Lennox Furnace Co., Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1940

28 N.L.R.B. 208 (N.L.R.B. 1940)

In the Matter of LENNO% FURNACE CO., INC. and SYRACUSE FEDERATION OF LABOR Cases Nos. C-1267 and R-1305.-Decided November 30, 1940 Jurisdiction : furnace and air conditioning equipment manufacturing industry. Unfair Labor Practices (hterference, Restraint, and Coercion : anti-union statements ; distorted explana- tion of rights under the Act; threatened cessation of operations. Company-Dominated Union Employer was able to suggest the formation of a dominated union by means of his anti-union drive which had the necessary effect of propelling employees into formation of such a union. Discrimination: allegations of discrimination dismissed Collective Bargaining Where an employer conducted a drive to destroy a union's majority ; relied on a rival claim of a dominated labor organization and where he purported to resolve the doubt against the union on the basis of an election conducted by its rival, the Board found the employer had refused to bargain in good faith. Remedial Orders : disestablishment of company-dominated union. Practice and Procedure : petition for investigation and certification dismissed in view of order to bargain. Mr. Peter J. Crotty, for the Board. Fraser Brothers, by Mr. Henry S. Fraser, of Syracuse, N. Y., for the respondent. Mr. Francis L. McElroy, of Syracuse, N. Y., for the Union. Mr. Maurice W. Sharp, of Syracuse, N. Y., for the Association. Mr. Louis Cokin, of counsel to the Board. AMENDED DECISION AND ORDER On February 28, 1940, the Board issued a Decision and Order in this" case. On June 10, 1940, the respondent filed motions asking that the Board set aside its Decision and Order or in the alternative modify such Decision and Order. On July 3, 1940, the Board denied the motions. On July 15, 1940, the respondent filed a motion for leave to adduce additional evidence. On July 17, 1940, the Board denied the motion. On August 12, 1940, the respondent filed a motion requesting 28 N L. R. B., No. 40. 208 LENNOX FURNACE CO., INC. 209 the, Board to set aside its Decision and Order in this case . On August 20, 1940, the Board denied this motion . On September 3, 1940, the respondent filed a motion asking the Board to correct errors of fact appearing in its Decision and Order and to set aside or modify accord- ingly the statement of the case , findings of fact, conclusions of law, and order in its Decision and Order . On November 5, 1940, the Board, having considered the respondent 's motion of September 3, 1940, served upon the parties a Decision and Order containing certain proposed corrections to its Decision and Order of February 28, 1940,' and notified them that unless sufficient cause to the contrary appeared by November 15, 1940, it would -substitute said Decision and Order for its Decision and Order of February 28, 1940. On November 15, 1940, the Union filed objections to two of the proposed changes. The Board finds no merit in these objections . On the same day, the respondent, in response to the notice to show cause , filed a motion asking the Board not to substitute its Decision and Order of November 5, 1940, and requesting that such Decision and Order be set aside on the grounds stated in its motions of June 10, 1940, and August 12, 1940, both of which it renewed, and, further, because of the Decision on October 8, 1940, of the United States Circuit Court of Appeals for the Sixth Cir- cuit in National Labor Relations Board v. Ford Motor Company. The respondent also requested oral argument on this motion. The motion and the request for oral argument thereon are denied. The motions of June 10 and August 12, 1940, which the respondent renewed, are also denied. On November 15, 1940, the respondent filed a further paper opposing,the substitution of the Decision and Order of No- vember 5, 1940, on the ground that certain of the alleged errors which, the respondent had asked to be corrected in its motion of September 3, 1940, had not been corrected . It renewed its motion of September 3. with respect to the uncorrected errors. That motion is hereby denied. In the same paper the respondent renewed its motions of June 10, 1940, and July 15, 1940, and asked that the relief prayed for in such motions be granted and that the substitute Decision and Order of November 5, 1940, be modified in accordance with such relief. The respondent 's motions of June 10 and July 15, 1940, as made orig- inally, and as renewed on November 15, 1940, are hereby denied. The respondent 's motion of September 3, 1940, is granted in part and denied in part. In so far as the motion is granted the Board's Decision and Order is corrected to read as set forth herein.' STATEMENT OF THE CASE On August 17 and September 10, 1938, and January 3 and Febru- ary, 14, 1939 , Syracuse Federation of Labor, on behalf of Sheet Metal 'Porkers International Association , Local 58, herein called the Union; 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed with the Regional Director for the Third Region ( Buffalo, New York ), charges and amended charges that Lennox Furnace Co ., Inc., Syracuse , New York, herein called the respondent , had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1),'(2), (3 ), and (5 ) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat . 449, herein -called the, Act. - On December 30, 1938, the Union filed a petition alleging that a question affecting commerce had arisen concerning the representa- tion of employees of the respondent and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. On January 20, 1939, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, directed that an investigation be conducted upon the petition and that an appro- priate hearing be held upon due notice. On the same day, the Board, acting pursuant to Article II, Section 37 (b), and Article III, Sec- tion 10 ( c) (2), of said Rules and Regulations , ordered a consolida- tion of the representation and unfair labor practice cases. Upon the charges and amended charges, the Board, by the Re- gional Director for the Third Region, issued its complaint and amended complaint dated February 6 and 15, 1939 , respectively, against the respondent , alleging that it had engaged and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), (3), and ( 5), and Section 2 (6) and (7) of the Act. Copies of the complaint , the amended complaint , the peti- tion, the Board's order of consolidation and direction of investigation and hearing , and notices of hearing on the complaint , the amended complaint, and the petition, were duly served upon the respondent, upon the Union, and upon Lennox Employees Association , herein- called the Association. The complaint, as amended , alleged in substance : (1) that the respondent fostered , encouraged , sponsored , and dominated the As- sociation, interfered with its administration , and contributed sup- port to it ; ( 2) that the respondent on or about July 12, 1938, and at all times thereafter , refused and has refused to bargain collectively with the Union as the exclusive representative of employees of the respondent in a unit appropriate for collective bargaining , although the Union was on or about July 12, 1938, and at all times thereafter has been, the duly designated representative of a majority of the employees in such unit ; ( 3) that on February 8, 1939, the respondent terminated the employment of Charles Breh and Robert Guernsey, employees of the respondent, and refused to reinstate or reemploy G - - LENNOX FURNACE CO., INC. 211' them -because they joined and assisted the Union; and (4)_ that by these acts, by causing or permitting anti-union speeches on the respondent's property and time, by threats to close down the plant; the respondent interfered with, restrained and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. On February.15, 1939,.the Association. filed a motion to. intervene in the proceedings with the Regional Director. On February 16, 1939, the Regional Director granted the motion but limited the inter- vention to matters directly affecting the Association. On February 18,. 1939,, and at the hearing, respectively, the respondent filed an answer and an' amended answer, in which it denied that its manufacturing activities are interstate in nature or affect commerce as defined in the Act, denied the allegations of unfair labor practices, and alleged` affirmatively that it refused to bargain with the Union at all times subsequent to November 29, 1938, for the reason that it would have been illegal to do so. The respondent's answer, as amended, - also contained affirmative allegations with respect to the two employees allegedly discharged for union activities. Pursuant to notice, a hearing was held on February 20, 21, 23, 24, 27, 28, and March 1 and 2, 1939, at Syracuse, New York, before Madi- son Hill, the Trial Examiner duly 'designated by the Board. The Board, the respondent, the Union, and the Association were repre- sented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues was afforded all parties. The Association moved to intervene at the commencement of the hearing. The motion was granted. At the commencement of the hearing, at the close of the Board's case, and at the close of the hearing, counsel for the respondent moved to dismiss the complaint, as amended, on various grounds. The motions were denied. