American Steel Foundries

AMERICAN STEEL FOUNDRIES 531 WE WILL NOT in any other manner interfere with, restrain , or coerce our em- ployees in the exercise of their right to self -organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to Lynn E. Boyd immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed; and make him whole for any loss of pay suffered as a result of the discrimination against him. CHRONICLE PUBLISHING COMPANY, INC., Employer. Dated-- -------------- By---------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. American Steel Foundries, Cast Armor Division and Interna- tional Guards Union of America, Independent . Case No. 13- CA-16.7. April 29, 1955 DECISION AND ORDER On June 29, 1954, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel and the Respondent filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case and hereby adopts the findings and conclusions of the Trial Examiner, only insofar as they are consistent with this Decision and Order.' We do not agree with the conclusion of the Trial Examiner that the Respondent had not engaged in a refusal to bargain in violation of i In adopting the Trial Examiner's findings as to jurisdiction , Chairman Farmer and Members Peterson and Rodgers rely only on that portion of his findings that pertain to the Respondent 's multistate operations , and on the data with respect to the Respondent's multistate operations as contained in a stipulation of the parties dated September 1, 1954. Member Murdock disagrees with the rejection of the Trial Examiner's reliance on national defense as the ground for assertion of jurisdiction , which is the ground he would use In Member Murdock's opinion, the reliance by his colleagues on the ground that this Gov- ernment-owned "moth-balled" plant, which is being maintained by the Respondent in a standby condition, is to be considered an integral part of the Respondent's own multistate steel manufacturing operations, appears to be a doubtful extension of the concept of what may be regarded as an integral part of a multistate enterprise. 112 NLRB No. 66. 369028-56-vol. 112-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (5) of the Act. The essential facts involve no difficulty and are not in dispute : On March 24, 1953, the Union was certified by the Board. On May 25, 1953, the Union and the Respondent entered into a collective- bargaining agreement to expire on December 31, 1953, with further provision that either party may serve notice on the other 60 days before the termination date of a desire to discuss terms for a new contract. On October 13, 1953, the Union appropriately requested a meeting with the Respondent to negotiate a new agreement. On November 6, 1953, the Respondent received a petition signed by a majority of the unit employees then employed, stating that they do not wish representation by, or membership in, the Union at the expira- tion of the current contract. On December 10, 1953, a bargaining conference was held between the Respondent and the Union pursuant to the Union's earlier request. The Union initially offered to renew the existing contract, without change. The Respondent refused. The Union then offered to con- tinue the same contract for a term of 6 months, which the Respondent likewise summarily rejected. The reason given by the Respondent for refusing the Union's offers-concerning any agreement to take effect after the present contract expired-was "because of the knowl- edge we had of the people that they did not want to belong." In the Respondent's answer to the General Counsel's complaint, it is ad- mitted that "on or about December 10, 1953, Respondent advised the Union that it could not recognize the Union as the exclusive repre- sentative of said employees after December 31, 1953." [Emphasis supplied.] After December 31, 1953, there were still approximately 3 months remaining in the Union's certification year. On December 17, 1953, the Union filed its charge with the Board alleging that the Respondent unlawfully refused to bargain. The Trial Examiner found that the Union's offers were for a con- tract term of at least 6 months from December 31, 1953, and in effect, that the Union was thus seeking to extend the Respondent's recognition of the Union's majority status for a period of more than 1 year beyond the date of the Union's certification. In these circumstances, he recommends dismissal of the refusal-to-bargain complaint upon reasoning, viz : "As the Union did not seek or display any interest in a contract for the balance of the certificate year and as the Union never sought any further dealings with the Respondent after the termination of the contract on December 31, 1953, the Respondent has never been put to the test of failing to honor the Union's certificate for the remainder of the year which expired on March 23, 1954." In support, the Trial Examiner relies squarely upon Hinde c Dauch Paper Co., 104 NLRB 847, and Vulcan Steel Tank Corp., 106 NLRB 1278. AMERICAN STEEL FOUNDRIES 533 The Trial Examiner's conclusion, we believe, is necessarily in con- flict with the Board's long-settled and judicially approved certifica- tion-year rule.2 The Hinde cQ Dauch, case, supra, stated the rule as follows : A certified union's majority status, in the absence of unusual circumstances, is conclusively presumed to continue for one year following certification. "Unusual circumstances," as the Board uses that expression, are not found by the Trial Examiner and are not present in this case? Con- sequently, there could be no question that as a matter of law the Union's majority" representation was conclusively established at the time of the bargaining negotiations on December 10, 