Hexton Furniture Co.

342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD HEXTON FURNITURE COMPANY and UNITED FURNITURE WORKERS OF AMERIOA, LocAL 415, CIO. Case No. 7-CA-1019. January ^?8, 1955 Decision and Order On August 25, 1954, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Intermediate Re- port 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 Inter- mediate Report, the exceptions and brief, and the entire record in the case and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, for the reasons stated below : 2 On October 17, 1952, following an election, the Board certified the Union as bargaining representative of the Respondent's production and maintenance employees. Thereafter, on November 24, 1952, the Union and the Respondent signed a collective-bargaining contract ef- fective to December 15, 1954, and from year to year thereafter in the absence of notice to terminate by either party. The contract per- mitted reopening for negotiation of new wage rates only, on the first anniversary date. It also provided for 1-year irrevocable checkoff of union dues for those employees who authorized such action. Pursuant to the wage reopening provision, the Union served notice upon the Respondent of its desire to reopen the wage provisions of the agreement. The parties began their negotiations on November 23, 1953. The Union asked for a wage increase of 25 cents an hour and the Respondent offered an increase of 2 cents an hour. After some discussion, the meeting adjourned for about a week. November 24, 1953, was the first day upon which employees could cancel their dues checkoff authorizations. On the morning of that 1 The Intermediate Report contains an inadvertent misstatement and a number of typo- graphical errors, none of which affects the Trial Examiner's ultimate conclusions. Ac- cordingly , we note the following corrections : Pansy Baldwin is the mother of Eleanor Davis, not of Emma Gray ; the Union was certified on October 17, 1952, not 1954, and the first negotiation meeting pursuant to the reopening of the contract was November 23, 1953, not November 25 2 We find it unnecessary to pass upon the findings and conclusions of the Trial Examiner with respect to alleged violations of Section 8 (a) (5) and Section 8 (d) which are not specifically considered in this Decision. 111 NLRB No. 53. HEXTON FURNITURE COMPANY 343 day, the Respondent posted a notice on the bulletin board calling the attention of employees to the revocation provision in the contract. It also called two meetings, one of supervisors and the other of em- ployees, at which the Respondent's president stated that a number of employees had asked him how they could get out of the Union, and that he was calling their attention to the provision of the contract permitting revocation of the checkoff authorization after 1 year. After the meetings, the Respondent's plant superintendent prepared and mimeographed a form revoking dues checkoff authorizations. He distributed copies of this form to the foremen who then spoke individ- ually to the employees asking if they intended to withdraw from the Union. Some of the foremen were more insistent and returned fre- quently to employees who had not yet signed the revocation notice to solicit their signatures. By December 4, 1953, a majority of employees had signed forms revoking their dues checkoff authorizations. On that date, the Re- spondent advised the Union that it was satisfied that the Union no longer represented a majority of its employees and it was therefore withdrawing recognition. Thereafter, the Respondent refused to meet with, or to furnish certain information to, the Union and uni- laterally granted wage increases to the employees in the appropriate unit. The Respondent contends that, as the revocation notices were the equivalent of withdrawals from the Union,' and as a majority of em- ployees had signed them, it was relieved of the obligation further to recognize and deal with the repudiated certified collective-bargaining representative. Accepting the Respondent's premise, we do not agree with its conclusion. An employer is not, as the Respondent seems to believe, automatically relieved of the obligation to bargain with the collective-bargaining representative of his employees, whenever he is presented with evidence that a majority of the employees have de- serted that representative.4 A collective-bargaining representative is a statutory agent.5 The National Labor Relations Act provides machinery by which em- ployees may select or change their bargaining representatives. In pursuance of the statutory objective, the Board has formulated a num- ber of rules for determining the circumstances under which it will en- tertain petitions to displace an incumbent bargaining representative i The Trial Examiner found that : "The record also shows that the Respondent and all concerned treated and considered the revocation slips as more than a revocation of dues checkoff authorizations previously furnished the Respondent by the employees but also as signed documents signifying the intent of the employees to `get out of the Union."' No exceptions to this finding of the Trial Examiner have been taken by any of the parties. We have therefore accepted the Trial Examiner's evaluation of the cancellation notices, although ordinarily such cancellations are not the equivalent of withdrawals from the union. * Cf. Ray Brooks v. N. L R. B., 348 U. S. 96. r American Seating Company, 106 NLRB 250. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the face of an outstanding collective-bargaining agreement between the employer and the incumbent representative. These so-called con- tract-bar rules have become an established part of the law of labor relations. They received the approval of Congress when it amended the Act in 1947,6 and have been "as it were, written into the statute."' The most important of these rules is that, in the absence of certain cir- cumstances not present here, the Board will not entertain a representa- tion petition seeking a new determination of the employees' bargain- ing representative during the middle period of a valid outstanding collective-bargaining agreement of reasonable duration. When, on December 4, 1953, the Respondent withdrew recognition from the Union, its collective-bargaining agreement with that labor organiza- tion still had approximately 1 year to run. If, therefore, the Re- spondent had filed a petition for a redetermination of the Union's bar- gaining status, the Board would have dismissed it as premature. Similar treatment would have been accorded a petition filed by another labor organization, or a decertification petition filed by em- ployees. "It follows, therefore, that for the period during which the contract was a bar and no question concerning representation might validly be raised, the Respondent was under an obligation to recognize and bargain with the Union." 8 Otherwise, we should have the anomalous result of an employer being permitted unilaterally to rede- termine his employees' bargaining representative at a time when the Board would refuse to make such redetermination because the time is inappropriate for such action. Accordingly, by withdrawing recog- nition from the Union during the middle of the contract term, the Respondent unlawfully refused to bargain with the Union. Moreover, we agree with the Trial Examiner that, if the Union did lose its majority by December 4, 1953, the loss was attributable to the Respondent's unfair labor practices in soliciting and aiding em- ployees to withdraw from the Union and such a loss cannot justify a refusal to bargain with the Union. The Respondent contends that its conduct was lawful under the doctrine of the Blue Flash case.' In the latter case, the employer, after receiving from a union a letter claim- ing to represent a majority of its employees and requesting collective bargaining, interrogated its employees as to whether they had signed union cards in order to know how to answer the union. A majority of the Board held such conduct lawful. In the present case, the Re- spondent did not merely interrogate its employees in response to a 6 Sen. Rep. No. 105 , 80th Cong. 1st Sess., p. 25; H. It. Conf. Rep. No. 510, 80th Cong. 1st Sess., p 50. 7 Fay v Douds, 172 F. 2d 720 , 724 (C. A. 2). 8 Samson Hosiery Mills, Inc., 92 NLRB 1102, 1103 , enfd. 195 F . 2d 350 ( C. A. 5), cert. denied 344 U. S. 863. Cf. Sears Roebuck and Co ,110 NLRB 226 ° Blue Flash Express, Inc., 109 NLRB 591 ( Members Murdock and Peterson dissenting). HEXTON FURNITURE COMPANY 345 demand for recognition, it actually initiated the withdrawal move- ment, and assisted and solicited 10 employees to cancel their member- ship in the Union. Such conduct is unlawful." The case of N. L. R. B. v. West Ohio Gas Co., 172 F. 2d 685 (C. A. 6), also relied on by the Respondent is clearly distinguishable from the present case. In the West Ohio case, the incumbent union was defunct, the contract had expired, and the union's own officers originated the proposal for a written withdrawal from the union. The proposal to withdraw was also circulated by union officials and not by the em- ployer, and there was no evidence that the employer solicited employees to withdraw. For the foregoing reasons, we find that by withdrawing recognition from the Union on and after December 4, 1953, by unilaterally grant- ing wage increases to employees, and by refusing to furnish wage information and a seniority list to the Union, the Respondent violated Section 8 (a) (5) and (1) of the Act. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Hexton Furniture Com- pany, Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Furniture Workers of America, Local 415, CIO, as the exclusive representative of the employees in the appropriate unit, by withdrawing its recogni- tion of the Union, granting unilateral wage increases, and refusing to give the Union information regarding the wages, seniority, and classifications of employees in the appropriate unit. (b) Interfering with the efforts of United Furniture Workers of America, Local 415, CIO, to bargain collectively with it on behalf of employees in the appropriate unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Furniture Workers of America, Local 415, CIO, as the exclusive representative of the employees in the appropriate unit, with respect to wages, rates of pay, hours of employment, and other terms and conditions of em- 10 We agree with the Trial Examiner that the widespread and repeated attempts by supervisors to have employees sign the checkoff cancellations, belies the Respondent's claim that they were j ocular and were not to be taken seriously. 11 The Jefferson Company, Inc, 110 NLRB 757; Endicott-Johnson Corporation, 108 NLRB 88, United Biscuit Company of America, 101 NLRB 1552, 1558, enfd . 208 F. 2d 52; Poultry Enterprises Inc., 102 NLRB 211, 224, enfd. 207 F. 2d 522 ( C. A. 5) ; Red Rock Co, 84 NLRB 521, 524, enfd as mod. 187 F. 2d 276 (C. A. 5), cert. denied 341 U. S. 950. 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployment, and if an understanding is reached, embody such under- standing in a signed agreement. (b) Post in its plant at Grand Rapids, Michigan, copies of the notice annexed hereto marked "Appendix." 12 Copies of such notice, to be furnished by the Regional Director for the Seventh Region shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventh Region in writ- ing, within ten (10) days from the date of this Order, as to what steps the Respondent has taken to comply herewith. 