Superior Fireproof Door & Sash Co., Inc.

Superior Fireproof Door & Sash Company, Inc. and Architec- tural and Engineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO. Case No. 2-CA-5485. April 1, 1960 DECISION AND ORDER On October 27, 1959, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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 brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations 3 1 Inasmuch as the record and exceptions and brief adequately present the issues and positions of the parties, the Respondent 's request for oral argument is denied 3 The Trial Examiner, in the fourth paragraph of the section of his Intermediate Report entitled "The unfair labor practices ," stated that the Union's contract with Aetna Steel Products Corp . was executed in March 1959 . This agreement was, in actuality , executed in March 1957 3 We find without merit the Respondent 's allegations of bias on the part of the Trial Examiner There is no basis for finding that bias or partiality existed because the Trial Examiner resolved important factual conflicts arising in this proceeding in favor of the General Counsel's witnesses . As the Supreme Court has stated, . . . Total rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." N L R.B v . Pittsburgh S S. Company, 337 U . S. 656 , 659 (1949 ). Moreover, as it is the Board 's established policy not to overrule a Trial Examiner's resolutions as to credibility except where , as is not the case here, the clear preponderance of all the relevant evidence convinces it that the resolutions were incorrect, we find, contrary to the Respondent's contention , no basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 ( CA. 3). In addition, we find no basis in the record for the Respondent 's contention that the Trial Examiner harassed one of the witnesses who testified at the hearing In affirming the Trial Examiner's finding of 8(a)(1) and (5) violations herein, we do not rely upon the telegram , allegedly received by the Respondent , from the district director of the New York State Board of Mediation 127 NLRB No. 3. 1 560940-61-vol. 127-2 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon 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 Superior Fireproof Door & Sash Company, Inc., New York, New York, and Scranton, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Making unilateral changes in wages and other terms or condi- tions of employment, promising and granting 'benefits to employees and otherwise inducing and assisting them to renounce Local 66 as their bargaining representative and to organize or affiliate with a rival labor organization, circumventing Local 66 and bargaining directly with employees in units represented by Local 66, insisting on the method of selection or eligibility of union-shop stewards, insisting that Local 66 give union withdrawal cards to employees outside the certified bargaining units, refusing to recognize and meet with Local 66, and otherwise failing to bargain collectively in good faith with Local 66 as statutory bargaining representative of employees in the appropriate units. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Architec- tural and Engineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO, or any other labor organization, to bargain collectively through Local 66, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment in the manner and to the extent authorized in Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local 66 as the exclu- sive representative of all its employees in the appropriate units con- cerning rates of pay, wages, hours of employment, or other conditions of employment, and embody any agreement reached in a signed contract. (b) Post at its New York and Scranton operations copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, 4In 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." SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 3 to be furnished by the Regional Director for the Second Region, shall, after being signed by Respondent 's representative, be posted by Re- spondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL bargain upon request in good faith with Architectural and Engineering Guild, Local 66, American Federation of Tech- nical Engineers, AFL-CIO, as the exclusive representative of all employees in the following bargaining units iin respect to rates of pay, wages, hours of employment, or other conditions of em- ployment, and, if an understanding is reached , embody such an understanding in a signed agreement . The bargaining units are: All technical employees of our engineering department in our New York operation including estimators , technical clerks, designers, draftsmen, listers, schedulers, hardware coordinators, and other technical employees doing similar work regardless of classification, excluding all other em- ployees, specifically office clerical employees, production em- ployees, salesmen, mechanics, teamsters, guards, and super- visors as defined in the Act. All technical engineering employees of our engineering department in our Scranton, Pennsylvania, plant