Algoma Plywood & Veneer Co.

In the Matter of ALGOMA PLYWOOD & VENEER COMPANY and LOCAL 1521, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA. (A. F. L.) Case No. C-1572.-Decided August 22, 1940 Jurisdiction : lumber manufacturing industry. Unfair Labor Practices Company-Dominated Union: participation of representatives of management in formation of: suggesting formation; attendance at meetings; circulation of petitions; serving as temporary officers. Collective Bargaining: union's majority established by membership therein; effect of withdrawal of union's designation as result of employer's unfair ..labor practices-failure to bargain in good faith: failure to advance genuine counter-proposals after rejection of union demands. Employer's conduct of strike vote among its employees on day after union members authorized strike should employer fail to reach agreement with union constituted refusal to bargain where union was still seeking to negotiate. Employer's refusal to accept a fair method of ascertaining union's strength among employees and insistence upon a method which would reflect results of employer's unfair labor practices held a refusal to bargain. Remedial Orders : order to bargain collectively; company-dominated union disestablished and its contract abrogated. Unit Appropriate for Collective Bargaining : production and maintenance em- ployees of the respondent, excluding executives,, supervisory employees, and employees on the office staff. Mr. Frederick P. Mett and Mr. Jacob I. Karro, for the Board. Minahant & Bassett, by Mr. Robert C. Bassett, of Green Bay, Wis., for respondent. Mr. Jay A. Hathaway, of Milwaukee, Wis., for the Union. Mr. J. H. Krug, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon amended charges duly filed by Local 1521, United Brother- hood of Carpenters and Joiners of America, affiliated with the Amer- 26 N. L. R. B., No. 102. 975 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ican Federation of Labor,' herein called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Twelfth Region (Milwaukee, Wisconsin), issued its complaint dated January 22, 1940, against Algoma Plywood .& Veneer Company, Algoma, Wisconsin, 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), (2), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and accom- panying notices of hearing were duly served on the respondent, the Union, and Algoma Plywood Workers' Association, herein called the Association, a labor organization alleged in the complaint to be dominated by the respondent. The complaint, as amended at the hearing, alleged, in substance, (1) that on and after June 1.5, 1939, the respondent dominated and interfered with the formation and administration of the Association and contributed financial and other support thereto, and that it entered into an illegal contract with the Association covering wages, hours, and other conditions of work; (2) that on or about June 13, 1939, the respondent refused to bargain collectively with the Union as the exclusive representative of the respondent's employees in an appropriate bargaining unit, although the Union was and at all times thereafter had been designated by the majority of the said employees as their representative for the purposes of collective bargaining; and (3) that by the foregoing and by other specified acts the respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The re- spondent filed an answer denying that it had engaged in unfair labor practices. Pursuant to the notice and amended notices, duly served upon the parties, a hearing was held in Algoma, Wisconsin, from February 13 to 16, and from February 26 to 28, 1940, before Mortimer Riemer, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel; the Union, by its author- ized representative. The Association was afforded an opportunity to enter its appearance upon the record but declined to do so. The Board and the respondent participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing, counsel for the respondent moved for an order extending the date of the hearing to April 1, 1.940, on the ground that M. W. Perry,. president of the' respondent, was in Orange" burg, South Carolina, and that W. E. Perry vice president and gen- It appears from the record that this is the correct name of the labor organization, which is designated in the amended charge as " Local 1521 , United Brotherhood of Carpenters and Joiners of America (A. F. L.)." ALGOMA PLYWOOD & VENEER COMPANY 977 eral manager, was in Florida, and that both were absent because of business and for reasons of health.2 The motion alleged that the two Perrys were the respondent's material witnesses, that they could not be present in Algoma until April 1, that certain matters involved in this proceeding were known only to the Perrys, that in their absence counsel for the respondent did not have a fair opportunity to prepare for the hearing, and that the denial of the motion for extension would deprive the respondent of the opportunity for a fair hearing. Evi- dence was introduced concerning the health of the two Perrys and the necessity for their continued absence. Testimony was given by George S. Lester, assistant general manager of the Algoma plant, and Robert C. Bassett, counsel for the respondent, but the respondent did not present in support of its motion the affidavit or testimony of any physician. It appears that W. E. Perry left Algoma the day before service of the complaint and. notice of hearing. Both M. W. Perry and W. E. Perry were notified thereafter of the service of'the com- plaint and notice of hearing. After argument upon said motion, the introduction of evidence and the examination and cross-examination of witnesses, the Trial Examiner denied the motion, without preju- dice to a motion to take the depositions of the absent Perrys, or to adduce further testimony by interrogatories and cross-interrogatories. Counsel for the respondent did not avail himself of this privilege. . At the opening of the Board's case counsel for the respondent moved to dismiss the complaint on the following grounds: (1) that the com- plaint did not show that the respondent was engaged in interstate commerce; (2) that the denial of the respondent's motion for extension deprived the respondent of the opportunity for a full and fair hearing and thus denied to the respondent due process of law; and (3) that the Union's original charge had not been served upon the respondent. This motion was denied by the Trial Examiner. The motion to dis- miss was renewed by counsel for the respondent at the close of the Board's case and at the close of the hearing. The latter motions were likewise denied by the Trial Examiner. At the close of the Board's case, and at the close of the hearing, the respondent moved to dismiss the allegations in the complaint relating to unfair labor practices within the meaning of Section 8 (5) of the Act, on the ground that the Board had not shown that the Union represented. the majority of the respondent's employees on the relevant dates. The Trial Examiner reserved ruling on this motion at the hearing, and disposed of it in his Intermediate Report. During the hearing the Trial Examiner made several other rulings on motions and on objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no 3 A similar motion in writing had been filed with the Regional Director on February 9, 1940. The Regional Director did not act upon this motion . It is hereby denied. 978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudicial errors were committed. The rulings are hereby affirmed. On May 9, 1940, the Trial Examiner filed his Intermediate Report in which he denied the respondent's motion to dismiss the allegatiolis of the complaint relating to unfair labor practices within the meaning of Section 8 (5) ; found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) , (2), and (5) and Section 2 (6) and (7) of the Act; and recommended that the respondent cease and desist from its unfair labor practices, withdraw all recognition from and completely disestablish the Association as the bargaining representative. of any of the respondent's employees, bargain collectively upon request with the Union as the exclusive collective bargaining representative of the respondent's production and maintenance men, exclusive of executives, supervisory workers and clerical help, an& take certain other affirnma- tive action to remedy the unfair labor practices. On May 11, 1940, the Board ordered that the case be transferred to and continued before it. No party filed a brief or exceptions to the Intermediate Report. or requested oral argument before the Board within the time provided by the Rules.3 On June 28, 1940, after expiration of the period provided for filing exceptions to the Intermediate Report, requesting oral argument before the Board, and filing briefs, the respondent filed with the Board a motion for extension of time in which to file exceptions and a brief and for leave to present oral argument before the Board. Counsel for the Board submitted a statement in opposition to said motion. On July 10, 1940, the Board denied the motion. On August 13, 1940, the respondent filed with the Board a motion for reconsideration of the Board's order denying said motion. The motion for reconsideration is hereby denied. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT . 