Northern Crate & Lumber Co.

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Regional Director concluded that the objections filed by Local 294 were in the nature of post-election challenges, and he recommended that the Board overrule the objections and certify the Petitioner as the collective -bargaining representa- tive. In its exceptions , Local 294, while not controverting the facts -found by the Regional Director , contends that the refusal of the Employer to permit a payroll check more than 2 hours in advance of the election was discriminatory and deprived the Union of a material right, necessitating that the election be set aside. Assuming that Local 294 was unable to determine precisely who the eligible voters were in the 2 hours before the election, it was incumbent upon the Local , through its observer, to challenge any and all voters as to whose eligibility it had any doubts.3 It is too late to raise the issue of eligibility now .4 We will accordingly overrule the exceptions. Our Decision and Direction of Elections herein providedthat the employees in voting groups ( 3) and (4) set forth therein would be taken to have indicated their desire to constitute a single unit if a majority in each group voted for the same labor organization . Inasmuch as a majority in each of these voting groups voted for the Petitioner , we find that a unit comprising the employees in voting groups ( 3) and (4) is appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act and will certify the Petitioner as the representative of the employees in that unit. [The Board certified Bonded Drivers and Mechanics Inde- pendent Union as the designated collective -bargaining repre- sentative of all truckdrivers and mechanics employed by the Employer at its Rennselaer terminal, excluding all other em- ployees, guards , and supervisors as defined in the Act.51 3 The number of voters actually challenged by any party was only seven, which was not sufficient to affect the results of the election. We find it unnecessary, therefore, to rule on the challenged ballots. 4N L R B v A. J Tower Co., 329 U S. 324 5 The Regional Director has already certified the Petitioner as the representative of the employees (a) in voting group 1, and (b) in voting group 5, and has certified the results of the election in voting group 2 NORTHERN CRATE & LUMBER COMPANY and LOCAL 12-15, INTERNATIONAL WOODWORKERS OF AMERICA, CIO and FRANK SUDER, RECEIVER FOR NORTHERN CRATE & LUMBER COMPANY.' Case No. 18-CA-325. June 1, 1953 DECISION AND ORDER On March 14, 1952, Trial Examiner George A. Downing issued his Intermediate Report in the above -entitled pro- i After the Intermediate Report was issued in this proceeding the Respondent was adjudged insolvent under the laws of the State of Wisconsin. Frank Suder, the duly appointed receiver, thereupon was permitted to intervene as a party respondent. 105 NLRB No. 22. NORTHERN CRATE & LUMBER COMPANY 219 ceeding, finding that the Respondent had engaged in and was en aging in certain unfair labor practices in violation of Section 8 (a) (1) and ( 5) of the Act and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner further found that the Respondent's con- duct was not violative of Section 8 (a) (3) of the Act and rec- ommended that the complaint be dismissed in this respect. Thereafter , the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. In his brief, the General Counsel stated that it was dis- covered after the Intermediate Report was issued that the charging party, Local 12-15, International Woodworkers of America, CIO, had a sublocal in the plant which has never achieved compliance with the filing requirements of the Act. Based upon this admission , the Respondent filed a motion to dismiss the complaint in its entirety . However , as the original record was silent concerning the organization and functions of the Sublocal, the Board on October 23, 1952, remanded the proceeding to the Regional Director to afford the Respondent and the General Counsel an opportunity to produce such evi- dence and advance arguments concerning the necessity of the Sublocal' s compliance with the filing requirements of the Act. On January 7, 1953, Trial Examiner Downing issued a Supplemental Intermediate Report , a copy of which is attached, recommending that the entire complaint be dismissed because of the Sublocal ' s noncompliance . Thereafter , exceptions and a supporting brief were filed by the charging party.' The Board has reviewed the rulings made by the Trial Ex- aminer at both hearings and finds that no prejudicial error was committed . The rulings are hereby affirmed . The Board has considered the Intermediate Report , the Supplemental Intermediate Report, the exceptions and briefs , and the entire record in the case, and hereby adopts the findings, con- clusions , and recommendations which the Trial Examiner made in the original and Supplemental Intermediate Reports insofar as they are consistent with this Decision and Order. 1. At the supplemental hearing it was demonstrated that the constitution of the Woodworkers contains no express authority for the establishment of sublocals; however, they are allowed to exist and operate as functioning organizations as a matter of policy . Further, the record now establishes , as the Trial Examiner has found in his Supplemental Intermediate Report, 2 After the Supplemental Intermediate Report was issued the charging party also moved, in the alternative, that: (I) The Board reverse the Supplemental Intermediate Report and hold that the Sublocal was not required to comply with the filing requirements of the Act; or (2) the Board allow the Sublocal to achieve compliance within 30 days from the date of any further Board order; or (3) the Board again remand the proceeding to allow the charging party an opportunity to adduce evidence and arguments concerning the necessity for com- pliance by the Sublocal. The first two of these motions are denied for reasons set out below. The third is denied because, contrary to the charging party's contention, there is no per- suasive evidence in the record that it was denied the opportunity for full participation in the remanded hearing 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Sublocal 12-15 enjoys substantially the same autonomy as a local union . Thus its members at the Respondent ' s plant hold regular meetings and elect their owl officers . The Sub- local's officers, with the full knowledge of Local 12-15, nego- tiate contracts with the Respondent . Sometimes negotiations are carried on with a representative of Local 12-15 present, but on occasion the officers of the Sublocal have done all of the negotiating on their own and have signed contracts in the name of the Local without the signature of any local officer . In these circumstances , and upon the entire record, we find that the Sublocal is a labor organization within the meaning of the Act. However , this holding does not compel us to find , as has the Trial Examiner, that the complaint is invalid and should be dismissed in its entirety because the Sublocal has never com- plied with the filing requirements contained in Section 9 (f), (g), and (h) of the Act. The Act does not require compliance by labor organizations subordinate to a charging party,' except where it has been proved that the charging party filed a charge on behalf of its subordinate as a subterfuge to circumvent the Act 's filing requirements .' Here the Trial Examiner has found that there was no showing that Local 12-15 was "fronting" for its Sub- local. We agree. Accordingly we find no inherent defect in the complaint itself.' We shall, however , dismiss the complaint insofar as it alleges that the Respondent violated Section 8 ( a) (1) and (5) of the Act by refusing to bargain with Local 12-15, and by granting unilateral wage increases in September and December 1951. The record establishes that Sublocal 12-15 was active among the Respondent ' s employees , both before the 1950 representa- tion proceeding in which the Local was certifiedand after cer- tification of the parent organization . Under well - established principles of the Board, as the Sublocal has never complied with the filing requirements of the Act, neither it nor its parent was entitled to appear on the ballot in that election, or to be certified.' Because the certification resulting from that election was the sole evidence of the majority status of the charging union in this proceeding, we find , as we did in Sunbeam Corporation,? that the Respondent was never under a duty to bargain with Local 12-15. 2. For the reasons set out in his Intermediate Report, we agree with the Trial Examiner that the strike of June 22, 1951, was in violation of the no - strike clause inthe contract between the Respondent and Local 12-15, and that the Respondent's subsequent discharge and refusal to rehire the employees named in the complaint was not , therefore , violative of the Act. Accordingly we adopt the Trial Examiner's recommendation, 3See United States Gypsum Company, 100 NLRB 1100. 4See Wood Parts, Inc., 101 NLRB 445; N. L R. B. v. Happ Brothers, 192 F 2d 195 (C. A. 5); N. L. R B. v. Alside, 192 F. 2d 678 (C. A. 6) SSee Lima Electric Products, Iac., 104 NLRB 338. 6 Sunbeam Corporation, 98 NLRB 525. lSee footnote 6, supra. NORTHERN CRATE & LUMBER COMPANY 221 and shall dismiss the complaint insofar as it alleges that the Respondent has violated Section 8 (a) (3) of the Act. 3. We also agree with the Trial Examiner's holding in the Intermediate Report that the Respondent violated Section 8 (a) (1) of the Act by attempting to instigate and foster a company union, and by sponsoring, instituting, and circulating decertifi- cation petitions. Although we have here determined that Local 12-15 was never properly certified, these actions of the Re- spondent nevertheless constituted a violation of Section 8 (a) (1), because this represented an attempt on the part of the Respondent to interfere with the rights guaranteed employees by Section 7 of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent, Northern Crate & Lumber Company, Eagle River, Wisconsin , its officers , agents, successors , assigns, and Frank Suder, the duly appointed receiver, shall: 1. Cease and desist from: (a) Attempting to instigate and foster a company union among the employees, or instituting, sponsoring, and circulating de- certification petitions. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to farm, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining and other mutual aid and protection, or to refrain from any and all such activities except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at the Respondent's plant at Eagle River, Wisconsin, copies of the notice attached hereto marked "Appendix A." 8 Copies of said notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, in- cluding 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. 8 In the event that this order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur- suant to a Decree of the United States Court of Appeals, Enforcing an Order." Z22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of this Order what steps it has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Re- spondent violated Section 8 (a) (3) and 8 (a) (5) of the Act or that it violated Section 8 (a) (1) of the Act by granting uni- lateral wage increases. 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 attempt to instigate or foster a company union among our employees nor will we institute or cir- culate any decertification petition. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their right to self - organization , to form, join , or assist any labor organization , to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. NORTHERN CRATE & LUMBER COMPANY, Employer. Date .................. By.................................................... (Representative ) (Title) 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 and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act as amended (61 Stat. 136), was heard at EagleRiver, Wisconsin, on January 21, 22, and 23, 1952, pursuant to due notice to all parties.Thecomplaint, issued on January 15, 1952, by the General NORTHERN CRATE & LUMBER COMPANY 223 Counsel of the National Labor Relations Board,i and based on charges filed by the Union and served on Respondent, alleged in substance that Respondent had engaged in unfair labor practices proscribed by Section 8 (a) (1), (3), and (5) of the Act by: (1) Refusing on or about April 4, 1951, 2 and since, to bargain with the Union which had been certified by the Board' on or about June 2, 1950, as the exclusive representative of Respondent's employees in an appropriate unit, in that, among other things, Respondent had refused to bargain con- cerning the issue which caused a strike on June 22, had solicited individual strikers to return to work, had sponsored, circulated, and filed with the Board 2 separate decertification petitions, and had granted unilateral wage increases to its employees; (2) discharging, dis- criminatorily, on June 25, 69 named employees (who had gone on strike because of Respond- ent's unfair labor practices), and refusing after July 30 to reinstate 22 of them, and refusing to reinstate 20 others until specified dates; and (3) engaging from April 1, 1951, in specified acts of interference, restraint, and coercion. Respondent, by its answer, denied the commission of the alleged unfair labor practices. Respondent admitted the certification of the Union but denied that the Union had, since on or about June 25, 1951, represented a majority of the employees. It admitted the discharges and the refusals to reinstate, but averred that the cause was the participation by the employees in the strike on June 22 in violation of a no-strike clause in an existing contract, and that the employees had also lost their employee status by going out on strike within the 60-day period provided in Section 8 (d) (4) of the Act. The answer also averred that the Union "was not entitled to any relief" because it had intimidated and coerced Respondent's employees in violation of Section 8 (b) (1) of the Act, and because it had violated Section 8 (b) (3) of the Act by causing the strike to compel the Respondent to agree to changes in an existing lawful agreement, in violation of Section 8 (d) (4). All parties were represented at the hearing by counsel or by representatives, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and conclusions. Various motions were made and disposed of during the hearing, except that rulings were reserved on certain motions to dismiss portions of the complaint and answer. The latter motions are disposed of by the findings herein. Oral argument was waived. Briefs have been filed by the General Counsel and the Respondent. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a Wisconsin corporation with its principal office, place of business, and a plant at Eagle River, where it is engaged in the manufacture of wooden crates and pallets. During the calendar year 1951, Respondent made purchases of raw materials aggregating a sum in excess of $250,000, of which amount approximately 25 percent was from points out- side the State of Wisconsin. During the same period Respondent made sales of crates and pallets aggregating more than $500,000, of which approximately 50 percent was to points outside the State of Wisconsin. It is therefore concluded and found that Respondent is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization which admits to membership employees of Respondent. III, THE UNFAIR LABOR PRACTICES A. The evidence 1. Introduction ; the contract ; synopsis of main events and issues Respondent 's president was Robert K. Ashton and its vice president was Frank Suder. Other supervisors were Elmer Spaeth, Robert Ashton , Jr., and Lester Lena , as was Oliver i The General Counsel and his representatives at the hearing are referred to herein as the General Counsel and the National Labor Relations Board as the Board The above-named Respondent is referred to as Respondent and Company, and the charging union, above named, as the Union 2All events occurred in 1951 unless otherwise specified 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brenwall until the occurrence of the strike . The Union 's representatives were Edward Lambert, international representative , Oliver J, Rasmussen , president of District 12 of the International , James Skalecki, preside;; of Sublocal 12-15 of Respondent 's employees until May 15 , and George jolly, president of the Sublocal after May 15 . The Union was represented in addition , during various grievance and negotiation meetings , by a commit- tee of 4 to 5 members. Following representation proceedings in Case No . 18-RC-661 , the Board , on June 2, 1950, certified the Union as the representative of Respondent 's employees . A contract was entered into on July 28, 1950, to be effective until July 27 , 1951 , and from year to year thereafter, with a 60-day termination or reopening clause. The contract contained a union -shop clause, which had followed due certification by the Board . The contract also established a formal grievance procedure , with a provision for arbitration as its final step as follows: (4) In the event that an agreement satisfactory to both parties cannot be reached in relation to a grievance or in relation to the interpretation of any provision of this con- tract, after resort is had to the steps above , the matter shall be submitted to arbitration. The arbitration board shall consist of one person to be selected by the Company and one person to be selected by the Union , said two persons to agree upon a third member.... In all arbitrations , the decisions rendered by the arbitration board shall be final and binding on both parties.... The contract also contained the following no-strike clause: Throughout the life of this contract there shall be no stoppage or partial stoppage of work by employees for any cause and no boycott of any kind unless the Company refuses to arbitrate an arbitrable dispute or , after abritration , refuses to abide by the decision of the arbitrator. Reciprocally , the Company agrees there shall be no lockout. In view of the provisions of the "Labor Management Relations Act, 1947," it is stipu- lated and agreed that if any of the employees strike in violation of the provisions of this contract the Company will not avail itself of its right under said act against the Union, provided (a) the Union has not authorized such a strike (b) the Union promptly denounces publicly such strike (c) the Union and its officers and agents use prompt, honest and diligent efforts to end such a strike. In the event of a disagreement between the Union and the Company as to whether the Union has carried out its obligations under (a), (b), and (c) above , such dispute shall be submitted to arbitration as provided in the contract. The Company will not cause or sanction any undue or unfair delays in the handling or settling of grievances , and will not lock out the employees covered by the agreement on account of any controversy with the employees respecting the provisions of the Agree- ment.... In January 1951 Respondent laid off Helen Anderson and Helen Holowinski . A grievance was filed and carried to arbitration . The arbitration board issued its decison on March 13, in which it found against the Company on the issues , but did not fix the amount of back pay to which the claimants were entitled . The Respondent thereafter asserted inability to comply pending "an interpretation " or a determination of the amounts due. On May 21 the Sublocal gave notice of its desire to reopen the contract , and negotiations were begun in June. On June 22 a spontaneous or wildcat strike occurred because of employee resentment at Respondent's failure to pay the arbitration award. Respondent immediately denounced the strike as in violation of the contract , but the Union took the position that the strike was justified because of Respondent's refusal to comply with the arbitration award. On June 25 Respondent discharged the striking employees because of their violation of the no-strike clause. On July 20 the arbitration board prepared computations of the amounts due the two claimants , and Respondent paid the awards on or about July 27 . On July 28 the Union formally terminated the strike and notified the Respondent the employees would return to work on July 30. When the strikers applied on that date they were given applications for reemployment and treated as new employees. In July and August two separate decertification petitions were circulated in the plant, both of which were subsequently dismissed by the Regional Director . On or about September 15 and December 3, Respondent granted general wage increases without consulting the Union. The bulk of the issues litigated at the hearing related to the strike ; they turn on the basic question whether the strike was in violation of the contract or whether it was justified there- under because of Respondent 's failure to comply with the arbitration award. The determi- NORTHERN CRATE & LUMBER COMPANY 225 nation of that question will resolve the issues concerning the discharge and the refusal to reinstate striking employees . Other issues are whether Respondent refused to bargain , whether it sponsored the decertification petitions , whether it attempted to foster the formation of a company union , and whether it engaged in interrogation and other acts of interference, restraint, and coercion. Respondent offered no evidence to support the answer 's averments of intimidation and coercion of employees by the Union. Since the major issues revolve around the strike , the evidence will be first summarized which relates directly to the causes of the strike and its continuation , before turning to evidence which the General Counsel relies upon, independently thereof, to establish other alleged unfair labor practices. 2. The arbitration ; other events preceding the strike Arbitration was resorted to in March after the earlier grievance steps had failed to ac- complish a solution of the Anderson -Holowinski grievance. 3 The Union appointed as its mem- ber (without objection by Respondent ) Robert D. Martinson, a local attorney who had repre- sented the Union from time to time including the negotiations for the first contract. Re- spondent named Joseph Trinka , and thereupon Martinson and Trinka selected as the third member Frank W. Carter, Jr., another local attorney who was currently representing Re- spondent in connection with an RFC loan. Carter divulged his representation of the Company on the RFC matter, but Martinson nevertheless agreed that Carter should act as an arbi- trator.4 The arbitration hearing was held on March 9 in Martinson 's office, with Ashton, Sr., representing Respondent, and Skalecki the claimants . Though no chairman was named, Martinson acted as chairman and later prepared the decision of the board . The arbitrators had agreed , after -discussion among themselves , that the issue which they were to decide was whether the claimants had been improperly laid off, and that it was not within the province of the board to fix or determine the amount of the award in the event the basic issue was decided against the Company . Skalecki testified that before the hearing opened Martinson explained that the only decision the board would make was whether the layoff was according to the contract, and that if the Union won. the Company would be liable for the back pay of the two employees ; that Martinson also "suggested" to Ashton that if the claimants had worked elsewhere , or if they had received unemployment compensation , such earnings or payments could be deducted, and that Ashton agreed. In any event, neither Ashton nor Skalecki requested or suggested that the board determine the amount, and the arbitrators accordingly took no evidence on such items , for example , as interim earnings, wilful loss of earnings if any, illness during layoff, unemployment benefits , or absenteeism, though the latter factor was relied upon by Respondent as justifying the layoff. On March 13 , the board issued its decision , finding against the Company on the merits of the layoff issue , and concluding: The Board therefore awards totheclaimantssuchrights as they have by law and agree- ment in consequence of such layoff as found and determined. Approximately a week later, during a grievance meeting , Skalecki inquired of Ashton whether the award would be paid , and Ashton replied that he had submitted the matter to his attorney (and brother), R. W. Ashton , and that the attorney's decision would be final. The attorney's opinion was contained in his letter of March 21 , which need not be set forth in full. The first paragraph analyzed thedecisionon its merits and concluded that it was correct. Succeeding paragraphs pointed out the inadequacies of the award with respect to the determi- nation of the amount due and advised that: 31t is unnecessary to explore the events preceding the first arbitration award. Respondent defended the layoff at all stages of the grievance procedure, including the arbitration hearing, on the ground that the high percentage of absenteeism by Anderson and Holowinski rendered them incapable of performing available work and that Respondent was therefore entitled to disregard strict seniority. 