Borg-Warner Corp.

In the Matter of CALUMET STEEL DIVISION OF BORG-WARNER CORPO- RATION and AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA , LOCAL 1027, THROUGH STEEL WORKERS ORGANIZING COMMITTEE , AFFILIATED WITH THE COMMITTEE FOR IN- DUSTRIAL ORGANIZATION In the Matter of CALUMET STEEL DIVISION OF BORG-WARNER CORPO- RATION and STEEL WORKLRS ORGANIZING COMMITTEE FOR THE AMAL- GAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF NORTH AMERICA, LODGE 1027 Cases Nos. C-786 and C-1430, respectively.Decided April 23, 1940 Steel Products Manufacturing Industry-Interference, Restraint, and Coercion: employment of agent for purposes of labor espionage ; ordered to cease and desist such practices-Discrimination : charges of, dismissed-Unit Appropriate for Collective Bargaining : hourly paid production and maintenance employees, excluding foremen, assistant foremen, watchmen, and all other supervisory em- ployees; heaters specially considered and included-Representatives : proof of choice : certification in prior representation proceeding ; certification effective from date issued ; majority received in election presumed to continue : not rebutted by proof of changes in personnel prior to or subsequent to certification ; (Leiserson, concurring ) duty to honor certificate unless new representative is certified, where a certificate has been issued by the Board as a result of an election and the representative thus certified is asserting its right under such certificate-Agreement: statement of policy, as-Collective Bargaining : refusal of: by refusing recognition of certified union as exclusive representative ; offer of exclusive recognition conditioned upon union's presenting new proof of ma- jority, where no evidence presented to overcome presumption that union con- tinued to represent a majority after certification , as; by expressing intention not to enter into written signed contract ; affirmative order to bargain with union and embody understandings in written agreement upon request. Mr. Stephen M. Reynolds , for the Board. Pope c Ballard, by Mr. Merrill Shepard and Mr. Lee C. Shaw, of Chicago, Ill., for the respondent. Miss Fannie M. Boyls, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 23 N. L. R. B, No. 12. 114 CALUMET STEEL DIVISION, BORG-WARNER CORP. 115 1027, through Steel Workers Organizing Committee, affiliated with the Committee for Industrial Organization, herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois) issued its complaint dated May 5, 1938, against Calumet Steel Division of Borg-Warner Corporation, Chicago Heights, Illinois, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. With respect to the unfair labor practices, the complaint alleged in substance that on or about September 28 and November 18, 1936, respectively, and thereafter, the respondent discouraged membership in the Union by discriminating in regard to the hire and tenure of employment of two of its employees 1 because they joined and assisted the Union and engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protection; that during September 1936 and thereafter the respondent advised and warned its employees against joining or retaining their membership in the Union and questioned them concerning their membership in the Union; that the respondent from and after Jan- uary 1, 1935, and continuously to the date of the issuance of the complaint, used in its plant an operative provided by Corporations Auxiliary Company for purposes of espionage over the union affilia- tions and activities of its employees; and that the respondent, by the foregoing acts, and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The complaint and accompanying notice of hearing were duly served upon the respondent and the Union. On May 11, 1938, the respondent filed an answer in which it admitted the allegations of the complaint relative to the nature of its business and the effect of its business upon commerce, denied that it had engaged in any of the unfair labor practices with which it was charged, and alleged that the complaining employees, the Union, and the Board, by their delay in instituting the present proceeding, had been guilty of lathes, which constituted an equitable defense and bar to the prosecution of this proceeding. Pursuant to notice a hearing was held at Chicago, Illinois, on May 12 and 13, 1938, before Peter F. Ward, the Trial Examiner duly desig- nated by the Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity to be 1Waltei Bieionski and Harry Kasprzak 116 DECISIONS OF NATIONAL LABOR RELATIONS '-BOARD heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues was afforded all parties. At the con- clusion of the Board's evidence, counsel for the Board moved to conform the pleadings to the proof in respect to the discrepancies in dates and the spelling of names. This motion was granted without objection from the respondent. During the course of the hearing the Trial Examiner made other rulings on various motions and on objec- tions to the admission of evidence. The Board has considered these rulings and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On July 8, 1938, the Trial Examiner filed an Intermediate Report, in which he found that the respondent had engaged in unfair labor practices by discriminating in regard to the hire and tenure of em- ployment of the two employees named in the complaint and by hiring an undercover operative to spy upon the union activities of its em- ployees. He recommended that the respondent cease and desist from engaging in such unfair labor practices, that it reinstate with back pay one of the discharged employees, and that it make whole the other employee found to have been discriminated against for any loss of pay which he may have suffered by reason of the discrimination. On August 1, 1938, the respondent filed exceptions to the rulings of the Trial Examiner during the hearing and to his Intermediate Report. Thereafter, on August 20, 1938, it filed a brief, in which it urged, among other things, its defense of laches 2 theretofore asserted in its answer. On October 18, 1938, a hearing for the purposes of oral argu- ment before the Board was held. Counsel for the respondent appeared and participated. On April 26, 1939, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the record be reopened and that a hearing be held for the sole purpose of taking further evidence in relation to the alleged discriminatory discharge of Harry Kasprzak, one of the employees named in the complaint. The Union had theretofore on June 22, 1938, filed charges 3 with the Regional Director, alleging that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act. ' The defense of ]aches was urged only with respect to the alleged discriminatory dis• charges In view of our findings in Section III B, antra, that the record affords an insuffi- cient basis for a finding that the employees were discriminatorily discharged, we deem it unnecessary to consider this defense 8 These charges were signed, "Steel Workers Organizing Committee, for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1027 " The charges in Case No C-786 were signed, "Amalgamated Association of Iron, Steel & Tin Workers of North America, Local 1027, through Steel Workers Organizing Committee, affiliated with the Committee for Industrial 0 ganlzation " The labor organization, however, was in tact the same in both cases, and we shall vefer to it herein as the Union. CALUMET STEEL DIVISION, BORG-WARNER CORP. 117 Acting pursuant to Article II, Section 37 (b), of National Labor Relations Board Rules and Regulations-Series 1, as amended, the Board on April 28, 1939, ordered that the new case, No. XIII-C-826,4 be consolidated with the old case, No. C-786, for the purpose of hearing and for all other purposes. Upon the charges filed by the Union on June 22, 1938, the Board, by the Regional Director, issued its complaint dated May 25, 1939, against the respondent, alleging 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. With respect to the unfair labor practices, the com- plaint alleged, in substance that a majority of the employees in the appropriate unit consisting of all hourly paid production and maintenance employees, excluding foremen, assistant foremen, all other supervisory employees, and watchmen, at an election,conducted by the Board on November 15, 1937, designated the Union as their representative for the purposes of collective bargaining with the respondent; that pursuant to such designation the Board on May 21, 1938,6 certified the Union as the exclusive bargaining representative of all employees in such unit; that at all times since November 15, 1937, the Union has been such exclusive representative of all the employees in such suit ; that on or about May 28, 1938, June 9, 1938, June 14, 1938, and at other times after May 21, 1938, the respondent refused to bargain collectively with the Union; that by such acts and by other acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. On July 22, 1939, the respondent filed its answer, in which it denied receiving a copy of the charge; ° denied that the Union was a labor organization; denied the appropriateness of the unit alleged; denied that the Union represented a majority in such unit; alleged that the Decision and Certification issued by the Board on May 21, 1938, was invalid, erroneous, and unlawful for ' reasons specified; alleged that there had been no final determination of the issues in the representation case resulting in the certification of May. 21, 1938, until April 20, 1939; alleged that the certification was, based upon a stale and insufficient record, and was therefore of no effect; denied that it had refused to bargain ; alleged that it was willing to bargain collectively with the duly authorized representatives of the Union 4 This case was transferred to and continued before the Board as Case No C-1430. 