including draftsmen, designers, listers, schedulers, hardware coordi- nators, leadmen (also known as squad leaders whose duties are strictly in the technical direction of technical engineering employees) and blueprint operators , and other technical em- ployees doing similar work regardless of assigned title or classification, excluding all other employees and specifically office clerical employees, production employees, mechanics, teamsters, guards, and supervisors as defined in the Act. WE WILL NOT bargain directly with our employees , make or promise to make unilateral changes in wages or other terms or 4 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD conditions of employment, assist and otherwise induce employees to resign from Local 66 by promises of benefit or otherwise, insist on method of selecting shop stewards, or that Local 66 give with- drawal cards to individuals leaving the bargaining units, other- wise fail to bargain in good faith with Architectural and En- gineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO, or in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their rights of self-organization, to form, join, or assist the above- named labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. SUPERIOR FIREPROOF DOOR & SASH 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly designated Trial Examiner in New York, New York, and Scranton , Pennsylvania, on various dates beginning March 30, 1959 , and ending May 21 , 1959, on complaint of the General Counsel (dated October 30, 1958) and answer of Superior Fireproof Door & Sash Company, Inc., herein called the Respondent . Motions to dismiss the complaint are disposed of in accordance with the findings and conclusions hereinafter set forth. Upon the entire record in the case,' and from my observation of the witnesses and a consideration of briefs submitted by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is a New York corporation located in New York City and Scranton, Pennsylvania, where it is engaged in the manufacture , sale, and distribution of hollow doors, bucks, and related products. During the past year Respondent made out- of-State shipments valued in excess of $200,000. Respondent admits, and I find, that it is engaged in commerce within Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Architectural and Engineering Guild, Local 66, American Federation of Tech- nical Engineers , AFL-CIO, herein called Local 66, is a labor organization within Section 2 ( 5) of the Act. 'Including a stipulation dated June 4 and 5, 1959, and attached Schedule "A." SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 5 III. THE UNFAIR LABOR PRACTICES Respondent is a member of Hollow Metal Door and Buck Association, Inc., herein called the Association . Following representation petitions filed by Local 66, and consent elections being held thereon , Local 66 was certiified by the Board on July 5, 1956, as statutory bargaining representative for separate units of technical employees at Respondent's New York operation and at the plants of five other Association members? These were separate certifications . Local 66 was certified for a similar unit at Respondent's Scranton plant on January 7, 1957. The parties understood at the time that negotiations would be on an Associationwide basis but that each employer would bargain individually on wage matters. Local 66 submitted identical contract proposals to Respondent and to the other interested employers in July 1956, and negotiations began on August 30. Subse- quent meetings in 1956 were held on October 2, 10, 18, and 24 and November 1, 1956. Representing the employers were officers and other representatives of inter- ested employers as well as their attorney , Sidney O. Raphael, who also is Respond- ent's attorney of record in the instant case; Local 66's representatives were its business manager, J. Lawrence Raimist, and shop representatives of various interested con- cerns. Dissatisfied with the turn of negotiations at the November 1 meeting, Raimist announced at this meeting that he was invoking the separate certifications and that all further bargaining with the respective employers would be deemed to be on an individual employer basis . The New York State Mediation Board was brought into negotiations, and Respondent and other employers met with Local 66 at the Mediation Board offices under Mediation Board auspices on December 5, 1956. Raimist again informed the parties, as he had advised them on November 1, that meetings were on an individual employer basis even though several employers were present. State Mediator Howard Gamser stated at the December 5 meeting that he would call the next meeting. Local 66 was meanwhile certified on January 7, 1957, for Respondent 's Scranton unit, as stated above, and it submitted contract proposals for such unit to Respondent later that month, these proposals being the same as those submitted for the New York unit. Aetna Steel Products Corp . is a member of the Association and its representatives attended some of the aforementioned negotiating meetings