signed the Union and the Respondent continued to
discuss the issue as regards the wage information described above. The Re-
spondent, through its personnel director, Wilkinson, reversed its position as'
regards furnishing the Union with this information, and on November 6, 1950,
advised the union representative that it. would not furnish the Union with the
requested information. Thereafter on November 10, 1950, the Union filed an
amended charge against the Respondent in this regard, and negotiations on this
issue ceased.
The General Counsel in a statement made to the record at the opening of the"
hearing herein succinctly stated the issues involved herein. The undersigned for
convenience will hereinafter refer to the Union's request for certain wage inforl
mation as the "first issue" and refusal of the Respondent to bargain as regards
The letter of June 9, 1950, was written by Roy H. Stevens, field representative of the
Union, for the purpose of complying with the provisions of the Labor-Management
Relations Act.
LELAND-GIFFORD COMPANY 1321
certain alleged supervisory employees as "the second issue." The General
Counsel's comment as regards the issues is set forth herein below :
There are two main issues in this case in so far as counsel for the General
Counsel is concerned. The first issue is a refusal to bargain by the Company
for its failure and refusal to supply certain wage information to the Union
in order to enable the Union to bargain effectively and to effectively carry
out the terms and conditions of a collective bargaining agreement which was
subsequently entered into between the Union and the Respondent Company.
The second issue involves the Company's refusal to bargain with the Union
with respect to certain employees who the Company-maintains are supervisory
employees, whereas counsel for the General Counsel maintains that these
employees are. non-supervisory employees, and, therefore, there is an obliga-
tion imposed upon the company to bargain in behalf of these employees
with the charging Union.
Those are the two issues insofar as counsel for the General Counsel's case is
concerned.
Concluding Findings as Regards the "First Issue"
As indicated above the issue involved herein is strictly legal. There is no
dispute as to the. facts. The question posed is as follows: Was the refusal of-
the Respondent to furnish to the Union a list of its employees, identifying them by
name, their job classifications, their hourly rates, and other pertinent wage infor-
mation, a refusal to bargain in good faith, and hence a violation of Section 8 (a)
(5) and (1) of the Act?
The General Counsel contends that it was necessary for the Union to have
this information so that it could intelligently administer and police the agreement
between the parties as regards grievances of employees in the appropriate unit
particularly as regards wages. The Respondent at all times material herein
has consistently refused to give the Union the requested information principally
because it considered such information confidential and-the sole property of its
Individual employees.
There is nothing new or novel about the issue involved herein. The Board
and the courts have had this question before them on several occasions.. In
The Cincinnati Steel Castings Company case the Board said :
As we have frequently held, an employer's refusal during bargaining
negotiations, to furnish necessary information to the representative of his
employees shows a lack of good faith in.bargaining, and constitutes itself
a violation of Section 8 (a) (5) of the Act.
We agree, as the General Counsel contends, that it was necessary for
the Union in this case to have full information as to the names of the em-
ployees in the unit, their wage rates, and their classifications in order for it
intelligently to represent the employees in the contract negotiations, .. .
In The B. F. Goodrich Company case, 89 NLRB 1151, the Board held as follows :
From all the foregoing, and the entire record, we are convinced and find
that the information requested of the Respondent was needed by the Union
if it was to exercise effectively its legitimate function of representing the
P See The Cincinnati Steel Castings Company, 86 NLRB 592; also see cases cited
therein ; Aluminum Ore Company , 39 NLRB 1286, enfd . 131 F . 2d 485 (C. A. 7) ; J. H.
Allison & Company, 70 NLRB 377, enfd. 165 F. 2d 766 ( C. A. 6) ;. Yawman Erbe
Manufacturing Company, 89 NLRB 881; The B. F. Goodrich Company, 89 NLRB 1151.
1322 DECISIONS OF NATIONAL `LABOR RELATIONS BOARD
employees in contract negotiations and of protecting its proper interest in.
the manner in which the Respondent administered the existing contract.5
The Respondent was under a duty to furnish this information "in a manner
not -so burdensome or time-consuming as. to impede the process of bargain-
ing."' This it has adamantly refused to do! Nor was its duty in this
case satisfied in whole or in part by its offer to discuss specifically any case
where the information' tendered indicated some inconsistency in its dealing
with a particular employee. For the data offered the Union did not enable
it adequately to determine whether there was disparate treatment of em-
ployees. Moreover, the offer by the Respondent to'discuss the inconsistencies
of individual cases was, in effect,. a move to substitute the grievance proce-
dure of the contract for its obligation to furnish the Union with information_
it needed to perform its statutory functions. We do not believe that that
was collective bargaining as required by the Act e
Accordingly, we find that the Respondent, by refusing and failing to
furnish the Union the information which it requested, has refused to bargain
collectively with the Union, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8 (a) (5) and (1) of the Act e
6 See General Controls Co., 88 NLRB 1341, and the cases cited therein. The record.
does not support the Respondent's claim that the Union requested the information for
general bargaining purposes only.