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof. The motion was granted. During the course of the hearing the Trial Examiner made several rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no. prejudicial errors were committed. The rulings are hereby affirmed. On March 17, 1939, the respondent filed a brief. On April 26, 1939, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all parties, finding that the respond- ent had engaged in and was engaging in the unfair labor practices alleged in the amended complaint. On June 20 and 21, 1939, respec- tively, the respondent and the Association filed exceptions to 'the Intermediate Report. On May 8, 1939, the respondent requested oral argument before the Board. On July 1, 1939, the respondent filed a brief. 413597-42-vol 28--15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice duly served upon the respondent, upon the Union, and upon the Association, a hearing for the, purpose of oral argument was held before the Board on October 31, 1939, in Wash- ington, D. C. The respondent appeared by counsel and participated in the argument. The Union and the Association did not appear. The Board: has considered the exceptions of the respondent and the Association and the briefs of the respondent, and save as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. 'Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent, an Iowa corporation, owns and operates plants at Marshalltown, Iowa, and Syracuse, New York, where it is engaged in the business of manufacturing and distributing steel furnaces, air= conditioning equipment, blowers, and oil burners. This proceeding is concerned only with the plant in Syracuse. In 1938 the Syracuse plant expended $460,000 for -the purchase -of raw materials, 90 per cent of which were shipped to it from points outside the State of New York. The respondent does an annual business amounting to approximately $1,000,000 at its Syracuse plant, 84 per cent of which is derived from shipments.unade to points out- side the State of New York. The respondent employs approximately 150 employees at its Syracuse plant. II. THE ORGANIZATIONS INVOLVED Sheet Metal Workers International' Association, Local 58, is a labor organization affiliated with the American Federation of,Labor. It admits to membership all employees of the respondent engaged in handling 10 gauge or lighter 'steel, excluding office workers, foremen, other supervisory employees, and watchmen. Lennox Employees' Association. is an unaffiliated labor organiza- Lion admitting to membership all production and maintenance em- ployees of- the `respondent, including watchmen, but excluding depart- ment heads, foremen, other supervisory employees, and office and clerical `employees. -III. THE UNFAIR LABOR PRACTICES - A. Sequence_ of 'ev'ents On, July 12, 1938, the Union held a meeting attended by'employees of the respondent. • On July 13 or 14, 1938, one Fredericks and John LENNON FURNACE CO., INC. 213, Speirs , representatives of the Union , called upon Ralph E. Martin, factory manager, and stated that the Union had been designated by a majority of the respondent 's employees and requested exclusive recognition for the production and maintenance employees. The union representatives also indicated that they would ask for a closed shop , and they asked Martin whether the respondent would sign an agreement with the Union . Martin discussed the nature of a closed' shop with the union representatives , but stated that since he had no authority to bargain with the Union , the union representatives would have to see Dana W. Norris , at that time general manager and subsequently vice president of the respondent. : Norris had been in Buffalo. On July 13, 1938, E. C. Booth, assistant treasurer of the respondent , telephoned him in Buffalo from Syracuse and informed him that the Union had held a meeting the night before. On July . 15, 1938, Norris returned from Buffalo. Martin reported to Norris the subject of his conference with the Union. Norris summoned the employees to a meeting which was held in the plant during working hours on July 15. Norris explained to the assembled employees that he had called them together to dis- cuss "several problems" of the respondent and to make "a declaration of company policy with respect to collective bargaining." Norris then delivered a talk to the assembled employees . In substance, he stated that business conditions might necessitate lay-offs in the near future, set forth alleged rights of employees and employers under the Act, and quoted portions of the opinion of the Supreme Court in National Labor Relations Board v. Jones and Laughlin Steel Corp.' In the course of this speech, he twice characterized the representa- tives of the Union who had called upon Martin as "outsiders." At one point , in stating that the respondent would not "refuse to talk to any group ," Norris mentioned as an example thereof "outsiders, knowing nothing about our business ." With respect to the demands of the Union, Norris , among other things, said the following : Now, that means that we have a perfectly legal right to refuse to agree with anybody. I do not mean by that to state that we are not going to agree with anybody. I will tell you definitely, with all emphasis that I can put on it, that - this company will never agree with anybody-to a closed shop. The reason why we make that statement and take that attitude is that we will not force our employees to pay tribute to any organization for the right to work in this shop . That is what our employees would have to do under a closed -shop agreement . We do not intend to sign any agreement with any organization . The law does not 1 301 U. S. 1. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD require us to do so . It is not my place to express any opinion to you men as to whether you should join any organization or should not . It is to know exactly where we stand on this subject of collective bargaining , signed agreements , and closed shops. * * * I don't mean by anything I have said that we will refuse to talk to any group, whether that be outsiders , knowing nothing about our business , whether that be a group representing you men, or whether that be you men as individuals. * * * I will go a little further than that and say that I will guarantee, so far as I have it in my power to do so, that none of you has to pay dues , assessments , or anything else to any outside organi- zation for the right to work in this plant . Conversely, I will guarantee to any and all of you , that your jobs will not be in jeopardy in any way, shape , or form simply because you do happen to join any outside organization. It will thus be noted that Norris stated categorically that he would "never agree with anybody to a closed shop ," and characterized such an arrangement as compulsion upon an employee to pay "tribute" for "the right to work. " Although Norris asserted his willingness "to talk to any group ," he insisted that the respondent did "not intend to sign any agreement with any organization." On July 19, 1938, pursuant to agreement , Speirs,, union repre- sentative , and Norris met in the plant . At the opening of the con- ference, Norris summoned eight employees and three ' supervisory employees to attend and explained his action to Speirs as follows : I have called in these fellows here representing the various de- partments in the plant 2 because as long as we are going to talk about wages and hours , I wanted them to know what was being discussed. Norris then asked Speirs whether he had "any statement or proposi- tion that you want to present ." Speirs stated in reply that the object of the conference was to inform the respondent that the Union had been designated by a majority of the employees and to confer with Norris about the preliminaries incident to making a collective bar- gaining agreement . Speirs stated further that he had not expected "to meet with representatives from all the departments," that he was not yet prepared to discuss terms and conditions of employment in detail, and that he would soon receive from union headquarters a standard form of agreement which he would then submit with appropriate insertions to the respondent . There then ensued a general discussion in the course of which Norris repeated portions of the 2 The record does not Indicate that these employees represented