4 The fact that Martinson and Carter were employed at times as attorneys by the Union and Respondent, respectively , did not affect their competency to act as arbitrators 6 C. J S 186, Arbitration and Award, sec. 46. Nooblectionwasmade to either , and if made, would have been waived by submitting the case to them, with knowledge of the facts Ibid. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In awarding back pay, the average earnings of the employees prior to discharge for a normal workweek should be used, and deducted therefrom should be any earnings of the employees for the period, but unemployment compensation benefits are not considered as earnings and not to be deducted from a back-pay award (Pennsylvania Furnace & Iron Company, 13 NLRB 49). If the employee was confined at home by illness during the period, she is not to be repaid for the period of confinement. If the employee accepted permanent employment elsewhere with equal or greater pay, no back-pay should be awarded from the date of the acceptance of such other permanent employment. The letter concluded that it was unfortunate that the Board did not receive testimony as to interim earnings and make some actual determination of amounts to be deducted , and that: Unless this matter can be satisfactorily negotiated with the claimants, it may be neces- sary to reconvene the Board for this purpose, but this involves expense to both sides, and you should be able to satisfactorily adjust the matter. Ashton later read to Skalecki and to the sublocal committee only the first paragraph of the above letter, and thereafter took the position that it was necessary, in order for Respondent to comply with the award, for the arbitration board to furnish him with the amount. Carter testified that on two occasions prior to the strike Ashton requested him to get the board back together and have it inform him oftheexact amount, or the method of determining the amount, that the Respondent should pay. Carter later discussed the matter with Martinson, whose position as finally stated was that the board had done its job and had been dissolved, and that he would not agree to proceed on any basis other than the reconvening of the full board at the request,of both the Union and the Company.5 Skalecki testified that as a result of one discussion with Ashton he agreed to and did con- sult with Martinson about having the arbitrators fix the amount of their award. Martinson's position as stated to Skalecki was that the issue involved in the arbitration did not include the question of the amounts; that since the board had taken no evidence and had no information as to time lost, rates ofpay,orwages received, it would be impossible for the board to arrive at a figure; that the board "was completely dissolved," and that if Ashton wanted an arbitra- tion board to fix the amount, then a new board would have to be set up, either with the same or different members. Martinson also stated that the Company should be able to arrive at a figure since it had a record of the time off and the hours lost. Skalecki requested that Martinson contact the Company and endeavor to straighten out the matter, and Martinson replied that if he was needed by the Company he would come, but voluntarily he did not see why he should. Skalecki reported to Ashton his entire conversation withMartinson and adopted Martinson's position that the arbitration board could not do anythuig further about determining the matter. Skalecki testified that at that time Ashton agreed with him that it was unnecessary to incur the additional expense of another arbitration. Skalecki admitted that Respondent and the Union could "possibly" have reassembled the board to determine the amount, admitted that there was dispute over Respondent's contention that an appropriate deduction for absenteeism should be allowed, and admitted that he had no information as to other employment of the claimants and that he made no suggestion for determining that matter or the question of absenteeism. The subject of compliance with the award was discussed at various grievance meetings prior to June 20, but without change in the positions of the parties. Ashton continued to urge that the matter be referred to the board and to express willingness to pay the award if the board or Martinson (who was referred to as the "Union's attorney") would fix the amount or instruct Respondent as to the proper method of determining it The Union adhered to the position which had been stated by Martinson, and contended that it was Respondent's obligation to compute the amount and that it was able to do so from its records. At no time, however, did either party suggest that they negotiate concerning the amount or a method of determining it. In the meantime Skalecki, as chairman of the Sublocal, had given Respondent written notice that it desired to reopen the contract, and requested a meeting. Respondent agreed 5 This would have meant, as Carter pointed out in his testimony, that the arbitrators would again be compensated for their services Although not spelled out explicitly in the testimony, the inference was suggested that Martinson wanted another fee because he felt that the board had completed the job for which it had been compensated. NORTHERN CRATE & LUMBER COMPANY 227 (though no written proposed changes were submitted as required by the contract), and sug- gested that a preliminary meeting be held sometime in June. The evidence does not indicate, however, to what extent actual bargaining negotiations for a new contract were undertaken prior to the strike. A lengthy grievance meeting was held on June 20, in which the subject of Respondent's failure to pay the award was also discussed. Suder, who was Respondent's representative in that meeting, stated that Ashton had been handling that matter and that Ashton was awaiting a decision from Martinson as to the determination of the amount of the award. On June 21 Respondent posted on its bulletin board and delivered to union representatives copies of a memorandum in which it stated its position on, or disposition of, the various grievances which had been discussed the preceding day.6 That memorandum contained the following refer- ence to the arbitration matter: 3--Helen Anderson and Helen Holowmski arbitration case--The Union attorney has never given us written opinion and the necessary order to pay as required by the law. The Union Committee has been notified on three different occasions as to why the claim is unpaid, 3. The strike; subsequent events connected therewith On the morning of June 22 all but a few of the employees engaged in a spontaneous strike because of their resentment at Respondent's failure to settle the arbitration matter. Shortly thereafter Jolly and the sublocal committee were called into Ashton's office, and Ashton informed them that the strike was illegal and dema-ded that they order the employees to return to work. Jolly contended that the strike was not illegal (for reasons which some of the striking employees had expressed to hum), but he did not inform Ashton of the basis for his contention. Ashton called in a stenographer and dictated the following memorandum, which was typed and delivered to Jolly: 22 June 1951 To: Union Committee, Sub-Local 12-15 This is to inform you that a work stoppage occurred in our plant at 9:35 A.M. 22 June 1951 in violation of the contract dated July28 , 1950 , Article 2. Consider this your official notice delivered in hand at 11:10 A.M. this 22nd day of June that you are to immediately take steps to have the people return to work and the work stoppage eliminated . If this is not done by 7:00 o'clock A.M. June 23, 1951, under the rulings of the Taft-Hartley Act and the National Labor Relations Board , this company will stand on its rights to termi- nate the contract and ignore the Union "at least with respect to matters relating to the strike" until it has taken effective steps to correct "the violation." On Monday 25th, June , 1951, under the Taft-Hartley Act and ruling of the National Labor Relations Board the next step of procedure of giving a discharge notice to strikers who have not returned within the prescribed time limit will be effectuated It is hoped that the Committee realizes the violation of the contract , the Taft-Hartley Act and the decisions of the National Labor Relations Board and will make every effort and attempt to have the people return to work . It is hoped that the steps prescribed will not be necessary to be taken . However, as the Company received no warning , no notice, no arbitration, no arbitrable dispute in question , it will be forced to take what legal steps are provided to them under the laws of the United States. The committee refused to order the employees back to work, and stated their desire for a further meeting at which their outside representatives mightbe present. However, at Ashton's request, Jolly later read the above notice to the striking employees. A further meeting was held on the next afternoon, the Union being represented by Lambert, Rasmussen, Jolly, and the sublocal committee, and Respondent by Ashton, Sr., Ashton, Jr., Suder, and Carter, the latter whom Respondent had employed on matters connected with the dispute after the outbreak of the strike. Ashton, Sr., requested the Union to sign an agree- 6 Though the Union sometimes expressed objection to Respondent's practice of answering or disposing of grievances in this manner, it made no issue thereon either during the grievance meetings or in negotiations for a new contract. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment to arbitrate the question whether the Union had carried out its obligations under the no-strike clause. The Union refused to agree, but Rasmussen and Jolly acknowledged receipt of the document tendered by the Company, which read as follows: June 23, 1951 To: UNION COMMITTEE, SUB LOCAL 12-15 International Woodworkers of America--CIO RE: NOTICE OF DISPUTE TO BE SUBMITTED TO ARBITRATION Hereby take notice that under the terms of the Agreement made and executed on the 28th day of July 1950 by and between the Northern Crate & Lumber Company of Eagle River, Wisconsin, and Local 15, International Woodworkers of America, CIO, ARTICLE II, that the company declares that the Union has failed to carry out its obligations under subsections (b) and (c) of said ARTICLE II by failing to promptly denounce publicly the now-existing strike, and by failure of the Union and its officers and agents to use prompt, honest and diligent efforts to end such a strike. Further, the Union Committee declared to the company that the Union did not know why the present stoppage of work occurred and indicated that said stoppage was not au- thorized by the Union. That the company has had no notice of said stoppage of work, no nonce of the reasons for the stoppage of work. Further, the company gives notice that the matter be submitted to arbitration im- mediately and without delay. Further, that the Company hereby selects Frank W. Carter, Jr., of Eagle River, Wis- consin, as its representative on the arbitration committee. Respondent requested that the Union send the employees back to work, but the Union de- clined on the ground that the strike was a legal one under the contract because Respondent had not complied with the arbitration award. Carter stated that the Respondent would not dis- cuss the award or any issues as to the cause of the strike. Lambert suggested that in that case they discuss wages. Various matters concerning a new contract were then discussed, but