Rocky Mountain Phosphates, Inc.

National Labor Relations Board - Board DecisionsAug 27, 1962

138 N.L.R.B. 292 (N.L.R.B. 1962)

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Respondents Local 825, Peter Weber, and William Duffy have induced and encouraged individuals employed by Gates to refuse to perform services, and have coerced and restrained Gates with an object of forcing or requiring Gates to cease doing business with Utility, and have thereby violated Section 8(b) (4) (i) and (ii) (B) of the Act. 5. Respondents Local 825, Peter Weber, John Pierson , and William Duffy have induced and encouraged individuals employed by United to refuse to perform services and have coerced and restrained United with an object of forcing and requiring United to cease doing business with Public Service and with the object of forcing and requiring Public Service to cease doing business with Gates and Chester and forcing and requiring Public Service to force Gates to cease doing business with Utility. By the aforesaid conduct Respondents have violated Section 8 (b)(4)(i) and (ii ) (B) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Rocky Mountain Phosphates , Inc. and International Union of Operating Engineers , Local 375, AFL-CIO. Case No. 19-CA- 2192. August 27, 1962 DECISION AND ORDER On December 1, 1961, Trial Examiner William E. Spencer issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also recom- mended that the allegation of discrimination in the complaint be dismissed. Thereafter, the Respondent filed exceptions to the Inter- mediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' Rocky Mountain Phosphate Workers Union, herein called the Inde- pendent, was certified on July 12, 1960, as the bargaining representa- tive of Respondent's employees. Following certification, the Inde- pendent and Respondent bargained until March 1961, when an impasse was reached. As a result, the employees discussed the possi- bility of affiliating with an International union. On March 23, 1961, 18 of Respondent's 23 employees signed authorization cards designat- ing International Union of Operating Engineers, Local 375, AFL- ' The complaint alleged that Respondent violated Section 8(a) (3) by discharging Edward Reindl. The Trial Examiner recommended dismissal of this allegation As no exceptions were filed thereto, the Board adopts the ' dismissal pro forma. 138 NLRB No. 35. ROCKY MOUNTAIN PHOSPHATES, INC. 293 'CIO, herein called Local 375, as their bargaining agent. On April 4, the Independent held a formal meeting at which the membership authorized a secret ballot on three questions : (1) whether to dissolve the Independent; (2) whether to designate Local 375 as their bar- gaining representative; and (3) whether to transfer the Independ- ent's treasury to Local 375. The balloting was held in Respondent's plant the following day and resulted in an affirmative vote on all three propositions. The Independent posted the results on the plant bulletin board and, by letter dated April 6, advised Respondent that the employees had designated Engineers as their bargaining repre- sentative. Respondent was fully informed of the results of the ballot- ing on the three questions and, up such notification, it ceased its practice of making dues checkoff deductions for the Independent. However, on April 6, and on several occasions thereafter, Local 375 requested recognition but the Respondent refused to accord it. For the reasons fully set forth in the Intermediate Report, we agree with the Trial Examiner that Respondent violated Section 8(a) (5) when it refused to recognize Local 375 on and after April 6 because the Independent's certification year had not yet run. The basic issue presented is whether Respondent, firm in the knowl- ledge that the Independent had become defunct and that Local 375 had been designated by its employees as their majority representative, may nevertheless utilize the Board's certification-year rule to deprive its employees of collective representation by Local 375 for the balance ,of that year, simply because Local 375 was barred by Section 9(c) (3) from establishing its majority status in a Board election. Section 8(a) (5) imposes upon an employer the obligation to deal exclusively with the majority representative of its employees unless it harbors a good-faith doubt as to the agent's majority status. The design of this section, as is indeed the design of the Act itself, is to foster the principle of collective bargaining with the end of insuring industrial peace. To implement this principle, the Board, early in its history, devised the certification-year rule.2 Its purpose was to afford a newly certified union a reasonable period of time after its certifica- tion, usually 1 year, in which to fashion a labor agreement, free from interference by rival unions, and free from employer challenge that the election results no longer required its presence at the bargaining table. However, the Board has also recognized that unusual circumstances may occur within the certification year which would make the rule inoperative and relieve an employer of its duty to bargain with the certified union. Such a circumstance has been held to exist where the certified union becomes defunct.' The reason for this exception is ] See Kimberly-Claik Corporation. 61 NLRB 90 3 See Public Service Electric and Cab Co ., 59 NLRB 325. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obvious. An employer can hardly be obligated to deal with a labor organization which has ceased to function. Hence, where an unusual circumstance such as defunctness arises during the certification year, the rule must yield to permit employees to realize the full exercise of their rights under Section 7 to reject a labor organization or select a new one. In Ray Brooks v. N.L.R.B.,S the Supreme Court not only endorsed the certification-year rule, but also stamped its approval on the ex- ceptions which the Board had engrafted. In doing so, the Court too recognized that unusual circumstances, such as defunctness, would relieve an employer of the duty to bargain with a defunct union. In the case before us, the Independent became defunct during the certification year. Respondent was fully apprised of this fact, and was duly notified that Local 375 had gained the loyalties of its em- ployees. Neither the Independent, nor any labor organization other than Local 375, was pressing a representative claim. No employee in the unit had manifested to the Respondent any discontent with Local 375 as bargaining representative. In these circumstances, it can hardly be said that Respondent harbored a good-faith doubt either that the Independent ceased to exist, or that Local 375 was the duly desig- nated majority representative of its employees, when it refused to bargain with Local 375 for the remainder of the certification year. Our dissenting colleagues, while conceding the defunctness of the Independent and recognizing that Local 375 had become the majority representative, nevertheless would excuse the Respondent from ful- filling its duty to bargain with latter for the balance of the certifica- tion year. For this conclusion, they bend for support upon the Pay Brooks decision, and draw from that case the "principle" that "employees covered by a certificate . . . are not at liberty, during the certification year, to determine for themselves the continued efficacy of the Board's certificate." What our colleagues mean is, once a union has become defunct during the certification year, employees may not voluntarily select a successor but must use the Board's election proc- esses in order to do so. However, if no election may be held because of the provisions of Section 9(c) (3) which forbid more than one election a year, employees are to be deprived of collective representa- tion despite the fact that the certified union no longer exists, and despite the fact that their employer does not genuinely question that they have selected another labor organization as their bargaining agent. 4 See Public Service Electric and Gas Co , supra, cited with approval in Rail Brooks V. N L R B , 348 U S. 96 Of course, the Boas d's election proeegses may not be utilized to accomplish this rejection or selection if a valid election hag been held during the preceding 12-month period 5348 U S 96 ROCKY MOUNTAIN PHOSPHATES, INC. 295 Apart from the fact that Ray Brooks differs substantially front the instant case , in that the former did not involve a defunct , certified union but rather one which was actively asserting its representative claim, our colleagues have fallen into more serious error. The Su- preme Court has repeatedly stated that utilization of the Board's processes is not the only method by which a union may demonstrate its majority status. ' In United Mine Workers of America v. Arkansas Oak Flooring Co.,' a union which had not complied with the filing requirements of Section 9(f), (g), and (h) of the Act 8 and hence was barred from establishing its majority status in a Board election, sought recognition by peacefully picketing an employer . The picket- in(,- was enjoined by a State court on the theory that , as the union could not be certified as bargaining agent in a Board election, State law, rather than the Federal Act, was applicable . In striking down the State court injunction , the Supreme Court made it clear that majority status may be attained and demonstrated by means other than in a Board proceeding . Thus, the Court said ( pp. 70-72) : There is no provision stating that under those circumstances, the union may not represent an appropriate unit of employees if a majority of those employees gave it authority so to do. Likewise, there is no statement precluding their employer from voluntarily recognizing a noncomplying union as their bargaining representa- tive. Section 8(a) (5) declares it to be an unfair labor practice for an employer "to refuse to bargain collectively with the rep- resentatives of his employees , subject to the provisions of section 9(a)." [Emphasis supplied. ] Section 9 ( a), which deals ex- pressly with employee representation , says nothing as to how the employees ' representative shall be chosen . See Lebanon Steel Foundry v . N.L.R.B ., 76 U.S. App. D.C. 100, 103 , 130 F . 2d 404, 407. It does not make it a condition that the representative shall have complied with Section 9(f), (g) or ( h), or shall be certified by the Board, or even be eligible for such certification. Manifestly , this Supreme Court precedent should set at rest any notion that the 1-year election provision in Section 9(c) (3) withdraws exist- ing rights of employees under Section 7 freely to reject or select a labor organization during the certification year by means other than a Board election. To hold otherwise , as our dissenting colleagues' opinion seems to suggest , would be tantamount to saying that an em- ployer must continue to bargain with a union which does not exist, for the employees would be incapable of demonstrating the defunct- 6 See United Mine Workers of America v Arkansas Oak Flooring Co., 351 U.S. 62, and cases cited in footnote 8 therein . See also N L B B. v. District 50, United Mine Workers of America , 355 U.S. 453. ° Supra. 