Armstrong & Hand, Inc.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD privileged to refuse to bargain with the Union at any time following the strike despite the pendency of the rival union's petition. For, under well-established principles, no valid question concerning representation could exist while the Respondent's unfair labor practices remained un- remedied,m and any loss of majority which might have occurred could be attributed to the Respondent's unlawful conduct. In the light of this holding as to the continuing duty of the Respondent to bargain, I would also find, in accord with the conclusion of the Trial Examiner, that the Respondent's unilateral increases in rates of pay and in employee benefits, constitute per se violations of Section 8 (a) (5) and (1) of the Act. In view of the foregoing, I need not and do not pass upon the other unfair labor practice issues considered by my colleagues. 20 See N. L. R. B. v. Franks Bros., 321 U.S. 702; John Deere Plow Company, 82NLRB 69; Pacific-Gamble Robinson Co., 88 NLRB 482; Metropolitan Life InsuranceCo., 91 NLRB 473 ARMSTRONG & HAND, INC. and DISTRICT LODGE 37, INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Case No. 39-CA-272. April 28, 1953 DECISION AND ORDER On February 25, 1953, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled pro- ceeding, 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 affirma- tive action, as set forth in the copy of the Intermediate Re- port attached hereto. Thereafter, the Respondent filed excep- tions 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 Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following corrections, additions, and modifications. 1. We agree with the Trial Examiner's finding that the Respondent refused to bargain with the Union on December 19, 1951, and at all times thereafter, in violation of Section 8 (a) (5) and (1) of the Act. However, as the Intermediate Report omits some, and does not discuss fully other, factors we deem material to this finding, we set forth below some of the crucial facts and the basis for our concurrence. I Pursuant to the provisions of Section 3 (b) of the Act, the Board delegated its powers in connection with this case to a three- member panel[Members Houston, Styles, and Peterson]. 104 NLRB No. 70. ARMSTRONG & HAND, INC. 421 On December 10, 1951, the Union won a consent election and was certified by the Regional Director as the bargaining agent of the Respondent's shop employees. On December 19 the Respondent's president, Dawson, and manager, Prikryl, met with the Union's business agent, Houser, and members of the Union's shop committee. Houser there presented to Dawson and Prikryl a written proposal for a contract, but the company representatives refused to discuss its provisions. Instead, Dawson announced that he had prepared and intended to post on the bulletin board that day certain notices which affected the employees' working conditions, and, further, that any wage in- crease or decrease "would be up to Mr. Evans," the shop su- perintendent. Reluctantly, Dawson permitted Houser to read the prepared bulletins, about which the Union had not been previ- ously consulted. After reading them, Houser vigorously pro- tested, contending that by posting such rules and regulations, the Respondent was "attempting to circumvent the certified bar- gaining agent ." Yet Dawson proceeded to have them posted, and, in the period from December 19 to 25, granted without the Union's prior knowledge wage increases to some of the shop employees. By their terms,2 the posted rules became effective immedi- ately. 3 They contained, inter alia, an illegal nonsolicitation provision, discussed hereinafter, and a statement: "It will not be possible to draw up any working agreement with the union until fuller understanding is had between the management and shop employees. . . ." [Emphasis added.] Thus, at the threshold, the Respondent required an "understanding" with the employees as a prerequisite to agreement with the Union, and clearly demonstrated that the Respondent had no current intention of bargaining in good faith with the Union. On December 21 the second meeting was held. Againnoprog- ress was made toward reaching an agreement . However, President Dawson testified that at this meeting he suggested that Manager Prikryl meet with the Union and "get what I 2The first paragraph of 1 of the 2 notices read : "As of this date wage policies, hiring and discharge practices, etc., will be the same as our parent corporation, Houston Equipment Co., Inc. (HECO)." [ Emphasis added.] The other notice began: "Until further noticethe fol- lowing actions or circumstances will be considered sufficient reason for immediate (as-of- the-hour) discharge." 3The record clearly disproves Respondent's claim that these rules and regulations had been in effect before this date, or that the notices set forth policies decided on'and communicated to the employees before the advent of the Union . Although one of the notices referred to the 44-hour workweek, which had been put into effect on October 15, 1951, the other rules re- ferring to (1) the supervision of Shop Superintendent Evans, who was being transferred there from the parent corporation, ( 2) requirement of greater individual output , (3) work assignments, (4) overtime restrictions . (5) use of locker rooms, ( 6) hiring procedure without reference to union hall, ( 7) grievance procedure, and (8) the 16 grounds for immediate dis- charge, had never before been announced or put into effect. To the contrary , benefits, not restrictions, had been promised by President Dawson who, according to Manager Prikryl, told the employees on October 15 that the conditions there "would be brought up to the level of HECO, or better." No mention was made then of such things as grounds for discharge. It is clear that the preelection agreement pertained only to changes before the election. Accordingly, we do not adopt the Trial Examiner 's finding that the posting of the notices after the election and certification, without prior consultation with the Union, was a violation of the preelection agreement, and we reject his reasoning thereon. 283230 0 - 54 - 28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called the ginger bread out of the way. By that I mean in the agreement there seemed to me to be a lot of things that were covered in the notice I had posted and would be covered in any sensible agreement." [Emphasis added.] At the next meeting, on December' 26, Manager Prikryl represented the Company, and evidently followed his superior's instructions to get the "ginger bread" out of the way. He agreed to the preamble of the Union's proposal, to provisions dealing with recognition of the Union, adjustment of grievances, night-shift premium, safety and sanitation , bulletin boards, and jury service, and to parts of the provisions dealing with over- time, hours of service, seniority, arbitration, and vacations. The parties reached no agreement on the following substantial issues: Rates of pay, paid holidays, checkoff of union dues, and termination clause, as well as such matters as overtime for Saturday work, 3 weeks' vacation for 10 years' service, 4 hours of callout pay, and the Company's proposal that "skill" be an additional factor in applying seniority. The January 8, 1952, meeting lasted only a short time, with nothing accomplished. Thereafter, on January 13, the Union took a strike vote, and next met with the Respondent on January 30. At this meeting, President Dawson as well as Manager Prikryl was present for the Company. An agreement was not reached, 4 and Houser threatened the Company with a strike, upon approval of such action by the Union's Grand Lodge, unless the Company either signed a contract or pre- sented a counterproposal. Sometime after the January 30 meeting, Prikryl promised to submit a written counterproposal to the Union.5 Not receiving the proposal by February 12, Houser wrote the Company, formally requesting "a written labor agreement proposal you are willing to sign and have become effective immediately." The Respondent, in its February 15 reply, promised to "make what progress we can toward drawing up a fair labor agree- ment contract, but we have no intention of submitting such an agreement within the seven days which you now demand." Then, revealing its animus toward the Union and its conviction that by its unilateral action it was succeeding among the em- ployees in counteracting the Union, the Respondent added: "We feel that the bulk of our employees are convinced that the new management is going to continue to improve working condi- tions, wages, etc., . . . regardless of your trouble-making 4The Trial Examiner incorrectly referred to the Union's proposal for a checkoff of union dues as a "demand for a union shop." The Respondent asserts that the Trial Examiner was also in error in stating that such union- security issue and the paid holidays were the principal points of contention between the parties at this time . Even assuming that there were other principal issues at the January 30 meeting, we still agree with his finding of bad-faith bar- gaining. 5The Trial Examiner found that in the address President Dawson made to the employees shortly after the January 30 meeting, Dawson told them that the Respondent was willing to sign a contract with the Union provided it withdrew two particular demands . As this finding is based solely on hearsay, we do not rely upon it. ARMSTRONG & HAND, INC. 423 attempts to turn our employees against our management." [Emphasis addeda6 Again, on February 25, Houser wrote the Respondent: "This is to confirm our telephone conversation of this date, at which time you were requested to comply with our February 12th communication within the next three (3) days, otherwise there will be a picket line placed on your plant Thursday, February 28, 1952." In the meantime, the parties met on February 27, at which time Houser presented a modified union proposal, which withdrew the provisions for checkoff of union dues and for 3 weeks' paid vacation after 10 years of service, added the word "skill" as a factor in applying seniority, and reduced the proposed rates of pay 5 cents an hour. In the negotiation at this meeting, Houser also agreed to delete the provisions concerning hours for the first and second shifts, to substitute a no-strike clause for a clause prohibiting supervisors from using the tools of the trade, and to reduce the callout time from 4 to 2 hours. There remained the issues of "just cause" for discharge, classifications and rates of pay, and the termination clause.' On the issue of discharge for "just cause," the Respondent admits that it sought a definition incorporating the "List of Immediate Discharge Offenses," which was posted on December 19,8 and which we agree with the Trial Examiner included an illegal nonsolicitation rule, discussed hereinafter. After making the various concessions, the Union again insisted on the Respondent either signing a contract' or 6 The new management had taken over the practically bankrupt Company on October 15, 1951, at which tune President Dawson, though not granting an hourly wage raise , increased the number of hours to be worked from 40 to 44 per week, promised not to take away over- time made early in the week, and told the employees that conditions "would be brought up to the level of HECO , or better." As noted above, individual wage raises were granted, without the Respondent consulting the Union, on and after December 19, and other changes in work- ing conditions were unilaterally made on that date. 7 The Trial Examiner incorrectly found that the only issue between the parties was the one relating to discharges. Contrary to the Respondent's contention, the Union 's proposal that a wage reopening clause, reserving the right to the Union to strike if the parties failed to agree on the modifications within 60 days, was not violative of Section 8 (d) of the Act Wilson & Co., Inc., 89 NLRB 310. Moreover , the record does not support the Respondent's contention that the Union was adamant in its demand for this clause . On the contrary, the Respondent, in effect, admitted that this was not a major issue by reporting in its letter to the Board representative on February 26, 1952, that "Houser ... stated in later sessions ... that the new wage rates were ample and that the only real issue was the check off. When we told him we would not grant this he immediately threatened to strike the plant." Contrary to the Respondent's contention, we further find nothing in the record to support its assertion that the Union was not bargaining in good faith. 