Fox River Pattern, Inc.

National Labor Relations Board - Board Decisions

Sep 14, 1972

199 N.L.R.B. 68 (N.L.R.B. 1972)

68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fox River Pattern, Inc.' and Pattern, Mold and Model
Makers' Association of Chicago and Vicinity , Affil-
iated with the Pattern Makers ' League of North
America, AFL-CIO. Case 13-CA-10792
September 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 31, 1972, Trial Examiner Arnold Ord-
man issued the attached Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Respondent, Fox River Pattern, Inc., Aurora, Illinois,
its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's recom-
mended Order.
As amended at the hearing.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Trial Examiner: This case was heard
before me on February 9, 10, and 11, 1972, based on charges
filed August 2 and September 29 and on a complaint issued
by General Counsel on December 30, 1971. The complaint
alleges that Fox River Pattern, Inc.,' Respondent herein,
violated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended, by laying off and later dis-
charging its employee Keith Lambert, by refusing to bar-
gain with Pattern, Mold and Model Makers' Association of
Chicago and Vicinity, affiliated with the Pattern Makers'
League of North America, AFL-CIO, herein called the Un-
ion, and by engaging in other conduct in violation of its
bargaining obligation and the statutory rights of its employ-
1 Stipulated by the parties as the correct name of the Respondent herein.
ees. Respondent's answer denies the commission of the al-
leged unfair labor practices.
Before the hearing opened and at the hearing Respon-
dent pressed motions seeking, in effect, summary dismissal
of the complaint, and/or portions thereof. The content of
these motions, the facts upon which they are predicated,
and their disposition will be set forth hereunder.
Upon the entire record in the case, upon my observa-
tion of the witnesses, and upon consideration of the briefs
filed by General Counsel and by Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is an Illinois corporation located in Auro-
ra, Illinois, where it manufactures patterns, castings, and
molds in metal and wood. Its gross revenues during the past
fiscal year were in excess of $350,000, of which more than
$50,000 worth was derived from goods furnished or services
rendered to firms engaged in interstate commerce. Respon-
dent admits, and I find, that Respondent is an employer
engaged in commerce under Section 2(6) and (7) of the Act.
Respondent further admits, and I find, that the Union
is a labor organization as defined in Section 2(5) of the Act.
11. THE MOTIONS TO DISMISS
A. The Relevant Facts
Immediately upon issuance of the complaint and
thereafter, Respondent pressed motions for summary dis-
missal. Respondent urged, in substance, that it had com-
plied with an earlier informal settlement agreement
disposing of all the matters here in issue, that it had commit-
ted no new unfair labor practices warranting the setting
aside of the settlement agreement, and that valid petitions
for decertification of the Union had been filed which raised
a question concerning representation and negated any fur-
ther obligation on Respondent's part to bargain with the
Union. The relevant facts are, briefly, as follows:
Between 1968 and 1971 Respondent and the Union
were signatories to a collective-bargaining agreement in
which Respondent recognized the Union as exclusive bar-
gaining representative for Respondent's "Pattern Makers
and their Apprentices."2 The agreement, which contained a
union-security clause, terminated as of May 1, 1971, renew-
able from year to year thereafter absent timely notice. Such
a notice was given by letter dated February 26, 1971, from
John Leonardson, business manager of the Union, to Re-
spondent. The letter stated also:
We have, under even date, sent similar notice to the
Pattern Manufacturers' Association of Chicago and
vicinity.
In the past the Independent Shop Owners have awaited
2 The complaint alleges, the answer admits , and I find that , at all times
material herein , all patternmakers and apprentice patternmakers employed
by Respondent , excluding office clerical employees , guards, supervisors, and
all other employees constitute an appropriate unit for purposes of collective
bargaining . In the period under consideration here , February 1971, and
thereafter, the unit consisted of approximately eight employees.
199 NLRB No. 12
FOX RIVER PATTERN, INC. 69
the outcome of our negotiations with the Pattern Man-
ufacturers' Association and have abided by the results
of such negotiations.
If, however, this past practice is not acceptable to you,
we shall be glad to meet with you at your earliest con-
venience to discuss contract changes.
Leonardson received a written reply from Respondent's le-
gal counsel, dated April 21, 1971, advising that Respondent
wished to bargain on an individual basis.
On May 10, 1971, Leonardson wrote to Respondent
enclosing a number of contract proposals. On May 18, 1971,
Leonardson met with Robert Johnson, Respondent's presi-
dent, and his brother, Bill Johnson, for a bargaining session.
A long discussion, later more fully described, took place but
no agreement was reached.
The May 18 meeting was the only negotiation session
held between Respondent and the Union. A further meeting
had been scheduled for August 10, 1971. However, on July
27, 1971, Respondent's employee, John Schmidt, filed a
petition (designated in the Board's records as Case 13-
RD-819) asking that the Union be decertified. Accordingly,
Respondent and the Union agreed to postpone further bar-
gaining negotiations pending the disposition of the decerti-
fication petition.
On August 2, 6 days after the filing of the decertifica-
tion petition, the Union filed its initial unfair labor practice
charge alleging that Respondent had violated Section
8(a)(1) and (3) of the Act by engaging in antiunion conduct
vis-a-vis its employees and by terminating the employment
of Keith Lambert. On September 29, 1971, the Union filed
an amended charge alleging, additionally, a refusal to bar-
gain in violation of Section 8(a)(5) of the Act.
_ No complaint issued, however, because of intervening
settlement efforts. On October 20, 1971, Respondent and
the Union entered into an informal settlement agreement,
approved by the Regional Director of the Board. The settle-
ment agreement contained a "Non-admission" clause in
which Respondent denied the commission of any unfair
labor practices. It further provided, however, that Respon-
dent would, inter alia, refrain from engaging in the improper
conduct in which it was alleged to have engaged, that it
would make Keith Lambert whole for his lost earnings, that
it would make up unpaid contributions to the Union's pen-
sion and welfare funds, and that it would post appropriate
notices. Respondent also undertook in the settlement agree-
ment to bargain collectively with the Union, upon request,
provided that:
the dismissal of the petition in Case 13-RD-819 is
either not appealed, or if appealed is sustained by the
Board and no valid question concerning representation
exists ....
In this connection, the settlement agreement expressly pro-
vided that Respondent "does not admit and specifically
denies that there does not presently exist a question con-
cerning representation and that the petition in Case 13-
RD-819 should be dismissed."
On the following day, October 21, 1971, the Regional
Director dismissed the petition in Case 13-RD-819, as con-
templated by the settlement agreement. On October 29,
1971, the dismissal was appealed to the Board and Respon-
dent filed a brief in support of the appeal. For reasons not
appearing, the Board did not rule on the appeal. Instead, it
remanded the matter to the Regional Director "for further
appropriate action, to wit, either process the instant petition
or proceed to a definitive disposition of the refusal to bar-
gain charge in 13-CA-10792 [the instant unfair labor prac-
tice case]." While the appeal was still pending before the
Board and before the remand, Respondent fulfilled its ob-
ligation under the settlement agreement to make Keith
Lambert whole for lost earnings, to make up its unpaid
contributions to the pension and welfare fund, and to post
notices. Because there had been no final action taken with
respect to the decertification petition as provided in the
settlement agreement, no bargaining negotiations were in-
stituted.
