Marshall and Bruce Co.

In the Matter of MARSHALL AND BRUCE Co1IPANY and NASHVILLE BINDERY WORKERS UNION #83, INTERNATIONAL BROTHERHOOD OF BOOKBINDERS, AFL Case No. 10-C-17'92.-Decided October 241, 79.16 Mr. Clifford L. Hardy, for the Board. Mr. Willianta Walter, of Nashville, Tenn., for the respondend. Dlr. W. F. Barber, of Atlanta , Ga., and Dlr . L. F. Goodrich, of Nash- ville, Tenn ., for the Union. DECISION AND ORDER On January 29, 1947, the Trial Examiner issued his Intermediate Report it the above-entitled proceeding, finding that the respondent had engaged ill and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain af- nrniative action , as set forth in the copy of the Intermediate Report attached hereto.r Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. Oral argument before the Board in Washington , D. C., was not requested and none was held. On August 22, 1947, the effective date of the Labor Management Relations Act, the present case, as well as numerous other unfair labor practice proceedings , was pending but not yet decided by the Board. We are thus confronted with a question of fundamental importance, which we shall consider sua sponte, as to the effect , if any, of the amendatory legislation on the Board 's power to adjudicate unfair labor practice controversies which arose prior thereto. In our opinion, this question is authoritatively answered in the general savings statute enacted by Congress in 1871, which sets forth "Rules for the Construc- tion" of amendatory and repealing legislation .2 This statute provides as follows: Iin Section Ill A2. page 3 of the Intermediate Report, the Trial Examrnm stated that on Jui, :S 1045, the Boaul issued its "Consent Determination of Representatives " The record discloses, and we find, that the (late of issuance is Julv 5, 1044 "Act of Febllrary 25, 1871, 16 Stat 431 This statute changed the then existing federal common la', into that the repeal of a prior statute had the effect of extmgur'iung all hahIlitles thereunder See United States v Tyven, 11 wall 88, 05 75N.L R B,No.13 90 MARSHALL AND BRUCE COMPANY 91 The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the en- forcement of such penalty, forfeiture or liability.' The general savings statute is now Section 29 of Title I of the United States Code, it title promulgating rules applicable to all federal stat- utes, and is therefore generally applicable to the legislation here under consideration. The term "liability" as used in the general savings statute has been broadly construed by the courts to comprehend all obligations arising out of any breach of it statutory duty.' The obligations of employers arising out of violations of the National Labor Relations Act are clearly "liabilities" within the meaning of the general savings statute, as it has been consistently interpreted. Under that statute such l1a- bilities continue to have binding effect, notwithstanding the passage of the amencinient, unless Congress manifested therein an intention to extinguish such liability.5 But clearly Congress made no provision in the amendment for absolving employers of liability for unfair labor practices committed prior to such amendment. Indeed, the legisla- tive history indicates a contrary intent, for Congress expressly con- sidered and rejected a proposal which would have had the effect of prohibiting entry by the Board or enforcement by the courts of any 3 On March 22, 1944, Congress amended this statute to add the following sentence (c 123, 58 Stat 118) "The expiration of a teinporaiv statute shall not have the effect to release or extinguish ani penalty, forfeiture, or liability incurred under Such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force foi the purpose of sustaining any proper action or piasectition foi the enforcement of such penalty forfeiture or liability " a The terns has been inteipneted to include "habihty to be imprisoned" arising out of a violation of a cruninal statute (United States v Reisinger, 128 U S 398, 403) . liability to pay inheritance taxes resulting fioni the death of the testator prior to repeal of the tax law (Hertz', lVoodwan, 218 U S 205. 218) , liability attei repeal of the Eighteenth Amendment to pay tax on alcohol diverted to beverage purposes imposed in the Revenue Act of 1926 (United States v U S Industrial 411,ohol Co, 8 F Supp 179 (1) C Did )) 'liability' of a cieditor who had ieceived property fioni his debtor under ciicunistances constituting an unlawful preference under the Bankruptcy Act, to refund it to the Assignee of the debtor in bankruptcy ('l'inker v Van Dyke, Fed Cast, No 14058 (C C 'Mich 1876)) and ' Lability" to forfeiture of imported goods knowingly entered by means of a false invoice (United States v Foun Cases of Lastings, Fed Case No 1545 (D C N Y 1879). See also Wan en v Garbei, Fed Case No 17, 196 (C C A Va 1877) . Bradbury v Galloway, Fed Case No 1. 764 (1) C Calit 1877) , DeFour v United States, 260 Fed 596, 599 (C C A 9), certioiari denied 253 U S 487, Goubina, v United States, 261 Fed 5 (C C A !1) , Lang v United State,,, 133 Fed 201 (C C A 7) , United States v lcnupnack, 51 F Stupp• 982. 989 (1) C N J ) , United States v etueihach, 68 F Supp 776-778-780 (D C Calif Peters y Felber, 152 P (2d) 42, 66 Calif App (2d) 1011, 1012, 1013 " See Great Norther it Rg Coy United States, 208 U S 452, 465 United States v Chicago, St P , 1[ (C 0 Rg Co , 151 F 84 , 93-94, affirmed, 162 F 835, certiorari denied, 212 U S 579, Lang v United States, 133 F 201, 206-207 (C C A 7) , Ex parte Lamar, 274 11' 160 172 (C C A 2), affirmed per curiani 260 U S 711, jIlaceo v United States. 46 F. (2d) 788. 789 (C C A 5). 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order based on prior unfair labor practices unless the conduct involved continued to be an unfair labor practice under the amending statute.', To this extent therefore, the new law does not operate retroactively. In view of the foregoing, we are of the opinion that the general savings statute must be held to preserve "all liabilities" arising under the National Labor Relations Act prior to amendment. Accordingly, the Board unanimously concludes and finds as a matter of law that the enactment of the recent amendments does not impair our power to adjudicate the present case, or any other case which may have arisen prior to such amendments, and to issue an appropriate order therein. The separate question of what constitutes an appropriate order on these facts will be considered in the section entitled "The Remedy." The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications: 1. We agree with the Trial Examiner and find that on and after May 5, 1945, the respondent refused to bargain collectively with the Union as the execlusive representative of certain of the respondent's employees, in violation of Section 8 (5) and 8 (1) of the National Labor Relations Act prior to the recent amendment thereof.7 We base our decision on the failure of the respondent to reply to the Union's letter of May 4, 1945, requesting that it set a date for negotiations relating to the Union's proposed changes in the counterproposal sub- mitted by the respondent.8 The respondent's 'grant of a unilateral wage increase without consulting the Union is, in our opinion, in- dicative of the respondent's lack of good faith in its dealing with the Union and might under other circumstances be considered as support- ing the finding of a ref usal to bargain within the meaning of Section 8 (5) of the Act.', But we do not, contrary to the Trial Examiner, base our present finding of a refusal to bargain upon this factor, inas- much as the issue was not fully litigated and the record does not establish that the respondent's grant of a unilateral wage increase 6 See Section 102 (c ) of the H R. 3020 , 80th Congress 1st Sess ; Conf Report p 61, House Report No 510, 80th Congress 1st Session ° See The Labor Management Relations Act, 1947. amending the National Laboi Relations Act. 8 See Matter of West Side Cooperative Creamery Association , 69 N L R . B 546, 555 , Matter of Republican Publishing Company , et at , 73 N L. R B 1085 9See Matter of Benson Produce Company, 71 N L R B 888, Matter of South Shone Packing Corporation, 73 N. L. R B 1116 ; Matter of Craddock-Terry Shoe Corporation, 73 N. L. R B. 1339. MARSHALL AND BRUCE COMPANY 93 occurred on or after May 5, 1945, within the allegations of the com- plaint 10 2. The respondent contends in its exceptions and brief that the Union no longer represents a majority of the employees within the established unit and that the respondent is, therefore, under no obli- gation to bargain with the Union. At the conference between the parties in July of 1945, the respondent first claimed that the Union had lost its majority status. There is, however, no contention that the Union ceased to represent a majority of the employees in the unit at any specific time during the year following the Union's certification. Nor is there anything in the record to indicate that on or about May 5, 1945, the Union was no longer the majority representative of the respondent's bindery employees. Under the circumstances, we find that on the occasion of the respondent's failure to reply to the Union's letter of May 4, 1945, the Union represented a majority of the em- ployees within the appropriate unit. The allegation, if true, that the Union at present no longer represents a majority of such employees is immaterial, inasmuch as any subsequent loss in membership is to be attributed to the respondent's refusal to bargain as hereinabove set forth h1 In any event, for reasons set forth in the supplemental deci- sion in Matter of Karp Metal Products Co. In1c.,12 we are of the opinion that it will effectuate the policies of the Act to require the respondent to bargain collectively with the Union.13 3. The general appropriateness of the bargaining unit herein was determined in the Board's previous decision. No issue with respect to such unit has been raised in this proceeding. We note, however, that the unit includes two supervisory employees who should be ex- cluded as no longer being "employees" within the meaning of the Act as amended. Accordingly, we shall amend the unit by eliminating therefrom the foreman and forelady presently included therein. 