Squirrel Brand Co., Inc.

SQUIRREL BRAND CO., INC. 289 SQUIRREL BRAND CO., INC. and LOCAL 348, BAKERY AND CONFECTIONARY WORKERS INTERNATIONAL UNION, AFL. Case No . 1-CA-1209 . April 22, 1953 DECISION AND ORDER On October 14, 1952, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceed- ing, 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 attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 Intermediate Report, the exceptions and brief, and the entire record in the case, and finds merit in the Respondent's exceptions. Accordingly the Board adopts the Trial Examiner's findings and conclusions only to the extent consistent herewith. On September 14, 1951, in an earlier proceeding involving these parties,: the Board found that the Respondent had refused to bargain with the Union on and after November 4, 1950, in violation of Section 8 (a) (5) and (1) of the Act, and issued the usual bargaining order.3 In that case the Board found, on the basis of authorization cards obtained from the employees by the Union, that the Union on and after November 4, 1950, represented a majority of the employees, despite the fact that it lost an election conducted by the Board on November 28, 1950.4 On October 22, 1951, 16 of the Respondent's 70 employees struck to compel compliance with the Board's order to bargain. On November 26, 1951, the Respondent and the Union executed a contract, which was to expire on June 1, 1952, and the Respondent thereafter complied with the remainder of the Board ' s order. On April 22, 1952, the Union gave timely notice of certain proposed "changes" in the contract. On April 23, the Respondent advised the Union that it did not intend to renew the contract. When the Union, on April 29, 1952, asked for bargaining on a new contract, the Respondent stated, in effect, that it would not bargain with the Union because it did not represent a i The Respondent's request for oral argument is hereby denied, because the record, including the exceptions and brief, in our opinion, adequately presents the issues and posi- tions of the parties. ISquirrel Brand Co.. Inc., 96 NLRB 179. SThere has been no court review of this order . A petition for review of the order, filed by the Respondent, and a cross-petition for enforcement , filed by the Board, were both dis- missed by the court of appeals on May 8, 1952, without prejudice, pursuant to agreement of the parties. 4The election was set aside as a nullity for reasons indicated in the Board 's Decision, 96 NLRB 179, 181. 104 NLRB No. 41. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of the employees. On June 2, 1952, the Union filed the charge in the instant case, and on August 11, at a conference with the Union and the General Counsel, the Respondent, when confronted with another request to bargain, asserted that it would not act on the request because of the pending charge. A further request to bargain in a letter of August 11 was ignored by the Respondent. The Trial Examiner found on the foregoing facts that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to bargain with the Union in April and August 1952. We disagree because we find, contrary to the Trial Examiner, that the Union did not represent a majority of employees in the appropriate unit at these times. In holding that the Union was the representative of the majority of the employees in the appropriate unit, the Trial Examiner relied upon the following considerations: (1) That the Union's majority status, having been established in the prior case as existing on and after November 4, 1950, is presumed to continue until rebutted. (2) That the Board's bargaining order of September 14, 1951, was tantamount to a certification of the Union as bargaining representative of the employees and, as such, created a presumption that the Union continued to represent the majority of employees until the contrary was shown. (3) That in the instant case there were no circumstances occurring after the Board's order of September 14, 1951, tending to rebut the foregoing presumption, or to justify any good-faith doubt on the part of the Respondent that the Union was still the representative of the majority of the employees in April and August 1952. We do not agree with the Trial Examiner or with our dissenting colleagues that the September 14, 1951, bargaining order is, or should be, tantamount to a certification of the Union to the extent of applying a 1-year presumption of majority s`tatus.5 The Board's Decision and Order of September 14, 1951, did not require or imply a factual determination that the Union represented a majority of the employees on that date. The function of the bargaining order was to require the Respondent to remedy its refusal to bargain with the Union on November 4, 1950, a date when, as determined by the Board, it had in fact represented the majority of the employees. The fact, if it be a fact, that the Union lost its majority status before the Respondent complied with the Board's order or even before the order issued would not affect the duty of the Respondent to remedy its past refusal to bargain. However, once the Respondent complied with the order of September 14, SContrary