Acting pursuant to the Board's remand, the Regional
Director, on December 30, 1971, withdrew his approval of
the settlement agreement and issued the complaint in the
instant case. On January 7, 1972, a second petition to decer-
tify the Union was filed in Case 13-RD-833. On January
21, 1972, Respondent filed its motion, already described, to
dismiss the complaint, and thereafter filed its answer to the
complaint. On January 26, 1972, the Regional Director dis-
missed the petition in Case 13-RD-833 and also the petition
in Case 13-RD-819 which he had previously dismissed. On
February 2, 1972, these dismissals were in turn appealed to
the Board. On the morning of February 9, 1972, a few hours
before the instant hearing opened, the Board ruled on the
appeals and sustained the Regional Director' s dismissals?
At the instant hearing the Union reiterated its contin-
uing desire to bargain with Respondent. Respondent took
the position it no longer had any obligation to bargain.
The foregoing facts are undisputed.
B. Analysis and Disposition of Respondent's
Motions To Dismiss
As already noted, Respondent's motion to dismiss the
instant proceeding has several facets. Respondent's primary
contention is that the issues presented,in the instant com-
plaint were resolved by the settlement agreement of October
20, 1971, that Respondent complied fully with the terms of
that settlement agreement prior to its revocation by the
Regional Director, and that it has committed no new unfair
labor practices-indeed, no new unfair labor practices are
even alleged. Accordingly, Respondent argues that the Re-
gional Director was precluded, under well-established prin-
ciples, from setting aside the settlement agreement and that
further proceedings herein are barred. Respondent cites
cases in support of the principle that absent new and inde-
pendent unfair labor practices, "a duly executed settlement
agreement must be honored, if the Board's settlement pro-
cedures have any meaning, unless the respondent's conduct
demonstrates that the agreement has failed of its purpose."
Jackson Manufacturing Company, 129 NLRB 460, 462
(1960). Accord: United Dairy Co., 146 NLRB 187, 189
(1964). And see N.LR.B. v. Tennessee Packers, Inc., 390
F.2d 787 (C.A. 6, 1968).
3 Under the explicit terms of the October 20 settlement agreement,
Respondent's obligation to bargain with the Union, upon request, would
have been activated by the Board 's ruling of February 9 sustaining the
dismissals However, as noted , the Regional Director had withdrawn his
approval of the settlement agreement on December 30, 1971
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel, on the other hand, argues that a set-
tlement agreement does not constitute a bar to an unfair
labor practice proceeding on the same matter. In support of
this proposition, General Counsel cites N.L.R.B. v. Lake
Superior Lumber Co., 167 F.2d 147 (C.A. 6, 1948), where the
court said at 150:
... Section 10(a) of the Act ... provides that the Board
shall have exclusive power to prevent any person from
engaging in any unfair labor practice, which power
"shall not be affected by any other means of adjust-
ment or prevention that has been or may be established
by agreement, code, law, or otherwise." Although set-
tlement agreements approved by the Board should be
and usually are respected by it as a matter of policy yet
the Board is not barred or estopped thereby as a matter
of law from later proceeding under the Act. Wallace
Corp. v. N.L.R.B., 323 U.S. 248, 254... .
Accord: N.L.R.B. v. Zimnox Coal Company, 336 F.2d 516,
517 (C.A. 6, 1964).
The respective authorities cited by the parties are not
antithetical. There is no absolute bar to setting aside a settle-
ment agreement and processing unfair labor practice
charged in the same matter. Yet, it is equally true that the
Board "as a matter of policy" has respected settlement
agreements. The line of demarcation is plain. The design
and the desirability of a settlement agreement is to lay dis-
puted matters to rest. In a labor relations context, it is to
restore, as effectively and expeditiously as possible, the la-
bor peace which is the purpose of the Act to achieve. Where
the settlement agreement achieves this end, it would be a
disservice to the parties involved and to the policies of the
Act to set aside a settlement agreement and resuscitate a
dispute which has already been laid to rest. But this is true
only where the dispute has been effectively laid to rest.
Where, because of new and independent unfair labor prac-
tices, or for other reasons, the settlement agreement "has
failed of its purpose" (Jackson Manufacturing Company, su-
pra), there is no estoppel to further Board proceedings. Wal-
lace Corporation v. N.L.R.B., 323 U.S. 248, 254 (1944).'
In my view the settlement agreement here has failed of
its purpose. The unfair labor practice charges upon which
the settlement was predicated alleged, inter alia, that Re-
spondent had discriminatorily discharged an employee, had
unlawfully withheld payments to a pension and welfare
fund, and by this and other conduct, had refused to bargain
with the Union. Apart from the "non-admission" clause,
Respondent did undertake in the settlement agreement to
make the discharged employee whole and to make restitu-
tion to the pension and welfare fund, undertakings which
the Respondent, as already noted, fulfilled. But on the crit-
° We may put to one side for purposes of the case General Counsel's
suggestion that the Board would not be estopped in any event because in the
instant case, unlike others relied on, the Board never put its own imprimatur
on the settlement agreement. As noted, no complaint had yet issued, Board
jurisdiction did not attach, and the power to approve or disapprove the
settlement lay solely, under the statutory separation of powers, with the
Regional Director and the General Counsel, as indeed, the face of the settle-
ment agreement indicates On the other hand , under the same separation of
powers the General Counsel cannot in the circumstances here presented
mandate the Board to assert its jurisdiction without regard to the settlement
agreement That choice is for the Board
ical issue of Respondent's alleged refusal to bargain, the
agreement, for reasons beyond the control of the parties,
was not and could not be consummated. As already stated,
Respondent conditioned its willingness to bargain upon fi-
nal dismissal of the pending decertification petition. The
face of the settlement agreement contemplated the dismissal
of the decertification petition or, alternatively, the pro-
cessing of that petition. If the Board, on appeal, sustained
the Regional Director's dismissal of the petition, Respon-
dent would have been obligated to bargain under the terms
of the settlement agreement. If the Board, on the other
hand, reversed the Regional Director, the decertification
petition would have been processed and the question con-
cerning representation duly resolved. The Board did neither
and, instead, remanded the matter to Regional Director.
Fault is not, and cannot on the basis of this record be,
assigned in this regard. But the fact remains that the Board's
action left the critical question concerning representation
which lay at the heart of this controversy unresolved and,
to that extent, frustrated the scheme of the settlement agree-
ment. For the Board to abstain in these circumstances from
asserting its jurisdiction to resolve the continuing controver-
sy would be to compound and prolong the controversy
which the settlement agreement was designed to resolve but
for reasons beyond the control of the parties failed to re-
solve.
Under all these circumstances I conclude and find that
the settlement agreement, to the extent the question con-
cerning representation was not resolved, failed of its pur-
pose, was properly set aside, and does not constitute a bar
to the present proceeding.
Respondent argues further that in any event it was
relieved of its duty to bargain because of the pendency of
the decertification petition in Case 13-RD-819 and the later
petition in Case 13-RD-833. In essence, it is Respondent's
position that in the absence of unremedied unfair labor
practices an employer cannot be required to bargain with a
union, even an established union, in the face of a decertifi-
cation petition (Respondent's Memorandum In Support of
Motion to Dismiss Complaint, p. 6, et seq.). As a proposition
of law, the statement is not wholly accurate. The Board,
quite recently, had occasion to reaffirm the principle that
the "mere filing of a decertification petition does not pro-
vide sufficient grounds for doubting an incumbent union's
representative status, since such a petition need only be
supported by 30 percent of the employees in a bargaining
unit." GAF Corporation, 195 NLRB No. 11.5 Moreover,
Respondent's contention is also vulnerable on its face since
it is correctly premised on the absence of "unremedied un-
fair labor practices" and cases are legion that the filing of
a decertification petition will not serve as exoneration for an
antecedent wrongful refusal to bargain. See, e.g., N.L.R.B.
v. Gissel Packing Company, 395 U.S. 575, 600 (1969); Win-
demuller Electric, Inc., 180 NLRB 686, fn. 1 (1970).
