McQuay-Norris Manufacturing Co.

National Labor Relations Board - Board Decisions

Mar 18, 1940

21 N.L.R.B. 709 (N.L.R.B. 1940)

In the Matter of MCQUAY-NORRIS MANUFACTURING COMPANY and
UNITED AUTOMOBILE WORKERS OF AMERICA, LOCAL No. 226
Cases Nos. C-1292 and R-1306.-Decided March 18, 1940
Automobile Parts Manufacturing Industry-Interference , Restraint, and
Coercion-Collective Bargaining : refusal to insert in a written contract a clause
granting majority representative full recognition ; insistence upon a limited
recognition clause-Order : upon request bargain collectively , embody understand-
ings reached in a signed agreement , incorporate in the agreement a clause grant-
ing the union exclusive recognition-Investigation of Representatives : petition
for dismissed in view of order to bargain-Dissent by Mr. Leiserson.
Mr. Colonel C. Sawyer, for the Board.
Mr. Kurt F. Pantzer and Mr. Fred D. Anderson, of Indianapolis,
Ind., for the respondent.
Mr. Edward Scheunemann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
On April 21, 1938, United Automobile Workers of America, Local
226, herein called Local 226,1 filed a charge with the Regional Di-
rector for the Eleventh Region (Indianapolis, Indiana), and on Feb-
ruary 11, 1939, an amended charge, alleging that McQuay-Norris
Manufacturing Company, Indianapolis, Indiana, herein called the
respondent, had engaged in and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat. 449, herein called the Act.
On April 27, 1938, Local 226 filed with the Regional Director a
petition alleging that a question affecting commerce had arisen con-
cerning the representation of employees of the respondent and re-
questing an investigation and certification of representatives. On
February 2, 1939, the National Labor Relations Board, herein called
'Local 226 is one of the many locals comprising the United Automobile Workers of
America. We shall refer to the United Automobile Workers of America herein, in con-
tradistinction to its locals, as the U. A. W. A.
21 N. L. R. B., No. 72.
709
2S 30:32--41-col 21--46
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board , acting pursuant to Section 9 (c) of the Act and Article
III, Section 3, of National Labor Relations Board Rules and Regula-
tions-Series 1, as amended , ordered an investigation and authorized
the Regional Director to conduct it and to provide for an appropriate
hearing upon due notice , and pursuant to Article III, Section 10 (c)
(2), and Article II, Section 37 (b), of said Rules and Regulations-
Series 1, as amended , ordered that the complaint and representation
cases be consolidated for the purpose of hearing.
On February 11, 1939, upon the charge and amended charge duly
filed, the Board, by the Regional Director , issued its complaint against
the respondent alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce , within the
meaning of Section 8 ( 1) and ( 5), and Section 2 (6) and ( 7) of the
Act. On the same day, a notice of hearing , accompanied by a copy
of the complaint and the petition , was duly served upon the respond-
ent and Local 226.
The complaint alleged in substance that the respondent on March
25, and August 18 and 19, 1938 , and at all times thereafter , refused
to bargain collectively with Local 226 as the exclusive representative
of its employees in an appropriate unit, and that by the aforesaid
refusal the respondent has interfered with, restrained , and coerced
its employees in the exercise of rights guaranteed in Section 7 of the
Act. On February 27, 1939, the respondent filed an answer denying
that it had engaged in the alleged unfair labor practices.
Pursuant to notice , a hearing was held between March 9 and 12,
1939, inclusive , at Indianapolis , Indiana, before Theo. R. Bland, the
Trial Examiner duly designated by the Board . The respondent was
represented by counsel and participated in the hearing . Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded to all parties.
During the course of the hearing the Trial Examiner made several
rulings on motions and on objections to the admission of evidence.-
We have reviewed the rulings of the Trial Examiner and find that
no prejudicial errors were committed . The rulings are hereby af-
firmed.
On May 29, 1939 , the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon the parties , finding 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.
On June 17 , 1939, the respondent filed exceptions to the Inter-
mediate Report and requested oral argument before the Board.
Pursuant to notice , a hearing was held before the Board in Wash -
ington, D. C., on October 17 , 1939, for the purpose of oral argument.