to the assertion of our dissenting colleagues , the Board has not unqualifiedly said that a bargaining order is tantamount in practice to a certification . What it has said in the cases cited in footnote 7 of the dissenting opinion is that a bargaining order is "often" or "in many respects " tantamount to a certification. Because of similarities in those cases, the Board required the beneficiaries of bargaining orders to be in compliance as would have been necessary in the case of a certification . But that does not mean that in all respects a bargaining order necessarily has the same attributes as a certificate. SQUIRREL BRAND CO., INC. 291 1951, by bargaining in good faith and executing the contract with the Union on November 26, 1951, the order had served its remedial purpose. Unlike our dissenting colleagues, we are unable so to construe the statute as to accord vitality to any presumption of majority status arising from that order, except for the purpose of administering the contract signed by the parties pursuant to the compulsions of that order. The General Counsel introduced absolutely no other evidence of the Union's majority at the time of the refusal to bargain for the new con- tract at the end of April 1952. As such evidence of majority is lacking, we find that the General Counsel has failed to establish that the Union did in fact represent a majority of the employees at the time of the alleged refusals to bargain. Accordingly, we find, contrary to the Trial Examiner, that the Respondent did not violate the Act by its refusal to bargain with the Union, and we shall dismiss the complaint. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint against the Respondent, Squirrel Brand Co., Inc., be, and it hereby is, dismissed. Members Houston and Styles, dissenting: Contrary to our colleagues, we would affirm the finding of the Trial Examiner that the Respondent refused to bargain with the Union on or about April 29, 1952, and thereafter, thereby violating Section 8 (a) (5) and (1) of the Act. It is not disputed that the Respondent refused to bargain with the Union on or about April 29, 1952, allegedly because it no longer represented a majority of the employees. Later bargaining overtures by the Union in August 1952 were rejected or ignored by the Respondent, the reason given for such rejection being the pendency of the complaint in the instant case. The foregoing refusals to bargain all occurred within the period of 1 year following the issuance of the Board's order of September 14, 1951, in a prior case involving the same parties, $ which order required the Respondent to bargain with the Union upon request. The Trial Examiner held that the effect of the bargaining order in this case was to place the Union in the same position as a newly certified union which, under well- settled principles, would be conclusively presumed to retain its majority status for at least 1 year from the date of certification. We agree. 6In that case the Board adopted the Trial Examiner 's finding that the Union on November 4, 1950, "and at all times since has been the exclusive representative " of the Respondent's employees . (Emphasis added.) 292 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD In our view, a bargaining order, as the Board has fre- quently said, is "tantamount in practice to a certification,"' and should, therefore, like a certification, be deemed to fore- close the raising of any representation question fora period of at least 1 year from the date of its issuance. The effect of the decision of the majority is, however, to give less vitality to a Board finding in an unfair labor practice case that a union represents a majority of the employees in the appropriate unit than would be given to a like finding in a representation case. With respect to the instant Union, the Board found in its Decision of September 14, 1951, in the earlier unfair labor practice case, that the Union was the exclusive representative of the Respondent's employees on November 4, 1950, and at all times thereafter. This was in effect a finding that the Union was the majority representative on September 14, 1951, the date the bargaining order issued. We can see no reason in law or policy for giving less weight to such a finding than would be given to a certification. In treating a certification as foreclosing for a year any attack on a union's majority status, the Board has sought to impart a degree of stability to labor relations, recognizing the importance of affording to certified unions an opportunity to concentrate on the job of collective bargaining for a period long enough to make such bargaining reasonably effective, free from the harrassment of organizational drives by rival unions or other incursions on its strength. The Board has, moreover, regarded this 1-year period as a minimum period for insulating a certified union against rival claims even though the union has during that period had the benefit of a contract. In our opinion, there is equal, if not more, reason for giving the same minimal protection to a union which, as in the instant case, is seeking recognition by an employer who has already twice demonstrated his hostility to collective bargaining. In such an atmosphere of tension and conflict, a stable situation cannot be established by giving a union less protection against attacks on its majority status than it would receive in a representation proceeding, even absent any unfair labor practices. For these. reasons, we would hold that the bargaining order of September 14, 1951, herein, like a certificate, gave rise to a conclusive presumption that the Union continued for 1 year from the date of the order to represent the majority of Respondent's employees, and that the Respondent's refusal to bargain with the Union during that period was therefore unlawful. 