Killefer Manufacturing Corp.

In the Matter of KILLEFER MANUFACTURING CORPORATION aia STI`EL WORKERS ORGANIZING COMMITTEE Cases Nos. C-843 and R-857.-Decided March 30, 19/.0 Agt icuitural Implements Manufacturing Industry-Interference, Restraint, and Coercion: execution of individual agreements with employees purporting to bind the employees to bargain individually ; employer ordered to cease and desist from such practices-Discrinainatzon: charges not sustained-Collective Bargaining: charges not sustained-Procedure: issuance of amendment to com- plaint to conform the pleadings to the proof after issuance of proposed findings ; employees parties to individual agreements not indispensable parties to pro- ceedings before the Board ; representative group permitted to intervene ; com- plaint not limited to matters covered in the charges filed; effect of failure to serve upon respondent Intermediate Report allegedly prepared ; expiration of individual agreements subject to proceedings does not render proceedings moot-Remedy: no affirmative action ordered where respondent, pursuant to proposed findings, had discontinued use of individual agreements and had posted a notice informing the employees of their rights-Investigation of Representa- fit:cs: petition for, dismissed without prejudice because of lapse of time since filing Mr. Frank A. Mouritsen, for the Board. Mr. James E. Neville and Mr. M. W. Pike of Los Angeles, Calif., for the respondent. Mr. Bernard G. Hiss, of Los Angeles, Calif., for the individual employees. dlr. David Rein, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On November 13, 1937, Steel Workers Organizing Committee, herein called the S. W. O. C., filed with the Regional Director for the Twenty-first Region (Los Angeles, California) a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Killefer Manufacturing Corporation, Vernon, California, herein called the respondent,' and requesting an 1 The petition and the subsequent chargas filed by the S W 0 C, as well as the com- plaint as issued by the Board designated the respondent as Killefer Manufacturing Corpo- ration Ltd At the hearing the complaint uas amended on motion by counsel for the Board to strike the '*Ltd,' so that the de-ignatiou of the respondent was corrected to app)ai a^ in th• he-iding abo\ e 22 N L R 11, No 22 484 KILLEFER MANUFACTURING CORPORATION 485 investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat . 449, herein called the Act. On December 17, 1937, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation of the question concerning representation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. Thereafter, on March 12, 1938, charges having been duly filed with the Regional Director by the S. W. O. C. on December 21, 1937, the Board issued an order consolidating for the purpose of-hearing the representation case and the case initiated by the filing of the charges. Upon these charges and upon amended charges duly filed by the S. W. O. C. with the Regional Director, the Board, by the Regional Director, issued its complaint dated April 14, 1938, against the re- spondent, alleging that the respondent had engaged in and was en- gaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the Act. A copy of the complaint accompanied by a notice of hearing upon the consolidated cases was duly served upon the re- spondent and the S. W. O. C. With respect to the unfair labor practices, the complaint alleged in substance that the respondent had (1) refused, on or about October 25, 1937, and at all times thereafter, to bargain collectively with the S. W. O. C. as the exclusive representative of its employees ; (2) dis- charged W. J. Mullen, on or about December 2, 1937, for the reason that he joined and assisted the S. W. O. C. and engaged in con- certed activities with other employees for their mutual aid and pro- tection; and (3) by its discharge of W. J. Mullen and by other acts, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On April 23, 1938, the respondent filed its answer to the complaint denying the unfair labor practices alleged therein and, by way of affirmative defense to the allegation of the refusal to bargain, averring that approximately 98 percent of its employees had voluntarily and freely entered into individual contracts covering their conditions of employment with the respondent, that such contracts precluded the respondent from recognizing the S. W. O. C. as the representative for purposes of collective bargaining , and that by executing such contracts the employees had revoked any prior designation of the S. W. O. C. as their representative for purposes of collective bar- gaining. 25303;-41-N of 22--32 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice, a hearing on the consolidated proceedings was held at Los Angeles, California, from April 28 through June 6, 1938, before V. P. Lucas, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and par- ticipated in the hearing. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues. At the hearing the complaint was amended to allege that Amalgam- ated Association of Iron, Steel and Tin Workers of North America, Lodge No. 1820,2 herein called the Amalgamated, was a labor or- ganization, within the meaning of Section 2 (5) of the Act, and that the respondent had discharged W. J. Mullen for the reason that he had joined and assisted the S. W. O. C. and the Amalgamated, and had engaged in concerted activities with other employees for their mutual aid and protection. The complaint was further amended at the hearing to allege, in substitution for the allegation that the re- spondent refused, on October 25, 1937, and at all times thereafter, to bargain collectively, that the respondent refused, on or about Sep- tember 17, 1937, and at all times thereafter, to. bargain collectively. The amendments were allowed by the Trial Examiner over the ob- jection of the respondent. The amendments are of a formal nature; the respondent was afforded ample opportunity to, and did in fact, examine witnesses and introduce evidence bearing upon the issues raised by them, and we, therefore, affirm the rulings of the Trial Examiner. During the hearing a petition for leave to, intervene in the con- solidated cases was filed by 3 employees of the respondent as the representatives of 90 employees of the respondent, constituting a majority of the respondent's employees, and herein called the indi- vidual employees. This petition was denied by the Trial Examiner on the ground that the intervention could serve no purpose.3 In view of the subsequent action taken by the Board and the disposition made of the consolidated cases, as set forth below, the ruling of the Trial Examiner denying intervention raises no substantial question of prejudice to any right or interest of the individual employees. Accordingly, we will affirm the ruling. During the course of the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has re- 2 We take notice that this organization is incorrectly named in the motion to amend and in the complaint as amended as Amalgamated Association of Iron , Steel and Tin workers, Local No 1820. z A combined petition for leave to intervene and to move to dismiss filed by the mdi- vidual employees , had previously been denied by the Trial Examiner without prejudice on the ground that the individuals filing the petition were not a party to the proceedings and therefore could not properly enter a motion to dismiss the complaint. KILLEFER MANUFACTURING CORPORATION 487 viewed all the rulings of the Trial Examiner and finds that no preju- dicial errors were committed. These rulings are hereby affirmed. On August 26, 1938, the Board, in accordance with Article II, Section 37, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, issued an order transferring the pro- ceeding in the complaint case before the Board for action pursuant to Article II, Section 38, of said Rules and Regulations, and direct- ing the issuance of Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order. On October 24, 1939, the Board issued and duly served on the parties Proposed Findings of Fact, Proposed Conclusions of Law, Proposed Order, and Proposed Direction of Election in the pro- ceedings, herein called the Proposed Findings. Therein the Board proposed to find that the respondent by the promotion and mak- ing of individual agreements, which purported to bind its employees to bargain individually, had engaged in unfair labor practices with- in the meaning of Section 8 (1) of the Act and, accordingly, proposed to order the respondent to cease and desist from such unfair labor practices, and to take certain other appropriate action to remedy the situation brought about thereby, including the posting of a notice informing the employees that they were free to bargain in- dividually or collectively as they chose. The Board also proposed to find that the respondent had not engaged in unfair labor prac- tices within the meaning of Section 8 (3) and 8 (5) of the Act as alleged in the complaint, proposed to dismiss the complaint in so far as it alleged such unfair labor practices, and proposed to direct an election among the respondent's employees. On November 24, 1939, exceptions to the Proposed Findings were filed by the respondent and by the individual employees. On De- cember 2, 1939, the Board issued an order making the individual employees parties to the proceedings, and ordering that their excep- tions be considered duly filed and made part of the record herein. On December 4, 1939, the respondent, and on December 7, 1939, the individual employees filed briefs in support of their respective ex- ceptions. Pursuant to notice duly served upon the parties, a hear- ing was held before the Board on December 7, 1939, for the purpose of oral argument, at which counsel for the respondent appeared and participated. The individual employees, although advised of their opportunity to participate in the oral argument, did not appear. After considering the exceptions of the respondent and the in- dividual employees and the briefs filed in support thereof, and hearing oral argument, the Board, on December 28, 1939, pursuant to Section 10 (b) of the National Labor Relations Act, and Article II, Section 7, of National Labor Relations Board Rules and Regula- Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions-Series 2, for the purpose of conforming the allegations to the proof as adduced at the hearing, issued and duly served upon all parties an amendment to the complaint, as amended, alleging, in said amendment, that the respondent, by entering into, initiating, spon- soring, encouraging, and promoting the making and execution of certain individual agreements of employment, from on or about November 30, 1937, to on or about December 6, 1937, had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. On the same clay, the Board, pursuant to Section 10 (b) and (c) of the National Labor Relations Act and Article II, Sections 13 and 37, of National Labor Relations Board Rules and Regulations-Series 2, issued and duly served upon the parties an order granting to the respondent and the individual em- ployees leave to file an answer to the amendment to the complaint, as amended, and to make application to reopen the proceedings for the purpose of taking further evidence with respect to the issues raised by the allegations of the