their respective depart- ments other than by selection by Norris. LENNOX FURNACE ,CO., INC. 215 speech which he had delivered to the employees on July 15. Norris asked-Speirs whether the Union would demand a closed shop. Upon Speirs' affirmative reply, Norris stated the following : ... we are not going to agree with anybody as to a closed shop. That is definite and final. Now the reason why we take that position is that we believe, and the law says, that every employee has the right to join or refrain from joining any organization, and our opinion is that any agreement on our part to a "closed- shop" would deny the employees the right which they are en- titled to under the Constitution of the country. Norris again described a closed shop as forcing the employees to pay "tribute" 3 and insisted that the respondent's position in regard to the closed shop was "definite and final and not a subject for dis- cussion." There was further general discussion in the course of which Speirs stated that the Union would insist oh a signed agreement and Norris reiterated his position a number of times that no matter. what proposals the Union submitted, the respondent did "not intend to sign any agreement." At the close of the conference Speirs indicated that he would be prepared to submit concrete proposals at a subsequent time. The respondent and the Union agreed to meet Monday, July 25. On July 21, during the lunch period, Leon Heagle, at this time a member of the Union and one of the employees selected by the respond- ent to attend the conference of July 19, stated to a group of employees that they would receive no benefits from the Union other than the privilege of paying dues. Heagle testified he became dissatisfied with the Union for the first time at a meeting of the Union held on July 20.4 This was the day after he attended the conference between the respond- ent and the Union at Norris' invitation. Another member of the luncheon group suggested that Heagle summon the employees to a meeting. Thereupon, Heagle, accompanied by Frank Galuski, a member of the Union, and another of the employees who attended the July 19 conference at Norris' request, asked Norris for permission to address the employees. Norris granted him the requested per- mission. At the hearing Norris testified that he "suspected that the purpose of the meeting was to discuss-the Union question but I had no idea what the outcome of the meeting" would be. Heagle and Galuski returned to the already assembled employees in the plant and $ Norris further stated in this connection : "I think it is pretty tough for the average worker to-day to meet his grocery bills, rent , and all other personal living expenses without being forced against his own choice to pay tribute for the right to work in any shop. It is his legal privilege to do so, but the law does not force him to do it." • Heagle was nominated for the office of secretary in the Union at this meeting but de- clined the nomination " for good and substantial reasons." Tleagle testified at the hearing that his reasons were that the Union knew nothing about the conditions at the respondent's plant. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a meeting followed . The meeting started during and continued be- yond the lunch period . The employees were not docked for the time spent at this meeting. Heagle told the assembled employees , in sub- stance, that he had been to the "front end," that from his duties as a shipping clerk he knew that the respondent was losing money, and that the plant might'close any day. An unidentified employee sug- gested that the employees vote whether or not they wished to be represented by the Union. Hugh Mitchell , foreman or group leader in charge of the paint department , suggested that the ballot read, '"Lennox or Union." Heagle adopted Mitchell's suggestion . Accord- ingly, the employees were asked to vote for the respondent or for the Union . The result of the balloting was as follows : 52 for the respond- ent, 12 for the Union, 10 not voting. After Norris had authorized the holding of the meeting , he went to lunch, returned to his.office , and waited between an hour and an hour and a half "expecting to get word from somebody , as to what had gone on at that meeting ." Between 2 : 30 and 3: 00 o'clock Ileagle, Galuski, and Bill Bell, an employee , came to Norris' office and informed him of the vote and its outcome . A discussion ensued. Galuski asked Norris what type of labor organization the respond- ent's employees at Marshalltown , Iowa, had. Norris replied that the C. I. O. had attempted to organize the plant and that a majority of the employees there, opposed to it, had organized a "Lennox Asso- ciation." Norris stated further to these three employees that his father had told the employees in Marshalltown that if any trouble cr a strike through no fault of his own occurred , he would shut the plant and go to California. Immediately after this conversation Norris summoned the em- ployees to a meeting at the plant and expressed his joy at the out- come of the vote as follows : "I feel like getting drunk." He in- formed the employees that the respondent had planned a sales pro- gram , that "when the union trouble started I could see the whole thing go out the window ," and that now Norris could "sell" the program to his father , president of the respondent , " if I can assure him we are not going to have any labor trouble ." Norris thanked the employees for their expression of confidence in the respondent. He also requested the employees not to discuss unions in the plant. On July 25, pursuant to arrangement , Norris met with Speirs and. William Goff, representing the Union . Norris again summoned to the conference five employees and three supervisory employees. At this meeting there occurred a general discussion covering several matters, including the balloting held on July 21 . Norris stated that in view of this vote, the respondent had no right to recognize the LENNOX FURNACE CO:, INC. 217 Union as exclusive representative. Goff and Speirs challenged the authenticity of the vote. Norris, asked if the union representatives were ready to submit a proposed contract. Speirs replied that the Union was not yet so prepared because the July 21 balloting had prevented the meeting at which the Union was to formulate its specific bargaining demands. In the course of the conference Speirs and Norris agreed that when Speirs was ready he would call Norris "and set a date for another meeting." At the close of the confer- ence Goff stated that the Union would "lay the matter before the Board to determine the bargaining agency." On August 17 and September 10, 1938, the Union filed a charge with the Regional Director alleging that the respondent -had en- gaged in unfair labor practices, within Section 8 (1) and (3) of the Act. On September 12 the Regional Director informed the respondent that the Union had filed charges against it. On October 5, 1938, a group of six employees called upon Maurice H. Sharp, an attorney, informed him that they wished to form an association, and requested him to draft a constitution and bylaws. Two of these six employees, Harry C'oughenour and Gene Elliott, had been selected by Norris to attend the conference between the respondent and the Union held on July 25. 'On October 10, 1938, four or five of these employees met at Sharp's office. Sharp submitted to this group a proposed constitution which they approved. Sharp suggested that the organization be called Lennox Employees' Association. He also submitted to the group a proposed petition designating the Association as bargaining agent. At the close of the meeting the group decided to hold a, general meeting on October 12 at a place outside the plant. On October 12, 1938, the meeting of the newly formed Association was held as scheduled. The record does not disclose the number of employees present at this meeting. Edward Minton, an employee, presided. Sharp read the constitution and, following some dis- cussion promised,to redraft the provisions relating to grievance pro- cedure. Thereafter officers were elected. After some discussion of eligibility requirements and the Act, the meeting adjourned. - Between October 13 and 17, 1938, about 100 employees came to Sharp's office and there signed the petition purporting to designate the Association. On September 22, 1938, Speirs, representing the Union, and Norris, representing the respondent, held a conference: attended by the Re- gional Director of the Board. At this conference Norris stated : ... that the information that I had as to the attitude of a good many of the men whom the Union claimed as members was such 218 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD that I did not think that the Union at that time truly represented the majority of the employees. Norris refused to follow the