This was precisely the situation here. The Regional
Director, pursuant to the Board's remand, was required to
determine whether to process the decertification petition or
proceed to complaint in the unfair labor practice proceed-
5 The Board added the comment that "a petition filed by an uncoerced
majority of the unit employees may establish such a basis," but Respondent
does not urge that such a situation existed here
FOX RIVER PATTERN, INC. 71
ing. Prerequisite to that determination was a decision as to
whether the decertification petition presented a question
concerning representation which could best be resolved by
an election, or whether that route was foreclosed because
Respondent had engaged in prior unfair labor practices
including a refusal to bargain, as stated in the Union's un-
fair labor practice charge. Pursuant to the investigatory and
prosecutory responsibilities under Section 3(d) of the Act,
the Regional Director found merit in the unfair labor prac-
tice allegations of the charge and issued a complaint. Im-
plicit in this determination was the conclusion that no
question concerning representation existed and, according-
ly, the Regional Director dismissed the decertification peti-
tions,6 a dismissal which, this time, the Board on appeal
sustained.
It follows, and I find, that the decertification petitions
filed herein do not bar the instant unfair labor practice
proceeding.? Needless to add, the Regional Director's deter-
mination is not binding upon the Board as to whether the
alleged unfair labor practices actually occurred. That will be
finally determined on the basis of the record in this proceed-
ing.
In addition to seeking summary dismissal of the entire
complaint, Respondent asked separately for dismissal of the
8(a)(1) and (3) allegations of the complaint on the ground
that the actions alleged in that regard had been fully reme-
died by the settlement agreement and the payments made
and other action taken by Respondent in compliance with
that agreement. The short answer to this otherwise appeal-
ing position is that these allegations are essential compo-
nents of the refusal to bargain portion of the complaint (see
par. VI); and Respondent in the settlement agreement itself,
in its answer to the complaint, and at the hearing denied
that it had engaged in the alleged unlawful conduct. In view
of Respondent's position, to grant the motion to dismiss the
8(a)(1) and (3) allegations of the complaint would be to
deny General Counsel his right and opportunity to litigate
fully the refusal to bargain allegation. Respondent's request
must be, and is hereby, denied.'
III THE ALLEGED UNFAIR LABOR PRACTICES
The evidence relating to the unfair labor practices
6It is noteworthy that the Regional Director in this instance reached the
same conclusion which he had reached when he had initially dismissed the
petition in Case 13-RD-819.
7 Respondent can draw no comfort from the Trial Examiner 's decision in
Telautograph Corporation, Case 29-CA-2180. In that case, unlike the instant
case, the Regional Director determined , after hearing that a question con-
cerning representation did exist and the record was also devoid of any allega-
tions of unremedied employer unfair labor practices
8 Respondent , upon denial of the foregoing motions, asked for restitution
of the funds it had already paid out pursuant to the settlement agreement
In part, the prejudice to Respondent flows from its own election to enter into
a settlement without litigating the issue of liability, which it denies, and in
part it flows from Respondent 's otherwise commendable effort to make the
payments in question before the final disposition of the decertification peti-
tion which was pivotal to the consummation of the settlement agreement In
any event , even assuming some prejudice to Respondent , the funds in ques-
tion have been paid over to Keith Lambert and to the Pension Fund and this
tribunal is without authority to direct restitution However, this ruling is
without prejudice to the rights , if any, which may accrue to Respondent to
obtain restitution before an appropriate tribunal Compare N L R B v Spre-
wak, et al, 179 F 2d 695, 698 (C A. 3, 1950).
alleged in the complaint derives largely from the testimony
of three witnesses: Keith Lambert, an employee who was
alleged to have been discriminatorily laid off and later dis-
charged; Robert K. Johnson, president of Respondent; and
John Leonardson, business agent for the Union. Their testi-
mony, with occasional reference as relevant to other evi-
dence of record, is summarized hereunder.
A. The Testimony of Keith Lambert
Keith Lambert, a metal pattemmaker, had been em-
ployed by Respondent for about 13 years. He was an active
member of the Union and on May 3, 1971, became chair-
man of the Union's Aurora branch, following the resigna-
tion of Donel L. Hale, a fellow employee, from that post.
Lambert testified on direct examination for General
Counsel that in early March 1971, Respondent's president,
Robert L. Johnson, told him that Respondent had received
a contract renewal notice from the Union and that Johnson
did not intend to run a umon shop if he could help it. In
another conversation on or about March 24, 1971, Johnson
told Lambert that business conditions were quite rough,
work was hard to come by, and if the employees would quit
the Union, "both the shop and the union could earn more
money, be better off." Iri a similar conversation a few weeks
later, Johnson stated to Lambert that he no longer wanted
to run a union shop, and if he were forced to sign a union
contract, he would almost be forced to run out of work for
the union help.
In an interchange between Johnson and Lambert on or
about April 15, the conversation, according to Lambert,
took a different tack. Johnson said that he had offered to
sell Donel Hale 10 percent of the company stock and that,
contingent on the approval of his brother, Bill Johnson, who
was away on vacation, Lambert would be afforded the same
opportunity. Both offers were conditioned, however, on the
offerees' withdrawal from the Union .9
On or about May 1, 1971, Johnson told Lambert that
the contract with the Union expired May 1, that Respon-
dent had discontinued its payments to the Union's welfare
and pension fund, and that Respondent was prepared to set
up its own program when and if the employees quit the
Union.10
On May 5, 1971, 2 days after a umon meeting at which
Donel Hale resigned his chairmanship of the Aurora branch
and Lambert succeeded to that post, Lambert was laid off.
9 Donel Hale testified under subpena that Respondent had made several
offers to sell him company stock, that he accepted the most recent offer in
May 1971 and was making payments on a 10-percent stock interest , that at
the time he was a member of the Union and chairman of its Aurora branch;
and that, upon accepting the offer, he resigned from the chairmanship and
dropped his union membership Hale initially denied emphatically that John-
son had conditioned the stock offer on his resignation from the Union Hale
was then confronted with an affidavit he had executed on September 9, 1971,
5 months earlier In the affidavit Hale stated, "Johnson did not tell me I
would have to drop out of the union if I bought the stock in the company.
He might have said I couldn't be a member of management and the union
at the same time." When recalled as a witness for Respondent, Hale's last
word on this subject was that he could not really "swear" whether Johnson
did or did not tell him to drop out of the Union
10 The parties stipulated that Respondent discontinued the payments in
question beginning May II and ending October 11, 1971 As already noted,
Respondent made restitution for these missed payments pursuant to the
October 20 settlement agreement.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lambert testified that he had come to the plant office to get
another assignment, having finished the job he was working
on-this was customary procedure-that Johnson told him
there was no more work for him at that time; and that he
would be laid off until work became available at which time
he would be called back. Lambert was the only employee
laid off and at the time was senior in years of service to all
the other employees.
Lambert returned to work on May 24 pursuant to
Respondent's call several days earlier asking him to return.
A few days later, according to Lambert, Johnson told him
that part of the reason was to teach him what it was like to
be out of work, that Lambert was the most prounion man
in the shop and the hardest to convince to drop out of the
Union. There was also an interchange at this time relating
to the fact that Lambert had elected to take unemployment
compensation for the period of his layoff rather than use his
vacation time for that purpose.