8 Since repealed by the Labor -Management Reporting and Disclosure Act of 1959. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' ness of their union because Section 9(c) (3) might forbid an election during the certification year to establish this fact. Moreover, contrary to our dissenting colleagues' assertion, this is not a case where an employer must determine at his "peril" where his duty to bargain lies, for the facts here clearly show, and our colleagues concede, that the Respondent was fully aware that the Independent had become defunct and that Local 375 had assumed the status of majority representative. In the circumstances of this case, to say that Respondent may lawfully resist the bargaining demands of Local 375 despite its lack of a good-faith doubt as to majority status, simply because the employees decided to abandon the Independent during the certification year, is to penalize employees for exercising rights under Section 7 and to blunt the thrust of the Act which is to foster collec- tive bargaining and industrial peace. Because we cannot subscribe to such a purpose, we find that Re- spondent violated Section 8 (a) (5) by refusing to recognize and bar- gain with Local 375 on April 6, 1961. ORDER The Board adopts the Recommended Order of the Trial Examiner.' MEMBERS RODCERS and LEEDOaz, dissenting : We disagree with our colleagues' holding that the Respondent was legally required to recognize Operating Engineers Local 375 as the representative of its employees, and that the Respondent violated Section 8 (a) (5) when it refused to do so. The material facts are not in dispute. On June 30, 1960, following ;a Board-conducted election, the Board certified the Independent Union as the representative of the Respondent's employees. There- after, apparently because of their dissatisfaction with the progress of bargaining between the Respondent and their certified representative, the employees dissolved the Independent and designated Local 375 as their representative. On April 6, 1961, Local 375 requested recogni- tion of the Respondent, and the Respondent refused. It is this refusal the majority finds was unlawful. All of the above events occurred within the Independent Union's certification year. Thus, the issue here is whether the Respondent, during that year, was obligated to recognize Local 375, or any Union, other than the Independent. We think not; in our opinion, the prin- ciples expressed by the Supreme Court in the Medo Photo Supply 10 0 The following is to be inserted in the notice immediately below the sentence beginning "This notice must remain posted . . .": Employees may communicate directly with the Board's Regional Office, 327 Logan Building , 500 Union Street, Seattle 4, Washington, Telephone Number , Mutual 2-3300, Extension 553, if they have any question concerning this notice or compliance with its provisions 10 Medo Photo Supply Corporation v. N L.R B., 321 U.S. 678 ROCKY MOUNTAIN PHOSPHATES , INC. 297 and Ray Brooks 11 cases are controlling on this issue, and require the dismissal of this complaint. In Medo, at pages 683 to 685, the Court affirmed the principle that "the duty of the employer to bargain collectively with the chosen representative of his employees . . . being exclusive . . . exacts `the negative duty to treat with no other ."' Although the Court there indicated that this duty would no longer exist if the employees re- voked their designations of their bargaining representative, it ex- pressly reserved decision as to "the extent to which or the periods for which the employees , having designated a bargaining representative, may be foreclosed from revoking their designation , if at all, or the formalities , if any, necessary for such a revocation." In Ray Brooks the Court decided the question it had left open in Medo, insofar as it applied to a representative certified by the Board. The Court there considered the impact of Section 9(c) (3)12 on the employees' right to change their designation of a bargaining repre- sentative , and approved the Board 's 1-year certification rule, stating, at p. 103: Petitioner contends that whenever an employer is presented with evidence that his employees have deserted their certified union, he may forthwith refuse to bargain. In effect, he seeks to vindicate the rights of his employees to select their bargain- ing representative . If the employees are dissatisfied with their chosen union , they may submit their own grievance to the Board. If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief, while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit . Although the Board may , if the facts warrant, revoke a certification or agree not to pursue a charge of an unfair labor practice , these are matters for the Board ; they do not justify employer self-help or judicial intervention . The underlying purpose of this statute is industrial peace. To allow employers to rely on employees ' rights in refus- ing to bargain with the formally designated union is not con- ducive to that end, it is inimical to it. Congress has devised a formal mode for selection and rejection of bargaining agents and has fixed the spacing of elections , with a view of furthering industrial stability and with due regard to administrative prudence. [Emphasis supplied.] The Court 's statements in Ray Brooks were made, it is true, in the context of a case in which the Employer was refusing to bargain with M Ray Brooks v. N.L.R B , 348 U.S 96 12 Section 9 (c) (3) provides in pertinent part* "No election shall