5 The complaint erroneously stated the date to be April 21, 1938. The error was corrected by amendment at the hearing. ° Counsel for the respondent was furnished with a copy of the charge just prior to the commencement of the hearing and the respondent at no time thereafter reiterated its objection that a copy of the charge was not attached to the complaint. 283034-41-vol. 23-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that it had always bargained with such representatives; alleged that the Union had asked -for a contract for its members only and thereby waived its claim of majority and evidenced the lack thereof; alleged that the Union had offered to prove that it represented a majority and thereby waived reliance upon the purported certifica- tion referred to; alleged that the respondent had been willing to accept, such proof that the Union represented a majority--but that the Union had refused to offer such proof; and denied all other allegations of the complaint. A copy of the complaint and consolidated notice of hearing were duly served upon the respondent and the Union. Pursuant to notice, a hearing was held at Chicago, Illinois, on July 27 and 28, 1939, before Peter F. Ward, the Trial Examiner duly designated by the 'Board. The Board and the respondent were represented by counsel and participated in the hearing. Full opportunity- to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. At the commencement of the hearing a motion by the respondent to make more definite and certain or, in the alternative, to strike certain portions of the com- plaint, and a motion by the respondent for a bill of particulars as to issues and matters to be raised in the further hearing in Case No. C-786 were offered in evidence. Counsel for the respondent there- upon stated that explanations which had been made to him by counsel for the Board relative to matters which counsel for the Board ex- pected to prove satisfied his objections set forth in the motions. The Trial Examiner therefore denied the motions. Also at the com- mencement of the hearing, the respondent filed objections to the order of consolidation and moved that the two cases be severed for all pur- poses other than hearing. The Trial Examiner overruled the objec- tions and denied the motion for severance. By stipulation between counsel for the Board and counsel for the respondent at the hearing the record in a prior representation proceeding, Case No. R-289, was 'made a part of the record in these proceedings. During the course of the hearing the Trial Examiner made rulings on various motions and on objections to the admission of evidence. The Board has con- sidered these. rulings and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. On November 28, 1939, the Board, acting pursuant to Article II, Section 36, of National Labor Relations Board Rules and Regula- tions-Series 2, ordered that Case No. XIII-C-826 be transferred and continued before the Board as Case No. C-1430, and that the Trial Examiner prepare a supplemental intermediate report in the consolidated cases. Thereafter, on December 1, 1939, the respondent filed objections to the Board's order of November 28, 1939, renewed ' CALUMET. STEEL DIVISION, BORG-WARNER CORP. 119 its original objections to the order of consolidation, and moved that the Board sever the cases for all purposes other than hearing. The Board has considered these- objections and the motion, and finds them ,without merit. The objections are hereby overruled and the motion denied. On November 29, 1939, the Trial Examiner filed his Intermediate Report in Case No. C-1430, in which he found that the Union on •,May'21, 1938, and at all times thereafter, represented a majority of the employees of the respondent in a unit appropriate for the pur- poses of collective bargaining; that the respondent on June 1, 1938, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of its employees within such unit; and that the respondent had thereby engaged in unfair labor practices affecting commerce within the meaning of Section 8 (1) and '(5) of the Act. He recommended that the respondent cease and desist from engaging in such unfair labor practices and that, upon request, it bargain collectively with the Union as the exclusive rep- resentative of the respondent's hourly paid production and mainte- nance employees, excluding foremen, assistant foremen, all other supervisory employees, and watchmen, and that if an understanding be reached, the respondent embody such understanding in a signed agreement if requested to do so by the Union. On December 26, 1939, the respondent filed exceptions to the rulings of the Trial Examiner during the course of the hearing and to the Intermediate Report. On January 7, 1940, the respondent filed a brief in support of its exceptions. On December 29, 1939, the Trial Examiner filed a Supplemental Intermediate Report in Case No. C-786, in which he renewed his original finding that Harry Kasprzak was discharged by the respond- ent because of his union membership and activities. On January 22, 1940, the respondent filed exceptions to the rulings of the Trial Ex- aminer during the hearing and to the findings of the Trial Examiner in his Supplemental Intermediate Report. Thereafter, on January 30, 1940, a hearing for the purposes of oral argument on the consolidated cases was held before the Board in Washington, D. C. Counsel for the respondent appeared and partici- pated in the argument. The Board has considered the respondent's exceptions to the rulings of the Trial Examiner at the two hearings and its exceptions to the several Intermediate Reports of the Trial Examiner and, save as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the consolidated cases and the record in the representation case, No. R-289, the Board makes the following : 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. THE BUSINESS OF TILE RESPONDENT Borg-Warner Corporation was incorporated in 1928 under the laws of the State of Illinois. On or about June 10, 1935, it purchased the entire capital stock of Calumet Steel Company at Chicago Heights, Illinois, and the operations at Chicago Heights were thereafter con- ducted under the name of Calumet Steel Division of Borg-Warner Corporation, the respondent herein. The respondent manufactures reinforcing bars, fence, posts ' ,,,,steel tubing, and other steel products. In excess of 50,000 tons of raw materials, consisting chiefly of old rails and axles, are used annually 'in the manufacture of its products. About 70 per cent of these raw materials are obtained from States other than Illinois and about 40 per cent of the manufactured products are sold and transported out- side the State of Illinois. II. THE ORGANIZATION INVOLVED Amalgamated Association of Iron, Steel and Tin Workers of North America, Local 1027, affiliated with the Steel Workers Organizing Committee of the C. I. O.,' is a labor organization admitting to mem- bership the hourly paid production and maintenance employees of the respondent, excluding foremen, assistant foremen, watchmen, and all other supervisory employees. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion During the month of August 1935 the respondent engaged the services of Corporations Auxiliary Company, a company engaged in the business of furnishing detectives and under-cover operatives for employers of industrial labor." An operative designated by the Cor- porations Auxiliary Company on its statements as "T. C. G." was sup- plied the respondent on August 12, 1935. During January 1937 the industrial espionage activities of Corporations Auxiliary Company were investigated by a subcommittee of the Committee on Education and Labor of the United States Senate. About that time the em- ployees suspected the presence of a spy in their midst and one of 'Congress of Industrial Organizations, formerly called Committee for Industrial Organization. 8 See Report of the Committee on Education and Labor pursuant to S. Res. 266 (74th Congress) . Part 4, Corporations Auxiliary Co., Chrysler Corporation, excerpt from pages 1134-1140 of the testimony of Dan G Ross, General Manager of Corporations Auxiliary Company, and excerpt from Exhibit 474 in Appendix at pp. 1363-1370, admitted in evi- dence at the hearing in this proceeding. CALUMET STEEL DIVISION, BORG-WARNER CORP. 121 them announced at a union meeting on or about February 6 that a spy was present. Thereupon an employee of the 8-inch mill known as "Butterfield," whom some of the employees suspected of being a spy, left the union meeting and never thereafter returned to work at the plant. The respondent refused to reveal the name of the operative which it employed but testified that the Corporations Aux- iliary Company voluntarily withdrew the operative in February 1937. Invoices and canceled checks introduced in, evidence in response to a subpoena daces tecum issued by the Board show that the services of the operative were terminated on February 6, 1937. We find that "T. C. G." and "Butterfield" were one and the same person. W. B. Caldwell, vice president and works manager of the respond- ent, received written reports, usually daily, from "Butterfield" through the Corporations Auxiliary Company and, after reading them and studying their contents, destroyed them. Caldwell testi- fied that he was not instructed by the Corporations Auxiliary Com- pany concerning the disposition of the reports but destroyed them voluntarily. He explained, "This is the sort of information I have always considered to be strictly private information, available only and