1. THE BUSINESS OF THE RESPONDENT The respondent, Algoma Plywood & Veneer Company, is a Dela- .ware corporation, engaged at plants in Algoma and Birchwood, Wisconsin, in the production of plywood, veneer, lumber and allied products. The present proceedings are concerned only with the Algoma plant. The principal raw materials used by the respondent consist of lumber, foreign and domestic veneer, glue and sandpaper. For the period from May 16, 1938 to April 30, 1939, 60 per cent of the raw materials used at the Algoma plant originated within the State of 3 National Labor Relations Board Rules and Regulations-Series 2, as amended, Article II, Sections 33 and 35. ALGOMA PLYWOOD & VENEER COMPANY 979 Wisconsin and 40 per cent were transported to the plant from outside the State. For the same period, approximately 97.4 per cent of the plant's finished products were shipped to points outside the State of Wisconsin. For the period from May 1, 1939 to October 31, 1939, total purchases of raw materials for the Algoma plant were valued at $171,203, and the gross sales of that plant aggregated $452,736. Approximately 240 workers are employed at the Algoma plant. II. THE ORGANIZATIONS INVOLVED Local 1521, United Brotherhood of Carpenters and Joiners of America, is a labor organization affiliated with the American Federa- tion of Labor. It admits to membership production and maintenance employees of the respondent. Algoma Plywood Workers' Association is an unaffiliated labor organization admitting to membership production and maintenance employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The chronology of events The Union began to organize the Algoma plant in late May or early June of 1937. In the latter month a strike occurred which was settled when the Union and the respondent entered into a signed contract effective from July 9, 1937 to July 9, 1938. Although the contract did not define the Union as exclusive bargaining agent, the parties understood that the contract covered all production and maintenance employees at the plant, including foremen, but excluding office. workers. The contract granted an increase in hourly wages, established maximum hours of work, applied the principle of seniority to lay-offs, set up shop stewards in each department of the plant, and contained provision for arbitration of disputes. By its terms the con- tract was to remain in force for 1 year, and from year to year there- after, provided that either party might, 90 days prior to the end of any 1-year period, give notice that it desired to, change the terms thereof. Expiration was effected by a notice dated April 11, 1938, sent by the Union to the respondent. Thereafter, between July 1938 and June 1939 representatives of the respondent and the Union engaged in a series of conferences in an attempt to reach another agreement. The respondent was repre- sented at each conference by W. E. Perry, its vice president and general manager, and in addition on some occasions by George S. Lester, assistant general manager, and Raymond P. Fulwiler, plant superintendent. The Union was represented by its bargaining com- mittee and on some occasions by Jay A. Hathaway, first vice president of the Wisconsin State Council of Carpenters, of the United Brother- 980 DECISIONS Or NATIONAL LABOR RELATIONS BOARD hood of Carpenters and Joiners of America. Some of the conferences between Perry and Hathaway were informal and held over the tele- phone. At the first conference, held on July 1.4, 1938, the Union presented to Perry its new proposal, embracing wages, hours, and working conditions, and containing a closed-shop clause. Perry received the proposal, stated that he wished to. present it to his board of directors, and requested Hathaway to return in 2 or 3 weeks. Late in July or early in August 1938 Hathaway returned to Algoma and. conferred with Perry. Perry proposed that the respondent and Roddis Veneer Company and American Plywood Corporation, two of its.competitors operating in Wisconsin, enter into a uniform closed- shop agreement with the Union for their respective employees. In addition to the closed shop, his proposal included specified wage increases, and the use by the employers of the label of the United Brotherhood of Carpenters and Joiners of America, herein called the United Brotherhood, of which the Union is an affiliate. Perry asked Hathaway to arrange a meeting between representatives of the em- ployers and an officer of the United Brotherhood. Perry also stated that he wished Lawrence Ottinger, president of United States Ply= wood Corporation, the respondent's exclusive sales representative, to participate in these conferences. Hathaway approached the manage- ment of the two other employers and made two trips to Indianapolis, Indiana, to discuss the matter with the officers of the United Brother- hood.. Although it was arranged that a conference would be held some time in November and that Perry would set the date, Perry did not do so and.no conference was held. In March 1939 Perry in- formed Hathaway that the break-up of the negotiations was unavoid- able because Ottinger refused to take part in them. Late in March or early in April 1939, the Union's bargaining com- mittee met in a second conference with the respondent. After some general discussion Perry suggested that the Union draw up a proposed agreement which had the approval of its members and submit it to Perry, after which a meeting could be held in an effort to iron out any difficulty. Perry stated that he would present such an agreement to his stockholders. A proposed agreement was prepared by the Union, which, early in April, submitted it to Fulwiler in the absence of Perry from Algoma. This proposal provided for a closed shop and contained provisions relating to hours of work, minimum wages, shop stewards, the union label, and seniority.. Perry returned to Algoma a few days later.and handed the proposal back to Ebert, a member of the union bargaining committee, while the latter was at worknn the plant, stating that it was not acceptable. A further conference was held shortly, thereafter at which the Union was represented by its bargaining committee and the respondent by Perry, Lester, and Fulwiler. The conferees discussed the proposal ALGOMA PLYWOOD & VENEER COMPANY 981 which had been submitted by the Union and returned by Perry. At this conference Perry stated that the respondent had no intention of agreeing to a closed shop or even a partial closed 'shop, but would insist upon an open-shop policy. He objected to the seniority clause on the ground that married men should be given preference when lay-offs were made. Perry rejected the clause relating to hours df employ- ment, stating that since, under the Fair. Labor Standards Act, the respondent had the :right to work men it specified number of hours per. week he saw no reason why the respondent should, because it recog- nized the Union, be compelled to reduce its hours of work below that number.' Perry also rejected the wage provisions of the proposed contract, stating that the respondent could not afford to give a flat wage increase., He admitted, however, that there were inequalities in the wage scale, and stated that he and Fulwiler would review the individual wage rates and make whatever adjustments they deemed necessary.; that these adjustments would be presented to the Union for rejection or acceptance by it. In May the union bargaining committee returned for a short con- ference with Perry lasting about 15 minutes. The committee asked Perry whether he had changed his mind with regard to the subjects discussed at the previous meeting and Perry said that he had not. A fifth conference was held on June 13, 1939, in Perry's office at Algoma. The Union was represented by its bargaining committee and Hathaway, the respondent by Perry and by Fulwiler who entered after the. meeting had started. The Union's proposal was again discussed but Perry's attitude with respect to the demands therein remained the same. Perry stated that he was not interested in the proposed agreement. With respect to the seniority clause, Perry stated that the respondent had always acted fairly in laying off men, and that he did not believe in the principle of seniority because it retarded the initiative of the workmen. He stated that the respond- ent would never sign. a closed-shop or a partial closed-shop agreement and that the respondent would never have anything except an open shop. When Hathaway inquired why Perry would not sign a closed- shop agreement since it was Perry who had proposed such an agree- ment in July or August of 1938, Perry replied that the original basis for that proposal no longer existed and he would not now consider any form of closed-shop agreement. Fulwiler, the plant superin- tendent, stated that so far as he was concerned, he would not sign a closed-shop agreement because in his opinion "non-union men were better than union men, anyhow." On the subject of hours of employ- ment, Perry repeated what he had said at previous conferences, that 4 The weekly hours of work specified in the proposed contract were in fact substantially identical with the weekly maximum established by the Fair Labor Standards Act. The proposed contract , however, pro- vided for a 5-day week and imposed other conditions not required by the Fair Labor Standards Act. 323429-42-63 982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since the matter was regulated by the Fair Labor Standards Act, he could see no reason why the respondent should be penalized because it recognized the Union. With respect to wages, Perry stated that the respondent could not afford a flat increase, and that any individual adjustment in wages would be made by the management, "since the company was footing the bill that they would decide who was to be paid and how much, and that the men "could like it or quit." He indicated that the adjustment would result in a decrease in certain wage rates as well as an increase in others. The union bargaining committee stated that any adjusted wage scale determined by the management alone was not acceptable to them because in their opinion such a scale should be arrived at collectively after bargaining between the parties. It rejected Perry's proposal to adjust wages by lowering some and raising others. Hathaway stated that he did not consider this to be true negotiation and if that was Perry's ultimate decision, the Union would have to utilize such resources as it had at its command to see that it obtained genuine collective bargaining. At some time during the June 