0 The Cincinnati Steel Casting Company, 86 NLRB 592.
It is noteworthy in this connection that the Respondent even refused the Union's
request that it break down by departments the separate alphabetical list of employees
which it offered the Union.
s Aluminum Ore Company v. N. L. R. B., 131 F. 2d 485 (C. A. 7) ; General Controls
Co., supra.
0 Pool Manufacturing Co., 70 NLRB 540, and. Crompton-Highland Mills, Inc., 70
NLRB 206, cited by the Respondent to support its position, involve facts which are
clearly distinguishable from those herein.
In view of the foregoing, the undersigned finds that the Respondent, by
refusing and failing to furnish the Union the information which it. requested,,
has refused to bargain collectively with the Union, and has thereby interfered
with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, in violation of Section 8 .(a) (5) and (1) of the Act.
2. The second issue
As indicated above, this issue involves the status of certain employees who
the Respondent contends are supervisors, and that as such they are not the
proper subject for collective bargaining with the Union. The General Counsel
takes a contrary position, and urges that at all times material herein the
employees in dispute are production and maintenance employees, and that as
such their status is a proper subject for collective bargaining.
In substance the position of the Respondent is that the individuals involved
herein were dubbed foremen or supervisors years ago and that their status has
never changed. • The Respondent at the hearing admitted that since V-J
Day many of the employees involved herein worked alone in various departments
with no one under their direct supervision. The Respondent contends that this
.factor is of no moment for the reason that the nature of their business is such
that it must keep 20 to 25 departments in readiness at all times so that it can
rapidly expand them in the event that it receives orders that justify and require
such expansion. The Respondent further justifies its position in this regaid.on
LELAND- GIFFORD COMPANY 1323
,the premise that it has followed the above system for over 50 years and found it
to be ideal for their type of business , which as pointed out above is in a constant
state of "flux.,,
While it is true that the Respondent did discuss the status of the disputed
employees with the Union on numerous occasions, it nevertheless consistently
refused to recede from its original position that they were supervisory employees
and hence not the proper subject for collective bargaining.
As indicated above the Union raised the issue as regards the employees involved
herein several years ago, but for bargaining reasons did not seriously insist-upon
their inclusion in the appropriate unit until after the general layoff in September
1949. For this reason the undersigned will consider only the conduct of the
Respondent in this regard after June 5 or 9, 1950, the dates on which the Union
advised the Respondent of its desire to terminate the 1948 contract and enter into
negotiations for a new contract for 1950. The negotiations concerning the 1950
contract have been set forth above and will not be reiterated in this section of
the Report.
In its brief the Respondent contends that since the Union "bargained" away
its demands as regards the status of the above employees in its negotiations with
.the Respondent for the 1948 contract, it was precluded from raising the issue
during the life of the contract by virtue of Article XV of that contract which
reads as follows : -
This Agreement contains the entire Agreement between the parties and no
matters shall be considered which are not covered by the written provisions
stated therein.
Since the undersigned's findings herein will be predicated on events that
occurred after the Union gave notice to the Respondent on June 5 and 9, 1950, of
its desire to terminate the contract he is convinced and finds that this contention
of the Respondent is without merit. Suffice it to say, however, that the status of
an individual employee or of a group of employees is unquestionably a proper
subject for collective bargaining, and the Union as the exclusive representative.
of the employees. in the above-described appropriate unit was under a duty to
press this issue with the Respondent in view of its position as set forth in the
"first issue" which has been disposed of hereinabove.
The undersigned after due consideration is convinced that the only practical
way to dispose of the issue involved herein is to set forth below the employment
history and the duties of the individual employees during all times material
herein.
a. James Harry Owen Champlin
Champlin, an old employee of the Respondent, is classified as a supervisory
mechanic, and was so designated in 1942. During the war years and at all
• times material herein he has worked in the automotive screw machine depart-
ment. During the war years he had 3 helpers. His duties then and at the
time of the hearing herein were essentially the same. The screw machine de-
partment is under the supervision of Foreman Ellery.Smith. It is divided into
2 sections, the hand screw machine where the machines are operated by in-
dividual operators, and the automotive screw machine ; in the latter there are
8 machines. In all there are approximately 35 employees in the whole depart-
ment. Champlin's job was to set up the machines and keep them, in operation,
Once the machines are set up and started they operate automatically. Champlin
devotes approximately 50 percent of his time to setting up the machines and
keeping them in operation. The balance of his time is spent checking the orders
that come from the front office, securing the proper dies and other tools neces-
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary to operate the machines, ordering them, and making out reports of the
production of the individual machines. In addition he sees that the machines
in the hand screw machine department are kept in good condition. From some-
time in the fall of 1949 until December 1950, Champlin was the only employee in
the automotive screw machine department. This is understandable because
during this-period work was slack, and after he had set up the machines they
ran automatically, and required no supervision. When orders increase Champlin
needs someone to help him set up the machines. Such was the situation in
December 1950, when he was given his present helper.
