Allen-Morrison Sign Co., Inc.

In the Matter of ALLEN-MORRISON SIGN CO., INC. and UNITED STEEL- WORKERS OF AMERICA, CIO Case No. 5-C-1976.-Decided September 22, 1948 DECISION AND ORDER On October 30, 1946, Trial Examiner T. B. Smoot issued his Inter- mediate report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices 2 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the interme- diate Report attached hereto. Thereafter, the Respondent filed excep- tions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this proceeding to a three-plan panel consisting of the undersigned Board Members.* The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and supporting brief, and the entire record in the case, and hereby adopts the findings,, conclusions, and recommendations of the Trial Examiner, with the exceptions, modifications, and additions noted below : 1. We agree with the Trial Examiner that the Respondent violated Section 8 (1) of the Act by (a) the conduct of supervisors E. A. Salmon, H. C. Parker, and J. B. Craft, consisting of preparing and assisting in the circulation of the anti-union petition of August 1945; (b) the promulgation of a rule that its employees may not engage I The power of the Board to issue a Decision and Order in a case such as this where the charging union has not complied with the filing requirement specified in Section 9 (h) of the, National Labor Relations Act, as amended , was decided by the Board in Matter of Marshall and Bruce Company, 75 N. L. R. B. 90. 2'Tlie provisions of Section 8 (1) and ( 5) of the National Labor Relations Act, which the Trial Examiner found were violated, are continued -in Section 8 (a) (1) and 8 (a) (5) of the Act, as amended. *Houston, Murdock, and Gray. 79 N L. R. B., No. 110. 904 ALLEN-MORRISON SIGN CO., INC. 905 in union activities on company premises at any time; (c) permitting Salmon and Parker to solicit on company time in disregard of the no-solicitation rule; and (d) a series of unilateral acts, hereinafter described, in derogation of the Union, the exclusive bargaining rep- resentative. We do not, however, base our 8 (1) finding on a course of conduct theory; nor do we, for the reasons stated by us in Matter of The Babcock d Wilcox C0_3 adopt the conclusion of the Trial Ex- aminer that the Respondent violated the Act by assembling its em- ployees on compaliy property during working hours to listen to an election-day speech. As already noted, like the Trial Examiner, we find that the Re- spondent is responsible for the activities of Salmon, Parker, and 'Craft, in view of their supervisory status. In addition to the facts found by, the Trial Examiner, the record discloses the following material facts concerning the position and authority of these per- sons : The Respondent's operations are performed in approximately 13 departments. A "leadman" is in "charge" of each department. During the period when the anti-union petition was circulated, Salmon was the leadman in charge of the squeegee department where per- sonnel varied from-16 to' 24 in number ; Parker was in charge of the press department; and Craft was in charge of the packing depart- ment where personnel varied from 4 to 8 or 9 in number. Their imme- diate and only supervisors were R. L. Burnett and Glenn Parker, the .superintendent and assistant superintendent, respectively. It should 8 77 N L. R B 577 The Intermediate Report also contains certain misstatements of -fact and inadvertences , none of which affects the Trial Examiner's ultimate conclusions, or our concurrence therein . Accordingly , we note the following corrections. (1) The record shows (a) that the consent election was held on December 5, 1944, and -not December 5, 1945 , as stated by the Trial Examiner at one point • (b) that the December 18 bargaining conference took place during the year 1944 and not 1945 , as inadvertently stated in the Intermediate Report ; and (c ) that the beginner's wage increase appears to have been granted in January 1946 , and not January 1945 , as found by the Trial Examiner. (2) The record -shows that- during°theOctober 16 , 1945 , conference, the Union submitted a retroactive date of June 1 or 15 , 1945 , for the contract and not March 15, 1945, as ,erroneously found by the Trial Examinei (3) The record shows that in April 1946 , the Respondent reduced its workweek from S0 hours to 40 hours, and not, as found by the Trial Examiner , from 48 hours to 40 hours. (4) The record shows that the Respondent's paid vacation plan was announced on July 10, 1946, and not July 1 or 3, as mistakenly found by the Trial Examiner. (5) The record shows that the Respondent 's letter to the Board, dated November 30, 1945, requested piompt action on the anti -union petition and not another election as found by the Trial Examiner. (6) The record shows that certain employees testified that they were solicited to sign the anti-union petition "in September." "during the summer, " and "in the fall" of 1945, as appears at one point in the Intermediate Report, and not in August of 1945, as appears elsewhere in the Intermediate Report. On the basis of all the evidence , however, we infer, as did the Trial Examiner, that these employees were testifying with respect to the petition forwarded the Board on August 23, 1945. (7) The Trial Examiner found the circulation of the anti -union petition to be in viola- tion of Section 7 of the Act . It is obvious , however, that the Trial, Examiner intended to find this activity to be violative of Section 8 (1). 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be noted that at one time the Respondent had approximately 245 em-- ployees and operated under the same arrangement as to plant super- vision. To find, as the Respondent contends, that Burnett and Glenn Parker were its only supervisors would present the unlikely picture of 2 individuals supervising many employees located in a number of separate departments with the ratio of 1 supervisor to about 120 rank- and-file employees during busy periods. Moreover, Salmon, Craft,, and Parker have greater seniority and receive higher wages than most of the others in the Respondent's employ. They also assign employees,. to various tasks within their respective departments, instruct them in the performance of their duties, and are "used to see that the work is properly performed." Employees referred to, and regarded, them as, "boss" and followed their orders without questioning their authority. And they were listed as "supervisors" on the Respondent's classi- fied personnel list used by the parties during bargaining negotiations. or do we find any merit in the Respondent's position that the single fact that Salmon, Parker, and Craft were not declared ineligible to vote in the consent election held on December 5, 1944, relieves it of liability for their conduct. These individuals were clearly not mem- bers of the Union, their membership in the Union was not sought by the rank and file, and it does not appear that they were bargained for as part of the rank-and-file group .4 Under these circumstances, and- on the entire record, we do not regard the fact that they voted un- challenged in the consent election as affecting their status as super- visory employees and the Respondent's responsibility for their action.. We therefore reject the Respondent's contentions addressed to their- employment status.' As to the no-solicitation rule, the Respondent admits its publica- tiofi but asserts that this rule was never applied and that it has since been modified. However, even if we assume that the rule was not applied, its promulgation was, nevertheless, violative of the Act.6 And it is equally clear that its subsequent modification does not have the retroactive effect of validating its initial promulgation or preclude the Board from issuing an appropriate cease and desist order.7 4Matter of American Dredging Company, 71 N L. R B 401: Matter of The Hartford Courant Company, 64 N. L. R. B. 213 ; and Matter of R. R Donnelley and Sons Company, 60 N. L . R. B. 635, relied neon by the Respondent , are clearly distinguishable from the instant case on the facts 5 H. H. Altizer also assisted in circulating the anti -union petition . However, the record is too inconclusive to afford a basis for determining whether or not Altizer was a super- visor Therefore , unlike the Trial Examiner , we make no finding of employer responsibility for his conduct. Matter of Tomlinson of High Point, Inc, 74 N L. R R 681, 089. ^^ a TAN -D. ^R. 'B v 'Burke MachinelTool-Co, ],W F.