Jasper Blackburn Products Corp.

In the Matter Of JASPER BLACKBURN PRODUCTS CORPORATION and Dis- TRICT No . 9, INTERNATIONAL ASSOCIATION OF MACHINISTS , AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. C-1443.-Decided March 27,19140 Pole Line Hardware Manufacturing Indastry-Interference, Restraint, and Coercion: query about union activity ; disparagement of the Union by indicating joining was mistaken , futile, without reason ; declaration that respondent would sign no contract with Union ; threat of plant removal or the hiring of girls to displace men as a means of avoiding signing a contract; creation of intramural bargaining committee ; dissemination of one -sided data on the Act; wage and other concessions - made through company-controlled devices to add point to threats and disparagements and to head off union demands ; summoning employees to be "witnesses" at negotiations with Union ; insistence upon company-dominated shop 'committee-Unit Appropriate for Collective Bargaining : machinists, tool and die makers, production employees, excluding watchmen and supervisory and clerical employees , as stipulated-Representatives:.proof of choice: membership in union-Collective Bargaining : refusal to recognize representative as exclusive bargaining agency; refusal to execute bilateral signed agreement unless the Union posted a bond; refusal to bargain not based on honest or reasonable doubt of Union's majority ; remedial order: enter into bilateral signed agreement, if understanding is reached, without requiring posting of bond. Mr. David Y. Campbell, for the Board. Leffler, Lefflercfi Thompson, by Mr. J. Dean Leffler, and Mr. Charles `Thompson, of St. Louis, Mo., for the respondent. Mr. Bertram Diamond, of counsel to the Board. DECISION - AND ORDER STATEMENT OF THE. CASE Upon charges and amended charges duly filed by District No. 9; International Association of Machinists, herein called the Union, the National Labor Relations Board, herein called the Board, by Dorothea de Schweinitz, Regional Director for the Fourteenth Region (St. Louis, Missouri), issued its amended complaint dated October 23,_1939, against Jasper Blackburn Products Corporation, herein called the respondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the mean- 21 N. L R B., No 124. 1240 JASPER BLACKBURN PRODUCTS CORPORATION- 1241 ingof Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing , were duly served upon the respondent and the Union. The amended complaint, as further amended at the hearing, alleged in substance : (1) that all the machinists,' tool and die makers, and production workers employed by the respondent at its St. Louis plant, excluding watchmen and supervisory and clerical employees, about April 1, 1939, and thereafter, constituted and do *Dow constitute a unit appropriate for the purposes of collective bargaining ; (2) that, about that date and at all times thereafter , the Union was and now is the representative of a majority of the employees in the unit described, for the purposes of collective bargaining ; (3) that the respondent, about that date and at all times thereafter, has refused and does refuse to bargain collectively in good faith with the Union, and to enter into a written contract with the Union; (4) that, from August 21, 1937, and at divers times thereafter, the respondent by its officers and agents, has urged its employees not to become members of the Union ; has threat- ened its employees with discrimination and discharge for becoming or remaining members of the Union; has threatened to close down and to move its plant if its employees became or remained members of the Union ; has threatened to employ girls in the place of male em- ployees unless the latter renounced their union membership ; has dealt directly with its employees in the matter of collective bargaining to the exclusion of the Union ; has promised and has granted pecuniary and other benefits to its employees upon condition that said employees renounce their membership in and refrain from joining the Union; and has circulated and published among its employees "Questions and Answers on the National Labor Relations Act"; (5) and that by all these and by other similar acts respondent did and does interfere with, restrain , and coerce its employees in the exercise of rights guaranteed in Section 7 of the Act. On November 1, 1939, the respondent filed an amended answer , which, as further amended at the hearing, denied that the respondent had engaged in the alleged unfair labor practices. Pursuant to notice, a hearing was held at St. Louis, Missouri, on November 2, 3, 4, 6, and 7, 1939, before Josef L. Hektoen , the Trial Examiner duly' designated by the Board. The Board and the respond- ent were represented by counsel and participated in the hearing. Full opportunity to be heard , to examine and cross -examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. During the course of the hearing and in his Intermediate Report the Trial Examiner made several rulings on motions and on objections to the admission of evidence . The Board has reviewed these rulings and 4242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD finds that no prejudicial errors were committed. The rulings are 'hereby affirmed except in so far as the Trial Examiner sustained an objection to the admission in evidence on behalf of the respondent of a copy of the original charge filed by the Union on June 26, 1939. That ruling is hereby reversed and the item is admitted in evidence as Respondent Exhibit No. 1. Subsequent to the hearing the respondent submitted a brief for the consideration of the Trial Examiner. On December 8, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, as alleged 'in the complaint. He recommended that the respondent cease and desist from engaging in its unfair labor practices; notify its employees that it will no longer do so; upon request, bargain collectively with the Union, as the ex- clusive representative of the employees in the appropriate unit, in respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and ifan understanding be reached on any of such matters, upon request of the Union embody such understanding in an agreement signed with the Union, without requiring the Union to post bond for any purpose. Thereafter the respondent filed a brief and exceptions to the Intermediate Report and to other parts of the record. Pursuant to notice, a hearing was held before the Board on January 25, 1940, in