Mid-States Steel and Wire Co.

800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mid-States Steel and Wire Company and Shopmen's Local Union No. 741 of the International Association of Bridge , Structural and Ornamental Iron Workers , AFL. Case No. 10-CA-1954. May 19,1955 DECISION AND ORDER On September 2, 1954, Trial Examiner Sidney Lindner 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 Inter- mediate Report attached hereto. Thereafter, Respondent filed excep- tions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case and finds merit in the Respondent's exceptions concerning the validity of the charge and complaint in view of the limitations of Section 10 (b) of the Act. The Respondent contends that the Board is without jurisdiction to proceed in this case because the sole charge filed herein was invalid under Section 10 (b) of the Act.' The charge was filed on April 12, 1954, alleging (a) that Respondent refused to bargain with the Union "on or about" August 1953 and (b) that by these and other acts and conduct the Respondent violated the employees' rights guaranteed in Section 7 of the Act.2 The complaint issued on April 30, 1954, alleged that Respondent violated Secton 8 (a) (5) and (1) through its refusal to bargain on April 16,1954, and thereafter. We agree with the Respondent that the charge was defective. It was defective on its face, as the only specific violation alleged was a violation of Section 8 (a) (5) occurring during August 1953, more than 6 months before the charge itself was filed.' Furthermore, we do not believe that the general allegation is sufficient standing alone to preserve the validity of the charge and, thus, to set in motion the investigatory machinery of the Board. Its vague language is nothing more than an invitation to the Board to utilize its investigatory processes to uncover for a charging party some violation upon which to issue a complaint. As Section 10 (b) of the Act forbids in effect I The Trial Examiner did not consider this issue in his Intermediate Report. The exact language of the general allegation of the charge was : .By these and other acts and conduct the employer interfered with, restrained and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act e See Section 10 (b) of the Act. 112 NLRB No. 106. MID-STATES STEEL AND WIRE COMPANY 801 the Board's instituting a proceeding on its own motion,4 we cannot perceive how the charge herein can be held valid without doing violence to the statutory intent. Thus, it is our view that we have here a charge in form only, but not in substance. Accordingly, we find that the charge was void ab initio. There being no valid charge to support the issuance of the com- plaint, we shall grant the Respondent's motion and dismiss the complaint. [The Board dismissed the complaint.] CI-IAIRDTAN FARDIEr., dissenting : I agree with the majority that the specific 8 (a) (5) allegation of the charge was not timely under the 6-month proviso of Section 10 (b) of the Act. However, I cannot agree that the charge was, conse- quently, a nullity because its only valid allegation was cast in broad, general terms. It is the complaint and not the charge which is re- quired to frame with precision the issues in a case.' A charge, general in language such as we have here, is, thus, in my view sufficient to give the Board jurisdiction to proceed with an investigation and with the issuance of a complaint if the facts uncovered in the investigation so warrant.' But though the charge may be sufficient to set in motion the Board's investigatory machinery, it may not because of its very gen- erality, fulfill its other function of informing the Respondent within the 6-month period of the nature of the grievance against it.' How- ever, it need not be considered here whether or not the charge was suffi- cient in this respect for the complaint, having issued less than a month after the alleged violation occurred, adequately notified the Respond- ent, well within that required 6-month period, of the specific violation 42V L 12 B v. Kohler Co , 220 F 2d 3 (C A 7) 5 See N L B B v. Waterfront Employers of Washington, at al , 211 F 2d 946, 955 C. A 9) ; N L It B v Nemec Combustion Engineers, 207 F. 2d 655, 656-657 (C A 9), cert denied 347 U S 917, N L It B v Kingston Cake Co, 191 F. 2d 563, 567 (C A 3). 9 See Kansas Milling Co. v N L R. B, 185 F 2d 413 (C. A 10), where the court stated that "A charge in the general language of the statute is sufficient if it challenges the attention of the Boaid and leads to an inquiry under the provisions of the Act " Also, the majority seems to argue that the Board's utilizing its investigatory processes in aid of a charge stated in general terms is tantamount to instituting its own investiga- tion, which is, of course, forbidden I feel that this is stretching a point, especially under the circumstances here. The record shows that a majority of the employees signed a letter in late Alai ch 1954 repudiating the Union and that shortly thereafter the Respondent requested the Union to i enounce voluntarily its representative status In less than 2 