-(2d)• 6,18-(C C- A. 6) ; Matter of United' Asreraft Corporation, 67 N. L. R B 594, 604. ALLEN-MORRISON SIGN CO., INC. 907 2. We agree also with the Trial Examiner that the Respondent violated Section 8 (5) and (1) of the Act by refusing to bargain col- lectively with the Union, as required by the Act. However, we fix the time of the Respondent's refusal as on or about October 18, 1945, rather than on or about April 10, 1945, as found by the Trial Examiner. The record shows, in this connection, that on December 13, 1944, following a consent election, the Board certified the Union as the bargaining representative of the Respondent's employees, except for certain agreed exclusions. Thereafter, the Union and the Respondent entered into collective bargaining negotiations. In March 1945, after- a number of inconclusive conferences, the dispute between the parties was certified to the War Labor Board. On April 10, 1945, the Union submitted a memorandum to the Respondent containing its pro- posals for settling the disputed issues. No discussions concerning these proposals took place until April 27, 1945, when the parties ap- peared before a War Labor Board Panel. The Respondent's ex- planation for this delay is that "the case was in the hands of the War Labor Board and we decided just to wait until the panel hear- ing.was [sic]." And, although the• Respondent's,attitude• may have appeared uncooperative during the early stages of the War Labor' Board proceeding, it does appear that at the panel hearing on April 27 and thereafter, until October 18, 1945, the parties met and dis- cussed the proposals contained in the Union's memorandum. Under these circumstances, and on the entire record, we are unable to agree with the Trial Examiner's finding that on April 10, 1945, the Respond- ent refused 'to bargain collectively within the meaning of the Act. On October 18, 1945, however, the Respondent broke off negotia- tions with the Union, giving as reasons therefor (1) that the anti- union group's petition was being investigated by the Board, and (2) that irreconcilable differences had arisen between the parties. We do not agree that this refusal to bargain is excused on either ground. The so-called anti-union petition, identified as it was with the'-Respondent's supervisory personnel, is clearly no defense for the Respondent's termination of bargaining negotiations. Moreover, as pointed out in Matter of Lift Trucks, Inc.,' except under unusual circumstances which are not present here, "an employer is not free to disregard a certification during the certification year because a rival union has made a claim for recognition or has filed a representation petition with the Board." As to the other reason advanced, the record clearly shows that no impasse had been reached; nor does it appear 8 75 N L. R B 998 See also Matter of Grieder Machine Tool and Die Company, 49, N. L R B. 1325, enf'd in 142 F. (2d) 163 (C. C A. 6). '908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent believed that such was the case. Thus, the Respondent, on the one hand, alleged an impasse and, on the other hand, asserted its willingness to resume bargaining negotiations when the Board has disposed of the representation petition. We regard as noteworthy, too, the Respondent's total failure to mention an impasse in its attempt to justify its refusal to resume bargaining with the'Union in August 1946.9 Of considerable import in appraising the Respondent's good faith in dealing with the Union on and after the aforesaid date are the following unilateral acts of the Respondent, which are themselves violations of Section 8 (5) and (1) of the Act. The record shows, in this connection, that the Respondent unilaterally increased be- ginner's wages, granted a general wage increase, adopted a shift dif- ferential wage policy, and announced a paid vacation plan? The Respondent contends, in effect, that (1) because of the Union's alleged loss of majority and (2) because of the pendency of the representation petition, it was justified in proceeding unilaterally in these respects. It also seeks to support its position by alluding to the business con- siderations involved 11 We find the Respondent's position to be without merit. Assuming as the Respondent first contends, that the Union's majority had been dissipated, we find such loss of majority status to be attributed to the Respondent's unfair labor practices. Under such circumstances, the Board has frequently held that an employer cannot assert a union's loss of majority as justification for its refusal to bargain.- Con- sequently, we must presume the continuation of the Union's majority ° Indeed, in Its Answer , the Respondent significantly states as follows Respondent's sole ground for refusing to bargain with the union was in order to secure an authoritative judicial decision of the question whether respondent is obligated to continue to recognize and negotiate with the said union , notwithstanding the afore- said claims of respondent 's employees that the said union is without authority to represent them By a course of dealing and negotiation lasting almost a year respond- ent fully recognized the union as the certified representative , and until confronted with contrary claims of its employees was in full bargaining negotiation with the said union, and had partially accomplished an operating agreement. 11 Like the Trial Examiner, we make no finding as to the propriety of the Respondent's unilateral action in instituting a second shift in certain of its departments in June 1946. And, in view of the state of the record relating to its unilateral action on December 20, 1945 , in giving the war bonds and stamps to employees , we shall not adopt the Trial Examiner 's finding that this was a bonus rather than a Christmas gift and therefore violative of the Act. 11 The Respondent also argues that its unilateral action with respect to certain of these changes was not improper because in each case the Board and the Union were notified'of its proposed action and the reason for it Such conduct, however, is not collective bar- gaining as contemplated by the Act; nor is it a substitute theretor; nor does the notifica- tion to the Board effect an estoppel against the Board. ' 12 See Medo Photo Supply Corporation v. N. L. R. B, 321 U. S 678 , Matter of The Toledo Desk & Fixture Go , 75 N. L R. B . 744; Matter of Karp Metal Produvts Company, 51 N. L. R. B. 621. - - ALLEN-MORRISON SIGN CO., INC. 909 during the period here involved. Equally untenable is the Respond- ent's contention to the effect that it was precluded from bargaining with the Union so long as the representation petition was before the Board. As already indicated, the Respondent cannot thus avail itself of a petition identified with its own supervisory personnel. Moreover, it is well established that the pendency of a proceeding before, the Board, under the prevailing circumstances, does not relieve an em- ployer in any way of the duty to bargain collectively.13 Nor may the' Respondent, particularly in the light of the facts disclosed by the in- stant record, avail itself of business expedients as justification for violating the Act.14 Finally, it should be noted that the Respondent refused to resume bargaining even after the Board had disposed of the representation petition. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action which we find necessary to effectuate the policies of the Act as amended. The Trial Examiner, in addition to finding that the Respondent violated Section 8 (1). of the Act by the promulgation of a no- solicitation rule, also found that the Respondent had further violated this Section by not enforcing the rule against those opposed to the Union. However, his recommended order did not contain any pro- vision directed particularly to such violation. We are of the opinion, upon the entire record, that the commission in the future of such acts of interference and of other unfair labor practices may be an- ticipated from the Respondent's conduct in the past. We shall, therefore, order that the Respondent cease and desist from such con- duct, and from in any manner infringing upon the rights guaranteed to its employees in Section 7 of the Act. Since, we have found, contrary to the Trial Examiner, that the Respondent did not violate the Act by compelling its employees to, listen to a speech on company time and property, we shall not adopt that portion of the Trial Examiner's recommended order predicated upon his findings on this aspect of the case. Finally, inasmuch as the Union has not yet complied with the provisions of Section 9 (h) of the Act, as amended, which provisions are now in effect, we shall, in accordance with the decision of the 18 Miitter 'of Lift Trucks, Inc., footnote 8, supra; Matter, of Na-Mac Products Corporation, 70 N. L. R. B. 298; Matter of Pacific Plastics & Mfg. Co., 68 N. L. R. B. 52, 80; Matter of Rock City Paper Box Company, Inc., 64 N. L. R. B. 1527, 1539. 1* See Wilson & Co., Inc. V. N. L. R. B., 123 F (2d) 411 (C C. A 8), enf'g 26 N. L R B. 297, 26 N. L R B. 273. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -Board in Matter of Marshall and Bntce Con-tpany,15 and for the reasons stated therein, modify the recommended order of the Trial Examiner by conditioning our order, in part, upon compliance by the Union with that Section of the amended Act within thirty (30) days from 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, Allen-Morrison :Sign Co., Inc., Lynchburg, Virginia, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, CIO, if and when said labor organization shall have com- -plied, within thirty (30) days from the date of this Order, with -Section 9 (h) of the Act, as amended, as the exclusive representative of all its production and maintenance employees, excluding all clerical employees, -foremen, and supervisors as defined-,in the-amended:•Act; (b) Issuing or enforcing a rule prohibiting union solicitation on ,company premises during non-working time; (c) Prohibiting union solicitation on company property "during working time while permitting anti-union activity on company time and property ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted ac- tivitie's' for the-purpose -of collective' bargaining •or other muttrwl-aid or protection, as guaranteed in Section 7 of the Act. - 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) 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 United Steelworkers of America, CIO, as the exclusive representative of all its employees in the aforesaid appropriate unit, with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; - (b)• Rescind immediately its rule prohibiting union solicitation-ori its premises during the employees' non-working time; , 15 See footnote 1, supra. ALLEN-MORRISON SIGN CO., INC. 911 (c) Post at its plant in Lynchburg, Virginia, copies of the notice attached hereto, marked "Appendix A." 16 Copies of said notice, to be furnished by the Regional Director for the Fifth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof and main- tained by it for thirty (30) consecutive days thereafter 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 ; (d) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, and again within ten (10) days 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. 