Clark & Lewis Co.

CLARK & LEWIS CO. 865 2. By refusing to employ Roy S . Morgan, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) of the Act. 3. By the foregoing conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent has not otherwise engaged in unfair labor practices. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT encourage membership or activity in behalf of Local 460, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner in re- gard to hire or tenure of employment, except to the extent permitted under Section 8(a)(3) of the Act. WE WILL make whole Roy S. Morgan for any loss of pay suffered as a result of our discrimination against him. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent permitted under Section 8(a)(3) of the Act. All our employees and prospective employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization, except as above stated. CONSOLIDATED WESTERN STEEL DIVISION- UNITED STATES STEEL CORPORATION, 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. Clark & Lewis Co. and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers, Warehousemen, Helpers, Bakery Salesmen and Dairy Employees, Local Union No. 390. Case No. 12-CA-346. Janu- ary 8, 1959 DECISION AND ORDER On September 30, 1958, Trial Examiner George Bokat issued this Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8(a) (1) and (5) of the Act, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the copy of the Intermediate report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 122 NLRB No. 103. 505395-59-vol. 12 2-5 6. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.2 The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Upon the basis of the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Clark R Lewis Co., Miami, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing or failing to bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers, Warehousemen, Helpers, Bakery Sales- men and Dairy Employees, Local Union No. 390, as the exclusive representative of all drivers and warehousemen employed at the Respondent's Miami, Florida, warehouse, excluding all other em- ployees, guards, professional employees, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Conditioning further bargaining with said Union upon the approval of the employees in the aforesaid bargaining unit. (c) In any manner initiating, fostering, or assisting in the prepa- ration of petitions to decertify the aforementioned Union or any other labor organization of its employees, or making promises of benefits to discourage membership in the said Union or any other labor organization of its employees. (d) Granting wage increases or other benefits to its employees in order to persuade them, either individually or as a group, to bargain directly with the Respondent in disregard of their certified bar- gaining representative. (e) Interrogating employees concerning their complaints, griev- ances, or reasons for desiring the Union and as to their individual desires and intents regarding continued representation by the Union, in a manner constituting interference, restraint, or coercion in viola- tion of Section 8(a) (1) of the Act. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self -organiza- i Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 'We have carefully examined the record and find no merit in the Respondent's allega- tion of prejudice on the part of the Trial Examiner. CLARK & LEWIS CO. 867 tion, to form labor organizations, to join or assist the above-named Union or any other labor organization, and to engage in other con- certed activities or other mutual aid or protection, or to refrain from any and 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 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 exclusive representative of all employees in the above-described appropriate unit and embody any understanding reached in a signed agreement. (b) Post in conspicuous places at its place of business in Miami, Florida, including all places where notices to employees are custo- marily posted, copies of the notice attached hereto marked "Appen- dix A.73 Copies of such notice, to be furnished by the Regional Director for the Twelfth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it imme- diately upon receipt thereof in conspicuous places, and maintained by it for at least sixty (60) consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notice is not altered, defaced, or covered by any other material. (c) Notify the said Regional Director in writing, within ten (10) days from the date of this Order, what steps it has taken to comply herewith. 5In 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 A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL, upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Freight Drivers, Warehousemen, Helpers, Bakery Salesmen and Dairy Employees, Local Union No. 390, as the ex- clusive representative of all employees in the following bargaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All drivers and warehousemen employed at our Miami,. Florida, warehouse, excluding all other employees, guards, professional employees, and supervisors as defined in the Act_ WE WILL NOT condition further bargaining with the aforesaid. Union upon the approval of the employees in the aforesaid bar- gaining unit. WE WILL NOT in any manner initiate, foster, or assist in the. preparation of petitions to decertify the aforementioned Union or any other labor organization of our employees, or make promises of benefits to discourage membership in the said Union or any other labor organization of our employees. WE WILL NOT grant wage increases or other benefits to our em- ployees in order to persuade them either individually or as a group, to bargain directly with us in disregard of their certified bargaining representative. AVE WILL NOT interrogate our employees concerning their com- plaints, grievances, or reasons for desiring the aforesaid Union nor as to