recommendation of the Regional Director that the respondent "meet with representatives of the Union and bar- gain with them in good faith, and notify the employees by means of a bulletin" of the respondent's determination to do so. At the close of the conference the Union and the respondent agreed to meet at a subsequent time. On October 14, 1938, the respondent and the Union held a further meeting attended by the Regional Director. The respondent reiter- ated the position which it had taken at the conference of September 22, namely that it did not believe that the Union represented a ma- jority and that it would not bargain with the Union. At the close of the conference the respondent and the Union agreed to meet again the following week. On October 18, 1938, Sharp informed the respondent by letter of the formation of the Association. On October 19, 1938, Sharp in- formed the respondent by letter that the Association represented a majority and demanded exclusive recognition. On October 21, 1938, pursuant to arrangement, Speirs and Goff, representing the Union, and Norris, representing the respondent, met in conference. Norris informed the union officials that the Associa- tion claimed to represent a majority and thaf he therefore could not recognize either the Union or the Association as the exclusive repre- sentative. Goff thereupon suggested that the respondent recognize the Union as representative of its 67 claimed members. Norris stated that he could not accede to this suggestion because the Union and the Association were advancing conflicting membership claims. Speirs then asserted, and Norris denied, that the Association was company dominated. Norris proposed that an election be held. At first the Union took the position that it was opposed to an election. Following some discussion, the Union offered to submit to an election provided that Norris would post a "cease and desist" notice whose terms were to be agreed upon and provided further that the name of the Associa- tion would not appear on the ballot. Norris stated that he could not speak for the Association. The Union thereafter proposed that an election be conducted with the Association on the ballot provided that the respondent would agree in advance to enter into a closed-shop agreement with the organization which won the election. 5Norris agreed to consider this proposal. The parties arranged to meet again on October 27. - On October 21, 1938, Norris assembled the employees at the plant and delivered a talk to them. He spoke briefly about the Association. LENNOX FURNACE CO., INC. 219 He then described in detail the employees ' "prospects for continued employment ." With respect to the Association , Norris mentioned its demand for exclusive recognition , stated his intention to require proof from the Association that it represented a majority and continued as follows : I made a statement last July upon the subject of a closed shop which I really meant at that time. I am informed that that state- ment constituted a violation of the law. I don't agree with that. The reasoning behind the charge that it did constitute a violation of the law, is not important , but I meant the statement when I said it, and when I made the statement that I would guarantee that no man would be discriminated against in this shop because he joined any labor organization or refused to join it, I meant what I said, and I am absolutely impartial in-that stand. It doesn't make any difference to me what the labor organization in question may be, whether it be Lennox Employees ' Associa- tion or any other; I still make the statement that you don't have to belong to any organization to hold a job in this shop, as far as I am concerned, and I want that thoroughly understood . In other words, that is simply a policy on the part of the Company man- agement which applies to one and all labor organizations alike. On October 22, 1938, the respondent , replying by letter to the demand of the Association for exclusive recognition , dated October 19, requested the Association to supply proof of majority designation. On October 23, 1938, the Association met with the respondent. Norris took the position that the respondent could not recognize the Association because the Association and the Union were advancing conflicting membership claims. He stated that an election by secret ballot would be necessary . Norris also informed the Association of his meetings with the Union and that the respondent and the Union were to meet again on October 27. On October 24, 1938, the Association sent the respondent a list of members claimed by the Association . On October 26, 1938, the respondent returned the list with an accompanying letter stating, among other things , that under the circumstances it could not re- gard the list as "conclusive." The letter also contained the following : I must have unmistakable proof as to which of these rival organizations our employees now want to have represent them for purposes of collective bargaining , as I have already told you verbally . I am leaving it up to the organizations involved as to what method may be adopted to provide me with conclusive evidence of the wishes of our employees . I understand that your Association is now proposing that an election be held under 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD impartial auspices to determine the answer to my question. This procedure appears to be all right, but I want it understood that I will have nothing to do personally with anything of that kind. On October 27, 1938, the respondent and the Union held a con- ference as scheduled . The respondent advised the Union that it could not agree lawfully to enter into a closed -shop agreement with the organization winning an election, that it would not consent to a closed shop , and that it would discuss an election to be conducted by the Board. Grant Radley, president of the Association, was present at this meeting with the Union 's consent . The meeting ad- journed, however, " because the Union objected to the attendance of Sharp who , without the knowledge of the respondent , had been in- vited by Radley. On November 2, 1938, the respondent and the Union held another meeting attended by the Regional Director . The respondent sug- gested that a representative of the Association be invited to be present but abandoned the suggestion because of the Union 's opposition thereto. At this meeting the respondent , while not purporting to speak for the Association , agreed to an election in which only the name of the Union would appear and to the posting of a notice by the respondent to dissipate the fears which the Union claimed and the respondent denied had been created by the respondent's action. It was agreed that Speirs would prepare a proposed notice for submission to the respondent by mail. On November 7, 1938, Norris telephoned Speirs and informed him that the respondent was awaiting appropriate action by Speirs. On November 11, 1938, Radley requested , and the respondent sup-' plied Radley with , a list of the respondent 's employees . Norris' testified that the respondent previously prepared this 'list at the request of the Union in anticipation of the election under the auspices of the Board about which the respondent and the Union had been conferring . The Association planned to use this list in the election which it was sponsoring. On November 14, 1938, the respondent and the Union met again. Speirs, representing the Union , gave an oral presentation of what the posted notice should contain. On the basis of this proposal , Norris dictated a rough draft . The substance of the draft appears in the following paragraph : In anticipation of an election being held , the management wishes to make clear to, all company employees that it will not discriminate against any employee regardless of his affiliation or non-affiliation with any labor organization , whether that labor organization be an A. F. of L. organization , Employees' Associa- LENNOX FURNACE CO., INC. 221 tion, or any other organization. If any employee fears that he would be discriminated against if he joined any bona fide labor organization, the management guarantees that such fear is groundless. The draft notice concluded with an undertaking by the respondent to accord exclusive recognition to "whatever organization" was desig- nated by the majority.5 Norris objected to, and the union representa- tives insisted upon the inclusion of the phrase "bona fide" in the last sentence of the above quoted paragraph. The parties agreed to study the draft further and to meet again. On November 16, 1938, the respondent sent to the Union a letter accompanied by the draft notice as revised by the respondent's at- torney. The only substantial revision consisted in the elimination of the:words "bona fide." The letter explained the respondent's asserted reason for this