The next event of importance, according to Lambert,
was a meeting in Johnson's office on June 4, 1971, imme-
diately after working hours. This meeting, which followed
by about 2 weeks the negotiating session of May 18 between
Johnson and Leonardson, was attended by Robert Johnson
and his brother, Bill Johnson, and by several of the employ-
ees including Lambert. As Lambert related the sequence of
events at the meeting, Robert Johnson did virtually all the
talking for management . He asked each employee present
what he thought he was worth and why. Some of the men
replied. Johnson noted that the metalworkers were easy to
replace and were probably getting too much money. Then
Johnson outlined the terms of employment he felt he could
give the employees if and when they dropped the Union.
These included a 35-cent-per-hour increase rather than the
60-cent increase the Union was asking; a 2-week vacation
instead of a 3-week vacation; holiday pay to be paid as the
holidays occurred rather than quarterly; and certain im-
provements in the employees' insurance coverage. Johnson
then asked each employee individually whether he would
accept the proposal. Some of the employees responded af-
firmatively but Lambert asked for time to make his deci-
sion . In response to a question whether Respondent would
sign a contract, Johnson replied that if the employees drop-
ped the Union, a contract was not needed.
During the next few weeks Johnson, according to Lam-
bert, pressed Lambert for his decision on the June 4 propos-
al, indicating on one occasion that the delay was prejudicial
to the employees in the matter of insurance coverage and
pension payments. The last such incident occurred on June
16, 1971, when Lambert came to the office for a new job
assignment . Johnson again asked Lambert whether Lam-
bert would accept Johnson's June 4 proposal. Lambert re-
plied that he had decided not to quit the Union. Johnson
then told Lambert that Lambert might as well pick up his
tools and leave. Lambert did.
Lambert was extensively cross-examined. He acknowl-
edged that in his affidavit furnished to a Board investigator
on August 9, 1971, relating to the events under considera-
tion here, there was no reference to the two conversations
with Johnson in March 1971, already set forth herein, and
also no reference to Johnson's statement on or about May
1 that Respondent would set up its own welfare and pension
program if the employees quit the Union. Lambert also
acknowledged that when Johnson offered to sell him com-
pany stock, Johnson did mention that Respondent had for
years been contemplating a method for perpetuating the
business by bringing employees into an ownership status by
selling them a stock interest.
Lambert also testified on cross-examination that at the
time of his May 5 layoff there was little, if any, metal work
available in the shop. With reference to the June 4 meeting
between Johnson and the employees, Lambert testified that
Johnson, in addition to outlining his proposals to the em-
ployees, also discussed economic conditions in the industry,
and further testified that Johnson might have outlined the
proposals and counterproposals made at the May 18 nego-
tiation session with Leonardson.
B. The Testimony of Robert Johnson
Robert Johnson's testimony, summarized hereunder,
is in several respects in conflict with the testimony of Keith
Lambert. Asked whether he had ever made a statement to
Lambert that if the employees left the Union, things would
be better, Johnson replied, "No, I don't think I ever made
that statement." Johnson also testified that he could not
recall telling Lambert at any time that he no longer wanted
to run the plant with a union contract. On the other hand,
on cross-examination by General Counsel, Johnson testi-
fied that he had told Lambert at one time that "I wished to
hell they'd drop out of the Union and get this thing over
with."
Johnson confirmed that he had offered Lambert a 10-
percent interest in the company stock subject to his
brother's approval, but denied that the offer was condi-
tioned on Lambert's withdrawal from the Union. According
to Johnson, the sole motivation for the offer was
Respondent's desire to insure perpetuation of the business
by bringing employees into an ownership capacity. Johnson
testifed that he selected Lambert because "he is a very good
worker, very conscientious worker, very efficient worker."
Johnson said the same considerations motivated a stock
offer to employee Hale and an earlier offer to Aldridge.
Employee Wickman also was given a stock offer."
With respect to his June 4 meeting with the employees,
Johnson explained that such meetings were unusual. Ac-
cording to Johnson, a union meeting had been held before
June 4 among the employees and Johnson had inquired of
employees "what the heck had happened" there. Johnson
testified that he was told the employees knew nothing of
Respondent's proposals, that they were told merely that
Johnson "likes to gripe" and would eventually sign the un-
ion contract. Johnson stated that he responded to the em-
ployees that he had no chance of negotiating, that the Union
would make him sign the contract or else, and that he fur-
ther told the employees, "I don't know why the hell you just
don't drop out and get it over with." According to Johnson,
several of the employees then asked for a meeting with
Johnson to find out what was going on in the bargaining
11 Aldridge, a supervisor, withdrew from the Union when he purchased his
stock . Employee Hale , as already noted, resigned from the chairmanship of
the Union's Aurora branch and dropped his union membership.
FOX RIVER PATTERN, INC. 73
negotiations between Respondent and the Union and John-
son scheduled the meeting of June 4.
Johnson's account of the June 4 meeting was not too
different from that given by Lambert. Johnson stressed, he
testified, Respondent's right to sign or not to sign a contract
and the employees' right to communicate their views to the
Union. Johnson confirmed that he had discussed wages at
the meeting and that he had asked the employees individ-
ually what each wanted in wages and what each thought he
was worth. Johnson denied having said that metal pattern-
makers could be easily replaced but admitted having said
that the type of work the metal patternmakers were actually
doing could be performed by tool-and-die makers or ma-
chinists at a much lower rate of pay. Johnson corroborated
Lambert's testimony that he, Johnson, had discussed
Respondent's proposal concerning holiday pay, and modifi-
cations in the insurance plan, and in the welfare and pen-
sion schemes . Johnson also admitted talking to the
employees about what he was prepared to offer them if there
were no union. Specifically, Johnson testified:
I didn't offer anything to the men. When they asked me
what I would do if I didn't have a union or if the union
won't give us a contract, whatever the whys and
wherefores were, I told the men I can't discuss the
details of what they would get. All I could do was give
them something comparable which everyone would be sat-
isfied with. [Emphasis supplied.]
With respect to Lambert's layoff and subsequent termi-
nation Johnson said the May 5 layoff was for lack of work.
Johnson denied later telling Lambert that the layoff was to
teach Lambert a lesson because he was the most prounion
man in the shop. Johnson said he merely noted his unhappi-
ness that Lambert had put in a claim for unemployment
compensation rather than utilize his vacation time as John-
son had suggested. Johnson confirmed that he had recalled
Lambert to work after the May 5 layoff, and that during this
period he had several conversations with Lambert relating
to whether Lambert would quit his job to go into the con-
tracting business with a friend. On June 16, according to
Johnson, Lambert came into the office for another job as-
signment and Johnson stated that no work was available. In
the ensuing conversation, Johnson testified, Lambert said
he had a job lined up with his friend and could go to work
anytime. Johnson then responded, "Well, as long as there
isn't anything to do here, now would be as good a time as
any to leave.."12 Johnson denied asking Lambert at this or
any other time whether Lambert had decided to quit the
Union.13
12 Lambert, recalled as a rebuttal witness, agreed that he had had a discus-
sion with Johnson on June 16 about lining up a new job . But Lambert
testified that this discussion was after Johnson had told him to pick up his
tools and leave. According to Lambert, he told Johnson that he had arranged
to work for his contractor friend when work was available In fact, Lambert
did work for his friend in June and July on a part-time basis at $4 per hour
compared with the $6 .90 hourly rate Respondent was paying him. Some time
thereafter Lambert returned to Respondent 's employ. On September 3, 1971,
however, Lambert voluntarily quit.
13 Donel Hale testified that he saw Lambert picking up his tools on the day
in question , and that in response to his inquiry Lambert stated he had quit;
that there was no more work to be done ; that this was just as good a time
as any, and that he had something lined up to build houses for a fellow.