amendment to the complaint, as amended, said application to contain a statement of the evidence which the re- spondent and the individual employees would offer in the event that the record should be reopened. On January 12, 1940, the respondent filed a motion to strike the amendment to the complaint as amended, on the ground that no charge had been filed with the Board alleging the matters covered in said amendment. This motion is hereby denied. The motion rests upon the mistaken assumption that proceedings before the Board are in the nature of adversary proceedings between the person filing the charge and the person charged with engaging in unfair labor practices. It is true that the Board cannot initiate proceedings itself, and it is the purpose of charges to institute proceedings. When, however, charges are filed the Board proceeds, not in vindi- cation of private rights, but as an administrative agency charged by Congress with the function of enforcing the Act and bringing about compliance with its provisions.' Accordingly, when in the course of an investigation begun upon charges duly filed evidence is disclosed that a respondent has engaged in unfair labor practices not specified in the charges, public policy, as well as the policies of the Act, require the Board to proceed with respect to such unfair labor practices, and if, after a full hearing, it is found that such respondent has engaged in such unfair labor practices,' to order it to cease and desist therefrom, and to take such affirmative action as will remedy the effects thereof. The Board would be failing in its duty as a public agency if it chose to do otherwise.5 4Cf Amalgamated Utility nVo)kers v Consolidated Edison , et at, 309 U S 261. s Ct National Lion, tee Company v N L R 73 , 309 U. S 350 KILLEFER MANUFACTURING CORPORATION 489 Also on January 12, 1940, the respondent filed an answer to said amendment to the complaint, as amended, and an application to reopen-the proceedings. The respondent's answer admitted entering into the individual agreements of employment, but denied initiating, sponsoring, encouraging, or promoting the making and execution thereof, and further denied that by entering,into said agreements it had engaged in any unfair labor practice. The answer further averred as affirmative defenses (1) that the amendment was not based upon any charge; (2) that the individual agreements of employment executed between November 30, 1937, and December 6, 1937, had expired; (3) that many of the employees who had entered into the individual agreements with the respondent had not been given notice of or made parties to the proceedings; (4) that on or about August 19, 1938, the Trial Examiner had filed an Intermediate Report which had not been served upon the respondent; (5) that the respondent, had on November 6, 1939, posted a notice upon the official bulletin board in its plant, stating that the clause in the individual agree- ments of employment, upon which the Board hacl based its proposed finding and proposed conclusion of law that the respondent had en- gaged in unfair labor practices within the meaning of Section 8 (1) of the Act, would be eliminated from all individual agreements of employment entered into by the respondent in the future, and that the employees were free to bargain individually or collectively as they chose; and (6) that thereafter on or about November 6, 1939, the respondent entered into individual agreements of employment with a majority of its employees, which agreements did not contain the clause upon which the Board had based its proposed finding and proposed conclusion of law that the respondent had engaged in un- fair labor practices within the meaning of Section 8 (1) of the Act. In its application to reopen the proceedings, the respondent stated that it wished to introduce evidence to support the averments in its answer. On January 13, 1940, the individual employees filed an answer to the amendment to the complaint, as amended, denying the unfair labor practices alleged therein,' and averring as affirmative defenses (1) that the amendment to the complaint, as amended, was not based upon any charge; (2) that the individual agreements of employ- ment had expired; (3) that no copy of the Intermediate Report allegedly issued, had been served upon then; and (4) that the em- ployees entered into the individual agreements of employment referred to in the amendment to the complaint as amended, "freely and vol- untarily, without influence or coercion" by the respondent, and that the said individual agreements of employment "have been and now 9 This answer also contained denials to the allegations in the original complaint. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are acceptable and satisfactory" to the said individual employees. In their application to reopen the proceedings filed on the same day, the individual intervenors stated that they desired to introduce evi- dence in support of the averments in their answer. For the reasons hereinafter set forth, the answers to the amend- ment to the complaint, as amended, present no issues of fact which would require reopening of the record. The applications to reopen the proceedings are, therefore, denied. We have already reviewed the contention that the amendment to the complaint, as amended, was not based upon any charge and have found it to be without merit. Nor is there any merit in the conten- tion made by both the respondent and the individual employees that the proceedings should be dismissed because the individual agree- ments of employment executed between November 30 and December 6, 1937, have expired. The agreements were in force at the time of the