Champlin. does not have authority to hire or discharge employees. As an
old employee however he does and has recommended to his foreman that he
hire or recall an employee to help him, but confines his recommendations to
individuals whom he knows are familiar with the operation of automatic screw
machines. He can recommend the transfer of employees who are unable to
adjust themselves to the work. In the absence of Foreman Smith on account
of vacations and the like he assumes a portion of Smith's duties. He is paid
by the hour, punches the same time clock as other employees, receives the same
.benefits as the production and maintenance employees, uses the same plant
facilities that they do, and received a 12-cent per hour increase negotiated by the
Union in September 1950, the same as the production and maintenance employees.
In view of the foregoing and upon the record as a whole, the undersigned is
convinced and finds that Champlin is a nonsupervisory employee, and as such
belongs in the appropriate unit along with other production and 'maintenance
employees. In a recent case, Montgomery Ward 'd Company, Inc., 93 NLRB 640,
the Board held that in an analogous situation as follows
Nor do we find any merit in the Respondent's contention that Victor,
as well as the other department heads, was a supervisor within the meaning
of the Act. The Respondent employs approximately 18 department heads
and about 20 second girls or extra employees, who assist the so-called
department heads in selling, keeping the departments clean, and maintain-
ing stock and sales records. Although the department heads generally
earn more than the second girls, they perform the same duties, work the
same hours, and, like the second girls, are required to punch a time clock.
As extra employees are assigned to those departments of the store which
are particularly busy, some of the department heads work alone, either
all or part of the time. In fact, at the time of her discharge, and for sev-
eral months before, Victor was the only one in her department. Although
the Respondent contends that the department heads responsibly direct and
supervise the work of the second girls in their respective departments, it
is clear that their direction of the work of the second girls consists of trans-
mitting to them the instructions which the department heads receive from
the manager and assistant manager, and that their supervision is. of the
type usually exercised by experienced employees over those less experienced.
Nor does the record support the Respondent's assertion that department
heads have the power effectively to recommend the hiring, promotion, trans-
fer, discharge, or discipline of extra employees,10 or that they have ever been
informed that they possess such authority: Moreover, to find these individ-
uals to be supervisors would create the highly improbable supervisory ratio
1O Bougbton testified to only one instance during Victor's 3 years as a department
head, where her recommendation allegedly was given weight. In that case, however,
Victor recommended Scordo, the second girl in her department, for promotion to a depart-
- ment head, and the Respondent, instead, promoted employee Searl to that position.
Several months later , Scordo . was "promoted" to a job in the office.
LELAND-GIFFORD COMPANY. 1325
of approximately one supervisor for each employee." We therefore find
that the Respondent's department heads are. not supervisors within the
meaning of Section 2 (11) of the Act1e
11 The Board has oftens considered the relative number of employees and alleged
supervisors in determining the supervisory status of individuals . The Ironsides
Company, 87 NLRB 1564; Gellman Manufacturing Company, 87 NLRB 292.
v Leopold Adler Company , 82 NLRB 482.
b. John Frederick Gustafson
Gustafson is a patternmaker and has worked for the Respondent as such
for 23 years. In the course of his work- he makes patterns, checks patterns,
assigns work to other patternmakers, files cards after patterns are made, and
sends finished patterns to foundries for casting. His immediate superior is
Foreman Eklund. At the time of the hearing herein there were five employees
in the pattern shop, including Eklund and himself. During Eklund's absence
Gustafson is in charge of the shop. On many occasions he works along with the
other patternmakers in the construction of large and difficult patterns. He is paid
on an hourly basis, punches the same time clock as other employees, receives
the same benefits, such as vacations and the like, uses the same plant facilities,
and received a 12-cent per hour increase along with other production and main-
tenance workers in September 1950.
According to Gustafson he was told he was an assistant foreman in either
1938 or 1939.10 He testified that he had the right to hire and fire, but cited no
instances where he had ever exercised such authority. Moreover his testimony
in this regard is in direct conflict with that of - other disputed employees ^ and
Personnel Director Wilkinson, all of whom testified that all hiring is done through
the personnel department.
