Ideal Roller & Manufacturing Co.

282 DECISIONS OF NATIONAL LABOR RELATIONS BGARD Appendix B C. Wallace Plumbing Company O'Rourke Construction Company Tellepsen Construction Company Manhattan Construction Company IDEAL ROLLER & MANUFACTURING Co. and UNITED SERVICE EMPLOYEES UNION, LOCAL 329, A. F. L. Case No. 13-CA-1488. July 22, 1954. Decision and Order On March 17, 1954, Trial Examiner James A. Corcoran issued his Intermediate Report in the above-entitled proceeding, sustaining certain portions of the complaint alleging violations of Section 8 (a) (5) and (1) by the Respondent, Ideal Roller & Manufacturing Co., and dismissing other portions of the complaint alleging such viola- tions. He recommended, as to the unfair labor practices found, that the Respondent cease and desist therefrom and take certain affirma- tive action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed ex- ceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as hereafter noted.' We agree with the Trial Examiner's finding that the Respondent did not bargain in good faith with the Union and thereby violated Section 8 (a) (5) of the Act. Unlike the Trial Examiner, however, in reaching this conclusion we do not rely upon the fact that on July 14, 1953, the Respondent, at the request of the United States district court, consented to the extension of a temporary restraining order prohibiting bargaining between the Respondent and the Union. The record otherwise contains ample evidence of the Respondent's deter- mination not to bargain collectively with the Union. Accordingly, I The Intermediate Report contains certain minor misstatements or inadvertencies, none of which affects the Trial Examiner 's ultimate conclusions . Accordingly, we note the fol- lowing corrections : The decertification petition filed herein by certain of the Respondent's employees was dismissed by the Regional Director on May 28, 1953 , not on May 29 as stated at one point in the Intermediate Report. The Union's telegram sent subsequent to the Board's approval of the Regional Director's aforesaid dismissal of the decertification petition and requesting the Respondent for a bargaining conference was dated June 25, 1953, not June 26. 109 NLRB No. 47. IDEAL ROLLER & MANUFACTURING CO. 283 we find it unnecessary to decide whether, in the special circumstances of this case, the Respondent's conduct with respect to the court pro- ceeding constituted an act of bad faith.2 In excepting to the Trial Examiner's finding that it violated Sec- tion 8 (a) (5) and (1) herein, the Respondent relied upon the holding of the circuit court in the Mid-Continent Petroleum 3 case. In that case the court found that although the employer had engaged in no improper conduct, the union no longer represented a majority of the employees and refused to require it to bargain with the union, even though the employer refused to do so within 1 year after Board certification. However, it is unnecessary here to consider the impact of the court's findings in Mid-Continent Petroleum, because that case is clearly distinguishable and the Respondent's reliance thereupon is misplaced. Here, the Respondent violated Section 8 (a) (5) and (1) prior to its receipt, on August 11, 1953, of the petition purportedly repudiating the Union. In these circumstances, even assuming that a majority of the employees had turned against the Union by August 11, it cannot be said that such disaffection was not caused by the Re- spondent's earlier unfair labor practices 4 Furthermore, unlike the Mid-Continent case, the evidence here does not establish that the aforesaid petition, in fact, was signed by a majority of the Respond- ent's employees. For, although the record discloses that the Respond- ent received the petition, the Respondent has failed to establish, through necessary evidentiary procedure, either the bona fides of the signatures contained thereon or that the Union otherwise lost its majority standing. 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, Ideal Roller & Manufacturing Co., Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from refusing to bargain collectively with United Service Employees Union, Local 329, A. F. L., as the exclusive representative of the following appropriate unit of its employees : All production and maintenance employees at the Respondent's Chi- cago, Illinois, plant, excluding truckdrivers, stationary engineers, office clerical employees, guards, professional employees, and super- visors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : 2 See: N L. R B. v. Grace Company, 184 F. 2d 126 (C. A 8) 3Mid-Continent Petroleum Corp. v. N. L. R B., 204 F. 2d 613 (C. A. 6), cert denied 346 U. S. 856 4 Franks Bros . Company v. N. L. R. H., 321 U. S. 702. 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Recognize and bargain collectively, upon request, with United Service Employees Union, Local 329, A. F. L., as the exclusive bar- gaining representative of its employees in the aforesaid appropriate unit, and, if an understanding is reached, embody such understanding in a written and signed agreement. (b) Post at its plant in Chicago, Illinois, copies of the notice'at- tached hereto as an "Appendix." 5 Copies of said notice, to be fur- nished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it for a period of 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region, in writ- ing, within ten (10) days from the date of this Order, as to the steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that the Respondent has violated the Act otherwise than herein found. 5In 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 "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Appendix 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 recognize and bargain collectively, upon request, with United Service Employees Union, Local 329, A. F. L., as the ex- clusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an under- standing is reached, embody such understanding in a written and signed agreement. The bargaining unit is : All production and maintenance employees at our Chicago, Illinois, plant, excluding truckdrivers, stationary engineers, office clerical employees, guards, professional employees, and supervisors as defined in the Act. IDEAL ROLLER & MANUFACTURING CO., Employer. Dated---------------- By------------------------------------- (Representative) (Title) IDEAL ROLLER & MANUFACTURING CO. 285 This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other ma- terial. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and amended charge filed by United Service Employees Union, Local 329, A.F.L. (hereinafter referred to as the Union), the General Counsel of the National Labor Relations Board (hereinafter referred to as the General Counsel and the Board) on November 25, 1953, issued an amended complaint against Ideal Roller & Manufacturing Co. (hereinafter referred to as the Respondent), alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended; 61 Stat. 136, herein called the Act. Copies of the charges, complaints, and notices of hearing thereon were served upon all the parties. With respect to unfair labor practices, the amended complaint alleges, in sub- stance, that the Respondent has interfered with, restrained, and coerced its em- ployees, and despite the certification of the Union by the Board on May 12, 1953, as the exclusive representative for collective bargaining of the Respondent's produc- tion and maintenance erliployees, Respondent has failed and refused since May 16, 1953, and continues to fail and refuse to bargain with the Union, by (a) preparing and distributing to its employees on May 15, 1953, and June 1, 1953, letters sup- porting a decertification petition and urging the employees to sign it and to repudiate the Union as their authorized collective-bargaining representative; (b) failing and refusing to recognize the Union as the duly certified and authorized representative of the Respondent's employees, and to meet and bargain with the Union as such exclusive representative following written request made by the Union on May 16, 1953, and subsequent dates; (c) voluntarily consenting on July 14, 1953, at a hearing in an action instituted by certain employees of the Respondent in the United States District Court, Northern District of Illinois, Eastern Division, to an extension to September 17, 1953, of an order then in effect, restraining the Respondent from bargaining with the Union. In an amended answer, verified and sworn to December 1, 1953, the Respondent admitted certain allegations of the complaint, but denied the commission of any unfair labor practices as alleged. It specifically denied the failure and refusal to bargain with the Union since May 16, 1953, but admitted it now refuses to bargain with the Union, alleging that on August 11, 1953, a majority of its employees notified the Respondent in writing that the Union was not authorized to represent Respond- ent's employees and demanded that the Respondent refuse to bargain with the Union. Pursuant to notice, a hearing was held at Chicago, Illinois, before James A. Corcoran, the undersigned, duly designated as Trial Examiner. All parties were represented at the hearing and were afforded full opportunity to be heard and to examine and cross-examine witnesses. At the beginning of the hearing, a motion of the Respondent to strike out section 8 of the amended complaint was denied, and when renewed at the end of the hearing decision was reserved on such motion and it is disposed of in the findings and conclusions set forth below. A written stipulation of facts was presented by the parties' including by reference and attach- ment to it various exhibits,' the genuineness of the exhibits, with exception of Re- spondent's Exhibit No. 7, being conceded for their admission into evidence for the purpose of framing issues, with the parties reserving the right to object to their relevancy or materiality or probative value on other grounds. The General Counsel moved, at the end of the hearing without opposition, to amend the pleadings to conform to the proof with respect to matters of form not affecting matters of sub- stance stated in the complaint. The motion was granted. At the conclusion of the presentation of evidence the parties presented oral argument. An opportunity was also afforded for the filing of briefs and/or proposed findings of fact or conclusions of law or both. A brief was filed by the Respondent, which has been read and considered. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: 1 General Counsel's Exhibit No. 20. 9 General Counsel's Exhibits Nos. 2 to 19 and Respondent's Exhibits Nos. 1 to 7. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is and at all times herein mentioned has been an Illinois corpora- tion with its principal office and place of business located in Chicago, Illinois, where it manufactures rubber and composition rollers and related products. The Respond- ent also operates plants in New York State and California. In the course and conduct of its business, during the preceding year, the Respondent purchased material having a value of in excess of $500,000 transported in interstate commerce from outside the State of Illinois, and during the same period the Respondent caused large quantities of its finished product, valued in excess of $100,000, to be manufactured, sold, transported, and distributed in interstate commerce to points outside the State of Illinois. The Respondent admits and I find that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The United Service Employees Union, Local 329, A.F.L., is a labor organization admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The situation prior to May 12, 1953 On April 15, 1952, pursuant to stipulation for certification upon consent election, the Board held an election among the employees of the Respondent in the stipulated unit to determine whether or not they wished to be represented by the Union. There were 164 eligible voters, with 157 participating in the election . Seventy-four voted for and 56 against the Union , with 24 ballots challenged' On July 21, 1952, the Regional Director, reporting on the challenges , recommended that a hearing be held to determine the validity of the challenges. On August 11, 1952, the Board ordered such hearing. After considering the report of the designated hearing examiner, is- sued February 20, 1953, the Board on May 12, 1953, issued its decision upholding the challenges to 20 of the challenged ballots and duly certified the Union as the exclusive bargaining representative of the production and maintenance employees of the Respondent . In sustaining the challenges to 19 of the 22 so -called group leaders' ballots, the Board found that 19 of such group leaders were at such time supervisors within the statutory definition. B. Salient facts of occurrence after May 12, 1953 After it learned that the Board had on May 12, 1953, certified the Union as bargaining agent for its employees, the Respondent on May 15, 1953, addressed an open letter to its employees, relative to a decertification petition then being circu- lated, purportedly giving full information about the petition, particularly as to the right of employees to sign the petition and to vote for putting the Union out, but stating "the way you vote is a matter each worker will decide for himself," stressing the identity of interest of the employees and the Company Respondent, and how the Respondent was now working in complete harmony with the employees in the Long Island plant, who had after a 4-month strike voted out the Union in a decertifica- tion election by a 2 to 1 vote. On June 1, 1953, a second letter was issued to the employees by the Respondent setting forth the company position in the light of the decertification petition filed on May 20, 1953, stating after consultation with their lawyers, their intent to abide by the National Labor Relations law, and to the extent permitted by law support their employees in their effort to vote as to whether they would be subject to a union or be free and independent of any union. The letter also referred to the challenge of the group leader's ballots by the Union, and the finding by the Board