hearing; the Board is not ousted of jurisdiction by their subse- quent expiration; the fact that the agreements have expired are rele- vant only to the appropriate remedy to be ordered by the Board. The respondent and the individual intervenors both contend that no copy of the Trial Examiner's Intermediate Report was served upon them. The Rules and Regulations of the Board require that upon the issuance of an Intermediate Report by the Trial Examiner it shall be transmitted to the Board and a copy served upon each of the parties.' No Intermediate Report herein has been transmitted to the Board. Consequently no Intermediate Report has been con- sidered by the Board in these proceedings, and, manifestly, none could have been served upon the parties. As we have stated above, the individual employees allege that they entered into the individual agreements "freely and voluntarily, with- out influence or coercion," and that the individual agreements of employment "have been and now are acceptable and satisfactory" to them. If, however, as we proposed to find in our Proposed Findings, and as we find below, these individual agreements are per se illegal in so far as they purport to bind the employees to bargain indi- vidually,8 the fact that these agreements were entered into "freely and voluntarily, without influence or coercion" and are "acceptable and satisfactory" to the employees cannot remove this illegality. The right to bargain collectively is a right guaranteed by the Act in furtherance of a valid public policy, and, therefore, may not be stipu- ' Article II, Section 32 , of National Labor Relations Board Rules and Regulations- Series 1, as amended , in effect until July 14, 19 :39 No change was made in these provi- sions by National Labor Relations Board Rules and Regulations-Series 2 9 The Board in the Proposed Findings , did not propose to set aside the agreements in toto but only in so far as their provisions were contrary to the Act. KILLEFER MANUFACTURING CORPORATION 491 lated away or renounced by employees.9 Accordingly, the allegations in the answer of the individual employees that the individual agree- ments were entered into "freely and voluntarily" and are "accept- able and satisfactory" to them are not entitled to weight. The respondent also contends that, since not all the employees who entered into individual agreements with the respondent between November 30 and December 6, 1937, were given notice of or made parties to the proceedings, the Board cannot proceed with respect to the agreements signed by these employees. This contention is with- out merit. Even if the rules of private litigation were applicable, it is established Federal procedure that the rights of a class of indi- viduals may be litigated and determined where, as in the present proceedings, a representative group have been made parties to and appear in the proceedings.10 Moreover, since, as we have stated above, proceedings before the Board are for the enforcement of a public policy and not for the securing of private rights, the tradi- tional rules governing joinder of parties do not govern." Further- more, since in a proceeding such as the present, the Board's order is directed solely against the employer, the employees are not indis- pensable parties.- We will treat hereinafter the respondent's averment in its answer that the clause which purports to bind employees to bargain indi- vidually has been eliminated from the individual agreements em- ployed by the respondent, and that on November 6, 1939, it posted a notice to this effect and stating that the employees were free to bargain individually or collectively.13 The Board, having reviewed the exceptions filed by the respond- ent and the individual employees, the briefs filed in support thereof, and the various motions and applications filed by the respondent and the individual employees, and having heard oral argument, upon the basis of the entire record finds the exceptions to be without merit ex- cept in so far as they are consistent with the rulings, findings, and conclusions herein. 9 Cf National Licorice Company v N. L R B , 309 U S 350, where the Supreme Court said. "Obviously employers cannot set at naught the National Labor Relations Act by inducing their \1orkmen to agree not to demand performance of the duties which it un- poses " Compare also the cases in which the courts have held that, under the Act, expres- sions by employees of a preference for an employer -dominated labor organization are immaterial in determining the question as to whether the labor organization is in tact dominated by the employer and subject to an order of disestablishment by the Board. N L R B v Brown Paper Mull Co, 108 F. (2d) 867 (C C A 5) ; N L R. B v Newport News Shipbuilding and Dry Dock Company, 308 U S 241; N L R B v The Falk Corporation, 60 Sup Ct 307 10 Hughes, Federal Practice, § 4297 11 Nationa lLicorice Company v N 1. R B, 309 U S 350. 