1953. Therefore, as of December 10, 1953, the Respondent was bound to bargain-certainly for the duration of the certification year. It seems clear to us on the basis of the record-evidence that the Respondent failed to meet this obligation to bargain. We cannot comprehend the legal basis upon which our dissenting colleague ascribes to us a "gross misconception" of the 1-year rule and challenges as "patently over-extended" this statement of the Board's certification-year rule. The cases referred to in the footnote below in some of which our colleague joined in the Board holding, all state the rule identically or in substance the same as we have quoted it in the text. Our colleague cites, as authority for a purported correct state- ment of the rule, N. L. R. B. v. Geraldine Novelty Co., 173 F. 2d 14 (C. A. 2), an 8 (3) case which in fact did not even involve the issue of an alleged refusal to bargain. The excerpt of that court opinion quoted in the dissent, when read in context, clearly reveals that the court did not intend to convey the meaning suggested in the dissent. In context, the court's observation that-"Such a period of stability usually extends for about a year in the case of a certified union with a contract, or until near the end of a contract term, if a union contract exists."-is meaningful only as embracing contracts extending be- yond, and not expiring within, the certification year. The Trial Examiner regards as a crucial factor, as already noted, that "the Union did not seek or display any interest in a contract for the balance of the certificate year." At the same time, he finds, as the record bears out, that neither the Union nor the Respondent offered 3 See , e g., The Baker and Taylor Co, 109 NLRB 245; Ideal Roller and Manufacturing Co., 109 NLRB 282 ; Shirlington Supermarket, Inc., et al, 108 NLRB 579; Henry Heide, Inc, 107 NLRB 1160, and numerous earlier Board cases For a discussion of court cases the great weight of which support the rule, see N. L R. B. v Ray Brooks, 204 F. 2d 899 (C A. 9), affd 348 U. S 96 3 As where in the certification year there has been an effective schism in the ranks of the union or the union has become defunct. See, e. g, Carson Pine Scott if Co, 69 NLRB 935; General Electric Co, 96 NLRB 566; Public Service Electric and Gas Co., 59 NLRB 325; C if D Batteries, 107 NLRB No. 261 (not reported in printed volumes of Board Decisions and Orders). See also on general question , Henry Heide, Inc., supra. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contract to expire with the certification year. There is an obvious fallacy in absolving the Respondent from a refusal to bargain because the Union did not offer to make a contract to expire within the certifi- cation year. Contrary to our dissenting colleague there was nothing "invalid" about the Union's bargaining request because it was not so limited. As the Board explicitly held in the Hinde & Dauch case, as well as in other cases, the term of a contract is a bargainable matter. We perceive no principle or concept in collective-bargaining doctrine which precludes the Union, with its majority status thus "conclusively presumed," from requesting in bargaining negotiations a contract of reasonable length, and which makes it incumbent upon the Union to limit its bargaining proposal to a contract having a term no later than the anniversary of its Board certification. Nor, in our view, should such a limitation be imposed on the Union solely because the Re- spondent had received information which gave rise to a doubt on its part as to whether the Union will represent a majority of its employees at the end of the certification year. The Respondent, in these circum- stances, could well have executed a contract with the Union to extend beyond the certification year, in reliance upon the authenticity and reliability of the Board certification recently issued to the Union. But if the Respondent nevertheless had valid reason to and did in good- faith doubt that the Union's majority would continue beyond the peripd of certification, and was unwilling to make a contract to extend beyond the certification year, then in fulfillment of its statutory obligation to bargain, and in the very nature of the bargaining process, it was affirmatively required, at the minimum, to indicate to the Union its willingness to make a contract for a term coextensive with the re- mainder of the certification year.4 Contrary to our dissenting col- league's assertion, by finding that this was the Respondent's obliga- tion, we in no wise relieve the General Counsel of the burden of proof of a refusal to bargain. Such was the course followed by the em- ployers under similar circumstances in the Hinde d i Dauch and Vulcan cases, where the Board held that employers who offered to contract to the end of but not beyond the certificate year had not violated Section 8 (a) (5). These cases do not stand for the proposition, in the given circumstances, that the employer may avoid bargaining, as the Re- spondent did, while in the effective certification period; they do not, as the Trial Examiner apparently but erroneously thought, impose a burden on the Union to propose a contract only for the remainder of the certificate year. The essence of the holding in those cases was that the employer's good-faith doubt of the union's majority during the certification year was a "legitimate" ground, such as any economic 6 See N L R. B. v Reed & Prince Mfg. Co, 205 F. 2d 131 (C. A. 1) cert. denied 346 U. S. 887, holding in part ". . the employer is obliged to make some reasonable effort in some direction to compose his differences with the union , if Section 8 (a) (5) is to be