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 that: WE WILL NOT issue or enforce a rule prohibiting union solici- tation on company premises during non-working time. WE WILL NOT prohibit union solicitation on company property during working time while permitting anti-union activity - on company time and property. WE-WiLU'NOT in'any other muinner interfere "with; restfain, or coerce our employees in the exercise of the right to self -organiza- tion, to form labor organizations, to join or assist UNITED STEEL- WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection. WE HEREBY RESCIND our rule against union solicitation in our plant during our employees' non-working time. WE WILL BARGAIN collectively upon request with the above- named- unioff as the'•exel'uside representative of all employees' iii the bargaining unit described herein with respect to rates of pay, 11 In the event that this Ordei is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the words , "A DECISION AND ORDER ," the words , "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours of employment,'or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organization complies ^ within thirty (30) days from the date of the aforesaid Order of the Board with Section 9 (h) of the 'National Labor Relations Act, as amended. The bargaining unit is: All production and maintenance employees of the Respond- ent, excluding all clerical employees, foremen, and supervi- sors as defined in the amended Act. All our employees are free to become or remain members of the above-named union or any other labor organization. ALLEN-MORRISON SIGN CO., INC. By -------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 30, days from the date hereof and also for an additional 30 days in the event of compliance by the Union with the requirements of Section 9 (h) of the Act as amended. This notice must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mr. Harold M. Weston, for the Board. Williams, Robertson and Sackett , by Mr. Samuel H Williams , for the respondent. Mr. Robert Boyer, for the Union. STATEMENT OF THE CASE Upon charges duly filed by the United Steelworkers of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Fifth Region ( Baltimore, Maryland ), issued its complaint dated August 20, 1946, against Allen-Morrison Sign Company, Incorpo- rated,- herein called the respondent, alleging that._tberrespondeat.hase.engaged^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. Copies of the complaint and charge , together with notice of hearing thereon , were duly served upon the respondent and the Union. With respect to unfair labor practices the complaint alleges, in substance, that respondent : (1) from October 1, 1944, to the date of the issuance of the complaint, urged, persuaded and warned its employees to refrain from becoming or remain- ing members of, or assisting the Union, compelled its employees to listen to speeches delivered by the respondent' s officers at its plant during working hours, issued to its employees a series of circulars for the purpose of restraining and inducing its employees from becoming , assisting or-remaining members of the Union , prohibited its employees from soliciting membership in the Union or engaging in any activities on behalf of the Union on company property, and dealt directly and individually with its employees concerning rates of pay , wages, hours of employment or other conditions of employment , and (2) from on or ALLEN-MORRISON SIGN CO., INC. 1 9 13 about December 15, 1944, refused to bargain collectively with the Union as,the exclusive representative of all the employees of respondent in a unit declared appropriate by decision of the Board. Thereafter, respondent filed an answer denying that it had engaged in the unfair labor practices alleged in the complaint. Pursuant-to ]notice, a hearing was held at Lynchburg, Virginia, on October 2, 3, and 4, before the undersigned, T. B. Smoot, the Trial Examiner duly desig- hated by the Chief Trial Examiner The Board and the respondent were represented by counsel and the -,Union was represented by its District Repre- sentative. Fult opportunity to be heard, to examine and cross-examine witnesses and to produce evidence bearing on the issues was afforded all parties. At the conclusion of the hearing, counsel for the Board moved to amend the complaint to conform to the proof, which was granted without objection. At the close of the hearing, opportunity was afforded the parties to argue orally before the under- signed, and counsel for the Board so argued Parties were advised that they might file briefs, proposed findings and conclusions by October 15, which time on respondent's motion was extended to October 23. and a brief, proposed findings and conclusions were received from respondent Upon the entire -record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I' TEIE•'BUSTNESS OF THE:'-RESPONDENT Allen-Morrison Sign Company, incorporated, is a Virginia corporation having its-principal office and place of business in Lynchburg, Virginia, where it is en- gaged in the manufacture, sale, and distribution of advertising signs. In the 12- month period preceding July 1, 1946, respondent purchased over $70,000 worth of raw materials, 95 percent of which were purchased and shipped to Lynchburg from points outside of Virginia, and during the same period caused finished products in excess of $100,000 in value to be manufactured, 90 percent of which were shipped by it to points outside of Virginia. Respondent admitted that it was engaged in commerce within the meaning of the Act. IT. THE ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization admitting to membership efployees of the*respondent. III. THE UNFAIR LABOR PRACTICES A. Ch'onology of events In September 1944 the Union notified respondent that 75 of its employees, a sub- stantial majority, had joined the Union and requested a conference. Respondent refused to meet With the Union but thereafter respondent, the Union and agents of the Board entered into an agreement for a consent election to be held on Decem- ber 5, 1945 Several days prior to the scheduled election, respondent mailed to each em- ployee a- letter expressing its views on the possibility of the Union representing its employees for the purposes of collective bargaining.' On the day of the elec- tion, duriiig'workirig Hours, respondent called all of its employees together by an- nouncement over the loudspeaker system. All employees were congregated in I Counsel for the Board stated that he was not contending that the sending of this letter to the employees constituted an unfair labor practice. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD one room in the plant and all work ceased while respondent's Secretary-Treasurer read the same letter to the assembled employees. The election resulted in 81 votes for the Union and 31 against. On December 13,=19.34, the Union was formally certified as the^borgaining agent of respopdent's employees by the Board On December 18, 1945, the Union presented a proposed contract to the respondent, and in a conference on that and the following day agreement was tentatively reached on the recognition clause and maintenance of membership clause after the Union waived its demand for a check-off of dues, on a 5-cent an hour wage increase, after the Union waived its demand for a 17-cent in- crease, and on a modified vacation plan. The respondent rejected the Union's rQgiiepts,for.a closed shop, seveaanceApay; guaranteed-aiinual wage, ii.reopgpmg clause on wages, and a shift differential on wages. On January 5, 1945, respond- ent and the Union met again but came no closer to an agreement, and on that date respondent decided to consult with its attorney and the Union representa- tive stated that he would consult a Department of Labor conciliator. An incon- elusive meeting was held on January 10, and on January 13 for the first time, the attorney for respondent participated in the conterence, and on January 15, a Department of Labor conciliator conferred with the parties. On January 16 and 23 the conferences continued with the same participants, and on January 24 there was a full agreement on wages. On January 30 another meeting was held in which a retroactive pay demand by the Union became the stumbling block, and at this conference the Labor Department conciliator withdrew from the negaiations. Further inconclusive