13 conference Perry said, "I might even question your right to represent the majority." During the course of this con- ference Perry asserted. that he was always ready to negotiate with the Union. At a meeting held on the evening of June 14, 1939, the Union voted to go out on strike if the respondent and the Union were not able to reach an agreement. The strike resolution was carried by a vote of 74 to 35. Ebert testified without contradiction, and we find, that the strike was not conditioned on failure to obtain the particular agree- ment proposed by the Union, and that the vote did not foreclose such further efforts as the Union's bargaining committee might make in an attempt to arrive at a formula acceptable to both the Union and the respondent. On the following clay, June 15, rumors of the union strike vote spread through the plant. In the morning Werner Moegenburg, shipping-room foreman circulated among the other foremen on com- pany time and property a petition requesting the management to assist in holding a secret strike vote among the employees. At about 1:30 p. m. Moegenburg presented the petition, signed by seven foremen, to W. E. Perry. The respondent caused Perry's conversa- tion with Moegenburg to' be transcribed, and a transcript of the conversation was introduced in evidence. Perry told Moegenburg that he wanted to know if the sentiment expressed by the seven foremen in their petition was shared by the other employees and asked for "some indication that more men will join the few of you. who have signed here in favor of taking a ballot." Moegenburg re- sponded that more petitions were being circulated and that he "just did this as a starter this morning of my own free will." From ]. ALGOMA PLYWOOD & VENEER COMPANY 983 until 3:30 p. in. on the same clay copies of a petition were circulated among the respondent's employees asking the management for time in which to hold a meeting for the purpose of voting on whether a strike should be called. Foremen and subforemen participated in the circulation of this petition. At about 3:30 p. in. that afternoon Walter Hoffman, foreman of the splicing room, submitted this petition to Perry.' Perry then instructed Fulwiler to tell the foremen that the plant would close down at 4:30 p. m., j2 hour earlier than usual, and that at that time a meeting of all employees would be held in a depart- ment of the plant known as the tego room. Fulwiler and the foremen carried out these instructions and the meeting was held at the ap- pointed time. Present were W. E. Perry, Fulwiler, Charles Cmeyla, chief engineer, all the foremen, and Melik Kwapil, an office employee who is a brother-in-law of M. W. Perry and an uncle by marriage of W. E. Perry. Perry opened the meeting with a statement, a transcript of which was introduced in evidence. He stated that the meeting had been called in response to the petition of the employees, and continued as follows: Now, I am not permitted by law to tell you to go ahead and strike, and am not permitted by law to ask you not to strike. That is something you men under the law have the sole right to decide. I only want to say that if you are going to strike, it would be better for the company if you went ahead and struck. If you are not going to strike, the company should know it, be- cause we have not been able to put any orders in this factory for the last three days, and we have reached the point now where there is nothing to work on. There are plenty of orders on file in the office which have not been issued because of the uncer- tainty of our being able to operate. You will understand why we cannot accept a man's order and tell him there is a possibility that after we put his order into production our men are likely to walk out and his order will set here. Now, when I mention hav- ing orders in the factory, or in the office rather, they are just the miscellaneous run of jobs calling for a dozen, or two or three dozen panels. We have had three or four larger jobs which we have absolutely had to decline and tell these people we can't possibly handle their order at this time because we don't know where we are at. I think it is an awfully good thing for you men to take a ballot and decide what you are going to do and let us know what you are going to do. If you are going to strike, that is your business; it is your privilege to strike if you want to strike; and if you do not want to strike, there isn't anything in the law that will compel ' Perry also caused this conversation with Hoffman to be transcribed , and a transcript thereof is in evidence. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you to do so.' If you are not going to, make up your mind, so we can put some business out in the ' factory. I tell you by Monday morning we are not going to have work enough in this plant to keep even a skeleton crew busy unless some of these orders are released. Now, this is as far as we can go. I want to turn this meeting over to you men. I want you to remember in fairness to every man employed here, he has a right to freely express his opinion on this question. I want every man who is in favor of a strike to vote in favor of a strike, and if you are not in favor of a strike, do not be afraid to vote that way. We' want an expression of the sentiment in the plant; so vote one way or the other. That is all. Perry then left the meeting and Kw.apil asked for the nomination of officers. Cmeyla, the chief engineer, was nominated for the posi- tion of chairman by Emil Iwen, whose foreman is Walter Hoffman. He was elected by unanimous vote. Cmeyla announced that a vote would be taken on the question of whether or not a strike should be called. Balloting followed in which all classes of employees, in- cluding production workers, maintenance men,. office workers, and supervisory workers, participated. W. E. Perry, Fulwiler, and Lester, however, refrained from voting. Cmeyla appointed four tellers, and after the ballots were counted, announced the results as follows: 147 opposed to the strike, 55. in favor, 8 blank ballots, and 1 illegible, a total of 211. After the announcement of the vote some foremen left the meeting. Cmeyla then asked those who were interested "in joining the Inde- pendent Union to step up and sign up." Approximately 47 employees signed a paper which was on the table in front of Cmeyla. Cmeyla then announced that a meeting of all those-interested in the formation of an independent union would be held that evening, but for reasons not disclosed by the record the meeting was not held. The next morning, June 16, the following notice was posted in the plant: JUNE 16, 1939. I WISH TO THANK THE MEN WHO PARTICIPATED IN THE BALLOTING YESTERDAY ON THE QUESTION OF A STRIKE, AND SINCE THE ISSUE SEEMS TO BE UNMISTAKABLY DEFINED, AS MANAGER OF THE COMPANY, I HAVE AUTHORIZED .THE RELEASE OF NUMEROUS ORDERS. WITH THIS NEW BUSINESS IN WORK, AND THE PROBABLE RECEIPT OF ADDITIONAL ORDERS, I AM ABLE TO TELL YOU THAT OPERATIONS WILL CONTINUE WITH OUR PRESENT WORKING FORCE FOR AN INDEFINITE PERIOD. (Signed) W. E. PERRY, General Manager. ALGOMA PLYWOOD & VENEER COMPANY 985 The same morning at 6:45 a. m. and for the rest of the day there was posted on at least one of the .respondent's bulletin boards a notice to all employees of the plant that at 7:30 that evening a meeting would be held for the purpose of organizing a "Local Independent Union" and all employees interested were urged to attend. This notice was signed by Charles C. Cmeyla, the chief engineer, as acting chairman.,, That evening a group of the respondent's employees met in the American Legion Hall in Algoma. Approximately 40 workers in- cluding Cmeyla and other supervisory employees attended the meeting. Cmeyla opened the meeting as temporary chairman and introduced Frank A. Murphy, an attorney, as one who "had had experience with the Independent Union at the Aluminum Goods Company in Manitowoc, Wisconsin, who would speak to them on the subject of organizing an Independent Union." Some time prior to the meeting, Cmeyla had telephoned Murphy to come to the meeting for the purpose of assisting in the organization of the "Independent Union." Murphy requested all foremen and supervisory officials to leave the meeting and all such persons, including Cmeyla, departed. Following an address by Murphy, in which he outlined his work in connection with the organization of the Independent Union at the Aluminum Goods Company in Manitowoc and described the method of forming an independent union, Wilfred Detjen, a son-in-law of Cmeyla, was elected temporary chairman, and Andrew Cmeyla, a son of Charles Cemyla, temporary secretary. Detjen and Andrew Cmeyla were constituted a committee to meet with Murphy for the purpose of drafting a constitution and bylaws. A constitution and bylaws in which the name of the Association first appeared were adopted on June 21, 1939. On June 27 the Association elected an executive committee, and shortly thereafter the executive committee elected permanent officers of the Association. On June 17, 1939, the Union filed charges alleging that the respond- ent had engaged in unfair labor practices within the meaning of Section 8 - (1), (2), and (5) of the Act. A conference was held on June 28, 1939, in the office of Robert C. Bassett, counsel for the respondent, at Green Bay, Wisconsin. Present were Bassett, M. W. Perry, and W. E. Perry, for the respondent; Hathaway, for the Union; and 0. S. Hoebreckx, a Field Examiner of the Board. Bassett and Hoebreckx had arranged the meeting. According. to Hathaway, Hoebreckx stated at the opening of the meeting. that the conference had been called in an effort to negotiate a collective bargaining agree- ment between the Union and the respondent; whereupon Bassett stated that the meeting had been called to discuss "how to clear up 6 On the same day the respondent posted a notice to the effect that W. E. Perry had received reports that an independent union was being organized , and that solicitation of membership or discussion of union activities during working hours was prohibited on pain of discharge. 