that such workers were supervisors under the provi- sions of this Act, and pointing out the Respondent's legal contention that the Act did not prohibit at this time a further election to ascertain the wishes of the workers. The Respondent denied any matter of stalling on their part was involved but clearly indicated their intention to await disposition by the Board of the appeal taken to the Board by the attorneys for the decertification petitioners from the action of the Regional Director in dismissing on May 29, 1953, the application as being un- timely made. The conclusion of such letter was a reminder that the workers re- 8 Three ballots were void. IDEAL ROLLER & MANUFACTURING CO. 287 member that it has never been necessary for any employee of Respondent to belong to a Union in order to keep his job. Following the Board action of May 12, 1953. certifying the Union as the sole collective-bargaining agent for the production and maintenance employees of the Respondent, the Union in a letter to Respondent dated May 16, 1953, stated it was ready to begin collective-bargaining negotiations for the employees involved and urged that arrangements be made to meet as soon as possible. No reply being received from Respondent, the Union in letter dated May 22, 1953, renewed the previously made request.4 It pointed out also that with continued failure to reply within a reasonable time, the Union would have to assume the action to be a refusal on their part to bargain. On May 27, 1953, the Respondent in a written communication advised the Union that pursuant to notification of the filing of the decertification petition received from the attorney for the worker petitioners and the Board Regional Di- rector, and relying on legal advice secured, the Respondent would maintain a neutral position and accordingly would refrain from taking any action on the requests made by the Union in the letter of May 16, 1953, "at the present time."' On June 10, 1953, the Union sent a telegram to the Respondent, calling attention to the action of the Regional Director on May 28, 1953, and with no further justification appearing for further refusal to bargain, demanded that the Respondent communicate its in- tentions regarding the beginning of negotiations by June 12, 1953. A wire reply was sent by the Respondent to the Union on June 11, 1953, stating that having been advised by the attorneys representing the decertification petitioners and by the Re- gional Director, of the request filed on June 8, 1953, for review of the action of dis- missal of the petition, and acting upon legal advice, they believed that pending any official action on such review it would be improper for the Respondent to comply with the request to bargain contained in the union telegram of June 10, 1953.° On June 26, 1953, the Union sent another telegram to the Respondent calling attention to the action of the Board dismissing the decertification petition, stating "no further bar- rier to negotiations possible" and asking Respondent to contact "immediately to set bargaining date." An answering telegram sent by Respondent on June 29, 1953, re- ferred to the absence from the city of Mr. Love ' and stated any reply to request of prior telegram "will be somewhat delayed." 6 In a letter, dated July 6, 1953, the Union referred to their previous telegram and the reply thereto of Respondent, re- lating to necessary delay based on the absence of Mr. Love. Although understand- ing the reluctance of the Respondent in view of his previous activities to proceed in his absence, the Union pointed out apparently no effort was made to communicate with Love regarding the matter or to schedule some definite arrangement to get together. The Union requested a meeting on July 10, 1953, leaving the time and place thereof to the option of the Respondent. Upon his return on July 9, Love sent reply letters on such day (Thursday) to the attorneys for decertification petitioners and to the Union. To the former he told of the union letter of July 6, urging immediate start of negotiations, and stated that in view of such letter that the request of the men and their attorney requesting that the Respondent refrain from negotiating with the Union, could not be complied with, and advising that "we cannot refrain from negotiating with the Union, under the present circumstances." In the brief letter to the Union, acknowledging the July 6 letter, he stated, "I plan to get in touch with you the early part of next week." On the following Monday, July 13, 1953, upon the application, ex parte, of the counsel who had handled the prior decertification proceedings, and in an action insti- tuted by several employees of the Respondent, the United States District Court, In the interim, on May 20, 1953, the decertification petition had been filed with the Regional Director. 6 On May 23, 1953, the Regional Director, It not appearing that further proceedings were warranted, dismissed the decertification petition on the ground petitioner failed to file "in a timely fashion." 6 On June 23, 1953, the Board decided on such request for review, that the Regional Director had properly dismissed the decertification petition and so advised the parties by letter. 7 President of Respondent and in charge of and conducting all employer-employee relations. 8 On June 30, 1953, the attorneys for the petitioner employeesl.in the decertification re- quest, sent a letter to the Respondent, informing it that they considered the Board action and position in dismissing the decertification petition to be improper and unlawful and advised. the Respondent of their intention to apply for a court injunction ordering the holding of a hearing. They further requested that the Respondent refrain from nego- tiating with the Union, pending a determination of this matter by the courts. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northern District of Illinois, Eastern Division, issued a temporary order directed to Respondent, restraining it until July 17, 1953, unless extended for good cause shown with consent of the Respondent, from negotiating with said Union or concluding or executing any contract with it.9 On the following day, all parties appeared before the judge who signed the order, to ascertain if a hearing could be had on July 17. Such judge found that the case did not involve an emergency and that the matter should go over to the fall calendar. He pointed out, however, that in order to keep the matter in status quo until such later calendar date, it would be necessary to ex- tend the previously issued restraining order, which could not be done unless counsel for the Respondent consented to extend the order. Such counsel for Respondent stated to the court that there was no emergency involving Respondent's employees that necessitated an immediate hearing during the summer term of the court, and he consented to the extension of the temporary restraining order. A new restraining order was entered and the matter was then set by the court for hearing on September 17, 1953. 