meetings were held oil Febeuauy 6 and 7, and on February 21 the respondent submitted a proposed contract in which the Union found objec- tionable only as to the phrasing of the seniority, vacation and grievance clauses At this conference, the respondent again agreed to,a maintenance of membership clause if a check-off of Union dues were not included, and the Union again agreed to this proposal. On February 27 at another conference, the respondent offered a new clause regarding returned veterans, and refused to accept the Union's griev- ance proposal because it provided for arbitration of discharge cases. The parties agreed on a vacation plan and a shift differential in pay. The Department of Labor conciliator was back in the conference on this day and stated that he would have the dispute certified to the War Labor Board. On March 6, the Department of Labor conciliator, offered a "Form of stipulation of arbitration of the issues" which, was rejected by the respondent; and on March 16 the Department of Labor certified the dispute to the War Labor Board. On March 30, the parties held a conference, with the Union pressing the, respondent to agree to abide by the War Labor Board decision, which the respondent refused to do. On April 2 the Union offered to agree with respondent that certain specified issues only were in dispute, and thus have the War Labor Board rule only upon those issues. The respondent refused this suggestion. On April 10 the Union suggested a settlement of all the issues, and the respond- ent insisted upon waiting for the decision of the War Labor Board, although they refused to agree to comply with it. On April 27 a hearing before a War Labor Board panel was held, and at the conclusion of the hearing the panel chairman suggested that the parties settle the matter. It was agreed then that there were four issues in dispute: a seniority clause, whether arbitration should be had on discharge cases, making the wage increase retroactive to December 13, the date of the Union's certificate, and a maintenance of membership' clause. The respondent again agreed to accept the maintenance of membership clause without a check-off provision and to agree to making the wage increase retro- active to March 15, if the Union would agree to the respondent's seniority clause, ALLEN-MORRISON SIGN CO., INC. 915 and that discharge cases would not be a matter for arbitration. The Union representatives then stated they could not accept such a proposal and that they would abide by the War Labor Board decision. On April 28 another meeting was held in which the Union again conceded its request for a check-off of Union dues but not other provisions and respondent refused to accept this proposal. On May 3 another meeting was held in which the Union offered to accept a retro- active wage date of February 15, which the respondent refused. On May 22, the Regional War Labor Board rendered its decision, with which respondent refused to comply, and on July 3 it appealed the decision to the National War Labor Board. On August 20 the regional board's decision was affirmed, and after conferences on that and the.follow•ing ^day,.rihe Union on August;.22 submitted a 12-point memorandum for consideration by the respondent, which was a re- quest for considerably less than the War Labor Board had granted the Union, and on that date the Union agreed to accept a retroactive pay date of March 15 which respondent had therefore offered. The Union also agreed to accept the respondent's demand that discharge cases not be arbitrated and accepted respondent's vacation plan. In late August a petition "to get rid of the Union" was circulated in the plant 'with 3 of respondent's supervisors taking an active part, 2 of them obtaining 'signatures and promising employees pay raises and a vacation if they could 'l-et the Union out." 2 On September 8 respondent received a copy of a letter from 2 of its employees, Altizer and Craft, the latter a leadnian, to the Board, which stated that a majority of the employees did not want the respondent to bargain with the Union and that a petition to that effect signed by 32 of respondent's then 54 employees had been sent to the Board with a request for an election. This letter was shown to the Union representatives. On September 11 the respondent notified the Union by letter that it would suspend negotiations with it until the Board "had acted" on the afore-mentioned petition. Despite this petition, however, the respondent and the Union met again on September 26 and discussed the Union's 12-point memorandum. A further conference was held on October 16 whereat respondent again refused to comply with the War Labor Board directive, but finally all matters in issue were agreed upon except the date of retroactive pay and the maintenance of membership clause, although the Union had now agreed to respondent's previous demand that retroactive pay commence March 15 and respondent had several times theretofore agreed to, accept a maintenance of membership clause. Respondent's secretary-treasurer admitted on the witness stand that had the Union accepted all of the respondent's. proposals on September 26 and October 16, it would have signed the contract despite the letter from the employees, but on October 18 it again sent a letter to the Union "suspending" all negotiations in view of this letter of August 23 from 2 of its employees. On October 30, the Regional Director of the Board advised respondent that 'a -charge had been filed by the Union alleging violation of Section 8 (1) and (5). On November 26 a second petition was forwarded to respondent from the em- ployee Altizer which had included thereon the signatures of 45 of its then 66 'employees, which alleged that they did not wish the Union to bargain for them. 2 The date signatuies were obtained to this petition is not clear as 3 witnesses for the Board could only place it as "in September," "during the summer" and "in the fall," but as their names were not on the second petition of November 1945 it is obvious they were testifying about the first petition which must have been circulated prior to August 23, 1945, the date it was sent to the Board Respondent produced no evidence on the matter. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 30, respondent wrote to the Board calling its attention to this petition from its employees and requesting the Board to hold another election. In December, at a meeting called by respondent, it announced a bonus was being given to all employees amounting to 10 percent of their annual wages On March 19, 1946, the Regional Director advised respondent that it was re- fusing to issue a notice of hearing on the employee petition. On March 24, this decision was appealed by employee H. H. Altizer to the Board itself. On April 10, the Union representative again asked respondent to negotiate a contract with it, and the next day respondent called a meeting in the plant of the employees and announced a 20 percent wage increase was being put in effect immediately and on April 18, respondent unilaterally increased its minimum wage rate from 45 to 50 cents an hour On May 3, respondent answered the Union's April 10 letter, refusing to meet with the Union while the Altizer petition was outstanding On the same date, May 3, the Regional Director of the Board advised respondent that the Board had denied Altizer's appeal from the Regional Director's de- cision on the petition. Respondent refused to accept this as final disposition of the matter until, on June 5, when a Board Field Examiner advised it that the Board's disposition of the Altizer petition was final. On June 17, the respondent unilaterally put into effect a shift differential in its plant and in a letter to the Regional Director of the Board, refused to meet further with the Union despite the Board's ruling and said it expected to request the Board to order an election. On July 3, respondent notified the Union that a vacation plan was being instituted, which thereafter was announced to the employee, at it meeting in the plant. On July 5 the Union representative agreed in substance Niith the vacation plan but objected to respondent's unilateral manner of handling it. On July 9, re- spondent filed a motion with the Board to "decertify" the Union. On July 23, the motion to decertify of the respondent was denied, and on August 10, 1946, respondent notified the Regional Director that it would not bargain with the Union because it said the majority of employees did not wish it to do so On August 20 the complaint herein was issued. B. Interference, iestratn.t and coercion 1. The pre-election meeting in the plant Respondent contends that by expressing its statements in the meeting in the plant the day of the election, December 5, 1944, it did not in any .way=restrain and coerce its employees within the meaning of Section 8 (1). This contention is without merit. The Board has recently stated : The Board has long recognized that "the rights guaranteed to employees by the Act include the full freedom to receive aid, advice and information from others, concerning those rights and their enjoyment." Such freedom is meaningless, however, unless the employees are also free to determine whether or not to receive such aid, advice, and information. To force employees to receive such aid, advice and information impairs that freedom ; it is calculated to, and does, interfere with the selection of a representative of the employees choice. And this is so, wholly apart from the fact that the speech itself may be privileged under the Constitution' The undersigned finds that in compelling its employees to listen to.a speech relating to self-organization on the day of the election respondent violated the Act. 3 Matter of Clark Bros Co , Inc . 