7In Marshall and Bruce Co., 75 NLRB 90, 96. the Board said: "Although the present proceeding does not involve the actual certification of a bargaining representative , an order requiring an employer to bargain collectively with a labor organization is often tantamount in practice to a certification of the latter as bargaining representative." See, also, The Cuff- man Lumber Company, Inc., 82 NLRB 296, 299-300; Atlanta Metallic Casket Company, 91 NLRB 1225, 1237. 8 The Mengel Company. 80 NLRB 705; Belden Brick Co., 83 NLRB 465. SQUIRREL BRAND CO., INC. 293 Intermediate Report STATEMENT OF THE CASE The above-captioned proceeding concerns allegations that Squirrel Brand Co ., Inc., herein called Respondent , on or about April 23, 1952, April 29, 1952, and August 11, 1952, and at all times thereafter , unlawfully refused to bargain with Local 348, Bakery and Con- fectionery Workers International Union of America, AFL, herein called the Union. Re- spondent denies that it unlawfully refused to bargain and asserts that it was under no obliga- tion to negotiate or bargain at the times material herein. A hearing was held before the undersigned on August 19. 1952, in Boston , Massachusetts, at which the General Counsel of the National Labor Relations Board and Respondent were represented by counsel and the Union by its business agent . After the close of the hearing, briefs were received from counsel for the General Counsel and from counsel for Respond- ent which have been considered in the preparation of this report After careful consideration of the record the undersigned makes the following findings of fact,i conclusions of law, and recommendations. 1. THE BUSINESS OF THE RESPONDENT Respondent is a Massachusetts corporation with its place of business located at Cambridge, Massachusetts , where it engages in the manufacture , sale, and distribution of salted nuts, peanut butter , nut candies , and related products . It purchases annually nut meats and other items used by it in its business to a value in excess of $ 100,000, over 90 percent of which represents purchases outside the Commonwealth of Massachusetts. The annual dollar volume of Respondent' s sales is in excess of $100,000, 80 percent of which represents sales to customers outside Massachusetts. Respondent admits , and the undersigned finds, that it is engaged in interstate commerce within the meaning of the National Labor Relations Act, as amended, herein called the Act. LABOR ORGANIZATION INVOLVED Respondent admits and the undersigned finds that the Union is a labor organization within the meaning of Section 2 (5) of the Act. FACTS CONCERNING REFUSAL TO BARGAIN The union organizational campaign among Respondent's employees began- on the morning of November 1, 1950 . Shortly after noon of that day the union representatives requested recognition of Respondent but were refused The Union thereupon , on the same day, filed a petition for an election in Case No 1-RC-1879. On November 4, 1950, having obtained 42 authorization cards--a majority of the employees in the appropriate unit--the union rep- resentatives again requested recognition, and again were rebuffed by the Respondent. The parties executed a consent -election agreement on November 16. 1950 The election, which was held on November 28, 1950, was lost by the Union. 2 The Union filed objections to the conduct of the election, and also filed a charge alleging 8 (a) (1), (3), and (5) violations of the Act. For the purposes of hearing, the objections and the charge were consolidated. A hearing was held in April 1951 before Trial Examiner C. W. Whittemore of this Board. On May 22, 1951, Trial Examiner Whittemore issued his intermediate Report, finding that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act and recommending that it be ordered to cease and desist therefrom and take certain affirmative action, including "upon request , bargain collectively with" the Union. It was further recommended that the Board set aside the election which was held on November 28, 1950. Concerning Respondent' s refusal to bargain, Trial Examiner Whittemore stated: 5. The refusal tobargain The complaint alleges, the Respondent does not contest and agreed at the consent election in November 1950, and the Trial Examiner concludes and finds that a unit i At the hearing the parties entered into stipulations concerning the material facts in lieu of adducing the facts through witnesses. 