Washington, D. C., for the purpose of oral argument. The respondent and the Union were represented by counsel and partici- pated in the hearing. The Board has considered the briefs and the exceptions of the respondent and finds the exceptions, except such as are consistent with the findings, conclusions of law, and order below, without merit. - Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Jasper Blackburn Products Corporation is a Missouri corporation engaged at its office and plant at St. Louis, Missouri, in the manufac- ture and sale of pole-line hardware. It annually purchases, for use in the operation of its business, materials amounting to about $75,000, of which some 65 per cent come from outside the State of 'Missouri. It ,annually sells finished products totalling about $175,000 in value, of 'which some 70 per cent are sold to purchasers outside the State of Missouri. JASPER BLACKBURN PRODUCTS CORPORATION 1243 II. THE ORGANIZATIONS INVOLVED District No. 9, International Association of Machinists, is a labor organization composed of representatives elected from the local lodges within its jurisdiction, which includes Lodge 1345. The District has authority and control over its local lodges and, in turn, is under the jurisdiction of the Grand Lodge of the International Association of Machinists, herein called the I. A. M., which is affiliated with the American Federation of Labor. Lodge 1345 is a labor organization which admits to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Organizing activities among respondent's employees began about the end of July 1937. About August 20, 1937, a substantial number of the employees of the respondent attended a union organizing meeting. Demands with respect to wages and other conditions of employment were articulated. Practically all persons present signed cards desig- nating the I. A. M. as their representative for the purpose of collective bargaining. A meeting was arranged for the following week to ratify, before submission to the respondent, a proposed agreement that would embody the suggested demands. The day after the organizing meeting, the respondent caused Rich- ard Lahman and another employee of the respondent to be summoned into the respondent's office during working hours to see Jasper Black- burn, president, Ford Pennell, vice president and plant superintendent, and Raymond Leach, assistant secretary, of the respondent. Pennell said he had heard "the boys were joining a union" and he would like to -know why they were doing so. Lahman testified that Leach stated, in the course of the discussion, that the men had made a mistake by going to the union hall ; that the respondent would not sign a contract but could either hire girls or move out of the State; that, if that were considered-a lock-out, "It is just like a traffic violation, we can get around it." Although Leach denied making these statements testified to by Lahman,l it is undenied that the respondent summoned the two employees, and that Pennell made the above-quoted statements. The 1 The respondent contends that the credibility of Lahman was impeached in that he testified concerning a certain "Noochan Nailer," as an employee of the respondent, whereas Leach's testimony, based upon respondent's records and his own knowledge , established that no one by that name had ever been employed by the respondent what Lahman actually testified to, however , was that he did not know the man very well and that he `knew the man 's name or nickname was-"Naller" because that is what all called him. We do not think that the testimony of Lahman about an employee known to him under the name which he had heard used by the men is in any way contradicted by statements to the effect that no one was known to the management by that name 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner who had an opportunity to observe the demeanor of the witnesses discredited Leach's denial. Upon this record we credit Lahman and find that Leach made the statements attributed to him. A few days later, about August 23, 1937, Blackburn told the em- ployees assembled in the plant, while the power was turned off, that he saw no reason for their joining an "outside" organization in order to deal with the respondent, that he was willing to grant a 5-cent per hour increase in wages, and that the men could appoint a three-man committee to inform the management of their acceptance or rejection of this offer. Leach testified that Blackburn gave this talk because Foreman Kovaly told the officials of the respondent that the employees believed they had to get an "outsider" to represent them. Apart from this, there is no evidence of such a misunderstanding in the record. Moreover, without regard to the respondent's belief as to the em- ployees' understanding, it was unlawful for the respondent to`suggest that they form an intramural bargaining committee. Finally, from the nature of Blackburn's talk, including the offer of a wage concession in the face of imminent demands by the Union, and the respondent's other conduct disclosed by the record, we find that The purpose of Blackburn's talk was to forestall the Union. Pursuant to the suggestion contained in Blackburn's speech the em- ployees selected a committee. Shortly after the lunch period of the same clay, this committee met with Leach, Pennell, and Blackburn. The management was agreeable to certain changes in working condi- tions, including the 5-cent per hour wage increase. The men wanted a 10-cent increase. In answer to this demand Leach and Blackburn stated in substance that the respondent could not pay it, and would have to move out, hire girls, or close down if it were granted. The committee agreed to put the respondent's proposals to a vote of the men. The result of the balloting, which took place among the produc- tion workers only, was a 13 to 13 tie. At Pennell's behest there was added the favorable vote of the one maintenance employee, James Anderson, so that the respondent's proposals won out.2 At the union meeting scheduled for that night few of the'respond- ent's employees appeared. Those who did attend were dissatisfied with the respondent's concessions. They urged Larry Coimors, assistant business agent of the Union, to proceed to negotiate with the respond- ent the proposed agreement embodying the demands earlier enunciated. Connors met with Pennell and Leach on September 2, 1937. Connors stated that he represented a majority of the respondent's employees