read as imposing any substantial obligation at all." AMERICAN STEEL FOUNDRIES 535 ground, to support the employer's bargaining position that the con- tract term coincide with the expiration of the certification year. Unlike the employers in the Hinde & Dauch and Vulcan cases, the Respondent here was not willing to, and did not in fact, recognize and bargain with the Union during and for the entire certification year. The distinction between the conduct of the employers in those cases and that of the Respondent is evident not only in Respondent's failure to indicate its willingness to contract until the end of the certificate year, but also by the Respondent's own testimony and admission in its answer, described supra, that it would not recognize the Union after December 31, 1953, though after such date there remained 3 effective months in the certification year. That the Respondent continued to process grievances and in other ways dealt with the Union until December 31, 1953, the end of the 7-month contract, has nothing to do with the sole question involved, that of its obligation to bargain for a new contract within the certifica- tion year. The immediate issue and the finding we make concerns the Respondent's refusal to bargain when it was obligated as a matter of law to do so. We further note that Ludlow Typo graph Company, 108 NLRB 1463, is a decision in a representation case and thus inapposite to this proceeding. Accordingly, we conclude that the Respondent violated Section 8 (a) (5) of the Act by refusing, in the negotiations of December 10, 1953, to bargain with the Union, which had been certified by the Board on March 24, 1953, as the exclusive bargaining agent of the employees. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent refused to bargain collec- tively with the Union, as the exclusive representative of its employees in the appropriate unit. We shall therefore order that the Respondent cease and desist from engaging in such, or any like or related, conduct; and upon request, bargain collectively with the Union as the repre- sentative of such employees, with respect to their rates of pay, wages, hours of employment, or other conditions of employment and, if an agreement is reached, embody the terms in a signed agreement. CONCLUSIONS OF LAW 1. International Guards Union of America, Independent, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All watchmen at the Respondent's East Chicago, Indiana, plant, excluding all other employees, the chief watchman, assistant chief 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD watchman, and all other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Guards Union of America, Independent, was, on December 10 , 1953, and at all times since has been, the exclusive bar- gaining representative within the meaning of Section 9 (a) of the Act, of all employees in the aforesaid unit for the purposes of collec- tive bargaining. 4. By refusing to bargain collectively with International Guards Union of America, Independent, as the exclusive representative of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By such refusal to bargain, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Sec- tion 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, American Steel Foundries, Cast Armor Division , East Chicago, Indiana, its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with the Union as the exclusive representative of all its employees in the appropriate unit, with re- spect to rates of pay, wages, hours of employment, or other conditions of employment. (b) In any like or related manner interfering with , restraining, or coercing its employees in the exercise of the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities, or to refrain from such ac- tivities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the Union as the ex- clusive representative of the employees in the appropriate unit and embody in a signed agreement any understanding reached. AMERICAN STEEL FOUNDRIES 537 (b) Post at its plant in East Chicago, Indiana, copies of the notice attached hereto and marked "Appendix A." s Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days from the date of this Order, what steps have been taken to comply herewith. MEMBER RODGERS, dissenting : I cannot agree that under the circumstances of this case a finding is warranted that the Respondent refused to bargain in violation of Section 8 ( a) (5). The Trial Examiner found that the Union sought and requested a contract for a period of at least 6 months from the date of the expira- tion of the existing contract. As the certification year ended on March 23, 1954, and as a contract for a period of at least 6 months from December 31, 1953 (the expiration date of the existing contract), would have extended beyond the certification year, the Trial Examiner concluded that the Respondent did not violate Section 8 (a) (5) by refusing to execute a contract under those circumstances. This conclu- sion is, in my opinion, warranted by the Board's decisions in the Hinde & Dauch and Vulcan cases upon which the Trial Examiner relied. As the Board stated in Hinde d Dauch, Any other position would have deprived Respondent's employees of their right to determine at an appropriate time whether they desired to be represented any longer by the Union." The plain effect of the majority's decision is to create the requirement that a union may demand a contract term extending beyond the certifi- cation year-to which, under the Hinde d Dauch and Vulcan cases, the Respondent is clearly under no obligation to agree-and the Re- spondent must nonetheless make an offer indicating "to the union his willingness to make a