Fedders Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1938

7 N.L.R.B. 817 (N.L.R.B. 1938)

In the Matter of FEDDERS MANUFACTURING COMPANY, INC. and
AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF
N. A., LODGE 1753
Case No. C-621.Decided June 9, 1938
Automobile and Refrigeration Parts Manufacturing Industry-Interference,
Restraint , and Coercion-Collective Bargaining: refusal to recognize representa-
tives, as exclusive representative, after Certification by Board ; special form of
remedial order ; recognitpo., as exclusive representative-Election: run-off ; na-
ture of; notice to other parties of request for, unnecessary; choice of place of
holding ; company representatives, presence at : matter for discretion of Regional
Director; contention that first election concluded proceedings, held without
merit-Representatives: eligibility to participate in choice : persons on "avail-
able" list-Employee Status: persons on "available" list, held to be employees.
Mr. Peter J. Crotty, for the Board.
Mr. John W. Van Allen, of Buffalo, New York, for the respondent.
Mr. Martin Kuras'eh, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by Amalgamated Association of Iron,
Steel & Tin Workers of N. A.., Lodge No. 1753, herein called the
Amalgamated, the National Labor Relations Board, herein called the
Board, by Henry J. Winters, Regional Director for the Third
Region (Buffalo, New York), issued its complaint, dated April 6,
1938, against Fedders Manufacturing Company, Inc., Buffalo, New
York, herein called the respondent. The complaint and notice of
hearing thereon were duly served upon the respondent and the
Amalgamated.
The complaint alleged that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce, within the
meaning of Section 8 (1) and (5), and Section 2 (6) and (7), of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
817
818 NATIONAL LABOR RELATIONS BOARD
On April 15, 1938, the respondent filed its answer to the complaint
denying that its operations affected interstate commerce within the
meaning of the Act and that it had engaged in or was engaging in
the alleged unfair labor practices.
Pursuant to the notice and amendment thereto, a hearing was held
in Buffalo, New York, on April 20, 1938, before Mark DeWolfe
Howe, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partic-
ipated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded to the parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds that
no prejudicial errors were committed.
On May 9, 1938, the respondent filed a brief in support of its con-
tentions in the case. On May 13, 1938, the Trial Examiner duly
filed his Intermediate Report. He found that the respondent had
engaged in the unfair labor practices alleged in the complaint. On
May 23, 1938, the respondent filed its Exceptions to the Intermediate
Report, excepting to the findings of fact made by the Trial Ex-
aminer and to his conclusions and recommendations. The respond-
ent did not request oral argument upon its Exceptions to the In-
termediate Report. We have fully considered the Exceptions to the
Intermediate Report, but, save for those exceptions which are con-
sistent with the findings, conclusions, and order set forth below, we
find them to be without merit.
On May 13 the respondent filed a "motion to set aside complaint,
withdraw certification of representatives, nullify results of run-off
election, withdraw supplemental decision and direction of election,
dismiss petition for run-off election, and certify that neither union is
exclusive bargaining agent of respondent's employees." That motion
is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, located at Buffalo, New York, manufactures auto-
mobile radiators, electric refrigeration parts, air-conditioning parts
and appliances, heat transfer appliances, and electric water coolers.
In the manufacture of these various products the company uses
copper, brass, steel, tin, lead, and small amounts of numerous other
DECISIONS AND ORDERS 819
items. It purchases fabricated copper from fabricating mills lo-
cated at Buffalo and Rome, New York, Cleveland, Ohio, Detroit,
Michigan, and Bridgeport, Connecticut.
In the year 1936 the company' purchased $2,428,567.52 -worth of
copper and brass, of which $300,000 worth was purchased outside
the State of New York; for the period of January 1, 1937, to July 31,
1937, the value of brass and copper purchased was $1,738,574.63, of
which $265,000 worth was purchased outside of New York. In 1936
the company bought $186,370.27 worth of steel and from the period
of January 1, 1937, to July 31, 1937, bought $140,522.01 worth of
steel. All of the steel comes from States other than New York. All
of the tin is likewise purchased from States other than New York.