2 These facts appear in the Board's Decision and Order reported in 96 NLRB 179. which was incorporated herein as a part of the agreed statement of facts. 283230 0 -54 - 20 Z94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Respondent' s employees appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act consists of the following; All production employees at its Cambridge plant, including the shipping room and truck drivers , but excluding office and clerical employees , maintenance employees, professional employees, guards, watchmen, and all supervisors as defined in the Act. At the hearing there was introduced into evidence a list of female employees on the payroll as of November 4, 1950, in the above unit, numbering 39. Also at the hearing Gerrish [president of Respondent] read into the record the names of 31 male employees likewise in said unit Thus the total of all employees in the appropriate unit on November 4, 1950, was 70. During the hearing counsel for the Respondent conceded the genuineness of signatures and dates appearing on union authorization cards totaling 46. Of this total 42 bear dates of November 4 or earlier. The testimony of a union official is unrefuted that no re- vocations of such authorization cards have been received The Trial Examiner therefore concludes and finds that. (1) On November 4, 1950, a majority of the employees in the appropriate unit had designated the Union as their representative for the purposes of collective bargaining; and (2) on that date and at all times since then the Union was and has been the exclusive bargaining representative of all employees in the appropriate unit. The Respondent's answer admits that on or about November 4 it refused and since then has continued to refuse to bargain collectively with the Union. As a witness, Gerrish admitted that on November 6 he refused to agree to bargain with the Union even if in- spection by him of the authorization cards proved majority representation. It is un- disputed that on November 3 Gerrish told lannuzzi, official of the Union, that "I'll never give your Union recognition." The Trial Examiner concludes and finds that on or about November 4, 1950, and at all times thereafter, the Respondent has refused to bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit. This conclusion is based not only upon the factors set forth in the paragraph immediately above, but also upon the Respondent's entire course of conduct designed to discourage union activity, as described in the preceding sections of this Report, including the discrimi- natory discharges, the increase in wages, and the acts of interference, restraint, and coercion. Under circumstances here revealed, the Respondent may not with merit maintain that it was privileged to insist upon and rely upon the outcome of an election, since it is plain that it used the interim period for the purpose of discouraging union activity. By thus refusing to bargain, the Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by the Act. It is further concluded and found that the Respondent's conduct, above described, constituted interference and restraint of employees in the exercise of their rights to engage in the Board election of November 28, 1950. [ Footnotes omitted. ] Trial Examiner Whittenmore in the section of his Intermediate Report entitled "Conclusions of law" stated, inter alia: 3. All production employees at the Respondent's Cambridge plant , including the shipping room and truck drivers, but excluding office and clerical employees, mainte- nance employees, professional employees, guards, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9 (b) of the Act 4. Local 348, Bakery and Confectionery Workers International Union of America, A.F.L., was on November 4, 1950. and at all times since has been, the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing to bargain collectively with the said Union as the exclusive bargain- ing representative of the employees in the appropriate unit the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act Respondent filed exceptions to Trial Examiner Whittemore ' s Intermediate Report, and a supporting brief On September 14, 1951 , the National Labor Relations Board entered its Decision and Order adopting the findings , conclusions , and recommendations of Trial Examiner Whitte- more, with specified additions and modifications . With respect to Respondent' s refusal to bargain , the Board stated: SQUIRREL BRAND CO., INC. 295 3. The Trial Examiner found , and we agree, that on or about November 4, 1950, and at all times thereafter , the Respondent has refused to bargain collectively with the Union, in violation of Section 8 (a) (5) of the Act. As indicated above, the union organizational campaign began on the morning of November 1, 1950. Shortly after noon of that day the union representatives requested recognition of President Gerrish but were refused . The Union thereupon, on the same day, filed a petition for an election in Case No . 