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with the efforts of United Furniture Workers of America, Local 415, CIO, to bargain collectively with us on behalf of the employees in the appropriate unit. WE WILL bargain collectively upon request with United Furni- ture Workers of America, Local 415, CIO, as the exclusive repre- sentative of all the employees in the appropriate bargaining unit with respect to wages, rates of pay, hours of employment, and other terms and conditions of employment, and if an understand- ing is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees at our Grand Rapids, Michigan, plant, excluding office employees, guards, and supervisors as defined in the Act. HEXTON FURNITURE COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. HEXTON FURNITURE COMPANY Intermediate Report and Recommended Order STATEMENT OF THE CASE 347 On March 29, 1954, upon charges filed by United Furniture Workers of America, Local 415, CIO, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Seventh Region (Detroit, Mich- igan), herein referred to as the General Counsel and the Board, respectively, issued a notice of hearing and complaint against Hexton Furniture Company, Grand Rap- ids, Michigan, herein called the Respondent, alleging that it had engaged in and was engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (a) (5) and (1) and Section 2 (6) and (7) of the National Labor Rela- tions Act, as amended, 61 Stat. 136, herein referred to as the Act. With respect to the unfair labor practices the complaint as originally issued and as amended at the hearing alleges in substance that: (1) Respondent, by its officers, agents, representatives, and employees, has since on or about November 24, 1953, and continuing to date hereof, engaged in a continuous course of interference, re- straint, and coercion of its employees in the exercise of the rights guaranteed them by virtue of the provisions of Section 7 of the Act, particular acts being (a) solicit- ing, inducing, and encouraging its employees to cease paying dues to the Union; (b) soliciting, inducing, and encouraging its employees to revoke their authorizations for checkoff of union dues, which had been provided for in the collective-bargaining contract between the Union and the Respondent, dated November 24, 1952; (c) spon- soring and drafting a written form revoking dues checkoff authorizations and pre- paring copies for distribution, among its employees, an object thereof being to obtain from its employees revocations of their checkoff authorizations; (d) assisting, aid- ing, and participating in the preparation, circulation, and distribution among its employees of the aforementioned forms and obtaining their signatures thereon; (e) making promises of benefits and threats of reprisal to employees to induce them to execute the aforesaid revocation forms; (f) advising its employees that the Union could not affect or improve their wages, hours, or working conditions for the purpose of undermining the Union's status as the exclusive bargaining representative of the employees in the unit found appropriate by the Board in Case No. 7-RC-1879; (2) since on or about November 24, 1953, Respondent refused and at all times since, continuing to the date hereof, has refused and is now refusing to bargain in good faith with the Union as the representative of the employees in the bargaining unit found in Case No. 7-RC-1879, particular acts of the Respondent constituting such a refusal to bargain in good faith, include, but are not limited to the following: (a) failing and refusing to recognize, meet, and/or bargain with the Union as exclusive representative of its employees in the unit set forth in Case No. 7-RC-1879, or in any other capacity; (b) failing and refusing to respond to union requests and de- mands for wage rate information; (c) failing and refusing to comply with union requests and demands for a current seniority list; (d) terminating its collective-bar- gaining agreement with the Union and/or refusing to perform the terms thereof with- out complying with the provisions of Section 8 (d) (1), (2), (3), and (4) of the Act; (e) terminating its collective-bargaining agreement with the Union and/or re- fusing to perform the terms thereof for the purpose of undermining the Union and/or avoiding its duty to recognize and bargain collectively with the Union; (f) bargaining individually with employees and unilaterally altering wages, hours, and other conditions of employment without notifying or bargaining with the Union for the purpose and/or with the effect of undermining the union status as the ex- clusive bargaining representative of the unit found appropriate in Case No. 7-RC-1789; (g) refusing to bargain with the Union because charges had been filed against it by Union; and (3) by the acts described above the Respondent has engaged in a course of conduct violative of Section 8 (a) (1) and (5), and Section 2 (6) and (7) of the Act. On or about April 8, 1954, the Respondent filed its answer in which it admitted certain jurisdictional facts, and denied the commission of any of the alleged unfair labor practices. As an affirmative defense it alleged in substance that it had refused to bargain with the Union since on or about November 24, 1953, because the . Union was removed as collective bargaining agent by the majority of the employees in the unit established by the Board and had after that date no status under the Act requiring or obligating Respondent to deal with the Union." Pursuant to notice a hearing was held in Grand Rapids, Michigan, on May 3, 4, 5, 6, and 7, 1954, before the duly designated Trial Examiner. The General Counsel, the Respondent, and the Charging Union were represented by counsel at the hearing. The General Counsel and the Respondent were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issues. Counsel for the Charging Union was permitted to participate in the hearing to the extent indicated below. At the close of the hearing the General Counsel moved that the complaint be amended to conform to the proof as regards minor mat- ters, such as names, dates, and the like. The motion was granted by the Trial Ex- aminer. Though given an opportunity to do so all parties waived oral argument. The parties were advised by the Trial Examiner of their right to file proposed findings of fact and conclusions of law, with briefs in support thereof. Counsel for the Re- spondent and for the Charging Union availed themselves of this opportunity and briefs in support of their respective positions were filed with the Trial Examiner on or about June 30, 1954. They have been duly considered by him. With its brief the Respondent also filed a "Motion To Correct Record" as regards certain typo- graphical errors in the record. It is hereby granted to the extent prayed for therein. At the onset of the hearing the General Counsel called as his first witness, the Respondent's president, Clayton Hexton, under the provisions of Rule 43 (b) of the Federal Rules of Procedure. After he had completed his cross-examination of the witness, the question arose as to the extent counsel for the Charging Union would be permitted to participate in the conduct of the hearing. The Trial Examiner, after giving the matter careful consideration, ruled that the Charg- ing Union would be permitted to participate to the limited extent discussed more fully here below, to which ruling counsel for the Charging Union objected on the grounds that under the Board's Rules and Regulations he was entitled to participate in the hearing as a matter of right, and that to deny him this privilege was in effect to deny his client due process. In the main his argument in opposition to the Trial Examiner's ruling was predicated on the theory that since one of the issues raised by the pleadings concerned a contract between the Charging Union and the Respondent Company, then it necessarily followed that if the Charging Union was not permitted to participate to the fullest extent in all phases of the proceeding it would be deprived of a property right, i. e., its interest in the contract referred to above, without due process of law, in contravention of its rights under the Fifth Amendment to the Constitution of the United States. The Trial Examiner rejected counsel's contention in this regard as being without merit. His reasoning in this regard was predicated on the theory that the Board does not litigate property rights as such. It proceeds in the public interest to effectuate an act of Congress. Moreover, if the Charging Union felt that its contract with the Respondent Company was in fact a property right and that the Respondent's con- duct had caused it to suffer damages as a result thereof, then it had its remedy under Section 301 of the Act, which is precisely what it had done prior to the hear- ing herein, and the Trial Examiner was so advised by the representatives of all the parties prior to the time he formally opened the hearing, and later on the record by counsel for both the Charging Union and the Respondent. As a matter of fact the hearing herein which was scheduled to convene at 2 p. in. on May 3, 1954, was delayed for about an hour by the failure of counsel for the Charging Union and the Respondent Company to appear at the scheduled time, and the Trial Ex- aminer was advised by the representatives of all parties that the delay was unavoid- able because counsel for the Charging Union and the Respondent Company had been in conference with the Judge of the Federal District Court for the Western District of Michigan as regards certain matters pending in that court as the result of a suit for monetary damages filed therein by the Charging Union against the Re- spondent Company pursuant to the provisions of Section 301 (a) and (b) of the Act. The issue as to the extent a counsel for a charging union and/or a charging party shall be permitted to participate in the conduct of a proceeding in a complaint case before a Trial Examiner of the Board having been raised in the circumstances described immediately above the Trial Examiner then took the position indicated at length below. The Trial Examiner ruled that the presentation and/or prosecution of complaints before the Board and its Trial Examiners is the province of the General Counsel. As he sees it Section 3 (d) of the Act prevails and supersedes any and all Rules and Regulations of the Board that might be interpreted contrary to its mandatory provisions. Section 3 (d) provides, inter alia as follows: .. He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuances of complaints under Section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law. [Emphasis supplied.] Having so reasoned, the Trial Examiner then laid down the following rules as regards the conduct of the hearing herein which in the main were adhered to HEXTON FURNITURE COMPANY 349 thereafter by the parties. His ruling in this regard was as follows . The prosecu- tion of the case was the sole responsibility of the General Counsel , however if he deemed it advisable to waive the examination of a witness either on direct or cross- examination he should so state to the record and counsel for the Charging Union could then participate in the examination of witnesses to the extent indicated by the General Counsel, but under no circumstances would he be permitted to examine or cross-examine any witness as regards matters that had been touched upon by the General Counsel in his interrogation of the witness at bar. In other words the Trial Examiner made it perfectly clear that in no circumstance would he permit "double-barrelled" cross-examination , so to speak, of any witness. The status of counsel for either a charging union and/or a charging party has previously been before the Board . In the Dallas Concrete case,, this question was likewise raised before the Trial Examiner . In that case under somewhat similar circumstances the Trial Examiner held with the approval of the Board and there- after sub silentio by the Fifth Circuit of the United States Court of Appeals, as follows: In his brief counsel for the Union again renews his motion to amend. It is again denied. In the considered opinion of the undersigned the language of the Board, in Sailor's Union of the Pacific, AFL (Moore Dry Dock Company), 92 NLRB 547 (1950) is controlling. In that case a similar situation was involved [except that therein , the charging party was the Employer ], and the the Board said: Section 8 (a) and (b) of the Labor Management Relations Act create public and not private rights (Phelps Dodge Corporation v. N. L. R. B., 313 U. S. 177). The protection of those rights is entrusted to public offi- cials and not to private parties. The General Counsel of the Board has "final authority , on behalf of the Board in respect of the investigation of charges and issuance of complaints under Section 10 and in respect of the prosecution of such complaints before the Board.. [Emphasis sup- plied.] Thus, the decision whether to issue a complaint , the contents of the complaint, and the management of the prosecution before the Board is entrusted to the sole discretion of the General Counsel (See Haleston Drug Stores, Inc., 86 NLRB 1166 ). It follows that only the General Counsel may move to amend a complaint to allege an additional violation of the Act. Otherwise the management of the cause would pro tanto be taken from the General Counsel and entrusted to a private party, which is contrary to the scheme of the statute and the specific provision of Sec- tion 3 (d). As the General Counsel has declined to join in the charging party's motion, it is hereby denied . The similar ruling of the Trial Exam- iner is also affirmed. In the considered opinion of the Trial Examiner the above citation is apropos to the situation herein. Upon the entire record of the case, and from the Trial Examiner's observation of the witnesses, he makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The complaint alleges and the answer admits that Hexton Furniture Company, the Respondent herein, is a Michigan corporation with its principal offices and place of business located in the city of Grand Rapids, Michigan . At all times ma- terial herein it has been engaged in the manufacture, sale, and distribution of occa- sional furniture . In its manufacturing processes it uses the following raw mate- rials: lumber, leather, hardware, finishing, and other miscellaneous materials. Dur- ing the calendar year 1953, which is representative of all times material herein, the Respondent in the course and conduct of its business operations , caused to be pur- chased, transported , and delivered to its place of business in Grand Rapids , Michi- gan, raw materials in excess of $400,000 , of which approximately $250,000 was transported directly to its Grand Rapids, Michigan , plant in interstate commerce from States of the United States other than the State of Michigan . During the same period the Respondent sold and shipped in interstate commerce from its plant in Grand Rapids, Michigan , finished products, to customers located outside the State of Michigan, valued in excess of $500,000. 1102 NLRB 1292, p. 1296. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board has previously asserted jurisdiction over the operations of the Re- spondent in Case No. 7-RC-1879. Upon all of the foregoing the Trial Examiner finds that the Respondent herein is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED United Furniture Workers of America, Local 415, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The events with which we are concerned herein stem from the certification of the Union as the bargaining representative of the Respondent's employees by the Board in Case No. 7-RC-1879, on October 17, 1952. The events leading up to the certi- fication of the Union were as follows. The record herein shows that pursuant to a petition for certification of representatives filed by the Union, the Board conducted a "Representatition" hearing in Grand Rapids, Michigan, sometime in the latter part of August or early September 1952. Thereafter on September 17, 1952, the Board issued its Decision and Direction of Election in which it found inter alia that the following employees of the Respondent constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act All production and maintenance employees at the Employer's Grand Rapids, Michigan, plant, excluding office employees, guards, and supervisors as defined in the Act. Pursuant to the Board's Direction, the Regional Director of the Seventh Region, conducted an election among the Respondent's employees in the above-found appro- priate unit on October 9, 1952. An examination of the official "Tally of Ballots" shows that at the time of the election there were 52 employees eligible to vote in the election. The result was as follows: 1. Approximate number of eligible Voters________________________ 52 2. Void Ballots ---------------------------------------------- 0 3. Votes cast for Petitioner____________________________________ 39 6. Votes cast against participating Labor Organization(s)---------- 11 7. Valid votes counted (3-4-5-6) ------------------------------ 50 8. Challenged Ballots ----------------------------------------- 1 9. Valid Votes counted plus Challenged ballots (sum of 7 and 8) ---- 51 11. A majority of the Valid Votes has been cast for Petitioner As indicated above the Board thereafter on October 17, 1954, certified the Union as the collective-bargaining representative of the Respondent's employees in the above-found appropriate unit. Following the formal certification of the Union, representatives of the Respondent and the Union met and after due consideration entered into a collective-bargaining agreement on November 24, 1952. An examination of the agreement shows the following: DURATION 41-This agreement shall remain in full force and effect from November 24, 1952, at least until December 15, 1954, and from year to year thereafter, unless either party shall notify the other in writing at least sixty (60) days prior to the 15th day of December, 1954, or sixty (60) days prior to December 15 of any year thereafter, of a desire to change or terminate this agreement. In the event such notice to terminate this agreement, the agreement shall then be ter- minated on December 15, 1954, or on December 15 of any year thereafter. Of utmost importance, insofar as the issues herein are concerned, is a provision in the contract as regards the checkoff of union dues. The record clearly shows that the issues with which we are primarily concerned stem from this provision in the con- tract. It follows below: CHECK-OFF 40. As to those employees who voluntarily sign and furnish to the Company a written statement authorizing the Company to deduct from their pay the regu- lar monthly Union membership dues, the Company will make those deductions and will turn over to the designated representative of the Union the dues thus deducted. The Company will, during the term of this Agreement, continue to HEXTON FURNITURE COMPANY 351 recognize such written authorizations until or unless an employee or employees should furnish the Company with written notice revoking such authorization to deduct dues from their wages. Such check-off authorizations shall be irrev- ocable for a period of one (1) year or until the anniversary date of this agree- ment, whichever period is shorter, provided, however, that employees shall also have a period of fifteen (15) days after the date of this agreement to revoke check-off authorizations by requesting a joint meeting of representatives of management and the shop committee, at which time such revocation may be made. Upon request, the Company will furnish the Union with a list of those employees who have furnished voluntary written check-off authorizations. Further examination of the contract shows that it was signed by the following per- sons on behalf of their respective principals: Hexton Furniture Company By-Theodore Hermann United Furniture Workers of America, CIO, Local 415 By-Frank Hargrove Chas. Unbanski Claude Doornbos Emma Gray Gerald VanderPlaeg Shortly after the agreement between the parties was signed, the Union proceeded to secure signed "authorization cards" from the employees in the unit, which author- ized the Respondent to deduct $2 per month from their wages, for a period of 1 year. The authorization agreements (or cards) read as follows: CG No. 17 UNITED FURNITURE WORKERS OF AMERICA, CIO CHECK-OFF AUTHORIZATION TO: ---------------------------------- LOCAL NO---------------- (Name of Company) LOCATION: -------------------------- DATE--------------------- I hereby authorize my Employer to deduct from my wages any initiation fees, monthly dues, and any assessment authorized by the Union in accordance with its by-laws and remit same to the Financial Secretary of the Union. This authorization shall remain in effect unless and until revoked by me as hereinafter provided and shall be irrevocable for a period of one (1) year from the date hereof or until the termination of the collective bargaining agreement between the Company and the Union, whichever occurs sooner. I further agree and direct that this authorization shall be automatically re- newed for successive periods of one (1) year and shall be irrevocable during each such renewal period, unless written notice of revocation is given by me to the Company and the Financial Secretary of the Union by registered mail, return receipt requested, not more than twenty (20) days and not less than ten (10) days prior to the expiration of each term of one (1) year or prior to the ter- mination of the applicable collective bargaining agreement between the Com- pany and the Union, whichever occurs sooner. -S--ign--a - ture-------------------------- Ledger --No----------- . --------------------------------------------------- Department Clock No. --------------------------------------------------- UNiTED FURNITURE WORKERS OF AMERICA, CIO LOCAL UNION NO-------------------------------- The parties stipulated at the hearing herein that "up to November 24, 1953, 35 employees out of a total of 51 employees" in the appropriate unit had authorized the Respondent to deduct $2 per month union dues from their paychecks. It was the custom for the Respondent to mail the Union a check for the dues deducted once each month. Under the terms of the agreement between the parties, either party could reopen the subject of hourly rates of pay only once during the life of the agreements at 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the anniversary date, November 24, 1953, by notice in writing given to the other party at least thirty (30) days but not more than forty-five (45) days prior to November 24, 1953. Pursuant to the foregoing, Frank Hargrove, International representative of the Union, wrote the Respondent on October 20, 1953, and re- quested a meeting with its representatives for the purpose of opening the question of hourly rates of pay for the employees in the unit. As a result of this letter the parties met at the Respondent's office on November 23, 1953. Present for the Union were the following, Hargrove and Hubbard, International representatives, and Glen Osburne and Lou Nichols, shop stewards. The Respondent was represented by President Clayton Hexton, Shop Superintendent Theodore Hermann, and Messrs. Weaver and Simpson, directors of the Company. For the most part the meeting was confined to the discussion of wages. At the outset Hargrove requested an hourly increase of 25 cents per hour for all employees. President Hexton advised the union representatives that he was of the opinion that the Respondent was not in a position to grant any increase. After discussing the matter for some time President Hexton finally offered an increase of 2 cents per hour across the board. During the course of the discussion as regards wages Hargrove, on behalf of the Union, requested the Respondent to furnish to the Union the individual wage rates of all the employees in the bargaining unit. He pointed out to President Hexton that while he did not think that the Union could accept the 2-cent per hour offer, nevertheless he felt that it was necessary for the Union to have the wage information requested before it could intelligently consider the Respondent's offer in the light of the wage scales then in effect in other plants in the Grand Rapids area where the Union had contractual relations. In other words Hargrove felt that it was necessary to have the wage data and compare it with the rates paid employees in other plants in the area doing similar types of work, before the Union could intelligently consider the Respondent's argument that its wage structure was in line with that of other plants, and that 2 cents' per hour increase was a fair offer. Hexton advised Hargrove that he would discuss the Union's request for individual wage data with the Respondent's attorney and if he approved it the Respondent would then furnish the Union with the infor- mation requested. At this point the meeting adjourned and it was agreed that the parties would meet again on November 30, 1953. In the interim however certain events occurred which placed the parties in a somewhat different position when they met again on November 30, 1953, to discuss the wage question. A discussion of these events follows below. On the morning of November 24, 1953, President Hexton met with Superintendent Hermann and the foremen in the plant and discussed a matter which the record clearly shows led to the commission of certain acts by representatives of the Respondent that are the basis of the charges and the issuance of the complaint herein. There are several accounts of what transpired at this meeting in the record, none of which are at variance as regards essential factors, consequently the foregoing findings are predicated on a composite of the testimony of the following officers, agents, and representatives of the Respondent, President Clayton Hexton, Shop Superintendent Theodore Hermann, and Foremen William Schuh, Edward F. Nor- wicki, and Joseph Mankowski, all of whom impressed the Trial Examiner as honest and forthright witnesses. As indicated above President Hexton called a meeting of all the foremen in the plant in his office on the morning of November 24, 1953. After they were assembled he told them that several of the employees in the plant had come to him personally and had asked him how they could get out of the Union. He then pointed out to those present that under the terms of the contract between the Union and the Re- spondent, the provision for "Checkoff" of dues was for 1 year, and that employees who had signed authorization cards for the Respondent to deduct $2 per month from their wages could revoke their authorizations at the end of the contract year, which was November 24, 1953. He then proceeded to tell the foremen that he had posted the following notice on the bulletin board: November 24, 1953. Certain of our employees have asked as to the method of revoking check-off authorization. Paragraph 40 of the contract between the Company and the Union provide as follows: "The Company will, during the term of this Agreement, continue to recognize such written authorizations until or unless an employee or employees should furnish the Company with written notice revoking such authorization to deduct dues from their- wages. Such check-off authorizations shall be irrevocable for HEXTON FURNITURE COMPANY 353 a period of one (1 ) year or until the anniversary date of this agreement , which- ever period is shorter." Please feel free if you have any question to talk to your foreman , Mr. Her- man or myself. (Signed ) CLAYTON S. HEXTON. President Hexton also instructed the foremen that they were to answer all ques- tions addressed to them by the employees under their supervision as regards the por- tent of the above notice. He also told them that he and other representatives of the Respondent had met with representatives of the Union on the previous day and that the Union had asked for "too much" of an increase in wages for the employees. Shortly after President Hexton met with Superintendent Hermann and the fore- men, he called a meeting of all the employees in the plant . His account of the meeting is set forth below: Q. Which is dated November 24th , and the day that notice was posted, did you have a meeting of the employees concerning that notice? A. Yes, sir. Q. And what did you tell the employees? A. I told the employees, I told the employees that certain of our employees had asked how they could get out of the Union and I read from the contract of the Union, our Company 's contract with the Union, and told them that certain ones had asked me and that the way