only to be used by the direct management of the plant; and it is oftentimes of such a nature that it should be kept entirely private. . . . You might draw erroneous conclusions from it." He stated that the reports related "to mechanical difficulties, waste or about the personnel, how the personnel was performing, safety prac- tices, a hundred and one different things of that sort that [he] felt [he] needed some sort of information on." Caldwell admitted, how- ever, that he gave no instructions to the Corporations Auxiliary Com- pany concerning the nature of the under-cover work to be performed and that he never directly communicated with the operative. All replies by Caldwell to questions asked him about information obtained concerning the union activities of the employees were evasive, indirect, and vague. He admitted, nevertheless, that he was informed by the reports that the operative had joined the Union. The Union commenced organizing employees of the respondent in July or August 1936. On September 11 it issued a charter as Local 1027 to such employees and a vigorous campaign for members was started. "Butterfield" joined the Union in October or November 1936, attended union meetings, entertained the employees, charged the items of expense to the respondent, and offered to lend some of the employees money. It was these activities which aroused the suspicion of some of the union members, caused them to watch "Butterfield," and resulted in his ultimate exposure . It is a matter of common knowledge that the operatives of Corporations Auxiliary Company have for years been engaged in labor espionage and that 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they report the names and activities of active union members to the Corporations Auxiliary Company which in turn reports such infor- mation to the employers .9 There is no evidence that "Butterfield," employed in the 8-inch mill, was qualified, instructed, or had an op- portunity to study and report on mechanical difficulties, waste, or safety practices, and we have no reason to believe that the nature of his reports was different from those of other operatives of the, Corporations Auxiliary Company. We therefore conclude that at least part of the information furnished the respondent by "Butter- field" pertained to the union membership and activities of the employees. We find that the respondent, by utilizing the services of an opera- tive of the Corporations Auxiliary Company to spy upon and report to the respondent the union affiliations and activities of its employees, has interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed by Section 7 of the Act. B. The discharges As we have above stated, the Union commenced organizing em- ployees of the respondent in July or August 1936. Thereafter, on September 28, 1936, and November 18, 1936, respectively, two em- ployees, Walter Bieronski and Harry Kasprzak, each of whom was very active in recruiting members for the Union, were discharged. Each claimed that he was discharged because of his union member- ship and activities. We shall consider their cases separately below. Walter Bieronski was employed by the Calumet Steel Company in 1916 and, with the exception of an 11-month intermission when he quit to work on another job, was employed continuously by that com- pany until the respondent purchased its capital stock in June 1935. For the last 13 or 14 years of his employment with the Calumet Steel Company he had been an anchor-plate or punch-press operator in the post-fabricating department, and it was that type of work which he was employed to do when the respondent commenced operating the plant on July 16, 1935. During the winter of 1935 to 1936 the respondent decided to re- distribute and "speed up" some of its operations and in so doing increased the duties of the punch-press operator. Bieronski com- plained, first to his foreman, and then to Edward F. Peters, plant superintendent, that he was having to perform the work of two men and that the job with its increased duties was too strenuous for him to continue. He asked for and received a transfer to another job e Report of the Committee on Education and Labor pursuant to S. Res. 266 (74th Congress ), Report No. 46, Part S, pp . 8, 12, 74. See, also, footnote 8, supra. CALUMET STEEL DIVISION, BORG-WARNER CORP. 123 after working about 2 months on the punch-press with its added duties. Before. receiving the transfer Bieronski had told Peters, "Ed, find me something else ; I don't want that anchor plate job any more, I am getting too old and slow for a job like that; that is a job for a young fellow." Bieronski was at that time 45 years old. Thereafter several other men were tried at the punch-press job with its dual duties, but they, too, could not perform the work and soon the extra duties were removed. Bieronski, after leaving the punch-press job, worked successively as a machinist's helper for 3 or 4 months, as a millwright for about 7 weeks, and as an engine-room attendant for the remainder of the period of his employment. The first job was only temporary. The second could have been permanent, but Bieronski complained that it was too hot and too hard for him to do and requested a transfer. He was thereupon transferred to the engine room to perform the work of one Spaulding who was then employed temporarily on a construction job. Charlie Phiefer, the foreman, told Bieronski when he was as- signed to the engine room, "You work here until Spaulding gets through with his pipe-fitting job, and then you come back to the machine shop." On September 28, 1936, Bieronski was told by Phiefer to stay at home until the latter sent for him. Two days later Bieronski re- turned to the plant and discovered that his time card was missing from the rack. He was informed by the timekeeper that he was discharged but was given no reason therefor. He inquired of Olliffe, the employ- ment manager, Phiefer, and Peters concerning the cause of his dis- charge and each disclaimed knowledge of or responsibility for the discharge. Although both Olliffe and Peters testified at the hearing, neither 'explained his failure to acquaint Bieronski with the cause of his discharge. Peters.testified that Bieronski was in fact discharged because pro- duction had slowed up and he, Peters, was given orders to curtail the "force wherever possible and take off any extra help . . . who were not working directly on production." Spaulding had completed his pipe-fitting job and was ready to return to his regular job as engine- room attendant, where he would necessarily displace Bieronski. Ap- parently the respondent followed no seniority policy in effecting lay-offs or discharges. Although other men were employed by the respondent on the same day Bieronski was discharged, it does not appear that they were employed to do work which he could have done. Bieronski joined the Union during its organizational period, about July 15, 1936, and commenced wearing his union button to work shortly before his discharge. He was elected "guide" of the Union and was very active in recruiting new members. He personally signed up between 25 and 30 members. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The union grievance committee upon several occasions attempted to secure his reinstatement. He was reinstated on June 3, 1937, at the conclusion of a strike which had been called by the Union. Bieronski was reinstated only because of the Union's insistence thereon, and as a compromise of the Union's demands. The Trial Examiner found that Bieronski was discharged because of his union membership and activities. Although there is some evidence that no decrease in production necessitated a curtailment of the working force when Bieronski was discharged, and although the facts are sufficient to create a suspicion as to the motivating cause for Bieronski's discharge, we are of the opinion that the record does not show that he was discharged because of his union membership and activities rather than for the reason asserted by the respondent. The Trial Examiner found that after his reinstatement on June 3, 1937, Bieronski was not discriminated against because of his union activities. Neither Bieronski nor the Union filed exceptions to this finding. We have considered the evidence in that respect and sustain the finding of the Trial Examiner. We shall therefore dismiss the allegations of the complaint in so far as they relate to Bieronski. Harry Kasprzak was employed by the Calumet Steel Company as shearman in the shipping department in 1933, and was employed by the respondent in that capacity when it commenced operating the plant in 1935. He joined the Union in September 1936 and was considered one of its most active members. He had signed up over 25 members prior to his discharge on November 18, 1936. The rea- son given him by the respondent for his discharge was his alleged failure to pass a physical examination. When the respondent commenced operating the plant in 1935, it required all employees to take a physical examination. Through inadvertence Kasprzak and several other employees were not called for the examination at that time. The omission was not discovered by the respondent until November 1936. On November 16 Kasprzak and the other employees who had not theretofore been examined were required to be examined by Dr. Victor E. Engelman, who was em- ployed by the respondent on a retainer basis for all of its medical and industrial-insurance work. Concerning the nature and extent of the examination given Kasprzak, there is an irreconcilable conflict in the testimony of Kasprzak and that of Engelman and of William L. Olliffe, the employment manager and safety director, who acted as the doctor's clerk during