before November 1. Aetna did not participate in any joint -employer meetings with Local 66 after Novem- ber 1; instead , as Respondent knew at the time, Aetna entered into individual negotiations with Local 66 and , in March 1959 , it executed the so-called Aetna contract with Local 66.3 This collective-bargaining contract contained a "favored nations" clause providing that "Anything to the contrary notwithstanding, no other Employer in the Hollow Metal Door & Buck Industry shall be accorded terms and conditions in a collective bargaining agreement which are more favorable than those contained herein ; including classifications and minimum rates of pay. The foregoing, however, shall not apply to general wage increases and rates of pay." Mediator Gamser convened the next negotiating meeting on March 29, 1957, which Local 66, Respondent , and some other Association members attended. (Un- less otherwise stated, all events hereinafter recounted occurred in 1957.) Local 66 proposed the Aetna form contract at this meeting as a pattern for negotiations. Further meetings between Local 66 and the collective group of employers were held on April 4 and 11, and May 1 and 13; Attorney Raphael submitted complete counterproposals in behalf of the employer group at the May 1 meeting. These joint- employer negotiations broke down on May 13, and that was the last such meeting between Local 66 and the joint-employer group. Local 66 and Respondent began individual negotiations on May 20, covering the separate bargaining units at Respondent's New York and Scranton operations. Respondent's principal bargaining representatives were Attorney Raphael and Re- spondent President Irving Schaffer as well as Irving Oxman from the Scranton plant; 4 representing Local 66 were Raimist and two employee committeemen, Kay and Feiner, of the New York operation. The parties had further meetings on May i Triangle Steel Products Co , Inc, City Steel Door Corp, Pioneer Fireproof Door Corp , World Steel Products Corp , and Williamsburg Steel Products Co. A refusal-to- bargain proceeding involving the last named concern is presently before the Board on exceptions to an Intermediate Report in Case No 2-CA-5368. 3 Other individual members of the Association have since executed collective-bargaining agreements with Local 66. 4 Oxman was assistant to Scranton ' Superintendent Heinz Kielmeyer and was second highest in the hierarchy of that plant which comprised approximately 250 employees. 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 27 and 31 and June 3, 6, 7, 10, and 14. Raimist attempted to arrange further meetings through Raphael and the State mediation board, but Respondent in effect rejected such overtures, and Schaffer finally advised Raimist on July 15 that Re- spondent would not negotiate further with Local 66, stating that Local 66 no longer represented Respondent's employees. The parties discussed Local 66's contract proposals at the May 20 meeting; they agreed on some items, compromised some items, and disagreed on others. Minimum wage rates were not discussed because of the parties' disagreement on job classi- fications, which first had to be determined. During working hours sometime between May 20 and the next bargaining session on May 27 Respondent distributed to all its New York technical employees a document entitled "Additions to be added or incorporated into the proposed agreement"; immediately after working hours that same day Respondent President Schaffer and August Boegner (the latter is Respond- ent's chief draftsman) called a meeting of the unit. Schaffer discussed each of the proposals at this meeting and he advised the employees what their classifications and wages would be thereunder and he also discussed a wage progression system contained in the document. Respondent had not previously submitted this document to Raimist and at the May 27 negotiating session Raimist objected to Respondent's action in calling the meeting and discussing the aforementioned document with the employees before even submitting such document to the Umon.5 The parties continued to meet on various dates through June 14, as stated above, and there appears to have been some give-and-take by both sides. Among various demands, Respondent continued to insist that the contract provide that union-shop stewards be selected only from Respondent's "senior" 6 employees and that Local 66 give union withdrawal cards to employees in the certified units upon promotion to sales or supervisory positions outside the units. There was talk of possible strike action at the June 14 bargaining session and the parties tentatively arranged a meeting for the next day. This meeting on June 15 (Saturday) was not held. The New York employees walked out without notice at noon on June 17, whereupon Schaffer advised Local 66 that "this shall necessarily change our position in bargaining with you, and we must necessarily question your right to bargain for these or any employees within the bargaining unit." The employees sought to return on June 18, but were locked out, whereupon they filed unfair labor