Concluding Findings as to Gustafson
In view of the foregoing and the record as a whole the undersigned is con-
vinced and finds that Gustafson is not a supervisory employee within the meaning.
of Section 2 (11)' of the Act. He predicates his findings in this regard on the
following factors. In the first place'the undersigned is convinced that any of
the attributes of a supervisor he might have is sporadic and is not sufficient to
warrant a finding that he is a supervisory employee within the meaning of the
Act 11 Again, if Gustafson was indeed a supervisory employee then we would
be faced with a situation of a very "high" supervisory ratio, one supervisor to
every one and one-third employees,11 which is indicative of his nonsupervisory
status.
c. Leo W. Gagnon
Gagnon works in the steel cutoff and pipe department.- His duties require
him to operate a pipe-threading machine, and in addition he cuts off steel bars
and centers them in accordance with specifications furnished him by other de-
partments. This requires about 40 percent of his time. In addition he receives
material for the department and stores it in its proper place. He also looks
after the Respondent's oil stock and keeps an inventory of it. In addition he does
all the paper work required, such as filling out forms and the like. At the time
of the hearing herein he had one "helper," who was assigned to him in the
10 See - Silverwood '8, 92 NLRB 1114 , where the Board held that fob titles and classifica-
tions as such are not safe guides for determining . employees' supervisory status.
11 See B . F. Goodrich Company, 92 NLRB 575.
12 See Siiverwood's, supra.
1326 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
latter part of 1950: Before that Gagnon had worked alone in the department for-
approximately 3 years. He testified on direct examination that he did not have-
the power to hire or discharge employees. However on cross-examination he
testified that he could recommend the hiring, firing, or transfer of an employee,.
but offered no substantial testimony in support of his contention in this regard,:
nor was any showing made that he ever exercised such authority or that it had.
been bestowed upon him by the Respondent. Moreover he testified that the work:
in the department is "unskilled." All that Gagnon and his helper do is to thread-
pipe or cut and center steel, which to anyone familiar with machine-shop prac-
tices is the simplest kind of work. Gagnon is hourly paid, he punches the time
clock the same as other employees, uses the same plant facilities, and receivedi
along with the production and maintenance employees a 12-cent hourly wage-
increase in September 1950.
Concluding Findings as to Leo W. Gagnon
In view of the foregoing and upon the record as a whole the undersigned is:
convinced and finds that Gagnon is not a supervisory employee within the.
-meaning of the Act. He bases his finding in this regard on the fact that
Gagnon's duties are for the most part equally divided between manual labor'
and the duties of a stockroom clerk. For years he has been alone in the de-
partment with nobody to supervise, and at the time .of the hearing herein there-
was but one other worker therein who was designated by Gagnon as his "helper."
Clearly the record does not support the Respondent's contention that Gagnon is-
a supervisory employee, within the meaning of Section 2 (11) of the Act, by a
preponderance of the reliable, probative, and substantial evidence addressed.
at the hearing herein.
d. Louis Robert Basilissa
Basilissa was employed by the Respondent approximately 10 years ago as an
electrician . He works in what is known as the electrical production department.-
This department wires the electrically operated drilling machines , and checks-
the wiring on the machines to see if it is functioning correctly. Basilissa works
under the direct supervision of a Mr. Pihl, an electrical engineer.
Sometime in the latter part of 1942 or early 1943 , he was told by the Respond
ent that he was a foreman . During the war years there were a number of em-
ployees in the electrical production department , and it well may be that he had
supervisory authority during those years. The record is not clear as to just
what his duties were-at that time. In the summer of 1950 there was only one
other employee in the department . Sometime in the latter part of 1950 or early
1951 work in the department increased and he asked for additional help and two.
more employees were hired . These employees had previously worked for the
Respondent and were recalled by the personnel department . Basilissa testified
that he had no authority to select laid-off employees for recall . He further
testified that he and the others in the department check the electrical equipment
on the machines , but that a considerable portion of his time is spent securing
materials for the crew to work with. In.addition , he helps Pihl wire special
and "rush" jobs, which the Respondent desires to ship to its customers as quickly
as possible.
Basilissa is paid by the hour , punches the same time clock . as the production
and maintenance employees, receives • the same benefits, uses -the same plant
-facilities , and received the same 12-cent per hour increase in September 1950,
as the production and maintenance employees.
LELAND-GIFFORD COMPANY 1327
Concluding Findings as to Basilissa
In view of the foregoing findings and upon the record as a whole the under-
:signed is convinced that Basilissa is and was at all times material herein a
nonsupervisory employee and as such properly belongs in the appropriate unit.
.He bases his finding in this regard on the following factors : Basilissa devotes
the major portion of his time either working along with the electrical production
•crew or securing materials for them to work with ; there is no substantial evi-
dence in the record that he hires or discharges employees , or recommends such
.action ; he works under the direct supervision of Pihl, the electrical engineer,
and there is no substantial evidence in the record that he exercises any inde-
pendent judgment in carrying out his work . Moreover he is paid in the same
-method and manner as the production and maintenance employees , receives the
:same benefits , and uses the same plant facilities . It well may be that he was a
supervisor during the war years , but here again the testimony is too vague and
uncertain to make a finding that he was . The mere fact that he was dubbed
.a foreman at that time is not controlling . What the undersigned is concerned
with is what were and are his duties during the period at issue herein . Section
2 (11) of the Act defines in clear and concise language supervisory employees.