the examination. Engelman testified that Kasprzak was completely disrobed and examined from head to foot; that symptoms found during the course of the examination led him to believe that Kasprzak might be harboring gonorrhea; that he there- CALUMET STEEL DIVISION, BORG-WARNER CORP. 125 upon marked Kasprzak's examination card "B" 10 and recommended that Kasprzak be not accepted by the respondent as an employee. Engelman's testimony in regard to the examination was substanti- ated in material respects by the testimony of Olliffe. Kasprzak denied that he was given the type of examination described by Engelman. He testified at the first hearing, in May 1938, that he was unclothed only to the waist while being examined; however, at the second hearing in July 1939, Kasprzak admitted that during the course of the examination he dropped his trousers to his knees. Under the circumstances, we reject the finding of the Trial Examiner in his Intermediate Report that Kasprzak's version of the physical examination was correct 11 and accept the testimony of Engelman and Olliffe as the more credible. After the examination was completed and while Kasprzak was dressing, Olliffe advised him to see a doctor but refused to tell him why. Kasprzak on the same day saw a Doctor E. C. Brown, who, after examining him, informed him that there was nothing wrong with him. On the second day thereafter, November 18, Kasprzak was discharged and told by Olliffe that he had failed to pass the physical examination. Kasprzak informed Olliffe that Dr. Brown could find nothing wrong with him, and asked the reason why he had not passed the physical examination. Olliffe again refused to tell him the reason. Kasprzak on that day or shortly thereafter also saw Engelman and asked what was the matter with him. Engelman re- fused to tell him. Kasprzak thereafter saw a Doctor Spencer Blim, who gave him an examination which Kasprzak testified was similar to the one given him by Brown and Engelman, "only he spent more time." Blim likewise found nothing wrong, and gave him a certifi- cate so stating. Kasprzak then took this certificate to Olliffe, who told him, "Keep your mouth shut and don't say anything to anybody, and I will see what I can do for you." Several times thereafter Kasprzak returned to see Olliffe, who repeatedly told him, "I will see what I can do for you." On January 6, 1937, Kasprzak obtained temporary work at another steel plant and was required to and did pass a physical examination as a prerequisite to his employment. On January 6, 1938, at a meeting of Kasprzak, Olliffe, and Engel- man with representatives of the Board in Chicago, Kasprzak was in- formed for the first time that Engelman suspected him of harboring gonorrhea. Kasprzak thereupon saw a Doctor Shayle Miller, who 10 Each employee examined was classified on his examination card as "A," 'B," or "C." "A" meant satisfactory ; "B," questionable ; and "C," not to be employed The Trial Examiner made no finding in this regard in his Supplemental Intermediate Report. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gave him a urine, blood, and laboratory test, and issued his certificate dated January 21, 1938, certifying that he had "thoroughly examined Mr. H. Kasprzak and found him in excellent condition. His Kahn is negative., His urine is also negative." On May 12, 1938, after the commencement of the first hearing in this case, Kasprzak was ex- amined by Dr. V. N. LaMarre, of Chicago Heights, for gonorrhea and kidney trouble. LaMarre testified that the examination showed no evidence of gonorrhea or kidney trouble. On July 24, 1939, just prior to the second hearing in this case, Dr. Blim, the second doctor consulted by Kasprzak, again examined him and found nothing wrong with him. Engelman testified that on the basis of the examination which he gave Kasprzak on November 16, 1936, he concluded that Kasprzak "might be harboring a venereal disease." He admitted, however, that the symptoms which he discovered might have resulted from a a non-venereal disease, and that he took no slide test or laboratory test to confirm his suspicion. Engelman further testified that gonor- rhea may be latent and that evidence of it might not have appeared in subsequent examinations given Kasprzak; that the subsequent ex- aminations, therefore, did not alter his original opinion. When asked whether he did not feel a human duty to tell Kasprzak of the suspi- cion which he harbored, Engelman replied, "I am not working for social welfare." Although the conduct of the respondent, through its doctor and personnel officer, in refusing to inform Kasprzak of its suspicion that he harbored gonorrhea may appear to be neither humane nor reason- able, and although the evidence is sufficient to arouse a suspicion that the respondent had motives other than those asserted by it for dis- charging Kasprzak, we do not find from the evidence before us that the respondent discharged him because of his union membership or activities. We shall therefore dismiss the allegations of the complaint in so far as they relate to Kasprzak. C. Refusal to bargain collectively 1. The appropriate unit In:'a Decision and Certification of Representatives issued by the Board on May 21, 1938,12 the Board found that the hourly paid production and maintenance employees of the respondent, excluding foremen, assistant foreman, watchmen, and all other supervisory employees, constituted a unit appropriate for the purposes of collec- 12 Matter of Calumet Steel Division of Borg-Warner Corporation and Steel Workers Organizing Committee, 7 N. L. R B. 340 CALUMET STEEL DIVISION, BORG-WARNER CORP. 127 tive bargaining. None of the parties in the present proceeding con- tended that this finding should be altertd.ls We, therefore, find that the hourly paid production and mainte- nance employees of the respondent, excluding foremen, assistant foremen, watchmen, and all other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit On July 13, 1937, the Union filed with the Regional Director for the Thirteenth Region (Chicago, Illinois) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent. After an investigation and hearing on the petition, the Board directed the Regional Director to conduct an election by secret ballot to determine whether the employees within the appropriate unit wished to be represented by the Union, by Chicago Heights Steel Workers Protective Association , herein called the Association, or by neither, for the purposes of collective bargaining. The election was held on November 15, 1937. On November 22, 1937, the Regional Director filed with the Board his Intermediate Report on the secret ballot, giving the results of such election and disclosing that nine ballots were challenged . On November 24 and November 29, 1937, respectively, the Union and the Association filed exceptions to the Intermediate Report. The Association , in its exceptions, alleged that five of the challenged voters were ineligible to vote because they were employed in a supervisory capacity and that four should have been ruled eligible to vote. In order to determine whether either labor organization received a majority of the valid votes cast at the election, it was necessary for the Board to rule upon the challenged ballots. The Board accordingly authorized a hearing to be held at Chicago, Illinois, for the purpose of determining the issues presented by the challenged ballots. This hearing was conducted on January 12 and 13, 1938. Thereafter, the Board duly considered the record made at such hearing and determined that six of the nine employees whose ballots had been challenged were entitled to vote. , On March 30, 1938, it directed the Regional Director to open the ballots of the six em- ployees in the presence of the duly accredited representatives of the Association and the Union and to report the results of the balloting. On April 9 , 1938, prior to the opening of such ballots, the Association 33 The respondent in its answer denied that the unit alleged is appropriate but made no such contention at the hearing . Its objection apparently applies only to the inclusion or exclusion of specific employees in the unit and not to the categories defining it. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed with the Board a motion to reopen the hearing for the purpose of inquiring: into the propriety of a ruling by the agent conducting the election on November 15, 1937, that three employees not mentioned in the exceptions to the Intermediate Report had been improperly ruled ineligible to vote, as a result of which ruling a fourth employee ,did not attempt to vote. The Association further moved that the Board reconsider the cases of the three employees whose challenged ballots the Board had not ordered to be opened On April 15, 1938, after due consideration, the Board issued and served upon the parties its order denying the motions. Thereafter, on April 25, 1938, the respondent filed with the Board a motion to dismiss the proceeding and commence a new proceeding or investigation to determine the question concerning representation, or, in the alternative, to reconsider the denial of the Association's motion filed on April 9, 1938. On May 21, 1938, the Board issued its Decision and Certification of Representatives, above referred to,14 denying therein the motion of the respondent and certifying the Union as the exclusive bargain- ing representative of the hourly paid production and maintenance employees, excluding foremen, assistant foremen, watchmen, and all other supervisory employees, employed by the respondent at its Chicago Heights, Illinois, plant. On May 28, 1938, the Association filed with the Board a motion for reconsideration and amendment of the Decision and Certifica- tion. On May 31, 1938, the respondent filed with the Board a motion for reconsideration of the Decision and revision of the Certification, and moved in the alternative that the representation proceeding be dismissed and that a new proceeding be commenced. This motion of the respondent set forth in substance the same matters alleged by the Association in its motion of May 28 and, in addition, alleged further grounds for reconsidering, revising, or setting aside the Certification. On June 6, 1938, the Board, after duly considering the matters set forth in the respondent's motion of May 31, issued its order denying the motion. Copies of the order were duly served upon all the parties on June 7. Through inadvertence the Associa- tion's motion was not ruled upon by the Board until April 20, 1939, at which time the Board denied the motion and notified all parties of the denial. The respondent, in its answer and in its brief in the instant pro- ceeding, renews the objections made by it and considered by the Board in connection with the representation case, and urges new and further objections to the Certification. 