practice charges alleging a discriminatory lockout. The lockout was settled through the intervention of the New York State Mediation Board, with Respondent reinstating the employees on June 24 conditioned upon their withdrawing the mentioned charges.7 Raimist made various attempts after June 17 to resume negotiations with Respond- ent, as already indicated, and Schaffer finally informed Raimist on July 15 that Respondent would no longer negotiate with Local 66.8 Various employees in the New York unit had meanwhile become dissatisfied with Local 66's representation because of a failure of the parties to arrive at a contract and a contributing factor being weekly contributions they were making to a union strike fund in behalf of another unit on strike against another member of the Association; these employees- discussed among themselves the desirability of resigning from the Local 66 and having it decertified as their bargaining representa- tion: Eight of these men held a dinner meeting after working hours on July 11, to which they invited Schaffer and Chief Draftsman Boegner. The shop committee members of Local 66 were not invited, and did not attend. Acting as spokesman for the group at the meeting, employee Armand Grasso told Schaffer of their dis- satisfaction, as related above, that they would like to form their own "Guild" after decertification of Local 66 and that they wanted to know the Company's proposals and whether Schaffer had any ill will against them for their June 17 walkout. Schaffer replied that he did not care whether or not the employees remained in Local 66 and that' he would grant the same terms he had offered to Local 66. Schaffer then discussed all such proposals and specified each employee's wage rates and proposed increases. Although Schaffer had insisted during his negotiations with Local 66 that Respondent would discontinue yearly bonuses if he granted wage increases, Schaffer told the employees at the July 11 meeting that he would probably continue the bonus payments even with wage increases; although during negotiations 51 do not credit Schaffer's testimony that he had previously informed Raimist of such contemplated action and that Raimist had, in effect, told him to proceed. 9 This was a job and salary classification. 7 The lockout is not covered by the instant complaint. 8 According to Raimist's credible testimony denied by Schaffer. Upon a consideration of Schaffer's testimony and my demeanor observations of him, I do not find Schaffer to be a trustworthy witness. SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 7 Respondent had insisted on so-called "equal seniority" in layoffs respecting its opera- tions in New York, Scranton, and Chicago, Schaffer at this July 11 meeting offered "supersemonty" in such regard to the New York employees as against Respondent's Scranton and Chicago employees; and, in specifying the increases each employee would receive, at this meeting Schaffer announced an amount as to three employees 9 which exceeded what he had stated during negotiations. Schaffer informed the employees at this July 11 dinner meeting that he would put into effect the job classifications and wage scales as soon as the men resigned from Local 66 and he also stated that he would sign a contract with the men after they had Local 66 decertified as their bargaining representative. Schaffer further stated that if the employees wished, they could use the services of Respondent's attorney to organize their own "guild." Grasso, in the presence of Schaffer and Boegner, then openly polled each of the employees and all present indicated their desire to resign from Local 66.10 Schaffer advised the employees on the method of resignation, whereupon some employees wrote out their resignations at this same meeting and other employees signed such resignation letters in Respondent's office the next day. None of the employees had resigned from Local 66 before the meeting. Grasso had brought a NLRB decertification form to the July 11 meeting, and either Grasso or another employee filled out the form at the meeting. In Schaffer's and Boegner's presence at the meeting, the employees signed a document to accom- pany the decertification petition which document authorized an employee committee (consisting of Giasso and two others) to represent them. Grasso mailed the decertifi- cation petition to the Board's Regional Office the next day, to have it returned because improperly completed. With Boegner's approval on July 16, Grasso visited the Board's office during his working hours and without punching out, in connection with the decertification matter. During working hours later that day Grasso openly circulated a new petition to be signed by the technical employees, the petition stating that the signatories no longer wanted Local 66 to represent them; Grasso had this petition typed in Respondent's office by one of the office clericals. During the week ending July 13, Respondent meanwhile gave wage increases to 11 of approximately 13 employees in the New York unit; it shortly gave raises to the other two employees and it