1-RC-1879 On November 4, 1950, having obtained 42 authorization cards - - a majority of the employees in the appropriate unit - - the union representatives again requested recognition , and again were rebuffed by the Respondent. The parties executed a consent election agreement on November 16, 1950. The election , which was held on November 28, 1950 , was lost by the Union. It is clear from the record that immediately upon the inception of the Union's organiz- ing campaign, the Respondent embarked on a campaign of unfair labor practices, which included surveillance , a unilateral wage increase , threats of reprisal, promise of benefits, and discriminatory discharges . Moreover , on November 3, President Gerrish told the union organizer that "i' ll never give your Union recognition." Under these circumstances , and on the basis of the entire record , we are convinced that the Respondent did not withhold recognition of the Union on November 4, 1950, becuase of a good faith doubt of the Union' s majority . We find , on the contrary, that the Respondent' s refusal to recognize the Union on November 4, 1950 , and thereafter, was motivated by a desire to gain time in which to destroy the Union 's majority, and by a rejection of the collective bargaining principle. 4 The Respondent contends that by proceeding with the election on November 28, 1950, with knowledge of the Respondent ' s interference with the election, the Union waived its right to have the election set aside . We find no merit in this contention Apart from the fact that the waiver doctrine has no application to a situation such as in the instant case where the coercive conduct continued up to the eve of the election , we find that no genuine question concerning representation existed at any time by reason of the Respondent' s bad faith in refusing to recognize the Union. We therefore regard the election as a nullity and shall set it aside. [ Footnotes omitted. ] The Board's order directs , inter alia , that Respondent shall (1) Cease and desist from 0 (b) Refusing, upon request , to bargain collectively with Local 348, Bakery and Con- fectionery Workers International Union of America, A.F L., as the exclusive repre- sentative of all its employees in the appropriate unit with respect to rates of pay, wages , hours of employment , or other conditions of employment. 0 (2) Take the following affirmative action.... 0 (d) Upon request, bargain collectively with Local 348, Bakery and Confectionery Workers International Union of America, A_F. L., as the exclusive representative of all its employees in the appropriate unit as found in the Intermediate Report, and embody any understanding reached in a signed agreement. On October 5, 1951, Respondent filed , in the United States Court of Appeals for the First Circuit, a "Petition to Review and Set Aside the Board ' s Decision and Order" and the Board' s answer thereto and request for enforcement was filed on November 13, 1951. In the meantime, on October 22, 1951, 16 employees of the Respondent, all being members of the Union, engaged in a strike against the Respondent and actively picketed the Respond- ent's premises for the purpose of compelling the Respondent to bargain collectively with the Union. While the strike, with its attendant picketing, was in progress, the Respondent, as a step toward compliance with the order of the Board , and the Union negotiated relative to a collective-bargaining agreement . On November 26, 1951 , Respondent and the Union executed a contract effective as of November 29, 1951, which by its terms was "to con- tinue in full force and effect until June 1st, 1952. Should either party desire to change at 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the end of this agreement , thirty days' notice shall be given by the party desiring such change." By letter dated April 22, 1952. the union business agent advised Respondent: In accordance with Expiration Clause of the existing agreement between the Company and the union, you are hereby notified that we desire changes and amendments to the existing agreement. Listed below are the proposed changes: Article 1 --The Union Shop. 3 Article 2- -Elimination of all piece work rates. Article 3--Overtime shall be paid for over 8 hours in one day and over 40 hrs in one week. Article 4--All employees to receive 3 weeks vacation with pay. Article 5--Wages--All employees to receive a 25¢ per hour wage increase. Article 6--Holidays- -All employees to receive 12 paid holidays. May I hear from you in the very near future in regard to the changes. By letter dated April 23, 1952, Respondent , through its attorney, advised the Union: Please be advised that it is the desire of Squirrel Brand Company to affect the ter- mination of its contract with you as of June 1. 1952, in accordance with the terms set out in Paragraph # 11 of such contract which was executed on November 26, 1951. On or about April 29, 1952, the business agent of the Union requested Respondent ' s counsel, as representative of the Respondent , to bargain relative to a new contract . The counsel stated that upon the expiration of the contract on June 1, 1952 , the Respondent would refuse to re- cognize or bargain with the Union because it did not represent a majority of the Respondent's employees. On June 2, 1952, the Union filed the charge involved herein . On August 1. 