for 2 At that time the respondent employed about 28 production workers, 7 machinists, die makers, and screw-machine operators, and 1 maintenance man JASPER BLACKBURN PRODUCTS CORPORATION 1245 the purposes of collective bargaining ,3 and presented a copy of the proposed agreement as a basis for negotiation . Pennell said there was no reason for negotiating an agreement because the men were satisfied. Proof of majority representation was requested by Pennell . Connors asserted that he had cards indicating authority to represent the men. He refused to allow Pennell to inspect them then, but told him he would show them to him "at the proper time ." In the meantime , Connors offered to cooperate in an informal election at the plant. This was not acceptable, to the management. The meeting ended with Connors declaring that he was going to the Board. He did so, but did not proceed further because he was unable to "contact" as many employees as he would have liked. Thereafter, with the exception of some slight activity in February 1938, union activity was dormant at the respondent 's plant until March 1939. About that time union activity revived. , This revival was manifested by the employees again approaching Connors to ne- gotiate with the respondent for them, the initiation into the Union of eight employees on March 17 , 1939, the attendance of the employees at a union meeting on April 1, 1939, and the initiation of 24 employees on April . 7, 1939. The record shows that the respondent met the renewed activity with further efforts to combat the self-organization of its employees. Dan Dimitrov, an employee who was initiated into the Union on March -17, 1939, testified that about March 15, 1939, Pennell, in a conversation in the plant , told him he heard the men wanted to join the ,Union , asked, "How would the boys feel if we got girls in here?" and, said, "Well , if you know who they are you had better tell them to give up the idea , because it will not do you any good any way." Al- though Pennell denied making these statements attributed to him, he admitted conversing with Dimitrov in the first half of March, and he did not offer any satisfactory explanation of the nature of this con- versation . The Trial Examiner , who had an opportunity to observe the delrieanor of the witnesses , credited Dimitrov's testimony. Upon this record we find that Pennell made the statements testified to by Dimitrov. About March 22, 1939 , Pennell went to the National Metal Trades Association in order to obtain information on the Act. Thereafter, 3 The issue of majority representation is irrelevant to the violations of Section 8 (1) dealt with in this part of the Decision and Order. The respondent , however , in its excep- tions, seeks to impeach the credibility of Connors by alleging that in fact Connors did not represent a majority when he claimed he did. About this time the respondent had no more than 36 employees working in its plant. There were introduced in evidence 20 authoriza- tion cards. One is unsigned . Two are signed but undated . The record shows the cards were signed at the August 20 meeting by employees of the respondent. Consequently Connor's claim had substance. The Union represented at least 19 out of 36,-a majority. Moreover, there were 3 transfers from other locals at the August 20 meeting 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on March 25, 1939, the respondent made its first formal application to join the National Metal Trades Association and within 2 weeks received a file of information about the Act. Upon the advice of counsel it refused to submit this file in evidence. At a union meeting on Saturday, April 1, 1939,4 employees of the respondent authorized the Union to negotiate an agreement with the management. On April 3, 1939, Connors sent to Blackburn a. letter requesting collective bargaining and enclosing a copy of the proposed agreement. The proposals forwarded with the letter contained, among others, wage, seniority, and overtime demands. The "Wage Policy" hereafter described was posted before the respondent received Connors' letter of April 3, to which it replied by letter of April 5, fixing the date of the first of the bargaining conferences dealt with below. On Monday, April 3, 1939, the respondent posted in the plant a "Wage Policy," effective that day. It provided for increases in pay on a seniority basis, stated that lay-offs would be governed by seniority, and covered overtime rates and other conditions of employ- ment. After the lunch period on the same day Pennell spoke to the employees in the plant about the provisions of this bulletin and an- nounced that he would post a seniority list. The ."Wage Policy" remained in effect throughout the subsequent negotiations between the respondent and the Union. Pennell testified that at the time he addressed the men he knew of no more union activity in the plant than there had ever been. This is contradicted by Dimitrov's version of the March conversation with Pennell, which we have credited; by Pennell's going to the National Metal Trades Association for the specific purpose of obtaining infor- mation on the Act; by the proximity in time between the revival of union activity, the union meeting of April 1, and the speech and posting of April 3; and by the fact that in 1937 union activity was followed by a course of action on the part of the respondent similar to that pursued by it in 1939. The Trial Examiner, who had an .op= 4 The evidence that a union meeting occurred on April 1 does not consist only of the April 3 letter, as the respondent maintains . Connors testified that he had written the letter. He went on to identify it as "the notice I sent to the Company right after that April 1st . ," when he was interrupted by another question. He had previously testified that when the men had approached him in 1939 with reference to negotiating with the respondent , he had told them he would not take up their case until a majority of them were initiated into the organization , and that, in fact, he "got the men first before he would meet with the employers ." Connors further testified that his letter of April 3 was based on fully and partly paid-up applications filled out at the union hall . The formal initiation of 24 more employees took place on April 7. There was a random choice of the application foi membership of one of that group, Clyde Pyles, mtioduced in evidence by the respondent for another purpose . The application