change as follows : . ... such wording tends to place the company in the position of deciding for itself whether or not any particular labor organi- zation is "bona fide," which the company cannot do.' The original wording obviously infers that . . . [the respondent] would dis- criminate against him [any employee] if he joined a "non-bona fide" labor organization. The respondent informed the Union that it was willing to post the revised notice "as soon as the details in connection with the proposed consent election to be supervised by the Labor Board can be agreed upon by all parties involved." The respondent sent copies of this letter and the proposed revised notice to the Regional Director. On November 23, 1938, the Association conducted an election at a local church. Three local citizens, selected by Sharp, acted as election judges.6 The Association notified the employees of the respondent by mail of the election. The two voting booths used at the election were made at the plant during working hours from lumber belonging to the respondent. Norris testified that shortly after the election Radley, president of the Association, stated to Norris, that he thought they [Association] had made a mistake and informed him of the con- struction, of the booths. According to Norris' further testimony, Norris agreed that it was a "mistake" and stated that the Association would have to pay for the booths. Thereafter the respondent rendered a bill for 90 cents which the Association paid. Radley checked out earlier than usual on November 23, and attended to the details of 6 The terms of this notice contemplated apparently that more than one labor organization might appear on the ballot Sharp was present at the polls during the election Galuski. who remained loyal to the Union, was also present, but he did not represent the Union. The Union received no notice of, and took no part in, the election. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the election. He received pay for this period. Norris testified that such payment was inadvertent and that Radley refunded this money. The ballots used in the election recited in substance that.the vote was for the purpose of designating a collective bargaining agent. The names of the Union and the Association appeared thereon. The ballot did not present the alternative of rejecting both organizations. The election judges reported that the Association had received 69 Totes and the Union 33.7 On November 23, following the election, B. E. Booth, treasurer of the Association, reported the results of the election to Norris. On November 25, 1938, the respondent informed the Union by letter that "pending our decision" with respect to the election of November 23- we hereby withdraw our offer to you regarding a consent election to be held under auspices of the National Labor Relations Board, which offer we confirmed in our letter to you of November 16, which letter you have not acknowledged. This withdrawal should be considered without prejudice to a renewal of our offer in the future. On November 25, 1938, pursuant to the Association's request, Norris agreed to meet with the Association on November 29. On November 29 the meeting was held as scheduled. The Association submitted the results of the election of-November 23 and demanded exclusive recog- nition. Norris granted this demand. He also volunteered to post a notice in the plant to this effect. Following some general discussion of various matters, the meeting adjourned. On December 9, 1938, the respondent and the Association held what purported to be a collective bargaining conference. The Association requested that the lunch hour be extended from half to three quarters of an hour. The request was granted. The Association proposed that employees be kept from straying from one department to an- other. Norris stated that the foremen -would be so instructed. The Association raised a problem with respect to the supply of small tools. Norris stated that this problem required further study. The Association proposed that the formula for rating the employees be revised so that greater weight be given to seniority. Norris replied that revision of the rating formula required further consideration. The Association and the respondent agreed upon a procedure for the presentation of grievances. The respondent agreed that the Associa- tion should be consulted prior to the laying off of employees. The respondent agreed to devise a program for the cleaning of spray * One ballot was reported as "challenged." LENNOX FURNACE CO., INC. 223 booths and to supply the grievance representatives of the Association with the names of employees. At this meeting it was agreed to meet monthly. Although Radley testified to a conference between himself, Heagle, and Norris, the record does not disclose regular meetings between the respondent and the Association. At the time of the hearing the Association had not yet submitted to the respondent any demand for a contract cover- ing wages, hours of work, and other conditions of employment. Norris testified that the respondent does "not intend to sign any agreement with any organization." - On February 27, 1939, Donald Cullen, an employee, submitted at the hearing to the Trial Examiner a petition bearing 58 names. The petition was circulated in the plant during working hours by Cullen, Heagle, and Irving Meyers, an employee. Among other things, the petition stated that the signers "know it is unnecessary to have an outside Labor organizanation to represent us" and that a majority have designated the Association." , B. Interference, restraint, and coercion Consideration of Norris' conduct during July compels the conclu- sidn that,the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in the Act. The respondent sought to discredit the Union by appealing. to the. employees over the heads of the union agents. Thus, after the Union had made known to the respondent its demands and before an author- ized representative of the respondent had conferred with the Union concerning them, Norris summoned the employees together and announced the respondent's position in regard to the union demands. The respondent undercut the prestige of the Union further by in- viting employees of its selection to attend the conferences of July 19 and 25. This was an unlawful interference with the right of employees to select representatives of their own choosing. 8 The body of the petition is as follows "We, the production worker, of Lennox Furnace Co Have taken upon our selves to issue this proclamation. "I As a body of organized workmen , we are satified , with working Condition of our Firm. "II. We know it is unnecessary to have an out side Labor organizanation to represent us either the American Fedeilation of Labor (Local 58) or any other organizanation. "III. As American Citizen, we demand our rights, as to whom we choose , to represent us in collective bargianing Under our present set up we the workmen of the Lennox Furnace Co Aie able to protect our rights in all respects. "IV. All employees rights are protect whether they belong to the Lennox Assocciation other organizanations or none at all "V. Its is our under standing That the majority rules, and Lennox Employees have choosen the Assocciation, definitely and exclusive. "VI. The Companey, absolute , has had no hand in forming or organizing our own Lennox Workmen's Assocciation." - 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Norris' disparaging reference to the union representatives as "out- siders, knowing nothing about our business ," his characterization of the Union 's closed-shop demand as compulsion upon the employees to pay "tribute ," and his pretension , in face of the express provisions of the Act , that this demand was unlawful , were also calculated to discredit the' Union. The respondent strove to impress upon the employees the futility of joining or remaining with the Union . Thus on July 15, before the respondent had conferred with the Union , Norris informed the em- ployees categorically that it would refuse the union demands for a signed agreement and for a closed shop. At the July 19 conference, which the Union wished to devote to preliminaries , Norris repeated these refusals and with respect to the latter , stated that the refusal was "definite and final and not a subject for discussion ." The pre- maturity and finality of those declarations , in view of the fact that the respondent did not challenge the Union 's majority at this time, evidence an intent to forestall the Union by rendering its efforts vain and fruitless from the outset , even before it was prepared to present' ,its demands formally and to justify them. In view of Norris' hostility to the Union and the fact that the July 15 speech was caused by the Union's entrance upon the scene , the fair inference is that Norris , by including in it a prediction