70 N L R B 802 ALLEN-MORRISON SIGN CO., INC . 917 2. Respondent's rule against solicitation and its application Respondent issued instructions to all employees that there could be no solici- tation on company time or on company property. As far as these instructions prohibited solicitation for the Union during an employee's non-working time it is violative of Section 8 (1) of the Act. Clark Bros. Co., Inc.,,70 N. L. R. B. 802. Moreover, several employees testified, without contradiction, that Leadmen Salmon and Parker and Maintenance Man Altizer solicited signatures to the anti-union petition of August 1945 during their working hours and on company property, taking, in some instances, the employees away from their job in order to obtain their signature. Allowing the violation of the rule by the anti-union group without relaxing its provisions to any one else is a discriminatory appli- cation of the rule and also violative of the Act. Matter of Tomlinson of High Point, Inc., 58 N. L. R. B. 982; Matter of United Aircraft Corporation, 67 N. L. R. B. 594. 3. Solicitation for the anti-union petition of August 1945 As heretofore related, Leadmen E. A. Salmon and H. C. Parker solicited during working hours and on company property a petition stating that the sig- natories thereto did not "wish to be represented" by the Union. Leadman J. B. Craft, with employee Altizer, prepared and signed a letter to the Board enclosing the- petition and stating in the letter that "we, representing a majority of the employees" requested that an election be held. Respondent offered no rebuttal of these facts but denied these leadmen were supervisors, stating they had no authority to hire and fire or effectively recommend such action, and that they had voted in the consent election conducted by the Board on December 5, 1944. The fact that supervisory employees are allowed to vote in a consent election does not preclude a later finding that respondent is responsible for unfair labor prac- tices committed by them. Matter of Emerson Radio & Phonograph Corporation, 43 N. L. R. B. 613. J. D. Morrison, secretary-treasurer of respondent, T. I. Steptoe, assistant secretary-treasurer, and R L. Burnett, superintendent, testified that Salmon, Craft, and Parker had no authority to hire, fire, nor effectively recommend such action. However, it was admitted that Salmon was in charge of the Squeegee Department with its 16 to 24 employees, that Parker was in charge of the Press Department, and Craft in charge of the Shipping Department ; that they per- formed no work outside of their departments because they are leadmen and are responsible for the work in their departments, that among their duties are to see that orders are carried out, whether regarding production or rules of work, but that although leadmen can report breaches of discipline so can any "old man" and that leadmen can only "report" men to the superintendent, who decides whether they are to be transferred or discharged ; that only Burnett, now super- intendent of day shift with 140 men working, can discharge ; that Burnett is in each department about once every hour and that Steptoe and Morrison are seldom in the production part of the plant. One employee who worked in Salmon's department, Page Bolling, testified that Burnett only came in the department about twice a day, that Salmon assigned him work and he considered Salmon his boss. Another employee, Ralph Temple- ton, testified his work was criticized to Salmon who told him to go to Burnett and get his pay and then went with him to Burnett and told Burnett he was not a 809095-49-vol 79-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD good worker and Burnett immediately discharged him.' Another employee, Frank Miller, testified each operator of a machine in Salmon 's department had a helper who was assigned to him by Salmon, that Salmon never worked on a machine except when he was "a man short," that most of the time he inspected employees' work and "walked around." A. C. Tucker testified he was the "spray man" work- ing all over the plant, that when he worked in the Squeegee Department he worked under Salmon , when in the Press department under the authority of Parker and when in the Shipping Department under Craft.' It seems clear and the undersigned finds that Parker, Craft and Salmon were supervisory employees whom employees generally may reasonably expect to reflect and interpret manage- ment policies . International Association of Machinists v. N. L. R. B, 311 U. S. 72; H. J. Heinz Co. v. N. L. R. B., 311 U. S . 514; Matter of Scullin Steel Company, 65 N. L. R. B. 1294; Matter of Pactfte Plastic & Mfg. Co., Inc., 68 N. L. It. B. 52; Matter of Uni.ted Aircraft Corporation, 67 N. L. It. B. 594. Leadman Salmon approached Page Billing, an employee in his department in August 1945 during working hours saying , "I have got a paper for you to sign-if we can get the Union out we'll get a raise and stand better with the Company and probably get vacations also." Bolling accordingly signed the petition " Frank Miller testified Salmon approached him with the petition about the same time, asking him to "sign a paper for another union " saying it would get him a wage increase and a week 's vacation . Salmon took him away from his work to an unoccupied office to get his signature .' Parker saw C A Tucker at lunch time about the petition saying, "How about signing to do away with the Union and get an independent union.- We'll get a raise and may get a vacation We haven't got anything from the CIO." 8 Craft as stated heretofore with Altizer prepared and sent a letter to the Board claiming to represent a majority of ,the employees. The undersigned finds that respondent was responsible for the activities and statements of Leadmen Parker, Craft, and Salmon related above and that such activities are in violation of Section 7 of the Act.' 4. Respondent's unilateral changes in working conditions After "suspending" all negotiations with the Union on October 18, 1945, respondent without negotiations with the Union made several important changes in working conditions. Shortly prior to Christmas 1945, all the employees were called to a meeting in the plant where Secretary-treasurer Morrison announced that a Christmas bonus amounting to 10 percent of each employee 's annual wages would be paid to him and the workers collected checks for these amounts on leaving the meeting. In January 1945 , respondent , without any discussion with the Union, increased its minimum pay from 45 cents to 50 cents an hour. On April 11, 1946, another meeting was held in the plant and Morrison announced that in order to compensate employees for a reduction in the workweek from ' Subsequently , Templeton again obtained a lob with respondent and was so employed at the time of the hearing 5 Morrison testified Tucker was as much a supervisor as Salmon and Parker, but he worked all over the plant and had only one or at the most two helpers 6 Credited and undenied testimony of Bolling. i Undenied and credited testimony of Frank Miller 8 Undenied and credited testimony of C. A Tucker n See N L R B . v Stone, 125 F ( 2d) 752 , F. W Woolworth Co v N L R B, 121 F. (2d) 658 , Matter of Consolidated Machine Tool Co7poration , 67 N L R B 737 , Matter of Central Minerals Company , 59 N L R B- 757. - ALLEN-MORRISON SIGN CO., INC . 919 48 to 40 hours, a wage increase of 20 percent would be made. This increase went into immediate effect. At another meeting on July 1, 1946, Morrison announced the granting of paid vacations to all employees. At none of these meetings was any mention of the Union made. The Union had, from its first bargaining con- ference on, attempted to obtain for the employees a vacation with pay and a wage increase. Respondent contends as to the Christmas bonus that until war stabilization policies froze wages in 1942 it had a policy of paying a Christmas bonus, and that it merely continued this policy in 1945, the first year stabilization controls were partially lifted. The undisputed testimony shows that in 1937 or 1938 respondent in a meeting asked its employees to vote on whether to receive a 5 percent bonus each 6 months or to receive a 5 percent increase in pay every 6 months, and that they voted to take the increase and that this continued until 1942, and that no Christmas bonuses as such were otherwise ever offered until 1945. Thus the testimony shows there was no policy on yearly bonuses, but even if respondent's contention was true that there had been a bonus policy until 1942 which was interrupted by the war, during which time the Union became the bargaining representative, respondent would have the duty to negotiate resumption of the bonus, just as it would have to negotiate abandonment of a yearly bonus after a Union became its employees' representative. See Matter of Sullivan Dry Dock and Repair Corporation, 67 N. L. R. B. 627 Respondent contends in regard to the other changes in working conditions that they were made while the employees' anti-union petition was before the Board "while bargaining relations