The company buys the tin, lead, and other materials that are used
to make up solder and gives then to the fabricator or smelterer in
the quantities required by the various formulae for solder. All of
these fabricators are outside of New, York. In 1936 the company
purchased $575,648.06 worth of solder and from January 1, 1937,
to July 31, 1937, the value of solder purchased was $405,864.90.
The company has branch warehouses in Massachusetts, Georgia,
Ohio, Michigan, Illinois, Texas, and California. ' Sales offices are
maintained at each of these warehouses.
Most of the automobile radiators manufactured by the company
are sent to Michigan, Indiana, and California. Some are exported.
The air-conditioning parts are shipped through the manufacturing
and jobbing trade to Michigan, Ohio, Pennsylvania, Georgia, Texas,
California, Missouri, and Illinois. Some are sold to purchasers in
New York. Unit heaters are sold through the jobbing and contract-
ing trade all over the country. . Electric water coolers are shipped
to various parts of the United States. From January 1, 1936, to
July 31, 1937, the total sales of the company were $10,139,616.82.
About 90 per cent of this total represents shipments to points outside
New York. Outgoing shipments are made by rail. The incoming
shipments are generally made by truck.
The company has registered stock issues with the Securities &
Exchange Commission for sale in interstate commerce and has reg-
istered a trade-mark with the United States Patent Office for sale of
articles in interstate commerce.
In recent months the quantities mentioned and the activities
described have been reduced by approximately 50 per cent.
II. THE ORGANIZATION INVOLVED
Lodge No. 1753, Amalgamated Association of Iron, Steel & Tin
Workers of N. A. is a labor organization, affiliated with the Coun-
820 NATIONAL LABOR RELATIONS BOARD
mittee for Industrial Organization, which admits to membership the
production employees of the Fedders Manufacturing Company, Inc.
Lodge No. 1753 was chartered on May 5, 1937.
III. THE UNFAIR LABOR PRACTICES
Pursuant to a petition for investigation and certification of rep-
resentatives under Section 9 (c) of the Act duly filed by the Amal-
gamated,` and after a hearing held on August 30, 1937, the Board
issued a Decision,' dated October 15, 1937, in which it found that
all the production employees of the respondent, excluding foremen,
assistant foremen, and others in supervisory capacities, office workers,
janitors, porters, shipping clerks, department clerks, clerks under
foremen in the shop, engineers, draftsmen, nurses, watchmen, and
all other salaried employees, and excluding the repairman in the
Detroit, Michigan, warehouse, but including the stockroom helper,
constituted a unit appropriate for the purposes of collective bar-
gaining. The Board directed that an election by secret ballot be
held among the employees in the appropriate unit who appeared on
the pay-roll list of July 11, 1937, to determine whether they desired
to be represented by the Amalgamated, or the Employees' Labor
Organization of the Fedders Manufacturing Company, herein called
the E. L. 0., for the purposes of collective bargaining, or by neither.
In the election, a majority of the employees in the appropriate unit
indicated a desire to bargain collectively with the respondent,
although they accorded neither of the rival unions a majority.2 The
Board directed, after request by the Amalgamated, which had
received the greater number of votes, that a run-off election be held
among the employees in the appropriate unit to determine whether
or not they desired to be represented by the Amalgamated for the
purposes of collective bargaining. A majority of the employees did
indicate such a desire, and the Board certified the Amalgamated on
February 12, 1938.3
On February 19, 1938, the Amalgamated, by letter addressed to
the respondent, requested a conference with representatives of the
respondent for "purposes of discussing a potential contract cover-
ing wages, hours and working conditions for the employees of the
Fedders Manufacturing Company."' The respondent replied by a
letter dated March 12, 1938, in which it stated that its counsel has
"serious legal doubts as to the validity of the procedure under
13 N. L . R. B. 818.
20f the 814 employees who voted , 400 voted in favor of the Amalgamated , 369 voted
in favor of the E. L. 0., and 41 ballots were cast in favor of neither. There were 4
challenged ballots.