1° Our decision in this respect is not to be considered as inconsistent with the principle, frequently recognized but inapplicable to the present circumstances, that a variance between the allegations of a complaint and the findings based thereon is muuatei ial where the issues have been fully litigated See N L R. B v Mackay Radio iC Telegraph Co., 304 U S 333 N L R B v Express Publishing Co , 312 U S 426 ii See International Association of Machinists v N L R. B., 311 U S 72, 82 ; N L R B v. Bradfoi it Dyeing Association, 310 U S 318 ; N L R. B. v Bit) he Machine Tool Co , 133 F (2d) 618, 621 (C. C. A. 6) , Matter of Craddock-Terry Shoe Corporation, 73 N L. R B. 1339 1= 51 N L R B 621 ; see also Frank Bros Co v N L R B , 321 U S 702 , N L R B v. I' Lorillard Company, 314 U S 512 ; Matter of Wilson it Co., Inc , 67 N L. It B. 662 ; Matter of Jones iC Laughlin Steel Corporation, 72 N L. R B 975. 13 The contention of the respondent that the Union may have lost its majority status due to the turn-over of employees within the unit, is rejected in the absence of any evidence that the maloiity status of the Union has been affected by such turn-over and because we assume that the majority status of a union which has been certified as bargaining repre- sentative continues for a reasonable time after certification See Matter of Mines Equip- went Company, 62 N L R B 1460 See also N. L R B v Swift and Company, 162 F. (2d) 575 (C C A 3), cert den. October 20, 1947, and cases cited therein. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all employees of the respondent's bindery department, excluding printers, janitors, shipping -room employees, and super- visors,' constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. Inasmuch as neither the unit for which the Union was certified and on the basis of which the respondent refused to bargain, nor its majority status as established by the election, will be substantially altered by the additional exclusions hereinabove referred to, we find that such exclusions do not affect our finding, as previously indicated above, that the respondent in refusing to bargain collectively with the Union violated Section 8 (5) and 8 (1) of the Act-' The Remedy The Trial Examiner recommended that, among other measures de- signed to effectuate the policies of the Act, the respondent cease and desist (1) from taking unilateral action with respect to rates of pad,, wages, hours or other conditions of employment which are the subject of collective bargaining between the Union and the respondent; and (2) 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, or to engage in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. We note that the respondent has not been found guilty of any specific violation other than a refusal to bargain within the meaning of Section 8 (5) of the Act. There is, moreover, nothing in the present record to indicate that the respondent will, in the future, engage in other types of violation of the Act. Under the circtun- stances, we believe that the broad form of cease and desist order recommended by the Trial Examiner is not warranted by the facts of the present case 1, We shall, therefore, limit such order to the subject matter of the unfair labor practice found in the instant proceeding. Tile Trial Examiner further recommended, in accordance with established Board policy, that the Board order the respondent, upon request, to bargain collectively with the Union as the exclusive repre- sentative of the employees in the appropriate unit. In view of the recent amendment to the Act that precludes the Board from certifying 14 Excluded as supervisory employees are employees in the classifications of foreman and forelady , respectively 10 See Matter of Potomac Electric Power Company, 73 N. L. R. B. 1291. 10 See N L R B v. Express Publishing Co , 312 U. S. 426. MARSHALL AND BRUCE COMPANY 95 as bargaining representative any labor organization which, like the Union herein, has not complied with the provisions of Section 9 (f), (g), and (h) of the amended Act, a question presents itself as to the propriety of issuing such an unqualified order in this case. There are two separate issues. The first, on which we are unani- mous, relates to the Board's power to afford any remedy to a non- complying union in an unfair labor practice case in which complaint issued before the effective date of the new Act. More particularly it relates to the existence of such power in cases arising under Section 8 (5) (refusal to bargain). This particular complaint issued in 1946, long before the passage of the Labor Management Relations Act. Sec- tion 9 (f) and (h) provide that "no complaint shall be issued" and Section 9 (g) provides that "no complaint shall issue," in the event of noncompliance. The use of the term "shall" in such a context has been held to indicate legislative intent that an Act apply only to ac- tions taken after the effective date of the Act and not to affect actions taken prior thereto .14 We unanimously conclude that, in view of the prospective language of the ainendinent and the recognized rule of construction with respect to statutory changes in matters of pro- cedure,78 the current failure of the Union to comply with Section 9 (f), (g), and (h) does not impair the Board's power to issue the usual remedial order requiring that the respondent unconditionally bargain upon request with the Union. Nor would it limit our power to issue our usual remedial orders for violations of Section 8 (1), (2), (3), or (4) of the old statute if such were here involved. On the second issue, which relates only to the exercise of the Board's power in refusal to bargain cases, we are not unanimous. A majority of the Board believes that to direct the respondent to bargain with the Union and thus, in effect, to place the Union in the position of a newly certified bargaining representative, would not effectuate the policies of the Act, unless and until it qualifies for certification under Section 9 (f), (g), and (h) within a reasonable time. Although the present proceeding does not involve the actual certification of a bar- 17 Richaril v Nat'l City Baal. 6 F Supp 156 (S D N Y 7) , Ex Paito Dloel, 292 F.- 423, 428 The impact of these Sections on iepresentatcon cases is quite different These we aie precluded from making any "investigation" in the event of non-compliance, regard less of the stage which a case had reached by August 22, 1947 18A statutory amendment affecting a procedural step is deemed inapplicable to pending cases where otherwise "the effect is to reach backward and nullify by relations the things already done There can be no presumption, for illustration, that it statute regulating the foun of pleadings or decisions is intended to invalidate pleadings already served or deci- sions already filed ." See Berkoastz v 9.rbib cC Houberg, Inc, 230 N. Y 261. This doctrine was embodied in Rule 86 of the Federal Rules of Civil Procedure which has been construed by the Federal Courts as requiring that all procedural steps taken prior to the effective date of the new Rules be tested under the old rules in effect at the tune such steps were taken See Hawkinson v Cornell, 26 F Supp 150 (E D Pa 1938) ; Dolcater V Mann- facturei's Trust Co . 25 F. (2d) 637 (N D N Y) , Sprague v T,coner National Bank, 307 U S 161 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining representative, an order requiring an employer to bargain col- lectively with a labor organization is often tantamount in practice to a certification of the latter as bargaining representative. It looks toward a future relationship. It seems to the majority that, granting the existence of the power to treat'all pending 1° cases under the old Section 8 alike, strong reasons exist for dealing differently with those which involved violations of Section 8 (5). The remedy to be applied in various situations lies within the discretion of the Board, the ob- jective being "to effectuate the policies of the Act." (Section 10 (c).) Such discretion should be exercised reasonably and with restraint, the effectuation of the basic Congressional policy being its principal pur- pose.20 We are convinced that Section 9 (f), (g), and (h) not only provide procedural limitations upon the Board's power to act with respect to cases arising after the effective date of the amendment, but also embody a public policy denying utilization of the Board's processes directly to aid the bargaining position of a labor organiza- tion which has failed to comply with the foregoing Sections. We can- not believe that Congress intended the full force of Government to be brought to bear upon an employer to require him to bargain in the future with a Union which we now lack the authority to certify. Therefore, inasmuch as this Union has not complied with Section 9 (f), (g), and (h) and is not presently qualified for certification as bargaining representative, our remedial order in this proceeding shall in part be conditioned upon compliance by the Union with that Sec- tion of the amended Act, within 30 days from the date of the order herein. ORDER Upon the entire record in the 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, Marshall and Bruce Company, Nashville, Tennessee, and its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Nashville Bindery Work- ers Union #83, International Brotherhood of Bookbinders, affiliated with the American Federation of Labor, if and when said labor organization shall have complied, within 30 days from the date of this order, with Section 9 (f), (g), and (h) of the Act as amended '21 10 In this context, the word "pending" relates to cases in which complaint issued before August 22, 1947 20 See the opinions of the Chairman in Matter of Thompson Products, Inc, 70 N. L. R. B. 13, 16, and in Matter of Detroit Edison Company, 74 N L. R. B 267. i As to what constitutes compliance in this respect, see Matter of Not there Virginia P.i oadcasters, Inc., 75 N L. R. B 11. MARSHALL AND BRUCE COMPANY 97 as the exclusive bargaining representative of all employees of the respondent's bindery department, excluding printers, janitors, ship- ping room employees, and supervisors; 22 (b) In any other manner interfering with the efforts of Nashville Bindery Workers Union #83, International Brotherhood of Book- binders, affiliated with the American Federation of Labor, if and when said labor organization shall have complied with the filing requirements of the Act, as amended. in the manner set forth above, to negotiate for or to represent the employees in the aforesaid bargain- ing unit, as their exclusive bargaining agent. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, and upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, bargain collectively with Nashville Bindery Workers Union #83, International Brotherhood of Bookbinders, affiliated with the American Federation of Labor, as the exclusive representative of all its employees in the above described appropriate unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreenment. (b) Post in conspicuous places throughout its plant at Nashville, Tennessee, copies of the notice attached hereto marked "Appendix A." 23 Copies of said notice, to be furnished by the Regional Director for the Tenth 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 thirty (30) consecutive days there- after and also for an additional thirty ( 30) consecutive days in the event of compliance by the Union with the filing requirements of the Act as amended, 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 Tenth Region in writing, within ten (10) days from the date of this Order, and again within ten (10) clays from the future date, if any, on which the respondent is officially notified that the Union has met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. 22 See footnote 14, sup) a 23 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inseited , before the words , "A Decision and Order " the words "Decree of the United States Circuit Coin t of Appeals Enforcing " '98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DfEiyIBrlls HOUSTON and Mtirinocii, concurring in part and dissenting in part : The case before us is one of many which were pending before the board for disposition on the effective date of the amendments to the National Labor Relations Act. In such cases, the Board was con- fronted with a question as to whether the amendments placed an ni- hibition upon the power of the Board to proceed to final action. We agree unqualifiedly with the majority that nothing in the amendments enjoins us from finally disposing of these cases, or from issuing the remedial order which is customary in proceedings involving unlawful refusal to bargain. We concur in this portion of our colleagues' de- cision. Consequently, because we are satisfied that the Respondent violated its obligation to bargain with the Umon, we also join our colleagues in their recognition of the necessity for a Board order here. It is from this point forward, however, that we differ. Directing attention to Section 9 (f), (g), and (h) of the amenchnents, a majority of the Board has placed a qualification upon the order which we would normally issue in remedying a violation of the obligation to bargain collectively. Simply stated, the Respondent is ordered to bargain, but only if the union officers within 30 clays from the issuance of the order, satisfy the requirements of the above-noted sections. A notice is also required to be posted by the Respondent informing the em- ployees of the sense of the order and its conditional character. We think the limitation imposed by the majority upon the order in tins case is neither demanded by the cited subsections themselves, nor warranted by any broad consideration of policy to be found in the amendments as a whole. Quite the contrary. Decisive support for the issuance of our customary order exists in the explicit language of the subsections and of Section 10 (c) ; and a complete appreciation of the basic purposes of the Act, as amended, importunes us to abstain from conditioning our order. Clearer and less ambiguous language hardly can be found in any Congressional enactment in a technical field than that used in Section 9 (f), (g), and (h) to list those procedures which we must withhold from labor organizations failing to comply with its requirements. Absent compliance by the affected labor organization, the Board is forbidden to take the following procedural steps : (1) We may not in- vestigate a question concerning the representation of employees raised by the labor organization, or certify that organization as the statutory bargaining representative of employees; 24 (2) we may not "enter- 34 Subsection 9 (g), alone mentions a proscription against certification. but we do not dispute the majority-'s assumption that Subsections 9 (t) and (h) also contemplate that a non-complying labor organization which has raised the question concerning the rehresen- MARSHALL AND BRUCE COMPANY 99 tans" the labor organization's petition, under Section 9 (e) (1), for an election to determine whether a majority of employees in the bar- gaining unit desire a contract containing union security provisions; and, finally, (3) "no complaint shall be issued pursuant to a charge" filed by the noncomplying labor organization. The absence of any mention of Board orders in pending complaint cases is not only a recognition by the legislature that the Board retains power to snake such orders in cases in which complaints were issued before the effec- tive date of the amendments, but it is also a clear indication that the Congress intended no restraint upon the full exercise of our power to remedy existing violations. It must be remembered, in this, con- nection, that Section 10 (c) of the Act, now as always, commands the Board in a complaint case, if it finds that the respondent has engaged in the unfair labor practice with which it is charged, to "issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action . . . as will effectuate the policies of this Act." 2' With respect to the cease and desist requirement, in any case where the Board finds that the Respondent has violated the Act, it would seem that the Board has no such discretion as the majority assumes in this case .21 Certainly had Congress, aware of the large number of cases pending before the Board on the effective date of the amendments, desired either to modify our plain duty to issue cease and desist orders or to inhibit our Cation of employees, shall not be certified as the representative of such employees under Section 9 (a) The entire sentence read as follows If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act This language was unchanged by the recent amendments, although Section 10 (c) was otlierii ice amended bJ the addition of provisos limiting the affirmative relief which may be afforded in certain situations not here involved 20 We realize that to compel discontinuance of the respondent's "refusal" to bargain is to compel "affirmative action," namely, bargaining In other words, in cases like this one where the unfair labor practice is a refusal to bargain, the cease and desist order is, necessanly, in the nature of a mandatory injunction calling for affirmative action But, in view of the express command contained in Section 10 (c), supra, it does not follow that the Board has either the discretion to determine that an order "requiring such person to cease and desist from such unfair labor practice" would not achieve the purposes of the Act, or the power to withhold or condition such order on that ground In our view, the second clause of the above quoted statutory language merely authorizes whatever affirmative relief the Board in its discretion deems necessary in addition to the mandatory cease and desist order Of course, for the reasons stated elsewhere in this opinion, we believe, contrary to the majority that in this case the customary order requiring the respondent, in haec verba, to bargain collectively with the charging union, would best "effectuate the policies of this Act ' We therefore perceive no conflict between the mandate to issue a cease and desist order, and the injunction laid upon the Board to "effectuate the policies of this Act" in devising an affirmative remedy. 