their individual desires and intents regarding continued representation by the said Union, in a manner constituting inter- ference, restraint, or coercion in violation of Section 8(a) (1) of the Act. WE WILL NOT in any like or related manner interfere with,, restraint, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, and to. engage in other concerted activities or other mutual aid or pro- tection, or to refrain from any and all of such activities except to. the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment as authorized in Section 8(a) (3) of the Act. CLARK & LEWIS Co., 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 This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in Miami, Florida, on May 5, 1958, on complaint of the- General Counsel and answer of Clark & Lewis Co., herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(5) and Sec- tion 8(a)(1) of the Act. The parties presented oral argument and a brief has been received from the Respondent. CLARK & LEWIS CO. 869 Upon the entire record and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Florida corporation maintaining an office and warehouse in Miami, Florida, where it is engaged in the wholesale distribution of groceries and frozen foods. During Respondent's last accounting period, it purchased and re- ceived directly from points outside the State of Florida merchandise valued in excess of $500,000. During the same accounting period it sold and caused to be shipped from the State of Florida directly to points outside the State of Florida, mer- chandise valued in excess of $50,000. I find that the Respondent is engaged in commerce within the meaning of the Act and that it would effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Freight Drivers, Warehousemen, Helpers, Bakery Salesmen and Dairy Employees, Local Union No. 390, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The appropriate unit; the Union's majority status On December 3, 1957, following appropriate representation proceedings, the Union was duly certified as the exclusive representative of the Respondent's em- ployees in the following appropriate bargaining unit: All drivers and warehousemen employed at the Respondent's Miami, Florida, warehouse, excluding all other employees, guards, professional employees, and supervisors as defined in the Act. At the Board-conducted secret election held on November 22, 1957, there were 14 voters, 10 voting for the Union and 4 against. There were no challenged ballots. Accordingly, I find that the aforesaid unit constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I find further that on December 3, 1957, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appro- priate unit and pursuant to Section 9(a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. B. The refusal to bargain collectively 1. The facts On October 16, 1957, the Union wrote the Respondent stating that it represented a majority of its drivers and warehousemen and requested a meeting for the pur- pose of negotiating an agreement. The Respondent replied by letter of October 24, advising the Union that it had consulted "our attorneys in order to fully ascertain our legal position" and "Just as soon as we hear from them we will be in touch with you. Or, if you prefer, you may consult with Mr. Robert C. Lane, at- torney, . . Between the receipt of the Union's letter of October 16 and the Respondent's reply of October 24, Attorney Lane separately interviewed in his office the 14 drivers and warehousemen who comprise the bargaining unit involved herein, for the purpose, as alleged in the complaint, of ascertaining "their complaints, or grievances, or reasons for desiring the Union." Walter Roper, the only white employee in the bargaining unit, went to Lane's office during working hours on instruction from his foreman as did the other employees. Roper, who was looked upon as a leader and spokesman of the drivers, and who later served on the Union's negotiating committee, told Lane he wanted the Union because he wanted "a raise in pay." Lane learned from the individual interviews that most of the other employees felt the same as Roper. Lane became convinced that the men were justified in their need for more money and told them so. But he went further, and I now quote Lane's own testimony, "I told each and every one of these individuals in my office that I thought I could get them a raise without the neces- 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sity of having a union to get it for them." I also find that Lane asked Roper if he had signed a union card.' On October 25, the Union filed a representation petition with the Tampa Re- gional Office of the Board. On the same day the Regional Office wrote to the Respondent notifying it of the filing of the petition. On October 30, Lane wrote to the Regional Office stating that he had a meeting scheduled that afternoon with the Union "and I trust something constructive can be accomplished." On Novem- ber 5, the Regional Office issued a notice of hearing in the representation case (12-RC-229) scheduling an oral hearing for November 14. Somewhere between November 6 and 11, Lane convoked a meeting of the employees at the Respondent's warehouse. Lane "said he had talked to each employee and he had found out that it was a raise in pay that everybody wanted. So he said that he thought we would be better off if we settled it outside of the Union." Lane said he "felt that we deserved a raise," but when one of the em- ployees asked if he was "promising a raise," Lane said he "couldn't promise any- thing until [the Union] was decertified; it was killed." 