American Seating Co.

250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMERICAN SEATING COMPANY and PATTERN MAKERS' ASSOCIATION OF GRAND RAPIDS, PATTERN MAKERS' LEAGUE OF NORTH AMERICA, AFL. Case No. 7-CA-818. July 22, 1953 DECISION AND ORDER On March 9 , 1953, Trial Examiner Ralph Winkler issued his Intermediate Report and Recommended Order 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 certain affirmative action, as set forth in the copy of the Intermediate Report and Recommended Order attached hereto. Thereafter , the Respondent filed exceptions to the Intermediate Report and Recommended Order and a brief in support thereof. 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 and Recommended Order, the exceptions , the brief, and the entire record in the case , and hereby adopts the findings , conclusions , and recom- mendations of the Trial Examiner with the following additions. The facts in the case are undisputed . On September 20, 1949, following an election, the Board certified International Union, United Automobile, Aircraft and Agricultural Implement Workers of America , (UAW-CIO), and its Local No. 135, herein called the UAW-CIO, as bargaining representative of the Respondent ' s production and maintenance employees. On July 1, 1950 , the Respondent and the UAW-CIO entered into a 3-year collective -bargaining contract covering all employees in the certified unit. Shortly before the expiration of 2 years from the date of signing of the contract , Pattern Makers' Association of Grand Rapids , Pattern Makers ' League of North America , AFL, herein called the Union, filed a representation petition seeking to sever a craft unit of patternmakers from the existing production and maintenance unit . Both the Re- spondent and the UAW-CIO opposed the petition , contending that their 3 -year contract which would not expire until July 1, 1953 , was a bar. In a decision issued on September 4, 1952, the Board rejected this contention.' It held that , as the con- tract had already been in existence for 2 years, and as the contracting parties had failed to establish that contracts for 3-year terms were customary in the seating industry, the contract was not a bar during the third year of its term. Accordingly , the Board directed an election in a unit of pattern- makers which the Union won. On October 6, 1952, the Board certified the Union as bargain- ing representative of the Respondent's patternmakers . Approxi- mately 10 days later , the Union submitted to the Respondent a proposed collective -bargaining agreement covering terms and conditions of employment for patternmakers to be effective ' Not reported in printed volumes of Board decisions. 106 NLRB No 44. AMERICAN SEATING COMPANY 251 immediately . The Respondent replied that it recognized the Union as bargaining representative of the patternmakers and that it was willing to negotiate or discuss subjects properly open for discussion , but that the existing contract with the UAW-CIO was still in full force and effect and remained binding upon all employees , including patternmakers , until its July 1, 1953, expiration date. There is no question raised as to the Board ' s power to direct an election upon its finding that the existing contract between the UAW - CIO and the Respondent was not a bar.2 The parties differ , however , as to the effect to be given to the new certification resulting from this election . The Respondent contends that the certification of the Pattern Makers merely resulted in the substitution of a new bargaining representative for patternmakers in place of the old representative , with the substantive terms of the contract remaining unchanged.' In support of this position , the Respondent argues that the UAW-CIO was the agent of the patternmakers when it entered into the 1950 agreement with that organization , and that the patternmakers , as principals , are bound by that contract to the expiration date thereof, notwithstanding that they have changed their agent. The General Counsel , on the other hand , contends that the certification of the Pattern Makers resulted in making the existing contract with the UAW- CIO inoperative as to the employees in the unit of patternmakers. The Respondent ' s principal agent argument assumes that common-law principles of agency control the relationship of exclusive bargaining representative to employees in an appro- priate unit. We think that this assumption is unwarranted and overlooks the unique character of that relationship under the National Labor Relations Act. Under the common law, agency is a consensual relation- ship.4 On the other hand, the status of exclusive bargaining 2 The Respondent contends that the Board 's bar rules are only "procedural rules" and refers to N. L R. B. v. Grace Company, 184 F 2d 126, 129 (C. A. 8), where the court said: The Board 's rule that the existence of a valid written and signed bargaining agree- ment . . is a bar to a certification for a different representation , if applicable to the facts in this case, is a procedural rule which the Board in its discretion may apply or waive as the facts of a given case may demand in the interest of stability and fairness in collective bargaining agreements. The court did not explain what it meant by "procedural" which is not a word of art. Krieg v. Missouri, 107 U. S. 221, 231. The court in the Grace case sustained the Board's finding that a contract that had not been reduced to writing and signed before the filing of a rival petition was not a bar to a new election. In this connection , the court cited H . J. Heinz Co. v N. L. R. B., 311 U. S. 514, where the Supreme Court held that an employer's refusal to sign a contract embodying the terms of collective -bargaining agreement constituted an unfair labor practice. The court did not decide the effect of a new certification upon an exist- ing contract. 3 In its brief, the Respondent concedes that the procedural aspects of the existing contract grievance procedure, the number of union stewards, and union security might be required subjects of negotiation with the newly certified bargaining representative. 4 "Agency is the relationship which results from the manifestation of consent by one per- son to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement, Agency § 1 (1933). 2 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative is a special one created and governed by statute,5 "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representative of all the employees in such unit for the purposes of collective bargaining .... 116 A duly selected statutory representative is the representative of a shifting group of employees in an appropriate unit which includes not only those employees who approve such relationship, but also those who disapprove and those who have never had an oppor- tunity to express their choice.' Under agency principles, a principal has the power to terminate the authority of his agent at any time. 6 Not so in the case of a statutory bargaining representative.9 Thus, in its most important aspects the relationship of statutory bargaining representative to employees in an appropriate unit resembles a political rather than a private law relationship. 10 In any event, because of the unique character of the statutory representative, a solution for the problem presented in this case must be sought in the light of that special relationship rather than by the device of pinning labels on the various parties involved and applying without change principles of law evolved to govern entirely different situations. The National Labor Relations Act provides machinery for the selection and change of exclusive bargaining representa- 5 Fay v. Douds, 172 F. 2d 720, 724 (C. A. 2). 