made further increases in 1958. Respondent also made substantial bonus payments to these employees in 1957 and 1958, and the record further shows that Respondent had given three increases in January and March 1957 during the period of negotiations. All of these increases were made without notice to Local 66, and it is recalled that Respondent had taken the position during nego- tiations that it would grant no bonuses if it agreed to wage increases. We turn now to concurrent events at Respondent's Scranton plant where in January 1957, it is recalled, Local 66 was certified as bargaining representative for a technical unit of approximately 15 employees. There was another bargaining unit at this plant, consisting of more than 200 production employees, who were repre- sented at material times here by Local Union No. 2350, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, a labor organization herein called Carpenters Local 2350. Production employee Joseph McGrath was Local 2350's chairman or president from 1955 until succeeded by production employee Sam Wansack on July 15, 1957. Local 2350 began negotiating a new contract with Respondent in April 1957, and at the same time, as McGrath had advised Superin- tendent Kielmeyer, McGrath started to organize the employees within Local 66's unit. During working hours in the period between April and July 1957 and in the presence of Supervisors Hobbs and Mynyk,ii McGrath repeatedly went into the drafting room and spoke with the technical employees in behalf of Local 2350 and he distributed Local 2350 application cards and signed up employees on these occasions. I find that Kielmeyer was aware of and permitted these activities despite the fact that Respondent has a plant rule prohibiting union activities during working hours. Respondent had laid off three drafting room employees sometime in June 1957. Several technical employees, including Local 66 Committeeman Fred Foster, met e Grasso, Capobianco, and Swedish io Grasso testified that the employees agreed to accept Schaffer's proposal because "we could get as much without the Union and without dues and assessments." "Various employees referred to Hobbs and Mynyk as supervisors. Superintendent Kielmeyer testified that Hobbs and Mynyk have similar authority, that they interviewed job applicants, that they recommended wage increases for employees, and assigned work to employees. Oxman, the second in charge in the Scranton plant, advised employees that they should present their grievances to Hobbs. I find that Oxman, Hobbs, and Mynyk are supervisors within the meaning of the Act. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD several times later that month with Superintendent Kielmeyer concerning these laid- off employees, and at one of the meetings Kielmeyer advised the employees that he would recall these men if they would join Local 2350. The plant was shut down for vacation early in July 1957; when it reopened, tech- nical employees Ratzel and Onofrey called upon Superintendent Kielmeyer and inquired about additional vacation time. Kielmeyer replied that the men would receive such additional benefit if they would join Local 2350. Kielmeyer also men- tioned at the time that the technical employees would obtain further monetary benefits under Local 2350's contract if they joined Local 2350, and he also mentioned that the employees had not received any benefits through Local 66. A few days later, Kielmeyer summoned Ratzel and Onofrey to accept a telephone call from Respondent's New York office to the effect that the New York unit had dropped out of Local 66. (Kielmeyer testified that Respondent has a plant rule, which it strictly enforces, prohibiting telephone usage except for business and emergency purposes and that only Mynyk and H9bbs and one Ross were permitted, under the rule, to accept incoming calls from New York.) The call on this occasion was placed by Respondent's New York office and was from New York employee Grasso, whose activities in this connection have already been recounted; Grasso informed Ratzel and Onofrey that the New York employees had resigned from Local 66 and had received more money from Respondent than Local 66 could have obtained for them and Grasso suggested that the Scranton unit also talk to President Schaffer con- cerning wages and related matters. Kielmeyer testified that a group of approximately six technical employees came to him following the lockout at the New York operation and indicated that they had not heard from Raimist and could not reach him and that they were confused and wanted more money. Kielmeyer had several meetings in July and August with this group during which he told them that if he were in their position he would join Local 2350 because, among other things, Local 2350 had a pension plan and a "better" hospitalization plan than Local 66. Kielmeyer discussed wage increases with the group and he told them on one such occasion what increases each man would receive. At one of these meetings with this group, Kielmeyer summoned employee Wansack, Local 2350 president, to discuss Local 2350 with