card is dated April 1, 1939. There Is no denial in the testimony that a union meeting occurred on April 1. In view of these facts we conclude that one took place on that date. - -JASPER BLACKBURN PRODUCTS CORPORATION 1247 portunity to observe the - demeanor of the witnesses, discredited Pennell's denial of knowledge of increased union activity. Upon the basis of the record we find that Pennell did have such knowledge., , - , In the last week in March or soon after the first week in April, the respondent mailed to its employees and posted on its bulletin board a set of "Questions and Answers on the National Labor Relations Act," prepared by an attorney for the National Metal Trades Associa- tion.5 We agree with the Trial Examiner that it is "more than likely, 5 QUESTIONS AND ANSWERS ON THE NATIONAL LABOR RELATIONS ACT : 1. QUESTION: Does the National Labor Relations Act require anyone to join a labor union? ANSWER. No It does not place any obligation of any kind upon any employe. It leaves every employe a free agent to do as he pleases 2. QUESTION : Does the National Labor Relations Act permit an employe to deal directly pith his employee ? , ANSWER: Yes. The Act leaves each employe it free agent to do as he pleases - 3. QUESTION. Does the National Labor Relations Act require any employee to make an agreement with any labor union under any circumstances? ANSWER- No It does not place any obligation of any kind upon any employe. DOES NOT COMPEL AGREEMENTS BETWEEN EMPLOYERS AND EMPLOYES IT DOES NOT COMPEL ANY AGREEMENT WHAT- EVER " 4 QUESTION, Does the Act permit collective baigaining through iepiesentatives other than C I 0 or A F of L representative-0 ANSWER : Yes. Employes may bargain collectively with their employer through whatever representatives they choose But if any employes' representa- tives represent a majority of the employes in any unit those represent- atives are the exclusive bargaining iepresentatives for that unit. 5. QUESTION: Does the National Labor Relations Act prohibit the employer's assisting any labor organization? ANSWER: It does. 6. QUESTION. Does the National Labor Relations Act prohibit or disfavor the "open shop"? ANSWER : No The National Labor Relations Act does not piohibit or disfavor the "open shop." 7. QUESTION: Does the National Labor Relations Act require or favor the "closed shop" 9 ANSWER: No The Act does not require or favor the "closed shop " 8. QUESTION : Does the National Labor Relations Act require an employer to hire or continue a man in his employ because he is a union man? ANSWER : No. The Supreme Court of the United States has held : ''TILE ACT DOES NOT INTERFERE WITH THE NORMAL EXER: CISE OF THE RIGHT OF THE EMPLOYER TO SELECT HIS EM- PLOYES OR DISCHARGE THEM THE EMPLOYER 'MAY"NOT UNDER THE COVER OF THAT RIGHT, INTIMIDATE OR COERCE ITS EMPLOYES WITH RESPECT TO THEIR SELF-ORGANIZATION AND REPRESENTATION, AND, ON THE OTHER HAND, THE BOARD IS NOT ENTITLED TO- MAKE ITS AUTHORITY A PRETEXT FOR INTERFERENCE WITH THE RIGHT OF DISCHARGE WHEN THAT RIGHT IS EXERCISED FOR OTHER REASONS TITAN SUCH INTIMI- DATION OR COERCION." 9. QUESTION : Does the National Labor Relations Act require an employer to bargain collectively with representatives of his own employes'? ANSWER : Yes. The Act requires the employer to bargain collectively with repre- sentatives of his employes, if and when they have chosen representatives. It does not require the employer to agree with those employes' repre- sentatives or to enter into any contract with the employes' represents-' tives 10. QUESTION : Does the National Labor Relations Act permit employe representation plans or plant unions? 1248 DECISIONS OF NATIONAL LABOR RELATIONS :BOARD to be misleading to persons lacking expert knowledge of the provisions of the Act.' Its ultimate effect , as the testimony of Lahman indi- cates, is to impress employees with the impotence of self-organization. We find that the respondent, by attempting to combat union organi- zation in 1937 through Pennell's query about union activity ; Leach's disparagement-of the Union by indicating that joining was a mistake; his declaration that the respondent would sign no contract; ° his threat of plant removal or the displacement of the men by girls as a means of avoiding the signing of a contract ; Blackburn's talk con- cerning the lack of any reason for joining the Union; his responsi- bility for the creation of an intramural bargaining committee; the concessions made through company-controlled devices in order to add point to the previous threats and disparagements and to head off union demands,' by further seeking to impede unionization in 1939 through Pennell's conversation with Dimitrov stressing the futility of joining the Union, and repeating the threat to hire girls; concessions made with the same motives as in 1937; and the dissemination of one-sided data on the Act for the purpose of discouraging organization,' has interfered with, restrained, and coerced its employees in the exercise of ANSWER- Employee representation plans and plant unions are recognized by the Act and there is no distinction made in the Act between such employe organizations on the one hand and outside labor unions on the other hand. 11. QUESTION : Why has the National Labor Relations Act caused employers to give up their support and assistance to any employe organization or labor union of any kind? ANSWER : Because the Act prohibits any employer from giving support or assistance to any employe organization of labor union of any kind DAVID R. Cr.ARKE, Attorney. Of the 11 questions only 3, numbers 5, 9, and 11 , are directed to the disabilities which the Act places upon the employer. There is no question directed to the substance of the im- portant guarantees provided by Section 8 (1) and ( 3) These are only indirectly alluded to in the quotation included as an answer to question 8, which emphasizes the employer's normal right to hire and discharge Most of the questions and answers are concerned with, what the Act does not require. Lehman, one of the respondent's employees , testified that after he read this document he did not think there was much lie could do about bettering his condition in the plant , that he "just wasn't sure of what my rights were. This was stating the employer 's rights and it does not say anything on it about my rights." The document also stresses the right of employees to refrain from , rather than to engage in, self-organization and collective bargaining , whereas the policy of the Act is to encourage self-organization and collective bargaining. e Republic Steel Corp . at al . v. N. L. R. B , 107 F (2d) 472 ( C. C. A 6 ), enf'g Matter of Republic Steel Corp and S. W. 0. C., 9 N L R. B . 