986 DECISIONS Or NATIONAL LABOR RELATIONS BOARD the status" of the Union's right to represent a majority of the em- ployees. Bassett testified that it was "entirely possible" that be stated to Hoebreckx, at the time the latter proposed the June 28 conference, that "there ought to be an attempt to negotiate further . . ." Bassett also admitted in his testimony that "bargaining was requested" at this meeting. On the basis of the evidence concerning the conference.of June 28, we find that at that time the Union was still requesting the respondent to bargain collectively with it as repre- sentative of the majority of the respondent's employees and that the respondent's representatives so understood. The record shows, however, that the parties did not reach the stage of negotiations about wages, hours, and working conditions on June 28. In substance, the discussion at the meeting revolved around the question of the majority status of the Union and the method for determining that status. At the opening of the conference Bassett stated that the respondent was willing to bargain with the Union if the latter could prove that it represented a majority of the employees. He stated that it was necessary for the respondent to protect itself under the Act by securing proof that the Union represented the majority before the respondent bargained with it. Bassett suggested that an election be held and Hoebreckx stated that the Board would refuse to conduct an election at the time because the charges of unfair labor practices filed by the Union were still pending. Either Hatha- way or Hoebreckx suggested that the Union's majority be proved by a comparison of the respondent's pay roll with the union ledger. Although there is some conflict in the testimony; Bassett testified, and we find, that he rejected this offer on behalf of the respondent. Bassett testified that in refusing this offer he explained that a check of the pay roll with the union ledger was not a "current check," that the ledger would include the names of employees who might not at that time desire to be represented by the Union, and that the Union might pay up the back dues of delinquent members in order to put them in good standing. According to Bassett, he suggested that the respondent would be satisfied with petitions or authorization cards signed within the past month or two, an immediate Board election, or a poll conducted by Bassett or by a disinterested third party. Although Bassett's testimony is contradicted in some respects by that of Hathaway, we are satisfied on all the evidence that at the conference of June 28 the respondent insisted on what Bassett termed a "current" method of determining the Union's majority representa- tion as a condition to collective bargaining.. At the close of the con- ference either Bassett or Hoebreckx suggested that the Union file a petition with the Board seeking certification as collective bargaining representative. Hathaway protested the need of such a certification but stated that he would consult the. Union's attorneys about it and ALGOMA PLYWOOD & VENEER COMPANY 987 let the others know within the next few days. Two days later, on June 30, the Union, through Hathaway, filed a petition with the Regional. Office of the Board seeking certification of the Union as collective bargaining agency.' On July 6, 1939, Frances Wheeler, Field Examiner for the Board, called on Bassett at his office in Green Bay and requested the respond- ent to consent to a comparison of its pay roll with the Union's ledger. This Bassett refused on behalf of the respondent . The next day, July 7, Wheeler spoke to Bassett twice over the telephone and called on him at his office. On these occasions, according to Bassett, the conversation was similar to that which had taken place on June 28 and on July 6. Bassett further testified that down to July 7, neither Wheeler nor the Union offered to show "any proof of majority or a willingness to adopt or to accept any of the-what I have called the more current methods of determining this majority." The methods proposed by Bassett excluded the Union's offer of a comparison of its membership ledger with the respondent's pay roll. On July 13, 1939, at the request of Hathaway and Wheeler, a con- ference was held in Algoma, at which were present W. E. Perry, Bassett, Hathaway, and Wheeler. Wheeler again requested and the respondent again refused a check of the union membership ledger against the respondent 's pay roll . Bassett testified that he premised his refusal at this time on the grounds which he had previously stated on June 28 . During the conference Bassett suggested that a "newly circulated" union petition would be given consideration by the re- spondent. Apparently pursuant to this suggestion , certain union members circulated petitions between July 17 and. August 2, 1939. The peti- tions were signed by 112 employees of the respondent, of whom 111 were within the unit hereinbelow found appropriate for the purposes of collective bargaining, under the caption "We, the undersigned, want Local 1521 of the American Federation of Labor to retain the bargain- ing rights ." At that time, as we find below , there were 207 employees within the unit. About August 1, 1939, the Association requested a conference with the respondent for the purpose of proving its majority representation and demanding exclusive bargaining rights. The conference was held on August 7. At the meeting the Association exhibited 116 signed application cards. According to Bassett, the respondent was satisfied, after checking its pay roll with these cards, that the proof was sufficient to merit recognitiofl. At this conference Bassett delivered to the Association a handwritten statement , reading in part as follows: ". . . We recognize you as the sole collective bargaining agent for On September 21, 1939, the Board issued an order permitting withdrawal of this petition by the Union. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our employees , and will enter into collective bargaining negotiations with you. with the view of reaching a contract. Such recognition will be withdrawn only when other parties prove that you no longer have a majority." On August 10 Bassett wrote Hathaway informing him that the Association had submitted current proof that it represented a majority and that the respondent would bargain collectively with the Association, but at the same time offering the Union an oppor- tunity to prove its majority and further time in which to present to the respondent proof that the Association's representation was not conclusive. In this letter Bassett stated ". . . We have never reached an understanding, as to your representation, and the com- pany has refused to bargain with the A. F. of L. unit because it has not believed that such Union represented a majority of our employees." On August 12, Bassett wrote Hoeb^eckx a letter in which he stated: "In order that there may be no misunderstanding regarding past events, and no misstatements given to the press, it should be_under- stood that the Plywood. Company has positively recognized the independent association as the sole bargaining agent for its employees. That recognition is conclusive at this time subject to the usual condi- tions subsequent, not precedent, in the A. F. of L. to prove otherwise." On the same day Bassett also wrote Frank A. Murphy, attorney for the Association, in part as follows: You will recognize our giving the A. F. of L. one week to present proof was a gesture in the direction of establishing bona fides in the matter of recognition, thereby protecting both your- self and ourselves, if such is worth anything at this stage of the game. However , it was not my intention to indicate that recognition was being held up pending a possible rebuttal of your proof by the A. F. of L. Our statement was a blank recognition of your union, with a condition subsequent, not precedent, attached to the effect that the A. F. of L. would be given a rebuttal period as far as we were conmerned. I took the opportunity of making this position clear to the A. F. of L. and the N. L. R. B. yesterday. Mr. Hoebreckx of the N. L. R. B. is 'going to make ,a public statement that such recognition is impossible. Mr. Hathaway may wish to do the same thing. As a consequence, I dropped in to see Poehls last night before leaving Algoma, and left with him a written statement showing unqualified recognition in case the subject came up at the dance or came up during this following week in the plant. The publicity given recognition so far.has been a great boost to your Association and should not be lost by denials on the part of the A. F. of L. or the N. L. R. B. Furthermore, in order to clear the air and avoid unfavorable ALGOMA PLYWOOD & VENEER COMPANY 989 publicity, I am sending the enclosed letter to the Algoma Record Herald. In case any one proposed an election in this situation, you can rest assured that the company would insist upon the Association's name being on the ballot . . . On August 17, 1939, a conference arranged by Hoebreckx took place in the offices of the respondent at Algona. Present were M. W. Perry, W. E. Perry, Bassett, Hathaway , a committee representing the Union, Frank A. Murphy , attorney for the Association , a committee of the Association, and Hoebreckx . The Union submitted its petition which as stated above , had been circulated between . July 17 and August 2, containing the names of 112 employees who expressed a preference to have the Union represent them for . the purposes of collective bar- gaining. The Association presented the signed application cards of its members obtained since June 16 , 1939. The petition circulaIed by the union members was checked against the pay roll 'of the respondent by Bassett in the presence of union representatives and Hoebreckx. The