10 In the court hearing on September 17, 1953, on motion made by the attorney for the Respondent, the court dismissed the complaint in the action and vacated the restraining order on the ground that it appeared to the court that it was without jurisdiction of the subject matter of this cause of action. On the same day, Thursday, September 17, 1953, following such dismissal of the action and vacating of the restraining order, the Union wrote to the Respondent re- questing arrangements be made for a meeting to negotiate a contract. The Union stated its readiness to meet at any time and place and requested the Respondent to contact it before the following Wednesday, September 23, 1953. On such latter date, the Respondent acknowledged the receipt of the above letter, but unequivocally declined and refused to meet with the Union as requested, under the circumstances as now stated by it that the Respondent had received service by mail on August 11, 1953, from the attorney who represented the employees in the decertification matter and subsequent district court action, of a document signed by a majority of their employees indicating that they repudiate the Union as their bargaining representa- tive, and that they did not wish the Respondent to recognize the Union as their agent." It does not appear from the record that there was any statement to the Union by the Respondent of this situation and the position of the Respondent in relation to it, between the receipt of the document on August 11, 1953, and the above letter to the Union of September 23, 1953. C. The hearing testimony Oniv one witness was produced, Love, testifying when called by the General Coun- sel and also as a witness for the Respondent. He stated that when he learned of and knew about the Board certification of May 12, 1953, he was then prepared to deal with the Union, but deterred entering into any bargaining relationship when, approximately at the same time, he learned of the decertification petition, which led him to question the fact of the union majority among the workers in the plant. He, however, did not then directly express to the Union his contention regarding the doubt of the union majority. There had existed in the plant a rule, written copy of which was originally posted on a bulletin board, prohibiting solicitation of any kind in the plant on company time. He understood the decertification petition had been circulated in the plant, but he made no effort to find out who circulated it, whose names were on the petition, and that no action was taken against anyone for such circulation. He had cautioned the superintendent not to permit the circulation of it after he learned of it.12 Love denied having any communication in the period of July 9 and 13, 1953, with the attorneys for the workers who instituted the court 9 On such day of July 13, the Respondent wrote to the Union stating it had been advised of the issuance of the restraining order on that day and that "in view of these circum- stances, it seems no further action is possible pending disposition of the litigation." 10 An application by counsel for the Regional Director made on July 31, 1953, before another judge of such court asking immediate hearing was denied 11 Such petition contained 90 signatures, the validity of each of which was established to the satisfaction of the Respondent, including admittedly those of 17 group leaders. Love testified that on the date the petition was received the Respondent had 151 em- ployees. The letter of the attorneys enclosing such document again requested the Respond- entto refrain from extending any recognition to the Union, and stated their belief that after Respondent had considered the matter it would realize that the peaceful operation of this plant will best be preserved by honoring the wishes of a majority of its employees. 12 Nothing was offered as to time and circumstances of such circulation and the charge and complaint made no reference to the Act IDEAL ROLLER & MANUFACTURING CO. 289 action for the restraining order on July 13. Regarding the petition of the employees, received on August 11, 1953, he detailed the circumstances of the receipt of it, and his procedure as to the recognition of the signatures of many old employees (ap- proximately one-third of the signers) and as to the vertification steps (of comparison of such signatures with the signature of the individual on his application blank) that convinced him of the validity of the signatures of the remainder of those signing it. He did not know if such petition had been drafted or circulated in the plant, and made no effort to find out if such was the case, and did not discuss the petition when received with any of the older employees or group leaders. He alleged he only knew of the circulation and signing of this petition from a circular distributed in front of the plant several days in advance of the actual receipt of the petition in the mail from the attorney for the workers. D. The appropriate unit The complaint alleged, the answer admitted, and I find that all production and maintenance employees at Respondent's Chicago, Illinois, plant, excluding truck- drivers and stationary engineers, office and clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 subsection (b) of the Act. E. The majority On May 12, 1953, following an election conducted under the supervision of the Regional Director for the Thirteenth Region of the Board and proceedings incident thereto, the Union was formally certified by the Board as the exclusive representative for the purposes of collective bargaining in the unit described above. F. Discussion and conclusions 1. The letters of Respondent dated May 15 and June 1, 1953, as independent violations of Section 8 (a) (1) The General Counsel contends that these letters of the Respondent to the em- ployees were acts of interference, coercion, and restraint calculated to affect the employees in the exercise of their rights under Section 7 of the Act. The Respondent contends their issuance did not violate the rights of free speech stated in Section 8 (c) of the Act, and that therefore they did not constitute the violation alleged." I find on the face of such letters no directly expressed threats of force, pressure, or reprisal or promise of benefit, and, although they are strongly worded, believe that the documents and the statements therein fall within the freedom of expression intended to be exempted from becoming the basis of an unfair labor practice charge. I find therefore that the Respondent in the issuance and distribution of these letters did not commit an unfair labor practice thereby in violation of Section 8 (a) (1) of the Act." 2. The alleged failure and refusal to bargain under Section 8 (a) (5) a. General aspects The record is clear as to the repeated requests and efforts of the Union to induce the Respondent to meet with it in collective-bargaining negotiations in the period from May 16 to September 17, 1953. It is clear also that no meetings between the Union and Respondent were ever held. The "conclusive test" of a secret election under Board supervision had effectively demonstrated the Union as the collective- bargaining agent of the majority of the production and maintenance employees of the Respondent.1e The question of fact as to the status of certain employees, designated as group leaders, after hearing and due consideration of the factors involved by the Board, had been definitely and clearly established as being that of supervisory employees. The determination of proper representation being made, '3 The reserved upon motion of Respondent to strike the allegations of the complaint (paragraph 8) is denied as the allegations of section 12 of the complaint are broad enough to encompass the letters as alleged independent violations of Section 8 (a) (1). 