periodically the discussions returned to the question of the award and getting the employees back to work. Respondent continued to urge that no determination had been made of the amount, and Lambert suggested that Respondent figure it by using an average factory work- week. Carter raised the question of deductions for unemployment compensation. Lambert then urged Respondent to pay the award on any basis it saw fit, and suggested it pay a flat $10, or some such sum, and the Union would take steps to see to it that the employees returned to work.7 Rasmussen testified that the Company also suggested during the meeting that the arbitra- tion matter be referred back to the board for a determination of the amount, and that the Union agreed; but he was unable to explain why, in view of the Union's alleged agreement, the pro- posed disposition was not resorted to. Rasmussen admitted that Respondent produced a draft of the following letter, bearing date June 23 (later mailed on June 25, after the employees failed to report to work), and stated its intention to mail it to all striking employees who did not return to work: In compliance with the Labor Management Relations Act of 1947 (Taft-Hartley Act) and due to the fact that an unauthorized stoppage of work occurred at the Northern Crate & Lumber Company on June 22, 1951 . Further that all terms of the Agreement dated July 28 , 1950 by and between the Northern Crate & Lumber Company and Local 12-15 of the International Woodworkers of America --CIO have been met in all respects by the company , and that the Local 12-15 has failed to live up to the terms of said agreement as set forth under ARTICLE II thereof and in particular subsections (b) and (c) of ARTICLE U. Further , that since there has been a violation of the "no-strike clause" of the Agreement, since the Union has failed to meet the requirements of the contract, and since you as an individual have failed to report for work and failed to actually work, your services with the Northern Crate & Lumber Company are hereby terminated immediately. 7Rasmussen explained that if Respondent had adopted Lambert's suggestion of paying a flat sum, the Union would again have had recourse under the contract to the grievance procedure, if not satisfied with the amount This would have presented the anomalous, if not ridiculous, situation of starting a fresh grievance to settle one which was supposed to have received final determination in the arbitration proceeding. NORTHERN CRATE & LUMBER COMPANY 229 However, if you so desire, you may make application for a job with this company any- time after receipt of this notice and your application will be considered. Jobs so given after this notice will be on a rehiringbasis and not under re-instatement procedure. The Company can and will guarantee all those re-hired the full protection of the laws of the United States, and irrevocably states that any person so rehired cannot be dis- charged for any cause whatsoever by the union. The meeting concluded with a request by the Union for another meeting the following day. Ashton stated his refusal to meet on issues as to the cause of the strike; but when Lambert suggested they meet on the question of wages, Ashton agreed. The Sunday meeting was held in Respondent's office with the same participants, except Sunder. The wage question was first mentioned, but Respondent's position was that it could not intelligently discuss the subject until after the receipt of its auditor's report sometime after the first of July. Periodically, again, the discussions returned to the strike, with the reiteration of the respective positions taken the previous day. Finally Lambert stated that he wanted to go to the membership with a basis for settlement of the strike, and inquired whether Ashton would put all the employees back to work. Ashton replied that their cards would all be in the rack for at least 4 hours on Monday morning8 but he made no commit- ment as to how long the employees might be allowed to work after reporting and punching in. The union representatives stated their intention of meeting again with their membership to discuss the possibilities of settlement, and requested a further meeting with management thereafter. Ashton, Sr., stated that they might reachhim by telephone. During the membership meeting the employees requested their representatives to ascertain whether Respondent would pay the award and would reinstate all striking employees. The representatives then endeavored to call Ashton, Sr., but were informed by Ashton, Jr., that he could not be reached by telephone. The membership then voted to reject the Company's request that they return to work. On Monday the Respondent mailed all striking employees discharge letters in the form above set forth. On June 26 Rasmussen wrote Respondent two letters. One of them informed Respondent that the reason of the strike was the Company's failure to comply with the arbitration award, re- quested compliance therewith, requested a meeting to discuss the matter "in order to settle the strike," and expressed the Union's willingness to induce the employees to return to work as soon as Respondent should carry out its obligations under the contract. The second letter protested the discharges as "unjustifiable" and "in violation of the Union contract and rights of the employees under the law" and as constituting unfair labor practices; it also expressed the Union's desire to continue negotiations "of the issues in dispute," and requested a meet- ing. Respondent did not reply to either letter. On June 25 it filed charges with the Board's Re- gional Office in Minneapolis, under Case No. 18-CB-32, charging that the Union was engaged in an illegal strike.9 On June 27 the Union filed the original charge in the present proceeding, charging the Respondent with a refusal to bargain concerning the computation of back pay under the arbitration award and with "other acts" of interference, restraint, and coercion. In the meantime, Rasmussen had also notified the United States Conciliation Service of the dispute, but he gave no notice to the Wisconsin Employment Relations Board. Thereafter an investigation of the respective charges was made by Field Examiners Meter and Sandberg of the Minneapolis Regional Office. Luecke, of the Conciliation Service, also came to Eagle River and conferred with Respondent and with Carter. Carter testified that shortly prior to the preparation of the "interpretation" of the award, he and Luecke had the following conversation: [Luecke] asked me if there was any reason why the Board couldn't meet and give them he decision and get the strike over with. I told him no, there was no reason why we couldn't but members of the Board felt that we had to have a request by both the Union and the company to reconvene. He then asked me if there was any reason why we couldn't meet informally and give a decision, without meeting with the Board, but just give him an interpretation of our original award. My answer was no, and there was no reason why it couldn't be done.... 8 Paul E. Nickell, a member of the sublocal committee, testified that this meant the em- ployees could punch in and go to work 9 The Regional Director, on December 13, refused to issue a complaint on said charges after reaching a settlement agreement with the Union. 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carter testified that on July 19 Meter put to him the same question that Luecke had, that acting on Meter's request , Carter and Trinka met , in Martinson 's absence from the city; and that Carter on July 20 prepared an "opinion " of the amounts due under the previous award, a copy of which is attached hereto as Appendix A.10 Carter testified that he prepared the com- putations from records and information submitted to him by Respondent. Ashton, Sr ., testified that at least in the case of HelenHolowinski , his bookkeeper had contacted her after the strike on the subject of earnings and other employment during her layoff, and that Holowinski re- ported that she had not worked during that period because of illness. On July 20 Respondent wrote the two claimants as follows: In accordance with a decision handed to us at 1:40 P.M. 20 July 1951 by the Arbitration Committee , we are to pay you the sum of $216 .63 back pay award. Delivery of the checks was not made , however, until July 27, after Carter had obtained Martinson 's concurrence in and signature to the supplemental award , and was made by repre- sentatives of the Wisconsin-Unemployment Commission at their request. The Union held a membership meeting on July 28, at which it was decided to send an un- conditional notice to the Company that the employees would return to work on July 30. The following letter was thereupon prepared and served on Respondent: Upon receiving word that the Arbitration Award of March 13, 1951 has been paid, we wish to notify you that the employees of the Northern Crate & Lumber Company who have been on strike will return to work on Monday morning July 30, 1951. When the striking employees reported for work on July 30, they were handed applications for new employment and treated as applicants for new employment. Nine of them were re- employed and 5 others were offered employment but refused it. Thereafter on various dates from August 10 to September 10 Respondent reemployed 20 others. In the meantime Luecke had attempted early in July to arrange a meeting between the parties on the issues of the dispute , but was able to get them together for face-to-face bargaining only on the question of wages and a new contract. Lambert fixed that meeting as on or about July 9, and testified , amongother things, that Respondent sought to drop the union- shop provision from the contract and sought to deny the Union the right to strike . Its position on wages was that it could not afford to grant a wage increase . No agreement was reached and no other bargaining conferences were held during the strike. 4. Miscellaneous incidents Genevieve Adomytes testified that around the middle of March 1951 Ashton, Sr ., spoke to her in downtown Eagle River and requested her to get into his car with him, referring to him- self as "Old Pops." She testified that Ashton stated he had heard rumors of a strike and wanted to know if there were going to be one. He also stated he had heard she was a good union member and that he did not see that the Union was doing the employees any good, since they were paying out good money and getting nothing out of it. Ashton then requested that she talk to the employees and ask them to organize an independent union. Adomytes refused. Ashton denied the incident in its entirety and denied he had ever been referred to or had ever referred to himself as "Old Pops ." Anthony Adomytes , called by the General Counsel in rebuttal , corroborated his wife's testimony astothe encounter with Ashton, and to Ashton's invitation to Mrs . Adomytes to get into his car, in the words , "Come on in , Pops wants to see you." Adomytes remained in his own car and did not hear the later conversations. Genevieve Adomytes ' testimony is credited in view of the substantial corroboration afforded by her husband 's testimony. George Jolly testified that the day following a meeting on May 25 Ashton came to his farm and stated that he had been studying the proposals discussed the day before ( in a meeting at which Rasmussen had been present), that he wanted the union representatives to consider certain new proposals he had made , and wanted Jolly to approve them . Jolly refused , stating that he could approve nothing without the rest of the committee. From Respondent's mem- orandum of May 26 (posted, as customary), summarizing happenings at grievance meetings 10 In the meantime Lambert had written Respondent under date of July 19 , requesting a meet- ing "at the earliest opportunity to discuss the amount of back pay due under the award and the payment thereof." Rasmussen admitted that the Union had made no prior request to negotiate on the subject of the amount of the award NORTHERN CRATE & LUMBER COMPANY 231 on May 24 and 25, it appeared that the matters under consideration were three union griev- ances relating to operational problems . Ashton's visit was apparently to solicit Jolly's approval of Respondent's proposed disposition of them. Jolly