8Although the Respondent had requested that the words in the Union's proposal, "Dis- charge for just cause," be deleted entirely (which would have had the effect, as found by the Trial Examiner, of permitting the Company "to discharge with or without cause"), we do not agree with him that the Respondent "insisted" on such a deletion . It was the Respondent, not the Union, which proposed that the clause be "spelled out." 9 The Union desired the Respondent to sign the modified proposal, which was to incorporate the additional concessions made by the Union at the February 27 meeting , or a contract like the Long Reach contract. President Dawson admittedly agreed to sign the latter type contract, but before realizing that it contained provisions for 6 paid holidays and 3 weeks ' vacation after 10 years' service. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presenting a counterproposal as it had promised. The Re- spondent refused.10 Thereupon, Business Agent Houser re- iterated the Union's position that the Respondent either do so, or the Union would "throw up a picket line." The Respondent still refused, and the meeting broke up with the Union rein- stating its request for dues checkoff. As found by the Trial Examiner, the Union waited until March 10, 1952, to establish the picket line, in the hope that in the interim the Respondent would change its position. Then, on March 10, when the Union began picketing, the Respondent posted a seven-page document styled "Articles of Agreement Between Armstrong and Hand, Inc., and Arm- strong, & Hand, Inc., Employees," which contained many of the items covered by the Union's proposal." It granted two 5-cent wage increases, effective September 1, 1952, and March 1, 1953; provided that Labor Day would be a paid holi- day; and granted other benefits never offered to the Union. It patently demonstrated thereby its unwillingness to make counterproposals to the Union, for it took the very agreemett, which might well have served as a basis for further negoti- ation with the Union, and promulgated it unilaterally to inaugurate new terms and conditions of employment, in derogation of the Union. Moreover, the preamble revealingly recited: "Section 1. This unilateral (one-way) agreement consists of a set of guarantees granted by Armstrong and Hand, Inc., to its shop employees in order to assure them that the corporation is anxious to reach a reasonable working agreement with them even though the IAM union business agent supposedly representing them has prevented sensible bargaining and relationships." [Emphasis added.? Fifteen days later, on March 25, representatives of the Employer and the Union met, and President Dawson admittedly refused to negotiate while the picketing continued. Since that date the parties have not met, though the Union has expressed its desire to resume negotiations. In view of (1) Respondent's refusing to negotiate on De- cember 19, 1951, in the meeting with the certified bargaining agent of its employees, and simultaneously announcing to its employees that an understanding with them was a prerequisite to agreement with the Union, (2) its relegation of wage deter- minations to the unilateral determination of its shop super- intendent, (3) its posting of changes in working conditions on December 19 without prior consultation with the Union, (4) its unilateral granting of wage raises from December 19 to 25, (5) its refusal to present a counterproposal under the circumstances of this case, (6) its posting of the "Articles of Agreement" on March 10, 1952, inlieuof making a counter- proposal, (7) its outright refusal to bargain on March 25 and 10As there is no support therefor in the record, we overrule the Trial Examiner's finding that the Respondent also refused to sign an agreement embodying the matters agreed upon. ttBeginning with a preamble, the document contained provisions relating to coverage, representation, hours of work, classifications and rates of pay, seniority , bulletin boards, grievances, arbitration, night-shift premium, jury service, safety and health, management prerogative, and terms of agreement. ARMSTRONG & HAND, INC. 425 thereafter, and (8) its conduct throughout the negotiations, we are convinced that the Respondent, while at times going through the motions of bargaining, did not negotiate with the Union with an open mind and a sincere purpose to find a basis for agreement. We therefore concur in the Trial Examiner's finding that the Respondent's conduct during the negotiations with the Union failed to meet the standard of good-faith bargaining required by Section 8 (d) of the Act, and constituted refusal to bargain in violation of Section 8 (a) (5) and (1) of the Act. Moreover, we find that Respondent's unilateral action with respect to wages and working conditions, as outlined above, and its outright refusal to negotiate with the Union during the strike, constituted independent violations of Section 8 (a) (5) and (1) of the Act. 2. As we have found, above, that the Respondent's unilateral action in posting the notices on December 19, 1951, was both per se a violation of Section 8 (a) (5) and (1),and an integral part of the bad-faith bargaining on the part of the Respondent, we do not concur in the Trial Examiner's finding that the posting of the notices was also an independent 8 (a) (1) violation. 12 We agree, however, that the nonsolicitation rule contained therein, providing for immediate discharge for "Union activity on company time or on company remises" [emphasis added], was an independent 8 (a) ( 1) violation." 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, Armstrong & Hand, Inc., Houston, Texas, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employ- ment with District Lodge 37, International Association of Machinists, AFL, as the certified exclusive representative of 12Stow Manufacturing Co., 103 NLRB 1280. is We reject the Respondent's contention that its restraint of union activities was reason- able, in view of another provision in the posted notices , reading: "Locker rooms are not to be used as union recruiting halls although the management feels the shop employees are due some privacy under present circumstances , and the management will avoid using locker rooms as much as possible . In the event that shop employees desire to use locker rooms for any private meetings before, during, or after working hours, they need only to give the Shop Superintendent immediate notice to assure complete privacy." Assuming without deciding that the quoted provision had a modifying effect on the nonsolicitation rule , we should never- theless find the restriction against union solicitation to be violative of the Act. The Board has held that the requirement that employees obtain permission to engage in union activities on company property on their own time is an 8 (a ) ( 1) violation. Grand Central Aircraft Co., Inc., 103 NLRB 1114. The notices also contained two additional prohibitions , restricting protected concerted activity on the part of the employees . The provisions forbade : "Contacting and talking to prospective employees ... at lunch time in shop ..." and "Griping on company premises about the rates of pay or work output of others ..." However, as no exception was filed to the Trial Examiner 's failure to find these additional violations, we make no finding thereon. 42 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all production and maintenance employees , including truck- drivers , exclusive of office clerical employees , watchmen, guards, professional employees , foundry employees , and su- pervisors as defined in the Act. (b) Issuing or enforcing a rule prohibiting or requiring per- mission for union solicitation on company premises during employees ' nonworking time. (c) Posting unilateral notices of wages and other company policies , or granting unilateral "guarantees " to shop em- ployees, or taking any other unilateral action in derogation of the above -named Union ' s right to act as the exclusive repre- sentative of the employees in the above -described unit, with respect to any matter properly subject to the collective- bargaining process. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self- organization , to form labor organizations , to join or assist the above -named organization , or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively concerning rates of pay, wages, hours of employment , and other conditions of employment with District Lodge 37 , International Association of Machinists , AFL, as the certified exclusive representative of all employees in the aforesaid appropriate unit, and if an understanding is reached , embody such understanding in a signed agreement. P (b) Rescind immediately its rule forbidding or requiring per - mission for union activity on company premises insofar as it forbids or requires permission for union solicitation on em- ployees ' nonworking time. (c) Post at its plant in Houston , Texas, copies of the notice attached hereto and marked "Appendix A."14 Copies of such notice , to be furnished by the Regional Director for the Sixteenth Region , shall , after being duly signed by Respondent's authorized representatives , be posted by Respondent immed- iately upon receipt thereof , and maintained by it for sixty (60) consecutive days thereafter , in conspicuous places, in- cluding all places where notices to employees are custom- arily posted . Reasonable steps shall be taken by Respondent to insure that such notices are not altered , defaced , or covered by any other material. 14 In the event that this Order is enforced by a decree of the United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ARMSTRONG & HAND, INC. 427 (d) Notify the Re ional Director for the Sixteenth Region in writing within ten (10 ) days from the date of this Order what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify you that: WE WILL bargain collectively, upon request, with District Lodge 37, International Association of Machinists, AFL, as the certified exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed contract. The bargaining unit is: All production and maintenance employees of Armstrong & Hand, Inc., Houston, Texas, including truckdrivers, but excluding office clerical employees, watchmen, guards, professional employees, foundry employees, and supervisors as defined in the Act. WE HEREBY rescind our rule forbidding or requiring permission for union activity on company premises insofar as it forbids or requires permission for union solicitation on employees' nonworking time. WE WILL NOT post unilateral notices of wages and other company policies, or grant unilateral "guarantees" to shop employees, or take any other unilateral action in derogation of the above-named union's right to act as the exclusive representative of our employees in the above-described unit, with respect to any matter properly subject to the collective-bargaining process. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named organization, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. All our employees are free to become, remain, or to refrain from becoming or remaining , members of District Lodge 37, 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists, AFL, or any other labor organization except to the extent that such rights may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. ARMSTRONG & HAND, 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. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge duly filed on March 25, 1952, by District Lodge 37, International Association of Machinists. AFL, herein called the Union , the General Counsel of the National Labor Relations Board , herein called the General Counsel and the Board, issued his complaint on July 22, 1952, against Armstrong & Hand, Inc., Houston, Texas, herein called the Respondent, alleging violations 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 charge and of the complaint , together with notice of hearing thereon, were duly served upon the Respondent and the Union With respect to the unfair labor practices , the complaint alleged in substance that the Respondent (1) since on or about December 19, 1951 , refused to bargain collectively with the Union although the Union had been designated and selected the collective-bargaining repre- sentative by Respondent ' s employees in a certain appropriate unit by a majority of said em- ployees in an election conducted by the Board on or about November 30, 1951, and (2) engaged in certain stated conduct which interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent duly filed an answer to the amended complaint denying the commission of the alleged unfair labor practices. Pursuant to notice, a hearing was held before the undersigned , the duly designated Trial Examiner , at Houston , Texas, on November 24, 25, and 26 , 1952. The General Counsel and the Respondent were represented by counsel, and the Union by lay representatives. Full opportunity was granted the parties to be heard, to examine and cross-examine witnesses, and to introduce evidence pertinent to the issues . At the conclusion of the taking of the evi- dence, the General Counsel moved to conform the pleadings to the proof with respect to minor matters such as names, dates , and the like. The motion was granted without objection. The parties waived oral argument The parties were advised of their right to file proposed find- ings of fact and conclusions of law based thereon, and briefs in support of their respective positions . Briefs were received from the General Counsel and counsel for Respondent on or about January 12, 1953, and have been duly considered by the undersigned. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Armstrong & Hand . Inc., the Respondent herein, is a Texas corporation with its principal office and place of business located at 2701 Foote Street , Houston , Texas. It is engaged in the manufacture, sale, and distribution of steel castings and related products , and is a wholly owned subsidiary of Houston Equipment Corporation, of which more anon hereinafter. The Respondent in the course and conduct of its business operations at its Houston , Texas, plant during the 12 -month period ending July 1952 , which period is representative of all ARMSTRONG & HAND, INC. 429 times material herein , sold products consisting principally of steel castings valued in excess of $50,000 . of which more than 75 percent was shipped in interstate commerce from its Houston , Texas, plant to points outside the State of Texas, said products being purchased by the United States Army Engineers to be used in connection with engineering projects The Respondent concedes and the undersigned finds that it is engaged in interstate com- merce within the meaning of Section 2 (6) and (7) of the Act as amended II. THE LABOR ORGANIZATION INVOLVED District Lodge 37 . International Association of Machinists . AFL, is a labor organization within the meaning of Section 2 (5) of the Act III. THE ALLEGED UNFAIR LABOR PRACTICES Though the complaint alleges that the Respondent has refused to bargain in good faith with the Union since on or about December 19, 1951, the undersigned is convinced that a resume of the events prior to that date is in order so that we may properly understand the atmosphere in which the parties met after the Union was certified as the exclusive bargaining agent of the Respondent's employees in the unit found appropriate by the Board. From what the undersigned gleans from the record the Union commenced its organization drive amongst the Respondent' s employees sometime in the latter part of September or early in October 1951. On October 4, 1951, the Union wrote the Respondent that it represented a majority of its employees and requested recognition as their exclusive bargaining representa- tive. Receiving no reply to this letter the Union then resorted to the processes of the Board and filed a petition for certification of representative pursuant to the provisions of Section 9 (a) and (c) of the Act.i At about this same time the then owners of the Respondent were contemplating a sale of their interests to a group of individuals who owned and/or controlled a majority of the stock in the Houston Equipment Company, Inc , of Houston, Texas, hereinafter referred to as Heco The latter company was engaged in a line of business similar to that of the Respondent Company. Though not exactly competitors their businesses complemented one another, that is, the equipment in the Respondent ' s plant was designed to machine and tool heavier castings and the like than that used by the Heco plant. The then owners of 95 percent of the Respondent Company's stock and actively engaged in its operations were Messrs . James C Pace and Wilbur J Dedman , both of Houston, Texas A description of the operations of the Respondent Company and that of Heco, as well as the ownership of both enterprises , is well described in the credible testimony of R. J. Crump, vice president and treasurer of the Respondent Company at the time of the hearing herein. It follows below: Q. When did Heco acquire the ownership of Armstrong & Hand, Inc ? A. It acquired it on a conditional basis on 15 October 1951 We had about a month, as I recall it , exactly a month in which to determine whether or not we would finalize our ownership of that corporation. Q. You use the word "we." Would you designate to whom you refer? A. By "we," at that point I refer to the Houston Equipment Company Q. Now, who owned Houston Equipment Company immediately prior to October 15, 19529 A. Mr R. A. J. Dawson, Joseph R. Crump , Walter J. Grace, Mrs R A. J. Dawson, W. W. Reeder, Lionel Wheeler . I think those are substantially all the major stock- holders. Q. All right, sir. Who actively operated HECO? A. Mr. Dawson, myself, on a part-time basis, though I was active in the management, not full time; Mr. Reeder, Mr. Wheeler. Q, What type of business did Armstrong & Hand , Inc. conduct and do on or about October 15, 1951 and immediately prior thereto? A. They were primarily what we call a job shop. They accepted contract and repair work of a highly specialized nature as distinct from engaging in repetitive manufacture of certain types of equipment or certain articles. Q. what type of goods or articles did they process in that plant? A. They manufactured , under individual contract , large pieces of equipment , such as, dredge heads for the Corps of Engineers , lock parts and gates for large dams; they iCase No. 39-RC-376-- General Counsel's Exhibit No. 11. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD repaired calendar rolls or even manufactured calendar rolls and large pulleys. They manufactured repair parts for large Diesel engines. They repair Diesel engines; manu- factured large parts for marine pumps. That's the general picture. Q. What type of work was HECO engaged in at that time? A. HECO was engaged both in contract work and in manufacture of a specific line of equipment. HECO accepted contracts for special manufacture. They also manufactured equipment for pipe line industry. The work at HECO, on the whole was lighter than the work at Armstrong & Hand, that is to say, the machinery that was used and the equip- ment that was built were smaller. The machine tools at Armstrong & Hand in general are heavier than at HECO, but the general line of work is the same. Q. All right, sir. Who were the owners of Armstrong & Hand, Inc immediately prior to October 15, 1951? A. There were two major stockholders who, if I recall correctly, owned about 95 percent of the stock of Armstrong & Hand, Inc., at that time. There were James C. Pace and Wilbur J. Dedman. TRIAL EXAMINER SHAW: Dedman? THE WITNESS. Yes, sir, D e-d-m-a-n. A. (continuing) Both of Houston, Texas, both active in the corporation. At the time the conditional sales agreement referred to in Crump's testimony was entered into between the parties on October 15, 1951, Armstrong & Hand, Inc., was in dire financial straits, in fact it was unable to meet its then current payroll. Moreover, the working con- ditions in the plant, to say the least, were bad, and the scale of wages below that paid in plants engaged in similar operations in the Houston area. With this in mind, R. A. J. Dawson, then president of Heco, and the then to be president of Armstrong & Hand, Inc., made a speech to the employees of Armstrong & Hand, Inc., on or about October 15, 1951, in which, generally speaking, he promised to improve their working conditions, and raise their wages to a point where they were comparable and in some respects higher than those paid at Heco, of which more anon. At this time the Respondent had about 20 employees in its machine shop and around 12 or 13 in its foundry. Prior to making the above speech to the employees and during the time Heco was con- templating the purchase of the Respondent's physical property and business, Dawson had met with Walter F. Prikryl, the then plant superintendent, and discussed with him the plant Heco had in mind in the event they purchased the plant. Among the matters they discussed were the working conditions in the plant. In the course of their conversation in this regard Dawson asked Prikryl to tell the employees that if and when Heco took over the plant their working conditions would be brought up to the standards then prevalent at Heco. Prikryl agreed and from what the undersigned can glean from the record d;d as requested, sometime around September 20, 1951. At the time Heco was negotiating with the owners of the Respondent they were assured by Messrs. Dedman and Pace that there was no union activity amongst their employees. Accord- ing to Crump the first the new owners of the Respondent Company knew of the Union's claim of representation of the employees in the plant was sometime around October 19, 1951, when they received a letter from Mr. Clifford W. Potter, officer-in-charge of the Board's Sub- regional Office in Houston, Texas, in which he made inquiry of the Respondent as to why it had not complied with his request for information needed in the Board's investigation of the Union's claim of representation of the employees in its plant. The new officers of the Re- spondent, that is, Messrs. Crump and Dawson, immediately got in touch with Mr Potter and according to both they then learned for the first time of the Union's claim of representation Shortly thereafter Potter arranged a meeting between representatives of the Union and the Respondent. The meeting was held in Potter's office on October 23, 1951 Present for the Union was A. H. Houser. senior business agent in charge of its Houston office, Messrs. Dawson and Crump for the Respondent, and Potter. During the course of the meeting Dawson and Crump "laid the cards on the table" so to speak ; and related to Houser and Potter the circumstances surrounding the purchase of the stock of the Respondent Company by Heco They recited the financial difficulties of the Re- spondent at the time Heco took over, the immediate need for some change in the