the men. Kielmeyer left the meeting, and Wansack thereupon spoke to the group during work- ing hours concerning the advantages of joining Local 2350. During the morning of July 16, Local 2350's outgoing president, McGrath, and its new president, Wansack, advised Superintendent Kielmeyer that Local 2350 had planned an organizational meeting for the technical employees to be held at a local hotel at 4:30 that day, which was the normal quitting time at the plant. Interna- tional Representative Raymond Genetti of the Carpenter's International Union was scheduled to address the meeting, and Wansack asked Kielmeyer to release the draft- ing employees at noon that day so that they could attend the meeting. Kielmeyer at first refused. McGrath then told Kielmeyer that the employees would not attend the meeting unless given time off; Kielmeyer thereupon agreed to excuse the technical employees for the stated purpose if Local 2350 would reimburse the em- ployees for working time lost, which Wansack agreed to do.12 Wansack and McGrath then went into the drafting room during working hours and advised the personnel there that they could have the afternoon off in order to attend the mentioned meeting. All technical employees, including Supervisors Mynyk and Hobbs, accord- ingly punched out at noon and later attended the meeting on which occasion Genetti attempted to persuade employees to join Local 2350. Local 2350 paid the employees their equivalent wages for the afternoon. On or about July 20, several adherents of Local 66 prepared a letter of resignation to be sent to Local 66 and they submitted a copy thereof to Kielmeyer. Schaffer summoned employees Ratzel and Foster, both of whom had signed the letter, and he stated his objection to that part of the resignation letter which indicated that the men were resigning from Local 66 because they now were in the minority and feared a discharge unless they resigned Schaffer told the employees that the letter could be used in an unfair labor practice proceeding against Respondent 13 and that they should file their own charges against him if they were so inclined, and he told them to rewrite the letter without the aforesaid explanation, which they did. Late in July, Local 2350 lost the union pledge cards signed by technical employees, and President Wansack distributed new cards during working hours for signature IsKielmeyer testified that he agreed to release the employees in order to remain on good terms with Local 2350 during then pending contract negotiations with Local 2350. A' Charges in the instant case were served upon Respondent a day or two earlier. SUPERIOR FIREPROOF DOOR & SASH COMPANY, INC 9 by these employees. Employee Onofrey went to Kielmeyer after receiving such card from Wansack and he told Kielmeyer in effect that he was not going to sign the card unless he received a wage increase. Kielmeyer told Onofrey that every- thing would work out satisfactorily and that Onofrey should sign the card, and that he, Kielmeyer, would give Onofrey a $5 increase no later than August 12. (This August 12 date apparently related to the anticipated execution date of a contract with Local 2350.) Onofrey received the increase. During the week ending July 13 Respondent gave wage increases to its Scranton technical employees; and it gave them another increase on August 12; it also had given increases to three employees during the period of negotiations earlier that year. Several employees met with Kielmeyer in or about September in regard to further wage increases. Kielmeyer told them at the time, according to employee Edward Plauga's credible testimony, that "his [Kielmeyer's] lawyer told him not to go any further, that he had already gotten too far, and that . . . the only way I can give [wage increases] to you is if the Labor Board is going to decertify Local 66." Kielmeyer then offered to pay the travel costs for two employees to visit the Philadelphia Regional Office of the Board to file such decertification petition and he further stated that he, Kielmeyer, would also punch the timecards and pay the wages of two employees while on such trip to Philadelphia. Respondent gave further increases to the Scranton employees in January and February 1958, and it granted still further increases later that year and in 1959. Respondent also made substantial bonus payments to all its Scranton technical employees in 1957 and in 1958. As in New York, all these aforementioned increases were made without notice to Local 66. Further Findings and Conclusions Mindful of the respective certification dates for the New York and Scranton units and viewing the whole 14 of Respondent's conduct respecting Local 66, both before and after Schaffer's final refusal on July 15 to meet further with Local 66, I find that Respondent failed to bargain in good faith with Local 66 from the outset of negotiations and that such conduct achieved its ultimate purpose when Respondent cut off negotiations and in effect withdrew recognition from Local 66. The record thus establishes, among other aspects of Respondent's conduct in undermining the