were suspended awaiting the actions of the Board"'and as action was delayed thereon by the Board "beyond the point where respondent could delay action on its part, with the result that respondent increased its rate of pay and modified its hours of work 30 The Union had been demanding wage increases and a paid vacation since December 1944 without success, and upon respondent's insistence it had scaled its wage demands down from 17 cents an hour to 5 cents an hour. Yet shortly after re- spondent notified the Union on October 18 it would suspend bargaining with it because of the existence of the anti-union petition, it notified the Board it must make wage increases. And after the Board had finally disposed of the anti-union petition and after respondent had received a request from the Union to reopen negotiations, it delayed answering the Union but immediately called its em- ployees together and announced a 20 percent wage increase. And it was im- mediately after notifying the Board in June that it would not resume negotia- tions with the Union, that it notified its employees that it was putting in effect a vacation plan. In view of these facts, and that respondent's super- visors had promised employees a wage increase and vacation when soliciting signatures to the anti-union petition, and based upon all the evidence, the undersigned is convinced and finds that respondent made the changes in 10 Page 8 of respondent's answer. Respondent also claims as to the vacation plan that it corresponded with the Union on the subject. On July 3 it advised the Union by letter that it was putting in effect a vacation plan and saying, "Hearing nothing from you by July 9, we shall anounce this [vacation plan] to our employees." The Union answered pointing out that, as it had for over a year and a half tried to "prevail upon" respondent to put in effect a vacation plan, it, to that extent, had no objections but it did object to respondent's making such changes unilaterally. Respondent, on July 10, announced the plan to its employees without mentioning the Union . This is not collective bargaining as it is not "an acceptance of the [Union] as a party with equal dignity at the bargaining table." See Matter of Inland Steel Company, 9 N. L R. B. 783, 801. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working conditions noted herein for the purpose of interfering with the self- organization of its employees.' C. The refusal to bargain 1. The appropriate unit It was admitted in the answer of respondent, and at the hearing stipulated between counsel for the Board and the respondent, that the unit pleaded in the complaint, theretofore determined by the Board, and herein set forth, was the appropriate unit : all production and maintenance employees of the respondent, excluding all clerical employees, foremen and all supervisory employees having authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. 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. Representation by the Union of a majority in the appropriate unit The complaint alleged, and the answer admitted, that on December 5, 1944, a majority of employees in the unit described above designated the Union as their representative for the purposes of collective bargaining with the respondent and that thereafter on December 13, 1944, the Union was formally certified by the Board in its Decision and Certification of Representatives in Matter of Allen-Morrison Sign Company, Inc., Case No. 9-R-1724, as exclusive represent- ative for the purposes of collective bargaining of the employees in the appro- priate unit described above. The complaint alleged that at all times since December 5, 1944, the Union has been the representative of a majority of re- spondent's employees in the appropriate unit and is now such exclusive repre- sentative, while respondent contends that since August 1945, the Union has not been the representative of a majority of respondent's employees for the purposes of collective bargaining. The undersigned finds that on December 5, 1944, and at all times there- after, for reasons set forth in this report, the Union was, and now is, the duly designated representative of a majority of the employees in the aforesaid unit, and that by virtue of Section 9 (a) of the Act, the Union at all times was, and now is, the representative of all the respondent's employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other conditions of employment. 3. The refusal to bargain All of the facts set forth in the "Chronology of events" supra, regarding the negotiations between respondent and the Union is from the testimony of J. D. Morrison, secretary-treasurer of respondent, except where otherwise therein noted. This testimony and all the record convinces the undersigned that respondent entered every conference with the Union with a fixed determination "May Department Stores v. N. L. R. B, 326 U. S. 376; N. L. R. B v. Crown Can Co., 138 F. (2d) 263; Wilson & Co., Inc. v. N. L. R. B., 115 F. (2d) 759; N. L. R. B. v. H. G. Hill Stores Inc., 140 F. ( 2d) 924 ; N. L. R. B. v. Barrett Co., 135 F. ( 2d) 959; Great Southern Trucking Co. v. N. L. R. B., 127 F. (2d) 180; N. L. R. B. v. American Potash and Chemical Corp., 98 F. (2d) 488; Matter of Sullivan Dry Dock & Repair Corporation, 67 N. L. R. B . 627. See also Matter of Alexander Milburn Company, 62 N. L. R. B. 482. ALLEN-MORRISON SIGN CO., INC . 921 never to agree finally on any important matter . Morrison repeatedly stated that every concession respondent made was tentative , but claimed this was because it and the Union agreed there should be no agreement until all details were agreed upon. However, as the Union continued receding in its demands, re- spondent kept receding from its prior acceptances . Thus time after time respond- ent accepted the Union demand for a maintenance of membership clause in ex- change for some other concession . In the same manner in April it offered to make the wage increase effective only to March 15 in answer to the Union's request that it be effective December 13, and refused to compromise on a date of February 15. Yet in the October 16 conference , respondent stated the issues on which the conference broke up were its refusal to make the wage increase effective March 15, and its refusal to accept a maintenance of membership clause. Re- spondent's predetermination not to agree finally on any contract is shown by Morrison's testimony on the October 16 meeting. After testifying the only issues were maintenance of membership and retroactive pay to March 15, both of which matters respondent had theretofore agreed to, when he was asked if he would have signed a contract on that date if the Union had waived those two provisions , he became evasive and said yes if everything else was accepted. Pressed to answer what else was in dispute he fell back on his position that there had been no final agreement of any matter, but finally answered in the affirmative when asked if he would have signed a contract on that date if the Union had agreed to everything respondent suggested. Reaching an impasse over certain clauses in a suggested contract does not constitute a refusal to bargain, but where as shown herein , the respondent was predetermined to provoke an impasse over any provisions which the Union would not concede and when that point was won, retract its concessions and start all over again to provoke an impasse on something else, respondent is not bargaining in good faith. Another facet of respondent 's lack of good faith and refusal to bargain is shown when the dispute had been certified to the War Labor Board . The Union had requested respondent to agree to abide by that Board's decision which respondent refused to do. When the Union then asked respondent to certify that only 4 issues were in dispute as respondent admitted was true, it also refused to do this. So the Union then asked to confer with respondent about all the issues and try to settle them without the War Labor Board but respondent refused to meet with the Union on the ground that the matter was before the War Labor Board. This conduct constituted a definite refusal to bargain, as the certification of a dispute to the War Labor Board does not abrogate or suspend respondent's duty to bargain with a union representing its employees, particularly where it refused to agree to abide by that agency's decision. See Matter of Consumers Lumber & Veneer, 63 N. L. R. B. 17. Further lack of good faith is shown by respondent in its dealing with the Union after the decisions of the War Labor Board were rendered . On May 22 the Regional War Labor Board decision was issued. Respondent refused to comply with it and after 5 weeks appealed the decision. On August 20 the National War Labor Board affirmed the regional board's order. Respondent states in its answer , "Follow- ing the decision of said Board in August 1945, and without regard to it, the respondent resumed its negotiations with the said Union." Actually the Union was forced into a position of waiving all it had won through the War Labor Board and commence negotiations all over again , which it did by preparing a 12 point memorandum for consideration giving up many points awarded to it by the War Labor Board . Thus respondent took advantage of every possible 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delay through War Labor Board procedure, and then ignored that agency's ruling