working con- ditions of the employees, the financial arrangements Heco had made to pay for the stock of the Respondent's former owners, and in fact gavethose present a complete and honest picture of all the circumstances surrounding the change in ownership of the Respondent. Dawson in particular stressed the point that some assurance had to be given the employees of the Re- spondent that their working conditions would be improved under the new management in order to keep the plant in operation, and that it was for this reason he had made his speech to the ARMSTRONG & HAND, INC. 431 employees on October 15, 1951. The representatives of the Respondent also pointed out to Potter and Houser that in order to finance the purchase of the stock of the Respondent, Heco was forced to issue and sell its stock to investors in the Houston area, and that they, that is, Dawson and Crump, had assured prospective purchasers that there was no labor "problem" in the Respondent's plant. Consequently, they were afraid that if the Union persisted in its demand for an election amongst the Respondent's employees, the resulting publicity would tend to hurt the sale of Heco stock which was absolutely essential if the conditional sale was to be completed, and that if this occurred and the sales agreement "fell through," then all concerned would lose, so to speak, because the condition of the Respondent Company before Heco took over was in such a precarious financial condition that further operation of the plant was impossible. Houser , the Union' s representative, was impressed and as a result agreed to withdraw the Union's petition for an election. The upshot of the meeting is best stated in a letter drafted by Potter to the parties which is set forth in its entirety herein below. Houston Sub-Regional Office 306 Republic Building Houston 2, Texas October 23, 1951 Mr. J. R. Crump, Treasurer and Vice President Houston Equipment Company, Inc. 5515 Clinton Drive Houston, Texas Mr A. H. Houser, Senior Business Representative International Association of Machinists 712 Hermann Building Houston, Texas Gentlemen: Re: Armstrong & Hand, Inc. Case No. 39-RC-376 This letter is to confirm the understanding and agreement reached by you in my office on October 23, 1951. The Employer, Houston Equipment Company, Inc., has explained that it is in the proc- ess of attempting to purchase Armstrong & Hand, Inc., and to make a profitable and going business out of Armstrong & Hand, Inc. In order that the Company may be given full opportunity to accomplish this objective, the Union is `withdrawing, without prejudice, 'the petition which was filed in the above- captioned case` under date of October 9, 1951. You have mutually agreed that within thirty days you will execute a written agreement for a consent election, said election to be held within sixty days, or failing to enter into such agreement , that the Union will be at liberty after thirty days to file a new petition for investigation and certification. You have agreed that the eligibility date for the consent election to be held in connec- tion with a new petition will be as of October 23, 1951, at which time there are seven- teen persons employed in the machine shop unit which the Union and Company agree is an appropriate bargaining unit. You have also agreed that until a new petition has been filed and an election has been held, that the Employer will make no changes as to wages, hours , or conditions of em- ployment without first having informed the Union in writing of the desired or contem- plated changes. [Emphasis supplied.] On the basis of this understanding I have approved the withdrawal request filed by the Union in the above-captioned case. Sincerely, Clifford W. Potter Officer-in-Charge 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the above letter sets forth in clear and concise language a resume' of what trans- pired at the meeting of October 23, 1951 , the undersigned deems it unnecessary to recite herein at length the testimony of Dawson, Crump, and Houser in this regard, particularly since he is convinced and finds from the record as a whole that the letter is a fair and im- partial summation of their testimony in this regard. Suffice it to say that generally speaking there is little if any variance in their testimony in this regard, when considered in the light of the whole record Pursuant to the conditions set forth in the above letter the parties executed an agreement for a consent election on November 26, 1951. Under the terms of the agreement the election was to be held at the Respondent's plant on November 30, 1951. The election was held as scheduled, and a majority of the employees selected the Union as their exclusive representative for the purposes of collective bargaining with the Respondent On December 10, 1951, the Union was certified as the "exclusive representative of all the employees in the unit defined in the Agreement for Consent Election for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other con- ditions of employment."t The appropriate unit being as follows: 12. The appropriate collective bargaining unit - Included: All pt'oduction and maintenance employees, including truck drivers. Excluded: All other employees, including office and clerical employees, watchmen, guards, professional employees, foundry employees and supervisory employees as, de-` fined in the Act, as amended. There is no disagreement as to the appropriateness of the unit , consequently the undersigned finds as did the Board that the unit described above is appropriate for the purposes of col- lective bargaining. The first meeting of the parties after the Union was certified as the bargaining agent was held at the offices of the Respondent on December 19, 1951. Present for the Union was A. H. Houser, 8 its business agent, and Messrs Dawson and Prtkryl. At this meeting Houser presented to the representatives of the Respondent a written proposal for their consideration, and attempted to discuss its contents with them They refused to do so Houser then re- minded them that the Union had withdrawn its petition for an election at their request and had attempted to cooperate with the Respondent during the pendency of the transfer of ownership of the' Respondent' s business As the undersigned interprets the record, Houser ' s entreaties fell on deaf ears and no progress whatever was made at the meeting towards finding a com- mon ground as a basis for negotiating some sort of an agreement between the parties By and large the only important matter that was discussed by the parties at the meeting was Dawson's announcement that he had prepared and intended to post on the Respondent's bulle- tin board that date , December 19, 1951 , a list of rules and regulations that were to become effective at once. Houser asked Dawson what they were and after awhile Dawson reluctantly permitted him to read the prepared bulletin. Since the undersigned considers Dawson's ac- tion in this regard of the utmost importance in his ultimate findings , they are set forth in their entirety herein below: WAGE POLICIES EFFECTIVE DECEMBER 19, 1951 UNTIL FURTHER NOTICE As of this date wages, wage policies , hiring and discharge practices , etc., will be the same as our parent corporation , Houston Equipment Co., Inc. (HECO). The new Shop Superintendent , Mr. Tom Evans , will hire, promote, demote, and dis- charge -all shop personnel. The Shop Superintendent has been authorized to grant immediate and future pay in- creases up to certain ceilings for each type of work depending upon individual employee ability, attitude, industry, and output In other words, the shop employee will to some degree, "write his own pay check.- 2 Quoted portions from "Certification of Representatives," Case No. 39-RC-397. 3 Though the record indicates that members of the shop committee were present at this and subsequent meetings, the undersigned deems it unnecessary to set forth the name of each and every member at the various meetings, particularly because Houser actually presented the Union's position at most of the meetings, and for the further reason that the individuals on the shop committee changed from time to time. ARMSTRONG & HAND, INC. 433 These wage limit increases have been made partly at Evans suggestion with a view of attempting to have the same pleasant management-employee relationships that have existed for years at HECO. High wages have been maintained at HECO and men kept on the payroll during slack periods only because executives have been willing to do without current salary. HECO today owes many thousands in back salaries to several executives who own interests in the company. HECO has consistently paid higher top wages than other. Houston comparable concerns working under union work contracts , and Armstrong and Hand is likewise willing to attempt to do so even though it will quickly prove uneconomical unless additional individual worker interest, industry , and cooperation with the Shop Superintendent results in addi- tional production Wages will be reduced below their present level to a figure more representative of individual worker output or the worker will be discharged if individual production does not promptly increase. Employees will be given only logical assignments and their regular pay rate will be maintained even if they are asked to temporarily use other machines. All inside shop employees are expected to work 44 hours a week, more or less, and will not usually be laid off later in any pay week to avoid paying for overtime even above 44 hours a week Reasonable restrictions will sometimes be placed on the overtime allowed to be ac- cumulated by employees working outside the shop because we feel that employee effi- ciency falls off rapidly under extreme overtime conditions. Employees will be kept informed of the wage scales and working conditions in other Houston concerns comparable to Armstrong and Hand, Inc. Locker rooms are not to be used as union recruiting halls although the management feels the shop employees are due some privacy under present circumstances , and the management will avoid using locker rooms as much as possible . In the event that shop employees desire to use locker rooms for any private meetings before, during, or after working hours, they need only to give the Shop Superintendent immediate notice to assure complete privacy. Since the management does not believe that the certified union can or will assist A & H to get additional efficient and high class shop personnel the management will continue to hire any and all prospects regardless of affiliation or lack of same. Under present buss-•' ness conditions good men are naturally hard to find and only high wages (which are justi- fied by higher output) and superior working conditions can possibly influence the few good men available today. [Emphasis supplied.] It will not be possible to draw up any working agreement with the union until fuller understanding is had between the management and shop employees , and the management sincerely hopes that employees meet it half way. NOTICE: LIST OF IMMEDIATE DISCHARGE OFFENSES Until further notice the following actions or circumstances will be considered suffi- cient reason for immediate (as-of-the hour) discharge The Shop Superintendent has full authority to immediately discharge employees and has already been given instructions to discharge for the reasons below without con- ferring further with the management Any grievances of any sort are to be first taken up with the shop superintendent, and until further notice , subsequent appeal to the Manager or other corporate officials must take place through outside channels 1. Defacing, altering, destroying, removing, or writing upon notice posted by the management. 2. Reading of newspapers, magazines, periodicals, etc., on company time. 3. Union activity on company time or on company premises. [Emphasis supplied.] 