C. The Testimony Concerning the May 18, 1971,
Bargaining Meeting
John Leonardson, union business agent, and Robert
Johnson were the respective protagonists for the Union and
Respondent at the May 18 meeting, the only bargaining
session held between the parties. The only other person
present was Robert Johnson's brother, Bill Johnson, who
participated minimally and was not called to testify.
Respondent had already been furnished with a copy of
the Union's contract proposals when Leonardson called,
Robert Johnson to arrange the bargaining meeting. Accord-
ing to Leonardson, Johnson initially expressed some reluc-
tance to meet, indicating that he had decided to follow a
different route, but finally Johnson acceded to
Leonardson's request for a face-to-face meeting.
The meeting was held at 3 p.m. in Johnson's office.
Leonardson testified that before the parties were even se-
ated Johnson indicated that he was really not interested in
talking about a new contract because he was not about to
sign a new contract. Johnson further stated, according to
Leonardson, "I want to get you fellows the hell out of here.
I don't mean you, I mean the union." Johnson explained
that Respondent had for some time been considering run-
ning the business as an owner-operated shop without any
employees. Johnson further stated, according to Leonard-
son, that business was not good, that the union proposals
which he had received were going to be too costly, and that
the owner-operated business Respondent was contem-
plating would be more economical. While initially reluctant
to discuss specific proposals, Leonardson testified, Johnson
did at Leonardson's insistence discuss wages and other con-
ditions such as vacations, paid holidays, and welfare provi-
sions including insurance and pension fund proposals.
Essentially, Johnson's position with respect to these several
items , according to Leonardson, was that the union propos-
als were either too costly or, as in the case of holidays and
vacations, not adapted to the needs of Respondent's busi-
ness. With respect to welfare provisions, hospitalization,
sick benefits, life insurance, and pension provisions, John-
son suggested that on the basis of his talks with experts he
could himself duplicate exactly what the union contract
provided. Leonardson testified that he presented counter-
arguments to Johnson's presentations. But it was apparent
that the parties were not in agreement at this meeting and
Leonardson so noted. Johnson agreed.
Because the hour was late, Leonardson prepared to
leave. Leonardson testified that he made a comment to the
effect, "I'll be seeing you" and Johnson replied, "I don't
know what for." According to Leonardson, he "jokingly"
said to Johnson, "You mean, you would throw me out if I
come back?" Johnson replied, "Oh, no, not that."
Johnson's version of the meeting of May 18 differed in
some particulars from Leonardson's version. Johnson indi-
cated, contrary to Leonardson, that he wanted to meet with
Leonardson and that he wanted to negotiate his own con-
tract. Johnson confirmed that he and Leonardson had dis-
cussed all the points Johnson was "at odds with." According
to Johnson, Leonardson was in sympathy with Respondent
but stated that he could do nothing about it, that his job was
to submit what the employees wanted, but that he and John-
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son would work out a contract . Johnson testified that at the
conclusion of the meeting he said "in a joking fashion" to
Leonardson , "It looks to me like the only [sic] I get what I
want is to get rid of you."
Johnson denied stating to Leonardson that he had no
intention of signing a union contract or that his sole inten-
tion was to get the Union out.
D. Analysis and Disposition of the
Evidentiary Issues
As the foregoing summary of the evidence reveals,
there are testimonial conflicts in,several areas. This is hardly
surprising inasmuch as we are dealing here with numerous
conversations between Lambert and Johnson extending
over a period of several months and with two long meetings;
one, the May 18 bargaining session between Leonardson
and Johnson , and the other , the June 4 meeting between
Johnson and the employees . I believe the three critical wit-
nesses-Lambert, Johnson , and Leonardson-were on the
whole making a commendable effort , notwithstanding a
natural self-interest , to narrate faithfully their recollections
as to these matters. That their recollections vary somewhat
is not surprising . What is significant , however , is that the
testimonial differences are often more semantic than real,
more a matter of emphasis than substantive content.
It would serve no useful purpose , in my view , to resolve
the testimonial differences as to each of the many conversa-
tions between Johnson and Lambert . Lambert recalled that
Johnson had emphasized his adamant opposition to enter-
mg into a union contract , his conviction that if the employ-
ees quit the Union they would be better off, and that if
Respondent were forced to sign a contract work would "run
out" for the union employees . Johnson denied or could not
recall making the statements attributed to him. On the other
hand , Johnson did recall telling Lambert at one time that
"I wish to hell they 'd drop out of the Union and get this
thing over with." Johnson admittedly used almost the same
language when , as he testified , he talked to his employees
before the June 4 meeting . His words then were , "I don't
know why the hell youjust don't drop out of the Union and
get it over with ." In the light of all this testimony , including
Johnson 's own admissions , I am satisfied , and I find that,
whatever the precise words used , Johnson made clear to
Lambert , and indeed to other employees, that he did not
want the Union , that the employees should drop the Union,
that they would be prejudiced if they remained with the
Union, and would be better off without it.
This finding is reinforced when we consider the stock
offers. I credit Johnson's testimony that he had for some
years contemplated a changeover in Respondent's opera-
tions to make it an owner-operated business and that a few
years earlier he had sold a 10 -percent interest in the business
to Aldridge , a supervisor in Respondent 's employ. I am
satisfied , however , that this idea had become dormant and
that Johnson suddenly seized upon and revived it in order
to frustrate the Union 's effort to obtain a new collective-
bargaining agreement . The timing of the offers could not
have been wholly coincidental especially in view of
Johnson 's admitted and contemporaneous assertions that
he saw an "owner-operated" business as an alternative to a
union contract.
Lambert testified that the stock offers to him and to
Hale were conditioned on their dropping out of the Union.
Hale could not recall and vacillated as to whether Johnson
did or did not tell him that stock ownership and union
membership were incompatible . Wickman did not testify.
Johnson denied that he had conditioned the stock offers.
Yet it is clear that Aldridge had dropped his membership,
that Hale did so also , and that the tentative stock offer to
Lambert who refused to drop his membership never ma-
tured. On the whole record I am satisfied , and I find, that
explicit or implicit in Johnson 's stock offers was the require-
ment that the offerees drop their union membership.
It is in this context also that the bargaining session of
May 18 between Leonardson and Johnson must be ap-
praised . As already noted, Johnson testified that he told
Leonardson he wanted to meet to negotiate his own con-
tract and that he discussed all the points in the Union's
proposal with which he was at odds. According to Johnson,
Leonardson was sympathetic but insisted on the Union's
proposals. On the other hand, on Johnson 's own version
Leonardson said that they could work out their contract
problems. Nevertheless , at the end of the meeting Johnson
admittedly told Leonardson that it looked like the only way
Johnson could get what he wanted is "to get rid of you."
Asked by his counsel whether this was said "in a joking
fashion ," Johnson replied, "Yes, I would say so."
Leonardson testified , however, that Johnson was ini-
tially reluctant to meet at all, that Johnson's remark about
getting the Union out was made at the outset of the meeting,
that he was not about to sign a new contract , and that he
had for some time been contemplating running the plant as
an owner-operated shop without any employees. According
to Leonardson, at the end of the meeting in which proposals
and counterproposals were discussed , Leonardson prepared
to take his leave with the comment that he would see John-
son again and Johnson responded, "I don 't know what for."