6 Section 9 (a) of the Act. 7 The nature of a statutory representative's constituency is well illustrated by the facts in this case. In the 1949 election to select a bargaining representative for the Respondent's production and maintenance employees, including patternmakers, there were three con- tending unions: the UAW-CIO, Upholsterers' International Union of North America, AFL, herein called the Upholsterers, and United Furniture Workers of America, CIO, herein called the Furniture Workers. At the first election, of approximately 1,488 eligible voters, 1,293 voted. Of these 569 voted for the UAW-CIO, 238 voted for the Upholsterers, 416 voted for the Furniture Workers, 65 voted against all participating labor organizations, 1 voted under challenge, and 4 cast void ballots. As this election was indecisive, a runoff election was held with only the Furniture Workers and the UAW-CIO on the ballot. In this second election, 594 employees voted for the Furniture Workers and 706 voted for the UAW-CIO. There were also 9 void ballots. As the UAW-CIO received a majority of valid votes cast in the runoff election, it was certified as bargaining representative of all employees in the plantwide unit. It is interesting to observe that before the runoff election was held, the Pattern Makers moved to intervene in order to urge that a separate unit of patternmakers be established. The motion was denied because the Pattern Makers' evidence of interest was procured after the original hearing. The United Boat Service Corporation, 55 NLRB 671. As the election was secret, it is not known how the handful of patternmakers voted. But the Respondent and the UAW-CIO, when they entered into their bargaining contract in 1950, must have been aware of the patternmaker interest in their own craft union. It is also sig- nificant that this interest was sustained for the 2 years of representation by the UAW-CIO, as evidenced by the fact that in the election held in 1952, all the patternmakers voted for representation by the Pattern Makers. 'Restatement, Agency § 118 (b) (1933). 9N. L. R. B. v. Brooks, 204 F. 2d 899 (C. A. 9); N. L. R. B. v Century Oxford Mfg. Co., 140 F. 2d 541 (C. A. 2); N. L. R. B. v. Botany Worsted Mills, 133 F. 2d 876 (C. A. 3); N. L. R B. v. Appalachian Electric Power Co., 140 F. 2d 217 (C. A. 4); contra, Mid-Con- tinent Petroleum Corp. v. N. L. R B , 104 F. 2d 613 (C A. 6). iS Weyand, Majority Rule in Collective Bargaining, 45 Col. L. Rev. 556, 561 (1945); Note, 38 Mich. L. Rev. 516, 521 (1940). AMERICAN SEATING COMPANY 253 tives. n If, after the filing of a petition by employees, a labor organization, or an employer, and the holding of a hearing, the Board is convinced that a question of representation exists, it is directed by statute to conduct an election by secret ballot and certify the results thereof. U The Act does not list the situations in which a "question of representation affecting commerce exists ." is That has been left to the Board to decide ." One of the problems in this connection arises from the claim that a collective-bargaining contract of fixed term should bar a new election during the entire term of such con- tract. In solving this problem, the Board has had to balance two separate interests: The interest of employees and society in the stability that is essential to the effective encouragement of collective bargaining , and the sometimes conflicting interest of employees in being free to change their representatives at will . 16 Reconciling these two interests in the early days of the Act, the Board decided that it would not consider a contract of unreasonable duration a bar to an election to determine a new bargaining representative. The Board further decided that a contract of more than 1 year was of unreasonable duration and that it would direct an election after the first year of the existence of such a contract.' In 1947, in the further interest of stability, the Board extended from 1 to 2 years the period during which a valid collective-bargaining contract would be considered a bar to a new determination of representatives.' USection 9 (c). It Section 9 (c) (1). i9See Sixteenth Annual Report of the National Labor Relations Board (1951), pp. 59-84; Fifteenth Annual Report of the National Labor Relations Board (1950), pp. 34- 36, 60- 77. i4Except that no election may be directed in any bargaining unit or any subdivision within which, in the preceding 12-month period, a valid election has been held. Section 9 (c) (3). Neither may any investigation be made unless certain filing requirements are satisfied Section 9 ( t), (g), and (h). Is General Motors Corporation, 102 NLRB 1140; The Trailer Company of America, 51 NLRB 1106. 16 E.g., Columbia Broadcasting System, Inc., 8 NLRB 508; The Riverside and Fort Lee Ferry Company, 23 NLRB 493; Wichita Union Stockyards Company, 40 NLRB 369. Before deciding on the contract- bar rule, the Board moved tentatively in the direction of conducting elections whenever employees indicated that they desired to change bargaining representatives, notwithstanding the existence of a collective - bargaining contract. See New England Transportation Company, 1 NLRB 130, 138, where the Board said: "The whole process of collective bargaining and restricted choice of representatives assumes the freedom of the employees to change their representatives , while at the same time continuing the existing agreements under which the representatives must function." In making this statement, the Board relied on a similar statement of the National Mediation Board National Mediation Board, First Annual Report 23-24 ( 1935). However , collective-bargaining contracts in the railroad industry are terminable at any time upon 30 days ' notice, unlike contracts in other industries which are usually for fixed terms. See Rice , The Legal Significance of Labor Contracts under the National Labor Relations Act, 37 Mich. L. Rev. 693, 720 (1939). In Swayne & Hoyt Ltd., 2 NLRB 282, 287, after repeating the above quotation from the New England Transportation case, the Board added "Consequently, ... whichever organization is chosen as representative of the employees for the purposes of collective bargaining will be free to continue the existing agreement , to bargain concerning changes in the existing agreement, or to follow the procedure provided therein for its termination." The New England Transportation approach was abandoned in favor of the contract-bar rule See Boston Machine Works Company, 89 NLRB 59, 62. i7Reed Roller Bit Company, 72 NLRB 927. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contracts for periods longer than 2 years maybe a bar , if such longer term contracts are customary in the industry, or as more recently stated, if "a substantial part of the industry is covered by contracts of a similar term."' These contract -bar rules have been affirmed many times and have become an established part of the law of labor relations ." They received the approval of Congress when it amended the Act in 1947, 10 and have been "as it were , written into the statute ." 21 Therefore , when the Respondent and the UAW-CIO entered into their 3-year bargaining contract in 1950 , they were on notice that, after the first 2 years of its term, unless it could be shown that longer term contracts were customary in the industry , the contract would not prevent the selection of a new bargaining representative for any group of employees who might constitute an appropriate unit . 22 Neither the Board nor the courts have decided, however, the effect a new certification has upon an existing , collective -bargaining contract which has been held not a bar to a new determination of representatives because it is of unreasonable duration.28 In 1952, the Board decided that the Respondent ' s pattern- makers , who constitute one of the most skilled craft groups, might , after 2 years of experience as part of a plantwide unit of approximately 1,500 employees , if they so desired, constitute a separate appropriate unit . Apparently dissatisfied with their representation by the UAW-CIO, all six pattern- makers voted for a separate unit to be represented by the Pattern Makers , which is the labor organization that tradi- tionally represents patternmakers in industry . The Board is General Motors Corporation , 102 NLRB 1140. 19E. g., Puritan Ice Company, 74 NLRB 1311 (1947); Schaeffer Body, Inc., 78 NLRB 1247 (1948); International Paper Company, 80 NLRB 751 (1948 ); Sanson Hosiery Mills, Inc., 84 NLRB 654 (1949); Association of Motion Picture Producers , Inc., 88 NLRB 521 (1950). 20 Sen. Rep. No. 105, 80th Cong. 1st. Sess., p. 25; H. R. Conf. Rep. No. 510, 80th Cong 1st Sess. p. 50. 21 Fay v. Douds, 172 F. 2d 720, 724 (C. A. 2); see N. L. R. B. v. Efco Manufacturing, Inc., 203 F. 2d 458 (C. A. 1); N. L. R. B. v. Geraldine Novelty Co, 173 F. 2d 14, 17-18 (C. A. 2); lob v. Los Angeles Brewing Co., 183 F. 2d 398, 404 (C. A. 9); N. L. R. B. v. Grace Company, 184 F. 2d 126, 129 (C. A. 8). 22 Compare N. L. R. B. v. J. I. Case Company, 134 F . 2d 70, 72 (C. A. 7), affd 321 U.S. 332, where the Court said: Contracts must be understood as having been made not only with reference to existing legislation but also with reference to the possible exercise of any rightful authority of the Government , and no obligation of existing contracts may be invoked to defeat that authority. 