4 Contacting and talking to prospective employees on company time (or at lunch time in shop) in attempts to influence them (Signs will be posted so that prospective employees will be routed to Shop Superintendent.) 5. Refusal to accept logical work assignments. 6. Refusal to accept or use new or more efficient tooling to increase output 7 Refusal to maintain maximum work output. 8. Impeding the work of others, or asking or threatening others because of increased production on the part of others. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 9. Griping on company premises about the rates of pay or work output of others. Union representative can take such matters up with Shop Superintendent. 10. Unfair criticism of any union. 11. Unfair criticism of A & H of HECO Shop Superintendents or managements. 12. Habitual useage of profane or sacriligeous language. 13. Any indication of past or present intoxication. 14. Gambling on premises. 15. Involvement in any outside matters leading to their arrest , confinement , or con- viction, past or present , under City of Houston, State of Texas, or U. S. Government Laws. 16. Insubordination. Upon reading the Respondent' s proposals , Houser protested and pointed out to Dawson among other things that by posting such rules and regulations the Respondent was "attempting to circumvent the certified bargaining agent," which he contended was a violation of the Act His protests were of no avail and the rules and regulations as set forth above were posted on the Respondent ' s bulletin board that date pursuant to President Dawson's instructions. As indicated above, no progress was made at the above -escribed meeting and as far as the undersigned -can determine about all that was accomplished was an agreement by the parties to meet again on December 21, 1951. At the meeting on December 21, 1951, the same individuals were present as the representa- tives of their respective principals . Again no progress was made towards reaching an agree- ment on any of the Union's proposals as set forth in its proposed contract. A third meeting between the Union and the Respondent was held on December 26, 1951. At this meeting Prikryl represented the Respondent and at the onset of the meeting advised the Union' s representative, Houser. that Dawson would not be present and had authorized him to represent the Respondent. The record shows that a great deal was accomplished at this meeting. Prikryl agreed to many of the Union ' s proposals and disagreed as to others There was give-and-take between the parties and as far as the record is concerned an atmosphere of cooperation prevailed throughout the meeting . At the close of the meeting the parties agreed to meet again at an early date. The next meeting was held on January 8 , 1952. Present for the Union were Houser and members of the shop comniiiiee. Prikryl represented the Respondent . The meeting lasted but a short time, and nothing was accomplished. The parties met again on January 30, 1952. The Respondent was represented by President Dawson and Superintendent Prikryl . Houser and members of the shop committee represented the Union . During the course of this meeting Dawson told the union representatives that he would sign an agreement similar to that which the Union had with a local concern , Long Reach Machine Works. Houser was familiar with the Long Reach agreement, having negotiated it with that company, and agreed to sign a similar contract with the Respondent. At the time Dawson offered to sign a contract similar to thL Long Reach agreement with the Union; he was not fully informed as to its terms . Upon being advised in this regard he withdrew his offer . The parties then discussed the Union' s original proposal and were unable to come td as agreement . According to the record the principal points of contention between the parties at this time were the Union's demand for a union shop and the question as regards paid bOli- days : On these two points they were unable to reach any agreement . As the undersigned interprets the record , considerable bitterness developed at this meeting between Houser and Dawson in their arguments over the Union's demand for a union shop. Neither would "give" on this issue. After considerable argument Houser told the representatives of the Respondent that the membership of the Union had taken a strike vote, and at that time were awaiting approval from the Grand Lodge of the Union to strike the Respondent's plant unless an agree- ment was reached between the parties.` In this atmosphere the meeting finally broke up. Shortly thereafter Dawson addressed the employees in the shop and during the course of his talk told them that the Respondent was willing to sign a contract with the Union providing it withdraw its demand for a union shop and 6 paid holidays.5 When Houser was advised of Dawson' s remarks he called a meeting of the union employees at which they agreed to with- draw their demand for a union shop and 6 paid holidays. Sometime after the January 30 meeting Houser talked to Prikryl and in the course of their conversation Prikryl promised to submit a written counterproposal to the Union. According to the record the Respondent to date has failed to do so. 4Upon the record as a whole the undersigned finds that the membership of the Union voted to strike the Respondent's plant to enforce their contract demands on January 13, 1952. SSee the testimony of the witness Floyd Preston Green. ARMSTRONG & HAND, INC. 435 Following the action of the union membership in authorizing Houser to withdraw the Union's demand for a union shop and the six paid holidays. Houser sent the following letter to the Respondent: REGISTERED- -RETURN RECEIPT REQUESTED Armstrong & Hand, Inc 2701 Foote Street Houston, Texas February 12,1952 ATTENTION: Mr Dawson Gentlemen Recently in speaking to Armstrong & Hand shop employees , you advised them you were willing to sign a labor agreement with the Union. Believing you to be acting in good faith when you made the above statement, we hereby request you forward to the writer a written labor agreement proposal you are willing to sign and have become effective immediately Unless you comply with the above request within seven days , we can only assume you have no desire to negotiate in good faith with the Union. Yours very truly, A. H. Houser SENIOR BUSINESS REPRESENTATIVE , On February 25, 1952, Houser wrote the Respondent the following letter- . REGISTERED- -RETURN RECEIPT REQUESTED Armstrong & Hand, Inc. 2701 Foote St. Houston, Texas February 25,1952 ATTENTION: Mr. Dawson Mr. Prikryl Gentlemen: This is to confirm our telephone conversation of this date, at which time you were requested to comply with our February 12th communication within the next three (3) days, otherwise there will be a picket line placed on your plant Thursday, February 28, 1952 Yours very truly, A. H. Houser SENIOR BUSINESS REPRESENTATIVE, 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 26. 1952 , the Respondent wrote the Board as follows: ARMSTRONG AND HAND, INC. Founders , Engineers and Machines 2701 Foote Street Houston 10, Texas February 26, 1952 Mr. C. W. Potter National Labor Relations Board Republic Building Houston 2, Texas Dear Sir. Please send us at once the necessary instructions and forms so that we may file an unfair labor practice charge against A H. Houser , the Senior Business Representative of the International Association of Machinists , District No 37 We want you to understand that we hold no grievance against our union employees or other union officials but that I have had enough of Houser ' s cunning and calculated lying to our employees in a very obvious attempt to incite them against me and the rest of our management I have worked here for six and a half years , first as a machinists, later as foreman, and, since our new stockholders took over , as Manager. Knowing personally the poor conditions under which we formally worked and that few of our employees can afford for serious trouble to result, I have felt very grateful for the many changes and improve- ments that have recently resulted from operating exactly as the Houston Equipment Co., Inc., has operated for some time During the course of the negotiations for purchase of our company during September Mr. R. A. J. Dawson, President of HECO (and now also of Armstrong & Hand, Inc.) specifically instructed me to inform all of our shop employees that he wanted all of them to remain , that they would get raised to the HECO level , be able to make at least 44 hours a week (instead of 40), and that early-in-the week overtime would not be nullified by end -of-week layoff, etc. I immediately told the men of those changes, which were put into effect as soon as A & H became a completely owned subsidiary of HECO on October 13, 1951. The former owners had lied to the new purchasers about the union organization taking place in the shop, and the election notice came as a complete surprise shortly after the management changed. The new owners were very seriously set back by the Union issue because they lost stock pledges from people who had been told previously that there was no labor issue. Mr. Dawson also suffered a serious back fracture on November 27, 1951 , and has been very handicapped in placing the balance of the stock issue authorized to buy and absorb A. & H. As soon as the election was decided Mr. Dawson and I agreed to start bargaining and at first session were presented with an extremely rigid contract which we agreed to study. At the second session in response to Houser ' s false accusations , Mr. Dawson told Houser and the shop representatives that A. & H . would agree to sign an agreement equivalent to the least favorable agreement Houser had negotiated with any of the other shops , provided that Houser quit agitating and lying to our men. We also asked for Houser to furnish us other labor agreements he had worked up with other parties and he agreed to do so I feel that no greater evidence of early good faith could have been given by Mr. Dawson, and I thought that Houser and I could continue to work out the details. Houser later stated in later sessions (and in the presence of witnesses), that the new wage rates were ample and that the only real issue was the check off. When we told him we would not grant this he immediately threatened to strike the plant . Houser had voiced veiled threats even during the first meeting , but he broke off negotiations on the checkoff issue himself and stalked out saying the strike would definitely be called as soon as he had Grand Lodge permission. Mr Dawson and I called the men together and told them we were sorry that Houser had broken off and that we now had to speak to them direct . We told them the whole negotiation history, told them we hoped that they would not leave , and that if they did we would continue to operate anyway. ARMSTRONG & HAND, INC. 437 Since that time Houser has falsely accused the management of several things, has repeatedly threatened to strike our plant within days , and has lied to the men in accusing us of breaking off negotiations . I can prove that he did these things and that he had severely handicapped our operations. Since Mr. Dawson is still trying to sell stock in order to pay bills that are now months old, Houser' s actions are very harmful because Mr . Dawson must honestly admit the remote possibility of a strike to all to whom he attempts to sell stock. Hence Houser' s actions constitute a very definite threat to the jobs of the men he is supposed to be representing . I am completely out of patience with his crude attempts to alienate me from my friends of long standing Just Monday morning he called me and told me that a strike was set for Wednesday unless we sent him a contract by that date . I called the men together and they told me no strike vote had even been taken, that they did not