testified further that some time later, he and the sublocal committee met with Ashton one evening when Rasmussen and Lambert were not present and that after dis- cussion by Ashton of certain changes he proposed to make, Ashton suggested that Jolly and the committee get together with him sometime "in a little special meeting of our own and draw up a contract between ourselves in a mutual fashion, as he put it , without outside representatives " [i.e., Lambert and Rasmussen ]. " Al Hebert , a member of the committee, substantially corroborated Jolly's testimony . Hebert also testified that around July 12 or 15 , while he was on the picket line , Ashton , Jr., approached him and that the following 'onversation ensued: Well, he said to me , "Al, why don 't you folks get an independent union and instead of paying out this twenty four or twenty five dollars a year for these guys running around with a big car that you could have it at home here," and I suggested, I said to him, "Well , Mr. Ashton it's like this.... Your dad could be president and you could be vice-president ... what the hell of a chance could we have of getting any benefit out of a union " He said, "I think you are all wrong." I said , "I don't think so." He said, "You think it over." Doris Evans testified that during the strike Ashton , Sr., came to her home and inquired whether her husband, Donald Evans (a striking employee), would come back to work and stated that he "would hate to see him lose his seniority rights and he would Edo so] if he didn 't come back by that next Monday." Early in July Jerome Plude , who had returned to work after solicitation by Ashton, inquired of Suder how he could go about decertifying the Union . Suder stated that he "happened" to have some applications in the office at the time, and requested Plude to fill one out. Plude stated that he was not familiar with the necessary phrasing , and requested Suder to fill out the form, Suder did so. Suder also prepared and circulated in the plant an informal support- ing petition , which read as follows: We, the undersigned employees of the Northern Crate & Lumber Company Eagle River, Wisconsin , do hereby declare that the Petition for Decertification of Local 12-15, International Woodworkers of America , C.I.O. signed by Jerome Plude is in accordance with our wishes for the reason that said Union no longer represents us. That our signa- tures set forth below are given freely and voluntarily. The petition was signed by 24 persons , including Suder himself, Ashton , Jr., Elmer Spaeth , Lester Lena , and Oliver Brenwall. The formal and informal petitions were there- upon mailed to the Regional Office from Respondent 's office on or about July 14. After investigation the Regional Director dismissed the petition on July 31 because "It does not appear that further proceedings are warranted inasmuch as the petition was not filed in conformity with Section 9 (c) (1) (A ) of the Act as amended." After receipt of the Regional Director 's letter of dismissal, Plude consulted Judge Frank Carter (the father of Carter , Jr., but not professionally connected with him) who prepared for Plude new formal and supporting petitions , the latter reading as follows: Proof of Interest We the undersigned employees of the Northern Crate and Lumber Company, Eagle River, Wisconsin , do hereby designate Jerome Plude to secure and sign a Petition for Decertification of Local 12 -15, International Woodworkers of America, C.LO. It is our wish that said Union no longer represent us in name or in fact. ii Jolly testified that he did not know whether the sublocal officers and committee had au- thority to negotiate a contract, nor does the evidence establish whether they did. It is signifi- cant, however , that the existing contract was signed only by Skalecki ( former president) and by a committee, under an attestation clause which read as follows IN WITNESS WHEREOF, the parties hereto authorize these presents to be signed by their proper authorized off :ers and agents .. (Emphasis supplied ) 291555 0 - 54 - 16 2 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plude testified that he did not talk to Suder, but that he did talk to other employees, and that among those, who like himself were "interested" in filing the petition, was Lester Lena. Plude circulated the supporting petition in the plant openly during lunch and rest periods and partly during working hours. He obtained 29 signatures including those of Lester Lena, Elmer Spaeth, Oliver Brenwall, and Don Ashton (another son of Ashton, Sr) Plude thereafter returned the petitions to Judge Carter who readied them for mailing, and Plude mailed them to the Regional Office where they were receved on August 20, Plude testified that thereafter Field Examiner Sandberg questioned him about the second petition and requested him to withdraw it because "it was tainted like the first one." When Plude refused, Sandberg stated, "You will hear from me shortly with the necessary papers to dismiss this case, dismiss this petition." Thereafter, on November 8, the Regional Director wrote Plude a letter identical with the earlier one of July 31, informing Plude of the dismissal of the petition. B. Concluding findings 1. Questions concerning the legality of the strike The validity and binding effect of the no-strike clause are not here in issue, for at the outset of his brief the General Counsel concedes, as he must, that if the employees engaged in a strike in violation of the terms of the contract, Respondent was lawfully entitled to discharge them and to pick and choose whom it would rehire. 12 The major issues presented here turn, then, on the question whether the strike in fact violated the contract, specifically whether the Respondent's failure to pay the arbitration award constituted, in the language of the no-strike clause, 13 a "refusal to abide by" the arbitrators' decision. This pivotal issue requires that careful attention be given to the award and to whether it was sufficiently definite and final to require or to enable compliance with its terms. Of prime significance are the general principles which govern the subject of arbitration and award. Arbitrators have the power and the duty to make a final disposition of the whole matter submitted to them for decision. 3 Am. Jur. 923, Arbitration and Award, sec. 92; 6 C J S 190, Arbitration and Award, sec. 48 (b), cf Kellor, Arbitration in Action (Harper, 1941), p. 118. This is because the object of arbitration is to obtain such a settlement as will put an end to dispute, conclude the matter submitted, and give the parties repose and quiet thereon, 6 C. J. S. 226, sec. 81 (a) (1), cf. Kellor, supra p. 118; i. e., the settlement should be such as will effectually end present and prevent future litigation on the points involved. 3 Am. Jur. 949, sec. 128. Were it otherwise, arbitration would fail of its chief purpose, for instead of being a substitute for litigation, it would merely be the beginning of litigation."' Updegraff and McCoy, Arbitration of Labor Disputes (C.C.H., 1946), p. 127. `,Consequently. an award which leaves anything for future adjustment, other than by mere mechanical computation or measurement, is not final and cannot be sustained. 3 Am. Jur. 949-50, sec. 128. Thus, to be final, an award must be such a disposition of the matter submitted that nothing further remains to fix the rights and obligations of the parties, so that the party against whom it is made can perform or pay it without any further ascertain- i2See, for example, N.L R.B. v, Sands Mfg. Co., 306 U.S. 332; Dorsey Trailers, 80 NLRB 478, and cases there cited at footnote 5. Though the binding effect of no-strike clauses was first recognized in cases where the strike was neither provoked nor preceded by unfair labor practices of the employer ( see, e g. , Scullin Steel Co , 65 NLRB 1294; Joseph Dyson & Sons, Inc , 72 NLRB 445; Fafnir Bearing Co., 73 NLRB 1008), the principle was later extended to cases where the employer was found to have engaged in unfair labor practices (National Electric Products Corp., 80 NLRB 995; United Elastic Corporation, 84 NLRB 768). Such ex- tension was due to recognition that the very essence of a no-strike agreement is that it sub- stitutes completely and unreservedly collective bargaining in place of strikes and lockouts (the usual permissive economic weapons), Consolidated Frame Co , 91 NLRB 1295, 1297, and cases cited, and that the provisions of the Act and the processes of the Board exist for the protection of the rights of employees and the remedying of the employer's unfair labor practices, thereby obviating any necessity for the breaching by employees of their agreement not to strike. National Electric Products Corp., supr. 13 The pertinent provisions of that clause and of the arbitration award have been set forth under section A, 1 and 2, supra, and will not be restated. i4Compare, here, Rasmussen's testimony that the Union proposed to start a new grievance if Respondent had followed Lambert' s suggestion that it pay a flat $10 to each claimant. NORTHERN CRATE & LUMBER COMPANY 233 ment of his obligations, and that further litigation shall be unnecessary. 6 C. J. S. 226, sec. 81 (a) (1); supra pp. 119-20. This does not mean that an award must necessarily state in figures the exact amount to be paid, for it is sufficiently certain if it gives a basis or rule by which the parties can ascertain the amount, or nothing remains but a mere mathematical calculation. 6 C. J. S. 233, sec. 84 (e). Application of the foregoing principles to the facts in this case discloses that the award of March 13 was not sufficiently definite and final to enable Respondent to comply. What it left open was not a mere matter of computation, nor was Respondent able to comply merely by reference to a prescribed standard of law. For example, the entire record in this case suggests the following items on which the arbitrators could properly have taken evidence and to which they could properly have given consideration in fixing the amount of the back pay due the claimants: (a) Interim earnings in other employment; (b) willful loss of earnings if any; (c) periods of illness during the layoff; (d) the question of deductibility of any unemployment benefits received; (e) the question whether a factor should be established and allowed for alleged excessive absenteeism. Simply to award, as the decision did, such rights as were provided by law and agreement could not shift to Respondent the obligation to make an investigation and determination on matters which were peculiarly within the province of the arbitrators and obviously incidental and necessary to the ultimate decision. Cf. 6 C. J. S. 191, sec. 48 (b). Nor, obviously, could Martinson's informal suggestions at the hearing have constituted a proper guide or standard by which Respondent could have determined its obligations under the award, since they were neither complete nor accurate. 