22 We do not consider Triboro Coach Corporation v. N. Y. S. L R. B., 286 N. Y. 314 (1941 ) as having passed upon this precise issue. In that case , the New York Court of Appeals, by a 4 to 3 vote, set aside a certification of representatives issued by the New York State Labor Board to Union A after an election , upon the ground that a valid contract between the employer and Union B existed . The court rejected the finding of the New York Board that the contracting parties had terminated their agreement . It also found that Union A, the rival union, had not filed its representation petition in proper time . The New York court never reached the question, posed in the present case, of the effect upon an existing contract of the valid selection of a new labor organization as bargaining representative. Nor do we consider that Congress in passing the 1947 amendments decided the issue in this case . As set out by the Trial Examiner , the legislative history is ambiguous at best. AMERICAN SEATING COMPANY 255 thereupon certified the Pattern Makers as bargaining repre- sentative for those employees. Although the certification of October 6, 1952, gave the Pattern Makers immediate status as exclusive representative for the purposes of collective bargaining "in respect to rates of pay, wages , and hours of employment," the Respondent would qualify the Pattern Makers' authority as to these subjects by adding "after July 1, 1953." If the Respondent ' s contention is sound, a certified bargaining representative might be deprived of effective statutory power as to the most important subjects of collective bargaining for an unlimited number of years as the result of an agreement negotiated by an unwanted and repudiated bargaining repre- sentative . There is no provision in the statute for this kind of emasculated certified bargaining representative . Moreover, the rule urged by the Respondent seems hardly calculated to reduce "industrial strife" by encouraging the "practice and procedure of collective bargaining ," the declared purpose of the National Labor Relations Act, as amended. The purpose of the Board ' s rule holding a contract of un- reasonable duration not a bar to a new determination of representatives is the democratic one of insuring to employees the right at reasonable intervals of reappraising and changing, if they so desire , their union representation . Bargaining representatives are thereby kept responsive to the needs and desires of their constituents ; and employees dissatisfied with their representatives know that they will have the opportunity of changing them by peaceful means at an election conducted by an impartial Government agency. Strikes for a change of representatives are thereby reduced and the effects of employee dissatisfaction with their representatives are mitigated. But, if a newly chosen representative is to be hobbled in the way proposed by the Respondent , a great part of the benefit to be derived from the no -bar rule will be dissipated . There is little point in selecting a new bargaining representative which is unable to negotiate new terms and conditions of employment for an extended period of time. We hold that, for the reasons which led the Board to adopt the rule that a contract of unreasonable duration is not a bar to a new determination of representatives , such a contract may not bar full statutory collective bargaining , including the reduction to writing of any agreement reached, as to any group of employees in an appropriate unit covered by such contract, upon the certification of a new collective -bargaining repre- sentative for them.u Accordingly , we find that by refusing on and after October 16, 1952, to bargain with the Pattern Makers concerning wages, hours , and other working conditions for employees in the unit of patternmakers , the Respondent violated Section 8 (a) (5) and ( 1) of the Act. 24See Pacific Greyhound Lines, 22 NLRB 111, 141 (Chairman Madden' s opinion). The Respondent assumes at least partial defeasance of the existing contract in acknowledging that such matters as union security, contract grievance procedure , and the number of stewards may be required subjects of collective bargaining with the Pattern Makers. 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. In making the above finding, we have not relied on the Trial Examiner's interpretation of Section 8 (d). However, we also agree with the Trial Examiner that, for the reasons stated by him, Section 8 (d) is "inapplicable upon an intervening certification of the Board," thus leaving the Sands25 rule in full vitality. For this reason, too, wefindthat the Respondent's refusal to discuss terms and conditions of employment violated Section 8 (a) (5) and (1) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, American Seating Company, Grand Rapids, Michigan, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Pattern Makers' Association of Grand Rapids, Pattern Makers' League of North America, AFL, as the exclusive representative of all employees in the patternmakers unit, in respect to rates of pay, wages, hours of employment, or other conditions of employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Pattern Makers' Association of Grand Rapids, Pattern Makers' League of North America, AFL, as the exclusive representative of all employees in the appropriate unit, and embody any understanding reached in a signed agreement. (b) Post at its plant in Grand Rapids, Michigan, copies of the notice attached to the Intermediate Report and Recommended Order." Copies of said notice, to be furnished by the Regional Director for the Seventh 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 at least sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region in writing, within ten (10) days from the date of this Decision, of the steps taken to comply herewith. Chairman Farmer took no part in the consideration of the above Decision and Order. 25N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332, 342. 26 This notice, however, shall be and hereby is amended by striking from the first para- graph thereof the words "Recommendations of a Trial Examiner," and substituting in lieu thereof the words "A Decision and Order." In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pur- suant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." AMERICAN SEATING COMPANY 257 Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge filed by a labor organization herein called the Pattern Makers (Pattern Makers' Association of Grand Rapids , Pattern Makers ' League of North America, AFL), the General Counsel for the National Labor Relations Board issued a complaint on November 28, 1952, against Respondent American Seating Company alleging that the Respondent has engaged in specified conduct violating Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136 , herein called the Act. Copies of the complaint and charges were served upon the Respondent and a labor organization herein called the UAW (Local 135, International Union , United Automobile , Aircraft and Agricultural Workers of America (UAW-CIO)); the Respondent in turn has filed an answer denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held in Grand Rapids , Michigan , on January 5, 1953, before the undersigned Trial Examiner . The General Counsel, the Respondent , and the Pattern Makers were represented at the hearing and all parties were afforded full oppor- tunity to examine and cross -examine witnesses and to introduce evidence bearing on the issues. The parties were given opportunity to present oral argument at the conclusion of the hearing and also to file briefs and proposed findings of fact and conclusions of law. The Respondent has moved to dismiss the complaint , which motion is disposed of in accordance with the following findings of fact and conclusions of law. Upon the entire record in the case , 'including a consideration of the Respondent 's brief, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a New Jersey corporation engaging in the manufacture of seating in Grand Rapids , Michigan. During the year ending October 15, 1952, the Respondent has pur- chased materials worth more than $ 500,000 from out-of-State sources and has shipped more than $ 1,000,000 worth of finished products in interstate commerce. The Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. IL THE UNFAIR LABOR PRACTICES This case involves no evidentiary conflicts , and the facts are as follows: On September 20, 1949, following a Board-directed election (85 NLRB 269), the Board certified the UAW for a production and maintenance unit at the Respondent's operations, including patternmaking employees . The UAW and the Respondent executed a collective- bargaining agreement on July 1, 1950, covering all employees in the certified unit. This agreement deals with wages , hours , seniority , and other subjects usually found in such agreements , including grievance procedures , checkoff of union dues , and union-shop pro- visions . The agreement prescribes a 3-year term with provisions for periodic wage