want to walk out , to strike , or to cause any trouble. They said Houser had accused myself and Mr . Dawson of untrue things and I told them the truth of the whole situation. Our union employees have no grievance at all as far as I can see and are now not only doing much better than ever before , they are also making more than men at Long Reach and other large firms . If Houser and other men will stop forming trouble I do not think we will have the slightest difficulty . If the men go out on strike I do not think we will have the slightest trouble of getting good non-union men at our $ 2.50- $2.00present top rates that are now limited only by the men being nagged at and also by our present lagging common stock sales. We are sending you copies of other letters previously sent to Houser giving him fair warning and telling him that we were fed up with his actions . We suggest that you begin assembling a file on this case so as to be able to quickly process our unfair labor charge. Please do not construe this an appeal for mediation by your agency or any other federal agency , we just want to inform you of the facts in the case and file the charge so as to get someone to replace Houser and then carry on honest and straight forward relations with our union employees. Very truly yours, ARMSTRONG & HAND, INC. Walter F Prikryl Manager Though Prikryl pictures Houser as an irresponsible rascal in the above letter he apparently had a change in viewpoint by the time of the hearing herein where he testified on direct exam- ination as follows as regards Houser's conduct at the meetings he personally participated in: Q. Just explain to the Court the manner of conduct of Mr. Houser in the meetings when you all were there. Was he calm, cool or collected, or in your own words explain what he said and how he acted A. Well, I think he acted all right. There was no raising of voice or anything, just sitting down at the table and discussing the problems. Q. Was there anybody on your side that was threatening to throw people in bayous or anything? A. No, sir, not that I recall. In spite of the bitterness that had developed between the representatives of the Union and the Respondent which is amply demonstrated above they met again on February 27, 1952. Present and representing their respective principals were the following : R. A. J. Dawson, president , Walter F. Prikryl. plant manager, and Tom Evans , the plant superintendent for the Respondent , and A. H. Houser, business agent , Hampton, his assistant , and the following employees of the Respondent who were members of the shop committee: Messrs . Faust, Green , and Galla for the Union. As the undersigned sees it the parties met in an atmosphere of hostility. There was considerable name-calling and veiled and open threats made back and forth between the individuals present . For example, Houser on the one hand threatened to strike the plant unless there was some agreement reached on a contract, and on the other Evans , a representative of the Respondent , threatened to throw Houser into a nearby "bayou." It was in the light of such an atmosphere that this , the final bargaining meeting between the parties, was held 283230 0 - 54 - 29 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the onset of the meeting Houser presented to the Respondent a new proposal in which the Union had withdrawn many of its original demands, and made numerous concessions to the Respondent. For example, in the new proposal the' Union deleted its request for union senior- ity and dues checkoff. During the course of the meeting the Union made the following con- cessions to the Respondent: (1) As regards its original demand for six paid holidays (2) Agreed to insert the phrase "ability and skill" in conjunction with its proposal as regards seniority in the event of a layoff. (3) Deleted provisions as regards " apprentices" that were in its original proposal. (4) Agreed to lower its request for hourly wage increases to 5 cents per hour. (5) Deleted its request for 3 weeks ' paid vacation for employees with 10 years ' service. (6) Agreed to delete from its original proposal article XIII " Supervisors shall not use the tools of the trades other than to instruct" in return for a " No strike-no lock-out" clause in the contract. (7) Agreed to reduce callout time from 4 hours to 2 hours. As the undersigned interprets the record, the parties had reached a tentative agreement on all of the points in the Union's proposals except as regards "discharge for cause " The Respondent insisted on being permitted to discharge with or without cause, and the Union wanted a clause in the contract that spelled out, so to speak, "just cause," which the Union considered vital to its existence as a labor organization According to Houser , the proposal submitted to the Respondent at this meeting together with the concessions it made was not as good a contract from the Union's point of view as its Long Reach Machine Company contract which, as pointed out above, was referred to by Dawson at an earlier meeting as being satisfactory to the Respondent. In spite of the deletions in the Union's new proposal and the concessions it made to the Respondent at the meeting on February 27, 1952, the Respondent flatly refused to sign an agreement embodying the matters agreed upon or to even offer a counterproposal in lieu thereof. At this point in the meeting the Union , speaking through Houser , told the repre- sentatives of the Respondent that it was the Union's position that the Respondent either sign a contract or present a written proposal as it had promised to do or the Union would "throw up a picket line." As indicated above, the Respondent refused to accede to either of the Union's demands and at this point the meeting broke up. According to Houser, when the Respondent flatly refused to sign any agreements with the Union , in the face of the fact that the Union had made many concessions and receded from its original demands as regards the checkoff of union dues, he then told the Respondent's representatives that the Union would , under the circumstances , reinstate its request for dues checkoff. The Union did not immediately establish its picket line around the Respondent's plant after the above meeting as was its intention, but waited until March 10, 1952, in the hope that in the interim the Respondent would change its position. At the time the picket line was established the Respondent had approximately 20 employees. Of this number only 3 or 4 refused to cross the picket line. After the picket line was established the Respondent sent the following letter which is dated March 10, 1952 , to L. M. Fagan, Grand Lodge representative , in Forth Worth, Texas. Since this letter is likewise a part of the overall picture, the undersigned feels that it too should be inserted herein It follows below: ARMSTRONG AND HAND, INC. Founders , Engineers and Machinists 2701 Foote Street Houston 10, Texas March 10, 1952 Mr. L. M. Fagan Grand Lodge Representative International Association of Machinists 108 E. Ninth St. Fort Worth, Texas Dear Sir: We regret that due to your Mr . -A. H. Houser's repeated and deliberate misrepresen- tations to our union employees, his refusal to bargain, and his constant unauthorized strike threats we are compelled to ask you to replace him. ARMSTRONG & HAND, INC. 439 Our management has been fair to the men and expressed an early willingness to sign a labor agreement fair to all parties. We feel that Houser' s actions have very severely damaged both the company and the union employees and that his continued inciting of trouble is helping no one. If we are compelled to negotiate further with Houser or other untrustworthy individuals we will in the future do so only with all of our union employees present. We plan on keeping our twenty man job shop operating regardless of whether Houser calls the union men out or not . Our wages are good and we are determined to treat everyone fair as it is a matter of company policy to do so. We are enclosing a copy of our letter of February 26, 1952 to the National Labor Re- lations Board. Very truly yours, ARMSTRONG & HAND, INC. Walter F. Prikryl, Manager On this same date, March , 10, 1952, the Respondent posted on its bulletin board in the plant a document which it styled " Articles of Agreement Between Armstrong & Hand, Inc. and Armstrong & Hand , Inc., Employees." Since this " agreement" clearly indicates the attitude and/or "frame of mind" of the Respondent' s officials at the time, the undersigned feels that excerpts therefrom should also be inserted herein since they too are a part of the overall picture and have a bearing on the undersigned ' s ultimate findings herein. The preamble is the most interesting, it reads as follows: PREAMBLE Section 1. This unilateral (one-ways agreement consists of a set of guarantees granted by Armstrong and Hand, Inc , to it`s' shop, employees in order to assure them that the corporation is anxious to leach a leasonable working agreement with them even though the LAM union business agent 'sUpposedly representing them has prevented sensible bargaining and relationships The corporation is as bf this date filing an "unfair practice charge" against A. H. Houser with the Natia`tai Labor Relations Board , but the charge is against A. H. Houser, not against the A&H shop employees . The corporation is also as of this date informing Houser' s union superiors of his actions and asking them to conduct any future official union bargaining with the A&H management. Section 2. The intent and purpose of this agreement is to promote , improve, and main- tain industrial , economic and harmonious relationships between the corporation and its employees. The agreement inter alia reiterates and reemphasizes the rules, regulations , and scale of wages in force at Heco as described above, and which were posted on the Respondent's bulletin board on December 19, 1951. The last article in the agreement is of particular importance in the considered opinion of the undersigned since It clearly indicates to the Respondent ' s employees that certain alleged benefits promised them in the agreement will be taken away from them if the Re- spondent should enter into a formal contract with the Unioh. Since this part of the agreement speaks for itself, it likewise is set forth below: ARTICLE 14 Term of Agreement This set of guarantees will be continued by the corporation except as noted below until March 1, 1953 , at which time the management will be glad to make another set of guarantees. 