'Matter of Calumet Steel Division of Borg-Warner Corporation and Steel Workers Organizing Committee, 7 N. L. R. B. 340. CALUMET STEEL DIVISION, BORG-WARNER CORP. 129 (1) The respondent contends that, since in the election conducted by the Board the Union received the votes of less than a majority of the total number of employees in the appropriate unit, the Union was not properly certified by the Board. The Union, however, received a majority of the votes cast in the election and for this reason it was properly certified as the exclusive representative of all the employees within the appropriate unit. As we have pointed out in other cases, a failure of some or the majority of employees within an appropriate unit to cast votes will not preclude the Board from certifying as the exclusive representative that representative which obtains a majority of the votes which are actually cast at an election.15 (2) The respondent also contends that the Union, as a result of the election conducted on November 15, 1937, did not receive a ma- jority of the votes cast and that the Board erred in certifying the Union as the exclusive bargaining representative. In support of this allegation, it makes the following contentions, all of which were made in its motion for reconsideration filed on May 31, 1938, and rejected by the Board at that time: (a) That two spoiled or void ballots listed by the Regional Direc- tor in his Intermediate Report upon the secret ballot should have been counted by the Board as votes cast. Clearly a spoiled or void ballot could not be counted for either of the labor organizations whose names appeared upon the ballot, or for neither. The Board properly refused to consider these ballots as votes cast ; (b) That the Board erred in finding that five heaters belonged within the appropriate unit and were entitled to vote. The Board has reconsidered the duties of these heaters as shown by the record in the representation proceeding as well as by the record in this pro- ceeding, and is still of the opinion and finds that the heaters were properly included within the appropriate bargaining unit. The re- spondent contends that the duties of the heaters employed by the In- terlake Iron Corporation are different from those of the heaters at its own plant and that the inclusion of heaters within the appropriate unit in the Interlake Iron Corporation case,"' which was cited by the Board in the representation proceeding, should not have been con- sidered by the Board as a precedent applicable to the respondent's 15Matter of R C A Manufacturing Company, Inc and United Electrical & Radio Workers of America, 2 N. L R B. 159; Matter of The Electric Auto-Lite Company, American Enameled Magnet Wire Division and International Association of Machinists. Local 218, et a7, 11 N L R B 8; and Matter of Charles Cushman Company, et at. and United Shoe Workers of America, 15 N. L. It. B. 90. See also Virginian By. Co. v. System Federation No 40, 300 U. S. 515, and The Association of Clerical Employees of the A. T. and S F. Railway System v. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, 85 F. (2d ) 152 (C. C. A. 7). 1®Matter of Interlake Iron Corporation and Amalgamated Association of Iron, Steer and Tin Workers of North America, Local No 1657, 4 N L. R B. 55. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD heaters. It is not necessary for us to determine at this time whether or not the duties of the heaters at the two plants are sufficiently dissimilar to require the Board not to consider its decision in one case as a precedent in the other. The Board's finding in the Interlake Iron Corporation case was not the determining factor influencing its decision in regard to the heaters in the representation case involving the respondent; 17 (c) That the Board erred in determining that the employees, Fred A. Siebert, Earl G. Flodin, and Russell E. Steube, whose challenged ballots were considered by the Board, should not be classified as maintenance or production workers. The Board has reconsidered its original findings in this respect and is still of the opinion and finds that such employees were properly excluded from the appropriate bargaining unit; (d) That the Board's agent who conducted the election on Novem- ber 15, 1937, erred in ruling as ineligible to vote two employees, Antonio Formentini and Luigi Tavoletti, as a result of which exclu- sion a third employee, Peter Sievers, Jr., employed in the same classi- fication as Tavoletti, abstained from attempting to vote. The repre- sentatives of both labor organizations whose names appeared upon the ballot, who acted as tellers at the election, certified that the elec- tion was conducted in a fair and impartial manner. The Regional Director in his Intermediate Report on the secret ballot mentioned the fact that Formentini had been "ruled not eligible because clerical and in supervisory capacity and not production employee" and that Tavoletti had been "ruled not eligible because assistant foreman." A copy of the Intermediate Report on the secret ballot was served upon each of the labor organizations and upon the respondent, and each was notified that any exceptions to the Intermediate Report should be filed with the Regional Director within 5 days from the date of the Report. Although both labor organizations filed excep- tions to the Intermediate Report, neither of them excepted to the rulings relative to Formentini and Tavoletti, and neither mentioned the failure of Sievers to vote. The respondent filed no exceptions to the Intermediate Report. No party to the representation proceeding raised any question concerning the ruling of the election official con- cerning Formentini and Tavoletti prior to the hearing on the chal- lenged ballots and a determination by the Board of the issues raised by the challenged ballots. Under these circumstances it is inappro- 17In all other cases involving steel and metal plants wherein the question concerning the Inclusion of heaters within the appropriate unit has arisen, the Board has included heaters within such unit. See Matter of Wickwire Spencer Steel Company and Federated Industrial Union, 18 N L R. B. 372; and Matter of General Metals Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, through the S. W. 0. C., affiliated with the C. I. 0., 18 N. L R. B. 708. CALUMET STEEL DIVISION, BORG-WARNER CORP. 131 p'riate for the Board at this time to consider whether or not the three above-named employees should have been included within the appropriate unit. The final tabulation of votes cast at the election of November 15, 1937, showed that 215 were cast for the Union, 181 for the Associa- tion, and'30 for neither. Thus, even had three more votes been cast and all of the three votes had been for the Association or for neither, the Union would still have received a majority of the votes cast. (3) The respondent contends that the Board's determination of the issues in the representation case is invalid because based upon a stale record. It points out that between July 13, 1937, the eligibility date of employees to vote, and May 21, 1938, the date of the certifica- tion, 10 months and 8 days had', elapsed, and that as of May 21, 1938, 58 employees in the appropriate unit appearing on the July 13, 1937, pay roll were no longer employed by the respondent and 15 employees not appearing on said pay roll, but included within the appropriate unit, were employed by the respondent. ,The lapse of time between the eligibility date and the date of certification was occasioned prin- cipally by the necessity for a further hearing after the election to determine the eligibility to vote of employees whose ballots had been challenged and the necessity of hearing and determining various motions, exceptions, and objections filed by the parties during such period. Under the circumstances a ' certain amount of delay was unavoidable. There exists a presumption that the Union, -having established that it-represented a majority as a result of the election on November 15, 1937, continued to represent a majority on May 21, 1938, when it was certified. This presumption is not rebutted by ' the respondent's, as- serted change in its personnel prior to May '21, 1938 18 (4) The respondent further objects that the certification was viti- ated because of a substantial change in its personnel within the appropriate unit between the date of eligibility and April 20, 1939, the date upon which the Board denied the Association's motion for re- consideration and amendment. Neither the Act nor the Board's Rules is See N. L. R B. v. Piqua Munising Wood Products Co, 109 F. ( 2d) 552 (C. C. A. 6), decided February 16, 1940, wherein the court stated : It is a well-established rule of evidence that when the existence of a personal relationship or state of things is once established by proof, the law presumes its continuance until the contrary is shown or until a different presumption arises from the nature of the subject matter. N. L. R. B. v. National Motor Bearing Company, 105 F. ( 2d) 652 (C. C. A. 9). The question as to the presumption of the continuation of membership in the Union was one of fact and rested within the sound discretion of the Board to be decided in the light of the facts and circumstances before it. See also N.' L R.. B. v. Highland Park Manufacturing Company, 110 F. (2d) 632 (C. C. A. 4), and Matter of Ansley Radio Corporation and Local 1221, United Electrical d Radio Workers of America, C. I. C. et al , 18 N. L. R. ,B 1028. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Regulations give any of the parties the right to file motions to reconsider and set aside certifications, such as were filed by the As- sociation and the respondent in the representation proceeding. The Board considers its certifications binding on all parties to the proceed- ings as of the date when such certifications issue. The fact that the Board may actually consider motions which are thereafter filed by one or more of the parties has no effect upon the time when its certifications become effective.19 We find that on May 21, 1938, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit, and pursuant to Section 9 (a) of the Act was the exclusive representative of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain a. History of bargaining prior to certification In March or April 1937, the Union, whose membership at that time comprised a large majority of the respondent's employees, com- menced negotiations for a collective bargaining agreement with the respondent. An agreement was reached concerning the terms of a proposed contract but the respondent refused to sign the contract, asserting that it would not sign unless Inland Steel Company, Youngstown Sheet and Tube Company, and Republic Steel Com- pany also signed a contract. Those companies refused to sign and the "Little Steel" strike of 1937 resulted. The employees of the respondent participated in this strike, which lasted for 5 or 6 weeks. During the course of the strike, the Association was formed as a part of a back-to-work movement. The strike ended on May 21, 1937, without the respondent agreeing to sign a contract. No further attempts were made by the Union to obtain a written contract until after the Union was certified by the Board as the sole collective bargaining representative of the respondent's employees. b. Attempts by the Union to bargain subsequent to the certification On May 28, 1938, the Union by letter requested the respondent to meet in conference with representatives of the Union on June 3, 1938, for the purpose of negotiating a contract with the respondent in respect to rates of pay, wages, hours of employment, and other condi- tions of employment for all the employees in the unit found appro- I° The respondent was well aware that the Board had considered and rejected all the grounds for reconsideration advanced by the Association when it received notice on June 7, 1938, that its own motion had been denied. CALUMET STEEL DIVISION, BORG-WARNER CORP. 133 priate by the Board in its decision of May 21, 1938. On June 1, 1938, the respondent replied to the request of the Union by letter, stating in part that it believed the Decision and Certification of Representatives was made in error and that it should, therefore, be recalled and rescinded; that the respondent had been served by the Association with a copy of its motion requesting that the Board reconsider and amend such decision; that on May 28, 1938, the respondent had filed with the Board its motion for reconsideration of such decision; and that under the circumstances the meeting requested by the Union would be premature. The letter further stated that the respondent would be glad to meet with a committee of the Union "as representa- tives of their members only" at a mutually convenient time for the discussion of any matters properly brought before such meeting. On June 9, 1938, after the Board had considered and denied the respondent's motion for a reconsideration of the decision and certifi- cation of May 21, 1938, and had served notice of its action upon all the parties, the Union again by letter requested the respondent to fix an early date for a conference such as was referred to in its former letter. Receiving no reply to its letter of June 9, the Union ad- dressed a third letter under date of June 14 to the respondent request- ing that the respondent's representatives meet a committee of the Union on June, 21,,1938, for the purpose of commencing negotiations for an agreement covering wages, rates of pay, hours of employment, and other conditions of employment of all the employees of the respond- ent in the appropriate unit. On June 18, 1938, the respondent re- plied by letter, in which it acknowledged the receipt of the Union's letters of June 9 and 14, 1938, and stated that the position of the respondent remained the same as outlined in paragraph 2 of its letter of June 1. Paragraph 2 of that letter stated : It is our belief that this decision and certification of repre- sentatives made by the Board in this case was made in error and that under the circumstances it should be recalled and re- scinded, thus allowing the Board to enter upon a new investiga- tion of this matter in which the mistakes and errors of the prior proceeding might be avoided. The respondent also reiterated its willingness to arrange a meeting with the Union on behalf of the latter's members only. On August 12, 1938, the Union again requested a conference with the respondent for the purpose of negotiating a collective bargaining contract "for all employees." The respondent replied by letter dated August 16, stating that "in the absence of any new developments" it could only refer the Union - to the respondent's letters of June 1 and June 18, and again offering to meet with a committee of the Union on behalf of its members only. 283034-41-vol 23-10 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 26, 1938, the Union by letter accepted the respondent's suggestion for a meeting on behalf of its members only and requested that such a meeting be held on September 1. The request was granted by the respondent and the meeting was held. At this meeting the union committee had with it, but did not pre- sent to the respondent's representatives, a copy of the contract whose terms had been agreed upon prior to the strike, in 1937. The Union proposed that the respondent sign this contract.20 The respondent's position with reference to the certification was again brought up and a general discussion took place, but no agreement was reached and the meeting was adjourned until September 13. At the September 13 meeting the Union presented a proposed con- tract for its members only, which was discussed at length. On Sep- tember 22 representatives of the Union and the respondent again met. The Union presented a substitute for the last page of the proposed contract submitted on September 13 and requested the respondent to sign the instrument. The respondent refused to sign, and negotia- tions were thereupon discontinued. The Union by September 1938 had apparently accepted the re- spondent's position that the Association's motion for reconsideration of the Board's decision and certification of May 21, 1938, was being considered by the Board and that the respondent was not legally obligated to respect the certification before receiving notice of the Board's acting upon such motion. As we have heretofore stated, this motion, although it was filed on May 28, 1938, was not disposed of by the Board until April 20, 1939, when the Board denied it. There- after, on May 4, 1939, the Union by letter requested another confer- ence with the respondent, to be held on May 12. The respondent replied by letter dated May 11, that it would meet with a committee of the Union on May 16, and a meeting was had on that date. At that meeting the Union presented to the respondent a proposed contract which, among other things, provided for recognition of the Union as the sole collective bargaining agency for all employees of the respondent, and stated that the Union had definitely decided to secure from the respondent a written signed contract. The Union also stated that it had represented a majority of the employees of the respondent since 1937 and that it could prove by a re-signing of cards or in other ways, such as by the Board's certification, that ° In regard to this contract, Nicholas Fontecchlo, a representative of the Union, testi- fied • "We again proposed that this company should sign the contract which we had negotiated prior to April or about April 1937." Counsel for the respondent thereupon moved "to strike the conclusion of the witness such as is contained in the phrase, 'which we had negotiated'" The Trial Examiner granted the motion We interpret the Trial Examiner's ruling as not affecting testimony relative to the identity of the instrument. We have found, in Section III-C-3 a supra, that the terms of a proposed contract sub- mitted prior to the strike in 1937 had been agreed upon by the respondent and the Union CALUMET STEEL DIVISION, BORG-WARNER CORP. 135 it still represented a majority. Some of the provisions of the con- tract were discussed, and W. B. Caldwell, vice president and works manager of the respondent, who was present at the meeting, stated to