and insurance reopenings and for automatic renewal in the absence of termination notice more than 60 days before the anniversary date, the first such date being July 1, 1953. The agree- ment has a modified no-strike and no-lockout clause and also provides that neither party has a right to negotiations on any subject during the term of the agreement except as to wages and insurance for which periodic review is provided , as already noted. Also executed by the Respondent and the UAW on July 1 , 1950 , was a pension agreement covering the entire bargaining unit, effective by its terms until July 1, 1955 , and with provisions for indefinite extension until either party serves the other with a 60-day notice. The pension agreement also prohibits strikes respecting matters covered therein during its operative period. The parties have entered into supplemental wage agreements in accordance with the terms of the general labor agreement of July 1950 , none of the supplements extending the agreement's original termination date. The Pattern Makers , on May 29, 1952, filed a representation petition in Case No. 7-RC- 1812, seeking, in effect , to sever a unit of approximately 6 patternmakers from the UAW's production and maintenance unit of approximately 1,700 employees . At the hearing on this i The transcript is hereby corrected at line 23 , page 25, by substituting the word "none" for the word "enough " The pertinent phrase reads , as corrected, "that none of the. . . 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition in Case No. 7-RC-1812, the Respondent urged that its agreements of July 1950 be held a bar to the proceeding. The Board issued a Decision and Direction of Election on September 4, 1952, overruling the Respondent's contract-bar contention and directing an election to determine whether the patternmaking employees desired to be established in a bargaining unit apart from the UAW's plantwide unit. The Respondent had adduced evidence to the effect that it is the most diversified and one of the largest seating manufacturers in the country, that no other principal seating manufacturers are located in its proximate labor vicinity, and that practically all other principal manufacturers within the Grand Rapids labor market have collective-bargaining agreements of from 3 to 5 years' duration. The Respondent thereupon had contended in the representation case that, as the Respondent is required to compete for its labor supply with these other industrial employers in the same labor vicinity and as, therefore, it is of little or no consequence what contract-duration practice other seating manufacturers have outside the Respondent's labor market, the Board should consider the local industrial practice, albeit in different fields of manufacture from the Respondent, in determining whether the July 1950 agreements were of reasonable dura- tion for contract-bar purposes. The Board held, however, that "as the record fails to establish that 3-year contracts are customary in the seating industry, and as more than 2 years have elapsed since the effective date of the existing contract, 2 we find that it is not a bar." The craft-severance election was accordingly held, and on October 6, 1952, the Board certified the Pattern Makers as statutory bargaining representative for its proposed unit. At a meeting on October 16, 1952, the Pattern Makers presented to the Respondent a proposed agreement covering recognition, wages, hours, seniority, grievance procedure, and other conditions of employment for its unit. The Respondent replied, in substance, that it "recog- nized the [Pattern Makers] as the exclusive representatives for collective bargaining purposes of the employees in this [patternmaking ] unit and that the company was ready to negotiate upon and discuss any subjects properly open for negotiation or discussion." Then referring to the fact that the UAW's aforementioned general labor agreement "covering wages, hours and other conditions of employment" would not expire until July 1, 1953, the Respondent declared its position to be "that all matters covered by this contract would remain in full force and effect for the full term of the contract and that this contract was binding upon the company and the employees represented by the Pattern Makers Union, as well as all other employees for whom and on whose behalf the contract was negotiated and executed." The Respondent further declared that on this basis it "believed that none of these subjects were now open for negotiation but that as soon as it was proper to negotiate upon them, this union [the Pattern Makers] would be recognized as a proper agent for this purpose." The Respondent also referred in this context to the pension agreement which does not expire until July 1, 1955. At this same meeting on October 16, the Pattern Makers inquired as to the deduction of UAW dues which the July 1950 agreement requires upon authorization of the individual employee. The Respondent replied that, as the patternmaking employees had not counter- manded their checkoff authorization as to UAW dues, the Respondent believed it "was bound to continue the deduction of these dues unless the UAW waived its right thereto, in which event the company would gladly terminate such deductions." Sometime after this meeting the UAW informed the Respondent that it would waive the checkoff of UAW dues from pattern- making employees, and the Respondent accordingly has stopped deducting UAW dues from the patternmaking unit. It further appears that the Respondent has not, since the Pattern Makers' certification, inquired into the union membership of these patternmaking employees or otherwise applied to them the union-shop provision of the UAW's agreement. The matter of grievance procedure was also raised at the October 16 meeting, with the Respondent taking the position that the 1950 agreement giving individual employees a right to present their own grievances might provide a workable solution to the matter. The Respondent also has stated its position to be that, in accordance with the 1950 agreement, it was required to give the UAW an opportunity, for the duration of the agreement, to be present at the adjustment of all grievances, including those originating in the Pattern Makers unit. This present action arises out of the irreconcilable, but good-faith, positions of the Respondent and the Pattern Makers, the latter claiming during its meeting with the Respondent that the Board certification entitled it to immediate negotiation on all subjects of collective bargaining as exclusive representative of the patternmaking unit. 2 The Board apparently considered the 5-year pension agreement to be covered by its decision on the 3-year contract of July 1950. AMERICAN SEATING COMPANY 259 Contentions of the Parties The General Counsel contends that, upon the certification of the Pattern Makers , the UAW's agreements become inoperative as regards the patternmaking unit. He urges that to hold otherwise under the circumstances present here would make a representation proceeding and its resulting certification of the Pattern Makers an exercise in futility . Therefore, claims the General Counsel, the Respondent was obliged to bargain immediately with the Pattern Makers in regard to wages , hours , and other terms and conditions of employment, and, conversely, the UAW agreement is no excuse for refusing so to bargain . 'lhe Respondent, on the other hand , claims that the agreements of July 1950 were really made with the em- ployees (as distinguished from their bargaining representatives ) and that these agreements are lawful and therefore binding until termination by their own terms . The theory advanced by the Respondent is that the employees , and not the employees ' bargaining representative, are the principal party in interest to a collective-bargaining agreement and that, in this instance, the UAW was merely the agent of all employees, including the patternmakers, for the purposes of negotiating , executing, and administering the July 1950 agreements. The Respondent urges , alternatively, that at most what the Pattern Makers ' certification accom- plished, was a substitution of the Pattern Makers for the UAW in administering the July 1950 agreements as to the patternmakmg unit, in which event the substantive provisions dealing with wages , hours , and other conditions of employment would continue as binding obligations on the patternmaking employees and their new agent , the Pattern Makers , for the duration of the agreements . The Respondent's supporting arguments are, in brief: (1) The granting of the representation election did not decide the rights of the parties under the July 1950 agree- ments ; (2) in effectuating