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event that an official union contract is signed by the corporation with a recog- nized labor organization, said official contract will cancel this agreement by the cor- poration, however , the corporation does not obligate itself by making this agreement to give the same or comparable guarantees in any official union contract signed. [Em- phasis supplied.] The corporation still recognized A. H. Houser and the IAM as official bargaining agent for the employees , but by no means feel obligated to grant in an official union contract the guarantees granted in this agreement . Such guarantees as granted in any future union contract are still to be bargained out between the corporation and an authorized bargaining agent. [Emphasis supplied.] Signed, this 7th day of March, 1952. BY: ARMSTRONG AND HAND, INC., Walter F. Prikryl, Mgr. Shortly after the Respondent sent the above letter to the Board ' s office in Houston , Houser and L. M. Fagan, the Grand Lodge representative of the Union, who had been called in on the case by Houser , called on Clifford W. Potter , Officer -in-Charge of the Board's Sub- regional Office in Houston . and discussed the situation with him . Shortly thereafter Potter wrote the following letter to the Respondent , which in the considered opinion of the under- signed well states the status of the negotiations between the Union and the Respondent as of the date of their last meeting, February 27, 1952. Mr. R. A. J. Dawson, President Armstrong & Hand, Inc. 2701 Foote Street Houston, Texas Re: International Association of Machinists . District No. 37 (Armstrong 84 Hand, Inc.) Case No. 39-CB-32 Dear Mr. Dawson: In connection with the above captioned matter , I have met with Mr. A. H. Houser and according to Mr. Houser, agreement on most of the provisions of the contract had been reached prior to February 27. As of February 27 there were two points in issue and these points were : "checkoff' and "list of immediate discharge offenses." I am informed by Mr. Houser that the union in the interest of obtaining a contract had notified the company of its willingness to withdraw its demand for check-off and if this is the case then the only issue in the way of getting a complete contract would be the issue of whether or not the reason of immediate discharge offenses is subject to negotiation. It seems obvious to me that this list is subject to negotiations since it affects terms and conditions of employment and the union is certified as the bargaining representative of the employees and under the law there should be bargaining on matters which have to do with the terms and conditions of employment. In view of the fact that the union stands ready and willing to continue to bargain with the employer it seems to me that further bargaining should take place. I suggest therefore that the parties resume contract negotiations and for the time being I will await further developments. Sincerely, Clifford W. Potter Officer -in-Charge On March 25 , 1952, Houser accompanied by Fagan called on the Respondent , and mel with President Dawson. At this meeting Fagan, who acted as spokesman for the Union, attempted ARMSTRONG & HAND, INC. 441 to "iron out" the difficulties between the parties and endeavored to reach some sort of an agreement with Dawson as regards signing a contract, but to no avail, and his efforts came to naught. The upshot of the affair was that Dawson flatly refused to sign a contract of any kind with the Union. His refusal is best told in his own words: Q. Have you ever absolutely refused to negotiate a contract with Mr . Houser? A. Yes. Q. What date was that? A. It was the 25th of March 1952. Q. Is that when you had the picket line out there? A. Yes. Q. Had I advised you or Mr. Rice and I advised you in our opinion you didn't have to negotiate as long as there was a picket line there? A. You did. Q. Did you request them to take that picket line down and then you would negotiate with them? A. I did. The meeting with Dawson having come to naught. Fagan filed the charge upon which the complaint herein is predicated on March 25 , 1952. Since that date the parties have not met, and though the record indicates that the Union has expressed its desire to resume negotia- tions to Mr. Clifford M. Potter. Officer-in-Charge of the Board's Houston, Texas, office, nothing has come to pass as of the date of the close of the hearing herein. Concluding Findings The foregoing are the facts as the undersigned has found them from the record considered as a whole. From these facts he concludes and finds that the General Counsel has sustained the burden of proof of the allegations in his complaint by a preponderance of the reliable, probative, and substantial evidence when considered in the light of the record as whole. Many factors have entered into the undersigned, s 'findings and conclusions. They are dis- cussed and disposed of below. Unfortunately for all concerned the negotiations between the parties commenced in an atmosphere of belligerency, hostility, and distrust which never abated throughout the entire course of their attempts to reach an agreements The record clearly shows that the Re- spondent, speaking through President Dawson, either wittingly or unwittingly created a situation that is almost unbelievable at this late date, by insisting upon and actually putting into effect the working rules and causes for discharge described above, in the face of (1) its agreement of October 23, 1951, to refrain from such action until it had first discussed such matters with the Union; (2) a certification of the Union as the exclusive representative of its employees for the purposes of collective bargaining; and (3) the protests of the Union's representative at the meeting between the parties on December 19, 1951. shortly before the_ above notices were posted. Even a cursory examination of the rules and causes for discharge by a person totally unfamiliar with labor-management relations could sense their significance since they clearly and in understandable English provide for and in fact do relate to immediate changes in the wages, hours, and other conditions of employment of the Respondent's employees. That being the case, and the further fact that it was ad- mittedly unilateral action on the part of the Respondent would seem to be enough, but since the Respondent has in its brief questioned this conclusion and its legal effect on the under- signed's ultimate disposition of the issues herein, then there must of necessity be more anon as to this. 6The record shows, and the undersigned has found above, that the bargaining sessions be- tween the parties, with one exception, were marked with considerable bitterness. It is not the province of the undersigned to comment at length on this phase of their relations or to assume that he is qualified to assess the responsibility of either party for the resulting situation. Suffice it to say that such sessions are ofttimes acrimonious, and the tempers of those in- volved tend on occasion to become "overheated," so to speak. But it also must be remem- bered that they rarely meet in the atmosphere of a Ladies' Aid Society and in accordance with the niceties advocated by an Emily Post or Robert's "Rules of Order." Experience has shown, however, that in the vast majority of cases the negotiators eventually resolve their differences and reach an agreement satisfactory to all concerned, which is as It should be and thus the end purpose of the Act is accomplished. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the foregoing documents are considered item by item , clause by clause , rule by rule, and particularly in the light of the disparaging statements therein as regards the ability of the employees, chosen and certified agent to properly function as such, it is ap- parent that there remained little to discuss and bargain about between the Respondent and the Union. Therein lies the vice of this unilateral action by the Respondent Here lies the gamut of any collective-bargaining agreement that the parties might possibly discuss amongst themselves. To put it otherwise and to borrow a phrase from the vernacular of the day, the "guts", if you please , of any collective-bargaining agreement are unilaterally disposed of by the Respondent before it even sits down to discuss the terms of the type of agreement the Act presupposes the parties will attempt to negotiate . Moreover , the Respondent' s action on this score shows a complete rejection and total disregard of the fundamental principles of "collective bargaining" as defined by the Board with the approval of the courts in a long line of cases too numerous to mention or to cite excerpts therefrom in this , an already too voluminous, report. Suffice it to say that this action on the part of the Respondent consti- tutes indicia of its refusal to bargain in good faith with the Union.7 Now as to the main contention of the Respondent as indicated by the testimony of Dawson at the hearing herein , and as set forth and amplified at length in its brief, that the promul- gation of- the above-described rules , regulations , etc., on December 19, 1951 , was nothing more than a formal announcement of policies which it had initiated before the Union came into the --picture, and consequently its action in this regard was not violative of the Act because it' was in effect an accomplished fact and hence could not be construed as conduct timed - with the intent of undermining the position of and to circumvent the certified bar- gaining ' agent. It cites Burns Bricks and other cases along that line as authority for its position in this regard . The undersigned is familiar with these cases and their holdings, and is convinced and finds that the Respondent's citation of them as authority for its posi- tion in this regard is without merit for the simple reason that the factual situations in the cited cases are not applicable to the situation with which we are faced herein. Let us first consider the Respondent's contention that it first advised the employees of its plan to better their working conditions sometime in the latter part of September 1951 when Dawson told Prikryl to tell them that if Heco took over the plant it would bring their working conditions up to the standards then in effect at Heco It must be remembered that at that time Dawson was a complete " stranger ," so to speak, insofar as the Respondent is concerned He was nothing more or less than a prospective purchaser of the Respondent's assets. He could neither bind Heco in the future nor the Respondent by his statements. Prikryl legally had no standing at all. Hence Dawson's remarks if they meant anything at all could, by the very nature of things as they then existed, be nothing more than mere "puffing." The speech of Dawson to the employees on October 23, 1951, presents a somewhat dif- ferent picture than Dawson's conversation with Prikryl in September 1951 From what the undersigned gathers from the record Dawson told the employees at that time that the new management intended to bring their working conditions up to the standards then in effect at Heco. This contention might have some weight if the Respondent had done so prior to October 23, 1951, assuming of course that the Respondent was in fact without knowledge of the concerted activities of its employees, concerning which both Dawson and Crump denied at the hearing herein. Though the undersigned is not entirely persuaded that Dawson personally knew nothing of the union activities of the employees prior to October 19, 1951 (the date he insists was the first time he was aware of the fact), particularly in view of his testimony that he had discussed the conditions in the shop with Prikryl at some length before October 15, 1951, nevertheless he accepts the Respondent's contention in this regard. The gravamen of the Respondent's theory in this regard is the fact that at the meeting in the office of the Board's Subregional Office in Houston on October 23, 1951, it entered into an agreement with the Union to the effect that if the Union would agree to withdraw its petition for an election to save it from embarrassment with new and prospective stockholders it in turn would agree to a consent election at a later date and refrain from changing working conditions in the plant without first consulting on the matter with the Union 7 To cite but a few cases see the following: ( 1) As to the unilateral inauguration of employee benefits by an employer, without the consent of the bargaining agent and prior to impasse, N L. R B. v. Crompton-Highland Mills, 337 U. S 217, 224; N. L. R. B. v. Barrett Co., 135 F 2d 959, 961 (C. A. 7); N. L. R. B. v . Andrew Jergens Co., 175 F 2d 130, 136 (C. A. 9), certiorari denied 338 U. S. 827 ; N. L. R. B. v Tower Hosiery Mills, 180 F. 2d 701, 703, (C. A. 4); and ( 2) as regards the overall picture see Medo Photo Supply Corporation v. N. L R. B., 321 U S. 678, and cases cited therein. iSee Burns Brick Company, 80 NLRB 389. ARMSTRONG & HAND, INC. 443 In the considered opinion of the undersigned the Respondent comes now with bad grace at this late date to complain of the Union' s insistence that it carry out not only its part of the bargain , but its