3 5 N L. R. B 269.
DECISIONS AND ORDERS 821
which this certification was made," and that it would bargain with
the Amalgamated only for its members. This refusal to bargain
with the Amalgamated except for its own members, after the Amal-
gamated had been certified as the exclusive bargaining representa-
tive of all the employees in the appropriate unit, constitutes on its
face an unfair labor practice within the meaning of Section 8 (5),
of the Act. The respondent contends, however, that the Certification
was an invalid one and that there had, therefore, been no, showing
that the Amalgamated is the representative of the majority of the
employees.4
The respondent asserts that it received no notice of the request
by the Amalgamated for a run-off election and that there was no
hearing prior to the run-off election, that the election was held at
a place 1 mile from the plant, that the respondent was not permitted
to have watchers at the election, and that the respondent was not
given an opportunity for oral argument and submission of briefs in
support of its objections to the Regional Director's Intermediate
Report on the ballot after the run-off election. The respondent
further contends that the first election closed the proceedings, that
the proceedings were reopened ex parte, and that the Board has no
authority to direct a run-off election.
When the Board ordered the investigation pursuant to the peti-
tion for investigation and certification of representatives, the re-
spondent was notified and a full hearing was held, at which the
respondent was represented by counsel, and at which time two of
the respondent's vice presidents and its industrial relations manager,
testified. During the hearing evidence was introduced which bore
on the subjects of the appropriate unit, the existence of a question
affecting commerce concerning the representation of employees, and
the pay-roll date to be used in the election. Having determined the
appropriate unit, the most suitable pay-roll date, and the fact that
a question affecting commerce did exist, the Board then proceeded
in its investigation and sought to determine whether or not either
of the contending unions could be certified as the exclusive bargain-
ing agency for the employees in the appropriate unit. To this end
it directed an election among these employees, which resulted in a
majority of the employees evincing a desire for collective bargaining
although neither union received a majority of the votes cast.
The contentions of the ier',ondent are in(Pented by its letters of January 21 and
Januaiv 24 1938 to the Thi rd Rcemn of the Board , its objections to the Intermediate
Report on the ballot in the iun -oft election , its answer to the complaint in the instant
case, the brief file-] ssith the Board on May 9. 1938, its objections to the Intermediate
Rerort in the instant eate its mourn to set aside the complaint , etc, filed May 23, 19.38,
and its statement of authonties and points in support thereof
822 NATIONAL LABOR RELATIONS BOARD
Finding that a majority of the employees in the appropriate unit
desired to bargain collectively, the Board ordered a run-off election
in an attempt to determine whether or not the employees in that
majority would, on further consideration, unite on a single bar-
gaining agency. The single agency selected for the ballot was that
which had received a larger portion of the votes of those who had
indicated that they favored collective bargaining. The right of
-those who still preferred the E. L. 0. as well as those who opposed
both organizations to express their choice was, of course, preserved
by the opportunity to vote "No" on the ballot in the run-off election.
The run-off election was as much the result of the hearing as was
the original election. All the issues had been formulated and de-
cided ; no new issues had to be determined. The respondent, there-
fore, having participated in the hearing, has no basis for complaint
in the fact that no new hearing was held or in the fact that it did
not receive notice of the request by the Amalgamated for a run-off
election. The Board had indicated that it would not continue its
investigation without a request for a run-off election by the labor
organization which had received the greater number of votes. As
we have indicated in previous proceedings, we will not require an
organization to take part in an election against its will. The proce-
dure followed here was designed simply to ascertain that the organiza-
tion affected was not opposed to the inclusion of its name on the run-
off ballot. No purpose would have been served by having copies of
the Amalgamated's request served upon any of the other parties.