weeks thereafter the Union filed the charge which in turn was followed on April 30, 1954, by the issuance of the complaint, alleging a violation of Section 8 (a) (5) on April 16. This refusal was allegedly motivated by the Respondent's relying on the employees' repu- diation letter. Consequently, I cannot imagine that here, to use the court's language in N L R B v. Kohler Co, cited above, the Board got "so completely outside of the situa- tion which gave rise to the charge that it may be said to (have initiated) the proceeding on its own motion . " Certainly, though, the Board has the power to prevent any real abuse should it occur 7 See N L R B v. Waterfront Employers of Washington, et al , supra, and American Shuffleboard Co v N L It B, 190 F 2d 898 (C A 3) 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against which it must defend.' Accordingly, I would find the charge and complaint sufficient under Section 10 (b). Thus, it is my con- clusion that the Board has jurisdiction, contrary to Respondent's con- tention, to proceed in this case. MEMBER LEEDOM took no part in the consideration of the above De- cision and Order. 8 See N L. R B v Jay Co, Inc, 34 LRRM 2589 (C A 9) , A' L R B v Waleifiont Employers of Washtngion, et al , supra. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge duly filed by Shopmen's Local Union No. 741 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL, herein called the Union, the General Counsel of the National Labor Relations Board by the Regional Director for the Tenth Region (Atlanta, Georgia), issued his complaint dated April 30, 1954, against Mid-States Steel and Wire Company, 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, 61 Stat. 136, herein called the Act. With respect to the unfair labor practices the complaint alleged in substance that the Respondent since on or about April 16, 1954, refused to bargain in good faith with the Union as the exclusive bargaining representative of its employees in an ap- propriate unit by withdrawing recognition from the Union as such exclusive bargain- ing representative upon the alleged receipt by it of evidence that a majority of the employees in the said unit no longer desired the Union to represent them, and by refusing thereafter to bargain with the Union concerning wages, hours, and other conditions of employment By its answer duly filed the Respondent denied each and every allegation of the complaint. Pursuant to notice a hearing was held at Jacksonville, Florida, on June 10, 1954, before the duly designated Trial Examiner. All parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. Various motions made by counsel for the Respondent at the outset of the hearing and at the close of the General Counsel's case to dismiss the complaint were disposed of during the hearing A compre- hensive motion to dismiss the complaint by Respondent's counsel received after the close of the hearing and containing substantially the same motions as made during the hearing has been considered No reason appearing why the rulings made at the hearing should not be adhered to, the latter motion is hereby denied. The parties were given the opportunity to present oral argument before the Trial Examiner and to file briefs, proposed findings of fact, and conclusions of law Oral argument was waived. Briefs have been received from the General Counsel and from counsel for the Respondent and have been duly considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following. FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, Mid-States Steel and Wire Company, is an Indiana corporation. Its principal office and place of business is located at Crawfordsville, Indiana, and it maintains an office and plant in Jacksonville, Florida. It is authorized to do busi- ness in the State of Florida. Both plants are engaged in the fabrication and manu- facture of steel wire and wire products. During the year ending May 30, 1954, the Respondent purchased raw materials and supplies consisting principally of steel rods and wire having a value in excess of $1,000,000, more than 50 percent of which was shipped directly to the Respondent's Jacksonville, Florida, plant from places out- side the State of Florida. During the same period the Respondent's sales of finished products were in excess of $1,500,000, approximately 25 percent of which were sold and shipped to customers located outside of the State of Florida. It was stipulated MID-STATES STEEL AND WIRE COMPANY 803 at the hearing and I find that the Respondent is and has been at all times material hereto engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It was stipulated at the hearing that International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL, and its Shopmen's Local Union No. 741, are labor organizations within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES On February 13, 1953, the Union filed a petition for certification of representatives with the Tenth Regional Office of the Board docketed under Case No. 10-RC-2256. After a hearing the Board on April 9, 1953, issued its Decision and Direction of Election