Association cards were similarly checked by Bassett with Murphy and an association member. Murphy refused to permit Hoebreckx to observe the comparison of the Association cards with the respond- ent's pay roll . After completion of this comparison , Bassett declared that the proof submitted gave the respondent no indication as to which group had a majority and all left the conference with the exception of Bassett, W. E. Perry , and Fulwiler . Bassett's check disclosed that 122 employees had signed Association cards, 112 had signed the union petition, and 31 had signed both. Fulwiler then proceeded to check the authenticity of the signatures of the 31 duplications referred to in the record as "fence riders." Bassett testified and we find, that after this conference he took the precaution to speak personally to some of the 31 "fence riders". and as a result of a check of not more than half of them made on company property or at their houses, he was satisfied that a majority of them preferred the Association.8 Thereafter, the respondent notified Murphy by letter that it had recognized the Association "in the sense that at that date it had reoffered them its previous recognition and that the A. F. of L. had not presented such proof as to satisfy the company that the first recognition of the Independent would not stand." On August 21, 1939, the respondent posted a notice, signed by Perry, that the Association had been "officially recognized as the bargaining unit for the employees of this company." On August 31 W. E . Perry requested Fulwiler, all the foremen, 8 This conflicts with Bassett's letter to Hoebreckx dated September 9, 1939, wherein he stated that he attempted to resolve the dual allegiance of the 31 "fence riders" by way of "discreetly inquiring, without influencing one way or another, as to where these 30 men stood . In no case did we contact the men involved either directly or indirectly." 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Poehls and Andrew Cmeyla, president and secretary-treasurer, respectively, of the Association, to submit their plan for a reclassifica- tion as to wage rates, jobs, and abilities of the various employees so that a wage'adjustment, based upon this classification, could be made. The Association executive committee prepared a proposed classifica- tion plan and submitted it to Perry the following day. Subsequently Perry sent Murphy his proposed wage adjustment and fixed a time for a bargaining conference in' his office to further discuss this question. The Association executive committee met with Murphy to discuss this proposed classification and wage adjustment. Some time prior to September 6 Perry informed Bassett that a question concerning the representation of the respondent's employees still existed despite recognition of the Association, and with the advice of Bassett plans were made to hold an election of the employees on September 6. The method of the election was suggested by Bassett and the National Labor Relations Board form of ballot was used. On the morning of September 6 the respondent posted upon its bulletin hoard a notice of election and at 5 o'clock that afternoon, following-the shut-down of the plant, the employees gathered in the tego room. The meeting was attended by all employees except clerical workers and foremen. Perry addressed the employees, stating that the respondent was in doubt as to what organization represented the majority of the respondent's employees and that he wanted to know who was quali- fied to represent them for the purpose of drawing up an agreement. He directed the employees to enter the main office of the respondent, to receive their ballots, mark their votes, and thereafter deposit the ballots in the ballot box in his private office which adjoined the main office. As the men filed from the tego room into the, respondent's office, each worker took a ballot from a pile placed upon a desk adja- cent to the desk at which was seated George S. Lester, the assistant general manager of the respondent. After marking their ballots the voters filed into Perry's office and deposited them in a sealed box. Present at the ballot box as the ballots were dropped was Irwin Detjen, an office employee, who checked off the voters against the pay-roll list. W. E. Perry acted as tally clerk and was. present in his private office during the balloting and as the ballots were deposited in the ballot box. Acting as clerks of election were Edward Kosticbka, president of the Union, and William Poehls, president of the Associa-. tion. Neither the Union nor the Association had approved or author- ized the election or had authorized their respective presidents to act as election, clerks. Foremen, subforemen, clerical employees and maintenance employees were excluded from voting.. The mimeo- graphed ballots allowed the employees to vote for either labor organiza- tion,or neither. Of the 167 ballots cast, the Association received 110, the Union 45, 6 were in favor of neither, and 6 were void. Thirty- ALGOMA PLYWOOD & VENEER COMPANY 991 four eligible employees did not vote. The next morning the results of the election were posted on the respondent's bulletin board. On the evening of September 6 the Association executive committee met with Perry. The Association objected to many of the wage rates fixed in Perry's proposed adjustment and Perry changed some of these rates. The committee also discussed with Perry certain clauses of an agreement later embodied in a contract. At a meeting held on the evening of September 8 the Association executive committee and the respondent agreed upon the terms of the contract. The contract recognized the Association as exclusive bargaining agency for, the respondent's employees exclusive of supervisory and office workers. The subject of hours of employment was not covered in the contract. The Association requested "a small general raise in pay." Perry refused this request but stated that he would maintain a 48-hour week "as long as he could." He pointed out that owing to the over- time provisions of the Fair Labor Standards Act, this would result ill an increased weekly wage. The Association committee did not press its request for an increase in hourly wages and accepted Perry's proposal, which was not, however, placed in the written contract.' The written contract provided that the parties might negotiate on the subject of a wage schedule before October 10, 1939, but no such nego- tiation took place. The Association committee did not press a demand for seniority, and the contract provided that the matter of seniority rights was "left open for the present." The contract provided for the payment of double time for work performed on Sundays and holidays and also established grievance and arbitration machinery. After little discussion the parties agreed upon what was referred to at the hearing as the "partial closed shop." By this they meant a clause in the contract requiring membership in the Association as a condition of employment for all employees except those hired prior to January 1, 1939, who had not yet joined the Association. The final form of the agreement was drafted by Murphy, the Association's attorney, and was signed by the president and secretary of the Association on Sep- tember 11 and by the respondent on September 12.10 The contract, by its terms, is effective indefinitely, or until either party gives 30 days' notice of cancellation. On November 4, 1939, the respondent paid for the refreshments served at a social gathering sponsored by the Association. Poehls testified that at the Association's request its committee met with Perry a short time before this event took place. According to Poehls, 9 Both Poehls and Andrew Cmeyla testified that they were opposed to incorporating within the agreement any specific wage scale because prices might fluctuate. 10 That the final contract as signed represents a departure from the Association 's demands may be gathered from the minutes of the meeting of the Association's executive committee of August 22, 1939 : The committee discussed terms of a proposed contract to be submitted to the management . The matters discussed were general pay raise and adjustment of wages , closed shop, vacations with pay, lay-offs, the merit system, senior- ity rights , group insurance , grievances, hours, length of term of contract, and so forth. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the course of speaking of some other small matters with regard to funerals and several items of less importance we touched upon this matter of harmony and cooperation and a better feeling among the men. We felt that we should do something about it, and since we were in a position not to offer much to all of the employees we hedged and hinted around, and finally Mr. Perry says, "Well, if that's what you want, if you want a little party for that purpose," he says, "I'll do that, but you must invite everybody, every employee in the factory." Thereafter the Association posted a notice inviting all employees to attend this event. It was preceded by a -regular business meeting of the Association after which the doors were opened to all. 13. The refusal to bargain collectively 1. The appropriate unit At the hearing the parties stipulated that the production and maintenance employees of the respondent at its Algoma, Wisconsin, plant, excluding executives, supervisory employees, and employees on the office staff, constitute a unit appropriate for the' purposes of col- lective bargaining. We find that the production and maintenance employees of the respondent at its Algoma, Wisconsin, plant, exclud- ing executives, supervisory employees, and employees on the office staff, at all times material herein constituted and that they now con- stitute a unit appropriate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that said unit insures to the 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. Designation of the Union by a majority