We do not consider that the choice of a place to hold the election,
which was 1 mile distant from the plant, was in any way an arbitrary
or an unreasonable choice, as the respondent claims. We believe
that no right of the respondent was in any way affected thereby.
In the Certification of February 12, 1938, it was stated that "full
opportunity was accorded to all of the parties to this investigation
to participate in the conduct of the secret ballot and to make chal-
lenges." Such a statement was erroneous; the respondent was not
permitted to have a representative at the place of balloting for the
purpose of making challenges. The Regional Director, after objec-
tion by the Amalgamated, reversed his earlier decision on the matter
and.did-.not permit the respondent to have representatives present at
the election. The misstatement, however, did not relate to any mate-
vial fact. The Regional Director may, when he thinks it consonant
with the rights of the employees, permit nonsupervisory employees
representing the employer to participate in the election, but this mat-
ter is one for the -discretion of the Regional Director. We believe
that his action in the instant case was not unreasonable or arbitrary.
DECISIONS AND ORDERS 823
The respondent also asserts that the denial of its request for
oral argument and submission of briefs in support of its objections
to the Intermediate Report on the ballot in the run-off election de-
prived it of substantial procedural rights. A certification, however,
is not an order directed against the respondent, or which can in any
way aggrieve the respondent. No action was initiated against the
respondent until the complaint in this proceeding was served. The
respondent had, at the hearing based upon the complaint, full oppor-
tunity to present evidence as to the validity of the Certification and
the accuracy of the facts to which the Certification attests. The
respondent has been served with an Intermediate Report by the Trial
Examiner in the case and has filed Exceptions to the Trial Examiner's
findings of fact and to his conclusions and recommendations. The
respondent has not taken the opportunity offered it of requesting oral
argument upon its Exceptions to the Intermediate Report. We con-
clude that-the respondent was in no way deprived of any material
procedural right.
As to the assertion that the first election closed the proceedings,
there is nothing in the Act to support such a contention. The Board's
procedure is fully within the authorization of Section 9 of the Act to
"take a secret ballot of employees, or utilize any other suitable method
to ascertain such representation."
The respondent also asserts that, while the eligible employees on
the pay roll of July 11, 1937, numbered 873, and 731 persons voted
in the run-off election, the number of persons in the appropriate
categories who were on respondent's pay roll on the date of the Sup-
plemental Decision,5 when the run-off election was directed, was 306.
In the hearing of August 30, H. E. Rieckelman, a vice president
of the respondent, stated that the number of employees on the pay
roll varied. He testified that July 11 represented a period in the
respondent's business which could be referred to as "an average busy
season." The Board decided that the pay-roll date of July 11, 1937,
was to be used in the original election.
Theodore C. Fedders, vice president and general manager of
the respondent, testified at the hearing in the present proceeding
that the respondent's business had a very decided downward slump
in October or November 1937. He stated that the number of people
on the respondent's pay roll on January 10, 1938, the date of the
Supplemental Decision and Direction of Election, was 306. By
the "pay roll" for any specific date, Fedders meant "only people
who are working and are being paid for work at the time." The
respondent also keeps an available list on which it puts employees
54 N L R B 770.
106791-38-vol vu-53
824
NATIONAL LABOR RELATIONS BOARD
who had been laid off and from which it recalls employees when more
work is available. Employees on the available list are called back
to work on a seniority basis and the respondent does not go outside
that list in getting help unless the list is exhausted.
Fedders, too, emphasized the fact that the number of people on
the respondent 's pay roll ( in the categories which constitute the
appropriate unit ) fluctuates . The number has, on occasion, gone
below 306. The extent of the fluctuation may be seen in the fact
that on December 31, 1937, 10 days before the Supplemental Decision,
it was, approximately , only 217.
The respondent points to the disparity between the 873 on the
pay roll of July 11, 1937, and the 306 working on January 10, 1938.