The respondent was represented by counsel and participated in the
McQUAY-NORRIS MANUFACTURING COMPANY 711
argument. On the same day it filed a brief in support of its excep-
tions. The Board has considered the exceptions and the brief, and,
save as the exceptions are consistent with the findings, conclusions,
and order herein, 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 is a Delaware corporation with its principal office
and place of business in St. Louis, Missouri. It maintains plants at
St. Louis, Missouri, and Connersville and Indianapolis, Indiana. In
its Indianapolis plant it manufactures, sells, and distributes auto-
motive engine crankshafts and connecting-rod bearings. During the
year 1938, it used in its Indianapolis plant raw materials valued at
$220,000, of which approximately 80 per cent in value were obtained
from States outside Indiana. During the same period the Indian-
apolis plant manufactured goods valued at $600,000, of which ap-
proximately 90 per cent in value were shipped to States other than
Indiana. The respondent employs about 106 persons in its Indian-
apolis plant.
II. THE ORGANIZATION INVOLVED
United Automobile Workers of America, Local 226 , is a labor or-
ganization affiliated with United Automobile Workers of America,
which in turn is affiliated with the Congress of Industrial Organiza-
tions. It admits to membership employees of the Indianapolis plant
of the respondent.
III. THE UNFAIR LABOR PRACTICES
1. The appropriate unit
The complaint alleged and the answer denied that the production
employees of the respondent at its Indianapolis plant excluding super-
visory and clerical employees constitute a unit appropriate for
purposes of collective bargaining.
On June 28, 1937, the respondent and Local 226 executed a collective
bargaining agreement, covering the Indianapolis employees of the
respondent excluding clerical, supervisory, and salaried employees.2
At the same time the respondent entered into similar agreements with
Locals 315 and 231, also affiliated with U. A. W. A., for the respond-
ent's plants at Connersville and St. Louis, Missouri, respectively. The
agreements were to remain in effect until April 12, 1938.
2 It appears from the record that the salaried employees are maintenance employees
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 25, 1938, representatives of the three locals, the organizer
for the U. A. W. A., and the vice president of the respondent, Arden J.
Mummert, entered into joint negotiations for the modification and
renewal of these agreements. Mummert insisted at the outset that
there be a separate agreement for each plant in view of the differences
in the type of manufacture and working conditions among the three
plants. The locals agreed, and it was understood by all parties, that
each contract would have to be ratified by a majority vote of the local
involved before it became effective. The respondent also negotiated
with the representatives of Local 226 separately concerning the terms
of the agreement to be applied to the Indianapolis plant. The re-
spondent did not object at the hearing to the unit requested by
Local 226.
Under these circumstances, we find that the production employees of
the Indianapolis plant, excluding supervisory and clerical employees,
constitute a unit appropriate for collective bargaining and that said
unit insures to employees of the respondent the full benefit of their
right to self-organization and collective bargaining and otherwise
effectuates the policies of the Act.
2. Representation by Local 226 of a majority in the appropriate unit
The respondent employed 65 employees in the appropriate unit on
March 25, 1938, 86 on August 19, 1938, and 106 on March 9, 1939, the
pay-roll date immediately preceding the hearing. Local 226 was
designated by 63 employees in the appropriate unit. Mummert testi-
fied that the respondent never questioned the fact that Local 226 at all
times represented a majority of the employees in its Indianapolis
plant.
We find that on March 25, 1938, and at all times thereafter, Local 226
was the duly designated representative of a majority of the employees
in the appropriate unit for the purposes of collective bargaining and
that, pursuant to Section 9 (a) of the Act, it is, therefore, the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining with respect to rates of pay, wages, hours of
employment and other conditions of employment.
3. The refusal to bargain
We have noted that on June 28, 1937, the respondent executed three
collective agreements covering its Indianapolis, Connersville, and
St. Louis plants, respectively, and that on March 25, 1938, the re-
spondent opened negotiations with Locals 226, 315, and 231 for the
modification and renewal of these agreements. The parties met in a
series of conferences over a period of eight months. At these joint
McQUAY -MORRIS MANUFACTURING COMPANY 713
conferences the respondent and the locals discussed in detail various
proposals and counterproposals and arrived at a mutual understanding
on vacations, grievances, and general policy as to hours of work and
seniority. These negotiations included discussions of proposed
terms of employment to be applied to employees without regard to
their membership in the locals. The respondent and the locals agreed
that specific terms of employment for each plant in furtherance of
the general policies thus agreed upon would be determined at subse-
quent separate conferences between the respondent and the local
involved.
The form of recognition clause to be embodied in each of the three
agreements was discussed at length at the joint conferences between
the respondent and the three locals.; The locals submitted the
following proposed clause :
The Company agrees to recognize the International Union, United
Automobile Workers of America, through its affiliated plant locals
as the sole bargaining agency for its employees.
The respondent conceded, during the negotiations, that Local 226
represented a majority of the employees and that "there wasn't room
for two sets of representatives for group bargaining in the plant."