and started the negotiations de novo. • Although the National War Labor Board had on August 20 affirmed the re- gional board's order granting almost all the Union's requests, almost immediately thereafter a petition to oust the Union was being circulated in respondent's plant, with the active aid of 3 of its supervisory employees, 2 of whom promised wage increases and vacations to the signers. This petition was forwarded to the Board August 23, and on September 11 respondent notified the Union it was "suspending" negotiations with it until the Board acted upon its employees' peti- tion as, according to its secretary-treasurer, it "presumed" a majority of its employees did not want the Union to bargain for them although respondent had not even received the petition, but only the letter which stated that 32 of its 54 employees had signed the petition's However a year before respondent had received a letter from the Union stating it represented 75 of respondent's em- ployees, a substantial majority then, and respondent instead of "presuming" the Union represented a majority of its employees, refused to meet with the Union until it had proven its majority in an election. Additional evidence of lack of good faith is shown when the respondent, after notifying the Union of the "suspension" of negotiations, nevertheless met with it, withdrew concessions it had theretofore granted on maintenance of membership and retroactive clauses for the contract, then broke off negotiations on the ground these were irreconcil- able differences. But respondent's secretary-treasurer, on the wtiness stand, stated that it would have then signed with the Union if the latter had con- sented to every request of the respondent, despite the aforesaid petition. Rather obviously, respondent was then only using, the existence of the petition as a bargaining lever to force the Union to accede to their demands, and when the Union failed to do as respondent wished, it again refused to bargain until the Board "acted upon" the petition before it. The Board had held many times that where a respondent has refused to bargain with a union representing its employ- ees and defections from the union occur thereafter, a respondent cannot then refuse to bargain because the union has lost its majority without violating Sec- tion 8 (5). Franks Bros. Company v. N. L R. B. 321 U. S. 702; Matter of Karp Metal Products Co. Inc., 51 N. L. R. B. 621; Wilson c& Co. Inc., 67 N. L. R. B. 662; Matter of Palm Beach Broadcasting Corp., 63 N. L. R. B. 597; Matter of Douglas Silk Products Co. Incorporated, 63 N. L. R. B. 1280; Matter of Semi-Steel Casting Company, 66 N. L. R. B. 713; Matter of Robeson Cutlery Company Inc., 67 N. L. R. B. 481; Matter of Inter-City Advertising Co., Inc., 61 N. L. R. B. 1377; Matter of John S. Doane Company, 63 N. L. R. B. 1403. But where, as in the instant case, respondent assisted in circulating a petition which it relied on to show the Union had lost its majority, its violation of Section 8 (5) is even more obvious. As the Supreme Court has said, "The unfair labor practices of the respondent cannot operate to change the bargaining representative previously selected by the untrammeled will of the majority." N. L R B. v. Bradford Dye- '-" The Union met with respondent after certification for only 3 months when the dispute was certified to War Labor Board Immediately after War Labor Board acted August 20, the anti-union petition was circulated. The Board consistently affords a union a reason- able time in which to attain their end (I. e., a contract) and a reasonable time thereafter to insure to the employees the benefits of a collective bargaining contract before allowing a new election. Three months is certainly not beyond a reasonable time and by availing itself of a peaceful means of settlement of disputed issues by appealing to the War Labor Board the Union would not have been foreclosed from an additional reasonable period in which to attain a contract before another petition would be recognized. Matter of Mont- gomery Ward Company, 60 N. L. R. B. 574. ALLEN-MORRISON SIGN CO., INC. 923 ing Association, 310 U. S. 318; See also Medo Photo Supply Corporation V. N. L. R. B., 321 U. S. 678; N. L. R. B. v. Burke Machine Tool Company, 133 F. (2d) 618; N. L. R. B. v. Chicago Apparatus Company, 116 F. (2d) 753; Matter of A. J. Showalter Company, 64 N. L. R. B. 573; Matter of Consolidated Machine Tool Corporation, 67 N. L. R. B. 737; Matter of Exact Level & Tool Mfg. Co., Inc., 66 N. L. R. B. 1238; Matter of Pacific Plastic Co. Inc., 68 N. L. R. B. 52; Matter of The Alexander Milburn Company, 62 N. L. R. B. 482; Matter of Pure Oil Company, 62 N. L. R. B. 1039. Respondent's actions in unilaterally putting in effect the raise in minimum wages after breaking off negotiations with the Union and in the same manner giving its employees a Christmas bonus also were clearly in violation of Section 8 (5) as are the changes in working conditions made in 1946 as related below. 3 Further evidence of respondent's lack of good faith in dealing with the Union is shown by the events of 1946. In 1945 the respondent had countered the Union's request for a 17-cent pay increase with a 5-cent offer which the Union had accepted, and in October 1945 this was still the pay increase in the minds of the parties. Now on March 9, 1946, respondent wrote the Regional Director asking for immediate consideration of its employees' petition, so it could raise the wages of its employees through negotiations with their representative. The Regional Director acted on March 19 by refusing to proceed on the petition. Altizer, a signatory thereto, on March 24 appealed to the Board. On April 10, the Union requested a bargaining conference but instead of meeting with the Union, re- spondent immediately on April 11, called all its employees together and announced a 20 percent wage increase-a considerably larger increase than the Union had ever requested and without negotiations with it and also on April 18, respondent unilaterally raised its minimum wage rates. Respondent did not even answer the Union's April 10 letter until May 3, when it refused to meet with the Union stating as the reason, "In view of the challenge to the authority of your Union which our employees have made, we think we owe them the obligation to suspend negotiations with you until an official expression of the National Labor Relations Board is obtained upon the questions which the employees have raised." Re- spondent was notified by letter dated the same day that the Board had dismissed the appeal filed by Altizer. This "official expression" did not change respondent's attitude, it claiming that it did not realize this was a final order of the Board. Finally on June 5 when a Board Field Examiner told respondent that the Board had finally determined the matter, respondent accepted it as a final determination but still their attitude toward the Union was unchanged, as on June 17 respond- ent unilaterally put into effect a ,shift differential in wages and advised the Board it was not going to meet with the Union despite the Board's "official expression" which it had requested. On July 3, respondent unilaterally put into effect a vacation-with-pay plan and on July 9 filed a motion with the Board to "decertify" the Union" After the denial of this motion by the Board, another "official expression" on the matter, respondent on August 10, 1946, by letter to the Regional 17 See authorities cited in footnote 11, supra. 14 Respondent 's contention in this motion , also put forth at the hearing, that because a majority of its employees then in the unit never had an opportunity to vote for or against the Union, it does not have to bargain with the Union is also rejected. See Matter of Lake- shore Electric Mfg Corp., 67 N. L. it. B 804; Matter of Crumble Steel Company of America, 66 N. L. R. B. 1157; Matter of Semi-Steel Casting Company, 66 N L. R. B. 713; Matter of Pacific Plastic & Mfg. Co., Inc., 68 N. L. it. B. 52 ; Matter of Cheney California Lumber Company, 62 N. L it. B. 1208; Matter of Karp Metal Products Co. Inc., 51 N. L. it. B. 621. 