statutory duty as well to bargain with the Union , the certified representative of its employees at all times material herein, as regards their wages , hours, and other conditions of employment . The Respondent seems to forget that it made a "bargain," so to speak, with the representative of the Union , in fact it not only asked for the bargain but entreated the Union as well to temporarily abandon its right to persuade its employees to join the Union, to withdraw its, petition for an election, which the Union did, all of which have been thoroughly discussed above . A pert of that bargain was that the Respondent would not unilaterally change any of the working conditions in its plant without first discussing its intent in this regard with the Union . This agreement -it chose to ignore by its unilateral action on December 19, 1951 . It matters not a whit that' at the time the Respondent made its bargain with the Union's representative on October 23, 1951, the Union was not yet the certified bargaining representative of its employees , for the simple reason that it admittedly did represent at that time a substantial number of them 'and a question concerning repre- sentation was then pending before the Board . Hence the Respondent was on notice then and there that its employees were engaging in protected concerted activities , and it was under a legal obligation to refrain from interfering with , coercing, or restraining them in any manner in their attempt to exercise the rights guaranteed them by Section 7 of the Act. Again, by agreeing to refrain from promulgating or initiating changes in the working con- ditions of its employees without prior consultation with the Union, it waived any defense to these proceedings it might possibly have had on the theory that Dawson's speech to the employees on October 15, 1951, was notice to the employees that the new owners, that is, the Respondent herein , expected to initiate changes in their working conditions in the future. Standing alone such conduct is in and of itself an unfair labor practice (for an employer to change working conditions during periods of concerted activities) and has been so found by the Board and the courts in a long line of decisions. Their reasoning in this regard predicated on the fact that such conduct tends to undermine and thwart the statutory right of employees to engage in concerted activities for the purpose of selecting a representative of their own choosing as guaranteed them in Section 7 of the Act Accordingly the undersigned finds that by the conduct described above the Respondent violated Section 8 (a) (1) of the Act. The undersigned is not unmindful of the fact that the complaint does not specifically allege that the conduct described above is independently violative of Section 8 (a) (1) of the Act, but even so it is part and parcel of the 8 (a) (5) and broad 8 (a) (1) allegation in that it clearly is indicia of the Respondent' s refusal to bargain. A further factor that indicates the Respondent's bad faith is the fact that it never at any time presented a written counterproposal for the Union' s consideration though it was re- quested to do so on more than one occasion by the representatives of the Union. As a matter of fact the record clearly indicates that it not only flatly refused to do so, but insisted that the Union do all of the proposing in this regard by submitting to it the most unfavorable contracts,, it had ever executed in the Houston area . Such an attitude clearly indicates that the Respondent never intended to enter into an agreement with the Union That such conduct is violative of the Act is well settled as numerous decisions of the Board and the courts amply demonstrate and have so held.9 Finally, : i£, indeed more were necessary to find that the Respondent has refused to bargain in good faith with the Union, is the admission of President Dawson that he told the Union's representatives at`thetr last and final meeting on March 25, 1952 , that he would not negotiate further with the Union as long as it maintained its picket line at the Respondent ' s plant. This is a clear violation of the Act. The Board has held in numerous cases that an employer is not relieved , of his duty to bargain with the certified representative of his employees during the pendency of a lawful strike.io It matters not a whit that the strike was an abortive sort of an affair and only 3 or possibly 4 of the employees refused to cross the picket line, since a strike has been defined as concerted activity where more than 1 employee is engaged. There=yet remains to be disposed of the allegation in the complaint that the Respondent independently violated Section 8 (a) (1) of the Act by promulgating and maintaining a rule prohibiting its employees from engaging in union activity on company time and on company property. The rule referred to is set forth in the rules and regulations referred to above that were posted on the Respondent 's bulletin board in its plant on December 19, 1951. Since the Respondent in effect admits that it promulgated and has since maintained such a rule, and offered no defense for its action in this regard at the hearing herein , the undersigned 9See Landis Tool Company, 89 NLRB 503; N. L. R. B. v. O'Keefe and Merritt Mfg. Co., 178 F. 2d 445 (C. A. 9). iOSee Old Town Shoe Co., et al. , 91 NLRB 240, and cases cited therein. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finds that by such conduct it independently violated Section 8 (a) (1) of the Act. It is well settled "that the right of employees to assemble for the purpose of self-organization, guaranteed in Section 7 of the Act, is paramount over the bare right of an employer to control the use of his property , when the two rights are in conflict."u The Respondent at the hearing herein and in its brief raises other issues such as the propriety of the Union placing a picket line around the Respondent ' s plant , on the theory that Houser acted on his own in this regard and did not follow the wishes of the Respondent's employees . At the hearing herein the Respondent attempted to prove its contention in this regard by offering certain documentary evidence in the form of affidavits of a few of its employees as regards the internal affairs of the Union. The undersigned upon proper objec- tion by the General Counsel refused to permit the Respondent to present evidence to sustain its contention in this regard , but did permit its counsel to make offers of proof , all of which were rejected by him, and exhibits identified and offered to further sustain its contention were likewise rejected and placed in the " Rejected Exhibit" file, which of course constitutes a part of the official transcript of the proceedings herein. The undersigned's reason for rejecting this line of inquiry was that he felt that it was not only irrelevant , immaterial, and incompetent , but that it involved the internal affairs of the Union which are of course imma- terial in cases of this nature. Suffice it to say in this regard that in this proceeding it was the Respondent alone who was on trial and not the Union, there being no charges or a complaint based thereon before the undersigned for his consideration then or at any time in this proceeding insofar as the official transcript of the record is concerned. There yet remains still another phase of the proceedings herein which the undersigned feels should at least be commented upon, and that is the testimony of Dawson as regards Houser' s alleged failure to refer competent and skilled machinists to the Respondent for employment. Though the undersigned is convinced that Dawson's testimony in this regard is wholly Immaterial and has no bearing upon the issues , nevertheless he feels that in view of such testimony and the statements made by the Respondent in its "notices" of rules, etc., posted on its bulletin board on December 19, 1951, and the correspondence offered and received in evidence, and commented on above at some length, that perhaps it does deserve some mention herein. Even though the undersigned considers Dawson's testimony in this regard as wholly immaterial, nevertheless it does indicate his state of mind throughout the entire period of the negotiations that commenced on December 19, 1951. To begin with, there is no substantial evidence in the record that the Respondent ever requested Houser or anybody else connected with the Union to furnish it with skilled craftsmen. Certainly not Dawson, since he was injured on November 27 and did not return to the plant until sometime around December 15, 1951. Moreover , the Union was not certified as the bargaining agent of the Respondent' s employees until December 10, 1951. Again it would have been pre- sumptuous , to say the least, on Houser's part to dispatch men to the Respondent' s plant absent a request to do so, let alone the illegality of any such action by Houser if he or the Union were to assume the inherent right of the Respondent to select its own employees. Upon all of the above the undersigned finds that the Respondent ' s entire course of conduct in its bargaining relationship with the Union at all times displayed a fixed intention merely to preserve the appearance of bargaining while avoiding any actual negotiations in good faith or efforts to reach a mutually satisfactory agreement with the Union. Consequently he finds that the Respondent by the conduct described above violated Section 8 (a) (5) and (1) of the Act. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent , set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. n See W. T. Carter and Brother, et aL, 90 NLRB 2020; A. S. Beck Shoe Corp., 92 NLRB 1457. WAGNER IRON WORKS 445 It has been found that the Respondent has refused and is continuing to refuse to bargain collectively with the Union as the certified exclusive representative of the employees in an appropriate unit. The undersigned therefore shall recommend that Respondent , upon request, bargain collectively with the Union as such representative and, in the event that an under- standing is reached , embody such understanding in a signed agreement. In view of the nature of the unfair labor practices committed , the commission of similar and other unfair labor practices may be anticipated . The remedy should be coextensive with this threat. The undersigned shall, therefore, recommend that the Respondent cease and desist from in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. District Lodge 37, International Association of Machinists, AFL, is a labor organiza- tion within the meaning of Section 2 (5) of the Act. 2. Armstrong & Hand, Inc., is engaged in commerce within the meaning of the Act. 3. All production and maintenance employees , including truckdrivers , of Respondent employed at its Houston, Texas, plant, exclusive of office clerical employees , watchmen, guards, professional employees , foundry employees, all other employees , and supervisory employees , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. District Lodge 37, International Association of Machinists , AFL, was on December 10. 1951, the certified exclusive representative of all employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. Respondent Armstrong & Hand, Inc., from December 19, 1951, and at all times thereafter , by refusing to bargain collectively with District Lodge 37 , International Asso- ciation of Machinists , AFL, has engaged in and is engaging In unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] WAGNER IRON WORKS, a corporation and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO WAGNER IRON WORKS, a corporation and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO and BRIDGE, STRUCTURAL & ORNAMENTAL IRON WORKERS SHOPMEN'S LOCAL 471 (AFL),. Party to, the Contract and The "TEMPORARY COMMITTEE ," Interested Party and "THE EMPLOYEES' INDEPENDENT UNION OF WAGNER IRON WORKS, Interested Party