Nevertheless it refused to incorporate into the contracts the recogni-
tion clause requested by Local 226. After extended discussion, Marvin
Belflower, representative of Local 231 proposed the following clause :
The Company recognizes the Union as the sole collective bargain-
ing agency for those employees who are affiliated with the Union;
for the purpose of collective bargaining in respect to rates of pay,
wages, hours of employment; and during the term of this contract
the Company will deal with them and no others; provided that
any individual employee or group of employees shall have the
right at any time to present grievances to the Company.
The respondent agreed to this limited recognition clause and resolved
to stand upon it.
The representatives of the three locals agreed to submit to their
respective locals the proposed contract including the above-mentioned
terms of employment and the limited recognition clause which the
$ The 1937 contracts contained the following recognition clause- "The Company recog-
nizes the Union as the sole collective bargaining agency for those employees of the Com-
pany who are members of the Union . . At the request of the U. A W A, the re-
spondent wrote a letter to the president of Local 226 containing the following paragraph
of assurance to the union : "No company dominated employees' union or representation
plan has been in existence and will not be encouraged or dealt with. Neither will we
encourage or deal with any outside labor organized group This is subject only to any
contrary orders fiom the National Labor Relations Board and the piovision under Section
9-A of the Wagner Act as interpreted in the Supreme Court decision which reads as
follows : `But not as precluding such individual contracts as the Company might elect to
make directly with individual employees ' "
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent had approved. The general membership of Locals 315
and 231 approved the proposed contract as submitted. Thereafter
these two locals conducted separate negotiations with the respondent
concerning wages, hours, and the application of the seniority pol-
icy, and signed collective agreements which went into operation
October 1, 1938.
The general membership of Local 226 ratified the proposed con-
tract submitted subject to "action by the Labor Board" 4 and to an
understanding being reached at the separate conferences between
the respondent and Local 226 on wages, hours of employment, and
seniority rules. Thereafter on October 14, 1938, and January 12,
1939, the respondent and Local 226 met. At these two conferences
there was some general discussion with respect to seniority and to
the form of the recognition clause. Local 226 persisted in demand-
ing the recognition clause already submitted to the respondent, and
at the conclusion of the last conference took the position that the
matter of the recognition clause was one which the Board would
have to decide in view of the respondent's refusal to incorporate it
into the contract.
On January 16, 1939, the respondent informed Local 226 by letter
that the agreements covering the Connersville and St. Louis plants
would "be the Company labor policy at the Indianapolis division
until such time as a mutual agreement is reached otherwise." Local
226 took no action with respect to this letter.
The only issue presented by this record is whether the respondent
has engaged in unfair labor practices by refusing to accept the
exclusive recognition clause submitted by Local 226 and insisting
instead upon the limited clause quoted above.
By the limited clause the respondent agreed to bargain collectively
in respect to rates of pay, wages, and hours of employment with the
employees who were affiliated with Local 226 through the agency of
that union, and agreed further not to bargain with other employees.
We construe the negative undertaking to mean that the respondent
would not so bargain with non-member employees, either directly or
through an agent. Thus by the clause acceptable to the respondent
as well as by the clause which Local 226 requested, the respondent
promised not to recognize another representative of the employees.
There is an essential distinction between the two clauses, however, in
their formulation of the affirmative obligation. The provision de-
4 On or about April 20, 1938, prior to the date on which the locals agreed to submit the
proposed contract to their respective membership, Locals 226 and 315 prepared charges
alleging that the respondent had refused to bargain collectively On April 21, 1938,
Local 220 filed its charge and on April 27, 1938, a petition requesting investigation and
certification of representatives. On May 16, 1938, Local 315 filed a similar petition, but
did not file its charge . On October 26, 1938, Local 315 withdrew the petition. Local 226
did not withdraw the charge or petition.
McQUAY-N ORRIS MANUFACTURING COMPANY 715
manded by Local 226 accorded it recognition as "the sole bargaining
agency for its [the respondent's] employees"; i. e. recognition as
representative of all the employees in the appropriate unit, whereas
the clause which the respondent favored recognized Local 226 as
representative only of those employees in the appropriate unit who
were members of Local 226.
Section 8 (5) of the Act makes it an unfair labor practice for
an employer to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of Section 9 (a). Section
9 (a) provides that the representatives designated by the majority
of the employees shall be the exclusive representatives of all such
employees in collective bargaining. Here Local 226 had been selected
by a majority of the employees at the Indianapolis plant as their
representative. Under the Act the respondent was obliged to bar-
gain with Local 226 as exclusive representative of the employees at
the Indianapolis plant, and to embody understandings reached in a
signed agreement.5 We think that there was included in this obli-
gation, as a "reasonably appropriate" method of precluding the
respondent from making it nugatory, a duty to incorporate into
the contract, upon request, full recognition of the union, in express
terms, as exclusive bargaining agent.e
The issue is by no means a technical or trivial one. We cannot
be unaware of the extent to which employers in the past have
attempted to undermine the prestige of labor organizations through
refusing to accord them full recognition as bargaining agencies for
their employees. As we took occasion to point out in Matter of St.