1952, the complaint involved herein together with a notice of hearing scheduling this matter for hearing on August 15. 1952, was issued. On August 11, 1952 , while counsel for Respondent and counsel for the General Counsel were conferring in the latter' s office, a letter from the Union , dated August 8, 1952, was delivered by registered mail at the office of counsel for Respondent . This letter stated Local #348 of the Bakery and Confectionery Workers International Union of America requests that you immediately set a date and time to negotiate a new contract relative to the Squirrel Brand members of Local #348. At the conference on August 11, 1952 , the aforementioned letter of August 8, 1952, was discussed and counsel for the General Counsel asked the union representative present to request verbally that a new contract be negotiated . Respondent's counsel answered that he could not either refuse or accede to the request because of the pendency before this Board of the current complaint. By letter dated August 11, 1952, received by Respondent' s counsel on August 12, 1952, the Union advised Respondent's counsel: Local 348 of the Bakery and Confectionery Workers' International Union of America requests that you immediately set a date and time for a conference for the purpose of negotiating a new contract relative to the Company ' s employees who are in the collective bargaining unit represented by this Union.i Please note that in the letter sent to you under date of August 8th 1952 we inadvertently referred to the Squirrel Brand Members of Local #348. We intended the bargaining conference to pertain to the Squirrel Brand employees represented by this Union. 3 The contract states "any regular employee who is a member of the Union in good standing as of the start of work on November 29, 1951, shall , as a condition of continued employment, maintain such membership in the Union during the life of this agreement. The Company shall instruct its superintendent, foremen and employees engaged in a supervisory capacity to co- operate in every proper and lawful way to assist in retaining members in the Union." 41t was agreed at the hearing herein that this was the same request for negotiation that was made orally on August 11, 1952. SQUIRREL BRAND CO., INC. 297 There was no reply to the Union's letter dated August 11, 1952. It appears from the remarks of counsel made at the hearing herein that the parties considered this letter a repetition of the oral request of August 11, 1952, and that no reply other than that given on August 11 was anticipated. Conclusions The Act makes it an unfair labor practice for an employer "to refuse to bargain collective- ly with the representative of his employees, subject to the provisions of section 9 (a)." Section 9 (a) provides that representatives designated or selected for the purposes of collective bargaining by a majority of the employees in an appropriate bargaining unit shall be the exclusive representative of all employees in such unit. It thus appears that before there can be an unlawful refusal to bargain, two initial condi- tions must be met, namely: (1) The unit for which the union seeks to bargain must be appropriate. (2) The union must represent a majority of employees in this unit. As noted above, the Board adopted Trial Examiner Whittemore's findings that a unit of Respondent's employees appropriate for the purposes of collective bargaining within the meaning of the Act consists of: All production employees at its Cambridge plant, including the shipping room and truck drivers, but excluding office and clerical employees inaintenance employees, professional employees, guards, watchmen, and all supervisors as defined in the Act. The Board also adopted Trial Examiner Whittemore's findings: (1) On November 4, 1950, a majority of the employees in the appropriate unit had designated the Union as their representative for the purposes of collective bargaining, and (2) on that date and at all times since then the Union was and has been the exclu- sive bargaining representative of all employees in the appropriate unit. In the proceeding before Trial Examiner Whittemore, Respondent contended, as it apparently does herein, that because of the outcome of the election of November 28, 1950, it was priv- ileged to refuse to bargain with the Union because of good-faith doubt of the Union's major- ity This contention was rejected by the Trial Examiner and by the Board. In addition, the Board in its Decision and Order found that "no genuine question concerning representation existed at any time" and that the election was a "nullity."5 The record before the undersigned does not contain any additional evidence indicating the basis for Respondent's assertion that the Union after June 1, 1952, did not represent a majority, except for the fact: That on October 22, 1951 16 employees of the Respondent, all being members of the Union, engaged in a strike against the Respondent and actively picketed the Respondent's premises for the purpose of compelling the Respondent to bargain collectively with the Union The mere fact that only 16 of 70 employees engaged in the strike and picketing does not establish a lack of interest in