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discretion in granting affirmative relief under Section 10 (c), it would have been as precise in so stating as it was in listing the proscribed procedures enumerated in the subsections . Consequently, we are con- vinced that the language of subsection ( 9) (f), (g), and (h) does not contemplate that we abandon in this case the issuance of our customary order. Despite the precision of the language in the subsections , and despite its agreement that we havepower to issue an affirmative and unqualified order, the majority considers that such an order is tantamount to It certification , and that because certification of noncomplying labor organizations is prohibited , we must not issue our customary bargain- ing order. It is quite apparent, however, that the alleged analogy to a certification is founded neither in fact, tradition, nor in law. When, pursuant to Section 9, the Board certifies a labor organization, it thereby declares to the parties in interest that the statutory require- ments which are conditions precedent to exclusive representation have been met and , consequently, the labor organization involved is the statutory representative of the employees in the appropriate unit. Certification is normally the last step taken by the Board under its duty to ascertain collective bargaining representatives. A bargaining order, on the other hand , follows an improper disregard by an em- ployer of the status of the labor organization so established. A bar- gaining order does not newly certify a labor organization . It is in its most essential sense a command to an employer to cure by affirmative action his derogation of the public right created by the certificate. It is judicially enforceable and may provide the basis of a contempt decree. As a result , whatever mandate the subsections place upon the Board to withhold certification from non-complying labor organiza- tions, it appears most inappropriate that the alleged analogy should provide a basis for justifying the refusal to issue our customary bar- gaining order. We think the majority's desire to speed effectuation of the objectives of Section 9 (f), (g), and (h) at the expense of existing rights mis- conceives the plain purpose of Congress in these provisions. That Section sets out a technique by which the legislature hoped to achieve full disclosure of financial and other data respecting the organizational structure of labor unions and to force Communists in the American Labor movement to subject themselves to the risk of elimination by rank and file unionists anxious to have the full protection of the new legislation. Granting these desiderata to be major purposes of the legislation, the statutory method selected and the unambiguous lan- guage employed by Congress to realize them points , conclusively in our view, to an intent only to begin achieving them, by the device of erecting certain procedural barriers , just so soon as unions, in normal MARSHALL AND BRUCE COMPANY 101 course, find it necessary to bring new cases to the Board in order to obtain recognition for collective bargaining purposes or to secure re- dress against unfair labor practices. We have already adverted to the significant fact that the cited subsections, specific and detailed as they are, contain no reference to orders in pending unfair labor practice cases where, as here, the complaints were long since ]awfully issued. In addition, the language of the subsections is, clearly, designed to affect future procedural rights, not substantive rights already vested before the new legislation became effective. Section 9 (f), for example, expressly provides that the requirements enumerated there must have been met "prior" to or "contemporaneously" with the issuance of the complaint. Clearly with respect to complaints issued in 1946, as is the fact in this case, such language would be meaningless because such requirements as are called for by Section 9 (f) did not exist in 1946 and, consequently, this language must have a prospective meaning if it is to mean anything. It is, moreover, signally important that in each of the three subsections Congress employed the future tense; 9 (f) and (h) provide that "no complaint shall be issued" and 9 (g) provides "no complaint shall issue." It must follow front these con- siderations that Congress intended us to apply to pending cases those traditional concepts both of decision and remedy employed prior to the enactment of the amendments, despite the prescriptions contained in 9 (f), (g), and (h). Our conviction in the above respect is fortified when the whole pur- pose of the new amendments is taken into account. When that is done, it becomes increasingly apparent that the conditional order of the majority conflicts with basic purposes of the Act, as amended. No one will dispute the conclusion that Congress in the new legislation de- sired to preserve and to strengthen the institution of collective bar- gaining. Its concern in this regard is not only clearly disclosed in the statement of policy in the new legislation, but finds specific application in provisions designed to minimize the impact of new substantive con- cepts upon rights and obligations which came into existence prior to the new legislation. Section 102 provides in substance that parties to contracts containing presently outlawed security provisions may never- theless retain such rights under those agreements for a specific term. Correlative obligations under such agreements are also preserved. In- deed, permission was granted to make or renew such agreements for a specific term if execution or renewal occurred prior to the effective date of the amenchnents. In similar character, are the provisions of Section 103.27 They are designed to preserve for a definite period of 24 Section 10-i provides as follows "No provisions of this title shall affect any certification of iepiesentatives or any determination as to the appropriate collective -bargaining unit, which was made under 766972-48-vol 75-8 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time the vitality of certificates, and contracts made pursuant to them, against any attack, whether made possible by other provisions in the amendments or not. We take these sections to be clear illustrations of a legislative intent to smooth out conflicts considered inevitable in the transition from old to new statutory schemes. We are impressed that the means chosen was to keep alive existing rights and obligations despite other provisions in the amendments, application of which -night defeat this purpose. We must view Section 9 (f), (g), and (h) as such another provision in the amendlneiits, which, if we give it the application our colleagues have decided it is entitled to, will operate to defeat the broad congressional purpose to leave intact existing col- lective bargaining rights and obligations. We are motivated finally in our disagreement with the issuance of the conditional order by a realization that its effect is to relieve this employer of the consequences of conduct no less a violation today than in 1945, and at the same time to nullify a right for which the public interest demands vindication today no less than when the right was infringed. APPENDIX A 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 WE WiLL NOT refuse to bargain collectively with Nashville Bind- cry Workers Union #83, International Brotherhood of Book- binders, AFL, as the exclusive representative of all employees in the Bindery Department, excluding printers, janitors, shipping room employees, and supervisory employees; provided said labor organization complies, within thirty (30) days from the date of the aforesaid order of the Board, with Section 9 (f), (g) and (h) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with the efforts of Nashville Bindery Workers Union #83, International Brother- hood of Bookbinders, AFL, to negotiate for or represent em- ployees of the aforesaid bargaining unit, as their exclusive bar- gaining agent; provided said labor organization complies, within thirty (30) days from the date of the aforesaid order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. Section 9 of the National Labor Relations Act prior to the effective date of this title until one veal after the date of such certification or if, in respect of any such certification, a collective-bargauung contract was entered into prior to the effective date of this title, until the end of the contract period or until one yeas after such (late, whichever first occurs." MARSHALL AND BRUCE COMPANY 103 WE Wn.L BARGAIN collectively upon request with Nashville Bindery `Yorkers Union #83, International Brotherhood of Bookbinders, AFL, as the exclusive bargaining representative of all employees in the unit described herein with respect to labor chs- pates, grievances, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organization complies, within thirty (30) clays front the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All employees of the respondent in its bindery departnnent, em- ployed at its Nashville, Tennessee, plant, excluding printers, jani- tors, shipping room employees, and supervisory employees. All our employees are free to become or remain members of the above-named union or any other labor organization. MA1 SIIALL AND BRUCE COMPANY, By ------------------- ------------ (Representative) (Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Cl,/tol d L Hat d y, Esq, for the Board. Iiin,rstead, Wullci, Davis & Landsoa, by William Wullci, Esq, of Nashville, Tenu , tor the respondent Ilteasr's W P Barber, of Atlanta, Ga, and L E Goodrich, of Nashville, Tenn., for the Union STATEMENT OF THE CASE Upon a charge duly filed by Nashville Bindery Workers Union #83, Interna- tional Brotherhood of Bookbinders, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated October 28, 1948, against Marshall and Bruce Comp.um Nashville, Tennessee, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat 449, herein called the Act Copies of the complaint, charge, and notice of hearing were duly served upon the respondent and the Union Concerning unfair labor practices, the complaint alleged in substance that the respondent on or about May 5, 1945, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in 'The original pleadings did not show the affiliation with the AFL The complaint was amended at the healing to indicate that the local union was affiliated with the Amea ican Federation of Labor, through its own affiliation with the International Brotherhood of Bookbinders. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an appropriate unit. On November 5. 