Jasper Blackburn Products Corp.

National Labor Relations Board - Board Decisions

Mar 27, 1940

21 N.L.R.B. 1240 (N.L.R.B. 1940)

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