in the appropriate unit The respondent's pay rolls for the period from June 11 to August 5, 1939, in evidence,'contain 220 names. The parties stipulated that 13 persons whose names appear thereon are foremen and that the remaining 207 comprise the appropriate unit. The Board introduced in evidence a list of union members as of June 1939. The list is in the handwriting of Edward Qualman, the Union's financial secretary, who prepared it from the Union's ledger. It contains 145 names. At the hearing Qualman and counsel for the respondent compared the list with the ledger which the Union produced for inspection. Counsel for the respondent did not dispute the identity of the persons on the Union's list as employees of the respondent. He stipulated that with the exception of five men listed as members, ALGOMA PLYWOOD & VENEER COMPANY 993 two of whom were foremen, all others'so listed were "less than six months delinquent in dues or completely paid up." 11 Comparison of the Union's membership list with the respondent's pay rolls indicates that 143 union members were on the pay rolls during the period in question. Of this number nine were foremen 12 and three others were 6 months or more delinquent in their dues in June 1939. There remain 131 members within the unit who had designated the Union as their collective bargaining agency as of June 1939. Of these, two employees were expelled in July; seven became 6 months delinquent in dues on July 31; and five became 6 months in arrears on August 31. Thus the union membership records show that as of the end of August 1939, 1.17 employees within the appro- priate unit continued to be members of the Union. In addition, a petition circulated by members of the Union between July 17 and August 2, 1939, was signed by 11.1 employees within the appropriate unit who requested- that the Union "retain the bargaining rights." While it is true that by the end. of July 1939 a majority of the employees within the unit also designated the Association as collec- tive bargaining agency, we hereinafter find that the Association came into existence as a result of the respondent's unfair labor practices. Acceptance of the Association was not, therefore, the expression of a free choice by the employees and must be disregarded.l3 We find that on June 13, 1939, and at all times thereafter,14 the Union was the duly designated bargaining representative of a ma- jority of the employees in the appropriate unit and that, by virtue of Section 9 (a) of the Act, it- was, on that date and at all times there- after, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain collectively The complaint alleged, and the Trial Examiner found, that the respondent, by the conduct of W. E. Perry at the June 13 conference, refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act. On that date, as we have found above, the 11 The five members in arrears more than 6 months were under the Union's constitution stricken from the membership rolls. 12 The union membership list contained the names of nine individuals who are designated as foremen on the-pay roll and who the parties stipulated were foremen . Although the parties subsequently stipu- lated that the membership list contained the names of only seven foremen , we resolve this contradiction favorably to the respondent , and find that nine foremen were included on the list. 13 Continental Oil Company , a Corporation v. N. L. R. B. (C. C. A. 10), enf'g platter of Continental Oil Company and Oil Workers International Union, 12 N. L. It. B. 789, 808. 14 There is evidence to the effect that membership in the Union fell off after August 1939. We disregard this decline in membership since it occurred after the respondent 's refusal to bargain collectively, here- inafter found, and after the respondent 's sponsorship of an employer-dominated union . See cases cited in footnote 21, infra. 994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union represented a majority,of the employees within the appropriate unit. During the conference Perry remarked, "I might even question your right to represent the majority." The record is clear, however, that the respondent did not dispute the Union's majority status, and that Perry, by the above remark, did not intend to express a serious doubt concerning the Union's majority representation. Since the expiration of the union contract in July 1938, the respondent and the Union were engaged, over a period of 11 months, in a series of confer- ences in an attempt to reach a collective bargaining agreement. In July 1938 and in April 1939 the Union submitted to the respondent a proposed contract which in each instance contained a closed-shop clause. When the July 1938 contract was submitted, Perry did not question the Union's majority status, although he must be deemed to have known that a closed-shop contract was valid under the Act only if the Union represented a majority in the appropriate unit. Indeed, as we have found above, some 2 or 3 weeks.later Perry himself proposed a closed-shop contract. When Perry rejected the closed- shop clause contained in the Union's proposal of April 1939, he did so not on the ground that he questioned the right of the Union to represent a majority, but on the ground that the respondent. favored an open-shop policy. This position was maintained by Perry at the conference held in May 1939 and at the June 13 conference. At the hearing the respondent did not contend that on June 13 Perry dis- puted the Union's majority status. Upon all the evidence we find. that at the June 13 conference the respondent acknowledged that the Union represented a majority of the employees within the appropriate unit. The evidence requires the conclusion that the respondent refused to bargain collectively at the June 13 conference. At that conference the respondent rejected every union demand of any consequence. The sole counterproposal which it offered was the promise unilaterally to adjust individual wage rates, downward as well as upward, as it saw fit. By insisting that the Union be excluded from participation in or discussion of this proposed adjustment, the respondent virtually withdrew the important subject -of wage rates from the field of bar- gaining. Finally, the remark of the respondent's representative that the employees "could like" a wage adjustment thus unilaterally arrived at by the respondent "or quit" indicates a state of mind in- compatible with collective bargaining in good faith. We accordingly find that on June 13 the respondent refused to bargain with- the Union within the meaning of Section 8 (5) of the Act. Subsequent to June 13 the respondent embarked upon a systematic campaign of unfair labor practices directed against the Union. The campaign began with the strike vote held on plant property on June 15, 1939., At this time the Union was the exclusive representative ALGOMA PLYWOOD & VENEER COMPANY 995 of the respondent's employees in an appropriate unit and the respond- ent had negotiated with the Union as such representative. The June 13 conference had revealed that the parties were in serious dis- agreement concerning the Union's demands and on the following day the Union's members had authorized a strike if the respondent refused to enter into an agreement. The Union's strike resolution did not, however, provide for an immediate strike or fix a date for the strike, nor did it foreclose the possibility of reaching an agreement through the processes of negotiation. The respondent instead of seeking to negotiate further with the union representatives in an effort to reach an amicable agreement, or awaiting a request for a further collective bargaining conference, called a meeting of its employees and conducted a strike vote of its own. Although the meeting was called ostensibly at the request of employees who had signed a petition asking for such a meeting, it is clear that the meeting was initiated and sponsored by representatives of the management. As we have shown, foremen and subforemen participated in the circulation of the petition; all employees were ordered by their foremen to attend the meeting, which was held on plant property; the plant was shut down % hour earlier than usual; and the meeting was attended by all the foremen. The conduct of the strike vote by the management under these circumstances, on the day after the union members had authorized a strike, made it clear to the employees that the respondent not only wished them to vote against a strike, but desired also to destroy the Union's influence and representative authority. That this was the respondent's motive was forcibly brought home to the employees by Perry's address which opened the meeting.. We find, as did the Trial Examiner, that the object of Perry's address was to induce the employees to vote against the strike by warning them that unless they did so there would not be enough work in the plant on the following Monday "to keep even a skeleton crew busy." There can be no doubt that the employees grasped this implication. Perry's address was a part of the respond- ent's plan to discredit the Union in the eyes of its own members and other employees at a time when it was attempting to negotiate a new agreement with the respondent. Aside from Perry's remarks, we consider significant the participation of Cmeyla and Kwapil in the meeting. Because of Cmeyla's supervisory functions and because of Kwapil's family relationship with the Perrys, the effect upon the employees of their presence and conduct must have been substantial. It is shown by the evidence discussed above that the respondent's conduct of the strike vote interfered with its employees in the exercise of the rights guaranteed in Section 7 of the Act, and thus constituted an unfair labor practice within the meaning of Section 8 (1). We are of the opinion that the respondent's activities also constituted an 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice within the meaning of Section 8 (5) of the Act. In holding the strike vote the respondent ignored the chosen repre- sentatives of its employees; it undercut the authority of these repre- sentatives by dealing directly with the employees.',' The respondent sought thereby to avoid its obligation to bargain with the Union. Under the circumstances present in the instant case, to find that the. respondent's action in holding the strike vote constituted an unfair labor practice only under Section 8 (1) of the Act would nullify Section 8 (5). So to restrict our findings "would be to hold that the obligation of one provision of the Act may be evaded by the successful violation of another."16 We find, upon all the evidence, that by conducting the strike vote on June 15 the respondent refused to bargain col- lectively with the Union, thereby engaging in an unfair labor practice within the meaning of Section 8 (5) of the Act. Subsequent to June 15 the respondent persisted in its refusal to bargain collectively with the Union. We have found that at the June 28 conference the Union was still requesting that the respondent bargain collectively with it. At this conference the respondent demanded proof that the Union represented a majority of its em- ployees. The Union attempted to convince the respondent that it represented a majority. Its proposal of a comparison of its member- ship ledger with the pay roll was apparently a fair, practicable, and not unduly burdensome method of substantiating its contention. At the conference of June 28 and at the subsequent conferences held on July 6, 7, and 1.3, the respondent refused this offer and insisted on what Bassett termed "current" methods of determining the Union's majority status. By this Bassett meant an election conducted by the Board, a comparison of recently signed authorization cards against the pay roll, a•recently signed petition, or a poll to be conducted by Bassett or a disinterested third party. Each of these methods, seemingly fair and objective on its face, when viewed in the light of the respondent's activities on and after June 15, referred to above, 15 See Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626, enfd, N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert . denied, 304 U. S. 576 ; Matter of Grower-Shipper Vegetable Association of Central California and Fruit and Vegetable Workers' Union of California , No. 18211, 15 N. L. R. B. 322, 347 ; Matter of Washougal Woolen Mills and Local 127, Textile Workers Union ofAmerica , 23 N. L . R. B. 1. In analogous cases we have held that when an employer unilaterally acts with respect to matters which normally are the subject matter of collective bargaining, at a time when the employees ' designated union is attempting to bargain collectively with him,•such action constitutes a violation of the employer's duty under the Act to bargain with the designated union . See Matter of Whittier Mills Company et at. and Textile Workers Organizing Committee, 15 N. L. R. B. 457, 465, enf'd, N. L. R. B. v. Whittier Mills Company, et at., 111 F. (2d) 474 (C. C. A 5); MalterofTheM. H. Ritzwoller Company and Coopers' International Union of North America, Local No. 28, 15 N. L . R. B. 15, 26, curd , The M. H. Ritzwoller Company, a corporation v. N. L. R . B., 114 F . (2d) 432 (C. C. A. 7); Matter of Inland Lini.e and Stone Company and Local No. 877 of the International Union of Mine, ,'fill and Smelter Workers (C. 1. 0.), 24 N. L. R. B ., 758, and cases cited in footnote 19 therein ; Matter of the Louisville Refining Company and International Association , Oil Field, Gas Well and Refinery Workers of America, 4 N. L. R . B. 844 , 859, enf'd as modified in National Labor Relations Board v. The Louisville Refining Company, 102 F. (2d) 678 (C. C. A. 6), cert. denied, 308 U. S. 568. 15 Matter of Missouri, Kansas & Oklahoma Coach Lines and International Association of Machinists, 9 N. L. R. B. 597, 620. ALGOMA PLYWOOD & VENEER COMPANY .997 and the respondent's domination of and interference with the forma- tion and administration of the Association, as found below, takes on a different color. A vote taken pursuant to any one of the respondent's suggestions would reflect the results of the respondent's unfair labor practices. Acceptance of any of these proposals after June 15 would have given the respondent the advantages of its domination and interference with the formation of the Association. Employees participating in any of the methods to determine the question of the Union's majority would be influenced by W. E. Perry's address of June 15 to the employees. Moreover, acceptance of the respondent's proposals after July 13 would have given the respondent the advantage of the increased strength and membership of the Association and of the respondent's evident support thereof. We find, as did the Trial Examiner, that in its negotiations with the Union on and after June 28, the respondent did not attempt to carry out its duty to cooperate in determining who represented its employees, but only sought to obstruct and delay the Union's efforts to bargain for the employees, meanwhile encouraging the organization and growth of the Association. We find that by these acts the respondent refused to bargain collec- tively with the Union within the meaning of Section 8 (5) of the Act. We find, also, that the respondent refused to bargain collectively with the Union on August 17, 1939. On that date, as stated above, the Union presented the respondent with a recently circulated petition signed by 111 employees within the unit who. desired the Union to "retain the bargaining rights." This proof was secured pursuant to the respondent's insistence on "current" methods of showing the Union's majority status. . Although the petition was signed by a majority of the employees within the unit, the respondent took the position that the Union's majority status was not proved,. inasmuch as the so-called "fence riders" had also designated the Association. The Association, as we find below, was a company-dominated. labor organization. Its designations must be deemed to have been secured. as a result of the respondent's unfair labor practices, and hence such designations cannot detract from the Union's proof of. majority repre- sentation on August 17.17 The respondent, therefore, by refusing to recognize the Union on that date 'and by subsequently reaffirming its recognition of the Association, refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act. We find below that the respondent dominated and interfered with the formation and administration of the Association and .contributed -support thereto. The formation of the Association took place im- mediately after the refusal to bargain collectively on June 15. On June 28 and subsequent thereto the respondent, as we have found above, obstructed and delayed the Union's efforts to bargain collee- 17 See footnote 13, supra. 323429-42-64 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively: by insisting on "current" methods of proving its majority status. The resultant delay afforded an opportunity for the growth in,membership of the Association. When the Association, with the respondent's assistance, had obtained sufficient members, the respond- ent granted it exclusive recognition, and subsequently entered into a contract.. During this period, as we have found above, the Union was the exclusive representative of -the employees within the appro- priate unit and was actively asserting its rights as such. We are of the opinion that the formation of the Association, its growth in membership largely as the result of. the stamp of approval placed upon it by the respondent, the recognition of the Association, and the conclusion of the partial closed-shop contract, were moves in. a care- fully executed campaign on the part of the rdspondent to destroy the Union's majority status and to evade its obligation to bargain collec- tively.18 We find that on June 13, 1939, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of its employees in respect to rates of pay, wages, hours of employment, and other conditions of employment. We also find that the respondent, by refusing to bargain collectively with, the Union, and by the other acts above set forth, interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. C. Domination of the Association The record shows that the impetus for the organization- of the Association was furnished by the respondent rather than by its employees. Association President Poehls testified that the Union's strike vote held on June 14 "was the subject . . that lit ,off the whole thing." Although he testified that he had talked about the organization of an inside union a few days previous to this vote, on cross-examination he admitted that leis conversation took place on June 15. Poehls denied that he had discussed the question of or- ganizing an inside union with any officer or supervisory official of the respondent. But he admitted that in conversation with Charles Cmeyla, chief engineer at the plant, he (Poehls) stated: "I don't think it will be long before an independent union will be started." This statement, according to Poehls, was made after the union. strike vote. The record indicates that a strike conducted by the Union at the plant of the Plumbers Woodwork Company, adjoining the re- spondent's plant, in April, May, and June of 1939, was the subject of conversation among some of the respondent's employees. Although 18 See Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, Local- Union 405, Greater New York and Vicinity, 7 N. L. R. B. 537, 551, enf'd as mod., N. L. R. B., v. National Licorice Company, 104 F. (2d) 655, (C. C. A. 2), aff'd as mod., 309 V. S. 350. ALGOMA PLYWOOD & VENEER COMPANY 999 there is evidence that some of the employees expressed dissatisfaction over the way the Union conducted that strike, it is clear from the record, and we find, that prior to the employer-conducted strike vote on June 15 the respondent's employees took