contract co-extensive with the remainder of the certification year." In other words, the majority is saying that re- gardless of the propriety of the Union's bargaining request, the Respondent has the affirmative duty of coming forward with an offer which would have the effect of perfecting or correcting the Union's invalid request. It seems to me that the net effect of this line of 5In the event that this Order is enforced by 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 " 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasoning is to adopt a rule, wholly unprecedented, which would relieve the General Counsel of the affirmative burden of proving that the Respondent refused to bargain in violation of the Act , and would shift to the Respondent the burden of proving that it did not refuse to bargain in good faith. Apart from the above considerations , which in and of themselves demonstrate serious error in the majority 's disposition of this case, I feel it incumbent on my part to call attention to what I regard as a gross misconception by the majority of the 1-year certification rule. In the first place, the construction my colleagues give to the 1-year certification rule is patently overextended. The Court of Appeals for the Second Circuit in N. L. R. B. v. Geraldine Novelty Co., 173 F. 2d 14, stated : Consistently with the purpose of the Act to insure to employees the right to have a collective bargaining representation of their own choosing, the Board has established the administrative doctrine that once the representative has been certified, or recognized by contract, there must be some measure of permanence to the rela- tionship. Such a period of stability usually extends for about a year in the case of a certified union without a contract , or until near the end of a contract term, if a union contract exists. [Em- phasis supplied.] Here, the Union was certified on March 24 , 1953. On May 25, 1953, the Union and the Respondent executed a collective-bargaining agree- ment to expire on December 31, 1953-or less than 3 months before the end of the certification year. In the Ludlow Typograph case, the Board stated in explicit language that: It must never be forgotten that the Act is designed primarily to protect the right of employees to self-organization and that the refusal to conduct an election when a substantial number of em- ployees have indicated a desire to change bargaining representa- tives is a restraint on that right. Such a restraint for a reason- able period of time, as after certification , may be necessary to achieve a measure of stability in labor relations, but it should not extend beyond what is absolutely essential for the establishment of sound labor relations. The original reason for the 1-year certi- fication rule was to afford time to the certified union and the em- ployer for negotiating a collective bargaining agreement free of interference by rival claims of representation . The rule itself was a pronouncement of the Board and is nowhere required by the Act. In the Board's experience, 1 year is an adequate time for the certified union and the employer to reach agreement on terms and conditions of employment , if they are ever to do so. But, if AMERICAN STEEL FOUNDRIES 539 the parties are able to agree on a collective bargaining contract in less than the 1 year allotted, there is no sound reason for saying that they shall have the remainder of the year to make a second or third contract free of interference by rival claims of represen- tation. [Emphasis supplied.] The facts of this case fall within the precise lines of the Ludlow Typograph situation. Unlike the Bay Brooks type of case where a majority of the employees , 1 week after the Board election repudiated their previously expressed desire to have the union represent them, and the Respondent refused to deal with the Union for that reason, we have here a situation where within the 1-year certification year, the parties not only executed an agreement but actually bargained fully during the entire term of the contract . If the Ludlow Typo- graph decision means anything, it means that where a contract is made within the certification year and expires prior to the end of that year, petitions for elections will be entertained without waiting for the certification year to end. As the Board stated it, "we believe that a sounder rule and one more in keeping with the purposes of the Act is to allow the contract to control the filing of a new petition." [Em- phasis supplied.] Under these circumstances, the Ludlow Typo graph decision is clearly apposite and cannot be summarily brushed aside, as the majority apparently does in its present decision . If the Re- spondent could have raised a question concerning representation, as it was unquestionably entitled to do under Ludlow Typo graph, it could likewise raise, before negotiating a second contract, the ques- tion of the repudiation of the Union by the employees in the unit as affecting the Union's majority status , without incurring the risk of a refusal to bargain finding. The majority's comment to the effect that the principle enunciated by the Board in Ludlow Typograph "is a decision in a representation case and thus inapposite to this proceeding" is unconvincing to say the least. My colleagues apparently fail to see the clear impact which principles established in representation proceedings have upon the rights and obligations of parties in unfair labor practice cases. In so doing, they choose to ignore, without explanation or excuse , the in- numerable decisions of this Board where the rights of parties in unfair labor practice cases were determined by applying principles estab- lished in representation proceedings. By way of example, I would refer my colleagues to the William Penn Broadcasting Company 6 case. In that case the Board was called upon to determine whether an employer had violated Section 8 (a) (2) and (1) of the Act by continuing to bargain with an incumbent union in the face of a peti- tion filed by a rival union. The Board held that an employer does 693 NLRB 1104. 