Joseph Stock Yards Company:
... the main objective of organized labor for long has
been the collective agreement and the history of organization
and collective bargaining may be written in terms of the con-
stant striving for union recognition through agreement.?
And in Hatter of Inland Steel Company 8 the Board, referring to the
employer's normal obligation under Section 8 (1) and (5) to reduce
agreements to writing stated :
.. . The present controversy is projected on the background of
a long struggle by labor organizations to attain full recog-
nition of their right to recognition as collective bargaining
5 Art Metals Coust,uetson Company v. N. L R. B , 110 F. (2d) 148 (C. C A 2). enf'g as
mod Matter of Art Metal Construction Co. and Int. Ass'n. of Machinists, 12 N. L. R. B.
1307; Matter of Inland Steel Company and Steel Workers Organizing Committee, eto.,
9 N L R. B. 783, set aside and remanded, Inland Steel Company v. N L R. B., 109
F. (2d) 9 (C. C A. 7).
6 See Art Metals Construction Company v. N. L. R B, supra, footnote 5
7Matter of St. Joseph Stockyards Company and Amalgamated Meat Cutters, 2 N L.
R. B. 39.
8 Supra, footnote 5.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agencies with a dignity equal to that of the employers with
whom they deal .. .
Thus the question of recognition has long possessed a peculiar
significance in labor relations. And we think it was the intention
of the Act to eliminate controversy over issues of this sort,by requir-
ing employers, as part of the "practice and procedure of collective
bargaining," to recognize and deal with the majority representatives
as exclusive bargaining agent. This purpose can be achieved only
if such recognition is fully and frankly given rather than half
withheld.
Furthermore, it must not be forgotten that the parties were nego-
tiating a written binding agreement to regulate the employer-em-
ployee relationship and thus to stabilize labor relations at the
Indianapolis plant for a reasonable period. The proposed signed
agreement did not purport to be partial in its scope. On the con-
trary, from the nature of its terms it purported to be an integrated
document setting forth substantially the whole bargaining relation-
ship between the respondent and Local 226. Consequently, if the
respondent did not consent explicitly to include within the four
corners of the document exclusive recognition of Local 226, it neces-
sarily implied that it did not accede to such recognition.9 Certainly,
the respondent did not bind itself to give exclusive recognition to
Local 226.10 In view of these circumstances and the request of Local
226 that the agreement contain an exclusive recognition clause, the
omission of such clause from the agreement could mean only that
the respondent was withholding full' recognition from Local 226 as
the exclusive representative of the employees in the appropriate
unit.
° The application to employees without regard to their membership in Local 226, of
terms of employment arrived at by negotiation between the respondent and Local 226,
by practice or by contract piovision is consistent with a refusal to recognize that union
as general collective bargaining representative of the whole unit . Indeed this form of
limited recognition to a minority union, or to a union which is not demanding the statu-
tory exclusive recognition is not unknown in practice . It is not the full recognition which
the majority representative can require under the Act Cf N. L R. B. v Piqua Munising
Wood Products Co, 109 F (2d) 552 (C. C. A 6), enf'g Matter of Piqua Mmiisinq Wood
Products Company and Federal Labor Union Local 18787, 7 N. L R. B . 782 ; N. L R. B. v.
The Griswold Manufacturing Company, 106 F (2d) 713 (C C. A 3), enf'g Matter of
Griswold Manufacturing Co. and Amalgamated Association of Iron , Steel & Tin Workers of
North America , 6 N L. R. B 298.
10 In the Art Metals Construction case , supra, footnote 5, the Circuit Court stated that
the "purpose of a contract is to define the promised performance, so that when it becomes
due, the parties may know the extent to which the promisor is bound ," and concluded
therefrom that a "permanent memorial of any negotiation which results in a bargain"
was necessary so that an employer would not have " the opportunity to put in jeopardy
the ascertainment of what he has agreed to do , or indeed whether he has agreed to any
thing at all." This argument applies a fortiori to the instant case . Here there was to
be a "permanent memorial" purporting to cover the bargaining relationship . Its exclu-
sion of a term of that relationship afforded an even greater opportunity for putting that
term "in jeopardy ." That this contingency is not speculative is apparent in view of the
respondent 's sensitivity to pressure from a labor organization rivalling the U A. W. A.