in the said representation case, but in the title of the case did not set forth the name of the petitioner as it appeared on the previously filed representation petition. An election conducted pursuant to the Board's Decision and Dnection of Election resulted in the following. of approximately 49 eligible voters, 42 votes were cast for the Union with 7 against On May 18, 1953, the Regional Director for the Tenth Region, pursuant to authority vested in him by the Board, certified that Shopmen's Local Union No. 741, International Association of Bridge, Structural and Ornamental Iron Workers, AFL, was the exclusive representative of all production and maintenance employees, including the over-the-road truckdriver and the stockroom clerk, at the Respondent's Jacksonville, Florida, plant, but excluding office, clerical, and professional employees, watchmen, guards, and all supervisors as defined in the Act Solely to correct the name of the petitionei, the Regional Director for the Tenth Region on October 22, 1953, issued an amended certification of representatives wherein he certified that Shopmen's Local Union No. 741, of the International Association of Bridge, Stiuctural and Oinamental Iron Workers, AFL, was the ex- clusive representative of all the employees in the unit previously found appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment The said amended certifica- tion of representatives, however, was inadvertently typed on NLRB Form 765b, a form devised for certifications in consent-election cases To correct this error the Regional Director for the Tenth Region on May 7, 1954, issued the second amended certification of representatives on the proper form. No evidence was adduced by the Respondent to show that it was prejudiced in any manner by the clerical mistakes in the representation case, or by the corrections made by the Regional Director through the amendments described above, to the certification of representatives In fact, shortly after the certification of representa- tives the Respondent and the Union met in a series of bargaining negotiation ses- sions with a view towaid obtaining a collective-bargaining agreement for the employees. At the end of the negotiation session on March 25, 1954, the parties scheduled another meeting for April 15-16, 1954 Under date of March 31, 1954, Theo Hamilton, counsel for the Respondent, wrote the Union the following letter Re. Mid-States Steel and Wire Company GENTLEMEN The above-named Company has received a petition signed by a majority of its employees in the collective bargaining unit which your Union was certified to represent, indicating that the employees do not wish your Union to represent them any longer We feel certain that your Union will not force itself upon employees who do not want it as their representative We, therefore, request that you notify this Company in writing on or before Monday, April 5, 1954, that you will respect the wishes of the majority of the employees and will not make further claim to such representation. Such a notice will conclude this matter in the shortest possible length of time and with the least difficulty and litigation. However, we further advise you that if we do not receive such a letter, it then will of course be necessary to ask for a formal determination of the issues The original signed petition is available for your representatives' inspection at any time at our office. The parties did not meet on April 15. 309028- 56-col 712 52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 16, James Rutherford and Patrick Williams, general organizers for the Union, met with the following Respondent's representatives : Theo Hamilton, its counsel; E. J. Sommer, president; Larry Whitmarsh, Jacksonville plant manager; Jim Keesee, production manager; and one Curtin , personnel director at the Crawfordsville plant. Hamilton inquired of Rutherford if the Union had received his March 31 letter. Rutherford replied in the affirmative . Upon Hamilton's further inquiry why the Union did not reply to the letter , Rutherford stated in substance that the Union was the certified bargaining agent and it was not aware of any petition mentioned in the letter. During the course of the meeting Hamilton asked the union representa- tives if the Union would relinquish its claim to represent the employees. The Union refused. Secondly, would the Union be willing to hold further meetings in abeyance until a determination was made by the Board as to the proper representation of the employees . The Union would not agree. Hamilton also inquired if the Union would join with the Respondent in a petition to the Board to determine the issue . The Union refused. It appears that several times during the course of the meeting Hamilton told the union representatives that Respondent was in possession of the petition men- tioned in his letter and therefore it could not legally bargain with the Union. He also stated that the Respondent would discuss any phase of the proposed contract with the union representatives but that it would not be in any position to agree to any terms of the