219 Cf. Matter of Roberti Brothers, Inc and Furniture Workers Union, Local 1561, 8 N L R B 925. 7 Matter of Weber Dental Manufacturing Co. and United Electrical and Radio Workers of America, 10 N. L . R. B. 1439 Cf. N. L R. B. v American Potash & Chemical Corp , 98 F. (2d ) 488 (C C A 9 ) aff'g Matter of American Potash & Chemical Corp and Borax & Potash Workers Union No 20151 , 3 N L Ii B 140; Matter of Hercules Campbell Body Co., Inc. and United Automobile Workers of America, Local # 118, 7 N. L R B. 431. 8N. L R. B. V. Goshen Rubber and Mf'g. Co, decided February 24, 1940 (C C. A. 7), enf'g as mod Matter of Goshen Rubber and Mf'g Co and United Rubber Workers of America, 11 N. L. R B . 1346. Cf Matter of Standard hat Co and United Hatters, Cap & Millinery Workers List Union, 17 N L. R B 883 ; Matter of Nebel Knitting Company, Inc. and American Federation of Hosiery 1Voikers, 6 N. L. R. B. 284 , enf'd as mod., 103 F (2d) 98 ( C C A. 4 ) ; Matter of Mansfield Mills, Inc and T W. 0 C, 3 N. L R B. 901. JASPER BLACKBURN PRODUCTS CORPORATION 1249 rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. B. The refusal to bargain collectively 1. The appropriate unit - The Board's attorney, the respondent,,and the Union stipulated, and we find, that all the machinists, tool and die makers, and,pr-oduc- tion workers of the respondent, excluding watchmen and supervisory and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, and that such unit insures to employees of the respondent the full benefit of their right to self-organization and col- lective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit On and after April 18, 1939, the date when negotiations between the respondent and the Union began, the respondent employed a total of not more than 64 employees in the appropriate unit, while the Union represented not less than 33 of these employees .9 We find that on and at all times after April 18, 1939, the Union was the duly designated representative of the majority of the employees in the appropriate unit and, pursuant to Section 9 (a) of the Act was the exclusive repre- sentative of all the employees in such unit for the purposes of collec- 9 The respondent in its exceptions contends that the Union ceased to represent a ma- jority of its employees on and after August 1, 1939 , the date of the last conference between it and the Union. While it is true that the union constitution provides that delinquency for 3 months in the payment of dues "shall automatically cancel membership in a local lodge," such cancelation need not withdraw from the Union the authority to represent the member whose status is affected. There is no evidence of any such with- drawal on the part of anyone whom the Union had previously represented . On the other hand, on November 2, 1939, the date of the commencement of the hearing, 47 authorization cards and at least 2 applications for membership were subscribed to by employees of the respondent. Furthermore, according to the financial secretary of the local, delinquency in the payment of any month's dues does not occur until the end of the succeeding month. In other words , no membership can be canceled for delinquency in the payment of dues until 4 months from the last paid -up month. The record shows that no member had a last paid-up month earlier than April 1939. Consequently, by August 1, 1939, member- ship in the Union's local was still intact , except for the loss of one or two members who did not remain within the appropriate unit. This loss was compensated for by the, addition of new members We do not think any substantial inference to the contrary can be drawn from a statement attributed by Connors to Jerry Moore , an employee present at the August 1 conference, to the effect that "from his information a lot of men had got notice they were going to be dropped that night if they did not appear to pay dues " Finally, membership cancelations subsequent to August 1, 1939, are attributable to the respondent's unfair labor practices . Cf N. L. R B v Colten et al., 105 F. (2d) 179 (C. C.•A_ 6) enf'g Matter of Arthur L. Colten et al. and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355 ; N. L. R B v. Louisville Refining Co , 102 F' ' ( 2d) 678 (C C A..6), enf'g as mod. Matter of Louisville Refining Co. and Int'l Assn, Oil Field, Gas-Well and Refinery Work ers of America, 4 N L. R B 844, cert den 308 U S 568. 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain As we have stated, the Union, by letter of April 3, sought to open negotiations on a proposed agreement ; by letter of April 5 the re- spondent fixed the time for the first meeting. Thereafter the respond- ent and the Union participated in a series of four conferences, held on April 18, May 4, May 18, and August 1, 1939. The Union was represented by Connors. The respondent was represented by Black- burn, Pennell, and Leach. In addition, Pennell summoned to each of the conferences five employees to act as "witnesses." 10 This was an unlawful interference with the right of employees to select representatives of their own choosing. The Union had attached a proposed agreement to its letter of April 3. This draft took the form of a written contract to endure for a period agreeable to the parties, and to be signed by the respondent and the Union. It contained a closed-shop provision and other pro- visions with respect to terms of employment including the following procedure for the settlement of grievances : A Shop Committee shall be appointed to adjust all grievances which may arise with the shop Foremen. Grievances that cannot be adjusted with the foreman, shall be referred to the Business Representatives of the Union and the proper officials of the Jasper Blackburn Products Corporation. At the first conference held on April 18, Connors stated that he represented the employees for the purpose of collective bargaining. Pennell did not question this, and told Connors that the respondent "would accept him as the representative of the employees that he represented for the purpose of collective bargaining." The respond- ent and the Union then discussed the Union's proffered agreement. The parties reached an understanding on a few matters. The re- spondent refused several