that business layoffs might be required , intended, despite expressions of intent to obey the Act, to convey to the employees the subtle suggestion that membership in the Union might be responsible for lay-offs. The July 21 vote indicates that the employees so understood Norris' statements . The substance of Heagle's talk immediately preceding the election was that closing of the plant might be imminent . The vote of the employees , for "Lennox" as against the Union , must have re- flected their fear that the plant might shut if they expressed prefer- ence for the Union. Norris' reaction to the July 21 vote shows clearly that the respondent was encouraging the fear that membership in the Union might mean lay-offs. • It will be recalled that upon learning of the vote, Norris assembled the employees to inform them that a sales program was being . planned, that because of "the union trouble," it was to -have been abandoned , but that "now" it would be, executed if Norris could assure his father there would be no "labor trouble ." The meaning of this speech is patent . Norris was telling the employees that their prospects for continued employment had been endangered by their affiliation with the Union, improved by their vote against the Union, and were conditioned upon their desertion of the Union. In short, by Norris ' speeches of July 15 and 2l , the respondent sought to'uiider 'mine membership ' in"the Union by a threat of lay-offs-or a shut-down. LENNOX FURNACE ' CO., INC. 225 We have already adverted to the unrestrained joy to which Norris gave expression in commenting to the employees upon the July 21 vote which purported to reject the Union in favor of the respondent. Such expression was itself coercive. We find that by Norris' conduct on July 15, 19, 21, and-25, 1938, hereinabove set forth, the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. C. The refusal to bargain collectively 1. The appropriate unit The Trial Examiner found that all the production and maintenance employees of the respondent, including the installers in the city department, but excluding executives, other supervisory employees, clerical employees, and teamsters, constitute a unit appropriate for the purposes of collective bargaining. No exception was taken to this finding. We find that all the production and maintenance employees of the respondent, including the installers in the city department, but ex- cluding ,executives, other supervisory employees, clerical employees, and teamsters, constitute a unit appropriate for the purposes of col- lective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit The pay roll of the respondent as of July 10, 1938, was introduced in evidence at the hearing. The names of 97 employees in the appro- priate unit appear thereon. The Union introduced in evidence 67 applications for membership or authorization cards in the Union by employees of the respondent, all signed during July 1938. Of these applications and authorizations,.22 expressly designated the Union as collective bargaining agent, 16 expressly designated the American Federation of Labor, through its authorized agents, and 29 did not expressly designate any bargaining agent. The respondent contends that there was no showing that the employees signing the 29 applications were ever accepted as members by the Union or if so that they ever became members, and that therefore the Union did not have a majority of the employees in the appropriate unit. This contention is without merit, since application for membership in a labor organi- 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zation is of itself, in the absence of evidence to the contrary, a desig- nation of. that organization as the applicant's bargaining agent .9 Thus in July 1938 a majority of the employees in the appropriate unit designated the Union as their collective bargaining representative. At the July 19 conference the Union asserted that it represented a majority. The respondent did not question the claim. Web ' ave noted that on July 21, 52 employees voted for the respondent, and 12 for the Union. The very nature of the alternatives presented to the employees by, this ballot demonstrates that the election could not cast doubt on the majority status of the Union, since the employees who voted for the respondent might, though thus pledging their loy- alty to the respondent, still wish to be represented by the Union for collective bargaining purposes. Moreover, the vote occurred on com- pany property immediately after a "campaign" speech against the Union. Finally, as shown by our findings above, it was inspired by; and constituted an integral part of, the unfair labor practices of the respondent. Under these- circumstances, the July 21 election cannot constitute a genuine selection or rejection of collective bargaining representatives. Similarly, we cannot consider as persuasive evidence of the em- ployees' desires the above-mentioned petition submitted to the respond- ent on October 24, 1938, the election under' the auspices of the Association on November 23,• 1938, or the petition submitted to the Trial Examiner on February 27, 1939. As found elsewhere in this decision, the respondent engaged in interference, restraint, and coer- cion, and sponsored and dominated the Association. These purported designations of the Association and accompanying purported rejec- tions of the Union accordingly must be viewed as effects of the re- spondent's unfair labor practices rather than as expression of employee preference of one labor organization over another.10 To hold other- wise in this case would be to permit the respondent to avoid its obliga= tion under Section- 8 (5) by the simple expedient of violating, that subsection as well as Section 8 (1) and (2) of the Act. We find that in July 1938, and at, all"times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit and that by virtue of Section 9 (a) of the Act, was the exclusive representative of all employees in the unit for the purposes of collective bargaining. 9 See Matter of Trenton-Philadelphia Coach Company and Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, 6 N. L. R. B. 112; cf. N. L. B. B. v. National Motor Bearing Company, 105 F. (2d) 652 (C. C. A. 9). 10 Cf. N L. R B. v. American Manufacturing Company, 106 F. (2d) 61 (C,, C. A. 2) ; N. L. R B. v..Arthur J. Colten and Abe J. Colman, co-partners doing business as Kiddie Hover Manufacturing Company, 105 F. (2d) 179 (C. C. A. 6). LENNOX- FURNACE CO., INC. 227 3. The refusal to bargain Although the Union obtained a majority in July and the respondent did not challenge the union majority until after the July 21 vote, the record does not enable us to determine as of what day in July the Union became exclusive representative. - We refrain, accordingly, from finding that the respondent infringed Section 8 (5) prior to July 31, 1938. Nevertheless, in deciding whether the respondent bargained collectively after July 31, we may consider as relevant background its previous conduct described in the previous section. During July the Union had made known to the respondent its desire for a signed collective agreement including among other things a closed-shop provision. In subsequent months the Union did not abandon its desire for collective bargaining. Its conferences with the respondent in September, October, and November 1938 were directed toward proving its majority designation, since the respondent pur- ported to doubt the Union's status and to predicate its refusal to bargain on such doubt. We find, in the first place, that the respondent did not entertain the alleged honest doubt. As we have noted, when the Union first presented its demands on-July 13 or 14 and held its first conference. with Norris on July 19, the respondent did not express any doubts of the Union's having been designated by a majority. The respondent's first challenge of the Union's status came on July 25. This challenge, however, followed upon the heels of the respondent's campaign to undermine the Union. It was based upon a vote which resulted from this unlawful campaign and which by its nature could not register selection or rejection of the Union. Following the formation of thy; Association, the respondent purported to 'rely on its conflicting mem- bership claims for doubting the Union's majority but, as we find below, the Association is company sponsored and the respondent recognized the Association after it was selected in an election conducted under its own auspices. Clearly, an employer cannot be heard to say that he entertains an honest doubt of a Union's majority where he conducts a drive to destroy that majority,' where he relies on the rival claim of an organization sponsored by such drive, or where he purports to resolve the doubt against the Union on the basis of an election conducted by its rival. We find, secondly, that the respondent did