being represented by the Union Numerous circumstances, not connected with representation, may have affected participation in this activity. For example, in view of Respondent's prior unfair labor practices (especially its discriminatory dis- charges) employees may have feared reprisals for such activity. (See Franks Bros v. N.L.RB., 321 U. S. 702, 704.) The law is well settled that where a union has been designated as the bargaining agent by a majority of the employees its majority status is presumed to continue until circum- stances appear which rebut that presumption and justify an employer to refuse to bargain. Medo Photo Supply Corp. v. N.L.R.B., 321 U. S. 678; Franks Bros. v. N.L.RB., 321 U. S. 5The undersigned deems himself bound by the Board's findings and rulings in the prior proceeding. At the hearing Respondent agreed that these matters should not be relitigated herein. 29 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 702; N. L.R.B. v . Tower Hosiery Mills, 180 F 2d 701 (C.A.4) and cases cited therein 6 Also a Board order which requires an employer to bargain with a designated union, in effect places the union in a position of a newly certified bargaining representative and is tantamount to a certification of the union as bargaining representative (see Marshall and Bruce Co., 75 NLRB 90) and must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed (see Franks Bros . v. N.L.R.B, 321 U. S. 702, and N. L.R.B. v Tower Hosiery Mills , 180 F . 2d 701). Thus it appears that Respondent was obliged to bargain with respect to conditions of employment after June 1. 1952, absent circumstances justifying a refusal to do so. As noted above, the Board found (on September 14, 1951) that the Union represented a majority on November 4, 1950 , and that there were no circumstances rebutting the pre- sumption that its majority status continued or justifying a claim of good -faith doubt of the Union's majority . Furthermore, the undersigned believes and finds , on the basis of the record herein , that no such circumstances existed after the date of the events discussed in the Board' s Decision and Order. Respondent contends , in substance, that the effects of its violations of the Act have been dissipated by the contract (by compliance with the Board ' s order of September 1951) ef- fective November 29, 1951 , and that after its expiration Respondent was privileged to refuse to bargain unless shown current proof of majority This contention is without merit. As noted above , the statute requires that an employer be not permitted to go behind the major- ity status of the designated representative until circumstances appear indicating a revoca- tion of the authority given the bargaining agent. Surely , neither the Board's Decision and Order nor the contract indicates such a revocation . The mere fact that only 16 employees engaged in the strike and picketing is not sufficient , under all the circumstances herein, to warrant a finding of such revocation or a finding of good-faith belief that such was the case. Furthermore, to honor Respondent' s claim would in effect approve its contention, made in the prior case and rejected therein, that because of the outcome of the election of November 28, 1951, it was privileged to refuse to bargain , would permit Respondent, by its own conduct , to "disestablish" the Union as the bargaining representative and would allow Respondent " to profit by its own wrong." An issue was also raised as to whether the Board ' s order of September 14, 1951, per se, continued Respondent' s obligation to bargain after June 1, 1952 . However , the undersigned believes this issue not important to a decision herein and , in view of the foregoing, is not resolving this issue . (See N. L.R.B. v . Jarka Corporation of Philadelphia , 198 F. 2d 618 (C. A. 3).) Respondent seems to contend , in this case, that the Union' s requests to bargain were not made upon a proper company official. However , the record reveals that Respondent's attorney had at least ostensible authority to receive bargaining requests and was a proper person to whom to address such requests . 7 Furthermore , prior to the hearing herein, Re- 6 In the Medo case Chief Justice Stone said: The Statute guarantees to all employees the right to bargain collectively through their chosen representatives. Bargaining carried on by the employer directly with the em- ployees, whether a minority or majority, who have not revoked their designation of a bargaining agent, would be subversive of the mode of collective bargaining which the statute has ordained. [P. 684] ... orderly collective bargaining requires that the employer be not permitted to go behind the designated representatives ... prior to such a revocation.