14 Such letters, in evidence under the stipulation, however may be considered in deter- mining the status of the Respondent relative to the alleged refusal to bargain. 'S N. L. R. B. v. Century Oxford Mfg. Corp., 140 F. 2d 541 (C. A. 2) ; cert. denied 323 U. S. 714. An election conducted under proper safeguards provides the most reliable means of ascertaining the deliberate will of the employees 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD together with the certification of the Union by the Board on May 12, 1953, imposed the duty and obligation upon the Respondent to meet with and bargain collectively with the Union as the authorized representative of their employees." The initial opposition to any bargaining by the Respondent appears to be based on dissatisfac- tion with the results of the election and inability to concur with the judgment of the Board in evaluating the position and status of the group leaders. It appears also to be based on a strained interpretation of Section 9 (c) (3), which in its provisions bans the holding of more than one election within a 1-year period after the holding of a valid election, which would permit in their interpretation, as a corollary, irre- spective of the certification made, unlimited and unrestricted elections for any reason as long as the stated 1-year period after the holding of the election has elapsed. Such a course of procedure would hardly contribute to but would tend to upset the industrial stability to help attain which the Act is pointed. In taking such position, the Respondent deliberately chose to ignore the prevailing and longstanding rule of the Board that following certification of a bargaining agent by the Board, a reasonable time, usually 1 year, should elapse to permit the bargaining relationship to be tested and to reach fertile fruition and in which period, in the absence of unusual circumstances, the union majority may not be challenged and in which the Board will not entertain petitions for additional elections." True, the Respondent in establishing its course and position in relation to the Union, the certification and the decertification petition, acted upon legal advice,18 but when an election is deliberately made as to the proper course to pursue, the perils of wrong choice are binding upon the selector. In addition, it is clear that no "unusual circumstances" as heretofore interpreted were present here on which the Respondent could rely, i. e., no defunct union, schism in the union ranks and switch- ing of the employees to some rival union, or any abnormal increase in the number of its employees, either since the election or during the months following the certi- fication.19 And, absent any of such circumstances 20 the majority status of the certified union is presumed to continue in the usual period for bargaining following such certification. The complaint sets forth three specifications of alleged refusal to bargain: The letters of Respondent to employees, dated May 15, 1953, and June 1, respectively; the failure of the Respondent to comply with requests of the Union to bargain in cer- tain time periods when even the reasons advanced by the Respondent for holding off were no longer operative; and the consent by the Respondent to a lengthy adjournment of the United States district court proceedings restraining the Respondent from negoti- ating with the Union. The Respondent counters initially with affirmative defense allegations of the pendency of the decertification proceedings as the basis for their position, the subsequent jeopardy in which they were placed by the court restraining order, and finally with an outright refusal to bargain on September 23, 1953 (after court restraining order was dismissed), placing its reliance upon a petition received on August 11, 1953, allegedly signed by a majority of the employees, repudiating the Union as their representative and bargaining agent. b. The letters of Respondent to the employees and reliance of the Respondent on the decertification petition filed It appears the letter of Respondent, dated May 15, 1953, addressed to their em- ployees, although issued following knowledge of the certification made by the Board, antedates any requests made by the Union to the Respondent to enter bargaining negotiations, and 1 find therefore was not in itself a refusal to bargain with the Union 16 It has been held in West Fork Cut Glass Co, 90 NLRB 944, 188 F 2d 474 (C. A. 4), that absent "unusual circumstances, the duty to bargain with a certified union continues for the certification year despite a loss, alleged or real, of the Union's majority." See also Geraldsne Novelty Co , 74 NLRB 1503, 173 F. 2d 14 (C. A. 2). 17 In Belden Brick Co., 83 NLRB 465, the Board held that the filing of a decertification petition was not such an unusual circumstance as to justify refusal to bargain during the first year after certification. The three cases cited by Respondent in brief (p. 27) in which the Board directed an election within the 1-year period, are clearly distinguishable on their facts as not coming under the rule, and do not present any analogous situation to that herein. 1e Heider Mfg Co., 91 NLRB 1185 10 In April 1952, at election 164 employees, and in August 1953, 151 employees. 20 The case of Globe Automatic Sprinkler Co , 199 F 2d 64 (C. A. 3), cited with approval in brief of Respondent, based on an unusual ethical situation presented, should really be considered as sui 9uris and not determinative here. IDEAL ROLLER & MANUFACTURING CO. 291 by the Respondent. Similarly, I believe the letter of June 1, 1953, should be treated only as an incident in connection with the letter of the Respondent to the Union,. dated May 27, 1953, in which the Respondent delayed taking any positive or un- equivocal position in view of the decertification petition filed by a number of the em- ployees. This position was reiterated by the Respondent as the basis of its continued attitude when the action of the Regional Director dismissing the filed decertification petition as being untimely made under the Board policy and rule, was taken up on review to the Board. (Such action was confirmed by the Board on June 23, 1953.) However, as has been previously indicated, the filing of a rival petition does not sus- pend the obligation of the employer to bargain during the certification year. (Belden Brick Co., supra; Cooperative Industries, Inc, 85 NLRB 1258; Poole Foundry cC Machine Co, 95 NLRB 34, 192 F. 