The evidence adduced at the hearing herein is to the contrary , consequently
the undersigned has no alternative but to find that at all times material herein
Basilissa was a nonsupervisory employee.
e. William Desmond Lowell
Lowell entered the services of the Respondent in 1936. Since then he has
worked in the scraping department where bearings are scraped . In 1936 he
was told that he was - a supervisor . Since that date up to and including the
time of hearing herein he has received no further instructions in this regard.
,From September 1949 until January 1951 ; there were only two employees in the
scraping department , Lowell and one Littorin. During this period Littorin
was ill for a great portion of the time and finally died sometime in 1950. During
Littorin 's absence Lowell worked alone and did all the work in the department.
In 1951, the Respondent sent five new employees to the department. According
to Lowell it was his job to break these men in and teach them how to scrape
bearings . At the same time he worked along with them doing regular produc-
tion work. He is hourly paid, punches the same clock as the production and
maintenance workers, receives the same benefits , shares the same plant facilities,
and received a 12-cent per hour wage increase in September 1950, at the same
time they did.
Concluding Findings as to Lowell - .
In view of the foregoing findings and upon the record as a whole the
undersigned is convinced and finds that at all times material herein Lowell was
a nonsupervisory employee and as such properly belongs in the appropriate unit
along with the other production and maintenance employees.
f. Philip Joseph Meyers ,
Meyers works in the steel turning department . His immediate superior is
Foreman Harry Peterson . He was ,first employed by the Respondent 18 years
ago, and has always worked in the same department . All the lathe work is
done here , such as the turning of arbors and shafts. At the time of the hear-
ing herein there were nine employees in the lathe department, including Meyers
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Peterson. Meyers spends approximately 60 percent of his time operating
a lathe, the. balance of his time is spent teaching new employees how to operate
a lathe, sharpen tools, set up work, read blueprints, and teach them "short cuts"
in the operation of their lathes. When Foreman Peterson is absent he takes over
and passes out the work but continues to operate his lathe.
Several years ago he was told he was an assistant foreman. Since that date
he has received no further instructions in this regard.
Meyers testified without contradiction that he does not have'the power to,
hire or fire, or the right effectively to recommend such action," to discipline
employees, to recommend employees for layoff, or to adjust grievances. He
further testified that he is paid by the hour, punches the same time clock as the
production and maintenance employees, receives the same benefits, uses the same
plant facilities, and received a 12-cent per hour hourly wage increase in Septem-
ber 1950 at the same time they did.
Concluding Findings as Regards Philip Joseph Meyers
In view of the above findings the undersigned is convinced and finds that
Meyers is and was at all times material herein a nonsupervisory employee and
that as such he properly belongs in the appropriate unit along with the other
production and maintenance employees. It is clear from the above that Meyers
has little if any of the attributes of a supervisory employee as set. forth in
Section 2 (11) of the Act. In such a state of the record the undersigned has
no alternative but to find as he did hereinabove.
g. Robert R. Richardson
Richardson was employed by the Respondent several years ago as an inspector.
In 1935 he was told that he was a foreman. Since that date he has received
no instructions as regards his duties as a foreman. At all times material herein
he has worked as an inspector. His duties require him to check the work as it
is being assembled and see that it comes up to specifications. He has never at
any time hired or discharged an employee, or recommended such action. At the
hearing he testified without contradiction that he has no authority to recom-
mend who should be laid off when it is necessary to take such action, and that
the selection is made by the personnel department. His only duty in such a
situation is to give the employees selected their layoff slips.
Concluding Findings as Regards Robert R. Richardson
In view of the foregoing the undersigned is convinced and finds that Richard-
son at all times material herein was not a supervisory employee within the
meaning of Section 2 (11) of the Act. As a matter of fact the evidence adduced,
at the hearing definitely shows that he is an inspector and devotes his full time
to such work. Since inspectors are not excluded from the appropriate unit, he
properly belongs therein along with the production and maintenance employees.
h. James Joseph Kenney
Kenney entered the service of the Respondent approximately 36 years ago.
At that time Superintendent Goodwin told him that he was a foreman. Since
then he has'received no further instructions in this regard. He works in the
scraping department . At the time of the hearing herein there were two other
13 He did testify in substance , however, that any employee in the shop had the right to
recommend the hiring of an employee.
LELAND-GIFFORD COMPANY 1329
employees in the department . They were hired about 3 months before the hear-
ing. Before that Kenney worked alone in the department.
Kenney testified at the hearing herein that he had , no authority to hire or,
tire, attended no meetings with management , and did not consider himself a
part thereof . He works on an hourly basis, punches the same time clock as the
rank-and-file production and maintenance employees , receives; the same benefits,
rises the same plant facilities , and received a 12-cent per hour wage increase in
September 1950, along with the other hourly paid workers.