2 That same afternoon or shortly thereafter, Shipping Clerk Foreman Williams. asked each of the employees in the bargaining unit to sign a so-called "Decer- tification Certificate" which had been prepared by Attorney Lane. It certifies that each of the undersigned employees withdraws his application for membership in the Union and that each no longer wants membership in the Union. All 14 em- ployees signed. Lane admitted initiating the "Decertification Certificate." He advised his client "that I thought it was proper, and I advised that if the boys wanted it they should have it." Lane testified that when none of the employees interviewed by him in his office registered any unfavorable complaints against my client, with the exception that they wanted more money, and when at least four of these fourteen em- ployees stated to me they tried to get the other boys to go direct to Mr. Morrison [vice president of Respondent] and ask him for an increase, but they wouldn't, I saw it then, and I see it today, that there was one happy family of employer-employee relationships that needed no disturbance. All that was necessary was that the employees needed a raise in pay. The decertification petition that was prepared after that meeting-that is. where I got the idea of preparing the certificate, from what they said, I pre- pared it and sent it out. It came back to me signed. I find that Lane suggested withdrawal from the Union during the individual interviews in his office and at the joint meeting with the employees with the promise they would get a raise in pay. I accordingly find that the Respondent interfered with, restrained, and coerced its employees within the meaning of Section 8 (a) (1) of the Act, as alleged in the complaint by: (a) drafting a petition for its employees to sign, renouncing any membership or adherence to the Union; (b) causing said petition to be circulated among its employees; and (c) conditioning a wage increase upon getting rid of the Union. It is settled law that Section 8(a)(1) of the Act makes it unlawful for an employer to instigate and promote a decertification pro- ceeding or induce employees to sign some other form of union-repudiating petition, particularly where the solicitation is reinforced by express or implied promises of economic benefit. N.L.R.B. v. Lovvorn, d/b/a Georgia Twine & Cordage Com- pany, 172 F. 2d 293, 294 (C.A. 5); N.L.R.B. v. Poultry Enterprises, Inc., 207 F. 2d 522, 524 (C.A. 5); N.L.R.B. v. Louisville Container Corp., 209 F. 2d 654, 655 (C.A. 6); N.L.R.B. v. Parma Water Lifter Co., 211 F. 2d 258, 262 (C.A. 9), cert. denied, 348 U.S. 829; Birmingham Publishing Company, 118 NLRB 1380. 'Lane denied questioning the employees about their union affiliation. See footnote 2, infra, where I indicate my reasons for crediting Roper's version. 21 am quoting from Roper's testimony. Roper was the only employee who testified. Although there appears to be not too great a conflict between Roper's testimony and that of Lane, and I have in most instances been able to reconcile the varying interpretations placed on some of the events by each of these witnesses, I believe Roper to be the more disinterested and reliable witness. At the time he testified Roper had withdrawn from the Union and had no reason to be antagonistic to his employer. Lane, on the other hand, had gotten himself emotionally involved as an active participant in his client's labor troubles, and although I respect him as a most sincere and earnest advocate, he was not a disinterested witness. Where indicated in this Report therefore, I believe and find that Roper more accurately reflected the thrust of Lane's remarks. CLARK & LEWIS CO. 871 I also find, in the context of the above events, that, as alleged in the complaint, the Respondent also violated Section 8 (a) (1) by causing its employees to be sepa- rately interviewed by Attorney Lane in his office concerning their complaints, or grievances, or reasons for desiring the Union. Particularly so, since the individual interviews took place after the Union's bargaining request in plain disregard of the fact that, so far as the Respondent knew (a fact apparently borne out by the interviews) a majority of its employees had already selected the Union as their bargaining representative. The individual questioning of the employees as to their union sympathies under these circumstances, coupled as it was with an inducement to abandon the Union by a promise of higher wages, constituted an obvious an4 clear-cut interference with the rights of the employees guaranteed by Section 7 and 8 (a) (1) of the Act, and was not free speech protected under Section 8 (c) of the Act. See Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678; Blue Flash Express, Inc., 109 NLRB 591, 593. Armed with the "decertification certificate," Lane told a Board field representa- tive who had been designated to conduct the representation hearing scheduled for November 14, that he wanted to file the certificate and wanted a hearing con- cerning it. Lane was informed that neither the certificate nor any evidence con- cerning it would be permitted at the representation hearing since the wishes of the employees would only be ascertained by secret ballot at a Board-directed election. As a result of Lane's discussions with this Board representative and Lane's belief that the employees no longer wanted the Union, a consent-election agreement was, executed on November 12 and the November 14 hearing was waived. Prior to the holding of the consent election the following "Notice To Employees" was posted by the Respondent: Immediately after the signing of the decertification certificate, the under- signed contacted the National Labor Relations Board representative to try to avoid an election on the union question. I was not successful. I then in- sisted that the election be held at the earliest possible date, which has been fixed for Friday, November 22, 1957. Again I ask you boys to vote your convictions so we can dispose of the: union question one way or another as soon as possible. ROBERT C. LANE, Attorney for Clark & Lewis Co. As indicated earlier, 10 or the 14 employees in the unit voted for the Union at the Board-conducted election. As a result of bargaining conferences that took place on December 9, Decem- ber 30, and