1' Ibid 13 See Section V, infoa 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes ,the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT. The respondent, Killefer Manufacturing Corporation, is a Cali- fornia corporation engaged in the manufacture of agricultural im- plements and road machinery. Its manufacturing plant and chief of- fice are situated in Vernon, California. On July 1, 1937, it became a wholly owned subsidiary of Deere & Company, an Illinois corpora- tion, with a chief office and plant in Moline, Illinois, and 43 branch offices in 23 States and the Dominion of Canada. Deere & Company or its subsidiaries also own factories located in the States of Iowa, Wisconsin, and New York, and in Ontario, Canada. In 1937 the re- spondent did approximately $1,100,000 worth of business. Forty per cent of its products were shipped outside the State of California, and a substantial portion of these shipments was made to foreign coun- tries. In the same year 30 per cent of the respondent's raw materials were obtained from outside of the State of California. As of the date of the hearing, it was contemplated that future sales and pur- chases of the respondent would be made through the agencies of Deere & Company. II. THE ORGANIZATIONS INVOLVED Steel Workers Organizing Committee is a labor organization affili- ated with the Committee for Industrial Organization 14 and operates by agreement with Amalgamated Association of Iron, Steel and Tin Workers of North America, which is also a labor organization. Steel Workers Organizing Committee solicits members for Amalgamated Association of Iron, Steel and Tin Workers of North America, and after a number of members have been obtained, they are granted a charter by and organized as a lodge of Amalgamated Association of Iron, Steel and Tin Workers of North America. Amalgamated As- sociation of Iron, Steel and Tin Workers of North America, Lodge No. 1820, admits to membership all production employees of the re- spondent excluding clerical and supervisory employees. III. THE UNFAIR LABOR PRACTICES A. The alleged refusal to bargain The Amalgamated was organized at the respondent's plant some- time in May 1937. In July 1937 members of the Amalgamated elected a committee to represent them in negotiations with the respondent. 14 Now the Congress of Industrial Organizations. KILLEFER MANUFACTURING CORPORATION 493 This committee, consisting of Nels Hansen, Bill Dumond, and George Braswell, called upon R. H. Mitchell, superintendent of the respond- ent, and requested "recognition." Mitchell stated that it would be necessary for him to consult upon the matter with O. P. Robb, vice president and general manager of the respondent. Mitchell also in- quired whether the committee intended to bring in an "outside rep- resentative" or whether they had any contract to present, and was advised that they had no present intention of doing either. After consultation with Robb, Mitchell again met with the committee and informed them that it was agreeable to the respondent that Mitchell meet with them. Neither during these two meetings nor at any subsequent time did the committee make any clear statement as to its actual or claimed status as the representative of the employees of the respondent. The committee did not state that it represented a majority of the em- ployees, nor was any inquiry made by Mitchell as to the extent of the representation claimed by the committee. Thus, while the respond- ent agreed to meet with the committee, the extent of recognition granted and the status of the committee as the representative of the respondent's employees were left undetermined. At Mitchell's suggestion, the committee met with him at regular intervals, although they had no grievances to present to the respond- ent. The tenor of the meetings was such that Mitchell thought the committee could more properly be characterized as a "pleasure com- mittee" rather than as a grievance committee.',' Prior to September 1937 the committee presented the respondent with only one demand, a request for a 10-cent wage increase. This request was rejected. Early in September 1937 Hansen was replaced by Steve Vodal as a member of the committee. On or about September 17 the com- mittee requested of Mitchell that an "outside representative of the S. W. O. C." be permitted to attend the conferences between Mitchell and the committee for the purpose of "presenting" a contract covering wages, hours, and working conditions. There then followed a con- fused discussion among the committee members and Mitchell. Mitchell objected to meeting with an "outside representative," point- ing out that at his first meeting with the committee he had been assured that no such request would be made. He questioned the need for an "outside representative" at a meeting at which a con- tract would merely be "presented," and at which there would pre- sumably be no discussion of the contents of the contract. During the course of the discussion, Braswell expressed his agreement with Mitchell that an "outside representative" was unnecessary. The uieet- 15 Braswell , a committee member, described the discussion at one of the earlier meetings as one in which they "talked about the union a while and fishing and hunting and every- thing else." 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing closed with Vodal's statement that the matter would have to be referred to the office of the S. W. O. C. A meeting held a week later was a repetition of this meeting. Mitchell testified that his chief objection to meeting with an "outside representative" was that he, Mitchell, was not authorized to represent the respondent in such a meeting, and that a matter of that kind could only be handled by Robb. Mitchell failed, however, to express this point clearly to the committee. A few days later, Thimmes, an official of the S. W. O. C., telephoned Mitchell and requested an appointment. Mitchell transferred the call to Robb. Robb and Thimmes agreed to meet and set a tentative date for the meeting. However, a few days prior to the date tenta- tively set, Thimmes called Robb to tell him that he, Thimmes, was leaving town. On October 25, 1937, William Dalrymple, field director for the S. W. O. C. in California, wrote to Robb, stating that a ma- jority of the respondent's employees were members of the Amal- gamated, and requesting a conference for the purpose of negotiating a contract. Robb answered by letter on November 5, 1937, that he was leaving on a business trip and would be away for some time. Robb was away for about 2 weeks. "Approximately" at about the time of his return, Robb received a letter from the Los Angeles Regional Office of the Board requesting his attendance at the Re- gional Office for "an informal discussion of the matter." 