1946, the respondent filed an answer in which it admitted the jurisdictional allegations of the complaint but denied the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held at Nashville, Tennessee, on November 25, 1946, before Victor Hirshfield, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, and the Union by two representatives, and all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing, the Board's motion to conform the pleadings to the proof was granted An infoi mal discussion of the issues presented by counsel for both the Board and the respondent, was followed by the fixing of a date prior to which briefs and/or proposed findings of fact and conclusions of law were to be filed. The respondent has submitted both a brief and proposed findings of fact and conclusions of law, which have been considered by the undersigned. The Board and the Union submitted neither briefs nor proposed findings of fact and conclusions of law. Upon the entire record in the case and from his observation of the wilnesces, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Marshall and Bruce Company, a Tennessee coipoiation, has its principal place of business and its plant at Nashville. Tennessee where it is engaged in the manufacture, sale, and distribution of printing and litho,raph- ing, blank books. and related products. In its business, the respondent used paper, ink, and chemicals, amounting in value to more than $100,000 per annum. during the years 1944, 1945, and 1940, over 50 percent of which mates i ils were transported and delivered in interstate commerce from outside the State of Tennessee; during the same years, sales of the respondent's products. over 10 percent of which were sold outside of the State of Tennessee, amounted to more than $100,000 per annum. The respondent admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED Nashville Bindery WVoikers Union #83, Inteinational Biotheihood of Book- binders, affiliated with the American Federation of Labor, is a labor organiza- tion admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively 1. The appropriate unit The complaint alleges that all employees of the respondent's bindery depart- ment, including foreman and forelady, exclusive of printers, janitors, and shipping room employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act The respondent in its answer admitted the appropriateness of this unit, and no fuither proof was adduced in support of this allegation at the hearing MARSHALL AND BRUCE COMPANY 105 The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. The sequence of events On or about June 12, 1944, the Union filed an Amended Petition for Certification of Representatives with the Board. On June 14, 1944, the respondent signed an agreement for a consent election. The election was held on June 27, 1944, and the Tally of Ballots indicated that of a total of 40 eligible voters, 22 voted for, and 18 against, the Union 2 Walter F. Barber, an International Representative of the Union, was present at the election and immediately after the result was announced, he telephoned E Al. Allen, Jr., then president of the respondent.' Allen, in reply to Barber's request for an immediate conference to begin the negotiating of a contract, stated that he would have to talk to his attorney, and asked Barber to call him on the following morning. Barber telephoned Allen at the appointed time, and was told that the latter's attorney, George Armistead, Jr, had suggested that he await the official certifi- cation of the Union by the Board. On July 5, 1945, the Board issued its '*Consent Determination of Representatives." Barber made several attempts between that date and September 15, 1944, to meet with Allen, but was unsuc- cessful mainly because the parties were unable to agree upon a date satisfactory to Allen. However, on September 15, 1944, Barber and L. E Goodrich, president of the local union, met with Allen and his attorney, Armistead, in the latter's office The Union submitted a proposed contract to the respondent which was not dis- cussed in detail because Allen said he did not have time to do so since he was leaving Nashville the following morning for a vacation, after which he planned to go to the East and to South Alabama on business matters. Barber said that "a couple of months" had passed without any negotiations and with no meetings of any kind, and that the delay had been caused by Allen's business problems, and that he thought that "something should be done about getting together on a contract." Allen replied: "Well, we do not question your repiesentation." Barber said that "the question is whether you will or not " To Allen's question "What more do you want than my word that we don't question your representa- tion'?' Barber said that lie "wanted something in black and white." Armistead then prepared the following letter upon his firm's stationery: SEPTEMBER 15, 1944. INTERNATIONAL BroTnEalloon OF BOOKBINDERS, Attention: AID. TV. F. Bat ber, Atlanta, Geoi pea. GENTLEMEN : In conference today between Mr. W. F. Barber and Mr. Ernest Allen, Mr. Barber representing the International Brotherhood of Bookbinders, Local No. 83, and AIr. Allen representing Marshall & Bruce Company, it was agreed that no question will be made by Marshall & Bruce Company as to the certification by the NLRB and that you are the bargaining agent for the employees of Marshall & Bruce Company in the bindery department. Yours very truly, GHA : hws. GEORGE H.ARMISTEAD, Jr. 2 Matter of Marshall & Bruce Company, 75 N. L. R. B. 90 1 Allen died in November 1945. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On October 12, 1944, the parties niet again Present at this conference were Baibei, Goodrich, Allen, and G Allen Rather, then supeirntendent of the respondent's plant' The subject of discussion was the contract which the Union had submitted in September. Some agreement was reached on certain portions of the contract, but when the parties separated that day, a complete contract had not been worked out Barber suggested to Allen that then meet on the following day to finish negotiations, but Allen refused. stating that lie had certain business commitments w'iiich made it impossible for him to set a definite date for the next meeting He suggested that Barber call him from time to time "to see when he could get time enough to sit down with" the Union and "finislr negotiations " " The parties did not meet again until May 3, 1945 Both Barber and Goodrich. made many unsuccessful attempts to arrange conferences with Allen in the interim Present on May 3, 1045, were Allen and Rather for the respondent, and Goodrich, Binber, Secretary Johnson of the local union, and Fred Doty, an em- ployee of the respondent, for the Union At this conference, the respondent offered a counterproposal to the Union's proposal foi a contract which had been submitted and discussed at the September and October meetings during 1944 Allen offered the counterproposal with the statement : Here is a counterproposal to show we are negotiating in rood faith, but I'll tell you right now, 1 ani not guaranteeing that I will sign even that, without some negotiations " The Union was not impressed with the merits of the counterproposal, anal Barber told Allen. "This is not the contract is we have agreed up till this point You are presenting a counterproposal to us when we have aalread v gone through our proposal to you and made these corrections, and the counterproposal you are presenting is not what we have agreed on prior to now " After presenting the counterproposal and arguing its merits, Allen said that he had a meeting of his salesmen scheduled and could not continue with the con- ference. Barber said that be "had come foi the purpose of winding up this contract" and that be could spend enough time there "to -, ind it up" but Allen refused to continue and said that he could not make a definite date for the next conference within the next few days or weeks Barber said that lie "would be back" in Nashville "around the fin st or tenth of June" and asked Allen whether they could get together at that time Allen said that lie "would consider it and let" Baiber "know." After the conference broke up, the Union representatives returned to Barber's hotel room where they studied the provisions of the counterproposal On the following day Barber prepared a letter addressed to Allen, in which he discussed the respondent's counterproposals and concluded the letter with the following paragraphs It is my opinion that the changes suggested here will serve your purpose and will also serve the purpose of the Union and by making these minor ° Rather succeeded Allen after the litter's death in November 1945, as president and rhanmaur of the respondent's Bo,ud of Directors He occupied these offices at the time of the hearing a The proceeding is based on the credited testnnony of Basher and Goodr ich, as well is exhibits the validity of which were not questioned The respondent's version of these events, winch differs in important respects from that of the Board, will he discussed hereinafter. "Bused on the testimony of Rather Rho is credited in this instance MARSHALL AND BRUCE COMPANY 107 changes will nearer meet a happy medium and a more satisfactory adjusted (sic) for all parties conceived At your earliest convenience please give me your reaction to these proposed changes and the approximate date that you will be able to meet with me to discuss these changes As I stated yesterday, I don't expect to be back ur the South until about the first of June The letter was mailed the same day and there is no question that it was ic- ceived by the respondent Although Ba i her telephoned Allen several times be- tween May 4 and May 15 , 1945, and again on or about June 10, 1945, he was unsuccessful in obtaining, another conference Neither Goodrich nor Barber heard anything else from the respondent with respect to negotiations on the contract. After Barber failed to a irange a conference with Allen oil or about June 10, 1945 , he found it impossible to return to Nashville . As a result he asked Robert A. Haskins, vice president of the International Union, to get in touch with Allen Accompanied by Goodrich , Haskins called upon Allen, without pre- viously waking an appointment, on July 23 or 24 . 