January 14, the negotiations had progressed to such a point that the Union called a meeting of the employees on January 15 to vote on the counter- proposals made by the Respondent at the January 14 meeting. The union repre- sentatives believed they had resolved all differences with the Respondent except the still unresolved questions of hospital and insurance coverage and the checkoff of union dues. While the employees were willing to accept all of the Respondent's. counterproposals, including wages, for tactical reasons they voted to reject them hoping by further negotiation to get the Company's concession on some kind of an insurance plan. However, before the parties met again something happened that changed the- whole complexion of the bargaining negotiations which, since the Union's cer- tification up to this point had been carried on in apparent good faith. Roper, who was on the Union's bargaining committee and was considered the leader of the employees, was dissatisfied with the Respondent's wage proposal. Although this, proposal provided for a 14-cent an hour wage increase it was based on a 48-hour week whereas the old wage scale provided the employees a minimum guarantee of 55 hours a week. Apparently not long after the employees rejected the Re- spondent's proposals, Roper went to Vice President Morrison, who, with Lane, had been conducting the bagaining negotiations with the Union, and "asked him. if [he] could get out of the Union." Morrison said he would "take it up with Mr. Lane," which he did. Lane prepared another "decertification certificate" and sent it to Morrison who gave it to Roper. The latter obtained the signatures of all the employees in the unit to the certificate and gave it to Morrison who sent it back to Lane. Between January 27 and February 26 the Respondent and the Union met on several occasions but further progress on reaching agreement on the terms of as collective-bargaining contract was stymied because at each of the meetings the Respondent continued to raise the question of the Union's authority to act as the employees' bargaining agent in view of the last decertification petition. At one. 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the meetings, a reply letter to Lane from the Board's Regional Director in Tampa was read and discussed.3 At the February 26 meeting the Union offered to drop its demands for the insurance plan and the checkoff authorization, the only two items that the Union believed were still unresolved, and to sign a contract. In the words of Business Agent Eli Schultzer, "Being there was no way to hold a secret ballot election until the end of a year, I suggested that the Company go ahead and sign it [the proposed contract] and that at the end of the year if they wanted us to be de- certified they could go through the proper channels." The Respondent's reply, in effect, was to postpone consideration of the Union's proposal until the wishes of each employee in the bargaining unit could be ascertained. When the Union refused to hold a meeting for such a purpose Lane announced, to use his own words, "that I would hold a meeting of my own with the employees and that we would fix that time right here and now as the morning of February 28 at the Clark and Lewis Company, and you two gentlemen, the labor union representa- tives, are invited to meet there with me at that time." 4 The meeting took place on February 28 as Lane had announced. The union representatives did not attend. Lane said he wanted to know from each and every employee "if they meant what they said when they signed the decertification," and based upon what they said Lane "was going to advise Mr. Morrison" what should be done. "Every one of them said they wanted no part of the union," testified Lane. Immediately following this meeting, Lane advised Morrison that the wage in- crease that the Respondent offered the Union "should be put in effect immediately because the men needed it." The same day Lane wrote the following letter to the Union: GENTLEMEN: Enclosed is a copy of a Notice I am requesting Clark & Lewis Co., to post at its warehouse. I have advised the Company to take this position and to not sign a contract with your Union, and to give the employees the raise in wages that the Company has at all times been willing and ready to do, and prior to the elec- tion certifying your Union as bargaining representative. I have given my clients this advice with the firm conviction that where one hundred percent of the employees do not want to be a member of your Union that the Company would be derelict in its duty to its employees if it should force them to accept a Union contract which they, the employees, do not want. I further feel a firm conviction that from the first day of my employment this Company has been ready and willing to grant an increase in wages to its employees and has expressed an earnest desire to themselves negotiate with and agree with the employees of the Company on any and all problems con- cerning the employees of the Company. 3 On January 30, Lane wrote to the Regional Director for advice as to "the usual and customary procedure when all the employees of an employer voluntarily file with the employer a withdrawal from membership and decertification certificate like the one en- closed. Is it possible for the employer to obtain a hearing before the National Labor Relations Board to determine whether this. employer is forced to continue to negotiate for employees who do not want the Union to act as their bargaining representative, and what is an employer required to do in such a dilemma." (The full text of this letter and the February 3 reply of Regional Director Harold A. Boire are attached to this Report as Appendixes B and C respectively.) In -his reply letter, Regional Director Boire referred Lane to the Supreme Court's decision in Ray Brooks v. N.L.R.B., 348 U.S. 96, "where it was held" Boire wrote, "that for a period of at least one year after a certification of a bargaining representative by the Board, an employer is required to bargain in good faith with the representative even in the face of a petition signed by a majority of employees repudiating said representative." 