16 In response to this request, Robb and Mitchell attended a conference at the Regional Office at which were present Dalrymple and other representatives of the S. W. O. C. At this conference, Mitchell, for the first time, raised the question as to whether the S. W. O. C. or the Amalgamated had been desig- nated as bargaining agency by a majority of the respondent's employees 17 Upon inquiry by a representative of the Board, Mitchell suggested that this question could be resolved through an election conducted by the Board. Dalrymple agreed, saying, "Fine, that suits us." No further efforts at bargaining were made either by the S. W. O. C. or the Amalgamated, nor were any steps taken, thereafter, to determine the issue of a majority through a consent election. Robb never specifically replied to Dalrymple's request for a conference, assuming that the request was superseded by the conference at the Regional Office of the Board. We do not believe that the conduct of the respondent described above constituted a refusal to bargain. Whatever conclusions might is The letter from the Regional Office of the Board was not introduced into evidence, and it is not revealed in the record whether the representative of the Board informed the respondent at this conference that a petition had been filed by the S W. O. C. on No em- her 13, 1937. 17 Mitchell questioned whether the "union" had been so designated KILLEFER MANUFACTURING CORPORATION 495 otherwise he drawn from Mitchell's ambiguous statements in the course of the discussion between himself and the committee on the need for an "outside representative" for the purpose of "presenting" a contract, Robb in his telephone conversation with Thimmes shortly thereafter expressed the respondent's willingness to meet with a rep- resentative of the S. W. O. C. The failure of such a meeting to occur was not the fault of the respondent. Under the circumstances we do not believe that Robb's subsequent delay in answering Dal rymple's letter amounted to a failure to enter into negotiations. Al- though the request in Dalrymple's letter for a conference with the respondent was never granted, Robb's assumption that the conference at the Regional Office of the Board made it unnecessary for him to respond to Dalrymple's letter was not unreasonable. Although the respondent had been meeting with a committee of the Amalgamated for some time, no representation had ever been made to it that the committee had been designated by a majority of its employees. Nor was there anything in the nature of the meetings between the re- spondent and the committee to indicate that these meetings were conducted upon the assumption that the committee had been desig- nated by a majority. When the question of majority was raised at the conference at the Regional Office, the S. W. O. C. not only con- curred in the respondent's suggestion, that an election be held, but failed to assert that it was able to prove its majority on the basis of authorization cards, or other documentary proof, or to propose any other procedure whereby this issue might be determined. Under these circumstances we cannot conclude that the respondent's ex- pressed doubts as to the majority status of the S. W. O. C. were not honestly entertained. Accordingly, we find that the respondent has not refused to bar- gain collectively with the S. W. O. C. or the Amalgamated, and we will dismiss the complaint in this regard. B. The alleged discriminatory discharge 117. J. Mullen was employed by the respondent as a machinist in the toolroom from December 1936 to December 1937. During this period Mullen requested and received two wage increases, one in March and one in June. In November 1937 he participated in a general wage increase. As a result of these increases, Mullen's wages had risen from 65 cents to 80 cents an hour in the course of a year. After his second increase, he was earning as much as any other em- ployee in the toolroom, with the exception of the foreman. Mullen, although not an officer of the Amalgamated, was one of its most active members and was recognized as such by the foremen and offi- cials of the respondent. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mullen was dismissed from employment on December 2, 1937, in the course of a general lay-off of employees . D. E. Skinn, general foreman for the respondent, testified, however, that Mullen's dis- missal was a permanent discharge and justified this action on the ground that Mullen was quarrelsome , indifferent toward his work, and refused "to cooperate and receive instructions." During the period from July through November, Mullen was guilty of three errors in his work . He urges that these errors were insignificant and the respondent does not contend that they were in themselves sufficient cause for discharge. However, on at least two of these occasions, when Mullen was asked to correct the error, he was sullen and prone to controversy , and received criticism in a hos- tile fashion. As a result of the first of these incidents in July, Rus- sell, foreman of the blacksmith shop, told Skinn that he, Russell, did not wish to work with Mullen because of Mullen's refusal to take instructions . In September, Kenneth May , foreman of the welding department, reported to Skinn that Mullen frequently disrupted the welding department and kept the