the right of employees to choose their bargaining representatives, the Board is not compelled to invalidate agreements ; (3) the Act imposes no duration limits on agreements and the Board is therefore without authority to set aside agreements on the basis of their duration ; and (4) if the Board should invalidate agreements under the circum- stances at bar , employers would be placed in the dilemma of being unsuccessful defendants in contract actions brought by original contracting unions in State courts for the very breach which the Board 's order would require. Origin and Administrative Status of the Problem The question concerning the impact of a collective -bargaining agreement between an employer and a supplanted union on the employer 's obligation to bargain with another union arises, initially , out of the Board 's representation functions under the Act. While the Act was still in its infancy , the Board had to determine whether to process representation petitions filed by a rival union where an incumbent union and the employer enjoyed a collec- tive-bargaining agreement which had some time to run . The rival union might then be seeking a bargaining unit identical to, or smaller or larger than , the unit covered by the agreement. The 1947 amendments created further like situations . Thus , so-called RD petitions may be filed under Section 9 (c) (1) (A) (11) in which employees seek to decertify a union which is party to agreement with the employer ; and the unit sought to be decertified may be identical to, or smaller than, the unit covered by the agreement. And as a result of a so-called RM petition filed by employers under Section 9 (c) (1) (B ) of the Act, a determination may be made that a union, with whom the employer has an agreement , is no longer the statutory representative. And under Section 9 (c) (1) (A) (i) of the Act we have the so-called RC cases involving the same aforedescribed situations as were presented during the Wagner Act period. Whenever an agreement is raised as a bar to an election in these various representation situations the Board interprets its function as requiring it to resolve the conflict between "stabilizing labor relations for the duration of a contract secured through bona fide bargain- ing, and protecting the exercise by employees of full freedom of designation of representatives of their own choosing" (General Motors Corporation, 102 NLRB 1140). The body of decisional law resulting from the Board 's resolution of these contract-bar cases is fairly voluminous and well established , 3 though still evolving in the light of changing industrial practices. The July 1950 agreements under consideration in this case were held to be no bar because, under recognized administrative criteria , they had been operative an unreasonably long time when sSee, e g., Sixteenth Annual Report of the National Labor Relations Board ( 1951), p 64; Fifteenth Annual Report of the National Labor Relations Board (1950), p 60; Fourteenth Annual Report of the Board ( 1949), p 22. Also, N L R B. v Geraldine Novelty Co., 173 F 2d 14, 17, 18 (C A 2); Fay v Douds , 172 F. 2d 720, 724 (C A. 2); N. L R. B v. Grace Co , 184 F 2d 126, 129 (C A. 8); lob v. Los Angeles Brewing Co., 183 F 2d 398, 404 (C A 9) 322615 0 - 54 - 18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Pattern Makers' petition was filed, and this rule of unreasonable duration is one of the established contract-bar principles.4 As far as the parties herein have demonstrated and my own research revealed, the Board has not decisively resolved the question presented here. Going back to volume 1 of the Board's Decisions, we find the Board stating in New England Transportation Company, l NLRB 130, 139 (a representation case), that the "whole process of collective bargaining and unre- stricted choice of representatives assumes the freedom of employees to change their repre- sentatives, while at the same time continuing the existing agreements under which the representatives must function." Passing to Pacific Greyhound Lines, 22 NLRB 111 (an unfair labor practice proceeding), we find the Board divided on the point, Chairman Madden then espousing the view that insofar as affected employees are concerned, a contract becomes "inoperative as a matter of law" upon the certification of a new bargaining representative (id., at p. 141). In that same case, Member Smith was of the opinion that the certification of a new representative "result[s] merely in the termination by operation of law of the out- standing collective contract or its terms where they conflict with action by the certified representative as representative, and not in a termination of all substantive terms of the contract otherwise valid" (id., at p. 145). (This Pacific Greyhound decision was vacated in 30 NLRB 439.) Next along the line we find the Board refraining from taking any position on the matter, as for example, in Hueneme Wharf & Warehouse Company, 39 NLRB 636, 639, a representation case. Soon afterward, however, in another representation case, Harrison- Walker Refractories Co., 43 NLRB 1349, 1352, the Board, in directing an election, states that "The election which we shall hereinafter direct is for the purpose of determining the representative who shall administer the contract." The Board again used the Harrison-Walker decisional language in The Register and Tribune Company, 60 NLRB 360, 363, meanwhile, however, having also reverted to the Hueneme Wharf language in Illinois Gear & Machine Co., 53 NLRB 179, 181. In Boston Machine Works Company, 89 NLRB 59, a representation case decided after the 1947 amendments to the Act, the Board noted its holdings in the Harrison-Walker and Register and Tribune cases, supra, that the elections involved there "would be for the restrictive purpose of determining the representative to administer the current contract." 'Die Board went on to say, however, that "we need not now decide whether the representatives to be certified herein must assume the existing contract. To the extent these cases purport to decide that question ... they are hereby overruled" (at p. 61). And then discussing Member Reynolds' dissenting view that subsisting agreements follow a newly certified representative and that a certification should be restricted to such effect, the Board held it "neither neces- sary nor proper in a representation proceeding to rule upon the collective bargaining duties of the parties or on other issues not before us" (at pp. 61-62). The Board's ruling in the Boston Machine case represents the Board's consistent view since then, and this had been the Board's view for several years before, so far as determining in representation cases the effect of certifications on existing agreements . Thus, the matter has been left, if at all in Board proceedings, to unfair labor practice cases, and, as far as I can ascertain, this problem has arisen but once in such latter-day cases, namely, the Grace Company, 84 NLRB 435. In that case the employer in question refused to recognize and bargain with a newly certified union because of an existing agreement with the supplanted union; the Board had rejected the agreement as a bar in an antecedent representation case because the agreement in question had not been executed when the representation petition was filed (73 NLRB 1286, 1287). The Trial Examiner was of the opinion that, when the Board rejected the contract-bar contention in the representation case, it was holding in effect that the agreement "became defeasible, subject to the outcome of the representation proceeding" (84 NLRB at p. 448). The Board sustained the Trial Examiner's conclusion of a refusal to bargain, and issued the conventional order requiring the employer to bargain and to reduce to writing any understanding reached between the parties. Notwithstanding such order, the Board nevertheless stated that "We do not determine what effect our certification of the [newly certified] union had upon the contract between the Respondent and the[supplanted union], except to affirm that the certification made clear the duty of the Respondent to recognize the Union as the [statutory representative of the affected employees]...." (84 NLRB at p. 436). In enforcement proceedings in the Grace case, the Eighth Circuit agreed, in effect, that the 4See, e. g., Reed Roller Bit Co., 72 NLRB 927, 928-930; Puritan Ice Co , 74 NLRB 1311, 1313-1314; General Motors Corporation, 102 NLRB 1140; Sixteenth Annual Report of the National Labor Relations Board (1951), pp. 72-73; Fifteenth Annual Report of the National Labor Relations Board (1950), p. 68; Fourteenth Annual Report of the National Labor Rela- tions Board (1949), p. 23. Cf. N. L. R. B. v. Sanson Hosiery Mills, 195 F. 2d 350 (C. A. 5), certiorari denied 344 U. S. 863. AMERICAN SEATING COMPANY 261 employer was obliged to bargain upon the certification of a new union, but it held that the employer was entitled to reasonable time to obtain dissolution of a State court order restrain- ing it from engaging in the bargaining which the Board's order required. N. L. R. B. v. Grace Co., 184 F.2d 126, 130(C. A. 8). (The court later denied enforcement when it appeared that the employer had closed down the operations in question. 