4 Lane stated that "the purpose of the meeting was to try and ascertain what could be done with an impasse which had resulted by the union wanting to continue bargaining and getting nowhere. The employees wanting a raise and getting nowhere. The labor union representatives claimed that these boys, the employees, did not know what they were signing when they had signed these decertification certificates. I called that meet- ing to find out if they did know what they had signed and to find out from them just what the situation was to see if a deadlock could be legitimately broken." CLARK & LEWIS CO. 873 The enclosed notice reads as follows: NOTICE TO EMPLOYEES OF CLARK & LEWIS CO. After the meeting held with the employees Friday morning at 7:00 o'clock A.M., where I exhibited to the employees the original Decertification Cer- tificate and Withdrawal from Membership and Decertification Certificate signed by the employees, I conferred with Mr. C. T. Morrison, who was not present at the meeting, and advised him that the employees of the Company had assured me that they knew what they were doing when they signed the Withdrawal from membership and Decertification Certificate, and that it was the unanimous decision of the employees that they did not want any further dealings with Local Union No. 390, AFL-CIO. As a result of the meeting and my conference I have advised Clark & Lewis Co., not to sign a contract with Local Union No. 390, AFL-CIO, but to proceed and give the employees the raise in wages that the Company had always been willing to do since I began to represent this Company. THEREFORE, (1) Beginning March 3, 1958, a wage increase of 140 per hour for all em- ployees concerned will be paid; (2) The matter of hospitalization and the insurance coverage can be negotiated by each individual employee with the management; (3) The matter of vacation time and conditions is open for discussion and final decision with the management after conferences with the employees. ROBERT C. LANE, As Attorney for Clark & Lewis Co. On March 5, 1958, the Union filed the charge herein. When the Respondent filed its answer to the Board's complaint of April 2, the answer contained in part the following language: That Respondent and its attorney have at all times openly, fairly and frankly discussed these matters with the representatives of the Union, and have sub- mitted in writing to the representatives of the Union, and the Regional Di- rector of the National Labor Relations Board, Twelfth Region, every step taken in this matter, and in truth and in fact have offered and do now offer to continue such negotiations at any time and place the representatives of the Union may desire, and Respondent says that said negotiations can and will be continued even as of this date if desired, and that it has at all times negotiated in good faith and with good intent and purpose but that it has been impossible to agree upon all of the terms and conditions to be included in and placed in a contract because of the attitude and the desires of the employees who are the persons most vitally affected, concerned and interested in such negotiations. As a result of the foregoing invitation another meeting took place between the Respondent and the Union on April 17. The negotiations got nowhere. Lane made it very clear that he was conditioning further bargaining upon the Union getting approval from the employees, or as Lane put it: "I invited them to continue negotiations, if they could receive the approval of the employees of what they wanted to negotiate on." 5 The union representatives refused Lane's request and the meeting broke up. 2. Concluding findings An employer, absent unusual circumstances, cannot avoid the obligation to bar- gain during the certification year. This principle has been on the Board's books since the earliest days of the Act. (E.g. Piqua Munising Wood Products, 7 NLRB 782, enfd. 109 F. 2d 552 (C.A. 6).) It has been before the courts many times, and has had judicial approval in virtually all instances, culminating in the Ray Brooks case in the Supreme Court, which Regional Director Boire cited to Attorney 5 In order to get the full flavor of Lane's position I quote him again : Since they had filed this complaint, I wanted to have something to go back to my client and to say your employees now want these negotiations to continue. When I said I would hold the February 28 meeting, it was because they would not hold the meeting that they told me they were going to hold. I told them to go back and hold that same meeting and if those employees wanted them to continue to come on back and to see if we could not iron it out, the matters we had never agreed upon. 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lane when Lane asked for advice. (For a comprehensive discussion of the court cases, see N.L.R.B. v. Ray Brooks, 204 F. 2d 899 (C.A. 9), affd. 348 U.S. 96.) The original purpose of the 1-year rule was to afford a reasonable opportunity to the certified union to negotiate a contract free from interference by claims that the certified representative no longer represents a majority of the employees. When- ever the 1-year rule applies, as it does in this case, the Board ordinarily dismisses all petitions seeking to raise a question concerning representation filed at any time before the end of the certification year in order to protect both the bargaining agent and the employer from disturbance during that period. See Centr-O-Cast & Engineering Company, 100 NLRB 1507, as modified by Ludlow Typograph Com- pany, 108 NLRB 1463. The Ludlow modification applies only where an agreement is entered into within the certification year and is not applicable in complaint proceedings.6 To illustrate