welders from performing their duties, and in November, Bush, Mullen's foreman , complained to Skinn that Mullen was generally indifferent toward his work and reluctant to take instruction from Bush. In addition , throughout this period, complaints of Mullen's quarrelsomeness and of difficul- ties in working with him came to both Bush and Skinn from various employees in the plant. Mullen did not deny the incidents that led to these complaints, but sought in his testimony either to belittle the incidents or to demon- strate that the responsibility for them had not been his . We are satis- fied from the record, however, that Mullen was of an extremely quar- relsome nature and difficult to work with . Although some of Mullen's quarrels and difficulties may have derived from his zeal in promoting the Amalgamated, there is no indication of any discrimination by the respondent against the officers and other leading members of. the Amalgamated , and we do not believe that Mullen's union activities motivated the respondent in his discharge. We find that W. J. Mullen was not discharged because of union activities, and we will, accordingly, dismiss the complaint in this regard. C. The individual agreements o l employment Between November 30 and December 6, 1937, the respondent en- tered into individual agreements of employment with 97 of its em- ployees. The agreement was for a period of one year 18 and was 11 See footnote 20 KILLEFER MANUFACTURING CORPORATION 497 divided into tWo sections, the obligations of the employer and the obligations of the employee. The employer obligated himself : 1. To pay as wages at the rates posted in schedules for 1938, or __________ 10 cents per hour for each hour worked at day rates. For any other work not less than 55¢ per hour. 2. To furnish employment as steadily as in its judgment busi- ness and trade conditions permit. An effort will be made to con- tinue the regular schedule of operations of 5 days per week of 40 hours each, and 40 hours per week shall be the maximum except in cases of extreme emergency. 3. To maintain the rate of wages per hour during the life of this contract. A material change in manufacturing methods or equipment for any job or piece, as heretofore, will be treated as t), new job and prices determined accordingly. 4. To comply with the principles and rules of the Company as printed and posted in the shops. In return for these promises, the employee agreed : 1. To faithfully serve the Company during the operating period from ---------- until __________ 20 unless prevented by sickness or desiring to take a position elsewhere. 2. To personally take up with the employer any questions or grievances pertaining to wages, hours, or working conditions. 3. To preserve and care for the property of the Company. 4. To comply with the principles and rules of the Company as printed and posted in the shops. In its Proposed Findings, the Board proposed to find that because of the provision in this agreement which purported to bind the em- ployees to bargain individually for the period of a year, the respond- ent by entering into such agreements had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The Board also proposed to find, upon the basis of the entire record, that the respondent had initiated and en- couraged the execution of these agreements, thereby discouraging its employees from seeking to bargain collectively and engaging in other concerted activity, and had thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Upon the basis of these proposed findings of fact, and proposed conclusions of law, the Board proposed to order the respondent to is The blank was filled in with the rate the employee « as currently earning. 2D There were inserted in - these blanks the date of execution of the agreement and a date one year later. This is the only provision wherein the duration of the agreement is set. It was the intention of the parties, however, that the agreement was to have a 1-year term 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cease and desist from promoting and making individual agreements of employment which purport to bind its employees to bargain indi- vidually, and to post a notice informing its employees that they were free to bargain individually or collectively as they wished. As recited above, subsequent to the issuance of the Proposed Find- ings, the Board, for the purpose of conforming the allegations to the proof as adduced at the hearing, issued an amendment to the com- plaint, as amended, alleging in said amendment that the respondent, by entering into, initiating, sponsoring, encouraging, and promoting the making and execution of these individual agreements of employ- ment, had engaged in unfair labor practices. The respondent and the individual employees, in their answers to the amendment, admitted entering into the individual agreements of employment. Thus, the terms of the agreements set out above, and the fact that the respond- ent entered into such agreements with its employees, are undisputed. We find it unnecessary to determine whether the respondent initi- ated, sponsored, encouraged, and promoted the making and execution of these agreements, which allegation in the complaint is contested by the respondent . It is clear from the terms of the agreements themselves, that the respondent by entering into them, discouraged collective bargaining and other concerted activities on the part of its employees. By signing an agreement, an employee clearly obligated himself to bargain individually, thus giving up his right to collective bargaining, and making continued union membership of little or no value, and was thereby discouraged from becoming