15 Nor was Respondent in fact able to make the determination from its records, as claimed by the General Counsel. In the first place there was disagreement on items (d) and (e), supra, Respondent contending that it was entitled to deduct unemployment compensation and to an allowance of a factor to offset the claimants'excessive absenteeism. When originally asserted. Respondent's position on item (d) was supported byMartinson's suggestion that unemployment compensation was deductible, though on March 21 Respondent's attorney advised it to the contrary. In the next place, neither Respondent nor the Union had the necessary information by which to resolve items (a), (b), and (c). Though Carter finally prepared the supplemental award from Respondent's records and other information supplied by it, the information as to other employment was not obtained in Holowinski's case until after the strike; and though the supplemental award gave no consideration to a possible willful loss of earnings nor to a deduction for illness during the layoff, Holowinski had explained her failure to work else- where by the claim of illness.16 The General Counsel relied heavily on the letter from Respondent's counsel on March 21 to establish his contention that Respondent was fully advised as to what it might and might not deduct. Aside from the fact that the arbitrators could not shift to Respondent the obliga- tion to make the determination of disputed and uncertain items, it has been pointed out that Respondent could not have made the determination, that is, except by negotiation and agree- ment with the Union. Though such negotiation was suggested by the attorney's letter of March 21, in lieu of reconvening the board, 11 neither party thenceforth suggested that the matter be settled by negotiation, prior to the Union's letter of July 19, which was apparently inspired by knowledge of the suggestions which Luecke and Meter had made to Carter. Instead, Respondent consistently stated its willingness to pay, but suggested either that Martinson (who had prepared the original award) should fix the amount, or that the matter should be re-referred to the board for that purpose. The Union contended just as consistently that it was Respondent's obligation to determine the amount, that it was able to do so from its records, and that resubmission to the board' was unnecessary and, in fact, impossible because the board was dissolved. is As one example, no reference as made to the deductibility of periods of illness during the layoff (cf Waterfront Employees of Washington, 98 NLRB 284; Olin industries, 86 NLRB 203; Harris-Woodson Co. Inc., 77 NLRB 819); and, as another, the suggestion that unemploy- ment compensation was deductible was erroneous (N. L R. B v. Gullett Gin Company, Inc., 340 U S. 361). 16 It is significant, on the question of Respondent's good faith, that it accepted the supple- mental award as final and binding in the face of its attorney's advice that the claimants need not be repaid for periods of illness during the layoff. 17 The letter suggested negotiations with the claimants, but that, of course, would have been improper, as Respondent's counsel pointed out at the hearing herein, since the Union was their representative. 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's position was correct and the Union's unsound for reasons stated above. Yet the Union 's views were adopted by the employees , for the evidence is undisputed that they struck for the sole reason that Respondent had not paid the award and that they did so with knowledge "all along" that Respondent had stated its willingness to pay the award if it knew how much to pay (Nickell, a committee member , so testified). It is, therefore, concluded and found that Respondent had not , prior to June 22 , .efused to abide by the decision of the arbitrators , and that the strike was, in its inception, in violation of the no-strike clause. Subsequent events support and emphasize the correctness of these conclusions and establish further that the strike was continued in violation of the contract. Thus , the contract plainly committed the Union , upon the occurrence of the strike (which it had not authorized ) (1) promptly to denounce the strike publicly ; (2) to use prompt, honest, and diligent efforts to end the strike ; and (3) to submit to arbitration any dispute or disagreement whether the Union had carried out commitments (1) and (2). Though Re- spondent repeatedly urged , on June 22 , 23, and 24, compliance with those obligations, the Union ignored them , and the striking employees likewise refused the tendered opportunity of returning to work. 'a Respondent was not required to commit itself as to how long the returning strikers would be permitted to continue working , since it was privileged to disci- pline or discharge any whom it considered responsible for the illegal strike or , for that matter , any who participated in it. Mackay Radio and Telegraph Company, Inc., 96 NLRB 740, and cases cited. But the General Counsel urges that subsequent to June 22 the strike was converted into an unfair labor practice strike and that the participants were , therefore, entitled to rein- statement upon their application on July 30 . That contention ignores the three following countervailing facts: (1) The status of the strikers as employees had been terminated by their discharge on June 25 ; (2) since a strike in violation of a no-strike clause cannot be justified though it results from or is caused by the employer 's unfair labor practices (see footnote 12, supra), it follows that a strike which is continued in violation of such a clause cannot be converted into an unfair labor practice strike because prolonged by subsequent unfair labor practices of the employer ; and (3) the evidence clearly establishes that Re- spondent 's subsequent unfair labor practices were without effect in prolonging the strike, which was continued for the sole reason that Respondent had not paid the arbitration award. It is , therefore concluded and found on the entire evidence that (a) the strike was begun and continued in violation of the no-strike clause; (b) Respondent was justified in discharging the striking employees and in refusing to reinstate them; (c) Respondent lawfully refused to bargain with the Union concerning the causes of the strike ; (d) Respondent did not dis- criminate against its employees because of their union membership and activities ; and (e) Respondent was legally entitled to solicit the return of individual strikers . Chas . E. Reed & Co., supra; Fafnir Bearing Co ., supra; Mackay Radio and Telegraph Company, Inc., supra, The foregoing conclusions render it unnecessary to consider Respondent 's further defense to the discharge cases that the employees had lost their employee status because their strike was in violation of Section 8 (d), or the General Counsel's opposing contention that said section applies only to cases where the employees engage in a strike during the 60-day period for the purpose of forcing a modification or termination of a contract. There is, moreover , no evidence to support the averments of the answer that the Union called the strike for the purpose of compelling Respondent to agree to changes in the existing contract in violation of Section 8 (d) (4). 2. Interference , restraint, and coercion Ashton, Sr.'s, conversation with Adomytes in March and Ashton , Jr.'s, conversation with Hebert in July plainly constituted attempts to instigate and foster a company union and, therefore, constituted interference, restraint, and coercion within the meaning of Section 8 (a) (1), as charged in the complaint. The General Counsel also contends that Ashton's sug- gestions , testified to by Jolly and Hebert , constituted attempts to eliminate the Union and to substitute a company union as the representative of the employees . The evidence, however, is Though Respondent periodically stated that it would refuse to negotiate concerning the causes of the strike, it was within its rights in so doing, in view of the violation of the no- strike clause and the Union ' s failure to acknowledge or live up to its obligations thereunder. United Elastic Corporation , 84 NLRB 768 ; cf. Chas E. Reed & Co , 76 NLRB 548; Higgins, Inc., 90 NLRB 184. NORTHERN CRATE & LUMBER COMPANY 235 is too equivocal in nature to support the requested finding Thus , Ashton's conversation at Jolly's farm appeared to relate only to grievance matters currently under consideration It is difficult to ' 'ew Ashton ' s inquiry whether jolly would approve Ashton's proposed dis- position of the grievances as an attempt to instigate and foster a company union Though the inferences are plainer from Ashton ' s subsequent suggestions to the sublocal committee, yet so far as the evidence (particularly the contract) shows, that committee was fully author- ized by the Union to negotiate and execute formal contracts indeed, it was the sublocal which, shortly before, had given the notice of reopening and had requested negotiations with Respondent Respondent obviously sponsored the first decertification petition by Suder's preparation and circulation of it and by the execution of it by Suder , Ashton, Jr , Elmer Spaeth, and Lester Lena (all supervisors at the time) Though ostensibly holding aloof from the second petition , Respondent must similarly be charged with aiding in its institution and circulation. Thus the second petition designated the same agent , Plude, whose sponsorship of the first petition Respondent had openly assisted Plude concededly discussed the circulation and filing of the petition with Lena , who was "interested in it" , and Lena and Spaeth again signed the petition Furthermore , elude circulated the petition openly, and partly during working hours These circumstances suffice to establish a direct and clear connection between the two petitions , the first of which Respondent had at no time disavowed The second must , therefore , be considered as constituting only a continuation of the first By sponsoring , instituting , and circulating said decertification petitions , and by granting, unilaterally , general wage increases on September 15 and December 3 (Dixie Culvert Mfg Co , 87 NLRB 554), Respondent engaged in interference , restraint, and coercion proscribed by Section 8 (a) (1) of the Act 3 The refusal to bargain a The appropriate unit All production and maintenance employees employed by Respondent at its Eagle River plant, excluding contract sawyers and their crews , office and clerical employees , professional employees, master mechanic , head saw filer , and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act b The Union's majority representation Following representation proceedings in Case No 18-RC-661, the Board on June 2, 1950, certified the Union as the representative of the Respondent 's employees There is no evidence and no contention that the Union lost its majority status prior to June 25 , 1951 The question is whether , under the circumstances in this case , the Union' s continuing majority is to be presumed. 19 The fact of the Union' s majority during the certification year was established , of course, by the Board ' s certification During that year Respondent might not , absent unusual cir- cumstances , have predicated a refusal to bargain even on a good-faith doubt of the Union's majority . Celanese Corporation of America, 95 NLRB 664 After the first year of the cer- tificate had elapsed , the certificate still created a presumption as to the fact of majority status by the Union , though the presumption was then rebuttable even in the absence of unusual circumstances Ibid Competent evidence might have been introduced , then, to demonstrate that, in fact , the union did not represent a majority of the employees at the time of the alleged refusal to bargain , and, as a corollary of this proposition , Respondent 19 Unless it is to be presumed , it cannot be found on the record here, since no evidence was offered by either party as to the number of employees in the unit at any time subsequent to June 25, nor as to the number who were union members Though Respondent discharged on June 25 all but a few of the employees for engaging in an unlawful strike, those who remained were presumably union members in view oftheunion - shop clause of the contract , under which employees were required to become and remain members The record does not disclose how many employees returned to work prior to July 30 , nor how many new employees were hired It showed that 9 of the strikers were reinstated on July 30 , and that 20 others were reinstated on various dates between August 10 and September 10, but it does not disclose the total number of employees in the unit 2 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might lawfully have refused to bargain on the ground that it doubted the Union's majority, provided that doubt was in good faith. Ibis; cf Atlanta Journal Company, 82 NLRB 832, 833, Toolcraft Corporation, 92 NLRB 655.20 Though the question of the employer's good-faith doubt must be answered in the totality of all the circumstances involved in a particular case, these two factors are essential prerequistes to any findings that the employer raised the majority issue in good faith in cases where the union has been certified (1) There must have been some reasonable grounds for believing that the union had lost its majority status since its certification, and (2) the majority issue must not have been raised by the employer in a context of illegal antiunion activities or other conduct by the employer aimed at causing disaffection from the union or indicating that the employer was merely seeking