how closely the Board has adhered to the 1-year certification rule, in American Steel Foundries, 112 NLRB 531, the initial contract of the Union was -due to expire 3 months before the end of the certification year. The employer, having information that the employees had repudiated the Union, refused to recog- nize the Union beyond the expiration date of the contract. The Board held that under the certification-year rule the majority status of the Union was "conclusively presumed" to continue for 1 year, that the employer was therefore obligated as a matter of law to bargain with the Union at least for the full 1 year after the date of the certification, and that the employer's refusal to do so was violative of Section 8(a)(5) of the Act. In Ray Brooks, the immediate issue before the Supreme Court, as put by the Court, was "the duty of an employer toward a duly certified bargaining agent if, 'shortly after the election which resulted in the certification, the union has lost, without the employer's fault, a majority of the employees from its membership." Among other things, the Court observed that, before the 1947 amendments to the Act, "The Board uniformly found an unfair labor practice where, during the so- called `certification year,' an employer refused to bargain on the ground that the certified union no longer possessed a majority"; and that the "Board continued to apply its `one-year certification' rule after the Taft-Hartley Act came into force, except that [in view of Section 9(c)(3) of the Act] even 'unusual circum- 'stances' no longer left the Board free to order an election where one had taken place within the preceding 12 months." The Respondent's main defense is that the Board "cannot ignore or override the rights of employees in professing to effectuate the policies of the Act" which "was not passed to help and promote labor unions," and that Ray Brooks is distinguish- able from the case at bar "where one hundred percent of the employees and not just a majority approximately three months or more after the election of the bargaining representative sought to revoke the bargaining representative and to withdraw from" the Union. In effect, the Respondent argues that this case presents the "unusual circumstances" that permitted this Respondent to act as it did. I disagree. In Ray Brooks, the Supreme Court specifically considered the su- premacy of the employees' rights argument as against the Board's long established. industrial stability concept. The Court said: "The underlying purpose of this statute is industrial peace. To allow employers to rely on employees' rights in refusing to bargain with the formally designated union is not conducive to that end, it is inimical to it." 7 Nor do I see any unusual circumstances, as the Board and the courts have inter- preted that expression, presented by the facts of this case.8 I can see no difference 6 Since a question concerning representation may also be raised by the filing of a de- certification petition the 1-year rule would also apply to such petitions. There are still other reasons why the Board would not have processed the second decertification petition in this case even if the 1-year rule had no application since: (1) Section 9(c) (3) of the Act precludes the Board from directing an election in any bargaining unit within which a valid election had been held within the preceding 12-month period; and (2) the Board will dismiss any decertification petition in the preparation or the filing of which the employer took an active part. See Gold Bond. Inc., 107 NLRB 1059. 7 See also Colgate-Palmolive Peet Co. v. N.L.R.B., 338 U.S. 355, 362, where the Supreme 'Court said, that "stability of labor relations" was the "primary objective" of Congress in enacting the National Labor Relations Act. 8 The existence of "unusual circumstances" has consistently been restricted to situa- tions where the certified union has become defunct, or a bona fide schism has split its Tanks ; or in rare instances, where a radical change has taken place in the size and CLARK & LEWIS CO. 875 in principle from a majority repudiating the bargaining representative as in the Brooks case from the 100-percent repudiation in the case at bar.9 In the Brooks case, the Supreme Court upheld the Board's position that an openly signed letter, "in which those voting for and against unionism are disclosed to management" cannot reverse the verdict of an election which assures "the privacy and independ- ence of the voting booth." This distinction was graphically demonstrated to the Respondent when after it secured the signatures of 100 percent of the employees .to the first decertification petition, a majority of the employees nevertheless still voted for the Union when offered the security of a secret ballot. Especially in view of this background the Respondent had no right to poll the employees on February 28 as to their union desires, thereby arrogating to itself a function that really belonged to the Board.'° What has been said of course, makes clear, that since the Respondent was under the legal obligation to continue to bargain with the union, it was subverting that principle when it went over the head of the designated bargaining representative .and called a meeting of the employees on February 28, even though it invited the union representatives to attend. This bypassing of the statutory bargaining repre- sentative and the polling of the employees violated Section 8(a)(5) and (1) of the Act as did the unilateral wage increases granted to the employees the following day coupled with the announcement that it would not sign a contract with the Union. It was likewise a violation of Section 8(a)(5) and (1) for the Respondent to announce that (1) the "matter of hospitalization and insurance coverage can .be negotiated by each individual employee," and (2) the "matter of vacation time and conditions is open for discussion and final decision with the management after conference with the employees." 