[P. 685] 0 Petitioner cannot, as justification for its refusal to bargain with the Union, set up the defection of Union members which it has induced by unfair labor practices, even though the result was that the Union no longer had the support of a majority. It cannot thus. by its own action, disestablish the Union as the bargaining representative of the employees, previously designated as such of their own free will. [P. 687] 7 In addition to the facts outlined above, the record reveals that by letter dated June 5, 1952, Respondent advised this Board, inter alia, its attorney " represents our company in matters pertaining to labor relations." SQUIRREL BRAND CO., INC. 299 spondent did not assert any lack of authority on the part of its attorney as a ground for refusing to bargain (see James Thompson & Co., Inc., 100 NLRB 456) Respondent asserts that it was justified in refusing to bargain in August 1952 in view of the pendency of this proceeding . This contention is without merit . (See Union Carbide and Carbon Corp , 100 NLRB 689.) The evidence does not reveal that employees in the unit freely revoked their designation of the Union as their bargaining agent and there is no evidence that Respondent was faced with conflicting claims as to representation . In short, the evidence does not reveal that a question concerning representation of employees ever existed or that Respondent questioned the Union ' s majority status in good faith . In such a situation Respondent ' s position, that it was entitled to await the results of this proceeding, is not indicative of an acceptance of the principle of collective bargaining but rather reflects an attempt to utilize an apparent, though not actual , opportunity to capitalize upon its illegal conduct and thus postpone performance of its statutory obligation to bargain ULTIMATE FINDINGS AND CONCLUSIONS In view of the foregoing , and upon consideration of the entire record , the undersigned finds and concludes that: (1) Respondent is engaged in commerce within the meaning of the National Labor Relations Act, as amended (2) Local 348, Bakery and Confectionery Workers International Union of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act (3) The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 of the Act All production employees , including the shipping room and truckdrivers , but excluding office and clerical employees , maintenance employees , professional employees , guards, watchmen, and all supervisors as defined in the Act (4) On November 4, 1950, a majority of the employees in the aforementioned unit had designated the Union as the.: representative for the purpose of collective bargaining and on that day and at all times since the Union has been the exclusive bargaining representative of all the employees in the aforementioned appropriate unit. (5) On or about April 29 , 1952, and at all times thereafter, Respondent unlawfully refused and has continued to refuse to bargain collectively with the Union as the representative of the employees in the unit heretofore found appropriate (6) By the aforesaid refusal to bargain Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the Act. THE REMEDY Since it has been found that Respondent has engaged in unfair labor practices , it will be recommended that Respondent take the action hereinafter specified in order to effectuate the policies of the Act [Recommendations omitted from publication.] 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 NOT engage in any acts in any manner interfering with the efforts of Local 348, Bakery and Confectionery Workers International Union of America , AFL, to negotiate for or represent the employees in the bargaining unit described below. WE WILL bargain collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay , hours of employment, or other conditions of employment , and if an under- standing is reached , embody such understanding in a signed agreement. The bargaining unit is: 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production employees , including the shipping room and truckdrivers , but excluding office and clerical employees, maintenance employees , professional employees , guards, watchmen, and all supervisors as defined in the Act. All our employees are free to become or remain members of the above -named union or any other labor organization. SQUIRRELL BRAND CO., INC., 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 ARVIN INDUSTRIES, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL, Petitioner. Case No. 35-RC-863. April 22, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John W. Hines, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Murdock and Peterson]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 3. No question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Petitioner seeks a unit of production and maintenance employees at the Employer' s operations in Franklin, Indiana. The Employer and Franklin Industrial Workers Union, the Intervenor herein, contend that their current contract operates as a bar to the instant petition. The Petitioner alleges that the contract is not a bar (1) because its petition was filed timely and (2) because the contract contains an unlawful union-security clause. Since 1945, after Board certification of the Intervenor, the Employer}, and the Intervenor have negotiated a series of bargaining contracts. In February 1950, the parties entered Into a contract with an expiration date of February 28, 1953, t Before July 1950 the Employer operated under the name of Noblitt Sparks Industries, Inc. 104 NLRB No. 42.