1945 Allen seemed surprised to see the Union representative and talked to them briefly , asking them to meet with Armistead and himself on the following day. At the conference thus arranged , Armistead told Haskins and Goodrich that the Union no longer represented the employees , that the certification had run out since more than a year had elapsed since the date of the election , and that if the respondent was to bargain with the Union , it would have to have new proof that the Union represented the employees The Union called in the United States Conciliation Service and Commissioner Peek of that agency attempted to settle the dispute early in September 1945. Peek was unable to establish an undeistanding between the parties, and the net result of his work was to have the parties write letters to the Regional Director of the Tenth Region , each setting forth his side of the controveisy. The respondent 's attorney At mistead' wrote the lettei to the Regional Dnector set forth below SEP i'E1ti3ER 6, 1945 DEAR SL{ On yesterday, Mr Peek, United Conciliator, was in to con- fer with me and Mr Ernest Allen, Jr , president of Marshall & Bruce Com- pany. Mr Peek was accomp.inied by Mr L E Goodrich, repiesenting the international Brotherhood of Bookbinders, Local No 83 1 explained to Mr. Peek our position in this matter You issued your direc- tive on June 27, 1944, certifying that the Union had been selected as the bargaining agent On September 15, 1944, Mr W F Barber, representing the brotherhood, conferred with vie and Mr Allen relative to a contract. The conference lasted for some time and no agreement was reached. Mr Barber told us that lie could not return for a week or two, I believe that was the time, and asked me to give him a letter to the effect that our client would not, during the interim, question the certification by the Board I gave him such a letter. About October 11th or 12th, 1 presented to Mr Barber the contract I had drafted. We heard nothing from him until Tuesday, May 1, 1945 At that time he expected to be in Nashville about the first of June, and Mr. Allen postponed a trip, awaiting illr. Barber's arrival. ' Armistead did not appear at the hearing There was no showing made that he was unavailable The iespondent was represented by Armistead 's law partner, Walter. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We heard nothing further until about two weeks ago, Mr Goodrich and the International vice piesident of the Union came to see us At that time I told them I seriously doubted if the directive was still in effect. They (lid not agree with my position. Mr. Peek suggested that 1 write you , and accordingly I am doing so, to state that our client takes the position that the directive of June 27, 1944, is no longer in effect, and suggests another election . Several members of the Union came to Mr . Allen and informed him that they were no longer members . This occurred months ago. Naturally if the Union does not represent a majority of the employees, Marshall & Bruce does not feel obligated to bargain with the Union. If, on the contrary , it develops that the Union does iepresent a majority of the employees, then we can begin negotiations. The Union 's letter to the Regional Director was signed by Goodrich. It set forth the Union's version of the facts, noted the reasons for the respondent's objections to bargaining with it, and concluded with the statement that it was "the Union 's contention that it still represented the employees " It is the Board 's contention that the refusal to bargain occurred on or about May 5, 1945, the day on which the respondent received the Union's letter with respect to the counterproposal , and has continued since that time B. Respondent's contentions 1. Introduction Respondent's contentions as to the alleged i efusal to ban gam desci ibed above, may be divided into two parts. In the first place the respondent contends that the Union was guilty of ]aches in that it was responsible for the series of delays in the negotiations. In the second place, the respondent contends that since several union members who presumably voted for the Union in the election had resigned from the Union, the majority of the Union was reduced to a point where a new question concerning representation had come about, and that it was therefore the duty of the Union to furnish new proof of its majority status, before the respondent was obligated to bargain with it. 2. The delays in negotiations The respondent alleges that there are two instances of delay in proceeding with negotiations for which the Union was responsible These instances relate (1) to the date at which the respondent's counterproposal was offered to the Union , and (2 ) to the events which occurred subsequent to May 5, 1945. As to the first instance, the Union asserts that it presented a contract to the respondent in September 1944 , that further negotiations on this contract occurred in October 1944, and that it was unable to secure another conference with the i espondent until May 3, 1945, at which time the respondent presented it with the counterproposal . The respondent asserts that the Union presented its proposed contract in September 1944, that it presented its counterproposal to the Union in October 1944, and that it heard nothing from the Union until May 1945. Thus the question as to when the counterproposal was presented is of importance in determining the question as to which of the parties was responsible for the delay. Allen, Rather, Barber, Goodrich , and possibly Armistead " were present during the October conference. Barber testified first and Goodrich did not hear his 'As noted above Armistead (lid not testify. None of the witnesses identified him as being piesent at the October meeting Nevertheless the undersigned notes the language MARSHALL AND BRUCE COMPANY 109 testimony because the undersigned granted a motion by the respondent to separ- ate the witnesses Barber testified that the October conference was devoted to a further discussion of the Union's proposed contract ; that the counterproposal was offered at the May 3, 1945, conference; and that he had made many un- successful efforts to arrange a conference between the Union and the respondent between October and May. On cross-examination he was shown the counterpro- posal which was dated "this - clay of October, 1944." His testimony on this point follows : Q. (By Mr. WALLER.) I show you my copy [of the counterproposal.] The date in the preamble of the proposed agreement is, the " day of October, 1944, is it not?" A. (BARBER). That is true. Q You say that wasn't given to you until May, 1945? A. That is correct. I might state here for clarification on that. We were insistent on retroactive pay to the election date And Mr Allen would not agree to that. So, when lie come back with that counterproposal to its in May of the following year, he said, "We will go back part of the way," and lie dated it as of October. Q. When was that conversation that you are now relating? When did that take place? A. We insisted at the first meeting with Mr Allen and Mr. Rather, a retroactive date to June 27, 1944, the day we won the election. Q Yes, sir A. And Mr. Allen in his proposal to us in May the following year proposed it back to October Q Do you mean the first you ever heard of this proposal that it be retro- active to October, was in the meeting of May 3, 1945'? A. That is correct. Q You had not previously agreed on that" A October? No, sir. Q. As the retroactive date? A. No, sir We were insisting on the June date, and he agreed to co back part of the way in retroactivity Goodrich testified similarly that the Union did not receive the counterpro- posal from the respondent until the May 1945 conference. Rather, who was the only witness for the respondent, testified as follows : Q (By Mr. WALLER ) Mr. Rather, were you present at the meeting between the Company and the Union in September, 1944, or thereabouts, when the Union proposed a contract? A. Yes, sir. Q After that date chic] the company's attorney, Mr. Armistead, at the request of you and Mr. Allen prepare this counterproposal which has been filed as Board's Exhibit No 4? A. Yes, sir. Q. Were you present when that counterproposal was given representatives of the Union? of his letter of September 15, 1945, to the Regional Director , in which he states, "About October 11 or 12 I presented to Mr. Baiber the contract I had drafted " The undersigned was not able to make a positive finding on such testimony 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A Yes, sir. Q Will you state approximately when that took place and where it took place , and who was present? A. It took place in my private office, with Mr Allen , Mr. Goodrich and Mr Barber present. It was in October Q Of what year'? A 1945. Q Do you mean it was in the same year that the Union offered its proposal? A. Yes, within maybe thirty days, or something like that. Q That was 1944'+ A 1944 , yes sir, 194A Q. Then was that counterproposal discussed at the meeting which was held in May, 1945, the one that had been given DIr Barber and DIr . Goodrich in October, 1944? A I don 't remember I don't believe it was.' On cross-examination the witness testified as follows Q (By Mr . HARDY ) I hand you what has been ieceived as Board's Exhibit 4 . . which has been identified as counterproposal of the Respond- ent. Is that the counterproposal or copy of it? A. Yes, sir Q Submitted to the Union on October 12, 1944? A October , yes sir. I don't know whether it was the twelfth or not. Q What did you say about the Union 's proposal? What was said? A We told them that we-as well as I remember-that