representative status of Local 66 during a certification year,15 that Respondent bar- gained directly with employees in circumvention of Local 66, that Respondent gave better terms to employees than it had offered to Local 66, that Respondent in- sisted on contract provisions relating to internal union matters, that Respondent made changes in wages and working conditions without notice to Local 66, that Respondent questioned Local 66's representative status and then refused even to meet with Local 66, that Respondent permitted the wholesale use of its premises and other facilities during working hours for activities against Local 66 and in behalf of a rival labor organization, that Respondent counseled with employees and offered to defray the expenses of employees in securing a decertification of Local 66, and that Respondent sought to induce and did induce employees to resign from Local 66 and also to affiliate with a rival organization by promising and granting wage increases and other benefits and also by promising to rehire laid off employees. See Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678; N.L.R B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. Respondent attempts to explain this case in terms of Local 66's own conduct, and it refers particularly to the 'aforementioned 1-day strike, to the employees' dis- satisfaction with Local 66's bargaining efforts, to the "favored nations" clause in the Aetna agreement, and also to a claimed bargaining impasse on and after June 14. A bona fide impasse does permit an employer to take certain necessary action, otherwise prohibited as unilateral conduct, to enable him to continue operations; but such impasse does not justify superior terms than were offered to the bargaining representative or refusals to continue bargaining or buying off the employees with promises of and the granting of monetary and other benefits or participating in and otherwise assisting in efforts to overthrow the statutory bargaining representative; even to justify the limited unilateral action permitted during an impasse, the impasse must be bona fide,16 which the claimed impasse was not in this case. It is true, as 11 See NLRB. v. Henry Heide, Inc., 219 F. 2d 46, 49-50 (C.A. 2), cert. denied 349 Ti S 952 15 Ray Brooks v. N.L.R.B. 343 U S. 96; N.L R.B. v. Henry Heide, Inc., 219 F. 2d 47-48 (CA 2) ; Stoner Rubber Company, Inc, 123 NLRB 1440. 1e N L R B. v. Andrew Jergens Co , 175 F. 2d 130, 136 (CA. 9), cert denied 338 U S. 827, 882. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent contends , that employees became disenchanted with Local 66. Such discouragement resulted from Local 66's lack of bargaining success, and on this record it may not be gainsaid that the breakdown in negotiations was at least sub- stantially, if not entirely, attributable to Respondent 's conduct under consideration here. In any event, even a defecting unit does not excuse a refusal to bargain during a certification year or otherwise justify Respondent 's other aforementioned conduct. There is an evidentiary conflict concerning the circumstances of the 1-day strike, with Raimist denying responsibility therefor . Even were I to find, which I do not,17 that Raimist did pull out the men on that occasion , such fact could hardly justify or otherwise mitigate Respondent 's activities . It appears in regard to the "favored nations" clause, that Respondent's counsel ( who also represents the Association and Aetna ) had advised Raimist that such clause would not interfere with a contract negotiated by the instant parties ; and the record of negotiations shows Raimist's willingness to accept various terms less favorable to Local 66 than those in Aetna's contract, and it also appears that Local 66 has since executed contracts with other Association members, containing less favorable provisions than in the Aetna agreement. Referring to the circumstances that the certification year for the New York unit ended on July 5, 1957, and that there were mass resignations from Local 66 of employees in such unit,hi Respondent further asserts that it had valid basis for doubting the continuing majority of Local 66 after the certification year and that it was therefore privileged "to revise" its bargaining position and, in effect, to ignore Local 66 as exclusive bargaining representative . Respondent cites as sup- porting authority a recent decision in Stoner Rubber Company, Inc, 123 NLRB 1440. The Stoner case involved the propriety of questioning a union's representa- tive status and of certain unilateral wage increases 2 months after termination of a certification year at a time when a strike was in its fifth month and during the last 3 months of which the Union in question had not even communicated with the employer, in addition to which, among other circumstances found by the Board, "the Respondent [Employer] gave no indication of bad faith prior to taking this [unilateral ] action and committed no unfair labor practices." [Emphasis supplied.] The factual difference makes the Stoner case wholly inapposite here . Whatever defections in Local 66 did occur were, I find, a result of Respondent's own lack of good-faith bargaining, and Respondent may not be permitted to reap the benefits of its action by challenging Local 66's continuing majority status after the certifica- tion year in the New York unit.19 See Medo Photo Supply Corporation v. N.L.R.B., 321 U S. 678 , 687; Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 703-704. 