no steps to organize an unaffiliated union and-that they did not even discuss such a proposal. Thus the initial proposal to form an unaffiliated union was made by Charles Cmeyla, a supervisory employee. The effect upon the employees of Cmeyla's action was heightened by the fact that it took place immediately following the strike-vote meeting, which was utilized by the respondent, as we have found above, to discredit and attack the Union.. Cmeyla called the meeting on June 16, at.which the Association was formally organized, and secured the presence of Murphy to assist in its organization. Other supervisory employees also attended that meeting. The departure of Cmeyla and the other supervisory employees from the meeting at the suggestion of Murphy did not remove from the Association the stamp of approval placed upon it by the respondent. Nor (lid the respondent, subsequent to June 16, take any action to notify the employees. that its sponsorship of the Association was to be withdrawn. On the contrary, it refused to bargain with the Union although the latter offered a fair and prac- ticable method of proving its majority status. It granted exclusive recognition to the Association although the proof of representation presented by the Association was secured largely as a result of the respondent's sponsorship of that organization. The granting of recognition constituted further support to the Association.19 The respondent appreciated the effect of this move as is evident from Bassett's letter of August 12 to Murphy, quoted above, in which Bassett states: "The publicity given recognition so far has been a great boost to your Association . . ." It is also clear from this letter that the offer to the Union of an opportunity to disprove the Association's majority status was a mere formality, for Bassett characterized the offer as "a gesture in the direction of establishing bona fides in the matter of recognition." After the presentation of proof of representation by both the Union and the Association on, August 17, the respondent proceeded to satisfy, itself that the Asso- ciation's majority status was unimpaired by the "fence riders". who had designated both organizations, by questioning these employees individually. The respondent then reaffirmed its recognition of the Association, thus rendering it further support. The employer-con- ducted election on September 6 cannot be regarded as an expression of the free and independent choice of the employees, especially in view of the circumstances under which the election was held and the pre- ceding events which made plain to -the employees the respondent's 19 See Matter of Foote Brothers Gear and Machine Corporation and United Office and Professional Workers of America, No. 24, 14 N. L. R. B. 1045, 1063. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sponsorship of the Association.20 We find that this election was conducted not, as the respondent assets, because "a question had. arisen . . as to majority representation," but because the re- spondent wished to clothe the Association with the appearance of majority representation. The respondent extended further support to the Association by entering into the partial closed-shop contract and by furnishing the refreshments at the Association social gathering on November 4, 1939. We find that the respondent dominated and interfered with the formation and administration of the Association and contributed financial and other support to it. We also find that by such acts the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. V. THE R.EAIEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which we find is necessary to effectuate the policies of the Act. We have found that the respondent has refused to bargain collec- tively with the Union as the exclusive representative of its employees within the appropriate unit. The record shows that between Sep- tember 30, 1939, and the date of the hearing a large number of union members became delinquent in dues for more than 6 months, thus losing their union membership. This decrease in membership is directly attributable to the respondent's unfair labor practices in re- fusing to bargain collectively with the Union, and in supporting and encouraging the Association. We shall, therefore, disregard it and base our order upon the majority obtaining upon the dates of the re- fusals to bargain and require the respondent, upon request, to bargain collectively with the Union." We have found that the respondent has dominated and interfered with the formation and administration of the Association, and has contributed support thereto. The continued existence of the Asso- ciation thwarts the purposes of the Act and would render ineffective an order to the respondent merely to cease and desist from engaging in unfair labor practices. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference and the effect thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we shall order the respondent to withdraw all recog- 20 See Matter of The Heller Brothers Company of Newcomerstown and International Brotherhood of Black- smiths, Drop Forgers, and Helpers, 7 N. L. R. B. 646, 657 ; Matter of Laird, Schoter Company, Inc. and United Shoe Workers of America , 14 N. L. R. B. 1152, 1155. 21 See N. L. R . B. v. Highland Park Manufacturing Company, 11 0 F. (2d) 632 (C. C. A. 4); The M. 11 Ritzwoller Company, a Corporation v. N. L. R. B, 114 F. (2d) 432 (C. C. A. 7) ALGOMA PLYWOOD & VENEER COMPANY 1001 nition from the Association as the representative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment; and. conditions of work, and completely to disestablish the Association as such'representative.22 The agreement between the respondent and the Association embodies the recognition of the Association as such representative, and represents the fruit of the respondent's unfair labor practices, and a device to perpetuate their effect. We shall order the respondent to cease and desist from giving effect to this contract, as well as any extension, renewal, modification, or supple- ment thereof, and any superseding contract which may now be in force. 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. Local 1521, United Brotherhood of Carpenters and Joiners of America and Algoma Plywood Workers' Association are labor organi- zations, within the meaning of Section 2 (5) of the Act. 2. The production and maintenance employees of the respondent'at its Algoma, Wisconsin, plant, excluding executives, supervisory em- ployees, and employees on the office staff, at.all times material herein constituted and they now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 1521, United Brotherhood of Carpenters and Joiners of America was on June 1.3, 1939, and at all times thereafter has been the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9; (a) of the Act. 4. By refusing, on June 13, 1939, and at all times thereafter, to bargain collectively with Local 1521, United Brotherhood of Car- penters and Joiners of America as the exclusive representative of the employees in such 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 dominating and interfering with the formation and adminis- tration of Algoma Plywood Workers' Association, and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 6. 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. 22 N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261,rev'g 91 F. (2d) 178 (C. C. A. 3). and aff'g Matter of Pennsylvania Greyhound Lines, Inc ., et at., and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 1 N. L. R. B. 1. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) 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, Algoma Plywood & Veneer Company, Algoma, Wisconsin, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 1521., United Brotherhood of Carpenters and Joiners of America as the exclusive representative of the production and maintenance employees of the respondent at its Algoma, Wisconsin, plant, excluding executives, supervisory employees, and employees on the office staff; (b) In any manner dominating or interfering with the administra- tion of -Algoma Plywood Workers' Association, or the formation or administration of any other labor organization of its employees, and from contributing support to Algoma Plywood Workers' Association or to any other labor organization of its employees; (c) Recognizing Algoma Plywood Workers' Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work; (d) Giving effect to its contract with Algoma Plywood Workers' Association, dated September 12, 1939, or to any extension, renewal, modification, or supplement thereof, or to any superseding contract with said Algoma Plywood Workers' Association; (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to, self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Rela- tions Act. 2. Take the following affirmative, action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 1521, United Brotherhood of Carpenters and Joiners of America as the exclusive representative of the production and maintenance employees of the respondent at its Algoma, Wisconsin, plant, excluding executives, supervisory employees, and employees on the office staff, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (b) Withdraw all recognition from Algoma Plywood Workers' ALGOMA PLYWOOD & VENEER COMPANY 1003 Association as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment , or conditions of work, and completely disestablish Algoma Plywood Workers' Associa- tion as such representative; (c) 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), (c), (d), and (e) of this Order, and (2) that the respondent will take the affirmative action set forth in para- graphs 2 (a) and (b) of this Order; (d) Notify the Regional Director for the Twelfth Region in writing within ten (10) days from the date of this Order what steps the re- spondent has taken to comply herewith. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.