1\icQUAY-NORRIS MANUFACTURING COMPANY 717
For the same reason the circumstance that the respondent has not
in fact recognized or dealt with another labor organization does not
make its conduct justifiable under the Act. The crux of the matter
is that the respondent has pointedly refused, in the formal agreement
covering its relations to Local 226, to accord that organization the
status to which it is entitled.
The respondent contends that it did not consent to the incorpora-
tion of the exclusive recognition clause into the contract because it
feared that if it did, it would incur reprisals from the American Fed-
eration of Labor. The respondent might argue with equal validity
that it was excused from signing any agreement with Local 226 be-
cause such compliance with the mandates of the Act might also invite
retaliatory action from a rival labor organization. This argument
is not different in kind from the one overruled by the Circuit Court
of Appeals in N. L. R. B. v. Star Publishing Company."
The respondent relies also on the fact that U. A. W. A., the parent
organization of Local 226, has entered into contracts with competitors
of the respondent which do not include an exclusive recognition
clause.12 The record does not reveal, however, that the locals of
U. A. W. A. were entitled to exclusive recognition under the Act at
these plants, or, if they were so entitled, that they did not strive to
gain exclusive recognition from these other companies. The mere
fact that a labor organization has not obtained exclusive recognition
from other employers does not justify the instant employer in with-
holding that to which the labor organization is entitled under the
Act. If any competitive disadvantage would accrue to the respondent
by accepting the exclusive recognition clause, such disadvantage would
not excuse its failure to grant Local 226 the recognition to which it
is entitled since the Act "permits no immunity because the employer
may think that the exigencies of the moment require infraction of the
statute." 13
We conclude that under the circumstances of this case the employer,
by refusing to include in the signed agreement an unqualified clause
granting Local 226 exclusive recognition as the representative of the
employees in the appropriate unit, failed to engage in the collective
bargaining which the Act contemplated as necessary to prevent the
burden on commerce arising from labor disputes.
It is stated in the dissenting opinion that Local 226 "approved
this wording of the recognition clause as well as the rest of the ten-
tative agreement"; that the Board is "unnecessarily injecting itself
'N. L. R. B. v. Star Publishing Co, 97 F ( 2d) 465 (C. C A. 9), enf'g Matter of Star
Publishing Co. and Seattle Newspaper Guild, Local No 82, 4 N . L R. B 498.
12 The respondent does not contend that Local 226 was not acting in good faith in seek-
ing to obtain full recognition from it. Any such contention would be unsupported on
this record.
13 Cf. N. L R. B. V . Star Publishing Co , supra, footnote 11.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into a situation where an employer and a union have reached complete
agreement"; that Local 226 "would have been perfectly satisfied with
-the agreement that was reached by collective bargaining if it had not
been for the over anxiety of the Regional Office of the Board to set-
tle the moot question of the wording of the recognition clause." The
record shows, however, that the differences between Local 226 and
the respondent over the recognition issue were at all times clear cut
and substantial; that Local 226 and its representatives maintained
throughout their position that the provision to which the respondent
agreed was unacceptable to them; that the issue was never moot;
and that the Board's Regional Office was in no way responsible for
the desire of Local 226 to press the issue. Brown, president of Local
226, testifying with respect to the conference of August 19, after
Belflower's clause had been proposed, said:
The three Committees that were there, St. Louis, Connersville,
and Indianapolis committees, there was Jefferson and I of the
Indianapolis committee. We didn't approve of this recognition
clause and judging from the different arguments around the
table Mr. Watson of St. Louis didn't approve of that clause.
I made the remark to Mr. Mummert then that these charges
in the Labor Board would be held there until we seen what the
outcome was of the recognition clause, that so far as the com-
mittee was concerned we didn't, it wasn't acceptable to the clause
that was offered but we were willing to take it before the body
and see whether or not they would be acceptable to a clause of
that sort.
Q. Now did you take this matter up with your union?
A. We did after another meeting ... We didn't take this be-
fore the body at that time or anything else because so far as we
had gone so far we didn't approve, Mr. Jefferson and I didn't
approve of what had been accomplished and therefore we didn't
want to submit it to the membership until we at least felt like
we had something that would be acceptable to them.