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not violate the Act under such circumstances unless the pending peti- tion creates a real question concerning representation. And in the latter connection the Board, significantly, had this to say : The existence of such a question concerning representation is determinable by applying the same criteria, contemplated in Sec- tion 9 of the Act, that are uniformly applied by the Board in finding a "question of representation" before proceeding to an election. The Board then went on to dismiss the complaint on the ground that no question covering representation existed since it had not been established that the pending petition encompassed employees within an appropriate unit. If, in the Penn Broadcasting Company case, the question of whether or not the Act has been violated is made to turn on whether, in a representation proceeding, the Board would find that the petition raised a question concerning representation, I am at a loss to under- stand why, in the instant case, the Respondent's obligation to bargain with the Union does not similarly hinge on whether, in a representa- tion case, the Board would find that a question of representation existed at the time of the Union's bargaining request. Under the cir- cumstances, I am compelled to conclude that the true reason for the majority's refusal to apply the Ludlow rule to this case is not that they consider Ludlow "inapposite" but that they would limit the applica- bility of Ludlow to questions concerning representation raised by unions, to the arbitrary exclusion of employers. They would, of course thereby contravene Section 9 (2) of the Act which requires uniformity of treatment in the determination of questions concerning representa- tion. My colleagues seem to forget that, as stated by the court in Davis Furniture Company, et al. v. N. L. R. B., 205 F. 2d 355, 357 (C. A. 9) "Congress made [the Board] an agency not as a labor Board-created to aid labor in its struggle against the employer. As shown by its name Congress created [the Board] to be a board con- cerned with the administration of `labor relations' in which the rights of the employer are to be as jealously guarded as those of the employee." Accordingly, apart from the basic error by the majority in effecting an unwarranted shift of the burden of proof from the General Counsel, where it properly belongs, to the Respondent, the majority decision is completely inconsistent with the Board's expressed policy as enun- ciated in Ludlow Typograph. For these reasons, I would adopt the Trial Examiner's recommended dismissal of the complaint. MEMBER LEEDOM took no part in the consideration of the above Decision and Order. AMERICAN STEEL FOUNDRIES APPENDIX A NOTICE TO ALL EMPLOYEES 541 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, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with International Guards Union of America, Independent, as the exclusive represen- tative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, or other condi- tions of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist Interna- tional Guards Union of America, Independent, or any other labor organization, to bargain collectively through representatives of their choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL bargain upon request with International Guards Union of America, Independent, as the exclusive representative of all em- ployees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, or other conditions of employment, and embody in a signed agreement any understand- ing reached. The bargaining unit is : All watchmen at the Respondent's East Chicago, Indiana, plant, excluding all other employees, the chief watchman, as- sistant chief watchman, and all other supervisors as defined in the Act. AMERICAN STEEL FOUNDRIES, CAST ARMOR DIVISION, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon charges filed by International Guards Union of America, Independent, here- in called the Union, the General Counsel by the Regional Director for the Thirteenth Region (Chicago, Illinois ) of the National Labor Relations Board, herein called the 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board, issued his complaint, dated April 15. 1954, against American Steel Foundries, Cast Armor Division, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge, together with notice of hearing, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that since October 19, 1953, the Respondent has refused to bargain with the Union as the certified representative of employees in an appropriate unit at the Cast Armor Division and thereby has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by the Act. In its answer the Respondent denies that it is engaged in commerce at its Cast Armor Division or that such operations affect com- merce within the meaning of the Act, admits that on December 10, 1953, it refused to bargain with the Union upon the latter's request, but denies that said refusal to bar- gain was or is an unfair labor practice. Pursuant to notice a hearing was held before me on May 10, 1954, at Chicago, Illinois. The General Counsel, the Respondent, and the Union were represented at the hearing by counsel or representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. Before