demands of the Union. The provision deal- ing with a closed shop was dismissed by Pennell without much dis- cussion. There was agreement with respect to the hours then worked by the men, but the question of overtime was not fully agreed upon, Pennell declining to give double time after 4 hours overtime, on Sat- urdays, and for maintenance men and helpers on Sundays. Agree- 10 Two of these employees were members of the union shop committee, a fact unknown to Pennell when he caused them to be present. At the opening of the first conference Pennell asked Connors whether he cared to have any other persons present; Connors stated that he did not, so long as these two committeemen were present. At the last conference Pennell explained that the five employees were "witnesses," and that, "as far as he was concerned, there was not any committee at the present time." JASPER BLACKBURN PRODUCTS CORPORATION 1251 ment in principle was reached on seniority. Pennell rejected the union proposal that the employees not be required to work on ma- terial-from struck shops, and that work be sent out from the re- spondent's plant only to shops covered by signed agreements with the Union. -' Demanded increases in pay were refused on the ground that.the respondent's financial situation would not permit it, and on the further ground that there had been a recent wage increase. The parties "passed over" the proposed apprentice system because the respondent did not employ sufficient workers in the category in ques- tion to warrant institution of such a system. It will- be noted that the Union's proposal concerning the presen- tation and prosecution of grievances speaks of a shop committee. Connors. -explained to Pennell that-the Union would select the mem- bers of the shop committee. Pennell rejected the Union's grievance proviision ,and in support of this rejection stated the following : the shop committee should represent all the employees; selection by the Union of a shop committee would be unfair; "they [the employees] could set up a Shop Committee of their own and . . . settle their grievances among themselves"; it was not necessary for Connors to come in at all; the men had a right to voice grievances to the man- agement either individually or through a committee; after the de- cision of•the irianagement, which would be final in such :__atters, Con- nors might "come in and talk to us, but outside of that it will not Jo any good"; "if we can't settle with the Committee we are sure we can't settle with you." Pennell indicated that the appeal from a deadlock between the committee and management lay in the strike. During the first conference Connors also asked Pennell whether he would sign an agreement. Pennell told Connors he would not "unless the Union would post a sufficient bond to guarantee to live up to the agreement." At the second meeting, on May 4, 1939, Connors abandoned the de- mand for a closed shop and requested instead a clause recognizing the Union as sole collective bargaining agent. Pennell refused such recognition, but left the door' open for further discussion of this demand. The parties reached an understanding as to holidays but not as to other terms of employment. The respondent persisted in its position in respect to the shop committee. Pennell promised to sub- mit a counterproposal. On May 15, 1939, the respondent sent the Union its counterproposal together with a letter stating that, unless the whole counteroffer were= adopted, each'sepaiate point therein was not necessarily agree- able to the' reshondent. The respondent's offer is entitled, "Proposed WTage Policy." Its.-provisions embody the wage rates of the "Wage Policy" of-April 3, 1939, previously discussed, add double time for 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work on Sundays and holidays for all but maintenance men and some helpers, contain Pennell's seniority proposal, and, in general, differ materially from that "Wage Policy" only in two respects : the preamble and shop committee provisions. Like the "Wage Policy" it is "effective on the day of posting," is not in contract form, has no period of duration, and bears no place for signatures.. From the wording of the preamble II and the shop committee provisions 112, of the counterproposal, as well as from the respondent's statements at the May 18 conference set forth below, it is clear that the.respon'dent was not willing to recognize the Union as the exclusive bargaining agent of its employees. Moreover, by these same shop committee pro- visions the respondent sought to exercise substantial control over the selection of representatives of its employees, an unlawful interfer- ference with self-organization. At the May 18 meeting Connors objected to the preamble of the "Proposed Wage Policy," on the ground that it did not grant the Union exclusive recognition. Pennell stated that he had never agreed to recognize the Union as sole collective bargaining agent and that as far as he was concerned the preamble represented the respondent's policy. Connors reported that wage demands were not being pressed by the men, and that the overtime provisions and holiday .schedule of the "Proposed Wage Policy" were likewise acceptable, as was the seniority proposal except in so far as it provided for adjustment by a shop committee selected in the manner set out in that Policy. There was much discussion upon the question of the shop committee. Connors maintained that he had the right to intervene after the shop committee had done all it could. Pennell, after stressing the finality of a ruling by the management, said "he could settle his grievances H "This revised wage policy is the result of collective bargaining with the [ Union], which we have recognized as your collective bargaining agent in accordance with the Wagner Labor Act . . . [T]he Company recognizes the right of any individual fo;discuss with the management matters affecting his employment L "SHOP COMMITTEE- The Shop Committee shall be composed of 3 representatives of the employees elected by a popular vote . . . The election shall be by secret ballot conducted by the Company and a committee of 3 employees appointed by the Company for the first election and thereafter conducted by the Company and Shop Committee FUNCTION OF SHOP COMIMIITEE The Shop Committee shall receive any grievances or suggestions iegarding conditions of employment and discuss them with the Connector Production Foreman . If the question is still not settled