[At the union meeting a week after Labor Day] we read this
exhibit 12 [the tentative contract containing Belflower's recog-
nition clause] to our membership and we made it understood
when we read this that they were not voting whether to accept
or reject the contract because this was not a contract. It was
only sort of a contract but we wanted to know if they were sat-
isfied with what was in this, if it would be acceptable to our
membership as a working policy following this pending Labor
Board decision on recognition and provided we did get a sat-
McQUAY-NORRIS MANUFACTURING COMPANY 719
isfactory clause for their seniority, wages, and hours. And they
voted the motion that was put on the floor and ' voted by the
membership that this would be acceptable as a working policy
pending the Labor Board decision provided we had satisfactory
additional clauses to finish out the contract but this part of it
would be acceptable pending the decision of the Labor Board
on recognition.
The Local held consistently to this position :
[At the October 14 meeting] there was some mention made at
that time at the latter part of the meeting before we adjourned
about the Labor Board proceeding on this recognition and I
believe I made it clear to Mr. Mummert at that time we intended
to continue with this Labor Board proceeding to be'certified as
sole collective bargaining agency for all employees of the
Indianapolis plant.
At the end of the meeting Brown told Mummert definitely that
the contract did not meet with the approval of the committee:
[In January 1939] Mr. Mummert made the remark at that time
that we didn't have a foot to stand on with this case in the Labor
Board, that our international officers wouldn't back us. - Of
course, we couldn't swallow that. We knew our international
officers better than that.
Mummert testified :
[At the January 12, 1939, meeting] the members of the com-
mittee made it clear to me that they were still not at all pleased
with the seniority setup in the contract either and we had a
short discussion on recognition again which wound up in the
statement by Mr. Brown or one of the committee men, that was
a matter yet to be settled by the Labor Board, as he previously
testified.
Finally, Brown testified on cross-examination :
Q. And you felt that although on April 20, 1938 after the St.
Louis conferences had been terminated, you had come to tenta-
tive points of agreement on all the points at issue between the
company and the Indianapolis local excepting seniority as quali-
fied by what effect you thought the Labor Board's decision might
have on the recognition clause, that the company was still
refusing to bargain collectively with you?
A. That is right.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And Mr. Sawyer advised you that on that record you were
justified in filing an amended charge?
A. That is right.14
Accordingly, we find that the respondent refused to bargain col-
lectively with Local 226 as the exclusive representative of its
employees in an appropriate unit in respect to rates of pay, wages,
hours of employment, or other conditions of employment, and thereby
interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE 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 sub-
stantial 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
We have found that the respondent has refused to bargain collec-
tively with Local 226 as the exclusive representative of its employees
in the unit herein found appropriate by refusing to incorporate into
the contract a clause granting Local 226 exclusive recognition. We
shall order the respondent upon request to bargain collectively with
Local 226 as the exclusive representative of all its employees in the
appropriate unit and, specifically, to embody a clause granting
exclusive recognition to Local 226 in a signed agreement if requested
to do so by Local 226.
THE PETITION
Since we shall order the respondent to bargain collectively with
Local 226 on request we need not consider the petition of Local 226,
which will accordingly be dismissed.
14 The dissenting opinion also takes exception to a letter w i itten by the Regional Office
to the respondent on October 17, 1938, which said , "Please be advised that very shortly
this office Intends to issue notices of hearing on the charge of refusing to bargain and
the petitions of certification submitted by the Indianapolis and Connersville locals of
the U. A W A." It is said that this was "particularly inexcusable" because the Conners-
ville local had previously wiitten the Regional Office saying, We wish to disregard this
charge" It will be noted, however , that the Regional Office did not say that it intended
to proceed upon a charge by the Connersville local . It said merely that it proposed to
proceed upon "the charge" and "the petitions ." As a matter of fact, the Connersville
local had never even filed a charge with the Board , the reference in its letter of May 16
being to a proposed charge that the Connersville local was considering filing.
McQUAY-NORRIS MANUFACTURING COMPANY 721
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. United Automobile Workers of America, Local 226, affiliated
with the Congress of Industrial Organizations, is'a labor organization
within the meaning of Section 2 (5) of the Act.
2. The production employees in the Indianapolis plant of the re-
spondent excluding clerical and supervisory employees constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. United Automobile Workers of America, Local 226, affiliated
with the Congress of Industrial Organizations, was on March 25, 1938,
and at all times thereafter has been, the exclusive representative of
all employees in such unit for the purposes of collective bargaining,
within the meaning of Section 9 (a) of the Act.
4. By refusing to bargain collectively with United Automobile
Workers of America, Local 226, as the exclusive representative of all
its employees in such unit, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
8 (5) of the Act.