189 F. 2d 258.) The 1947 Amendments The House Bill (H. R. 3020), which eventually was modified and enacted as the Taft-Hartley Act in 1947, provided in Section 9 (f) (8) that if a representation election be held to choose a representative for any unit covered by a collective -bargaining agreement, "certification of the new representative shall not be effective unless and until such new representative be- comes a party to such contract and agrees to be bound in all respects by its terms for the remainder of the contract period." T e accompanying House Report (H. Rep. No. 245, 80th Cong., 1st Sess., p. 39) states that this proposal "seems to be consistent with present law." However, the provision was deleted from the amended Act as finally enacted , and the explana- tion of the House conferees for the omission is that "since the inclusion of such a provision might give rise to an inference that the practice of the Board with respect to conducting representation elections while collective bargaining contracts are in effect, should not be continued , it is omitted from the conference agreement " (H. Conf. Rep. No. 510, 80th Cong., 1st Sess., p. 50).5 The 1947 Amendments include a new provision, Section 8 (d), which defines the statutory duty of collective bargaining. Section 8 (d) provides in part that the bargaining obligation also means that no party to an existing collective bargaining agreement: ... shall terminate or modify such contract , unless the party desiring such termination or modification-- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred , provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract , whichever occurs later: Section 8 (d) then further provides that: The duties imposed upon employers , employees , and labor organizations by paragraphs (2), (3), and (4) shall become inapplicable upon an intervening certification of the Board , under which the labor organization or individual , which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of section 9 (a), and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engaged in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer . [Empha- sis added.] 5 That Congress, in 1947, was aware of and approved the Board's contract-bar decisional policy also is evident from S. Rep. No. 105, 80th Cong., 1st Sess , p. 25 See also, Fay v. Douds, 172 F. 2d 720, 724 (C A. 2) ("though we assume that the 'contract bar' is, as it were, written into the statute, it is so written in its entirety.... and other cases cited in footnote 3, supr. 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The portion of Section 8 (d), which provides that paragraphs (2), (3), and (4) do not require a party to a contract for a fixed term to bargain or agree concerning contract modifications to become operative before the contract itself permits , changes the rule of N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332, 342. The doctrine of the Sands case was that "an employer was under a duty, upon request, to bargain with the representatives of his employees as to terms and conditions of employment whether or not an existing collective bargaining agree- ment bound the parties as to the subject matter to be discussed ." N. L. R. B. v. Jacobs Manufacturing Company, 196 F. 2d 680, 683 (C. A. 2). As Section 8 (d) also provides that paragraphs (2), (3), and (4) do not apply when there is an intervening certification, one possible construction is that by thus removing the statutory teeth from the section in such a situation, Congress implied that Section 8 (d) (1) also does not apply and thereby manifested a congressional assumption that an agreement does not continue upon an intervening certi- fication--for, if agreements do continue in such circumstances, there is as much need for 8 (d) (2), (3), and (4) as in any other contract situation. The other possible construction is, of course, by a converse application of mclusio unius est exclusio alterius , that Section 8 (d) (1) was intended to operate, a construction which then would indicate congressional understanding that contracts remain effective despite an intervening certification. If the first interpretation be accepted , the Respondent was obviously obliged to negotiate with the Pattern Makers concerning all subjects of collective bargaining , there being no contract question under this hypothesis. But even if the second construction be made and it accordingly be assumed that the July 1950 agreements do continue, the Respondent would still be obliged to bargain immediately concerning present changes in terms and conditions of employment; for that portion of Section 8 (d) which changes the sands doctrine is, by its own terms , " inappli- cable upon an intervening certification of the Board, " thus leaving the sands rule in full vitality under the second hypothesis stated. The Postponement Theory The Respondent's first theory is that, even as to patternmakmg employees and despite the Pattern Makers' certification, it is obliged to perform its agreements with the UAW and therefore cannot negotiate with the Pattern Makers while these agreements are operative. Should this theory prevail--and it appears to have been the Respondent's position at the October 16 meeting- -the Respondent would be required to perform, in the UAW's behalf and at the UAW's insistence, the union-shop and checkoff provisions as to patternmakers for the contract term , and it also would be required to treat with the UAW in regard to all other matters involved in the administration of the July 1950 agreements as such matters pertain to the patternmakers , including the adjustment of grievances arising from the patternmaking unit. One of the basic precepts of the Act is that an employer is required to recognize and bargain with the statutory representative and that this bargaining obligation also imposed "the negative duty to treat with no other " (N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, 44; Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, 683-684). Unless the July 1950 agreements justify conduct to the contrary , the Respondent was therefore required , under Section 8 (a) (5) of the Act, to recognize and bargain with the Pattern Makers and also not so to treatwiththeUAW in regard to the patternmaking unit. But it is the Board's function, under Section 9 of the Act, to ascertain and certify bargaining representatives; and in certifying the Pattern Makers , the Board exercised this statutory authority in conformity with established contract-bar principles , which principles apply "in complaint cases no less than in representation cases " (N. L. R. B. v. Geraldine Novelty Co., 173 F. 2d 14, 18 (C. A. 2)). The July 1950 agreements are therefore in conflict with this exercise of the Board 's representation functions to the extent that, during the operative period of the Pattern Makers ' certification , they purport to vest a representative status in the UAW in respect to patternmaking employees and thus would postpone the effective date of the certification issued by the Board. "Whenever private contracts conflict with [the Board's] functions, they ob- viously must yield or the Act would be reduced to a nullity" (J. 1. Case Co. v. N. L. R. B., 321 U. S. 332, 337); T indeed , the Act itself states that the power of the Board "to prevent any person from engaging in any unfair labor practice ... shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise" (Section 10 (a)). 