or remaining a member of the Amalgamated. An employee is free under the provi- sions of the Act to exercise his preference to be represented by a union or to bargain individually, and it is contrary to the policy of the Act for an employer to enter into a transaction whereby such freedom of choice is attempted to be waived or bargained away by its employees. The respondent by attempting to bind its employees to individual bargaining for a year, interfered with, restrained, and coerced its employees in the exercise of their right S.21 We find that the respondent by entering into the individual agree- ments of employment described above, thereby discouraging its em- ployees from seeking to bargain collectively, and engaging in other concerted activity , interfered with, restrained , and coerced its employ- ees in the exercise of their right to self -organization , to form, join, or assist labor organizations , to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining and other mutual aid and protection as guaranteed in Section 7 of the Act. 21 See National Liconce Company Y N ]. H B, 109 U 8 350 See footnote 0, xopia KILLEFER MANUFACTURING CORPORATION 499 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III C above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and between the United States and foreign countries and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY We have found that the respondent has engaged in unfair labor practices by entering into the individual agreements of employment described above. As recited above, the respondent in its answer to the amendment to the complaint, as amended, averred that the individual agreements of eniploynient now, used by the respondent no longer con- tain a clause purporting to bind the employees to bargain individually and that, pursuant to the Proposed Findings, the respondent had on November 6, 1939, posted a notice to the effect that the clause pur- porting to bind employees to bargain individually would be elimi- nated from all individual agreements of employment entered into by the respondent in the future, and that the employees were free to bargain individually or collectively as they chose. Accordingly, since the respondent has already indicated its intention of complying with the Act, and has posted a notice so informing its employees, we find it unnecessary to order any affirmative action. We shall, however, order the respondent to cease and desist from the unfair labor practices in which we have found it has engaged .12 I. THE QUESTION CONCERNING REPRESENTATION Since more than 2 years have elapsed since the petition for investi- gation and certification of representatives was filed by the S. W. O. C. in November 1937, the situation concerning representation as it cur- rently exists at the respondent's plant is not before the Board. Accordingly, the petition will be dismissed without prejudice to the right of the S. W. O. C. to file immediately a new petition requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act.23 22Cf Matter of Caleo Chemical Company , LU . it u1 and American Chemical 1ro,l,ers Local No 209?7, A F of L, 12 N L R B 275 mCf. Matte, of Bambeayer-Reanthal Company and International Ladies' Garment Worl,- eis Union, 9 N L. R B. 1057 ; Matter of Ansley Radio Corporat i on and Local 1221 United Elect,zeal f Radio Iro,Lers of America, C I 0, IS N L R B 1023, Mattel of Quality Ar t Novelty Co , Joe' and United Paper 11-orlcrs , L I U, No 292, 20 N L R B, 817 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. Steel Workers Organizing Committee and Amalgamated Asso- ciation of Iron, Steel and Tin Workers of North America, Lodge No. 1850, both affiliated with the Committee for Industrial Organization, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By entering into individual agreements of employment, thereby discouraging its employees from seeking to bargain collectively and engaging in other concerted activities, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 3. 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. 4. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not, by refusing to bargain with the S. W. O. C. or the Amalgamated as the representative of its em- ployees, engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 6. The respondent has not, by the discharge of W. J. Mullen, 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 respondent, Killefer Manufacturing Corporation, Vernon, Cali- fornia, and its officers, agents, successors, and assigns shall cease and desist from : (a) Entering into, giving effect to, or enforcing any provision of any agreement between it and any of its employees which pur- ports to bind the employee to bargain individually with the respondent, or in any other manner causing or encouraging its em- ployees to waive the rights guaranteed by the Act, or in any other manner discouraging its employees from seeking to bargain collec- tively or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection; KILLEFER MANUFACTURING CORPORATION 501 (b) In any other manner interfering with, restraining, or coercing g its employees in the exercise of their right to self -organization, to forn7, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection as guaranteed in Section 7 of the Act. AND II' IS FURrFIER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8 (3) and (5) of the Act. AND IT IS FURTHER ORDERED that the petition for investigation and certification of representatives of employees of the respondent filed by Steel Workers Organizing Committee be, and it hereby is, dismissed without prejudice. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order. 253033-41-von 22-33