I understood it was to signify their inten- tions to the Company and to the Union. Q. Did you tell them that they could save $24.00 a year by revoking the check-off? A. I don't know if I told them at that particular meeting. At some time I told them they could save $24.00, yes, sir. [Emphasis supplied.] Foreman Joseph Mankowski testified in substance that President Hexton also requested the foremen to talk to the members of the Union under their supervision and ask them if they wanted to drop out of the Union . His testimony as regards the meeting in Hexton's office is similar to that of all the foremen who testified in this regard at the hearing herein . It follows below: Q. (By Mr. Pisarski.) Was there a meeting of the foremen held in Mr. Hexton's office that day that notice came out? A. There was. Q. What did Mr. Hexton say at that meeting? A. He called his foremen into the office and told us that he heard certain members, employees, wanted to drop out of the Union and he was going to post a notice on the time clock and we should notify them to read the notice there. Q. All right. Did he tell you to talk to all of the Union members in your department and find out if they wanted to drop the Union? A. He mentioned that, yes. Q. Did you know who the Union members were in your department? A. I did. After the meeting was over President Hexton 's secretary, and Superintendent Hermann prepared a revocation of dues deduction authorization form which was later distributed to the foremen, and in addition a supply of the blank forms were placed on a table near the office for the convenience of the employees who desired to sign them. The revocation form read as follows: -------------------- 1953 I HEREBY REVOKE MY CHECK-OFF AUTHORIZATION -------------------- Signed After the revocation slips were printed the foremen distributed them to the em- ployees under their supervision . Typical of the procedure followed is found in the credible testimony of Foreman Joseph Mankowski which for convenience is set forth below: Mr. CUMMINSKEY: What was the answer? Q. (By Mr. Pisarski.) Who did you speak to? A. What do you mean? Q. The Union members in your department. A. I spoke to all of them. 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Did you speak to Harold Hale? A. Yes, sir. Q. What did you say to Harold? A. Well, I just asked him if he read the notice on the time clock and what he thought about it. Q. What did Mr. Hale say? A. He told me he was going to think it over. Q. And was this the only time you spoke to Mr. Hale? A. Well, maybe in about a week or so later, the people were dropping out, and he asked me how it was coming along, and I said, "Well, there are a few dropping out." I said, "How about you?" Q. What did he say? A. He said he was thinking it over, he didn't think it over yet. Q. All right, did you speak to him any other times? A. Maybe about three times. Q. Did you speak to May Panza? A. I did. Q. What did you say to May Panza? A. I asked May Panza if she saw the notice and she said she saw it even before I had a chance to speak to her. Q. What did she say? A. She asked about dropping out. Q. Did you give her any slips? A. I didn't give her no slips until she asked for them. Q. Did you speak to Jerry Rockafellow? A. Yes. Q. What did you say to Jerry Rockafellow? A. Same thing, I approached all of them, same thing, if they noticed the notice on the clock on the bulletin board, and what about him. He said, "No." That was all. Q. Did you tell them that they could save $24.00 a year if they revoked the Union check-off? A. I believe I did, about a week later. Q. Did you speak to Roger Blanchard? A. Yes, sir. Q. What did you say to Roger Blanchard? A. I asked him if he saw the notice on the time clock , and was he going to drop out. Q. Did you tell him that he could save $24.00 a year? A. No. TRIAL EXAMINER: Pardon me, Rockafellow, did he take advantage of that saving? The WITNESS: Well, no, he didn't take advantage of it. If he dropped out, is that what you mean? Mr. PISARSKI: Yes. The WITNESS: No, he didn't take advantage of it. Q. (By Mr. Pisarski.) Did you speak to Larry Kunst? A. I did. Q. What did you say to Larry Kunst? A. Same thing, if he noticed the bulletin board and if he wanted to drop out. That the purpose of the revocation slips was to provide a means for the employees to express their dissatisfaction with the Union, and "to get out of it" is amply demon- strated in the direct testimony of Superintendent Theodore Hermann, who testified as follows in this regard: Q. All right, carry on. A. We also discussed the fact that people were asking us about being dissat- isfied in the Union which we also told our foremen that after looking over the contract we found that there was a clause on the anniversary date of the con- tract, it was permissible for them to get out of the Union if they so chose. TRIAL EXAMINER' Who said that? The WITNESS: Mr. Hexton stated from the contract. TRIAL EXAMINER: To the foremen in your presence? The WITNESS: That's right. TRIAL EXAMINER: All right. The WITNESS: And when he also stated at that time that he would put a copy of that paragraph on the bulletin board stating their rights under the contract. TRIAL EXAMINER: Their rights, you mean the Company? HEXTON FURNITURE COMPANY 355 The WITNESS: What is that? TRIAL EXAMINER: The Company's or their rights? The WITNESS: The rights of the employees. TRIAL EXAMINER: All right. The WITNESS: Which we did. We also told our foremen that they could tell their people that there was a notice on the bulletin board and for them to read it and if they had any questions concerning the notice to contact Mr. Hexton, myself or the foremen. That was the extent of the meeting. The record clearly shows that some of the employees rejected the efforts of the Respondent's foremen to persuade them to withdraw from the Union. For example the testimony of Foreman Joseph Mankowski as regards the attitude of employee J. Rockafellow. Q. How many times did you speak to Rockafellow and Kunst? A. Well, to Jerry, of course I spoke to him maybe about three times, Rocka- fellow. Q. About three times? A. Yes. Q. Somewhere around there? A. Somewhere around there, I don't remember. Q. You talked oftener with Jerry Rockafellow? A. Well, because he was more in a kidding way than anything else, because I know he was going to drop out. He just told me right off from the start he wasn't going to drop out. The Trial Examiner has inserted the above excerpt as regards Rockafellow because the Respondent in its brief stresses the point that much of the conversation between the foremen and the employees under their supervision was in a jocular vein and that consequently under the "jocular doctrine" announced in the Ebco Manufactur- ing case statement by supervisors in such an atmosphere are not violative of Section 8 (a) (1) of the Act.2 The Trial Examiner does not agree with the Respondent's position in this regard particularly when considered in the light of the facts found here. As he sees it "the jocular doctrine" is only applicable in isolated instances such as were present in the Ebco case, and not where as here there is a host of testi- mony showing that the employees and all concerned considered the Respondent's activities in securing their signatures to the revocation of dues authorization slips not as a "joke" so to speak, but as serious business. That this is so is evidenced by the testimony of Robert Pavlak, which is fully credited by the Trial Examiner. It fol- lows below: Q. I see. Now, on the occasion when Johnny Meyers came up to you and said, "Here is a pencil if you want to sign out," you said in your direct testimony that he smiled? A. Yes. Mr. RAPHAEL: I don't recall that testimony that he smiled. Q. (By Mr. Cummiskey.) Well, did he smile when he gave you the pencil? A. Well, I woudn't say, might have been he laughed or something like that. I don't think it was a laughing matter or anything. He meant that he wanted me to sign out, if that is what you meant He wasn't just fooling around. Of course, I imagine he knew I wasn't going to sign out anyway. Q. At the time this incident occurred, how many times had he discussed with you the revocation9 A. That date? Q. No, at the time he handed you the pencil, was that two weeks after No- vember 24, 1953? A. No, it couldn't have been two weeks. It was just a matter of right after they started those slips out, say six or seven days, in a row, I mean every day, see9 Q. He mentioned it to you every day? A. Yes. Of course, he probably asked me more than that. That is what I guessed, five or six times a day. [Emphasis supplied.] As indicated above the record clearly shows that each of the Respondent's fore- men went to the employees under their supervision and openly solicited their sig- natures to the revocation slips. Typical of their activity in this regard is found in the testimony of Foreman Norwicki• 2 The Ebco Manufacturting Compawy, 67 NLRB 210. 344056 -55-vol 111-24 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. All right. So you got these slips, General Counsel's Exhibit 16 around noon? A. Around noon. Q. Can you remember from whom you received them? A. I don't remember from whom it was, either one of the two parties , either Mr. Schuh or the superintendent , Hermann. Q. I see. You have stated you gave these to different individuals? A. I contacted, I contacted Mr. Gray first. Q. I see. Did you contact Mr. Gray before or after you had the slips? A. After I had the slips. . Q. What did you say to Mr. Gray? A. I asked him if he wanted to still have them take his Union dues out and he said, "No." Q. Now, this was Mr. Gray, G-r-z-e-s- et cetera, we'll call him Gray, he said he didn't want them to take out the Union dues? A. Y Q. A. Q. A Q. A. Q. A. Q. A. So did he sign a card? Signed two of them. Signed two cards? All right, did Yes, I did. And a man named Mr. King? Yes. you contact Mrs. Betty Bryant? How many times did you contact Mrs. Bryant? Once. How many times did you contact Mr. King? Once. Further evidence of the activities of the foremen in soliciting signatures to the revocation slips is found in the uncontradicted and undenied testimony of Jerry Rockafellow, an employee in the Respondent's machine shop , which is fully credited by the Trial Examiner . According to Rockafellow, Foreman Mankowski came around to his working place and asked him if he wanted to sign out of the Union and save "myself $24 per year," and that he told him "no." He also testified that Mankowski came to him several times thereafter and again urged him to "sign out of the Union," and that he repeatedly refused to comply with his requests. He further testified that Foreman John Meyers, supervisor in the shipping room, also asked him to sign a revocation slip. His testimony as regard Meyers' activities follows below: Q. About December 1st did you have a conversation with Johnny Meyers, the foreman , and Larry Kunst in the sanding room? A. Yes, it was at noon and I was over talking to Larry while he was finish- ing up his dinner and Johnny Meyers, the supervisor of the shipping room come in. Q. Give Larry's last name. A. Larry Kunst. Q. Proceed. A. And he asked if both of us was going to sign out of the Union yet, and Larry said No, he had a little too much German in him , he was a little stub- born and he wan't going to, and he looked over to me, and he said, I had a little too much German in me, too, I was too stubborn and Johnny Meyers stayed and talked to me. Johnny Meyers said the Union never got us anything. I told him I got all my raises from them and he said Hexton was paying just as much as other furniture companies were and even tried to compare us with General Motors , and I got talking to him about the protection the Union gives you, and he said , "The Union doesn't give you no protection," they could find a reason to fire any guy in the shop if they wanted to , and I told him that the machine room was still all Union. Though the record contains a host of testimony by other witnesses called by the General Counsel in support of his complaint , particularly Harold Hale, Robert Pavlak, and Lawrence Kunst , concerning the activities of President Hexton , Super- intendent Hermann, and several of the foremen under their supervision as regards the incidents surrounding the distribution of the revocation slips and their solicita- tion for signatures thereto, the Trial Examiner feels that it would unnecessarily burden this report to set forth herein a resume and evaluation of their separate testimony, since it is for the most part cumulative of what has been said above and would add nothing to the overall factual situation. As indicated above, the Respondent takes the position that it was justified in assisting the employees to revoke their authorizations to check off dues because several employees had indicated their desire to do so not only to President Hexton, HEXTON FURNITURE COMPANY 357 but to others of its supervisors as well , particularly Superintendent Hermann. In support of its position in this regard it offered the testimony of several employees, particularly Pansy Baldwin, Emma Gray, and Eleanor Davis. Emma Gray, a witness called by the Respondent, testified that she was one of the employees who had become dissatisfied with the Union as the bargaining rep- resentative of the employees, and had expressed her feelings in this regard to Presi- dent Hexton, Superintendent