to gain time to undermine the union. Celanese Corporation, supra. It cannot be found that the evidence here establishes the existence of either of the foregoing factors As to the first one, if the Respondent in fact had believed that the Union had lost its majority status at sometime subsequent to June 25, it could easily have established that fact by its payroll records, since the identities of the discharged strikers and of all union members (because of the union-shop clause) were known to it Furthermore, Respondent failed to assert any such belief or contention during the negotiations with the Union sub- sequent to June 25, as late as September, nor, so far as the record shows, at any time prior to the filing of answer on December 28 The absence of the second factor is established by the findings herein made that Respondent had in fact engaged in unfair labor practices aimed at causing disaffection and procuring rejection by the employees of the Union as their bargaining representative It is therefore concluded and found that Respondent had no reasonable grounds for question- ing the Union's majority standing, and that it has failed to rebut the presumption, under the Board certification, that the Union's majority status had in fact continued it is therefore concluded and found that on June 2, 1950, and at all times thereafter the Union represented a majority of Respondent's employees in the above-described unit c The refusal to bargain The evidence does not establish that there was any refusal to bargain by Respondent at any time prior to the strike During the strike period, Respondent's position was that it would bargain only on matters which were not connected with the strike That position was sound, of course, being apparently based on United Elastic Corporation, supra, indeed, its notice to the Sublocal on June 22 tracked and quoted some of the language which appeared in that decision However, around July 9, and at a time when Respondent was ostensibly negotiating with the Union for a new contract, it sponsored, instituted, and circulated a petition among its employees to obtain the decertification of the Union It similarly assisted and sponsored the circulation of a second such petition in August, as found under section 2, supra Further- more, though Respondent had maintained during the July 9 negotiations, and earlier, that it was financially unable to grant a wage increase, it admittedly put two general wage increases into effect, unilaterally, on September 15 and December 3. Respondent's foregoing actions plainly constituted refusals to bargain with the Union unless it can be found, under the evidence, that legal justification existed Respondent's defense of the Union's loss of majority has been disposed of in the preceding section. It defends its actions otherwise by the assertion that the Union had itself refused to bargain in violation of Section 8 (b) (3) of the Act by causing and calling the strike for the purpose of compelling Respondent to agree to changes in the existing contract, in viola- tion of Section 8 (d) (4). It has been found that the strike resulted solely from Respondent's failure to pay the original award and that the Union sanctioned and supported the strike on that basis There is no evidence that the strike was in any way related to the reopening notice or to the negotia- tions for a new contract, or that it was to compel changes or modifications in the contract. Furthermore, Respondent's defense, if valid, would have excused its own refusal to bargain only down to July 30, when the strike was terminated Respondent's subsequent refusals to bargain could not, in any event, have been justified because of the Union's past sins N.L R.B. 20 The language and structure of the Toolcraft case show that had the Board there concluded that the employer had acted in good faith, it would not have been necessary for the Board to determine whether the union actually had majority status See Celanese Corporation, supra, footnote 19 NORTHERN CRATE & LUMBER COMPANY 237 v Remington-Rand Inc , 94 F 2d 862 (C. A. 2); N.L.R.B. v Carlyle Lumber Co , 74 F 2d 138 (C. A. 9), Consumers Lumber & Veneer Co., 63 NLRB 17, footnotes 16 and 45, and cases there cited. It is, therefore, concluded and found that on July 9, 1951, and thereafter, Respondent refused to bargain with the Union and thereby engaged in unfair labor practices proscribed by Section 8 (a) (5) and (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent 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 thereof. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it will be recommended that Respondent cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act It having been found that Respondent engaged in certain acts of interference, restraint, and coercion, it will be recommended that Respondent cease and desist therefrom It having been found that on July 9, 1951, and thereafter, Respondent refused to bargain collectively with Local 12-15, International Woodworkers of America, CIO, it will be recommended that Respondent, upon request, bargain collectively with said union The violations of the Act which Respondent committed are, in the opinion of the under- signed, persuasively related to the other unfair labor practices proscribed by the Act, and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize the industrial strife which burdens and obstructs commerce and thus effectuate the policies of the Act, it will be recommended that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following. CONCLUSIONS OF LAW 1 The Union is a labor organization within the meaning of Section 2 (5) of the Act. 2 All production and maintenance employees employed by Respondent at its Eagle River plant, excluding contract sawyers and their crews, office and clerical employees, profes- sional employees, master mechanic, head saw filer, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act 3 At all times since June 2, 1950, the Union has been and now is the exclusive repre- sentative of all the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By failing and refusing at all times since July 9, 1951, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. Respondent has not engaged in discrimination within the meaning of Section $(aj (3) of the Act [Recommendations omitted from publication.] 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A Northern Crate & Lumber Company Eagle River , Wisconsin Gentlemen: Pursuant to repeated requests on your part in regard to computation of back-pay due to Helen Holowinski and Helen Anderson per decision of the Arbitration Committee , consisting of the undersigned and Robert D. Martinson , as set forth in writing on March 13, 1951, the following is our opinion (and therefor the opinion of said Arbitration Committee) as to amounts due under the award 1 We have ascertained , to the best of our knowledge and ability , that neither Helen Holowinski nor Helen Anderson worked elsewhere during the " lay-off' period involved in the award 2 That both were physically able to and did return to work upon being notified to return. 3 That both are entitled to full pay during the ', lay-off', period, based upon the same hourly rate they were given prior to that period, and based upon number of hours per week worked by other employees on similar jobs in your plant during that period 4 Upon our request you have furnished us with the following rates and number of hours worked during that period: (a) Both Helen Holowinski and Helen Anderson had been receiving 83¢ per hour prior to the "lay-off " (b) During the " lay-off" period other employees who actually did work were entitled to and did receive pay for hours worked as follows Week ending January 6 , 1951 - - - - - - - 302' hours January 13 , 1951 - - - - - - - 52 hours January 20 , 1951 ------- 514 hours January 27, 1951 -- - - - - - 52 hours February 3, 1951 - - - - - - 40 hours February 10, 1951 51$ hours 277 hours TOTAL 5 Thus, making a total of 277 hours worked by others on comparable jobs during the period of the "lay-off." However, you have also indicated that both Helen Holowinski and Helen Anderson worked and were paid for 16 hours during the week ending February 10, 1951 Therefor , they would each now be entitled to a total of 261 hours back-pay at the rate of 834 per hour , or a back-pay award of $ 216 63 each 6 In so computing the amount due the undersigned have given full consideration to possible deductions , and find that since they did not work elsewhere during that period and since they did come back to work on the day notified , they were entitled to full pay as to hours they would have worked had they not been " laid-off " This , in spite of the fact that in the previous 6-month period both had been absent from work 22% of the time, since we cannot assume that they would have also been absent during that particular period between January 6 and February 10. 7. Although this committee consisted of the undersigned and Mr Robert D. Martinson, who acted as chairman of said committee at the time of the hearing , we have been unable to meet as a body due to a question as to authority of the committee to reconvene and as to whether setting the amount due was in the province of the committee ' s powers Mr Martinson' s concurrence in this opinion is unavailable at this time due to the fact that he is out of town However, we believe he would concur with this opinion, both as to method of computation and results Dated this 20 day of July, 1951 By the Arbitration Committee Joseph Trinka Frank W. Carter, Jr Concur Robert D. Martinson Received 1 40 P.M.--20 July, 1951. NORTHERN CRATE & LUMBER COMPANY 239 APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations ofa 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 attempt to instigate or foster a company union among our employees, institute, spinsor, or circulate petitions to decertify the Union as the bargaining repre- sentative of our employees , or grant, unilaterally , general wage increases to our employees WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 12-15, International Woodworkers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act WE WILL bargain collectively, upon request , with Local 12-15, International Wood- workers of America, CIO, as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract The bargaining unit is. All production and maintenance employees employed at our Eagle River plant, exclud- ing contract sawyers and their crews, office and clerical employees, professional employees, master mechanic, head saw filer, and supervisors as defined in the Act NORTHERN CRATE & LUMBERCOMPANY, Employer. Dated. . (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material Supplemental Intermediate Report On October 23, 1952, the Board issued an order remanding the above case to the Regional Director for the purpose of affording the Respondent and the General Counsel an opportunity to adduce evidence concerning the organization and functions of the charging Union's Sublocal at the Respondent's plant, and arguments concerning the necessity of the Sublocal's compli- ance with the filing requirements of the Act The Trial Examiner was directed to prepare and issue an appropriate Supplemental Intermediate Report Pursuant to said order the Trial Examiner held a hearing, after due notice to all the parties, at Eagle River, Wisconsin, on December 1, 1952 At the outset of the hearing the petition of Frank Suder, Receiver for Respondent, for leave to intervene was granted on proof of his appointment on October 3, 1952, by the circuit court of Vilas County, Wisconsin The General Counsel and the Receiver were represented by counsel and the Union by a representative The Company as such was not represented i All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant iCopies of the notice of hearing had been receipted for by Suder in his capacity as Receiver for the Company and by Suder individually on behalf of the Company. Suder had been the secretary of the corporation at the time of the former hearing (January 1952) and was still a stockholder Under the terms of the Wisconsin statute and the terms of the order of appoint- ment, Suder, as Receiver, had title to Respondent's property and complete and entire custody and right to possession of all Respondent's books, records, and files, including the right to receive its mail The Receiver's objections to the alleged lack of service of the notice of hearing upon the Company were therefore overruled 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence, to argue orally, and to file briefs and proposed findings. No formal argument was made, though the General Counsel stated his position during an informal colloquy No briefs have been filed. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: SUPPLEMENTARY FINDINGS OF FACT Testimony was given at the hearing by Oliver J. Rasmussen, formerly president of Local 12-15, and by George S. Jolly and Genevieve Adomytes, president and treasurer, respectively, of the Sublocal at Respondent's plant The findings here made are based on that testimony, as well as on the testimony given at the former hearing, and are made on a preponderance of the evidence on the record as a whole 2 The International Union operates through district councils, each of which covers a wide geographical area. Locals are chartered either on an area basis, where memberships are small from plant to plant, or on an individual plant basis where the membership is large enough to assure adequate financial support for an organization There is no constitutional provision for sublocals as such The figure 12 in the charging Local's name designates the district of the International Union, and the figure 15 designates the number of the local within the district District Council 12 has jurisdiction over the States of Michigan, Wisconsin, Minnesota, and Iowa, and Local 15 covers a geographical area consisting of the upper peninsula of Michigan and parts of northern Wisconsin Though the constitution of the International provides that local unions shall consist of 10 or more workers in the prescribed industry and in a given locality, the International's policy is generally to issue charters only on an area basis, since it has found that small locals are unable to function properly on a financial basis, being without adequate funds to finance their operating expenses, including the sending of delegates to district and council meetings and to conventions Rasmussen testified, however, that separate locals have sometimes been chartered within the general area assigned to Local 12-15 at plants where membership was sufficiently large to function properly as a local union. In one such case the District Council's decision had been directly influenced by the compliance status of such a local Thus a separate local, No 12-125, had been chartered at a plant at Laona, Wisconsin, yet when employees of the woods operations of the same plant were later organized; the District Council placed them in Local 12-15 for the sole reason that the officers of Local 12-125 had never come into compliance with the Act Though without express constitutional provision therefor, sublocals are, as a matter of policy and practice, permitted to exist and to operate as functioning organizations This was true of the Sublocal at Respondent's plant, since as disclosed by Rasmussen's testimony at the former hearing (see footnote 2, su ra , and from the evidence as a whole, that Sublocal enjoyed substantially the same autonomy as a local union, though it was placed within Local 12-15 for reasons of policy and internal management. Thus, the membership at Respondent's plant held regular meetings and elected their own officers Through their officers and committees, and with the knowledge and permission of Local 12-15, they negotiated contracts with Respondent, sometimes with and sometimes without the assistance of an officer of the Local, they signed said contracts in the name of the Local, sometimes without the signature of any officer of the Local, they gave notices reopening the contracts, sometimes in the 2To the extent that Rasmussen's testimony at the last hearing conflicts with these findings, it has not been credited, since it is contradicted in important respects by his testimony at the earlier hearing and by the testimony of Adomytes and Jolly. For example, Rasmussen had formerly testified, without qualification, that sublocals had the same autonomy as a local union would have, that they were "not under an amalgamated setup," that the sublocals held regular monthly meetings, elected their own officers, who were allowed to make their own decisions, and that such decisions werebmdmgonLocal 12-15 At the last hearing Rasmussen testified that Local 12-15 was an amalgamated local, and that the sublocals had only such au- thority as was delegated to them by the Local. Rasmussen testified also that the term "sub- local" was in fact one which had been coined by the Company, and that it was not used offi- cially within the Union. Adomytes' testimony established, however, that the term had been used by the Sublocal, and known to the Union, from the inception of the organization of Re- spondent's employees NORTHERN CRATE & LUMBER COMPANY 241 Local's name and sometimes in the Sublocal' s name, and their acts , decisions , and contracts were regarded by the Local as binding upon it.3 Membership was applied for and granted , and dues were collected, in the name of the Local , though dues collections were made by the treasurer and the stewards of the Sub- local, who also made the entries onthemembers ' dues books Monthly dues of $2, as provided in the constitution , were collected and remitted to the treasurer of the Local , but 25 cents thereof was regularly refunded to the Sublocal (without constitutional provision therefor) to cover operating expenses The Sublocal has maintained from its inception a bank account in its own name, on which checks have been regularly drawn in remitting the dues collec- tions to the Local. CONCLUDING FINDINGS The foregoing facts establish that the Sublocal was a functioning organization and that it was the real party interested in and affected by the contracts entered into with Respondent. Cf Oppenheim Collins & Co ., Inc , 79 NLRB 435, footnote 1, Minneapolis Knitting Works, 84 NLRB 826 Though not chartered as a local because of the International ' s present policy, the Sublocal qualified for a charter within the provisions of the constitution because it consisted of more than 10 members within the prescribed jurisdiction . The situation was, therefore , one in which the Sublocal though qualifying for de jure existence under the con- stitution, remained for policy reasons in a continuing de facto status . Thus the case resembles factually Wells Manufacturing Co , 85 NLRB 22, in which the Board recognized the existence of a functioning local where it would have had an interest in any contract obtained , though it had not received a charter and had not perfected its organization . Cf. also United States Gypsum Co., 77 NLRB 1098 , Oppenheim Collins & Co., Inc , supra. The case is plainly distinguishable from West Texas Utilities Co., 94 NLRB 1638, and from the cases there cited at footnote 2. The closest in point of those cases is F. Strauss & Son Inc., 80 NLRB 26 , where the branch union involved operated only as an administrative unit of the petitioning union and where only the officers of the latter were entitled to execute contracts The Board also stressed the absence of any showing that the petitioner was acting as a front for a noncomplying union. Although there is no showing here that Local 12-15 was actually fronting for its Sublocal at Respondent ' s plant, yet its organization and jurisdic- tion were shown to have been so manipulated as to enable it to engage in fronting for sublocals and for sister locals. This was established by Rasmussen ' s testimony concerning the deliberate manipulation of Local 12 - 15's jurisdiction to cover a sublocal which normally would have been placed within noncomplying Local 12-125 It is therefore concluded and found on the basis of the entire evidence that the status and functions of the Sublocal were plainly such as to require compliance by it with the filing requirements of the Act. Since it is conceded by the General Counsel that compliance has at no time been effected by the Sublocal , the question remains as to what recommendation is appropriate for the disposition of the case . The General Counsel suggested that if the Sublocal should be found to have such status that compliance was required by it, then the appropriate remedy would be that prescribed in General Armature & Mfg Co , 89 NLRB 654, i.e , the order to bargain, previously recommended herein, should be conditioned upon compliance by the Sublocal within 30 days from the date of the order The remedy which was applied in the General Armature case had been developed in Marshall & Bruce Co , 75 NLRB 90, and Cuffman Lumber Co , 82 NLRB 296, to cover cases where, on complaints issued prior to the Taft - Hartley amendments , the unions in whose favor the orders to bargain would run had not achieved compliance at the time of the Board's decisions In General Armature the remedy was applied to a case filed subsequent to the Taft- Hartley amendments , where the local had come into existence after the certification of its International Certainly the situations in the Cuffman and Marshall & Bruce cases are without analogy to the present Nor is this case sufficiently analogous to General Armature to warrant the application of the same remedy . Thus, this is not a case where a local , whose formal organi- zation has not been completed , would at some later time represent Respondent ' s employees Cf Hess, Goldsmith & Co., Inc., 101 NLRB 1009 , U. S. Gypsum Co., 100 NLRB 1100. Here an autonomous sublocal , which was the real party in interest , existed from the inception 3 The situation therefore well justified Jolly's assumption , expressed at the hearing , that.it was the membership at Respondent 's plant which constituted the Union. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the organization of Respondent ' s employees and actively represented those employees in collective bargaining . Cf. Sunbeam Corporation , 98 NLRB 525. In the opinion of the Trial Examiner it would frustrate the congressional intent as expressed in Section 9 (f), (g), and (h), and in its legislative history,4 to extend to the officers of the Sublocal a present opportunity to cure past noncompliance . Indeed, it is difficult to compre- hend, in view of the turnover in the officers of the Sublocal as shown by the record, how compliance by its present officers could cure retroactively the noncompliance by an earlier staff at the time which was crucial to the issuance of the present complaint. 5 In any event , since the noncomplying Sublocal was the real party in interest , it was in fact the charging party . Wood Parts , Inc., 101 NLRB445 . The complaint , which was based entirely on its charges , should therefore be dismissed in its entirety . Ibid, and cf. Sunbeam Corpora- tion , 98 NLRB 525. It is so recommended. 41.e., to "[exert] pressures on unions to deny office to Communists" by withholding Board assistance from noncomplying unions. American Communications Association v. Douds, 339 U. S. 382, 393. 5 It is also to be noted, from the General Counsel's representations as to noncompliance of Local 12-15 itself for a period prior to January 15, 1952, that there is present in this case the same question now before the Supreme Court for decision in N.L.R.B. v. Dant & Russe, Ltd., 344 U. S. 375. And see N. L. R. B. v. Nina Dye Works, 198 F. 2d 362 (C. A. 3); N.L.RB. v. American Thread Co., 198 F. 2d 137 (C. A. 5). CRUSE MOTORS , INC. and LODGE 1017 OF DISTRICT 64, INTERNATIONAL ASSOCIATION OF MACHINISTS , A.F. L. Case No. 1-CA - 1333 . June 1, 1953 DECISION AND ORDER On March 18, 1953, Trial Examiner Charles W. Schneider issued his Intermediate Report in the above - entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cettain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent did not engage in certain other alleged unfair labor practices and recommended that the complaint be dismissed with respect to such allegations . Thereafter , the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Intermediate Report , the exceptions and brief, and the entire record in the case , and hereby adopts the Trial Examiner ' s findings , conclusions , and recommendations. 'Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 105 NLRB No. 35