to its satisfaction , it may present the case to the committee of three of the Management , whose decision is final. AUTHORITY OF THE SHOP COMMITTEE The Shop Committee shall have the authority to act in behalf of any employee who designates the Committee as his agent The Committee may agree' or disagree with the management , but any settlement or compromise which it agrees with the Company shall be final " It is apparent that these provisions exclude the Union, allow the respondent to influence the choice of shop committeemen , and provide for functions more ample than the handling of grievances. JASPER BLACKBURN PRODUCTS CORPORATION 1253 among his employees and he did not need any outsider to come in and settle them for him." Connors insisted that these three clauses of the "Proposed Wage Policy" were not acceptable because they excluded the Union. Pennell reiterated his position that everyone in the plant had the right to participate in selection of the com- mittee;-that the management and the men would settle grievances to the exclusion of the Union; and that Connors' appeal from the decision of the management lay in the strike. The discussion then turned to the matter of a signed' agreement. Pennell informed Connors that, if an understanding were reached, the management would be willing to enter a signed agreement pro- vided that Connors posted a ten thousand dollar bond "to uphold his end of the contract." The considerations raised by Pennell and Leach were an asserted inability to sue the labor organization as such, and the possibility that another group might subsequently claim a majority. Connors told Pennell he represented an organiza- tion that was 50 years old, which at no time had ever been asked to post a bond and which did not intend to do so. At the close bf the conference Connors stated that he was going to consult the Board about the respondent's failure to bargain in good faith. At the last conference on August 1, 1939, an additional person, Lloyd Weber, business agent of the Union, was present. Pennell intervened in a discussion between, Connors and some of the em- ployees summoned by the respondent as "witnesses," by stating that he recognized Connors as representing a majority of the employees and that at no time had he denied that. The parties discussed the original agreement proposed by the Union, the respondent's "Pro- posed Wage Policy," and another shop committee counterproposal submitted by the respondent. The latter prescribed a method of election again excluding the Union. The union representatives re- jected it. The respondent and the Union.maintained their respec- tive positions in regard to the shop committee and other matters. Pennell elaborated the respondent's position with respect to a bond as follows : Pennell would sign his -name to the "Proposed Wage Policy" and post it without a bond; he would put the "Policy" in the.form of a contract if the Union would post a bond. The meet- ing ended with Connors saying that he was going to "enter formal charges" with the Board.13 18 The Union filed its first charge with the Board on June 26, 1939, between the dates of the third and last conferences with the respondent An agent of the Boaid communi- cated with the respondent in connection with this charge prior to the August 1 meeting The respondent contends that Connors' final statement at the August 1 meeting that he was going to "enter formal charges" when he had already filed a charge demonstrates the Union's bad faith in the negotiations. There is no merit to this contention The respondent contends also that this discrepancy impeaches Connors' credibility we have taken this discrepancy into consideration in evaluating the weight to be attached to Connors ' testimony 283022-41-vol 21--80 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (1) and (5), in connection with Section 9 (a), of the Act, requires an employer, in good faith, to deal with and recog- nize the representative designated by the majority as exclusive representative of the employees in the appropriate unit 1", The, respondent, by Leach's 1937 statement that it would sign no contract, - and by its other unfair labor practices found in Section III A above to have occurred in 1937 and 1939, manifested an inclination not to conform to this obligation. The respondent, by selecting "wit- nesses" for the negotiations; by qualifying acceptance of Comiors' claim to represent all of the employees, in such a fashion as to give only partial recognition to the Union; by refusing an express de- mand,for exclusive recognition; by refusing to incorporate an un- ambiguous exclusive recognition clause in the "Proposed Wage Policy"; and by consistently pressing for a company-dominated shop committee,15 did not comply with this obligation. The-'Act also requires, in ordinary circumstances, a willingness-to- consummate any understandings that may be reached in a bilateral signed agreement.1° The respondent, in refusing to execute a signed agreement, binding upon both parties, unless the Union posted a bond, sought to prefix the fulfillment of its statutory obligation with a condition not within the provisions, and manifestly incon- sistent with the policy of the Act. Even assuming a bond of the kind requested to be obtainable, the employer cannot lay -down the blanket requirement that the Union pay a tax to a surety company before the result contemplated by the Act, a signed bilateral agree- ment, can come to pass. Since the respondent had in 1937 stated its intention not to sign any agreement, and since none of the pro- posals advanced either by the respondent, or by the Union, called for any performance whatsoever on the Union's part, it would seem 14 N. L.' It. B. v. Piqua Munising Wood Products Co, 109 F (2d) 552 (C. C. A 6), enf'g Matter of Piqua Munising Wood Products Co and Federal Laboi Union, Local 18787, 7 N L R B 782; N L. R B v. Griswold Mf'g Co, 106 F. (2d) 713 (C. C A. 3), enf'g Matter of Griswold Mf'g Co. and Amal Assn of Iron , Steel and Tin Workers of N. Amer, Lodge No 1197, 6 N L R. B 298, N. L It B v Bites-Coleman Lumbei Co, 98 F (2d ) 18 (C C. A 9 ), enf'g Matter of Biles-Coleman Lumber Co and Puget Sound District Council of Lumber and Sawmill Workers . 4 N. L R B. 679; Matter of Amer. Baer and Felt Co and Textile Workers Union of America, Local 99, affiliated v,ith the Congress of Industrial Organizations , 1(1, N L R B 202. 