not in good faith predi- cate any refusal to bargain with the Union on an alleged doubt of its majority standing. The obvious test of such asserted good faith is to inquire whether the respondent was willing to cooperate in the resolu- tion of the doubt. The respondent's withdrawal of its consent to an election to be conducted by the Regional Director of the Board alleg- - 415597-42-yol 28 1 C 228 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD edly because the Association won in an election sponsored by the Association demonstrates the respondent's unwillingness to cooperate in a bona fide resolution of any doubts of the Union's majority. We find that the respondent's recognition of and dealing with the Association constituted an unlawful refusal to bargain with the Union, the true exclusive representative 11 We find that on and after September 22, 1938, the respondent re- fused to bargain collectively with the Union as the exclusive. repre- sentative of its employees in an appropriate unit in -espect to wages, rates of pay, hours of employment, and other conditions of employ- ment and has thereby interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. D. The Association We are likewise convinced that the respondent unlawfully fostered the Association. Although the actual formation of the Association dates from October 5, 1938, its origin cannot be understood except in the light of the respondent's unfair labor practices which occurred before, and whose effects continued up to and beyond, this date. As we have noted, during the second half of July, the respondent, ,in response to the Union's demands for collective bargaining, undertook to disparage and discredit the Union, to undermine its prestige and authority, to impress upon the employees the futility of membership therein, and to threaten the employees with a shut-down or with lay-offs, if they did not-desert the Union. Moreover, because of these unfair labor practices, the Union was diverted from its efforts to bargain with the respondent. This unlawful drive against the Union had the necessary effect of propelling the employees into the formation of an organiza- tion which would not incur the respondent's hostility. For example, Heagle, most active in the July 21 vote and an officer of the Associa- tion, manifested his dissatisfaction with the Union very shortly after he was subjected to Norris' speech of July 15 and to Norris' statements at the conference of July 19 to which he'was invited by Norris; and two of the six employees who initiated the Association were among those present, by Norris' invitation, at the conference of July 25 and 11 As the Supreme Court stated in The Virginian Railway Company v. System Federation No. 40, 300 U. S. 515 : The "obligation imposed on the employer . . . to treat with the true representative of the employees as designated by the Mediation Board . . . is exclusive . It imposes the affirmative duty .to treat only with the true representative , and hence the negative-duty to treat with no other." The Supreme Court held this language applicable to the Act in N. L R B. v. Jonei ii Laughlin Steel Corp , 301 U. S 1. See Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No. 3, International Woodworkers of America, 20 N. L R B 1 LENNOX, FURNACE CO., INC 229 peculiarly- exposed, accordingly, to Norris' efforts to prove the'futility of membership in the Union. The respondent made clear to the employees the kind of organiza- tion -which it desired. The respondent, it will be recalled, referred to the representatives as "outsiders, knowing nothing about" the re- spondent's business. Again, on July. 21, in conversing with the employees who had reported to him the results of the vote; Norris told, them of the labor trouble at the Marshalltown plant and the em- ployees' formation of the "Lennox Association" at that plant. The respondent, by these expressions, was suggesting that the employees form an unaffiliated, intramural organization such as the Association. The formation of the Association -must be attributed to these unfair labor practices of the respondent. It is true that after the Association had been established, the respondent informed the employees that membership therein was not a condition of employment. Nevertheless the speech in which this information was conveyed, in contrast to Norris' talks in regard to the Union, did not express or imply any hostility toward the Association. Norris' talk on October 21, 1938, included a,discussion of the employees' "prospects for continued em- ployment" but it did not contain the slightest hint that the Associa- tion, like the Union, meant "labor trouble" which might spell lay-offs or a shut-down. It is true also that the respondent refused to recognize the Associa- tion as exclusive representative until it could produce proof of ma- jority designation acceptable to Norris. But this requirement is at least as consistent with the hypothesis that the respondent was seeking to disguise its unfair labor practices by an ostentatious solicitude for form as it is with the hypothesis that the respondent was abiding by the mandates of the Act. On October 26, 1938, the respondent hinted to the Association rather broadly that it would accept as satisfactory proof the results of an election conducted under ex parte auspices. By supplying the Asso- ciation with a list of employees on November 11, 1938, for its use in this ex parte election, the respondent contributed material support to the Association. The respondent relies on the fact that it had prepared this list for prospective use in the election about which it had been conferring with the Union. But this latter was to be an election con- ducted by an agent of the Board, not by one of the parties having a stake in the outcome of the election. The respondent's making avail- able to the Association a list of employees for its use in a privately sponsored election was little different from its giving the Association a list for purposes of membership solicitation. In any event the respondent's unfair labor practices caused the Association to be organized. Consequently, the selection of the Asso- ciation could not represent a free choice. The Association could not 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be the designated representative of the employees and the recognition which the respondent accorded it constituted further unlawful support: The respondent is opposed to signed collective agreements with any labor organization. By the time of the hearing the Association had made no move to demand a signed or comprehensive contract covering terms and conditions of employment. This lethargy in a matter which provides a primary reason for the existence of legitimate labor organ= izations is persuasive of the Association's servility to the desires of the respondent. The language of the Court in N. L. R. B. v. The Griswold Manufac- turing Company 12 is peculiarly applicable to the facts in this case : The, whole policy of the law is to redress an inequality of bar- gaining power by forbidding employers to interfere with the development of employee organizations, thereby removing one of the issues most provocative of industrial strife and bringing about the general acceptance of the orderly procedure of collective bar- gaining under circumstances in which the employer cannot trade upon the economic weakness of his employees. The prohibition against the so-called company union and its domination by the employer is designed to prevent the rights of employees from being nullified by an organization which is responsive to the will and the purpose of the employer. It cannot be challenged that any legislative policy must be given the most liberal interpretation, and not be narrowed down to the point of vanishment by rigid interpretation of the letter of the legislative enactment. * * * The Congress and our leg- islatures have recognized the handicap of labor in its dealings with the employer-a handicap resulting from the very nature of the labor relationship. It is because of its recognition that the employee is sensitive and, responsive to even the most subtle expression on the part of his employer, whose good will is so necessary, that limitations have been placed upon the activities of the employer in carrying out the principle of collective bargaining. It is the intention of our labor legislation that labor organiza- tions shall be truly representative of the employee's interests, and the language of Section 8 of the National Labor Relations Act prohibiting domination or interference with any labor organiza-' tion must be broadly interpreted so as to cover any conduct on the part of an employer which is intended to bring into being an organization which he has reason to believe will be "friendly."' 