Hermann, and Foreman Schuh, before November 24, 1953, the date that President Hexton told the employees how they could cancel their dues authorizations and "get out of the Union." From what the Trial Examiner gleans from Gray's testimony, she was one of the original supporters of the Union, and a member of the committee that negotiated the contract between the Union and the Respondent. An examination of the contract reveals that she was one of the signatory thereto. In addition she also was elected a shop steward, and served as such for a few weeks. Thereafter she became dissatisfied with the officials of the Union, and went to her foreman, William Schuh, and asked him to find out how she could get out of the Union. Schuh told her he would check into the matter. As the Trial Examiner sees it Gray's dissatisfaction with the Union's repre- sentative status was personal and predicated on numerous petty incidents that are not relevant to the issues herein. The only probative value her testimony in this regard has insofar as the issues herein are concerned is that when she became dissatisfied with the Union she told her superiors about her troubles and requested that they assist her in getting "out of the Union." That this was her objective and that the activities of the Respondent that have been described above met with her approval is not only found in her testimony but in that of President Hexton as well, who testified as follows in this regard: Q. (By Mr. Cummiskey.) When did Mrs. Gray, Emma Gray, talk to you on November 24, 1953 approximately? A. Twenty minutes to a half an hour after I posted the notice on the bulletin board. Q. I see. What did she say to you? A. She said she would like to get out of the Union. Q. What did you tell her? A. I told her I didn't know how, what she would have to sign to get out of the Union, but I could find out. Q. Did you find out? A. Yes, sir. Q. Did you have any further conversation with Emma Gray? A. Yes, sir. Q. What did you tell her? Mr. RAPHAEL: Can we have the time of that fixed? TRIAL EXAMINER : I presume it is all the same time. The WITNESS : It is within a half hour period , Mr. Raphael . If I wanted something prepared , I would have had it prepared , believe me. TRIAL EXAMINER: Never mind, go ahead, Mr. Hexton. Proceed. The WITNESS : Where are we now? Q. (By Mr. Cummiskey.) After you obtained this information, did you have a further conversation with Emma Gray? A. Yes, sir, I did. Q. What was that conversation? A. I said, "Here is a form of a card that you can sign and it will get you out of the Union." Q. Was that the entire conversation? A. As far as I can remember. Q. And what did Mrs. Gray do? A. She signed two copies. Q. What did she do with them? A. She gave them to me, left them on my desk. [Emphasis supplied.] 'Gray's version of the above incident was as follows: Q. I would just like you in your own words to tell us after you read the notice what did you do? A. Oh, after I read the notice I went back to my department and asked Mr. Schuh where we could get a card to sign out, and he said "Well, I guess you better go in and see, I think they are in the hall, in the front hallway." So I went in the front hallway and they were on the table in the front hallway, and at that time Mr. Hermann came up and he said either, "Can I help you?'; Or, "What do you want," and I said, "Are these the cards that we sign out of ,the Union with?" He said, "Yes," so I picked one up and started to read it, 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and at that time Mr. Hexton walked up and he said , "Does that sound all right to you, Emma7" I said, "Yes, it is all right. I think it is good." He said, "Well, is this what you have been talking about , that you wanted to withdraw from the Union" I said, "Yes, this is good enough to suit me. I am going to sign it." Q. Did you sign it? A. Yes, I signed it and then I told him that I appreciated him letting us know that we could withdraw from the Union and I believe that was all. As indicated above the Respondent's position is that President Hexton was pri- marily motivated or influenced to take the action that he did in assisting the em- ployees in the unit to revoke their checkoff authorizations by the numerous com- plaints that had been made to him personally by certain of the employees as regards the Union's representative status and also from reports he had received from the foremen in the shop with whom similar complaints had been lodged by employees under their direct supervision. In addition to Emma Gray, the Respondent offered in support of its position in this regard the testimony of Pansy Baldwin (Emma Gray's mother ), and Eleanor Davis. An examination of their testimony reveals that in the main it is along the same lines as that of Gray, that is that they became dissatisfied with the union leadership and went to their immediate superiors and asked for their assistance to "get out of the Union ." Since their testimony is for the most part cumulative of that of Gray, the Trial Examiner sees no necessity of burdening this report with a detailed summary thereof . Suffice it to say that their complaints were among those received by President Hexton before November 24, 1953. An examination of the record shows that of the 51 employees in the unit, the following had personally lodged complaints about the Union to either President Hexton, or Superintendent Hermann, and their foremen before November 24, 1953, Emma Gray, Pansy Baldwin, Eleanor Davis, Ida Hineline, Henry Leonard, and John Zukowski. Thus it would appear from the record that the rumors of "unrest" among the employees as regards the Union's status as their collective-bargaining repre- sentative stemmed from the activities of the above , a total of 6 out of the 51 employees in the unit. The record shows that between November 24 and December 9, 1953, 32 employees signed the revocation slips of "check-off authorizations " furnished by the Respondent. A breakdown of the list of revocations introduced in evidence by the Respondent at the hearing herein shows that , 18 signed slips on November 24, 3 on November 25, 3 on November 30, 2 on December 1, 2 on December 2, 2 on December 3, 1 on December 4, and 1 on December 9, 1953. According to President Hexton, the revocation slips were offered to Lou Nichols, chief steward for the Union in the plant , who refused to accept them. Shortly thereafter the Respondent mailed them to the Union's officers in Grand Rapids, Michigan. As indicated above representatives of the Union and the Respondent met at the Respondent's office on November 25, 1953. At this meeting Hargrove, the Inter- national representative of the Union, in charge of its affairs in the Grand Rapids area, requested the Respondent to furnish the Union with the names of the employees who had had dues deductions made from their paychecks during the month of November 1953. President Hexton agreed to furnish the information , thereafter the Union received a letter from the Respondent dated December 3, 1953, which con- tained the information requested which was signed by Superintendent Theodore Hermann. An examination of the letter shows that dues were deducted from 14 employees during the month of November 1953. On November 30, 1953, representatives of the Union and the Respondent met at the Respondent's offices to renew their discussion as regards the Union 's demands for a wage increase , which had been previously discussed at their meeting on No- vember 23, 1953. The parties were represented by the same individuals who were present at the November 23 meeting , except John Cummiskey, the Respondent's at- torney, was also present for the Company. For the most part the meeting was de- voted to the discussion of wages. The upshot of the discussion was that President Hexton, on behalf of the Respondent , offered an overall increase of 5 cents per hour to the employees . Singularly enough no mention was made at this meeting by any of those present of the revocation of dues checkoff slips signed by the employees on November 24, and thereafter, nor was the Union's majority status questioned by any of the Respondent's representatives . Since this meeting the Union has received no letters, telephone calls, or communication from the Respondent that it was ready and willing to resume bargaining relations . What happened after November 30, 1953, follows below. HEXTON FURNITURE COMPANY 359 On December 2, 1953, the Union wrote the Respondent the following letter: HEXTON FURNITURE COMPANY December 2, 1953. 1206 Century S. W. Grand Rapids, Michigan Attn: Mr. C. Hexton GENTLEMEN : This is to confirm the following facts: That on November 23, 1953, the undersigned requested Mr. Hexton, of Hexton Furniture Company, to furnish our Union with the hourly wage rates then being paid to each individual employee in the bargaining unit . This re- quest was made on behalf of the Union and in the presence of the bargaining committee. Mr. Hexton replied that he would consult with Mr. Cummiskey, his attorney, that as far as he (Hexton ) was concerned, he had no objection, and if Cummiskey told him to furnish such information , it would be done. We agreed to take the matter up at the next meeting with the Company on Novem- ber 30. The request was made again at the November 30 meeting with Cum- miskey present, and Cummiskey said he would let me know by Tuesday or Wednesday. That on November 25, 1953, the undersigned requested Mr. Herman of the Hexton Company to furnish our Union with the current list of employees who had authorized dues deductions, that if the check-off of dues had not been made at the time for the month of November, he should furnish to us the list checked off for October , but that if the November check-off of dues had already been made for November , he should furnish us with the November list. Mr. Herman agreed to this request and made a note of it. Neither of the above requests by our Union have yet been met by the Com- pany. We hereby renew our request for the information referred to above and submit to you that the delay in granting these requests is unreasonable under the circumstances, and urge that you promptly respond favorably. Very truly yours, FRANK HARGROVE, Int. Representative U. F. W. A.C. 1. 0. FH: fs CC: JOHN CUMMISKEY, Attorney Registered Ret. Receipt Requested On December 4, 1953, the Respondent wrote the Union as follows: UNITED FURNITURE WORKERS OF AMERICA December 4, 1953. LOCAL 415, 215 Sheldon Ave. S E. Grand Rapids 2, Michigan Attn: Mr. Hargrove GENTLEMEN' We are enclosing the check-off list as of December 1, 1953. This check-off has just been made. You will note that 14 out of our 56 em- ployees appear on the list. Likewise , we have received notices of termination of check-off from five of the 14 employees since the December 1, check-off list was made. At the moment then, only 9 out of 56 employees presently belong to your union. Under such circumstances , we feel it is clear that your union no longer rep- resents the wishes of a majority of our people, and its authority to act as the collective bargaining agent of our employees has been withdrawn by the employ- ees themselves. Therefore, we feel obligated to withdraw any further recognition of your union at once. We were prepared to supply you with the wage rate information which you requested . However, inasmuch as you no longer represent the wishes of the majority of our people , we do not feel we can supply you with such information. Very truly yours, HEXTON FURNITURE COMPANY CLAYTON S. HEXTON. encl. 2 check-off cancellations 1 check -off list CSH/vm 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 4, 1953, the Union again wrote the Respondent and in its letter pointed out to the Respondent that it had not as yet furnished the Union with a list of the employees from whom dues had been deducted for the month of October 1953, as Superintendent Hermann had agreed to do on November 25, 1953. In addi- tion the Union reiterated its request for a list, showing the seniority status of all the employees in the unit, which it was entitled to under the terms of its agreement with the Respondent, paragraph 11, under the heading "Seniority." On December 4, 1953, the Respondent posted the following "Notice " on its bulletin board : NOTICE December 4, 1953. TO ALL EMPLOYEES: 8 In as much as only 9 of you have indicated continuation of union member- ship . We have today withdrawn recognition of the U. F. W. The 50 per hour increase previously offered will go into effect on next Monday. We want you to know that the wages and working conditions, such as seniority protection, holidays, vacation , rest periods, insurance and other benefits which we have provided for you will continue . [Emphasis supplied.] Sincerely yours, HEXTON FURNITURE COMPANY (Signed) Clayton S. Hexton CLAYTON S. HEXTON. On December 7, 1953, the Union sent the following letter to the Respondent: HEXTON FURNITURE COMPANY December 7, 1953. 