contract due to the fact that it could not legally bargain with the Union. Rutherford remarked that he saw no reason why he and Williams should continue to meet with Respondent if legal bargaining could not take place. Hamilton asked Rutherford to set a new date for another meeting between the parties . Rutherford, however, told the Respondent to write the Union a letter when it was ready to change its position and negotiate with the Union . The union representatives then left the meeting. No further meetings were held between the parties. There were received in evidence, as Respondent's exhibits, two petitions bearing the purported signatures of Respondent 's employees . The first petition which was referred to in Hamilton 's March 31 letter to the Union contains the names of 30 em- ployees subscribed after the following legend: To Mid-States Steel and Wire Co. We the undersign Employes wish to have a new election in regards to the Union Local 741 International Association of Bridge Structural and Ornamental Iron Workers A. F. of L. beliving our job is as good as any job we could fine [sic]. There were 55 employees in the bargaining unit at the time said petition was re- ceived by the Respondent. The second petition received by the Respondent on or about May 10, 1954, con- tains the names of 13 employees subscribed after the following legend: To Mid-States Steel and Wire Co. We the undersign employes wish to have our name added to the previous peti- tion [sic]. There were 51 employees in the bargaining unit at the time the second petition was received by Respondent. No evidence was offered by Respondent to prove the authenticity of the signatures appearing on either of the petitions. Conclusions The Board has seen fit to adopt a rule that when a bargaining representative has been elected by a majority of the employees in an appropriate unit and certified by the Board, its representative status cannot be disturbed for a reasonable period, nor- mally about a year. The rule, however, is qualified by the proviso that the Union's majority can be challenged within the certification year where unusual or special cir- cumstances are present.' 1 "Unusual circumstances" were found by the Board where the union representing the employees was dissolved , Public Service Electric and Gas Co., 59 NLRB 325 ; where the bargaining representative switched its affiliation from one international union to another, so that the identity of the bargaining agent was doubtful , Carson Pirie Scott and Co , 69 NLRB 935 , Jasper Wood Pi oducts Co, Inc , 72 NLRB 1306; where the number of employees in the bargaining unit doubled or quadiupled in the space of a year, Westing- house Electric and Manufacturing Co , 38 NLRB 404; Celanese Corporation of America, 73 NLRB 864 MID-STATES STEEL AND WIRE COMPANY 805 The courts of appeal have with one exception (N. L. R. B. v. Vulcan Forging Com- pany, 188 F. 2d 927 (C. A. 6), and Mid-Continent Petroleum Corp. v. N. L. R. B., 204 F. 2d 613 (C. A. 6)) enforced cases involving the rule and as explicated in N. L. R. B. v. Ray Brooks, 204 F. 2d 899 (C. A. 9), cert. granted 347 U. S. 916, "found ample justification for the rule." In its most recent decision involving the rule, the Board in The Baker and Taylor Co., 109 NLRB 245, stated: It is a well-established Board rule that, in the absence of unusual or special circumstances, a Board certification of a bargaining representative must be honored for a reasonable period, usually at least a year following the certifica- tion, despite evidence of repudiation or loss of majority by such bargaining representative? The rule is intended to give effect to the policy of the Act to stabilize industrial relations and it is based on the Board's experience that a period of at least a year is needed to assure employees, through their newly certified representative, an opportunity to establish a functioning collective- bargaining relationship.8 Henry 7Heide Inc, 107 NLRB 1160. N L. R B. v. Ray Brooks, 204 F. 2d 899 (C. A. 9), cert granted March 1954 To the extent that this statement of the Board's so-called "one-year rule" is intended to hold that despite a clear and uncocrced loss of majority a union continues through- out the certification year to be the statutory bargaining representative of the em- ployees, Member Rodgers does not agree. He is of the opinion that once a reasonable period of time, as measured by the circumstances of the individual case, has elapsed since the election and certification, it is "violative of the spirit and the very letter" of the Act for the Board to require employees to continue to be represented by an agent (union) which they themselves for reasons of their own have repudiated. N L. R B. v Globe Automatic Sprinl1cr Co of Pennsylvania, 199 F. 2d 64, 70 (C A. 3). Applying this rule to the instant case, Member Rodgers would find that under the circumstances a lapse of 6 weeks between the Union's certification and repudiation did not constitute a reasonable period of time and that theiefore the Employer's duty to bargain continued 8 18 Ann. Rep 43 In adopting the Board's