Appraising this testimony against the background of
record including Johnson' s repeated statements about get-
ting rid of the Union and his efforts by stock offers to enlist
the support of Lambert, Hale, and Wickman , I find that
Johnson's participation in the meeting of May 18 did not
meet the standards of good-faith bargaining . I find that
Johnson in effect rejected Leonardson's suggestion, which
Johnson acknowledged, that they could work out a con-
tract, and that Johnson' s bargaining position was really
fixed by his position expressed either at the beginning of the
meeting according to Leonardson or at the end of the meet-
ing according to Johnson that the answer to Respondent's
problem lay in getting rid of the Union. The record estab-
lishes in my view that Johnson did not enter into, or conduct
the negotiations at, the meeting of May 18 with the intention
of reaching an agreement.
This conclusion is fortified by a review of Respondent's
conduct after the May 18 meeting . Within a few weeks
thereafter Johnson admittedly inquired of employees "what
the heck had happened" at a union meeting . He testified
further that he was told the employees had not been in-
formed of Respondent's proposals. It was at this point,
Johnson said, that he told the employees they ought to drop
out of the Union and get it over with. Johnson then sched-
FOX RIVER PATTERN , INC. 75
uled the meeting of June 4 with the employees , an unusual
practice, as he acknowledged , which came about because,
he said , the employees asked for such a meeting. On the
basis of Johnson's own testimony and even without regard
to Lambert 's testimony already summarized , it appears that
Johnson discussed with the employees the Union 's propos-
als and his counterproposals . Johnson also admitted asking
the employees individually-no union representative was
present-what each employee wanted in wages and what
each thought he was worth . Johnson denied stating to the
employees that metal patternmakers could be easily re-
placed but admitting saying that the type of work the metal
patternworkers were doing could be performed by tool-and-
die makers or machinists at a lower rate of pay . Finally,
Johnson vouchsafed that he had told the employees in gen-
eral terms what he was prepared to offer them in the way
of terms and conditions of employment absent the Union.
Johnson sought to justify this conduct on the basis that the
employees had asked him for this information.
It is apparent, therefore , and I find , on the basis of
Johnson's own testimony and without regard to Lambert's
testimony which was even stronger , that Johnson on June
4 engaged in individual bargaining with the employees with-
out the presence of the Union as their designated represent-
ative , and otherwise pressured the employees to dissuade
them from their union affiliation.
Remaining for consideration is the evidence relating to
the layoff of Keith Lambert on May 5, 1971, and his subse-
quent discharge on June 16, 1971. Lambert 's May 5 layoff
came about when he finished the job he was working on and
he reported to Johnson for another assignment . Johnson
told Lambert there was no other job available and Lambert
was laid off . Lambert was recalled a few weeks later and
reported back on May 24.
The record is clear that this was a very slow period in
Respondent's business and Lambert 's own testimony indi-
cates that there was little , if any, metal pattern work avail-
able on May 5. It appears , also, however , that Keith
Lambert was the most senior of the employees in
Respondent 's employ, that layoffs were unusual , and that
Johnson regarded Lambert as a highly competent workman.
These circumstances are not wholly dispositive of the issue.
Lambert's basic expertise was on his own admission as a
metal patternworker , most of that work was done by Lam-
bert and one other employee , Franz Lais , and at the time
of the May 5 layoff Lais was already working on the only
metal patternjob left in the shop . So far as appears, Respon-
dent did not apply a rule of seniority with respect to layoffs.
Significant evidence in this regard , however , flows from
Lambert 's testimony that on or about May 28, a few days
after his return to work , Johnson told him that part of the
reason for the May 5 layoff was to teach Lambert what it
was like to be out of work , that Lambert was the most
prounion man in the shop and the hardest to convince to get
out of the union.
Johnson denied making these statements and said that
the only subject matter discussed at the time was Johnson's
disappointment that Lambert had elected to collect unem-
ployment compensation for the period of his layoff rather
than use his vacation time for that period. Lambert also
recalled discussing this matter with Johnson.
In view of Johnson 's other conduct and statements, I
have no question that Johnson was aware of Lambert's
stong union attachments and that he was disappointed that
Lambert-and for that matter all the other employees-did
not drop out of the Union . I am also persuaded that because
of this attitude Johnson may well have expressed sentiments
akin to those Lambert ascribed to him. Yet I am satisfied
that the real reason for the May 5 layoff was the lack of
work . Johnson did not make reference to Lambert 's union
sympathies at the time of the layoff. On the contrary , he told
Lambert at the time , as Lambert testified , that he would call
Lambert back when work became available and , in fact, did
so. I find a lack of probative evidence to establish that the
May 5 layoff was discriminatorily motivated.
The June 16 discharge was of a different character.
Essentially , it arose from a similar situation . Lambert had
again run out of work and asked for a new assignment. So
far as appears , again no work was available . However, the
situation in certain respects was markedly dissimilar from
the May 5 situation . As of June 16, the May 18 bargaining
session had already been held as had the June 4 meeting
between the employees. Johnson had plainly expressed to
Lambert and other employees that they drop out of the
Union and "get this thing" over with . Donel Hale and
Wickman had already accepted stock offers, and Hale, at
least, had withdrawn from the Union . Lambert , on the other
hand, was still tenaciously resisting.
According to Leonardson , Johnson on June 16 pressed
his inquiry as to whether Lambert would quit the Union.
Lambert said he would not and Johnson thereupon told
Lambert that he might as well pick up his tools and leave.
Johnson's version of the conversation differed . He testified
that he told Lambert there was no work available, that
Lambert said he had ajob lined up with a friend and could
go to work anytime whereupon Johnson responded , "Well,
as long as there isn't anything to do here , now would be as
good a time as any to leave ." Lambert confirmed that he
had talked with Johnson on June 16 about lining up a new
job, but said that this subject came up after he was told to
pick up his tools and leave , that Johnson then asked him
whether he would have anything to do, and he replied that
he had arranged with a contractor friend to work for him
when work was available.
In fact, Lambert did so some work on a part -time basis
for his contractor friend during June and July. His hourly
rate of pay was $4 as compared to the $6 .90 hourly rate
Respondent paid him . Some time thereafter , at a date not
disclosed by this record , Lambert returned to Respondent's
employ and worked until September when he voluntarily
quit.
I find Lambert 's account of the June 16 conversation
credible . I believe that work for Lambert was unavailable
on June 16 . On the other hand , I find it implausible that, as
Johnson 's testimony suggests , Lambert in effect quit be-
cause he had another job lined up . Lambert would hardly
have given up a $6.90 per hour job for part-time work at $4
per hour . On the other hand, it is wholly plausible that,
having been discharged , he would have told Johnson, upon
the latter's inquiry that he had lined up some work with his
contractor friend when such work was available . For Lam-
bert to make such an arrangement was wholly reasonable
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in view of the fact that work at Respondent's plant was short
and layoffs were likely. I find that the conversation of June
16 took place as Lambert testified.
Moreover, it is significant that Johnson did not on June
16, as he had on May 5, merely lay off Lambert until work
became available again. Certainly, this would have been the
reasonable course to follow for an employee whom Johnson
described as "a very good worker, very conscientious work-
er, very efficient worker." A fair inference, and the infer-
ence I draw, is that Johnson rejected this approach and
chose the alternative of discharge because Lambert stub-
bornly resisted Johnson's obvious and manifested desire
that Lambert quit the Union. I so find."'
E. Concluding Findings on the Alleged
Unfair Labor Practices
1. Paragraphs V, VII, and VIII of the complaint allege
that Respondent laid off Keith Lambert on May 5, 1971,
and terminated his employment on June 16, 1971, for refus-
ing to drop out of the Union, thereby violating Section
8(a)(1) and (3) of the Act. For reasons already stated, I find
that the preponderance of the evidence on the whole record
warrants a finding of unlawful interference and discrimina-
tion within the meaning of those statutory provisions with
respect to the June 16 termination. I find further that the
preponderance of the evidence does not support such a
finding with respect to the May 5 temporary layoff.