1206 Century S. W. Grand Rapids, Michigan GENTLEMEN: We hereby request another meeting between your Company and our Union for the purpose of continuing negotiations on wages and to dis- cuss grievances arising with reference to the manner in which the Company has procured and honored alleged revocations of check-off in violation of the terms of the contract. Since top management is directly involved in these grievances, it would be impractical, if not ridiculous, to present such grievances first to the foremen. We propose the meeting be held Thursday, December 10 at such time as is suitable to you. Please advise whether this date is agreeable or whether you suggest another date. We hereby repeat our request that the grievance in the discharge of Gerald VanderPlaeg be promptly settled and if no mutual agreement can be reached, that it be immediately submitted to arbitration. We hereby repeat our request for individual wage rate information which you admit you were at one time prepared to furnish. The alleged check off revoca- tions referred to in your letter of December 4 does not relieve you of the obli- gation to furnish us the requested wage information and to bargain in good faith with our Union. We hereby repeat our request for an up to date seniority list of employees in the bargaining unit by departments. We hereby repeat our request for a list of those employees having authorized the Company to make dues deductions. This request was first made to Mr. Herman on November 25 and confirmed in my letter of December 2. Very truly yours, FRANK HARGROVE, Intl. Representative U. F. W. A.-C. 1. O. FH:fs CC: JOHN CUMMISKEY, Atty. The Respondent, by its counsel, replied to the Union's letter of December 4 and 7, 1953, on December 8, 1953. Since it was in this letter that the Respondent formally announced its decision to withdraw recognition of the Union as the bargaining repre- sentative of its employees the Trial Examiner feels that it likewise should be inserted herein. Consequently it follows below: December 8, 1953. Mr. FRANK HARGROVE United Furniture Workers of America, CIO 215 Sheldon Avenue, S. E. Grand Rapids, Michigan DEAR MR. HARGROVE: This letter will answer your letters of December 4 and December 7 and our conversation of Monday, December 7, in regard to the Hexton Furniture Company. HEXTON FURNITURE COMPANY 361 We believe we have complied with your request for the November check-off. The list which was given to you was the check-off made from the payroll end- ing November 27 of dues for November dues can be very easily determined from the information which you already have by merely adding to the list which we gave you the names of those who have submitted revocation of their check- off authorizations to you. We trust that this will satisfy your inquiry on this point. We have carefully reviewed the discharge of Jerry VanderPlaeg. This per- son was discharged on 11-22-53 in the presence of Mr. Hexton and Mr. Her- man because of his continued annoyance of female employees after repeated warnings by the Company, by the chief steward and by the union itself at union meetings that such annoyances must be stopped. Mr. VanderPlaeg was warned several times by management, and approximately six weeks prior to his dis- charge, Mr. Herman had warned him that if he didn't stop bothering the people, the next time he would not get another warning but would be let go. The next occasion which was called to Mr. Herman's attention involved the throwing of paper lunch bags at a female employee. This happened several days before the discharge but became known to the management within a very few minutes prior to the time he was terminated. The management also was advised that on a prior occasion the same employee was struck in the face by VanderPlaeg and had her lip cut as a result. Mr. VanderPlaeg's repeated actions after warning left the company no alternative except to remove him from the payroll. Inasmuch as your union clearly no longer represents the wishes of a majority of our people, we do not believe any useful purpose would be served in any further meetings or discussions on these or other matters which you have listed in your letters and verbal statements. Therefore, the company respectfully declines your requests. [Emphasis supplied.] Yours very truly MCCOBB, HEANEY & DUNN By (Signed ) JOHN W. CUMMISKEY. JWC:be Sometime in the latter part of December 1953, the Union requested the Respondent to arbitrate a grievance concerning the discharge of an employee named Vander- Plaeg in accordance with the provisions of the arbitration clause in its agreement with the Respondent. From what the Trial Examiner gleans from the record the Respondent refused to honor the Union's request in this regard. This is evidenced by a letter from the Respondent's attorneys to the American Arbitration Association, which follows below: McCobb, Heaney & Dunn Attorneys 900 Michigan Trust Bldg. Grand Rapids, Michigan AMERICAN ARBITRATION ASSOCIATION Penobscot Building Detroit 26, Michigan Attention: Mrs. L. P. Herrscher Tribunal Clerk December 29, 1953. Re: L-11793, DET-L-82-53 Local 415, United Furniture Workers of America, CIO, and Hexton Furniture Co. (Grievance of Gerald VanderPlaeg) DEAR MRS. HERRSCHER: I regret the delay in replying to your letter of December 21 and the prior letter of December 10. Due to serious illness in my immediate family, I have been away a good bit of the time. At the present moment the company is not recognizing Local 415, United Furniture Workers of America, CIO, as the collective bargaining agent for the employees of the Hexton Furniture Company. We have been advised by the National Labor Relations Board that the Union has filed charges with the National Labor Relations Board which will be disposed of in due course of business. Until disposition of those charges, however, the company is unwill- 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to bargain with Local 415, UFWA-CIO, and therefore will not agree to arbitration. [ Emphasis supplied.] Yours very truly, MCCOBB, HEANEY & DUNN By (Signed) JOHN W. CUMMISKEY. JWC:be CC: Mr. C. S. HExTON The complaint alleges in substance inter alia, that the Respondent has since on or about November 24, 1953, refused and at all times since, continuing to the date hereof, has refused and is now refusing to bargain in good faith with the Union as the collective-bargaining representative of the employees in the appropriate bargain- ing unit. It then goes on and alleges specific acts constituting such a refusal to bar- gain, and including the following: (d) Terminating its collective bargaining agreement with the Union and/or refusing to perform the terms thereof without complying with the provisions of Section 8 (d) (1) (2) (3) and (4) of the Act. Section 8 (d) of the Act provides as follows: (d) For the purposes of this section, to bargain collectively is the perform- ance of the mutual obligation of the employer and the representative of the em- ployees to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry affecting com- merce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of ne- gotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Conciliation Service within thirty days such notice of the existence of a dispute, and simultaneously there- with notifies any State or Territorial agency established to mediate and con- ciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock- out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: The duties imposed upon employers, employees, and labor organizations by paragraphs (2), (3), and (4) shall become inapplicable upon an intervening certification of the Boaid, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the rep- resentative of the employees subject to the provisions of section 9 (a), and the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any em- ployee who engages in a strike within the sixty-day period specified in this sub- section shall lose his status as an employee of the employer engaged in the par- ticular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer. [Emphasis supplied.] At the hearing herein President Hexton was interrogated by the General Counsel as regards whether or not the Respondent had complied with the proviso of Section 8 (d) (1), (2), (3),and (4) and he testified that it had not. There is no evidence in the record that either the employees or anyone on their behalf ever filed a petition for either certification or decertification of representatives as provided in Section 9 (c) (1) (A) of the Act. Nor is there any evidence in the HEXTON FURNITURE COMPANY 363 record that the Respondent ever took advantage of either Section 9 (c) (1) (B) of the Act or any other section thereof to resolve its doubts as regards the Union's rep- resentative status. Concluding Findings a. The appropriate unit The complaint alleges, the answer admits, and the Board has previously found in Case No. 7-RC-1879 that the following employees of the Respondent constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All production and maintenance employees at the Employer's Grand Rapids, Michigan, plant, excluding office employees, guards, and supervisors as defined in the Act. b. The refusal to bargain As indicated above there is little if any dispute as regards the facts. The record clearly shows that after the Union was certified by the Board as the representative of the Respondent's employees in the unit found to be appropriate by it in Case No. 7-RC-1819, on October 17, 1952, that the parties entered into a collective-bar- gaining agreement of 2 years' duration from November 24, 1952, which inter alia contained a provision for checkoff of union dues, dependent upon authorizations from the employees in the unit, and revocable by them within 1 year or the anni- versary date of the contract, whichever was the earliest. In addition the record also shows by a preponderance of the reliable, probative, and substantial evidence when considered as a whole that from this clause in the agreement stemmed the issues with which we are primarily concerned herein. The undenied and uncontradicted testimony adduced at the hearing herein, both oral and documentary shows that the Respondent acting through its responsible agents, initiated, printed, and caused to be circulated among the employees in the unit revocations of dues authorization checkoff slips. It also shows that these same responsible agents of the Respondent, including its shop superintendent, Theodore Hermann, and foremen under his supervision, openly solicited employees to sign the slips, and that when they had succeeded in securing 32 signed revocation slips, from a majority of the employees in the unit that the Respondent thereafter refused to bargain collectively with the Union, and has continued to do so to date. The record also shows that the Respondent, and all concerned treated and considered the revo- cation slips as more than a revocation of dues checkoff authorizations previously furnished the Respondent by the employees but also as signed documents signifying the intent of the employees to "get out of the Union." There is no question but what the Respondent, from President Hexton, down the line to the junior super- visory employee in the Respondent's heirarchy considered the revocation slips as such, and so advised the employees under their respective jurisdiction when they distributed them and solicited their signatures thereto. Moreover, counsel for the Respondent conceded that such was the effect of the revocation slips when he stated in the record as follows: 3 Mr. CuMMisicEY: Mr. Examiner, the relevance of the two exhibits, of course, goes to a very important point in this case, which is the effect of the revocation of the check-off. The issue is whether or not the revocations of the check-off amounted to a withdrawal of the employees from the Union. Testimony so far by all of the witnesses including both General Counsel's witnesses, Respond- ent's witnesses, has been to the efiect they were signing out or getting out of the Union. These two letters which were written by the Union, also state at dif- ferent places that the employees have dropped out of the Union. We are- "In the meantime, we are rebuilding the Union that the Company tried to destroy. We are resigning the workers into the Union," and so on. It is replete in both of the exhibits that it was also the Union's understanding that by taking this action the employees had withdrawn effectively from the Union. I cer- tainly think that it is very pertinent evidence as to what the effect of the revoca- tions was understood to be by the parties in this case. [Emphasis supplied.] The record also shows without contradiction that after the Respondent received revocation slips from a majority of the employees in the unit that shortly thereafter it took the following action: (1) Notified the employees on December 4, 1953, that it had withdrawn recognition from the Union; (2) notified the employees on a See the official transcript of the record at pages 505-507 for the context of counsel's remarks. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same date that it was granting them a 5-cent per hour wage increase ; (3) noti- fied the Union by letter on December 8 , 1953, that it would not meet with its repre- sentatives thereafter because a majority of the employees in the unit had repudiated the Union; and (4) notified the American Arbitration Association by letter on December 29, 1953 , that it did not recognize the Union as the bargaining representa- tive of its employees, and also that it would not bargain with the Union while charges filed against it by the Union were pending before the Board. In view of all of the above the Trial Examiner is convinced and he so finds that the Respondent has engaged in a course of conduct violative of Section 8 (a) (5) and (1) of the Act. As the Trial Examiner sees it the Respondent wittingly or unwittingly not only arrogated to itself the functions of the Board but likewise engaged in a course of conduct in complete disregard of the provisions of Sections 7, 8 (a) (5) and (1), 9, and 8 (d) (1), (2), (3), and (4) of the Act. It is well settled that once employees have designated their bargaining representa- tive in accordance with the Act, and such representative has entered into a con- tract with their employer , a duty to bargain thereafter in good faith is imposed on both parties. Such a relationship cannot be lightly thrust aside at the whim and caprice of the parties . This is particularly so when one takes into consideration the fact that the Board and the courts since the earliest days of the Act, have not only stressed the solemnity of and desirability of written collective -bargaining agree- ments, but have repeatedly pointed out in decisions too numerous to mention herein that the contract is the ultimate goal of collective bargaining .4 On the other hand, the Board and the courts have also over the years come to recognize the fact that special circumstances may arise where contractual relations between the parties be- come intolerable, and that employees [who of course are the "principals " and labor organizations but their agents ], may desire to change their bargaining representative for good and sufficient reasons, and the Congress has likewise recognized this fact by providing a remedy in the Act to correct and resolve such difficulties. The gravamen of the Respondent's position is that it did not choose to avail itself of the provisions in the Act to resolve its doubts as regards the Union's majority status. Whether or not in the circumstances described above it was in a position to do so is another matter , and requires further discussion below. To begin with the Trial Examiner is convinced and he so finds that the Union's so-called loss of majority was attributable to the Respondent's unfair labor prac- tices. Its conduct in initiating, distributing, and soliciting signatures to the revoca- tion of dues checkoff authorization slips among its employees as a means of assisting them to signify their desire to "get out of the Union " was so clearly violative of the Act that the Trial Examiner deems it unnecessary to encumber this report with endless citations and rationale in support of such finding . Suffice it to say that the Respondent's conduct in sponsoring and distributing the revocation slips was in effect the same as if it had circulated a "decertification " petition and/or conducted a private poll of the employees in the unit to determine their feelings as regards the Union.5 The situation here is not unlike that in the George C. Knight Com- pany case, 102 NLRB 1198 , at 1220, where the Board said: Even were the petition regarded as an informal decertification petition , Respond- ent obviously was not the agent through which the object could be accomplished, nor was it entitled to decide for itself that the union had lost its bargaining status. That was a question for the Board to determine upon orderly statu- tory procedure. N. L. R. B. V. Senson Hosiery Mill, 195 F. 2d 350 (C. A. 5), citing N. L. R. B. V. Prudential Insurance Company, 154 F. 2d (C. A. 6). But the employee signatories sought no recourse to the Board , and Respondent was not entitled vicariously to raise the question for them. Since it has been found above that the Union 's alleged loss of majority was due to the Respondent's unfair labor practices it follows that any refusal to bargain with the Union as the bargaining representative of its employees predicated upon such alleged loss by the Respondent was not in "good faith" and clearly in the circumstances found here violative of Section 8 (a) (5) and (1) of the Act, and it is so found. Though the Trial Examiner is of the opinion that had the Respondent itself sought relief from its contractual relationship with the Union by means of an "RM" petition filed with the Board pursuant to Section 9 (c) (1) (B ) of the Act, that its petition A See H. J. Heinz Co. v. N. L. R. B., 311 U. S 514, 10 NLRB 963; N. L. R. B. v. Sands Mfg. Co, 306 U. S. 332; and N. L. R B. v. Rockaway News Supply Company, Inc, 345 U. S 71. 5 See N. L. R. B v. Krimm Lumber Co., 203 F 2d 194 (C. A 2) enfg. 97 NLRB 1574; Oliver Machinery Company, 102 NLRB 822; Sun Oil Company, 89 NLRB 883. HEXTON FURNITURE COMPANY 365 would have been rejected by the Board in the light of the circumstances found here, nevertheless the fact remains that it could have and should have availed itself of this opportunity.6 The vice of the Respondent's position here is that the evidence of "dissatisfaction" among the employees that President Hexton relied upon in initiating the issuance of the revocation slips was no excuse or defense for its conduct. This is particularly so when we take into consideration the fact that there is no evidence here that the alleged "dissatisfaction" on the part of the employees led them to resort to the processes of the Board to either eliminate or change their bargaining agent? It is significant that it was the Respondent who took advantage of the so-called dissatis- faction and proceeded to arrogate to itself the function of the Board and by its conduct in this regard caused a majority of its employees to repudiate the Union as their bargaining representative. The situation here is not unlike that found in the U. S. Gypsum case 8 where the Board said, inter alia: Once employees have designated their bargaining representative in accordance with the Act, recognition of that representative is not a matter which an employer may or may not grant when and as he chooses. A duty to bargain with such a duly designated representative has been imposed upon him by the Act. The Act also provided the methods such duty may be dissolved. Under all the cir- cumstances of this case, we are convinced, and find that the Respondent's refusal to invoke the processes of the Act to resolve its alleged doubts as to the Union's continuing representative status, indicate that these professed doubts were not raised in good faith, but were motivated by a desire to avoid collective bargaining. In the above-cited case the Board also made another finding that in the considered opinion of the Trial Examiner is most apropos to the situation here when it said: In attacking the Union's continued majority representation, the Respondent contended the suspended members of the Union should not be counted in deter- mining the Union's majority. As found by the Trial Examiner, however, the mere suspension of union members, or their failure to pay union dues, does not establish that such individuals no longer want the Union to represent them for the purpose of collective bargaining. Designating a union as bargaining repre- sentative is not dependent upon membership in that Union. [Emphasis supplied.] As indicated and/or found above the Respondent predicated its admitted refusal to bargain with the Union during the term of a valid collective-bargaining contract upon the theory that the Union had lost its majority status. However, the Trial Examiner has also found above that the evidence upon which the Respondent predicated its conclusion as regards the Union's majority status was secured by its own illegal conduct all of which has been fully described above. Upon these facts the Respondent refused to recognize or bargain with the contracting and certified union, and thus to all intents and purposes terminated the contract, without meeting any of the requirements set forth in the proviso of Section 8 (d) (1), (2), (3), and (4) of the Act. Since the Respondent arrogated to itself the processes of the Board in securing the evidence upon which it relied in refusing to bargain further with the Union on account of alleged loss of majority, then the Trial Examiner is convinced and he finds that the "savings clause" in Section 8 (d) is not applicable and is no defense to its failure to comply with the provisions of Section 8 (d) (1), (2), (3), and (4) of the Act. The savings clause referred to being as follows: The duties imposed upon employers, employees, and labor organizations by Paragraphs (2) (3) and (4) shall become inapplicable upon an intervening certification of the Board, under which the labor organizations or individuals,, which is a party to the contract, has been superseded as or caused to be the O That an employer may invoke the processes of the Act where it sincerely doubts a union's majority status is well settled. See Toolcraft Corporation, 92 NLRB 655; Whit- ney's, 81 NLRB 75 at 77. 7 See Continental Desk Company, 104 NLRB 912, particularly footnote 10, where the Board said inter alva, . . . It is noteworthy in this connection that, prior to the appearance of the dis- affiliation statements, none of the Respondent's employees who were members of the Union had terminated his union membership. Cf. Pure Oil Company, 62 NLRB 1039. 8 See United States Gypsum Company, 90 NLRB 964, at 966; see also N. L. it. B. v. Poultry Enteiprises, Inc., 207 F. 2d 522 (C. A. 5), enfg. 102 NLRB 211. 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative of the employees subject to the provisions of Section 9 (a). . .. [Emphasis supplied.] In such circumstances the Trial Examiner finds that the Respondent, by failing to comply with the provisions of Section 8 (d) (1), (2), (3), and (4) of the Act during the tenure of its agreement with the Union, engaged in a course or conduct violative of Section 8 (a) (5) and (1) of the Act.9 The General Counsel alleges several specific violations of Section 8 (a) (1) of the Act in his complaint, one of which was to the effect that several of the Re- spondent's supervisory employees made "promises of benefits" to employees at the time they circulated the revocation of checkoff slips among them. In support of this allegation he offered the testimony of several witnesses to the effect that their fore- men told them at the time they distributed and solicited their signatures to the revocation slips that if they signed them they would save themselves $24 a year or in some instances $2 a month. In addition to this testimony President Hexton admitted that he himself had made such statements to the employees while he was on his rounds through the plant during the period in question. The Trial Examiner is not convinced that such statements standing alone were violative of the Act when considered in the light of all the surrounding circumstances. In the first place the Trial Examiner is not convinced that an employer can promise something that he has no legal control over. In other words one cannot give away something that he does not have. Here the right to revoke was the prerogative of the employees. They and they alone could revoke their authorizations for dues checkoff. In such circumstances the Trial Examiner finds that standing alone such statements were not "promises of benefits" within the meaning of the Act and will recommend the dismissal of this allegation in the complaint. This is not to say that such statements were meaningless. On the contrary the Trial Examiner finds that they were part and parcel of the Respondent's "sales talk," so to speak, in securing signatures to the revocation slips. It was the latter activity that was violative of Section 8 (a) (1) of the Act, since it was an illegal interference with the rights of the Respondent's employees to select an agent of their own choosing, or to repudiate such a relation- ship in the mode and manner provided in the Act. In addition to the foregoing the complaint also alleges that the Respondent engaged in certain other conduct that was violative of Section 8 (a) (5) and (1) of the Act, such as (1) refusing to give the Union wage information so that it could intelli- gently discuss with the Respondent its demand for an overall wage increase for the employees, (2) failing and refusing to give to the Union a seniority list of the employees as provided for in the contract; (3) bargaining individually with the employees as regards their wages, hours, and other conditions of employment with- out consulting with the Union; and (4) granting a 5-cent per hour overall wage increase without bargaining upon the subject matter with the Union. The record clearly shows that the Respondent failed to consult with the Union as regards to the granting of wage increases to individual employees, as regards the 5-cent overall wage increase. It also shows that the Respondent failed and refused to give the Union the information it requested as regards certain wage information of employees in the unit, and the seniority list the Union was entitled to under the terms of the contract. Clearly such conduct was individually and collectively violative of the Act, and part and parcel of the Respondent's refusal to bargain with the Union because of its alleged loss of majority. In the circumstances the Trial Examiner sees no necessity of engaging in extensive rationale as to each specific allegation, but he does feel that for remedial purposes specific findings as to each allegation are necessary herein. Consequently these are so disposed of below. The complaint alleges that the Respondent failed and refused to bargain with the Union because it had filed charges with the Board. That the Respondent took such a position is evidenced by its letter to the American Arbitration Association, dated December 29, 1953, wherein its counsel stated inter alia, We have been advised by the National Labor Relations Board that the Union has filed charges with the National Labor Relations Board which will be disposed of in due course of business. Until disposition of those charges, however, the Company is unwilling to bargain with Local 415, UFWA-CIO, and therefore will not agree to arbitration. In view of the plain language of the quoted portion of the above-cited letter which is a part of the record herein, the Trial Examiner has no alternative but to find 0 See John W. Bolton & Sons, Inc., 91 NLRB 989. HEXTON FURNITURE COMPANY 367 as have the Board and the courts in similar situations that the above-stated position of the Respondent was violative of Section 8 (a) (5) and (1) of the Act.'