12 106 F (2d) 713 (C C. A 3), enf'g Matter of The Griswold Manufaeturting Company and Amalgamated Association of Iron, Steel and Tin Workers of,'North , America, Lodge \ o 11')7, 6 N L R. B 298. I LENNOX FURNACE CO., INC. 231 The respondent here did not accept "the orderly procedure of col- lective bargaining" contemplated by the, Act. Norris, seeking to "trade upon the economic weakness of his employees," and recognizing that ,his employees would be "sensitive and responsive to even" his "most subtle expression" because of "the very nature of the labor relationship", and because of their dependence . on his "good will," engaged in "conduct . . . intended to bring into being an organiza- tion which he (had) reason to believe (would) be `friendly.' " The employees, undisciplined by any substantial period of membership in an affiliated union, succumbed all the more easily to Norris' hostility thereto and to his suggestion that an unaffiliated association be formed. Norris' protestations of an intent to abide by the law of the land, his purported expositions of that law to the employees, and his other* conduct recall the words of the Court in the Griswold case: The studied and meticulous efforts of the respondent, in the course of its negotiations with its employees, and in its relation- ship with its own dominated union, to be "within the law," tell their own story. Duties imposed by law cannot be discharged by offering shadow for the substance. We are convinced that the formation of the Association was caused by the unfair labor practices of the respondent, that it "is responsive to the will and the purpose of the employer," and that its disestablish- ment is necessary "to prevent the rights of employees from being nullified.", We find that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it; and that it has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. E. The discharges Robert Guernsey and Charles Bred were first employed by the re- spondent in June 1935 and in 1926, respectively. They were members of the Union, although inactive, and were both discharged on Febru- ary 8, 1939. The respondent advanced several reasons for their dismissal, including the charge of smoking in prohibited areas in the plant. The respondent maintains on the bulletin boards throughout the plant printed notices against smoking. Guernsey and Breh, although denying several of the reasons advanced by the respondent for their discharge, admitted having smoked in prohibited areas on frequent occasions shortly prior to their discharge. We cannot conclude that Guernsey and Breh were not discharged for their infractions of the respondent rules, or that they were dis- charged because of union membership or activity. The allegations 232 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD in the complaint charging the respondent with having discriminated against Robert Guernsey and Charles Breh in violation of Section 8 (3) of the Act will be dismissed. IV. THE EFFECT OF THE UNFAIR LAEOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section. III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce. and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices, we will order it to cease and desist therefrom and to, take certain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the condition which existed prior to the commission of the unfair labor practices. We have found that the respondent has dominated and interfered with the formation and administration of the Association, and has contributed support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of rights guaranteed them by the Act, we shall order the respondent to withdraw all recognition from the Association, and to disestablish it as a representative of the employees for the purposes of collective bargaining.-' We have found that on September 22, 1938, and thereafter, the respondent refused to bargain collectively with the Union. The policy of the Act will be best effectuated by ordering the respondent to bargain on request with the Union. Moreover, we have found that the Union has been the exclusive representative within the meaning of Section 9 (a) at all times since July 1938. The order to bargain on request with the Union is also predicated on this finding.14 In addition, since the respondent has revealed its intention not to enter into a signed agreement regardless of the terms we shall order the respondent specifically to embody any understandings reached in a signed agreement upon request. , 18 See N L. R. B. v. Pacific Greyhound Lines, Inc , 303 U S 2T2 ; N L. R B. v Fansteel Metallurgical Corporation , 906 U. S. 240 ; N L. R B v. Newport News Shipbuilding & Dry Dock Company, 308 U S 241; N L R B v The Falk Corporation, 308 U S 453 14 Cf. N L It. B. v National Motor Bearing Company , 105 F. ( 2d) 652 (C C. A 9). LENNOX FURNACE CO.,- INC. 233 Since we shall order the respondent to bargain on request with the Union as the exclusive representative, we shall dismiss the petition of the Union for certification. Upon the basis of the foregoing` findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1., Sheet Metal Workers International Association, Local 58, and Lennox Employees' Association are labor organizations, within the meaning of'Section 2, (5) of the Act. 2. The production and maintenance employees of the respondent, including the installers in the city department, but excluding execu- tives, supervisors, clerical employees, and teamsters, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. Sheet Metal Workers International Association, Local 58, is and has been at all times since July 1938, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing and continuing to refuse to bargain collectively with Sheet Metal Workers International Association, Local 58, as the ex- clusive representative of its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By dominating and interfering with the formation and adminis- tration of the Association and by contributing support to it the re= spondent has engaged in and is engaging in unfair labor practice,, within the meaning of Section 8 (2) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of 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. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 8. The respondent has not discriminated in regard to hire and tenure of employment of Robert Guernsey and Charles Breh, thereby dis- couraging membership in a labor organization, within the,meaning of Section 8 (3) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the•National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, 234 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD Lennox Furnace Co., Inc., Syracuse, New York, and its officers, agents, successors , and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with -Sheet Metal Workers International Association, Local_ 58, as the exclusive representative of all its production and maintenance employees, including the in- stallers in the city department, but excluding executives, supervisors, clerical employees, and teamsters; (b) In any manner dominating or interfering with the adminis- tration of Lennox Employees' Association, or the formation or ad- ministration of any, other labor organization of its employees, and contributing support to Lennox Employees' Association, or any other labor organization of its employees; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Sheet Metal Workers International Association, Local 58, as the exclusive representative of all its' production and maintenance employees, including the' in- stallers in the city department, but excluding executives, supervisors, clerical employees, and teamsters, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached on such matters, upon request, embody said understanding in a signed agreement; (b) Withdraw all recognition from Lennox Employees' Associa- tion as the representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of em- ployment and completely disestablish Lennox Employees' Association as such representative; (c) Immediately post notices in conspicuous places throughout its plant and maintain such 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 1 (a), (b), and (c) and that it will take the affirmative action set forth in 2 (a) and (b) of the Order; (d) Notify the Regional Director for the Third Region in writing within ten (10) days from the date of this Order, what steps the re- spondent has taken to comply herewith. LENNOX FURNACE CO., INC. 235 AND IT IS FURTHER ORDERED that the complaint, as amended, in so far as it alleges that the respondent, by discharging Robert Guernsey and Charles Breh, has engaged in unfair labor practices within the meaning of Section 8 ( 3) of the Act, and the petition for investigation , and certification of representatives be, and they hereby are , dismissed. CHAIRMAN HARRY A. MiLLIs took no part in the consideration of the above Amended Decision and Order.