2. Paragraphs VI, VII, and IX of the complaint allege
that Respondent refused to bargain collectively with the
Union in violation of Section 8(a)(1) and (5) of the Act. This
allegation is predicated on a pattern of conduct by Respon-
dent including direct negotiation with the employees by the
offer of stock and other benefits; by the discriminatory
layoff and termination of Keith Lambert; by threats of
layoff if the employees did not drop out of the Union and
a union contract resulted; by the unilateral discontinuance
of payments to the pension and welfare funds; and by the
refusal to bargain in good faith at the negotiating session on
May 18, 1971.
I find that the 8(a)(5) and (1) allegations of the com-
plaint are sustained on this record. Preliminarily, it should
be noted that the existence of an appropriate unit of pattern-
makers and apprentice patternmakers employed by Re-
spondent and consisting of about eight employees is
disputed. It is likewise undisputed that as of May 1, 1971,
the termination date of the union-security agreement be-
tween Respondent and the Union, the Union was the ma-
jority representative of the employees in that unit. On
familiar principles and absent objective evidence of a
14 Militating against this conclusion is the testimony of Hale who was
called as a witness for Respondent shortly before the close of the hearing
Hale's role in the instant controversy between Respondent and the Union has
already been described . As already noted , Hale testified that he saw Lambert
picking up his tools on June 16 , that Lambert said he had quit , that there was
no more work to be done , and that this was as good a time as any . Lambert
added, according to Hale, that he had something lined up to build houses
for a fellow . The only significance of Hale 's testimony rests in the fidelity of
his recollection that Lambert said he had "quit " Hale was not present at the
conversation between Johnson and Lambert. Under these circumstances and
for reasons already stated , I find Hale 's recollection in this regard of insuffi-
cient probative value to overcome the findings heretofore made
change, the continued existence of that majority is pre-
sumed and Respondent's obligation to bargain continues.
Respondent does not really quarrel with this principle, but
it does argue that both the presumption of continuing ma-
jority and the continuing obligation to bargain were dissi-
pated when Employee Schmidt filed his decertification
petition on July 27, 1971. For the reasons and under the
authorities already set forth, this contention does not aid
Respondent. Apart from the fact that the mere filing of a
naked decertification petition does not establish a majority,
the petition in issue was not filed until July 27, long after
the unfair labor practices here found occurred, and any loss
of majonty which might have occurred thereafter is attrib-
utable to these unfair labor practices.15
The evidence in support of the unfair labor practices is
cogent and, as already indicated, is based, to a considerable
extent, on the testimony of Robert Johnson, Respondent's
president. Without recapitulating that evidence, summariz-
ed in the preceding sections, I have found that Johnson
made clear to Lambert and to other employees that he did
not want the Union, that the employees should drop the
Union, that they would be prejudiced if they remained with
the Union, and that they would be better off without it. I
have also found, on the basis of the previously summarized
evidence, that Johnson's offer to several employees to sell
them company stock was conditioned explicitly or implic-
itly on their dropping out of the Union. Employees Hale
and Wickham, two of the approximately eight employees
comprising the appropriate unit, did purchase company
stock and Hale, at least, did drop out of the Union. This
pattern of conduct would preclude the likelihood of there-
after holding a fair election, even without the elimination of
Keith Lambert, a staunch union adherent, whom I have
heretofore found to have been discnminatonly discharged
on June 16.
But this conduct does not stand alone. With respect to
the May 18 bargaining session between Johnson and Le-
onardson, the findings are again based in. substantial part
on Johnson's own testimony. On all the evidence pertaining
to that meeting, I conclude that Johnson's participation did
not meet the standards of good-faith bargaining but rather
was characterized by his fixed predetermination to solve his
problem by getting rid of the Union. This was confirmed
when Johnson later admittedly interrogated the employees
15 In its answer to the complaint, Respondent pleaded not only the peti-
tions for decertification (the second petition for decertification was filed on
January 7, 1972) but also the existence of "other objective evidence" of loss
of majonty. Respondent proffered no such "objective evidence" during the
course of the 3-day hearing However, after both General Counsel and Re-
spondent had rested their respective cases and just before the formal closing,
Respondent requested permission to reopen the evidentiary portion of the
hearing to recall a witness for a single question in this regard . Permission was
denied but an offer of proof was invited. The offer of proof reads.
If Mr Johnson were permitted to testify, he would testify that on or
about the time the decertification petition was filed by employees [sic]
in Case No . 13-RD-819 on or about July 27, 1971, employee John
Schmidt and others informed him voluntarily that they no longer wanted
this union to represent them, and that this was the opinion of the majori-
ty of the employees in the appropriate unit
If this belatedly proffered evidence were or should be admitted , opportunity
to meet it would have to be afforded General Counsel . However, assuming
arguendo that such evidence were admitted and had probative value, it would
be subject to the same frailty as the decertification petition ; i e , it has
reference to events occurring on or about July 27, long after the unfair labor
practices here found were committed.
FOX RIVER PATTERN, INC. 77
as to what went on at a union meeting, met with the employ-
ees on June 4 without their union representative, asked them
individually what they wanted in wages, and told them in
broad outlme what he would grant them in wages and work-
ing conditions if there were no union in the plant. Johnson
stated that he called the June 4 meeting and made his offer
only because the employees asked for the meeting and
asked for his offer. However, uniform authority since Medo
Photo Supply Corporation v. N.L.R.B., 321 U.S. 678,683-684
(1944), precludes such direct negotiation with employees
who are represented by a bargaining agent. Finally,
Respondent's discontinuance of payments to the pension
and welfare fund on May 11, 1971, without prior consulta-
tion with the Union, was a forbidden unilateral change in
a term and condition of employment. The expiration of the
collective-bargaining agreement between Respondent and
the Union is no defense in that regard. See Henry Hinson,
d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), and
cases there cited at footnote 4.16 .
The foregoing course of unlawful conduct-even less
would be required-strips of any validity Respondent's
claim that the majority status of the Union should be re-
solved by a representation election. The majority status of
the Union on May 1 was undisputed and the first indication
that the Union's majority may have been dissipated
emerged with the filing of the decertification petition in
Case 13-RD-819 on or about July 27, 1971, long after the
unfair labor practices occurred. The law does not contem-
plate that Respondent can profit from his own misconduct
in this way. Indeed, N.L.R.B. v. Gissel Packing Co., 395 U.S.
575 (1969), upon which Respondent relies, is to the con-
trary. As the Supreme Court there stated (at 599-600), "We
agree with the Board's assertion here that there is no sugges-
tion that Congress intended § 9(c)(1)(B) to relieve any em-
ployer of his § 8(a)(5) bargaining obligation where, without
good faith, he engaged in unfair labor practices disruptive
of the Board's election machinery." The Court of Appeals
for the Seventh Circuit quite recently reaffirmed the princi-
ple. N.L.R.B. v. Copps Corp., 458 F.2d 1227.
I find that the violation of Section 8(a)(5) and (1) of the
Act and the propriety of a bargaining order is fully warrant-
ed on this record.
CONCLUSIONS OF LAW
1. By discharging Keith Lambert on or about June 16,
1971, for refusing to drop out of the Union, Respondent has
violated Section 8(a)(3) and (1) of the Act.