Concluding Findings as to the Status of James Joseph Kenney
In view of the foregoing and the record as a whole the undersigned is convinced
and he finds that Kenney is a nonsupervisory employee and as such quite
properly belongs in the appropriate unit. Clearly his duties are nonsupervisory,
and there is no substantial evidence in the record showing that he has any of
the attributes of a supervisory employee as set forth in Section 2 (11) of the Act.
1. Daniel J. Cunningham
Cunningham was told by Superintendent Goodwin that he was a foreman,
in either 1935 or 1936. At all times material herein he was in charge of what
is known as "run-off" inspection . This department is a part of the assembly
department . It was Cunningham 's job to follow the machines down the assem-
bly line, see that they were properly assembled , wired, and painted , and. that
the necessary parts were on hand for the employees to work with . After the
machines are completed , they are turned over to him for a thorough inspection..
He runs them for a sufficient length of time to see whether or not they are
operating according to specifications . If they are he 0. K .'s them and they
are then shipped to the customer . If any "bugs" are found in a machine he-
traces them down and finds out what is wrong. After he locates the trouble
he goes to the foreman of the assembly department and tells him what is wrong
with the machine , and what steps should be taken to correct it. No machine-
leaves the shop until Cunningham puts his 0 . K. on it. He also inspects all,
materials that are purchased by the Respondent , and sees that a sufficient supply-
of parts are kept on hand in the storeroom at all times. '
Cunningham , like all of the alleged supervisors , punches the same time clock
as the production workers, is hourly paid , receives the same benefits , and was.
granted a 12-cent per hour wage increase in September 1950 . This increase,
as pointed out above , was secured by the Union during its negotiations with the-
Respondent for the 1950 contract.
When he needs assistance he informs his superior , Superintendent Goodwin,.
who in turn notifies the personnel department who then either hires or transfers:
an employee to him . Up until approximately 2 months before the hearing herein.
Cunningham worked alone for about 2 years.
There is no substantial evidence in the record that he has the power to hire-
or fire, or to recommend such action during the periods involved herein. More--
over there is no substantial evidence in this record that he has any effective.
authority over other employees in the plant.
Concluding Findings as to Daniel J. Cunningham
In view of the foregoing findings and upon the record as a whole the under
signed is convinced and he so finds that Daniel J . Cunningham at all times ma-
terial herein was and still is a nonsupervisory employee. True he occupies an.
important position with the Respondent, in his capacity as "run -off" inspector,.
1336. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and unquestionably , in the exercise of his powers , can reject finished machines,
and order that necessary steps be taken to correct them. This action on his part
of necessity requires him to instruct others as regards correcting the defects
in the machine , but in the considered opinion of the undersigned is merely in-
cidental to his job as "run -off" inspector . ' In a recent case the Board held in
an analogous situation as follows :
Where the direction and control exerted by the individual is over the
movement of equipment and the direction of personnel only as an incidental
result, the statutory definition of a "supervisor " does . not apply."
J. Carl William Hillerstrom
Hillerstrom was first employed by the Respondent approximately 30 years
ago, as a machinist . At all times material herein he has worked in the hori-
zontal boring department . For at least 2 years he worked alone in the depart-
ment. At the time of the hearing herein he had one helper , whom he was
teaching to operate a lathe to bore shafts and the . like. This requires him to
teach his helper how to set up a machine, the use of micrometers and other
precision instruments . In order to operate a boring machine one must be adapt-
able to the work , which requires great skill.
Hillerstrom is paid by the hour , punches the same time clock as other em-
ployees, receives the same benefits , and received a 12-cent per hour increase in
September 1950, along with the production and maintenance employees .. He was
told he was a supervisor . His only duty that might be considered supervisory
in nature is that when the personnel department hires new helpers for him,
he interviews them to find out their experience , and whether or not they can
adapt themselves to the work . He testified that he "understood" that he could
recommend hiring and tiring of employees but never exercised this authority.
Concluding Findings as to Carl William Hillerstrom
In the considered opinion of the undersigned ,. Hillerstrom has none of the,
duties of a supervisor . The record is clear as to this . Accordingly the under-
signed finds that he is not a supervisor within the meaning of the Act and is a
production and maintenance employee, and as such belongs in the appropriate
unit.
k. Robert MacElroy
MacElroy at the time of the hearing herein had been in the employ of the
Respondent for 14 years . He testified that he was told he was a foreman in 1940
by the Respondent . His position with the Respondent is in the electrical mainte-
nance department where he works alone. There have been no other employees
in this.department since 1947.
MacElroy 's duties are as follows : When he comes to work in the morning he
spends about an hour inspecting the electrical maintenance equipment , and makes
another check after the noon whistle blows ; the rest of the time he sits in a
small room awaiting calls from the various departments to repair damaged equip-
ment and the like. He has no other duties. While awaiting calls to make repairs
he does as he pleases , such as reading the papers and the like. He is under the
direct supervision of the plant engineer, Elmer Pihl.