this was our counterproposal in negotiating the contract. Q Did you make any marks on any of those contracts? A Yes, sir , we made some marks on his contract. Q What did you do with yours? A With what? Q What happened to the counterproposal? A Never did hear anything about it Q During this October 12 meeting what happened to it? A It wasn 't even mentioned. Q Trial Exaniinei HIRSHM ELD. You mean the counterproposal wasn't mentioned? A Our counterproposal wasn 't even mentioned or discussed. Q Trial Examiner ILRSariELD. In the October 12 meeting? A That is right. Q. (By Mr HARDY ) The only contract discussed in the October 12 meet- ing was the Union 's contract? A Yes, sii From Bather's testimony it would seem that the counterproposal was not mentioned or discussed at the October sneetmtq, that the only contract discussed at that time was the Union's contract; and that he "didn't believe" that the counterproposal was discussed at the May 1945, meeting. The undersigned finds it impossible to credit such confused and vague testimony, while on the other hand he found the testimony of Goodrich and Barber to be straighforward and credi- ble. Barber's version of the reason for the October dating of the counterproposal was clear and lucid and was not rebutted or weakened in any way. The above was on direct exauunation The leading nature of the questions is noted MARSHALL AND BRUCE COMPANY 111 The undersigned finds that the counterproposal was given to the Union in Nay 1945, and not in October 1944, as contended by the respondent 10 The second instance in which the respondent alleges that the Union caused the delays referred to above relate to the period between May 3, 1945, and June 27. 1945 The respondent claims that it was understood between the parties that Barber would return to Nashville oil June 1, 1945, that as a result Allen postponed a vacation to meet with hint, and that Bat ber canceled the .appointment. In support of this contention, Rather testified as follows : Q (By Jlr WALLER ) . . had Mr Barber indicated at time when lie would be back in Nashville? A. (RATHER ) i\Ir Barbee indicated, he wrote he would be back in June." Q. Did lie say what pill t of June? A I don't i ecall w Nether lie did or not Q. Were you present at any time when Jar Allen after that talked to Jlr. Barber on the telephone" A Yes, sir Q State about when that was and what the circuinstances-were A It was along in June, and Mr Allen-there was it long distance call I rom the East. I believe, as well as I remember, it was Washington; and it was a long distance call for J[r Allen, and lie always took his long distance calls in my private office, because it was so noisy around his desk He talked a pretty good little while. and when lie got through he said it was Jar. Barber; .said lie was tied up and couldn't get to Nashville right now. Q In the meantime, had Mr Allen had a vacation planned? A. He had a vacation planned, and lie was not able to take his vacation. Jlr. Barber didn't give hint any definite time at that time when lie would be there Barber denied that he had telephoned Allen to postpone it confeience The respondent in its brief argues in support of this point that at the September 1945 conference with Conciliator Peek, Allen told Peek he had heard nothing from Barber ,nice the ]aster's letter written in May. The brief then continues: "Bar- hei wab presented and did not deny it (Ti p 50) " Reference to the cited page of the transcript fails to ieveal that Baibei was piesent at this conference. On the eontiary, the testimony of all witnesses deahmg with this point clearly shows that Barber was not piesent at the confeience with Peek, and this he did not brae the opportunity to deny Allen's statement Even if the statement that "Allen told Peek he had heard nothing fro n Barber since his letter written in Jlay. 1045" is accepted, it would tend to refute rathei than support Rather's tes- tnnonv that he was piesent when Bather telephoned Allen from Washington in June with respect to postponing negotiations The undersigned does not credit Rather in this testimony and finds that Barber nude several efforts to meet with the respondent between May 4, 1945, and May 15, 1945, and on or about June 10, 1945, and that these efforts were unsuccessful be- cause lie could not obtain Allen's consent to a meeting It is clear, and the undersigned finds, that the delays in negotiations were caused by the respondent and not by the Union, and that while the Union reps esentatives "'A ioi t from the testiinmiy, the manner of the witnesses, and their genera credibility, the undeisigned has also consideied the letter written to the respondent by B,nber on May 4, 1945 Obviously if the couuteipioposal had been ofteied to the Union in October, there would be no point to a lettci which deals with the counterproposal as a new offer. 11 -lpparentl3 iefeirnig to the Union's letter dated May 4, 1945 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made every effort to arrange conferences and negotiate a contract. the respondent continuously offered excuses and delayed matters 12 3. The resignations from the Union Rather testified, and he is credited in this instance, that a wage increase had been granted to the entire plant during the year ending June 27. 1945. His testi- mony follows : Q. (By Mr. H.sIiuY ) During this same year of certification, June 2"i, 1944 to June 26, 1945, did any of these employees receive a raise1 A. (RATHER). I am pretty sure they did. Q. Was there a general raise given to all employees" A. General raise to all employees? Q. Was it about $2 a week'? A. Maybe something like that. Q. Trial Examiner HIRSHI'IELD. When was this? A. The WITNESS He said during that period-year's period; wasn't that what you said? Mr. HARDY Yes, Sir June 27, 1944 to June 27, 1945. Trial Examiner HIRSdHF+IELn Would you happen to know what day or around what month that was? The WITNESS. I couldn't say that. Q. (By Mr. HARDY.) But you recall there was a general increase? A. Yes, sir. Q Blanket increase to everybody, whole plant, including the Bindery Department? A. Yes. Q Were any individual rases given to any employees in the Bindery Department? A. There may have been for some of the girls that went from helper to journeywomen, you know. Q. Is that more or less automatic? A. Yes, Sir. Done by the timekeeping department. Not done by manage- ment at all. Q Was the Union consulted about those raises? A. No, sir. It is clear from the above that the respondent unilaterally, and without consultation with the Union granted an increase to the employees of the Bindery Department during the year ending June 27, 1945. The respondent contends that between July 9 and 17, 1945, three of its em- ployees, W. 11 Judd, Clarence P Luther,'and L H. Midick 13 who were part of the bargaining unit, came to Allen and Rather, and told them that they had withdrawn Isom the Union 14 It is the respondent's contention that these 18 The respondent objected to the introduction of any testimony relating to events occurring before the alleged refusal to bargain on May 5, 1945. However, it proceeded to litigate the issues at length , and, in fact , bases a large pact of its defense on the counter- proposals which as has been noted above , it alleges was given to the Union in 1944 13 Two of those named were no longer employed by the respondent at the time of the hearing "Rather testified , and he is credited in this instance , that They [ the employees who resigned from the Union] said, they told me it didn t look like the Union was going to do anything about the organization , and they wasn't going to be pa.ing dues in something they weren' t doing anything about." MARSHALL AND BRUCE COMPANY 113 resignations changed the status of the Union as the collective bargaining rep- resentative by reducing the majority of the Union, which, it will be rembeled, had won the election by a vote of 22 to 1S. It is clear, and the undersigned finds, that the resignation of the three em- ployees from the Union was brought about by the unfair labor practices of the respondent A year which had passed with but three collective bargaining con- ferences and (luring which the Union had made many unsuccessful attempts to obtain a collective bargaining agi ecinent from the respondent, had left its mark, as was to be expected, upon the Union membership. As Rather himself testified, these employees who had resigned told him that they were doing so because 11it didn't look as it the Union was going to do anything about the organization, and they wasn't -oing to be paying clues in something they weren't doing any- thing about." Such it statement clearly indicates that these employees resigned only because the Union had not obtained some sort of agreement with the respondent, and the reason for the latter state of affairs was the delaying tactics of the respondent The respondent now gives as a season for refusing to enter into a contract with the Union the results of its own illegal conduct and asks not only that its conduct be condoned, but that the Union's status as the representative of the employees be set aside Conclusions 1. As to the representation by the Union of a majority in the appropriate unit The undersigned finds that on June 27, 1944, and at all times thereafter, the Union was, and now is, the drily designated representative of the majority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all tines was, and now is, the representative of all the respondent's employees in such unit for the purposes of collective bargain- ing iii respect to rates of pay, wages, hours of employment or other conditions of employment. 