15Cf Matter of Duffy Sill, Go and Silk Throwsters Union, Local 81, Textile Toikeis Union of Amer, 19 N. L R B 37 10 Art Metals Construction Co. v. N. L R .B , decided February 26, 1940 (C C A 2). enf'g as mod Matter of Art Metal Construction Co and Int I Assn of Machinists, Local 11J9, affiliated with District #65, I. A. M. (A F. of L ), 12 N L R. B 1307; Matter of Inland Steel Co and Steel TVo,kers Organizing Committee et al, 9 N L It B 783, set aside, Inland Steel Co , y N L R B , 109 F (2d) 9 (C C A 7) . Matter of H J lidinz'"Co arid='i'dhnning'and Pickle ' lVorhers,"Local Union No 325, affiliated with Amal' Meat Cutters and Butcher Workmen of N. Amer, A , F. L, 10 N L R B 963 JASPER BLACKBURN PRODUCTS CORPORATION 1255, clear that the primary purpose of the respondent's demand for a bond was to avoid the required fundamentals of collective bargaining. The respondent contends that 'the obligation to bargain imposed upon it by the Act did not commence to operate because the Union failed to present proof of its majority. Connors in his letter of April 3, 1939, requesting negotiations claimed to represent a majority. Not only did the respondent not challenge this claim in any of the 'ensuing conferences, but Pennell, at the last meeting, said he recog- nized-the Union as representing a majority of the employees, and at no time had denied that. We find that the respondent did not predi- cate any refusal to bargain with the Union upon any honest or reasonable doubt of the Union's majority.h7 We find that the respondent, on and at all, times after April 18, 1939, refused to bargain collectively, with the Union, as the repre- sentative-df-its employees in respect to rates of pay, wages, hours of .employment, and other conditions of employment, and that, by the .above conduct, it interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 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 the respondent de- scribed in Section I above, have a close, intimate, and substantial -elation to trade, traffic, and commerce among the several States, -and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, we shall order that the respondent cease and desist from engaging in such unfair labor practices and notify its employees that it will no longer do so. 'IN. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C C. A 2), enf'g Matter of Remington Rand, Inc. and Remington Rand Joint P,otecttive Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626; N. L. R. B. v. Biles-Coleman Lumber Co, -98 F. (2d ) 18 (C. C. A. 9), enf'g Matter of Bales-Coleman Lumber Co. and Puget Sound District Council of Lumber and Sawmill Workers, 4 N. L R. B. 679; N L R B v National Motor Bearing Co., 105 F. (2d) 652 (C. C. A. 9), enf'g as mod Matter o,l National Motor Bearing Co. and Int'l Union, United Automobile Workers of Amer., Local No. 76, 5 N. L it. B. 409; N. L. R. B. v. Piqua Munising Wood Products Co., decided 109 F. (2d) 552 (C C A 6), enf'g Matter of Piqua Munising Wood Products Co. and Federal Labor Union, Local 18787, 7 N L R B. 782 1256 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD Having found that the respondent has refused to bargain collec- tively with the Union, we shall order that the respondent, upon request, bargain collectively with the Union as the exclusive repre- sentative of all the employees in the appropriate unit, in respect to. rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached on any of such matters, upon request, embody such understanding in a written agreement signed- with the Union, without requiring the Union or its agents to post any bond. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the foll owing : CONCLUSIONS OF LAW 1. District No. 9, International Association of Machinists, and Local 1345, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. -•- 3. All machinists, tool and die makers, and production employees of the respondent, excluding watchmen and supervisory and cler- ical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. District No. 9, International Association of Machinists, was on April 18, 1939, and at all times thereafter has been, the exclusive bargaining representative of all the employees in such appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. A 5. By refusing on April 18, 1939, and at all times thereafter, to bargain collectively with District No. 9, International Association of Machinists, as the exclusive representative of the employees in such appropriate unit, the respondent has engaged in and is en- gaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. The aforesaid labor practices are unfair labor practices affect- ing commerce, within the meaning of Section 2 (6) and (7) of ,the,, Act. ORDER' Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10 (c) ' of the National Labor Re- JASPER BLACKBURN PRODUCTS CORPORATION 1257 lations Act, the National Labor Relations Board hereby orders that the respondent, Jasper Blackburn Products Corporation, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from:, (a) Refusing to bargain collectively with District No. 9, Inter- national Association of Machinists, as the exclusive representative .of all the respondent's machinists, tool and die makers, and pro- duction employees, excluding watchmen, and supervisory and cler- ical employees ; (b) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collecting bargaining or other mutual aid or protection, as guaranteed in Section 7 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 District No. 9, In- ternational Association of Machinists, as the exclusive representa- tive of all its machinists, tool and die makers, and production em- ployees, excluding watchmen and supervisory and clerical employees, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding be reached on any of such matters, upon request, embody such understanding in a written agreement signed with the Union, without requiring the Union, or its agents, to post. any bond; (b) Immediately post notices to all, its employees in conspicuous places in and about its plant, and maintain said notices for a period ,of at least sixty (60) consecutive days, stating that the respondent will cease and desist in the manner set forth in paragraphs, 1 (a) and''(b)- of this Order,, and, that the respondent will. take the af- firmative action set forth in paragraph 2 (a) hereof; (c) Notify the Regional Director for the Fourteenth Region in writing within ten (10). days from the, date of this, Order what steps the respondent has taken to comply therewith.