MacElroy testified that he did not know whether he had the right to hire
because he had never had to "do so ." He also testified that he never effectively
" See The Baltimore Transit Company and The Baltimore Coach Company , 92 NLRB
1260; also Union Street Railway Company, 93 NLRB 782 .; B. F. Goodrich Company, supra.
LELAND-GIFFORD COMPANY 1331•
recommended the hiring of employees, disciplined or reprimanded them, and that
he had no authority to lay off, recall, promote, or settle grievances for them. He
further testified that he has had no supervisory authority since 1947. He punches
the time clock, is hourly paid, receives the same benefits as other employees, and
received an hourly raise of 12 cents in September 1950 along with the other
employees.
Conclusions as to Robert MacElroy
In view of the foregoing findings the undersigned is convinced and he so finds
that Robert MacElroy is not a supervisory employee. The record is clear that
his duties are of such a nature that he clearly does not meet the requirements
of the Act in this regard. Under such circumstances, he quite rightly belongs
in the appropriate unit with the production and maintenance workers.
1. Ernest S. Nelson
At the time of the hearing herein Nelson had been employed by the Respondent
for 43 years, as a first-class machinist. Presumably, his work consists of making
tools and operating a lathe. He is the only employee in the. department, and
has been since September 1949.
, Nelson testified credibly at the hearing that he was told he was a foreman
about 20 years ago, but he does not have the right to hire or fire or to recommend
such action.
He punches the time clock, is hourly paid, uses the same facilities as other
employees, and received a 12-cent per hour increase in September 1950 along
with the other employees.
Conclusion as to Nelson
It is obvious from the above that Nelson has no supervisory authority. His
duties as described by him at the hearing clearly establish this fact. - Conse-
quently, in view of the foregoing and upon the record as a whole, the undersigned
is convinced and finds that he is a production and maintenance employee, and
is not a supervisor within the meaning of the Act. As such he belongs in the
appropriate unit.
in. Frank Joseph Rozinski
Rozinski works in what is known as the "special department." He is em-
ployed as a ball race grinder, and on occasion operates a rotary-grinder. At the
time of the hearing herein he worked alone in the department, and had since
1949. Before this there was one other man in the department whose work he
supervised and checked.
He is hourly paid, punches the same time clock as other workers, uses the
same plant facilities, receives the same benefits, and was given a 12-cent per
hour increase in September 1950, along with other employees.
Rozinski was told that he was a foreman in 1935. According to his credible
testimony, he has no power to hire or fire, or authority to recommend such
action, to recommend employees for layoff, to discipline employees, or to recom-
mend them for promotions.
Concluding Findings as to Frank Joseph Rozinski
In view of the above findings, and upon the record as a whole, the undersigned
is convinced, and he so finds, that Rozinski is clearly not a supervisory em-
ployee within the meaning of the Act. In fact, there is no substantial evidence
961974-52-vol. 95-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD :
in the record to justify a contrary, finding. Consequently, the undersigned' finds
that Rozinski quite properly belongs in the appropriate unit.
Concluding Findings as to the "Second Issue"
The undersigned has found above that the employees in dispute between the
parties are nonsupervisory, and are in fact production and maintenance em-
ployees and as such are within the appropriate unit. Thus the question is posed:
Was the Respondent under a duty to bargain with the Union as regards these
employees? In the considered opinion of the undersigned, and he so finds, the
Respondent was under such a duty. It may be true that these employees had
supervisory status in 1943, and were excluded from the unit at that time. On
the other hand however at all times material herein they were not in fact
supervisors within the meaning of Section 2 (11) of the Act, as the undersigned
has found above. It must be remembered that the status of these men changed
after the war. Some no doubt were supervisors in 1943, and in fact all during
the war years. Thereafter however by a reduction in force they not only had
no one to supervise but were actually production and maintenance workers, and.
as found above treated by the Respondent as such, in their daily routine, except
that they still retained their titles as supervisors. The mere fact that they held
the title of supervisors is not controlling-it is what they actually do that deter-
mines their status. In other word's their status as employees or supervisors is
controlled by the provisions of Section 2 (11) of the Act. One must be realistic
about such situations as confront us here. The employees involved were to all
intents and purposes, at all times material herein, production and maintenance
workers, and as such they rightfully belonged in the certified appropriate unit.
It must be remembered also that the Union as the certified bargaining agent
was under a statutory duty to represent all employees who rightfully belong in
the appropriate unit. Hence, having found as above, the undersigned further
finds that its request to the Respondent to bargain concerning the above-named
employees was not only reasonable but in accordance with established Board
practice 16
From all the foregoing, and the entire record, the undersigned is convinced
and finds that the request of the Union to the Respondent that it bargain con-
cerning the above employees during the negotiations for the 1950 contract was
a necessary and proper request if it was to exercise effectively its legitimate
function of representing the employees in contract negotiations and of. protecting
its proper interest as the certified bargaining representative of the employees in
the appropriate unit.