We have already indicated that there are large fluctuations in small
periods. The respondent kept all those laid off since July 11 on the
available list and has bargained with the Amalgamated as to people
,on that list . Because of the constant fluctuation in the number of
workers needed , the respondent continually gives work to people
on the list, and it has made no distinction between employees whom
it considers temporarily laid off and those whom it considers perma-
nently laid off. From the facts in the record it must be concluded
that the respondent has considered the list an active one . The num-
ber of persons on the available list, together with those persons ac-
tually working , constitute the employees of the respondent. This
conclusion is strengthened by the fact that the respondent has bar-
gained with the Amalgamated on the question of seniority with re-
spect to putting people on the pay roll and discharging them from the
pay roll.
Fedders stated that from time to time some of the men who had
been laid off had gotten jobs elsewhere . Respondent 's proof on that
point, however , was tenuous . We find that the respondent's objec-
tions which are based on the pay -roll date furnish no reason for
setting aside the certification of February 12, 1938.
We find that on March 12 , 1938, the respondent refused to bar-
gain collectively with the Amalgamated as the representative of its
employees with respect to rates of pay , wages, hours of employment,
and other conditions of employment , and thereby interfered with,
restrained , and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the aforesaid activities of the respondent have a
close, intimate , and substantial relation to trade, traffic , and com-
DECISIONS AND ORDERS 825
merce among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Amalgamated Association of Iron, Steel & Tin Workers of
N. A., Lodge No. 1753, is a labor organization within the meaning
,of Section 2 (5) of the Act.
2. All the production employees of the respondent, excluding fore-
men, assistant foremen and others in supervisory capacities, office
workers, janitors, porters, shipping clerks, department clerks, clerks
under foremen in the shop, engineers, draftsmen, nurses, watchmen,
and all other salaried employees, and excluding the repairman at the
Detroit, Michigan, office but including the stockroom helper, consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. Lodge No. 1753, Amalgamated Association of Iron, Steel &
Tin Workers of N. A. was on March 12, 1938, and at all times there-
after has been the exclusive representative of all the respondent's
employees in such unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing and continuing to refuse to bargain collectively
with the Amalgamated Association of Iron, Steel & Tin Workers
of N. A., Lodge No. 1753, as the exclusive representative of the
employees in the above-stated unit, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
5. By refusing and continuing to refuse to bargain collectively
with the Amalgamated Association of Iron, Steel & Tin Workers
of N. A., Lodge No. 1753, as above-stated, and thereby interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, the respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8 (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.
ORDER
Upon the basis of the above findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
826 NATIONAL LABOR RELATIONS BOARD
the Fedders Manufacturing Company, Inc., Buffalo, New York,
and its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Asso-
ciation of Iron, Steel & Tin Workers of N. A., Lodge No. 1753,
as the exclusive representative of all its production employees, ex-
cluding foremen, assistant foremen and others in supervisory capac-
ities, office workers, janitors, porters, shipping clerks, department
clerks, clerks under foremen in the shop, engineers, draftsmen,
nurses, watchmen, and all other salaried employees, and excluding
the repairman at the Detroit, Michigan, office, but including the
stockroom helper;
(b) In any other manner interfering with, restraining or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing and - to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request bargain collectively with the Amalgamated
Association of Iron, Steel & Tin Workers of N. A., Lodge No. 1753,
as the exclusive representative of all its production employees, ex-
cluding foremen, assistant foremen and others in supervisory capaci-
ties, office workers, janitors, porters, shipping clerks, department
clerks, clerks under foremen in the shop, engineers, draftsmen, nurses,
watchmen, and all other salaried employees, and excluding the repair-
man at the Detroit, Michigan, office, but including the stockroom,
helper, with respect to rates of pay, hours of employment and other
conditions of employment;
(b) Post immediately notices to its employees in conspicuous places
within the plant stating that respondent will cease and desist as
aforesaid, and maintain such notices for a period of at least thirty
(30) consecutive days from the date of posting;
(c) Notify the Regional Director for the Third Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.