1 accordingly conclude that Respondent has violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of Respondent set forth in section III, above , occurring in connection with its operations described in section I, above, have a close, intimate, and sub- stantial 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 Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce , it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act, including a requirement that Respondent bargain in good faith with Local 66 in behalf of the respective units in New York and Scranton . See the Franks Bros. and other aforecited cases. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, 'I make the following: 17 I consider Raimist a credible witness. Is It is recalled that there were no such resignations until the meeting with Schaffer on July 11. 19 Respondent further asserts that , despite the separate certifications , the New York and Scranton units should be regarded as one unit and that its argument based on the Stoner case similarly applies to the Scranton employees . So to regard both groups and Respondent's actions respecting both groups has the effect , in my opinion and I so find, of heightening and not lessening the impact of Respondent's unlawful conduct at both operations. LAUNDRY, CLEANING & LINEN WORKERS UNION 11. CONCLUSIONS OF LAW 1. Architectural and Engineering Guild , Local 66, American Federation of Tech- nical Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All technical engineering employees of Respondent's engineering department in its New York operation including estimators , technical clerks, designers, draftsmen, linters, schedulers, hardware coordinators, and other technical engineering employees doing similar work regardless of assigned classifications , excluding all other employ- ees, specifically office clerical employees, production employees, salesmen, mechanics, teamsters, guards, 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. All technical engineering employees of the Respondent's engineering depart- ment in its Scranton, Pennsylvania, plant, including draftsmen, designers, listers, schedulers, hardware coordinators, leadmen (also known as squad leaders whose duties are strictly in the technical direction of technical engineering employees) and blueprint operators, and other technical engineering employees doing similar work regardless of assigned title or classification excluding allPother employees and specifically office clerical employees , production employees, mechanics, teamsters, guards, 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. 4. On July 5, 1956, and January 7, 1957, respectively, and at all times thereafter, Local 66 has been and still is the majority representative of the employees in the above-described appropriate units for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 5. Respondent has failed to perform its obligation to bargain in good faith with Local 66 in and since January 1957 , as to each bargaining unit, and has violated Section 8(a) (5) and ( 1) of the Act by the following conduct: (a) Insisting that shop stewards be chosen from among "senior" employees and that Local 66 give union withdrawal cards to employees promoted to positions outside the aforementioned units. (b) Promising and granting unilateral wage increases and other changes in work- ing conditions during a certification year and otherwise while Local 66 was the statutory bargaining representative. (c) Bargaining directly with employees during a certification year and otherwise while Local 66 was the statutory bargaining representative and offering employees better terms than those it offered to Local 66. (d) Questioning Local 66 's representative status and refusing to recognize or otherwise negotiate with Local 66 during a certification year and otherwise while Local 66 was the statutory bargaining representative. (e) Urging, aiding, and inducing employees by promises and grants of economic benefits, to renounce Local,66 and also to affiliate with a rival organization to Local 66 during a certification year and otherwise while Local 66 was the statutory bar- gaining representative and also permitting and assisting in such activities during working hours. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Laundry, Cleaning & Linen Workers Union, Local 218, Laundry, Dry Cleaning & Dye House Workers International Union and Apex Linen Service of Chattanooga . Case No. 10-CC-435. April 5,1960 DECISION AND ORDER Upon charges duly filed on October 9, 1959 , by Apex Linen Service of Chattanooga, herein called Apex, against Laundry, Cleaning & Linen Workers Union, Local 218, Laundry, Dry Cleaning & Dye 127 NLRB No. 5.