the close of the hearing, the General Counsel and the Re- spondent presented their views and arguments on the record. The Respondent's motion to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, is disposed of in accordance with the findings herein. Only the Respondent has filed a brief. Upon the entire record of the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New Jersey corporation with its principal office located in Chicago, Illinois, operates manufacturing plants in the States of Illinois, Indiana, New Jersey, Ohio, and Pennsylvania. The plant involved in this proceeding, located in East Chicago, Indiana, is owned by the United States Government and is known as the Cast Armor Division. From January 18, 1951, to October 1, 1953, the Re- spondent operated the Cast Armor Division for the Ordnance Department of the United States Army and, under a "letter-order" contract, produced turrets and hulls for a new medium tank. The "letter-order" was a cost reimbursable type of contract under which all purchases made by the Respondent for the plant in excess of $500 required prior written approval of the Government contracting officer or his representative, title to all materials, tools, and equipment remained in the Gov- ernment, and all castings produced by the Respondent belonged to the Government and were shipped by the Respondent under written direction of the Chicago Ordnance District. During this period, the Respondent caused materials to be purchased and trans- ported to the Cast Armor Division from outside the State of Indiana in an annual amount exceeding $200,000 in value and caused large quantities of products pro- duced at this plant to be transported outside the State of Indiana in an annual amount exceeding $200,000 in value. Insofar as possible all accounts and records for this plant were kept separate from the Respondent's other operations. Some supplies and equipment, manufactured at the Respondent's other plants, were shipped to the Cast Armor plant.' However, no product manufactured in any of the Respondent's other plants became a part of the product manufactured in the Cast Armor plant and no shipments were made from the Cast Armor plant to any other plant of the Respondent. The Respondent had a single manager of industrial relations for all plants, including the Cast Armor Division. On September 30, 1953, production ceased at the Cast Armor Division and the contract with the Ordnance Department was amended to provide for "laying away" the plant. This consisted of protecting the machinery and equipment for long-term storage, without heat, in such a way that the plant could be quickly reactivated if necessary. This operation was about 98 percent completed by January 31, 1954. The Respondent and the Ordnance Department then entered into two new contracts which are now in effect. One contract requires the Respondent to protect and main- 1 For example, couplers were manufactured at the Respondent's Alliance plant and sent to the Cast Armor Division. AMERICAN STEEL FOUNDRIES 543 taro the Cast Armor plant by providing guard service and maintenance employees to inspect and make minor repairs to equipment, machinery, buildings, and struc- tures. The second contract requires the Respondent to provide supervision over the erection of dehumidifying hutments 2 to be used for the storage of Government- owned equipment shipped to the plant from other Government locations. The actual work of erecting the hutments is performed by subcontractors hired by the Respondent , with the approval of the Ordnance Department . The guards and maintenance personnel are employees of the Respondent. The arrangements under both contracts are on a cost reimbursable basis. It is estimated that the protective equipment and material to be purchased during 1954 in order to maintain the plant in this standby basis will cost about $14,000. The record does not disclose how much money the Respondent will receive for the services rendered under these contracts. On the above-stipulated and undisputed facts, the Respondent contends that since the cessation of production at the Cast Armor plant on September 30, 1953, no basis exists for the assertion of jurisdiction by the Board as a matter of law or of policy 3 I find these contentions to be without merit. Aside from the multistate aspects of the Respondent 's operations, the record is clear, and I find, that the Respondent's operations at the Cast Armor plant , both before and after September 30, 1953, substantially affect the national defense . I find that the Respondent's operations affect commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction in this proceeding.4 II. THE ORGANIZATION INVOLVED The complaint alleges, the answer admits , that I find that International Guards Union of America, Independent, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The refusal to bargain The material facts are not in dispute. On March 24, 1953, the Union was certified by the Board as the exclusive bargain- ing representative for a unit of guards at the Cast Armor plant.5 On May 25, 1953, the Union and the Respondent executed a contract which was to terminate on De- cember 31 , 1953, and which permitted either party to give written notice, 60 days prior to the termination date, of a desire to make changes and to discuss terms and conditions of a new agreement . The contract also provided , inter alia, for a modi- fied union shop and for the checkoff of union dues and assessments. On October 13, 1953, the Respondent's director of personnel received from Merlin W. Griffith , the Union's vice president , a letter advising that the Union desired to negotiate a new