5. By refusing to bargain collectively with United Automobile
Workers of America, Local 226, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of- Section
8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the 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,
McQuay-Norris Manufacturing Company, Indianapolis, Indiana, and
its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Automobile
Workers of America, Local 226, as the exclusive representative of the
production employees at its Indianapolis plant, excluding clerical
and supervisory ,employees;
(b) 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
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities for the purpose of collective 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 United Automobile
Workers of America, Local 226, as the exclusive representative of
the production employees at its Indianapolis plant, excluding clerical
and supervisory employees, in respect to rates of pay, wages, hours of
employment, and other conditions of employment; if an understand-
ing is reached on such matters, embody said understanding in a signed
agreement; and, if requested to do so by Local 226, incorporate in
the signed agreement a clause granting to Local 226 exclusive recog-
nition as collective bargaining agency for all employees in the
appropriate unit;
(b) Post immediately in conspicuous places throughout its Indian-
apolis plant, and maintain for a period of at least sixty (60) con-
secutive days, notices stating to its employees that the respondent
will cease and desist in the manner set forth in 1 (a) and (b) and that
it will take the affirmative action set forth in 2 (a) of this Order;
(c) Notify the Regional Director for the Eleventh Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives be, and it hereby is, dismissed.
MR. WILLIAM M. LEISERSON, dissenting :
The complaint in this case should not have been authorized by the
Board, and it should now be dismissed.
The same is true of the investigation of the alleged representation
dispute. The record is clear that the respondent has not questioned
the right of the union to represent its employees, that it recognized
the union as the choice of the majority, that it bargained with union
representatives whenever requested, and that its relationships with its
employees have been governed by agreements with the union since the
spring of 1937. No question concerning representation has arisen
either among the employees or between the employer and the
employees.
The evidence in the record also clearly establishes that the company
has in fact been dealing with the local unions as the exclusive repre-
sentatives of the employees in all three plants since June 1,4937, when
the company wrote a letter to the union stating that it would deal
with no other labor organization as the representative of its employees
and that it would apply to all employees the collective bargaining
agreements made with the union. When the 1937 agreements expired
McQUAY-NORRIS MANUFACTURING COMPANY 723
and the parties were negotiating new contracts, Mr. , Mummert, vice
president of the company, reiterated his position that he would deal
with the union as the sole representative of the employees for collec-
tive bargaining purposes. He told the representatives of the union
during the negotiations "that there wasn't room for two sets of repre-
sentatives for group bargaining, and that the provisions I had made
in letters the year before had made that problem impossible."
He thought, however, that it was not necessary to state this in a
formal recognition clause of the agreement, and he did at first insist
on writing into any recognition clause a statement that the union was
recognized as the representative of its members. Later in the negotia-
tions, however, he accepted a wording of the recognition clause which
was proposed by a union representative and which indicated that the
union would be dealt with as the sole representative of the employees
for collective bargaining as well as recognized as the representative
of its members.
The company has three plants located in St. Louis, Missouri, Con-
nersville, Indiana, and Indianapolis, Indiana. Union committeemen
representing the employees at each of these plants together with an
officer of the International Union of United Automobile Workers met
jointly with the management for the purpose of negotiating new
agreements when contracts made in 1937 were about to expire in April
1938. The collective bargaining conferences began in St. Louis on
March 25, 1938, and continued with some intermissions until April 12.
Then the conferences broke up because the parties could not agree on
the wording of a recognition clause.
Thereafter several attempts were made to resume negotiations, and
finally conferences were begun again in Indianapolis on August 18,
1938. Here also union committees from the three plants together
with an officer of the international union negotiated jointly with the
management. What happened with respect to the recognition clause
on this first day of the resumed conferences was set forth in the
testimony of Mr. -Mummert, representative of the company, and con-
firmed by Mr. Brown, president of the Indianapolis union. Mummert
said :
There was on the first day an effort by both sides to form a
written statement of recognition which would be satisfactory to
both sides.
Sometime during that day Mr. Belflower, president of the St.
Louis local, became very busy with a piece of yellow paper. He
had before him several of the slips of suggested clauses that I had
offered and some that others had offered. He called for a copy of
the Wagner Act which was presented to him. He turned to
Section 9 (a) and proceeded to copy a portion of it. He finally
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wound up his work and say, "Mr. Mummert, I have finally got
a recognition clause that I believe you cannot reject." .. .
I looked it over very carefully, as I usually do, and while I
thought the order arrangement might have been improved, we
had argued on this subject so much that I was only too glad to
accept it as written. .. .
The clause proposed by the union representative and accepted by
the management read as follows :
The Company recognizes the Union as the sole collective bar-
gaining agency for those employees who are affiliated with the
Union ; for the purpose of collective bargaining in respect to
rates of pay, wages, hours of employment; and during the term
of this contract the Company will deal with them and no others;
provided that any individual employee or group of employees
shall have the right at any time to present grievances to the
Company.