° The complaint also alleges, and the record shows, that the Respondent refused to furnish the Union with certain information as regards the wages paid the individual employees in the unit. The Union requested this information at the meeting be- tween the parties on November 23, 1953, and thereafter by letter on December 2 and 7, 1953. Though the Respondent tentatively agreed to furnish this information at the meeting of November 23, 1953, it retreated from this position in its letter of Decem- ber 4, 1953, wherein it said inter alia, . . . we were prepared to supply you with the wage rate information which you requested. However, inasmuch as you no longer represent the wishes of the majority of our people, we do not feel we can supply you with such infor- mation. In the circumstances the Trial Examiner finds that by refusing to furnish the wage information requested by the Union the Respondent engaged in conduct violative of Section 8 (a) (5) and (1) of the Act." The complaint also alleges as an additional violation of the Act that the Respond- ent refused to furnish to the Union a seniority list of the employees in the unit. The record shows that the Union first requested this information from the Respondent by letter dated December 4, 1953, wherein it said inter aka, We hereby make a further request for a list showing employees seniority status according to length of continuous service as of this date. This request is made in accordance with Paragraph 11 of the contract between your company and our union under the heading "Seniority." We shall appreciate your prompt compliance with this additional request.12 Even though obligated by contract to furnish this information to the Union the Re- spondent chose to ignore the request, on the theory that the Union had lost its majority status as evidenced by the signed revocation of checkoff authorizations which it had received from the employees in the circumstances fully described above. Aside from its obligation under the contract to furnish the above information the Respondent was required to give this information as a matter of law for precisely the same reasons as it was required to furnish the wage information discussed and disposed of above.13 In the circumstances the Trial Examiner finds that the Re- spondent by refusing to furnish the Union a seniority list of the employees in the unit engaged in conduct likewise violative of Section 8 (a) (5) and (1) of the Act. The complaint also alleges that the Respondent granted a 5-cent per hour wage in- crease to the employees without bargaining as regards the subject matter with the Union. The record shows that the Respondent put the wage increase into effect with- out permitting the Union to offer any counterproposals or even to discuss the mat- ter after it posted the notice announcing the wage increase on the bulletin board on December 4, 1953. True the increase had been discussed and President Hexton had made the offer at the meeting between the parties on November 30, 1953, but there is no substantial evidence in the record that the Union was given an opportunity to discuss the offer of 5 cents either with the employees or with the Respondent there- after. Moreover, the Respondent coupled its announcement of the 5-cent raise with the announcement, "we have today withdrawn recognition of the U. F. W." In such circumstances the Trial Examiner is convinced that the granting of the above wage increase was a unilateral action by the Respondent in total disregard of its contrac- tual and statutory obligation to bargain collectively on such matters with the Union as the certified bargaining agent of its employees. That such conduct is violative of the Act is well settled. Consequently the Trial Examiner is convinced and finds that the Respondent by unilaterally granting the employees a 5-cent per hour wage in- crease in the circumstances described fully above, violated Section 8 (a) (5) and (1) of the Act. Now as to the allegation in the complaint that the Respondent violated Section 8 (a) (5) and (1) of the Act by bargaining individually with employees as regards wages and other conditions of employment without consulting the Union. The General Counsel offered little if any substantial evidence in support of this particu- lar allegation . The record does show however that throughout the history of bar- 10 See Kelco Corporation, 79 NLRB 759. 11 See Whitin Machine Works, 108 NLRB 1537, and cases cited therein. 12 See the contract between the parties, General Counsel's Exhibit No. 3. 1s See Whitin Machine Works, supra, and cases cited therein. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining between the Union and the Respondent, beginning with the effective date of the contract, November 24, 1952, up to and including November 24, 1953, the granting of such increases was common practice by the Respondent with the full knowledge and consent of the Union's shop stewards whose duty it was to police the contract for the Union. As a matter of fact the record shows that Lou Nichols him- self, one of the stewards, was granted and as far as this record is concerned, ac- cepted such an increase without protest. Nichols' acceptance of such an increase, and the fact that such increases were a matter of common knowledge among the employees convinces the Trial Examiner that the Union had waived any rights it may have had to protest the Respondent's action in this regard. In such circumstances and upon the record as a whole the Trial Examiner will recommend the dismissal of this allegation in the complaint for failure of the proof. In conclusion the Trial Examiner desires to point out that even though he has made specific findings as regards certain conduct of the Respondent, nevertheless his overall finding that the Respondent has engaged in a course of conduct violative of Section 8 (a) (5) and (1) of the Act has been predicated upon the totality of its conduct as revealed by the record considered as a whole, rather than upon any particular allegation in the complaint. The complaint also alleges that the Respondent engaged in certain other conduct specifically violative of the Act, such as the making of threats of reprisal to the employees if they failed to sign the revocation of dues checkoffs when they were dis- tributed among them by the foreman. The Trial Examiner is convinced that the record does not support this allegation by a preponderance of the reliable, probative, and substantial evidence when considered as a whole. Consequently he will recom- mend that this allegation in the complaint be likewise dismissed. In reaching this conclusion the Trial Examiner is not unmindful of the testimony of Rockafellow, Kunst, and other witnesses as regards their conversations with Fore- men Mankowski and Meyers, and Superintendent Hermann to the effect that they made at one time or another disparaging remarks about the Union, and in particu- lar its ineffectiveness in securing individual wage increases and inability to protect the employees from discharge. As the Trial Examiner sees it this testimony must be considered in its context, and its calculated effect upon the employees to whom the statements were either directed or who may have overheard the conversations and ensuing arguments pro and con. When so considered the Trial Examiner is con- vinced that these remarks, like the alleged promises of benefits discussed above, were nothing more than a part of the Respondent's campaign to get the employees out of the Union. Though the complaint alleges that this conduct of the Respondent was violative of the Act the Trial Examiner is convinced after a careful consideration of the record that such alleged violations were part and parcel of its overall activities in securing signatures to the revocation of checkoff slips. In the circumstances he sees no neces- sity of engaging in additional "logomachy" in this regard, particularly since the end result would be the same as found above. In the considered opinion of the Trial Examiner the remarks of Judge Hastie speaking for the Third Circuit Court of Ap- peals in the Jarka case are applicable here. In that case the General Counsel in his argument before the court insisted that it make additional specific findings of viola- tions of Section 8 (b) (1) of the Act. The court disposed of his argument in this language: . We understand the Board would like two strings to its bow. But we have tested the one and find it strong and entirely adequate. That we think is enough for this case ." 14 So is it here. Finally and in conclusion the Trial Examiner feels that in the circumstances found above that some comment is necessary as regards the status of the contract between the parties at times material herein. There is no question but what the Respondent refused to bargain with the Union during the term of a valid collective-bargaining contract, and to all intents and purposes terminated the contract. In the considered opinion of the Trial Examiner the signing of the revocation of checkoff authorization slips in the circumstances fully described above neither in fact nor in law terminated the contract. Since questions involving the enforcement of contracts, and other matters pertinent to contract law are for the courts, and not for the Board to resolve, the Trial Examiner deems further comment in this regard unnecessary. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent set forth in section I, above, have a 14 See N. L. R. B. v. Jarka Corporation of Philadelphia et at., 198 F. 2d 618 (C. A. 3). GOODMAN MANUFACTURING COMPANY 369 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 refused to bargain with the Union, by initiating and distributing among its employees in an apropriate bargaining unit revo- cation of dues checkoff authorization slips and soliciting their signatures thereto for the admitted purpose of assisting them "to get out of the Union "; by granting them a 5-cent overall wage increase without bargaining with the Union on the subject matter; by failing and refusing to give to the Union certain wage information as regards job classifications of the employees in the appropriate unit ; by failing and refusing to give to the Union a seniority list of its employees in the unit when re- quested to do so by the Union in the mode and manner provided for in a valid writ- ten agreement between it and the Union ; by refusing to bargain with the Union while unfair labor practice charges were pending before the Board ; terminating its collec- tive-bargaining agreement with the Union and/or refusing to perform or comply with the terms thereof in contravention of the provisions of Section 8 (d) (1), (2), (3), and (4) of the Act; and by terminating its valid written agreement with the Union and/or refusing to perform the terms thereof for the purpose of undermining the Union and/or avoiding its'statutory duty to recognize and bargain collectively with the Union, it will be recommended below that the Respondent forthwith take certain affirmative action , and cease and desist from other practices found to consti- tute a refusal to bargain. Upon the basis of the above findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Furniture Workers of America , Local 415, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. The Respondent, Hexton Furniture Company of Grand Rapids, Michigan, is engaged in commerce within the meaning of the Act. 3. All production and maintenance employees at the employer's Grand Rapids, Michigan, plant, excluding office employees, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. At all times since October 17 , 1953, the Union has been the exclusive repre- sentative for purposes of collective bargaining of all the employees in the aforesaid appropriate unit, within the meaning of Section 9 (a) of the Act. 5. By engaging in the conduct fully described above, and particularized in section V, paragraph 1 immediately above this section of the report , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and ( 1) of the Act, and in contravention, and/or total disregard of the pro- visions of Section 8 (d) (1), (2), (3), and (4) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] GOODMAN MANUFACTURING COMPANY, A CORPORATION and LOCAL 1150, UNITED ELECTRICAL RADIO AND MACHINE WORKERS OF AMERICA. Case No. 13-CA-19292. January 28,1955 Decision and Order After a charge duly filed by Local 1150 in this case and a complaint issued thereon alleging that the Respondent had committed violations of Section 8 (a) (5) and (1) of the Act, the Respondent filed with the Board a motion to redetermine the compliance status of Local 1150's 111 NLRB No. 65.