agreement and suggesting the third week in November as a suitable time for a meeting . On December 3, 1953, the Respondent 's acting personnel super- visor wrote to Griffith , acknowledging a telephone conversation in which Griffith had proposed that the present contract be extended for 6 months , reaffirming his earlier assertion of lack of authority to negotiate contracts for the Respondent , advising that the writer had contacted E. J. Walsh, Respondent 's manager of industrial relations, who suggested a meeting for December 10, 1953, and asking whether the proposed date was satisfactory . Upon a further exchange of correspondence , it was mutually agreed to meet at 1 p. m. on December 10. These are buildings within a building On Februai y 25, 1053, the Board asserted jurisdiction and directed an election in the unit of guards involved in this proceeding (13-RC-3148) 4Page Airways, Inc, 108 NLRB 1105 ( In this case , the services rendered by the employer to the Ordnance Corps of the United States Army consisted of the storage and protection of machine tools used in the production of ammunition, arms, and other military equipment ) See also Machine Produceis Company. 32-RC-701 ( not ieported in printed volumes of Boaid Decisions and Orders ) (Here the employer was engaged on a cost-plus basis in processing and storing military type vehicles owned by the United States of America ) G The unit was defined as consisting of all watchmen at the Respondent 's East Chicago, Indiana, plant, excluding all other employees , the chief watchman, assistant chief watch- man, and all other supervisors as defined in the Act ( 13-RC-3148 , not reported in printed volumes of Board Decisions and Orders). 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meanwhile on November 6, 1953, the Respondent received a petition addressed to Personnel Supervisor Mauk and signed by a majority of the guards then in the umt.e The pertinent paragraphs of the petitions are as follows: We, the undersigned Guards of the Cast Armor Division , American Steel Foundries do not want representation or membership in Local No. 47 of the International Guards Union of America at the expiration of their present contract. We do not know what procedure we must follow to discontinue membership in the above union so, we are informing you now of our feelings in this matter. The undersigned wish to bring this matter to your attention now, since our present contract with the Company expires at the end of this year. The undisputed evidence shows, as the General Counsel concedes, that the Re- spondent had nothing to do with the initiation , preparation , or circulation of this petition and in no way influenced the guards with respect to their union representation. The constitution and bylaws of the International and the Local contain no provisions for the voluntary withdrawal or resignation of membership. At the December 10 meeting, the Union was represented by Vice-President Griffith, Local Union Representative Parker, and Business Agent Echoles ; the Respondent was represented by its manager of industrial relations , Walsh, and former Personnel Supervisor Saunders. Only Griffith and Walsh testified as to what occurred at this meeting and there is no serious dispute between them. Griffith offered to renew the current contract, without change, to take effect at its expiration on December 31, 1953. Walsh refused because of the petition received by the Respondent and signed by a majority of the guards to the effect that they no longer wanted to be represented by the Union at the expiration of the current contract . Griffith then accused the Respondent of intimidating the guards into signing this petition , an accusation which Walsh denied. Walsh testified that when he turned down Griffith's request for a renewal of the current contract for the reasons already set forth, Griffith offered to extend the existing contract for a period of 6 months, which Walsh refused for the same reasons. Griffith testified that he did not remember the period for which he offered to renew the contract but that he was certain that he wanted it to coincide with the wage negotiations under the contract of the United States Steelworkers for production and maintenance employees. In view of the undisputed fact that the contract of the United States Steelworkers expires on September 1, 1954, I find that Griffith offered either to renew the contract as it was (for a period extending a little over 7 months) or to extend the contract for a period of 6 months from December 31, 1953. Neither Griffith nor Walsh offered or requested a renewal or extension to the end of the certificate year. On December 17, 1953, the Union filed the present refusal to bargain charge with the Board. The Respondent continued to process grievances and to deduct dues under the then existing contract, and as late as December 31, 1953, honored the Union's request for a deduction of an assessment pursuant to the terms of the contract. So far as appears from the record , the Union neither communicated with the Respondent in any way nor sought to process any grievances after the expiration of the contract. At all times from November 6, 1953, to the date of the hearing on May 10, 1954, the signatures on the withdrawal petition represented either a majority or 50 percent of the guards employed in the unit.? B. Conclusions as to alleged violations of Section 8 (a) (5) and (1) The General Counsel contends that the Respondent violated its statutory duty to bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act (1) by failing to meet with the Union within a reasonable time, such as a week, after receipt of the Union's letter of