2. All patternmakers and apprentice patternmakers
employed by Respondent at its Aurora, Illinois, plant, ex-
cluding office clerical employees, guards, supervisors, and
all other employees constitute a unit appropriate for pur-
poses of collective bargaining. -
3. At all material times, the Union has been the desig-
nated representative of the majority of the employees in the
16 Manitowoc, Inc, 186 NLRB No. 45, relied on by Respondent, is plainly
distinguishable . There, the parties had expressly provided that the pension
plan would cease upon termination of the agreement , notice of termination
was given the Union , and bargaining ensued Here there was no provision
for automatic termination and the discontinuance occurred on May 11, as
stipulated by the parties No prior notice to the Union was given.
aforesaid unit.
4. By the course of conduct set forth herein, Respon-
dent has refused and is refusing to bargain collectively with
the Union as the bargaining representative of the employees
in the aforesaid unit in violation of Section 8(a)(5) and (1)
of the Act.
5. Respondent did not violate Section 8(a)(3) and (1) of
the Act by laying off Keith Lambert on May 5, 1971.
REMEDY
To effectuate the policies of the Act and enforce its
mandate I will direct Respondent to cease and desist from
the several unfair labor practices here found. Because of the
character and scope of these violations, I shall additionally
direct Respondent to refrain from infringing in any manner
upon the rights guaranteed its employees under Section 7 of
the Act. Brad's Machine Products, Inc. 191 NLRB No. 15
(1971).
Because of the particular circumstances appearing in
this case, I find it appropriate to circumscribe the affirma-
tive relief which would otherwise be appropriate. It appears
that following his discriminatory discharge on June 16,
1971, Keith Lambert was later restored to Respondent's
payroll and later voluntarily quit. A reinstatement order is
therefore not appropriate. A backpay order making Keith
Lambert whole for the earnings he did lose as a result of the
unlawful discrimination against him is appropriate, howev-
er, subject to a setoff of the amounts already transmitted to
him under the abortive settlement agreement of October 20,
1971. Similarly, Respondent is entitled to set off amounts it
has already paid to the pension and welfare funds under
that settlement agreement against the amounts otherwise
found to be due because of its unilateral discontinuance of
payments to those funds during the period between May 11
and October 11, 1971.11 Inasmuch as it appears that Re-
spondent has resumed the pension and welfare payments, I
believe a cease-and-desist order against further unilateral
action will suffice and further affirmative relief is not re-
quired in that regard.
I shall also direct Respondent to bargain collectively,
upon request, with the Union as the exclusive bargaining
representative of the employees in the unit found appropri-
ate here, and to embody any understanding reached in a
signed agreement.
To facilitate these ends, the remedial order will include
the customary record-keeping and notice-posting provi-
sions. It is noted that Respondent has heretofore posted
notices but those notices were posted pursuant to the Octo-
ber 20 settlement agreement which contained a "non-admis-
sion" clause. Inasmuch as that settlement agreement was set
aside, the remedial value of those notices has been dissipat-
ed. Moreover, the significance of the present notices is that
they are posted pursuant, not to a settlement agreement
with a "non-admission" clause, but pursuant to findings of
unfair labor practices made by the Agency after a hearing
17 Inasmuch as Respondent has already made substantial payments both
with respect to backpay for Keith Lambert and with respect to the defaulted
payments to the pension and welfare funds, and since in both instances the
periods under consideration are relatively brief, I deem it unnecessary to
provide for the calculation of the amounts due on a basis of calendar quarters
or for interest to be added on the amounts, if any, remaining to be paid
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which both sides had an opportunity to present evidence.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act, I recommend the following:18
ORDER
Respondent, Fox River Pattern, Inc., its officers,
agents , successors , and assigns , shall:
1. Cease and desist from:
(a). Discouraging membership in Pattern, Mold and
Model Makers' Association of Chicago and Vicinity, affil-
iated with the Pattern Makers' League of North America,
AFL-CIO, or any other labor organization , by discharging
or otherwise discriminating against any employee in regard
to the hire and tenure of his employment or any term or
condition of his employment.
(b). Bypassing the above-named Union, as long as it is
the lawful representative of the employees in an appropriate
unit, by bargaining directly with the employees in that unit
regarding, or unilaterally making any changes in, their wag-
es, hours, or any other term or condition of their employ-
ment.
(c). Unilaterally discontinuing payments to the pension
and welfare funds.
(d). Promising , or granting benefits to employees in
return for their dropping their membership in the aforesaid
Union, or threatening them with reprisals for retaining their
membership in the aforesaid Union.
(e). Interrogating the employees concerning their activ-
ities in the aforesaid Union or actions taken at the meetings
of said Union.
(f). Refusing to bargain collectively concerning wages,
hours, and other terms and conditions of employment with
the above-named Union as the exclusive bargaining repre-
sentative of all patternmakers and apprentice patternmak-
ers employed by Respondent at its Aurora, Illinois, plant,
excluding office clerical employees, guards, supervisors, and
all other employees.
(g). In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights guar-
anteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a). Make whole Keith Lambert for earnings lost as a
result of the discrimination against him in the manner set
forth in the section of the Trial Examiner's Decision entitled
"Remedy."
(b). Reimburse the pension and welfare funds for any
missed payments in the manner set forth in the above-
described "Remedy" section.
(c). Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, pension and welfare payment rec-
ords, and any other records necessary to analyze the
amounts due under the terms of this Order.
(d). Upon request, bargain collectively in good faith
with the above-named Union as the exclusive representative
of the employees in the above-described unit, and embody
in a signed agreement any understanding reached.
(e). Post at its plant in Aurora, Illinois, copies of the
attached notice marked "Appendix."" Copies of the notice,
on forms provided by the Regional Director for Region 13,
after being duly signed by an authorized representative of
the Respondent, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that the notices are not altered, defaced, or covered by any
other material.
(f). Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respondent
has taken to comply herewith .20
18 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes
19 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
20 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read . "Notify
the Regional Director for Region 13, in writing, within 20 days from the date
of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had an opportunity
to present evidence, the National Labor Relations Board
has found that we have violated the law, and has ordered
us to post this notice.
WE WILL NOT discharge or otherwise discriminate
against employees to discourage activities in support
of, or membership in, Pattern, Mold and Model Mak-
ers' Association of Chicago and Vicinity, affiliated with
the Pattern Makers' League of North America, AFL-
CIO, or any other union.
WE WILL, to the extent we have not already done so,
make whole Keith Lambert for earnings lost as a result
of his discharge on June 16, 1971.
WE WILL NOT bypass the above-named Union as
long as it is your bargaining representative by bargain-
ing with you directly about your wages, hours, or other
terms and conditions of employment.
WE WILL NOT discontinue payments to the pension
and welfare funds without bargaining with the above-
named Union, and we will, to the extent we have not
done so already, reimburse the said funds for missed
payments.
WE WILL NOT promise or grant you benefits if you
drop the above-named Union, or threaten you with
harm or harm you if you stay in that Union. You are
FOX RIVER PATTERN, INC.
free to belong to or not to belong to or to support or
not to support the above-named Union or any other
Union.
WE WILL NOT ask you questions about your union
membership or activities.
WE WILL, upon request, bargain collectively with
the above-named Union as the exclusive bargaining
representative of the employees described below about
their wages, hours, and working conditions. If an agree-
ment is reached, we will sign such an agreement. These
employees are:
All patternmakers and apprentice patternmakers
employed by Fox River Pattern, Inc., at its Aurora,
Illinois, plant, excluding office clerical employees,
guards, supervisors, and all other employees.
WE WILL NOT in any other manner interfere with the
right of employees to engage in self-organization or
79
collective bargaining or to refrain from such activities.
Fox RIVER PATTERN, INC
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Everett McKinley Dirksen Build-
ing, Room 881, 219 South Dearborn Street, Chicago, Illinois
60604 (Telephone 312-353-7572.