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Director of the Board, stated it declined to resume negotiations with the Union "which were suspended October 18, 1945." These events from October 18, 1945, to August 10, 1946, are conclusive to the undersigned of respondent's predetermination never to bargain in good faith with the Union. From October to March it used the excuse of awaiting an "official" expression from the Board," but unilaterally granted a Christmas bonus in the meantime. When the Regional Director of the Board decided the matter respondent decided this was not a sufficient "official expression" for it and its excuse became the appeal, and while the appeal was pending it put in effect a large wage increase and raised minimum wages while the Union was demanding a meeting with it. Respondent still used the excuse that it had not had an "official expression" of the Board after the Board denied the appeal, until June 5. And then it abandoned this excuse, put in two more working condition changes which the Union had been attempting to obtain by negotiations for 18 months and filed a motion to decertify the Union. Finally when that failed, respondent flatly refused to meet with the Union. Such evasive and delaying tactics refute completely respondent's contention that it ever intended to bargain in good faith. The undersigned is convinced and finds that at least by April 10, 1945, when respondent refused to meet with the Union while issues were pending before the War Labor Board, respondent had adopted a fixed determination not to bargain sincerely with the Union in order to reach an agreement. The undersigned finds that, by engaging in evasive and delaying tactics, by promoting an anti-union campaign to dissipate the Union's majority, by taking unilateral action with respect to wages and other conditions of employment, respondent on April 10, 1945, and at all times thereafter, has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, thereby violating Section 8 (5) of the Act. Upon the basis of the entire record, the undersigned finds that respondent, by its entire course of conduct including the speech to employees in the meeting of December 5, 1944, its various and continual refusals to bargain, by the activ- ities and statements of Leadmen Salmon, Craft, and Parker, its unilateral action in changing working conditions, and its instructions to employees regarding solicitation and its application of these instructions, has interfered with, re- strained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in con- nection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. " Although only 3 employees testified about the leadmen's activities in soliciting for signatures to the first petition and no showing of such activities was made as to the second petition, respondent's contention that a majority of employees renounced the Union for reasons unrelated to unfair labor practices is rejected. As the Board recently stated, "It may be assumed that some of those who abandoned the Union were motivated in part by factors other than the discouraging effects of the unfair labor practices which the respond- ent committed. But any attempt to disentangle other factors from these discouraging effects is impossible so long as the unfair labor practices are unremedied ." Matter of Karp Metal Products Co. Inc., 51 N. L, R. B. 621. ALLEN-MORRISON SIGN CO., INC . 925 V. THE REMEDY Since it has been found that the respondent has engaged in unfair labor prac- tices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the respondent's instructions to its employees insofar as they prohibited union solicitation by employees during their non-working hours is violative of the Act, it will be recommended that the respondent notify its employees that the instructions are rescinded to that extent, and it having been found that respondent violated the Act in compelling its employees, during work- ing time, to listen to speeches relating to self-organization, it will be recommended that respondent cease and desist from such action. The undersigned will also recommend that the respondent cease and desist from refusing to bargain collectively with the Union, and that upon request of the Union respondent bargain collectively in good faith with it as the ex- clusive representative of its employees in the appropriate unit in respect to rates of pay, wages, hours, and other terms and conditions of employment. Upon the entire record the undersigned infers and finds that respondent has, by its entire course of conduct, including its speech to employees on December 5, 1944, its various and continual refusals to bargain, by the activities of its super- visors, Salmon, Craft, and Parker, in relation to the anti-union petition, by its unilateral action of changing working conditions, and its instructions to em- ployees regarding solicitation and its application of these instructions, displayed an attitude of opposition generally to the purpose of the Act. The undersigned is convinced that the unfair labor practices, heretofore found, are persuasively related to the other unfair labor practices proscribed by the Act and that danger of their commission in the future is to be anticipated from respondent's conduct in the past 10 Unless the order is coextensive with the threat the preventive pur- pose of the Act will be thwarted. In order therefore to make more effective the interdependent guarantee of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus effectuate the policies of the Act, the undersigned will recom- mend that the respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW i7 1 United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. All production and maintenance employees of the respondent, excluding all clerical employees, foremen and all supervisory employees having authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute, and at all times material herein have constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 16 N. L. R. B. v. Express Publishing Company, 312 U. S. 426. 17 The undersigned rejects respondent's "findings and conclusions." 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The-United Steelworkers of America, CIO, was on December 13, 1944, and at all times thereafter has been, the exclusive representative of all employees in the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 5. By refusing on and after April 10, 1945, to bargain with the Union, the re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) 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. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the un- dersigned recommends that Allen-Morrison Sign Company, Incorporated, its offi- cers, agents, successors and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the United Steelworkers of America, CIO, as exclusive representative of its employees in the unit herein found to be appropriate; (b) Issuing or enforcing a rule prohibiting union solicitation on company premises during non-working time ; (c) Compelling its employees during working time to listen to speeches relating to self-organization and the selection of a bargaining representative ; (d) In any other manner interfering with, restraining or coercing its employ- ees in the exercise of the rights to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effec- tuate the policies of the Act : (a) Upon request bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of all production and maintenance employees of the respondent, excluding all supervisory employees having authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees or effectively recommend such action, in respect to rates of pay, wages, hours of employment , and other conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agreement ; (b) Rescind immediately its instructions prohibiting union solicitation on the respondent's premises during the employees non-working time ; (c) Post immediately at its plant in Lynchburg, Virginia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Fifth Region, after being signed by the respond- ent's representative, shall be posted immediately by the respondent upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by respondent to insure that said notices are not altered, defaced, or covered by any other material ; (d) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of receipt of this Intermediate Report what steps the respondent has taken to comply therewith. It is further recommended that unless on.or,before ten, (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Director in writ- ALLEN-MORRISON SIGN CO., INC. 927 ing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action afore- said. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file-with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (includ- ing rulings 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, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such state- ment 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 Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required 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 transferring the case to the Board. T. B. SMOOT, Dated October 30, 1946 Trial Examiner. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations 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 : 1. We hereby rescind all instructions heretofore issued insofar as they prohibit union solicitation on our premises during employees' non-work- ing time and will not issue such instructions in the future. 2. We will not compel our employees during working time to listen to speeches relating to self-organization and the selection of a bargaining representative. 3. We will bargain collectively upon request with the UNITED STEELWORKERS OF AMERICA, CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment or other conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees excluding all clerical employees, foremen and all supervisory employees having author- ity to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. 4. We will not engage in any other acts in any manner interfering with the efforts of the Union to negotiate for or represent the employees as the exclusive. bargaining agent for the unit found above. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. We will not interfere with our employees in the exercise of the right to self-organization and to join or assist UNITED STEELWORKERS OF AMERICA, CIO, or any other labor organization. 6. All our employees are free to become or remain members of UNITED STEEL- WORKERS OF AMERICA, CIO, or any other labor organization. ALLEN-MORRISON SIGN COMPANY, INC. Employer. 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.