2b the extent, therefore, that the July 1950 agreements pur- 6See the other authorities collected in Miami Copper Company , 92 NLRB 322, 338 7 National Licorice Co. v. N L. R B , 309 U. S. 350, 362- 367; Phelps Dodge Co v. N. L. R B, 313 U. S. 177, 192-193 Compare Consolidated Edison Co. v N. L. R B , 305 U. S 197, 235-236; Colgate-Palmolive Peet Co. v. N L R B., 337 U S 913 AMERICAN SEATING COMPANY 263 port to cause representative rights to exist after the Pattern Makers' certification in a union other than the Pattern Makers, they are, in such respects, inconsistent with the Act and of no force and effect in regard to patternmaking employees. The Respondent urges, however, that to require an employer to bargain with a newly certified union and to ignore its obligations under an agreement with a superseded union would place the employer in the difficult position of being confronted with State court action by the supplanted union to enforce the agreement in the very respects in which the Board's order has caused the agreement to be breached. The Supreme Court seems to have answered this contention in National Licorice Co. v. N. L. R. B., 309 U. S. 350, 365: . . it will not be open to any tribunal to compel the employer to perform the acts which even though he has bound himself by contract to do them, would violate the Board's order or be inconsistent with any part of it." [Emphasis added.] ISee also , Hill v. Florida, 325 U. S. 538, 539, 543; Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176-177; Hamilton v. N. L. R. B., 160 F. 2d 464, 471 (C. A. 6), certiorari denied sub nom. Kalamazoo Stationery Co. v. N. L. R. B., 332 U. S. 762. The Respondent was accordingly obliged to bargain and otherwise to treat with the Pattern Makers and not with the UAW concerning terms and conditions of employment and concerning all other subjects of collective bargaining affecting patternmaking employees, whether or not the substantive provisions of the July 1950 agreements be held to continue to apply to the patternmakuig employees after the Pattern Makers' certification. This obligation to bargain, in its affirmative and negative aspects, became immediately effective upon the Pattern Makers' certification. The Respondent refused so to bargain and I conclude that it thereby violated Section 8 (a) (5) and (1) of the Act. The usual order in a refusal-to-bargain case is to require the employer to bargain with the union in question. This is not the ordinary case, however, and the conventional bargaining order without any clarification would, in the present situation, require the parties to specu- late at their peril concerning the impact, if any, of the July 1950 agreements on the labor- relations situation of the patternmakmg employees. The precise question in this connection is, of course, whether the July 1950 agreements are binding, until changed, on the pattern- making employees and the Pattern Makers as their agent, as the Respondent contends, or whether these agreements become wholly inoperative, upon the Pattern Makers' certification, in regard to the employment and bargaining relationship between these parties, as the Gen- eral Counsel contends. As I have already indicated (see footnote 8, su ra , I believe the parties are entitled to a resolution of this matter inasmuch as it seems necessary to an understanding of the meaning of a bargaining order in these circumstances. The Substitution and Defeasance Theories The Respondent contends that the July 1950 agreements should be held to continue to be binding on patternmaking employees except that the Pattern Makers are substituted for the UAW to administer the agreements in behalf of the patternmaking unit. To so hold would immediately raise certain obvious difficulties. Thus, there would be the legal issues in determining which provisions of an agreement are inherently inconsistent with the certification of another union and then in deciding what befalls those provisions which are inconsistent. The recognition clause of the agreements would of course have to be changed by substituting the new union for the superseded union, and this raises no par- ticular problem. But how does substitution affect the union-security and related provisions of an agreement? Experience has shown that employers are sometimes willing to grant union-shop agree- ments to some unions while they are unwilling to enter into such agreements with other unions. If agreements are held to be continued with a newly certified union substituted for the original contracting union, should the employer in question be required by operation of law to honor such union-shop agreement with the new union? The employer would have no choice if the substitution theory be applied in full. On the other hand, it is highly doubtful that an employer can be required to honor a union-shop agreement in behalf of a union with 8 It is for the very reason of not requiring a party "to proceed more or less in terrorem" (N. L R. B v. Sterling Furniture Company, 202 F 2d 41 (C. A. 9) and also to enable the Respondent to defend itself in a contract action resulting from compliance with a Board order that I consider it necessary, in fairness to the parties, to spell out the employer's rights and obligations as to the agreements in question, insofar as the Act is concerned. Cf. N. L. R B v. The Grace Co , 184 F 2d 126 (C. A. 8) 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whom he never freely negotiated on the subject.9 It may be contended, in any event, that union-security provisions are so intimate a matter between an employer and a specified union that, as a matter of law, such clause should be considered as terminated upon a change of representatives. The same problem arises as to dues-checkoff provisions and grievance clauses. In dealing with one union an employer may believe one type of grievance procedure to be desirable, whereas he might prefer another type in dealing with another union. Should it be said that, by operation of law, the employer has no choice as to such grievance procedures or should it be held that this matter, like the union-shop clause, is inconsistent with a change of representative and therefore becomes inoperative as a matter of law when such representation change occurs? Also there is the matter of a no-strike provision, or its absence in an agreement. Employers might insist on such provision in agreements with certain unions but would not consider it necessary to include that safe- guard in agreements with other unions, depending in large part on the organizational and collective-bargaining experience of the employer with the respective unions. Should an employer be required, by operation of law, to continue the obligations of an agreement with a substitute union where such agreement does not contain a no-strike clause in a case where he would not have entered into such agreement with the substitute union unless the agreement had included a no-strike clause? Or should a no-strike clause also be considered so personal and also so vital a matter between an employer and a specified union that its absence in an agreement be considered sufficient reason for holding the entire agreement to be inoperative as a matter of law upon a new union being certified? Those provisions, which deal with such matters as wages , hours, seniority, etc., also may be troublous if a newly certified union would be required to administer agreements executed by another union. Frequently, for example, the new union is certified for a unit which is substantially either larger or smaller than the unit covered by the agreement. Where, therefore, an agreement with a supplanted union provides that matters such as wages and hours and seniority cut across various divisions of an employer's operations, the agreement, as a result, may be difficult, if not impossible, of administration by the newly certified union when the scope and composition of the respective units are changed by a certification. Additional confusion, in requiring a new union to become a substitute administrator of an agreement, also may arise from the fact that unions themselves differ in administrative structure and in policies, and such difference "might make it highly impracticable" for the new union to take over the agreements of the supplanted organiza- tion.10 Assuming that an employer and a new union are able to resolve the inherent legal conflicts between an agreement with one union and the certification of another union, and also assuming they can overcome all difficulties in applying an agreement to a unit which is of greater or smaller scope and composition than the original unit covered by the agreement, and as- suming further that administrative and policy differences between the original and the succeeding unions offer no insuperable obstacles --assuming the happy disposition of all these problems created by the substitution theory, what additional problems would the adoption of this theory by the Board create in various actions on contracts in the State courts? The Respondent asserts , for example, that in its opinion the UAW would be suc- cessful in the Michigan courts in seeking to compel the Respondent to comply with all provisions of the UAW agreements. including their application to patternmaking employees, for the duration of agreements' terms . This opinion, however, seems at variance with the Supreme Court's aforementioned declaration in the National Licorice case, supra, to the extent that such State court orders might require action by the Respondent which is inimical to a Board order sustaining the statutory representative status of the Pattern Makers. But, if this be the law of the State of Michigan, and if the law were to be changed to comport with the Supreme Court's decision, what then would be the enforceable rights under the agreements should the substitution theory be applied? Would the courts of Michigan and of other juris- dictions permit the Pattern Makers to maintain an action to obtain performance of an agree- ment executed by a rival union? Would these various courts entertain an action against the Pattern Makers in which the Respondent sought to hold the Pattern Makers liable on an agreement which they never had executed? But unless these rights and liabilities are held to arise--and there is a substantial question, at the least, that they would be so held--the substitution theory would be lacking in practical juridical effect. The nature of the collec- tive-bargaining agreement has always been a source of interest to the legal scholars and. 9N. L. R. B. v. American National Insurance Co., 343 U. S. 395, 404 ". . the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." 