the union representatives that, although the respondent would not sign the contract, it probably would consider signing a labor policy which would include some of the provisions contained in the pro- posed contract. The union representatives refused to consider ac- cepting a labor policy, and the meeting adjourned until May 23. At the May 23 meeting, the respondent presented to the committee a typed unsigned statement, reading as follows : You have claimed to represent all of the production and maintenance employees, exclusive of supervisory employees, by reason of the fact that a majority of such employees have within the past few weeks resigned membership applications for mem- bership in your organization. If you will bring in these ap- plications so that we may jointly check the genuineness of the memberships against our pay roll and the signatures on the corresponding application cards, upon your statement and the assumption that such a check will disclose that you represent a majority of the employee names we are glad to recognize you as the sole collective bargaining agency for such employees. We would however appreciate you giving us the opportunity to confirm this recognition in the manner that I have outlined.21 After discussing this statement, one of the representatives of the Union asked the respondent, "If we do prove that we have a maj or- ity through these methods, will you sign the agreement?" Caldwell replied, "No, I can't promise you that." He further stated that the respondent could not agree in advance as to any particular terms of an agreement or understanding but that he was willing to prepare a labor policy which would include some of the provisions of the proposed contract. The union representative then informed the re- spondent that the Union would not consider a proposition which meant a labor policy. Thereafter members of the union committee, after consulting among themselves, informed the respondent that, since the respondent would not promise to sign the agreement, the Union would not show its membership cards but would insist upon a, decision by the National Labor Relations Board upon the charges which it had already filed with the Regional Director on June 22, 1938. The Union had theretofore offered to withdraw the charges if the respondent would sign the agreement. No further meetings between the Union and the respondent were thereafter held. 21 While this statement may appear to be ambiguous , the parties clearly regarded it as an offer of. recognition by the respondent of the Union as the exclusive bargaining repre- sentative conditioned upon the Union's proving by a submission of re-signed membership cards that it represented a majority of the employees. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Conclusions ;n regard to the respondent's refusal to bargain As we have pointed out above, the Union, almost immediately after being certified by the Board on May 21, 1938, as the exclusive bargain- ing representative of employees of the respondent, requested recogni- tion by the respondent as such exclusive representative. This request for exclusive recognition was made in the Union's letters of May 28, June 9, June 14, and August 12, 1938. The respondent in its letters of June 1, June 18, and August 16, 1938, refused to grant the Union's request for such recognition. Recognition by an employer of a labor organization as the exclusive representative of its employees within an appropriate unit is necessarily the first step in the collective bargaining procedure, and a refusal of such recognition is therefore an unfair labor practice within the meaning of Section 8 (5) of the Act.22 As we have pointed out above, no motions, exceptions, or objec- tions filed by an employer or by any other party to a representation proceeding subsequent to a certification of representatives by the Board can render such certification ineffective or excuse the employer from bargaining with the certified representative until and unless such certification is set aside by the Board. The fact that the Union, after having been repeatedly denied recognition as the exclusive representative of employees of the re- spondent within an appropriate unit, finally consented to negotiate with the respondent as the representative of the Union's members only, neither relieves the respondent of responsibility for the commis- sion of the unfair labor practices already engaged in by it nor con- stitutes a waiver of the Union's claim of right to recognition as exclusive bargaining representative.23 There is no evidence in the record to overcome the presumption that the Union continued to represent a majority in May 1939 when it re- sumed negotiations with the respondent.24 While a labor organiza- tion is not entitled under the Act to exact any promise of future action on the part of an employer as a condition to its proof that it represents a majority, the Union in this proceeding was entitled to rely upon the 23N. L. R. B v. The Griswold Manufacturing Company, 106 F. ( 2d) 713 ( C. C. A. 3), enf'g Matter of The Griswold Manufacturing Company and Amalgamated Association or Iron, Steel and Tin Workers of North America, Lodge No. 1197, 6 N. L. R. B. 298. 23 Cf. Matter of The Louisville Refining Company and International Association, Oil Field, Gas Well and Refinery Workers of America, 4 N. L. It. B 844, enf'd as mod., N. L P B. v. The Louisville Refining Company , 102 F. (2d) 678 (C. C. A. 6). u Cf N. L R. B. v. Highland Park Manufacturing Company, 110 F. (2d) 632 ( C. C. A. 4), decided March 11, 1940, wherein the court stated * Respondent is not faced with conflicting claims as to representation , but raises the question as to the authority of the union to represent its employees as a means of escaping any obligation to bargain at all In such case it is reasonable to presume that the authority of the bargaining agent continues until the contrary be shown See N L R. B. v. Remington-Rand (2 Cir ), 96 F (2d) 862, 870; N. L. R B. V Biles-Coleman Lumber Co. (9 Cir ), 96 F (2d) 197, 198; N L R. B. v. Louisville Refining Co (6 Cir ), 102 F (2d) 678 CALUMET STEEL DIVISION, BORG-WARNER CORP. 137 Board's certification as proof that it represented a majority and its conditional offer of further proof in May 1939 was superfluous and unnecessary to entitle it to exclusive recognition. The respondent, therefore, by its offer of exclusive recognition conditioned upon the Union's presenting new proof of majority was further refusing to bargain within the meaning of the Act. As stated above, the respondent informed the Union that it would consider issuing a statement of policy embodying some of the terms 'of the contract which the Union had presented to it. At oral argu- ment before the Board, the respondent made it clear that it considered the Union's refusal to accept a statement of policy and its insistence on a bilateral agreement responsible for a break-down in negotiations.25 As a result of this position of the respondent, the Union might well and apparently did conclude that further negotiations upon the terms of a contract would be useless. The manifest objective of collective bargaining is the making of contracts by labor organizations and employers.211 The Supreme Court of the United States in N. L. R. B. v. Sands Man'u f aetu?inq Company, 306 U. S. 332, 342, stated : The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain col- lectively with their employees to the end that employment con- tracts binding on both parties should be made.27 Obviously a statement of policy, such as was proposed by the re- spondent, is not a contract binding on both parties. It is not a con- tract at all. Nor is it an obligation binding the respondent only. It is merely a statement of intention of the respondent,-unenforce- able, and revokable by the respondent at its will. It is a device m The following is an excerpt from the oral argument : Mr. 'SHEPARD"(Counsel for the Respondent.) ... Mr. Chairman, with regard to the failure to bargain, we submit that the failure to bargain has resulted solely by reason of the fact that the representatives of the Union desired to obtain a form of agreement which- Mr. LEISERSON. Wait a minute, now ; you say "solely because the Union want a form of agreement." Wasn't it also because the company insisted on a form of no agreement ; only a policy? There is a difference between a policy and an agreement, isn't there? Mr. SIIEPARD. Well, it was a question of whether it would be a bilateral or unilateral agreement. Mr. LrSERSON. Well, a unilateral is not an agreement. Mr. SHEPARD. Well, I think it is. Consolidated Edison Co. of N. Y. v. N. L R B., 305 U. S 197, 236. "Cf. Globe Cotton Mills v. N. L. R. B., 103 F. (2d) 91 (C. C. A. 5) wherein the Court in enforcing an affirmative order of the Board, stated : We believe there is a duty on both sides, though difficult of legal enforcement, to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of labor, and if found to embody it in a contract as specific as possible, which shall stand as a mutual guaranty of conduct, and as a guide for the adjustment of grievances. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD frequently used by an employer for denying a labor organization equality of status with the employer and in refusing to recognize the labor organization as a party capable of assuming responsibility and making binding agreements. We have heretofore held in many other cases that an employer by refusing to enter into a signed contract embodying terms which have been or might be agreed upon has en- gaged in an unfair labor practice within the meaning of Section 8 (5) of the Act.28 We find that the respondent on June 1, 1938, and at all times there- after, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit and that it has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. 