2d 740 (C. A. 4) cert. denied 342 U. S. 954; N. L. R. B. v. Ray Brooks, 98 NLRB 976, 204 F. 2d 899 (C. A. 9) cert. pending; Henry Heide, Inc., 107 NLRB 1160.) Any question of good faith of the Respondent is irrelevant on the question of the Respondent's obligation to bargain during the certification year.21 Even the raising of a question of the majority status of a cei ti- fled union as a condition precedent to bargaining within a certification year, has been considered in itself a refusal by the employer to bargain. (West Forks Cut Glass Co., supra.) In the Ray Brooks case, supra the situation presented has many points of similarity with the instant case A consent election has been conducted by the Board in each instance, and the union therein certified, as here. After the union in that case requested a negotiation conference (7 days after certification, here 4 days) the employer's attorney, 11 days after the certification, wrote to the Union suggesting that as the employer understood the employees repudiated the Union it would be "wiser" to put off negotiations. Here, 15 days after the certification and 11 days after the union request to bargain, the Respondent's letter to the Union, although not of similar wording, was of similar purport and was clearly intended to operate for the same purpose. The court then stated, in the Brooks case, that although the letter was clothed in polite and conciliatory language, the purport of the letter was that unless and until the Union could prove its majority, the employer was under no obli- gation to bargain and was not inclined to do so. The Court there held that the Board was justified in construing the language in that case as a refusal of the Respondent to bargain. I believe the parallel here is definite, and based on such precedent, and on the Respondent's communication of May 27, 1953, and subsequent letters of the same tenor, and the circumstances generally of the course of conduct of the Re- spondent herein, find that the Respondent refused to bargain with the Union on May 27, 1953, as the exclusive representative of its employees in the aforesaid de- scribed appropriate unit, thereby violating Section 8 (a) (5) and (1) of the Act. In so deciding, I am not unaware of the conflict in some circuit decisions regarding the application of the policy and rule of the Board relative to the effectiveness of the certification for a reasonable time, usually 1 year, in the absence of any unusual circumstances being present requiring the holding otherwise. The Respondent cites and relies primarily on the case of Mid-Continent Petroleum Corporation, 99 NLRB 182, 204 F 2d 613 (C. A. 6) cert. denied 74 S. Ct. 71. In that case there was also a consent election which involved 6 employees only, certification of the union, and about 2 months later the employer withdrawing its recognition of the union as authorized bargaining agent for the limited number of employees involved, on the basis of having received individual letters from 3 employees, each repudiating the union as such bargaining agent. The decision in Mid-Continent Petroleum case is based primarily on the giving of supremacy over all other considerations and factors in the operation of the law, to the absolute right and freedom of the employees without restriction to be represented at all times by representatives of their own choosing.' However, in the same week in which this decision was rendered, the Ray Brooks case (supra) was decided in a different circuit (reaching a directly opposite conclusion from that in Mid-Continent Petroleum after considering in the main the same prior court decisions in many other circuits), upholding the Board doc- trine and rule of 1 year following certification as a reasonable freedom period in which to permit the bargaining process to attempt to secure successful operation. If the Act, does not spell out in precise words and terms the authority for the Board 1-year rule, it would appear to this Examiner that the Board as a quasi- judicial agency is endowed with all the necessary power to fill in all required details n Celanese Corporation of America, 95 NLRB 664. 22 This would permit repudiation at will In Century Oxford Mfg. Corp., (supra) it was held there must be "some measure of permanence in the results ; freedom to choose . . . does not imply freedom to turn him out . . . with the next breath." 334811-55-vol 109-20 .292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to effectively make the Act work. In addition, the Board has recently further clearly set forth its position in a memorandum filed in the United States Supreme Court," in which it stated that it "will unavoidably be forced to adhere to the Sixth Circuit ruling in cases arising in that circuit, while at the same time adhering to its normal rule, that a certification is operative for a reasonable period of time in the other circuits, which have generally approved the Board rule." 24 In recent decisions the Board has further reiterated and affirmed the 1 year after certification rule, in Vulcan Steel Tank Corp., 106 NLRB 1278 and Henry Heide, Inc., 107 NLRB 1160. In this latter case it stated, "Clearly we cannot regard the mere filing of a petition by a union during the certification year of another union as in and of itself con- stituting an open sesame for a refusal to bargain. Were we to do this we would be placing a heavy premium on frivolous petitions filed by rival Unions during the certification years of other unions, and would be lending the processes of the Board toward upsetting the industrial stability that Congress expressly intended for us to preserve." t6 G. The Respondent in relation to the court proceedings and the consent given to long extension of the restraining order issued When the decertification issue as a support basis for Respondent not negotiating was definitely and finally removed by the Board affirmance on June 23, 1953, of the dismissal of the petition by the Regional Director, there ensued a period of some 18 days in which no real bar to the Respondent entering into bargaining relations could be asserted, despite the letter of some dissident employees' attorney, dated June 30, 1953, advising the Respondent of his disagreement with the Board finding and of his intention to resort to court action. In fact, if sincerity was really present such letter should have been a spur to prompt action by the Respondent. In this period, although the representative of the Respondent in all employee and labor relations matters, was out of the city, apparently no action was taken by his own officials and supervisory employees to acquaint him with the contents of the union telegram of June 25, the indicated urgency of the matter, or to attempt to fix a date for a meeting with the Union upon his return. The fulsome statement of intentions to bargain made by Respondent in the letter of July 9 to the employees' attorney, does not quite jibe with the distinct lack of any stated intention to bargain in the letter to the Union of the same date. I therefore have great doubts that the inaugu- ration of the court action and