11 It should be remembered that prior to February 28 no genuine impasse had been reached in the bargaining negotiations and except for a few items still to be negotiated the Respondent and the Union were close to reaching an agreement. On February 26 the Union offered to drop the disputed items and to sign a con- tract. The Respondent's answer was to call the meeting of February 28. It does not aid industrial stability to permit an employer to deal directly with its employees because of their dissatisfaction with their designated and certified bargaining repre- sentative which experiences some delay in negotiating its first contract, thereby placing a premium on delay. As the Supreme Court stated in Ray Brooks, a certi- fied union should be given "ample time for carrying out its mandate on behalf of its members, and should not be under exigent pressure to produce hothouse results or be turned out." In its answer and brief the Respondent paradoxically continues to invite the Union to resume bargaining negotiations. As has been seen, the Union, after the filing of the Respondent's answer to the complaint, accepted this invitation. However, the Respondent conditioned further bargaining upon either prior ap- proval by the employees of any contract proposals or subsequent approval of any agreement reached. Regardless of whether the Respondent was placing the condi- tion of approval by the employees before or after the resumption of negotiations the legal conclusion remains the same. The Respondent was still questioning the character of the unit upon which the certification was predicated. See, e.g., Carson Pirie Scott & Company, 69 NLRB 935; General Electric Company, 96 NLRB 566; Public Service Electric and Gas Co., 59 NLRB 325 ; C & D Batteries, 107 NLRB 1405. See also on the general question, Henry Heide, Inc., 107 NLRB 1160. 9In Bluefield Produce & Provision Company, 117 NLRB 1660, the Board held that the change of mind by the employees within a few months after they voted for a union in a State-conducted election "is not the type of unusual circumstance warranting suspension of the 1-year rule." Two decertification petitions had also previously been filed with the Board within the certification year. Both petitions were dismissed. "'Again, I cite from the Supreme Court in Ray Brooks: If an employer has doubts about his duty to continue bargaining, it is his re- sponsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit. Although the Board may, if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice, these are matters for the Board ; they do not justify employer self-help or judicial intervention. n See Central Metallic Casket Co., 91 NLRB 572; Ben Corson Manufacturing Co., et al., 112 NLRB 323, 341; Medo Photo Supply, supra. Cf. John L. Clemmey Company, Inc., 118 NLRB 599. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative status of the Union which as we have already pointed out at some length, it had no legal right to do during the certification year.'2 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among, the several States and tend to lead to labor disputes burdening and obstructing. commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices,. I shall recommend that it cease and desist therefrom and that it take certain. affirmative action designed to effectuate the policies of the Act. I have found that the Union is the certified bargaining representative of the Respondent's drivers and warehousemen and that the Respondent in the manner detailed above refused to bargain collectively with it. Accordingly, I shall recom- mend that the Respondent, upon request, bargain collectively with the Union as. the exclusive representative of the employees in the above -described appropriate. unit. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All drivers and warehousemen employed in the Respondent 's Miami, Florida,. warehouse, excluding all other employees, guards, professional employees, and 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. The Union, on December 3, 1957, was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing to bargain collectively with the Union in the respects found above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By the above and other conduct found herein, which is and has been inter- fering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en- gaging 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 com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] I2 Of. N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, where the employer insisted upon a "ballot" clause calling for a prestrike vote of the employees as to the employer's last offer as a condition precedent to accepting any collective- bargaining contract. In finding such insistence to be a violation of Section 8(a) (5), the Supreme Court said in part : "The 'ballot' clause . . . deals only with relations between the employees and their unions. It substantially modifies the collective-bargaining system provided for in the statute by weakening the Independence of the 'representative' chosen by the employees. It enables the employer, in effect, to deal with Its employees rather than with their statutory representatives." Here too, the Respondent's insistence upon approval by the employees of any contract proposals was an attempt to Interfere with the internal relations between the employees and the Union . Furthermore, the Respondent had already bypassed the statutory bargain- ing representative by giving Its employees a wage Increase and had assured them that other bargaining Issues would be negotiated without the aid of the Union. This, of course, placed the Union in a position where it would be most difficult to get approval from the employees particularly since the Respondent had also stated it would not sign a contract with the Union. CLARK & LEWIS CO. APPENDIX B 877 JANUARY 30, 1958. Mr. HAROLD A. BontE, Regional Director, National Labor