certification-year rule the Court of Appeals for the Second Circuit has said The purpose of the Act is to insure collective representation for employees, and to that end § 9 gives power to the Board to supervise elections and certify the winners as the authorized representatives Inherent in any successful adminis- tration of such a system is some measure of permanence in the results • fieedom to choose a representative does not imply freedom to turn hun out of office with the next breath As in the case of choosing a political representative, the justi- fication for the franchise is some degree of sobriety and responsibility in its exercise Unless the Board has power to hold the employees to their choice for a season, it must keep ordering new elections at the whim of any volatile caprice; for an election, conducted under proper safeguards, provides the most reliable means of ascertaining the deliberate will of the employees. N. L It B v Century Oxford Mfg Go? p., 140 F 2d 541, 542-3 (C. A. 2), cert. denied 323 U S 714 I have found above that on or about March 29, 1954 (within the certification year) 2 the Respondent received through the mail a petition purporting to have been signed by 30 out of 55 employees in the unit. The petition states on its face that the employees who signed the same wished to have a new election because of their belief that their jobs are as good as any job they could find. The Respondent interpreted the petition as one of repudiation of the Union. In its letter of March 31 addressed to the Union the Respondent stated that the petition indicated that the employees did not wish the Union to represent them any longer. At the next negotiation session held on April 16, the Respondent told the Union that it could no longer legally bargain with it because of the petition it had received from the employees. 0 It will be recalled that the Union was certified on May 18, 1953. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I do not find from the language of the petition or from any other factor present in the instant situation that there were "special or unusual circumstances" such as might justify an exception to the rule as reaffirmed by the Board in The Baker and Taylor Co. case, supra. Moreover, although the record discloses that the Respond- ent received the above-noted petition, the Respondent has failed to establish through necessary evidentiary procedure, either the bona fides of the signatures contained thereon or that the Union otherwise lost its majority standing. See Ideal Roller & Manufacturing Co, 109 NLRB 282. I find therefore that the Respondent by re- fusing on April 16, 1954, and thereafter to bargain collectively with Shopmen'R Local Union No. 741 of the International Association of Bridge, Structural and Orna- mental Iron Workers, AFL, as the certified bargaining repiesentative for the em- ployees in the above-described appropriate unit violated Section 8 (a) (5) and (1) of the Act Among the decisions of the several courts of appeals upon which the Respondent relies is N L. R. B. v. National Shirt Shops of Florida, Inc, 212 F. 2d 491 (C. A. 5).3 The National Shirt Shops decision is inapposite to the present situation for the reason that we were there dealing with a union which was not in existence as a local with members and for more than a year had not been; and that it did not rep- resent and for more than a year had not represented any of the employees As the court very aptly expressed the situation it was "a sort of rotten borough union which had no existence except in the name of one Hall, a regional organizer." In fact, the court expressly stated "this case stands on its own pai ticular facts." It should be noted that this same court in N. L. R. B. v. Sanson Hosiery Mills Inc , 195 F 2d 350, cert. denied 344 U. S. 863, has gone beyond the Board rule (set forth above in The Baker and Taylor Co. case) and stated "whether or not the Union has lost that status [majority] is for the Board to determine upon orderly pro- cedure . . meanwhile it is the duty of the employer to deal with the duly cer- tified Union." 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 operation of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the sev- eral States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I shall recom- mend that the Respondent recognize and bargain collectively with the Union and if an understanding is reached embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. At all times since May 18, 1953, Shopmen's Local Union No. 741 of the Interna- tional Association of Bridge, Structural and Ornamental Iron Workers, AFL, has been the certified bargaining representative of the Respondent's employees in an ap- propriate unit. 2 By failing and refusing at all times since April 16, 1954, to bargain collectively with Shopmen's Local Union No. 741 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL, as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] The otheis are Al. L R B v Vulcan Forpinp Company, 188 F 2d 297 (C A 6), and N L It B v Globe Automatic Sprinkler Co, 199 F 2d 64 (C A 3)