the issuance of the restraining order, came as any unwelcome or unexpected surprise to the Respondent.26 Certainly, it was immedi- ately seized upon as the foundation for continuance of the wait and see position previously pursued with apparent success by the Respondent. The General Counsel alleges the consent given by the Respondent on July 14, 1953, to the long extension of time, indicated to be granted by the court, was an act of refusing to bargain, and the Respondent alleges they were practically without choice in the matter, that therefore the action of their attorney did not constitute an unfair labor practice, and that the Respondent should not be expected or required to ignore such court restraining order with possibility of contempt proceedings." If the parties were in process of meeting and negotiating it seems such an order might operate to suspend the process temporarily, and the requirement for a respondent to, continue bargaining under such peril. Here, the assumption of Respondent's attorney that no emergency existed, even though the court indicated it so thought, ignored entirely and suspended under the claimed protection of legal sanctity, the rights of the majority workers who had selected the Union as their bargaining repre- 21 In connection with the application of the employer in Bay Brooks, (supra) for certiorari to the Ninth Circuit, the Board did not oppose such application but consented to it and joined in request for consideration of the question involved in view of the im- portance of it in the administration of the Act, and the conflict in court rulings. 21 The case of Bradley lVashfountasn Co, 192 F. 2d 144 (C. A. 7), does not appear to be contrary to the rule, although so cited in Respondent's brief, as therein the repudiation of the Union by employees occurred more than 1 year following the certification. zs The lack of a rival union being present in the instant case, will not change the appli- cation of the policy to the petition filed in the instant case. 26 No allegation of collusion was made however, and the testimony of the president of Respondent denied any communication with the attorney or the employees regarding the court action. a'+ A finding in relation to this question does not appear to be imperative in view of the other findings herein of refusal to bargain as of May 1953 and September 1953. It is made however, as reflecting on the attitude of the Respondent. IDEAL ROLLER & MANUFACTURING CO. 293 sentative, and also any rights acquired by the Union itself by virtue of the Board certification These were not valueless things to be destroyed even for a short Lime period simply to please the court, and /or to gain further time exemption from bar- gaining for the Respondent. In Giace Company, 84 NLRB 435, 184 F. 2d 126, 130 (C A. 8), the court said: (3) We reject as unsound the Board's ruling that respondent was required to ignore the restraining order issued by the State court. Collective bargaining with International was useless unless it could proceed to agreement and the performance of the agreement when reached. Respondent's effective obedi- ence to the Board's order required its violation of the restraining order of the State court. The Board could not require the respondent to put itself in this position, even if, as we agree, the ultimate dissolution of the restraining order was certain. At least respondent was entitled to a reasonable time in which to secure a modification or dissolution of the State court order. The restraining order was dismissed by the court after argument and on the motion of the Respondent on September 17, 1953, for lack of jurisdiction of the subject matter. This should have been apparent to the parties from the outset and would have been quickly established if the long adjournment had not been consented to by the Respondent. From July 13, 1953, the protection of the order had been enjoyed by the Respondent, without ever initiating on its part any steps to secure a modifica- tion of it or any rescission of it, which the Grace decision indicated would be the proper remedy and procedure for an aggrieved party, or as I believe, one sincerely wishing to carry on the bargaining process. Standing alone, and if it were by itself the only item to be considered in reference to failure to bargain, and if occurring at the beginning of the certification period, the consent of the attorney as given and the failure to institute any additional proceedings to dissolve or modify the restraining order might be condoned, if so separately considered, but in the light of all the circum- stances herein, I do not believe it should be. I consider in this case and circum- stances, and find that such consent given in the court proceedings by the authorized agent of the Respondent, combined with the lethargy, noninterest, and inactivity of the Respondent otherwise to have the order quashed or modified, does constitute a continuing refusal by the Respondent to bargain with the Union as the exclusive representative of its employees in the appropriate unit herein above set forth, thereby violating Section 8 (a) (5) and (1) of the Act. D. The repudiation petition of August 11, 1953 On August 11, 1953, the Respondent was served with a repudiation petition al- legedly signed by a majority of the employees. This was received by mail from the attorney who represented the employees in both the decertification and court matters The Respondent became assured of the validity of the signatures by adopting what I consider reasonable means of checking, and was convinced to the extent of believing they were not forgeries. No action was taken by the Respondent relative to it at that time however, and it did not then advise the Union in any way, either of the alleged repudiation by the workers, or its belief that the Union no longer represented a majority of its workers, or of the definite intention of the Respondent based thereon to not enter into any bargaining negotiations. Apparently, the Respondent decided to continue on the free ride of protection under the court order as long as possible, and hold in reserve for later action to secure further excuse for delay in not entering negotiations, the new weapon presented to it. The vice of the whole position of the Respondent seems to be well revealed in the banking away for future use of this additional device for delay. It is shown to an extent also in the lack of promptness of the Respondent in meeting the issue after the dissolving of the restraining order on September 17, 1953. The Union promptly on that date, informed the Respondent of the court action and fixed September 23, 1953, as a proposed meeting date, leaving to the Respondent the setting of the time and place. Running true to form, the Re- spondent waited until such actual date for the proposed meeting, and then on that date by letter informed the Union of the repudiation petition received on August 11, 1953, and of its decision, relying on such document, to definitely refuse to recognize the Union as the authorized representative of the majority of its employees and to unequivocally refuse to bargain with it. Whether or not the repudiation petition re- ceived by the Respondent actually contained the signatures of a majority of the work- ers duly signed under circumstances indicating that they knew it was such type of petition when they were signing it, or was properly authenticated, or whether the Union had in fact lost its majority status, or whether the conduct of the Respondent had contributed to such result if present, is of small importance in determining the position of the Respondent under the Act, in relying upon such document as the 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD declared basis of its action at this time.