Relations Board, Twelfth Region, P. O. Box 1493, Tampa, Florida. Re Matter of Clark & Lewis Co., Employer- and Local Union No. 390-AFL-CIO Case No. 12-RC-229 DEAR MR. BoiRE: In the above matter, all fourteen regular employees and one substitute employee have voluntarily signed, presumably at the request of one of the members on the bargaining committee of employees, the original of the enclosed copy of withdrawal from Membership and Decertification Cer- tificate. Before the holding of the election to determine the bargaining representative these same employees, with the exception of one or two, had voluntarily signed and delivered to this Employer the original of a Decertification Cer- tificate, copy of which is also enclosed. Upon the delivery of the last withdrawal from membership and decer- tification certificate, as Attorney for the Employer, I immediately notified the bargaining representatives of the Union and told them that I wanted to talk with them about this certificate and they came to my office for a conference concerning same. I advised Mr. Schutzer and Mr. Carbone that we were not refusing to negotiate further with them and that I would make a study of the situation as it affected the Employer and would like for them to discuss the matter with their Attorney and have him contact me. The Attorney for the Union contacted me today and I had a very pleasant telephone conference with him, but I cannot agree in toto with his reasoning and decision in this matter, and I advised him that he could notify the bar- gaining representative that they feel free to call me and I would arrange for further negotiations at any convenient time and this is where this matter stands at this moment. I would like to have your office advise me what is the usual and cus- tomary procedure when all the employees of an employer voluntarily file with the employer a withdrawal from membership and decertification cer- tificate like the one enclosed. Is it possible for the employer to obtain a hearing before the National Labor Relations Board to determine whether or not this employer is forced to continue to negotiate for employees who do not now want the union to act as their bargaining representative, and what is an employer required to do in such a dilemma. I personally think that some forum should be open to the employer, and since we have no desire to do anything unfair in the premises I will thank your office to advise me as attorney for Clark & Lewis Co., what can and should be done about this matter. We have negotiated fairly and will continue to negotiate fairly if necessary but since the employees are the ones who have caused this situa- tion, since the bargaining agent is but an agent for a principal , and the principals in this instant do not desire to have the bargaining agent to con- tinue to represent them, we ask and seek your advice as to what to do in the premises. Very truly yours, RCL/pw APPENDIX C ROBERT C. LANE. ROBERT C. LANE, Esquire, 708 Huntington Building, Miami, Florida. Re Clark & Lewis Case 12-RC-229 FEBRUARY 3, 1958. DEAR MR. LANE: This will acknowledge receipt of your letter of January 30, 1958, together with attachments. You ask for advice as to the procedure to be followed when all of the employees of an employer attempt to withdraw their membership from a union which has recently been certified. Our records indicate that the union involved in this case was certified on December 3, 1957, 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the case closed on that day. Absent a pending case, this office cannot render advisory , opinions, as such. However, on the basis of the information contained in your letter, it appears , that the answer to your present problem is contained in a case decided in 1954 by the Supreme Court of the United States; namely, Ray Brooks vs. N.L.R.B., 345 U.S. 96, affirming 204 F. 2d 899, where it was held that for a period of at least one year after a certifi- cation of a bargaining representative by the Board , an employer is required to bargain in good faith with the representative even in the face of a petition signed by a majority of employees repudiating said representative . This case,. in effect, affirmed the National Labor Relations Board's "one-year certification rule" which had been followed for some time prior to this Supreme Court decision. Since the Ray Brooks case, the Board has continued to follow this. practice. If you have further inquiries concerning this matter, may we suggest that you contact Mr. Herbert B. Mintz, who is one of our Board Agents in Miami. His address and telephone number are: 1540 N.W. 132nd Street, phone Nurray 1-6252. Very truly yours, HCT:vbd HAROLD A. BOIRE, Regional Director. Park Drug Company and Joseph Garone, Petitioner and District 65, Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 2-RD-408. January 8, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9( c) of the National Labor Relations Act, a hearing was held before Max Schwartz, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Rodgers and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain employees of the Employer.' 3. The Union moved to dismiss the petition herein on the ground that it had been filed and sponsored by the Employer. The Union attacked the validity of the petition because it was filed by Garone, an alleged supervisor, and also attacked the Petitioner 's showing of interest because it was secured with the assistance of five other alleged supervisors. We find no merit in the Union's contention and deny its motion. The petition herein was validly filed because, as detailed in para- graph 4 of this Decision, the record shows, and we find, that the 1 The Petitioner asserts that the Union is no longer the bargaining representative of certain employees of the Employer as defined in Section 9(a) of the Act . The Union is currently recognized by the Employer as the exclusive representative of such employees, ,122 NLRB No. 100.