2. As to the refusal to bargain The conferences between the respondent and the Union were to all intents and purposes a series of tinee meetings, at none of which did the respondent seriously get down to the business of reaching a collective bargaining agreement. The first conference in September 1944, at which the Union offered its proposed con- tract, was cut short because Allen was leaving on a vacation on the following dal . the second conference in October while ostensibly devoted to continuing negotiations ended with Allen saying that he could not proceed because of other business commitments, and asking Barber to call him from "time to time." The third conference in May 1945, was devoted to a discussion of a counterproposal by the respondent which the Union took seriously, but which the respondent offered with the statement by Allen that he would not guarantee "signing even that without some egotiations " Thereafter, and in spite of the Union's efforts to obtain another conference, there were no further meetings until July 19-15, at which time the respondent alleged that the Union had lost its majority status. The entire record presents a picture of the Union seriously trying to bargain with a respondent which unilaterally grants wage increases to its employees, and which delays negotiations for a contract on one pretext or another until more than a year has passed. It is clear and it is found that the respondent's inten- tion was to avoid its duty to bargain with the Union It is likewise clear that the respondent's argument that since the Union had "lost its majority" there was 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no duty upon it to bargain with the Union, is without merit, since not only diet the respondent refuse to bargain with the Union while its majority was still unchallenged, but in addition, the respondent independently ot, and without consulting the Union, raised its employees' wages The undersigned finds that the respondent has refused and now refuses to bargain collectively with the exclusive representative of its employees withal the meaning of Section 8 (1) and (5) of the Act IV THE EFFECT OF THE UNFAUI L_lliOii PRACTICES UPON COU11IERCE The activities of the respondent set forth in Section III, above, occurring ill connection with the operations of the respondent described in Section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce's V '1111, REMEDY Having found thaat the respondent has violated Section S (1) and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. The undersigned has found that the respondent refused to bargain with the duly certified representative of its employees by unilateialiy granting these employees an increase in wages without consulting the Union and by refusing to answer it request to continue negotiations after May 5, 1945, the date on which it received a letter from the Union asking it to do so In order to effectuate the policies of the Act, the undersigned will recommend that the respondent cease and desist from taking any unilateral action with i espect to rates of pay, wages, hours, and other ter ms and conditions of eniploy- inent which are properly the subject of collective bargaining between the Union and the respondent, and that, upon request of the Union, it bargain collectively with the Union as the exclusive representative of its employees in ,in appropriate unit in respect to rates of pa,, wages, hours, and other teen; and conditions of employment Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following. CONCLUSIONS of LAW 1. Nashville Bindery Workers Union #83, International Brotherhood of Book- binders, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act 2 All employees of the respondent's bindery department, including foreman and forelady, exclusive of printers, janitors, and shipping room employees, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Nashville Bindery Workers Union #83, International Brotherhood of Book- binders, affiliated with the American Federation of Labor, was, on June 27, 1944, and at all times thereafter has been, the exclusive representative of all the employees in the appropriate unit for the purpose of collective bargaining withal the meaning of Section 9 (a) of the Act. 13 Of the i espondent's proposed findings, the first, second, third, and fourth paragraphs are accepted, and the fifth, sixth, seventh, eighth, and ninth paiagraphs aie rejected Of the conclusions both the first and the second paragraphs are rejected MARSHALL AND BRUCE COMPANY 115 4 By refusing to bargain collectively with Nashville Bindery Workers Union #83, International Brotherhood of Bookbinders affiliated with the American Federation of Labor , as the exclusive iepresentative of its employees in an ap- propriate unit , the respondent has en gaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act 5 dry the acts described in paragraph 4 above, the respondent interfered with, restrained , and coerced , and is mteifering with , restiinning , 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 mean- ing of Section 8 (1) of the Act. 0 The afoiesaid unfair labor practices are unfair labor practices affecting commerce , within the meanin g of Section 2 (6) and ( 7) of the Act RECOMMENDATIONS Upon the basis of the above findings of tact and conclusions of law. the under- signed recommends that Marshall and Bruce Company, Nashville, Tennessee, its officers, agents, successors, and assigns shall 1 Cease and desist front: (a) Refusing to baigam collectively with Nashville Bindery Workers Union #83, International Brotherhood of Bookbinders, affiliated with the American Federation of Labor, as the exclusive representative of all the employees of respondent's bindery department, including foremaui and foreladv, exclusive of printers. janitors and shipping room employees, (b) Taking unilateral action with respect to rates of pay, wages, hours or other conditions of employment, which are the subject of collective bargaining between the Union and the respondent; (c) In and other wanner interfering with, restianrng, of coercing its em- ployees iii the exercise of their rights to self-organization, to form, join. or assist labor organizations, to bargain collectively through representatives of their own choosing, of to engage in concerted activities for the purpose of col- lective bargaining, or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act 2 Take the following affil native action which the under signed finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Nashville Bindery Workers Union #83, International Brotherhood of Bookbinders, affiliated with the American Federation of Labor, as the exclusive representative of all the employees of respondent's bindery department, including foieuian aid Iorelidy, exclusive of printers, janitors and shipping room employees, (b) Post in conspicuous places throughout its plant at Nashville, Tennessee, copies of the notice attached hereto marked "Appendix A " Copies of said notice, to be furnished by the Regional Di ector foi the Tenth Region, after being signed by the respondent's representative, shall be posted immediately by the respondent upon receipt thereot and maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to employees are customai ily posted Reasonable steps shall be taken b^ the respondent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing within ten (10) days from the (hate of the receipt of this Intermediate Report what steps respondent has taken to comply therewith It is further recommended that unless on or before ten (10) days fi om the (late of the receipt of this Intermediate Report, respondent notify said Regional 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Boai d issue an order requiring the respondent to take the action afoiesaid. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Boaud, Series 4, effective September 11, 1946, any party or counsel for the Boald may, within fifteen (15) clays from the (late of service of the order transfering the case to the Boid, pursuant to Section 20338 of said Rules and Regulations, file with the Board, Rocliambeau Building, Washington 25, D C, an original and four copies of a statement in writing setting loi th such exceptions to the Intennednite Report or to any other pact of the record or proceeding (including iulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof, and any party or counsel for the Board may, within the same period, tile an original and tour copies of a brief in support of the Intermediate Report Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Reiionat Directoi Proof of service on other parties of all papers filed with the Board shall be promptly made as re- quired by Section 203 65. As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transfering the case to the Board. Viuroii HIRSCHFIELD, Trial Exani.iner. Dated January 29, 1947. APPENDIXA NOTICE To ALL E_IIPLOXEES Pursuant to the recommendation of a Trial Examiner 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 in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their i ight to self-oi g,uitzatwn, to form labor organizations, to join or assist Nashville Bnldei y Woi'kei s Union #83, International Brotherhood of Bookbinders, AFL WE WILL NOT take unilateral action with respect to tat es of pay, wages, hours or other conditions of employment which are the subject of collective bargaining with the above-named Union WE WILL, BARGAIN COLLECTIVELY upon request with the above-named Union as the exclusive representative of all employees in the bargaining unit described herein, with respect to rates of pay, hours or employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The baigaining unit is: All employees of the company's bindery department, employed at its Nashville, Tennessee, plant, including foreman and foreladv. exclusively of printers, janitors, shipping room employees, and all other employees of the Company not employed in the bindery department. MARSIIAT.L AND BRUCE COMPANY, By -------------- --- (Representative ) ( Title) Dated ------------------------