10 "Developments, Taft-Hartley Act," 64 Harv. Law Rev 781, 841(1951). AMERICAN SEATING COMPANY 265 more directly, to the courts which have had to determine rights thereunder. The problems in the field are myriad, the theories many, and judicial results conflicting." Are not the legal problems multiplied if a new union is to be held in this proceeding as having assumed all or part of another union's agreement? While it may be said that the matter of private contract actions plays no relevant part in deciding a question under this Act, to ignore the juridical facts of life is hardly fair to employers or unions or employees or to the public good in seeking a result consonant with the stability in this field sought to be attained by the Act. It should be pointed out that not all of the aforementioned problems are involved in the present case. But it is a policy of general application we are attempting to formulate here, and in doing so I would consider myself remiss should I fail to consider matters which appear to bear on the problem. There are still further problems created should the theory be adopted here that a col- lective-bargaining agreement remains a binding obligation on employer and employees despite the impact of intervening representation proceedings . Let us take a typical RD case, for example, where the Board decertifies a union which holds an unexpired contract, and as a result of the proceeding the employees affected have no bargaining representative. (Contract-bar rules apply to RD proceedings, as well.) A similar decertifying result may occur pursuant to an employer's RM petition, as to which contract-bar rules also apply. If the contracts in these cases are held to continue despite the lack of a statutory bargaining representative, is the employer required to take up matters arising under the contract with the entire employee body? Is the employer bound to observe the contract provisions in a situation where an employer is otherwise completely free, so far as the Act is concerned, to take unilateral action in changing wages, hours, and other substantive terms of employ- ment? It would appear that the substitution theory, with the numerous problems it would create in the variety of representation situations arising under the Act, is hardly conducive to the peaceful labor-management relations which the Act would promote. Tb adopt the theory in these cases would compound complexity in a field already overflowing with difficulties. On the other hand, the General Counsel's defeasance or inoperation theory, which would wipe the bargaining slate clean upon the certification of a new union, raises none of these prob- lems. But the Respondent further asserts, in support of the substitution theory, that em- ployees should not be enabled, by a change of representatives, to open up negotiations on matters which are otherwise closed under an agreement, unless employers be afforded similar opportunity for reopening. That the Act itself requires negotiations upon a change of representatives, even as to matters which were included in an agreement, has already been discussed. It is to be emphasized, moreover, that the issue in these cases arises be- cause the Act grants employees the right, and Section 9 provides the manner in which employees may exercise the right, to designate or decertify their bargaining representatives and because it is therefore necessary to accommodate Section 9 with Section 8 (a) (5) of the Act which latter provision requires employers to recognize and bargain with the statutory bargaining representatives. u The adoption of the substitution theory would not necessarily redound to an employer's advantage in all situations , nor would it be , necessarily, to a newly certified union's dis- advantage under all circumstances; this would depend entirely, it seems to me, on the economic picture at any given time as it bears on the employer's operations. I am of the opinion, however, that the cause of industrial stability would not be served by holding a unit of employees and their new statutory representative to be bound by the terms of an agreement executed by a superseded rival union. Confusion rather than stability would result. I agree "See, generally, and on the specific questions raised here: J. I. Case v. N L R. B., 321 U. S. 332, 334-339; Note, 51 Y. L. J. 465 (1942); Rice, "Collective Labor Agreements," 44 Harv. L Rev. 572 (1931); Witmer, "Trade Union Liability," 51 Y. L. J 40 (1941); Anno- tations, 95 ALR, 467-471; 95 ALR 10; 18 ALR 2d 352 i2 Another instance of such necessary accommodation of representation and unfair labor practices provisions of the Act is reflected in the cases dealing with the so-called Midwest Piping situation. See, Midwest Piping & Supply Co., Inc., 63 NLRB 1063; Tenth Annual Report of the National Labor Relations Board (1946), pp. 38-39; Eleventh Annual Report of the National Labor Relations Board (1947), pp. 35-36; Twelfth Annual Report of the National Labor Relations Board (1948), p. 26; Thirteenth Annual Report of the National Labor Relations Board (1949), pp. 52-53; Fourteenth Annual Report of the National Labor Relations Board (1950), p 53; Fifteenth Annual Report of the National Labor Relations Board (1951), p 97, Sixteenth Annual Report of the National Labor Relations Board (1952), p. 160. Cf The Hoover Company v. N L R B., 191 F. 2d 380 (C A 6). 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the General Counsel that the employees and the new union are not so bound so far as the Act is concerned, and I find no warrant in the Act, its legislative history, or in sound labor-management relations for holding the Pattern Makers to be a substituted agent for the UAW to administer the July 1950 agreements of the UAW or for otherwise engrafting the July 1950 agreements as a limitation on the Respondent 's obligation, under the recommended order in this case, to treat with the Pattern Makers "in respect to rates of pay, wages, hours of employment, or other conditions of employment" (Section 9 (a) of the Act). IlL THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section II, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV, THE REMEDY I shall recommend, as already indicated, that the Respondent negotiate on all subjects of collective bargaining with the Pattern Makers in behalf of the patternmaking unit.13 As also explained above, this means that the July 1950 agreements impose no legal qualification on such bargaining and also that the Respondent shall desist from treating with the UAW in behalf of these employees as long as the Pattern Makers is their statutory representative. No broad order will be recommended here, for the Respondent's unfair labor practices arose entirely out of a legal question involving no antiunion animus of any sort and as to which the Respondent's position was taken in good faith. CONCLUSIONS OF LAW 1. The Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] is This case is not moot or about to become so merely because the general labor agreement of July 1950 is soon open for negotiations by its own terms (J I. Case v. N L. R B , 321 U S 322, 324); in any event, the pension agreement of July 1950 does not expire until July 1955 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively with Pattern Makers' Association of Grand Rapids, Pattern Makers ' League of North America, AFL, in behalf of the patternmakmg unit. AMERICAN SEATING COMPANY, Employer. Dated ................ 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.