Accordingly, the undersigned finds that the Respondent, by refusing and failing
to bargain with the Union as regards the above-named employees, has refused
to bargain collectively with the. Union, and has thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act, in violation of Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring
in connection with the operations of the Respondent as described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
" See John Deere Killefer Company, 86 NLRB 1073; Mason i Hughes, Inc., 86 NLRB
848; Adams-Millis Corporation, 83 NLRB 1128.
LELAND-GIFFORD COMPANY 1333
merce among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
The undersigned has found that the Respondent has refused to bargain with
the Union by : (1) Refusing and failing to furnish the Union with a list of
all employees in the appropriate unit identified by name, department, and showing
thereon, (a) their job classifications, (b) hourly rates, (c) hours of employment,
and (d) other conditions of employment; and (2) as respect to the job status of
certain employees, set forth herein above as regards, (a) job classifications as
of June 1950, 6 (b) rates of pay, (c) wages, (d) hours of employment or other
conditions of employment. Accordingly the undersigned will recommend that
the Respondent (1) furnish the Union with the information requested upon
request, (2) bargain with the Union as regards the employees set forth herein
above in,that section of this Report styled the "Second Issue."
Because of the limited scope of the Respondent's refusal to bargain, and be-
cause of the amicable relations of the parties since 1943, and also because of
the absence of any indication that danger of other unfair labor practices is to be
anticipated from the Respondent's conduct in the past, the undersigned will not
recommend that the Respondent cease and desist from the commission of any
other unfair labor practices.'?
Upon the basis of the above findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production and, maintenance employees, including factory clerks and
tool crib attendants of Respondent employed at its Worcester plant, exclusive
of executives, engineer department employees, office and clerical employees, stock
chasers, guards, and all supervisors as defined in Section 2 (11) of the Act,
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
3. United Steelworkers of America, CIO, has at all times since September 15,
1943, been the duly designated representative of a majority of the employees
in the aforesaid appropriate unit and by virtue of Section 9 (a) of the Act.
4. By refusing and failing (1) to give to the Union a list of all employees
in the appropriate unit identified by name, department, and showing thereon,
(a) their job classifications, (b) hourly rates, (c) hours of employment, and
(d) other conditions of employment; and (2) as respect to the job status of
certain employees set forth hereinabove as regards, (a) job classifications as
of June 1950, (b) rates of pay, (c) wages, (d) hours of employment, or other
conditions of employment, Respondent has violated Section 8 (a) (5) of the Act..
5. By the conduct described above, Respondent has interfered with, restrained,.
and coerced and is interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed them in Section 7 of the Act, and thereby
1e The complaint alleges that the demand of the Union in this regard was on May 16,.
", 1950 , however, the proof shows that this occurred sometime in June or July 1950. The
record does show, however, that this issue had been discussed by the parties at least as
far back as the negotiations for the 1948 contract.
17 See The B . P. Goodrich Co., 89 NLRB 1151, and cases cited therein.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
NATIONAL BROADCASTING COMPANY, INC. and NATIONAL ASSOCIATION
OF BROADCAST ENGINEERS AND TECHNICIANS, PETITIONER
AMERICAN BROADCASTING COMPANY, INC. and NATIONAL ASSOCIATION
OF BROADCAST ENGINEERS AND TECHNICIANS, PETITIONER. Cases Nos.
f2-RC-660 and 2-RC-950. August 4, 1951
Supplemental Decision Clarifying Certification
On May 11, 1950, the Board issued its decisions in the above-entitled
case .' Thereafter, pursuant to the direction of election contained
therein, an election by secret ballot was held among the employees in
one of the units found appropriate consisting of all stage electricians,
stage carpenters, and stage property, men, excluding all other em-
ployees and supervisors, at station WNBT, New York City, of the
National Broadcasting Company, Inc. As a result of this election,
Theatrical Protective Union No. 1, IATSE, herein called IATSE,
was selected as the representative of the employees in the unit and was
accordingly certified by the Board.2
On July 13,1951, IATSE, NABET, and the Employer, herein called
NBC, filed a joint petition requesting the Board to clarify the fore-
going unit description by indicating whether or not in its decision the
Board intended the classification "stage electricians" to be limited
only to those employees bearing that title on the NBC payroll, or
whether the Board also intended that NBC employees, regardless of
their job titles, who regularly spend more than 50 percent of their time
in the handling and placing of television lights should be included
in the unit.
In thus presenting the matter to be clarified, the parties are postu-
lating a factual circumstance which did not appear in the record on
which the Board based its decision. That record, as the ' decision
specifically points out, revealed that two classifications of employees
at NBC's television station WNBT were engaged in handling and
placing television lights, namely stage electricians and lighting engi-
neers , but that the engineers spent less than 50 percent of -their time i/
189 NLRB 1289.
2 The Petitioner , herein called NABET, withdrew its name from the ballot in this election.
95 NLRB No. 181.