October 12, 1953, requesting a meeting to negotiate a new contract, which failure allegedly was a factor in causing the guards to sign the withdrawal petition, and (2), in any event, by refusing during the certificate year e Due to the cessation of production , the number of guards employed by the Respondent in the unit had been reduced from 70, at the time of the Union 's certification , to 16 at the time of the submission of this petition, which was signed by 10 of the guards then employed 7 By March 1 , 7934, the number of guards employed in the unit had been reduced to eight. Of this number, the signatures of four appear on the withdrawal petition. The Respondent has no plans for the recall of the laid-off guards but anticipates that the complement of eight will continue so long as the plant remains in standby condition. AMERICAN STEEL FOUNDRIES 545 on December 10, 1953, to negotiate a new contract or to renew the old one, to take effect on December 31, 1953, approximately 21/2 months before the termination of the certificate year. In its brief, the Respondent contends that there was no unusual delay in arranging the meeting date for December 10; that the Respondent in no way contributed to the Union's loss of majority, as disclosed by the record and the withdrawal petition submitted to the Respondent on November 6; that in view of the Union's loss of majority representation, the Respondent was under no obligation to execute a second contract to extend for a period beyond the certificate year; and that, in any event, the drastic reduction in the number of guards and other employees necessitated by the cessation of production coupled with the withdrawal petition signed by a majority of the guards in the unit and the fact that the Union had already enjoyed the benefits of one contract since certification, constituted the "unusual circumstances" required by the Board to render the 1-year certification rule inapplicable. I find no merit in the General Counsel's first contention. In its letter of October 12, the Union itself suggested the third week in November as a suitable meeting date. As that date was subsequent to the Respondent's receipt of the withdrawal petition on November 6, the Respondent's failure to meet with the Union until December 10 could in no way have induced the guards to sign the withdrawal petition. Moreover, the Respondent was acting in good faith in not meeting with the Union until December 10. The Respondent deals with 6 or 7 other unions, and was engaged in processing a number of grievances and arbitration cases. Finally this date was mutually agreed upon after correspondence with the Union which at no time voiced any dissatisfaction or objection. I find that the Respondent did not refuse to bargain by not arranging a meeting date before December 10. With respect to the General Counsel's contention of a refusal to bargain on Decem- ber 10, 1953, the record shows, as I have previously found, that the Union sought and requested a contract to extend for a period of at least 6 months from December 31, the expiration date of the then current contract. The Respondent refused because of the withdrawal petition signed by a majority of the guards in the unit. Griffith gave no indication or intimation that he would even consider a contract extending to March 23, 1954, the end of the certification year On December 10, the Respondent entertained a good-faith doubt as to the Union's continued majority representation in view of the withdrawal petition of November 6. The Respondent had engaged in no unfair labor practices and the withdrawal petition contained the free and volun- tary signatures of a majority of the guards in the unit. Under these circumstances, the Respondent did not violate Section 8 (a) (5) and (I) of the Act by refusing to execute a contract extending beyond the certificate year.8 As the Board stated in the Hinde & Dauch decision, to hold otherwise would "require the employees to forego the right, which the Act gives them, to reject their bargaining representative at the end of the certification year." As for the Respondent's alternative contention that, in any event, "unusual circum- stances" existed in this case which rendered the certificate-year rule inapplicable, I am of the opinion that this issue is not presented to me for decision by this record. Except for the refusal to execute the contract sought by the Union on December 10, which I have found was not unlawful, the record discloses, without contradiction, that the Respondent continued to recognize and deal with the Union whenever re- quested. As the Union did not seek or display any interest in a contract for the balance of the certificate year and as the Union never sought any further dealings with the Respondent after the termination of the contract on December 31, 1953, the Respondent has never been put to the test of failing to honor the Union's certificate for the remainder of the year which expired on March 23, 1954. It may well be that, upon request, the Respondent would have refused to recognize the Union as the exclusive bargaining agent or to process any union grievances during the approximate 21/2 remaining months of the certificate year. However, on the basis of the record before me, any holding to that effect would have to be based on pure speculation. Under all these circumstances, I find that this record does not truly pose the alterna- tive issue raised by the Respondent. On the basis of the foregoing, I shall recommend that the complaint be dismissed in its entirety. [Recommendations omitted from publication.] 8 Vulcan Steel Tank Corporation, 106 NLRB 1278; The Hinde t Dauch Paper Company, 104 NLRB 847.