`' The receipt of it by the Respondent and the unequivocal position of refusal to bargain taken by the Respondent, all occurred within 4 to 5 months after the certification of the Union as the authorized bargaining agent of its employees. The relationship established by the Board certification, and the union requests, had never progressed beyond an unsatisfactory letter writing stage. There could be no valid basis, except the existence of unusual circumstances (which I find absent here), to sustain the refusal of the Respondent to bargain within the usual 1-year period following certification. For the reasons previously stated herein in relation to the position of the Respondent regarding the decertification peti- tion, as constituting a violation of the Board 1 year following certification rule, it would have to be held (even aside from the flat stated refusal to bargain) that the raising of the question of the union majority at this time by the Respondent, would in itself be a refusal to bargain and a violation of Section 8 (a) (5).' However, the Respondent has recorded in the letter of September 23, 1953, a flat refusal to bargain, and admitted in its answer such refusal to bargain from such date. Based thereon, I find that on September 23, 1953, and at all times since, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit described heretofore, thereby violating Section 8 (a) (5) and (1) of the Act. I am convinced on the basis of the entire record that the Respondent in the period from May 12, 1953, to September 23, 1953 (and despite certain written assertions of Respondent to the contrary), had no valid intentions of actually bargaining with the Union. It was content to grasp at every straw to avoid making a definite declaration of lack of intention, and resorted to dilatory tactics of delay to put off as long as possible the ultimate decision . It is significant that in the entire period it never stated to the Union in any manner any distinct assent to entering into bargaining relations. Supplementing the individual findings herein made, I further find on the basis of the entire record that on May 27, 1953, and at all times since, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the above described appropriate unit , thereby violating Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Repondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I shall recommend that the Respondent bargain collectively with the Union and if an under- standing is reached embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. At all times since May 12, 1953, United Service Employees Union, Local 329, A.F.L., has been the statutory bargaining representative of the Respondent's em- ployees in an appropriate unit. 2. By failing and refusing at all times since May 27, 1953, to bargain collectively with the United Service Employees Union, Local 329, A.F.L., as the exclusive repre- sentative 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. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 4. Ideal Roller & Manufacturing Co. has not violated Section 8 (a) (1) of the Act as alleged in paragraph 12 of the complaint, in circulating to the employees the -,V L R. B v Sanson Hosier y Mills, 195 F 2d 350 (C. A. 5), cert. denied 344 U S. 863 "whether or not the Union has lost that status is for the Board to determine upon orderly statutory procedure . meanwhile it is the duty of the employer to deal with the duly certified union" see also Ray Brooks, supra 29 West Fork Cut Glass Co., supra. HUBER & HUBER MOTOR EXPRESS, INC. 295 letters dated May 15, 1953, and June 1, 1953 ; alleged in paragraph 8 of the complaint, and has not violated Section 8 (a) (5) of the Act, as alleged in paragraph 11 of the complaint, by virtue of the issuance of such letters. IRecommendations omitted from publication.] HUBER & HUBER MOTOR EXPRESS, INC. and L. F. BARNETI' TRUCK DRIVERS AND HELPERS LOCAL UNION No. 728, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL and L. F. BARNETT. Cases Nos. 1O-UA- 1811 and 10-CB-161. Judy 20,1954 Decision and Order On March 10, 1954, Trial Examiner George A. Downing issued an Intermediate Report, and on April 26, 1954, a Supplemental Inter- mediate Report, in the above-entitled proceeding, finding that the Respondent Company had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist there- from and take certain affirmative action, as set forth in the copies of the Intermediate Report and the Supplemental Intermediate Report attached hereto. The Trial Examiner also found that the Respondent Union had not engaged in unfair labor practices and recommended that the complaint be dismissed as to this Respondent.' Thereafter, the Respondent Company filed exceptions to the Intermediate Report and the Supplemental Intermediate Report, and briefs in support thereof.2 The Respondent Union also filed a brief in support of the exceptions of the Respondent Company. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the Supplemental Intermediate Report, the excep- tions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,-3 conclusions, aiid recommendations. I As no exceptions have been filed to this finding and recommendations , we adopt them pro forma and, accordingly , shall dismiss the complaint against the Respondent Union. 2 The Respondent Company 's request for oral argument is hereby denied as the record and the exceptions and briefs , in our opinion, adequately present the issues and the posi- tions of the parties. 2 We agree with the Trial Examiner's finding that the Respondent Company did not strictly enforce its rule requiring drivers periodically to telephone the dispatcher. The record shows that driver Chadwick missed the required calls 2 or 3 times without being disciplined. Driver Thompson missed calling on some Saturdays until 12 noon or 1 p. M., without being asked for an explanation . Driver Waters missed calls many times and was reprimanded only once. On this occasion the Respondent Company 's terminal manager indicated that the rule , which the drivers generally considered impractical , might be dropped as a basis for disciplinary action. The Trial Examiner found that the Respondent Company's discriminatory discharge of Barnett constituted a violation of Section 8 (a) (1) of the Act but not of Section 8 (a) (3). As no exceptions were filed to this finding, we adopt it without necessarily agreeing with the Trial Examiner 's rationale. 109 NLRB No. 55.