It is plain that the Company thus bound itself to deal with the union
only for collective bargaining purposes. Conferences then continued
for several days, and a tentative agreement was reached on all other
clauses of the agreements that were to be applied uniformly to all
three plants. Wages, hours, and seniority were left for further
negotiations separately with the committee at each plant, because it
was thought that these might have to vary with the different condi-
tions at the different plants. -
It was then agreed that the tentative agreement would be sub-
mitted to the membership of each of the three locals for ratification.
The St. Louis and the Connersville locals ratified the agreement with-
out qualification, and after some further local negotiations with
respect to wages, hours, and seniority these two local unions signed
contracts with the Company on October 1, 1938, with the approval of
the international union.
The Indianapolis local also approved this wording of the recogni-
tion clause as well as the rest of the tentative agreement that had been
reached. But it accepted the agreement subject to "action by the
Board" on the petition and charge that had been filed by this local
shortly after the first conferences broke up on April 12. At that time,
all three locals had filed petitions and the Connersville local had also
filed a charge. All were withdrawn, however, except those of the
Indianapolis local. When Witness Brown, president of the Indian-
apolis local union, was asked how the action of the Board would
affect the agreement which his local had ratified, he answered that he
could not say definitely.
The facts are clear, therefore, that the representatives of all three
local unions, assisted by their international officers, negotiated and
McQUAY-NORRIS MANUFACTURING COMPANY 725
reached an agreement with the management on all matters in dispute.
Two of the local unions signed contracts on this basis with the ap-
proval of the international union.15 The third, the Indianapolis
local which is involved in the present proceedings, also accepted the
agreement, but it had a vague idea that if the Board acted on its
petition and charge this would have some effect on the wording of
the recognition clause that might be better than that which was
accepted and approved by all three locals and the international
union.
It seems to me that the Board in acting upon the petition and
charge under these circumstances is unnecessarily injecting itself into
a situation where an employer and a union have reached complete
agreement, and that it is thereby upsetting collective bargaining
relationships rather than encouraging them.
If there is any validity to the argument in the majority opinion that
the company refused to bargain collectively with the Indianapolis
local, then, of course, it would be equally true that it refused to bar-
gain with the other two locals and with the international union which
approved the contract's. Thus in effect the Board _is casting doubt
upon the legality of the contracts that the same company made with
the other two locals of the same union after prolonged collective
bargaining negotiations.
It is undisputed that in fact and in actual practice the agreements
between the Company and the union are exclusive agreements, the
Company having bound itself to deal with the representatives of the
union as the sole collective bargaining agency and to apply the agree-
ment uniformly to all employees. The only issue raised by the
Indianapolis local is whether action by the Board would result in
securing a better wording of the recognition clause than that which
was proposed by a union representative during the negotiations and
accepted by all parties. I do not think that the Board can settle
such a question by acting on the petition and charge and holding the
employer guilty of refusing to bargain collectively.
A reading of the record convinces me that the Indianapolis as well
as the other two locals and the international union would have been
perfectly satisfied with the agreement that was reached by collective
bargaining if it had not been for the over-anxiety of the Regional
Office of the Board to settle the moot question of the wording of the
recognition clause. On October 17, 1938, four months before any
hearing or complaint was authorized by the Board, the Regional
"One of the locals wrote to the Regional Office of the Board under date of October 20,
1938 , "This will serve to advise you that it is the desire of the United Automobile
workers to withdraw any and all charges pending against McQuay -Norris Manufacturing
Company in Connersville , Indiana , a satisfactory agreement having been reached by the
United Automobile workers. Local 315, and the company "
28 ^ 0'12-41-vol 21--47
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Office wrote to the Company, "Please be advised that very shortly
this office intends to issue notices of hearing on the charge of refusal
to bargain and the petitions for certification submitted by the Indian-
apolis and Connersville locals of the U. A. W. A." The Regional
Office at that time had no authority to issue notices of a hearing, for
this was not authorized by the Board until February 1939. And the
reference to Connersville was particularly inexcusable, because on
May 16, the president of this local had written to the Regional Office :
"We wish to disregard this charge" because the local union and the
Company "have bargained collectively in respect to rates of pay,
wages, and hours of employment."
These facts together with all the other facts in the record indicating
that the parties had agreed on all matters in dispute, by collective
bargaining were known to the administrative office of the Board
before the complaint and hearing on the alleged representation dis-
pute were authorized. They should not have been authorized, and
on the record, they should now be dismissed.