28 Matter of H J. Heinz Company and Canning and Pickle Workers, Local Union No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N. L. R B 963; Matter of Bethlehem Shipbuilding Corporation, Limited and Industrial Union of Marine and Shipbuilding Workers of America, Local No. 5, et al., 11 N. L. R. B. 105; Matter of Chesapeake Shoe Manufactur- ing Company and United Shoe Workers of America, 12 N. L. R•B 832; Matter of Harry Schwartz Yarn Co, Inc. and Textile Workers Organizing Committee, 12 N. L. R. B. 1139 ; Matter of Holston Manufacturing Company and American Federation of Hosiery Workers, 13 N. L R B. 783; Matter of Fort Wayne Corrugated Paper Company and Local No. 182, International Brotherhood of Pulp, Sulphate, and Paper Mill Workers, 14 N. L. R. B 1 ; Matter of Dallas Cartage Company, et al. and Int'l Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America, Local 745, 14 N. L. R B 411 ; Matter of Independent Pneumatic Tool Co , a corporation, et al. and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel & Tin Workers of North America, Local No. 1716, 15 N. L. R. B. 106. In N. L. R. B. v. Art Metal Construction Company, 110 F. (2d) 148 (C. C. A. 2) decided February 26, 1940, enf'g Matter of Art Metal Construction Company and International Association of Machinists, Local 1559, affiliated with District #65, of the I A. M. (A. F. of L ), 12 N. L. R. B. 1307, the Court in holding that the refusal of a written contract was a refusal to bargain collectively within the meaning of Section 8 (5) of the Act, stated: The act . . . meant to give to the employes whatever advantage they would get from collective pressure upon their employer; and the question here is what are the fair implications of that grant. They should include whatever is reasonably appropriate to protect it, and no one can dispute that a permanent memorial of any negotiation which results in a bargain is not only appropriate but practically necessary to its preservation. It is the merest casuistry to argue that the promisor's freedom to contract in- cludes the opportunity to put in jeopardy the ascertainment of what he has agreed to 'do, or indeed whether he agreed to anything at all. The freedom reserved to the employer is freedom to refuse concessions in working conditions to his employes and to exact concessions from them ; It is not the freedom, once they have in fact agreed upon those conditions, to compromise the value of the whole proceeding and probably make it nugatory. See also N. L. R. B. v. Highland Park Manufacturing Company, 110 F. (2d) 632 (C. C. A. 4), decided March 11, 1940, and H. J. Heinz Company v. N. L. R. B, 110 F. (2d) 843 (C. C. A. 6), decided April 3, 1940, enf'g Matter of H. J. Heinz Company and Canning and Pickle Workers, Local Union No. 325, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, American Federation of Labor, 10 N. L. R. B. 963; cf. Inland Steel Company v. N. L. R. B., 109 F. (2d) 9 (C. C. A. 7), setting aside and remanding Matter of Inland Steel Company and Steel Workers Organizing Committee and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge Nos. 64, 1010, and 1101, 9 N. L R. B. 783, and Fort Wayne Corrugated Paper Company v. N. L. R. B., 111 F. (2d) 869 (C. C. A. 7), decided March 28, 1940, enf'g Matter of Fort Wayne Corrugated Paper Company and Local No 182, International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, 14 N. L. R. B. 1. CALUMET STEEL DIVISION, BORG-WARNER CORP. 139 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation 'to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we deem necessary to effectuate the purposes of the Act. We have found that the respondent, between August 1935 and Feb- ruary 1937, employed the services of Corporations Auxiliary Com- pany, an espionage agency, for the purpose, in part, of spying upon and reporting to the respondent the union affiliation and activities of its employees. The respondent contends that the services of this agency were discontinued in February 1937, and that such services had not again been engaged by the respondent at the time of the hearing in May 1938. A discontinuance of the services of one espio- nage agency, however, is no assurance that the practice of employing spies to report the' union affiliation and activities of the respondent's employees may not have been carried on by other espionage agencies or by the respondent's own employees, or that the practice will not be resumed in the future.29 We shall, therefore, order that the re- spondent cease and desist from engaging the services of spies or detec- tives, or employing any other form or manner of espionage, to investigate and report the membership or activities of its employees in the Union or any other labor organization of its employees. We have found that the respondent has refused to bargain with the Union. We shall, therefore, order that, upon request, it bargain collectively with the Union as the exclusive representative of its hourly paid production and maintenance employees, excluding fore- men, assistant foremen, watchmen, and all other supervisory em- ployees, and that if an agreement is reached, it embody such agreement in a written contract to be signed by the parties and sign the same as a party thereto, if requested to do so by the Union. 21Cf. Matter of Consolidated Edison Company of New York, Inc., et at. and United Electrical and Radio Workers of America, affiliated with the Committee for Industreai Organization, 4 N. L. R. B. 71, enf'd as mod. Consolidated Edison Company of New York, -Inc, et at. v. N. L. R. B, 305 U. S. 197. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1027, affiliated with the C. I. O., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. The hourly paid production and maintenance employees of the respondent, excluding foremen, assistant foremen, watchmen, and all other supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Steel Workers Organizing Committee for the Amalgamated As- sociation of Iron, Steel & Tin Workers of North America, Lodge 1027, affiliated with the C. I. O. was on May 21, 1938, and at all times thereafter has been the exclusive representative of all employ- ees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with Steel Workers Organiz- ing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1027, affiliated with the C. I. 0., as the exclusive representative of its employees in the ap- propriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. 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. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 7. By discharging Walter Bieronski and Harry Kasprzak, the respondent has not engaged in unfair labor practices, within the meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the re- spondent, Calumet Steel Division of Borg-Warner Corporation, Chi- cago Heights, Illinois, and its officers , agents, successors, and assigns, shall : CALUMET STEEL DIVISION, BORG-WARNER CORP. 141 1. Cease and desist from : (a) Refusing to bargain collectively with Steel Workers Organ- izing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1027, affiliated with the C. I. 0., as the exclusive representative of its hourly paid production and maintenance employees, excluding foremen, assistant foremen, watchmen, and all other supervisory employees; (b) Engaging the services of spies or detectives, or employing any other form or manner of espionage, to investigate and report the membership or activities of its employees in Steel Workers Organizing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1027, affiliated with the C. I. 0., or any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing 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 ac- tivities for the purpose of collective bargaining and other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Steel Workers Organ- izing Committee for the Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1027, affiliated with the C. I. 0., as the exclusive representative of its hourly paid production and maintenance employees, excluding foremen, assistant foremen, watchmen, and all other supervisory employees, in respect to rates of pay, wages, hours of employment, and other conditions of employ- ment; and if an agreement is reached on such matters, upon request, embody said agreement in a written contract to be signed by the parties; (b) Post immediately in conspicuous places at its plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to its-employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this Order; (2) ,that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the allegations of the complaint that the respondent has engaged in unfair labor practices within the 142 DECISIONS OF NATIONAL ' LABOR ' RELATIONS BOARD meaning of Section 8 (3) of the Act, be, and they hereby are, dismissed. MR. WILLIAM M. LEISERSON, concurring : I concur in the foregoing decision. Although I had no part in the certification of the Union as the representative of the respondent's employees, I am of the opinion that where a certificate has been issued by the Board as the result of an election by secret ballot and the representative thus certified is asserting its right under such certifi- cate, the certificate must be honored by the employer until a new rep- resentative is certified.30 ao See my concurring opinion in Matter of Valley Mould and Iron Corporation and Steel Workers Organizing Committee for Amalgamated Assooaatoon of Iron, Steel and Tin Workers of North America, Lodge No. 1029, Affiliated with the Congress of Industrial Organizations, 20 N. L R. B. 211.