be directed in any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held" 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a certified union which was actively asserting its bargaining rights, whereas here the certified Independent is not pressing its claim and appears to be defunct. The Court, however, did not limit its state- ment of principles to the factual situation before it (see the language italicized above), and the factual differences between this case and Ray Brooks do not, in our opinion, render that statement of principles any the less applicable here. Under those principles the employees covered by a certificate and the employer involved are not at liberty, during the certification year, to determine for themselves the continued efficacy of the Board's certi- fication. Instead, if either believes there has been a change in cir- cumstances which warrants amendment or revocation of the certifica- tion, they must petition the Board; 11 and until the Board has indi- cated that the claim has merit, the employer is under a duty to deal with the certified union, and with no other. Here, our colleagues fail to give effect to these principles because they deem the dissolu- tion of the Independent to be an "unusual circumstance" sufficient to vitiate the certification and to fasten upon the Respondent the obli- gation to bargain with the uncertified Local 375. But, as the Supreme Court pointed out, this is a hatter for the Board to determine, not for the parties. Nor, in our opinion, is it proper for the Board to place the onus of making necessary factual determinations upon an employer con- fronted with a claim such as that presented here by Local 375. Al- though the Independent here appears to have become defunct, it is not always a simple matter to determine whether the certified repre- sentative is in fact defunct; and a representative may appear to be defunct when in fact it is not.l' Yet, our colleagues' view appears to be that an employer, confronted with a claim such as that of Local 375 here, must not only make a determination as to defunctness on the spot, but must also be certain that its determination is correct. If it makes an incorrect determination, it will surely be subject to a finding that it has unlawfully refused to bargain. Thus, an employer would violate the Act if, in response to the requirements of this decision to make a determination, it determines incorrectly that the certified representative was not defunct and refuses to bargain with a new claimant to majority status. This is in sharp contrast to Ray Brooks principles which hold that an employer should not resolve on 13 Contrary to our colleagues ' assumption , the continuing vitality of an existing certifica- tion can be determined by the Board, not only through its election processes, but also, as we have stated , on the basis of a petition to amend or revolve such certification. Thus, there is no warrant for their asserted fears that, because of Section 9(c) (3), the employees may be left, for the balance of the certification year, without the representation which they desire 14 Cf Hershey Chocolate Corporation, 121 NLRB 901, 911, where the Board pointed out that "mere temporary inability to function does not constitute defunctness " ROCKY MOUNTAIN PHOSPHATES, INC. 299 its own the bargaining status of the certified representative and en- joins it not to do so and risk a violation of Section 8(a) (5).15 The result of our colleagues' decision here is to undermine the efficacy of the Board's certifications, and to require employers to determine at their peril whether or not the Board's 1-year certifica- tion rule is applicable in a given situation. In fairness to all the parties, and to preserve the status of Board certifications, we would require, as the Supreme Court has hold, that matters affecting the continuing vitality of Board certifications be presented to the Board for its determination. We would not require employers to determine at their peril whether or not they must deal with some union other than the certified representative. Accordingly, we would dismiss this complaint. 15 Unlike our colleagues , we do not believe that in United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, the Supreme Court undertook to overrule sub silentio the principles of the Ray Brooks case In the Arkansas case, these was no current Board certification of a bargaining representative , hence, the principles of that case are inapplicable to the situation here before us. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On a charge duly filed by International Union of Operating Engineers , Local 375, AFL-CIO, herein called Engineers , the General Counsel of the National Labor Relations Board , herein called the Board , alleges in this proceeding that the Respond- ent, Rocky Mountain Phosphates , Inc., refused to bargain with Engineers in viola- tion of Section 8(a)(1) and ( 5) of the National Labor Relations Act, as amended, herein the Act, and in violation of Section 8(a) (1) and ( 3) of the Act, discharged and thereafter refused to reinstate its employee , Edwin Reindl, because of his union or concerted activities . In its duly filed answer the Respondent denied the com- mission of the alleged unfair labor practices. All parties participated in the hearing conducted by Trial Examiner William E. Spencer in Butte, Montana, on October 10 and 11 , 1961, and the Respondent and the General Counsel , respectively , have filed briefs. Upon the entire record in the case, my observation of the witnesses , and con- sideration of the briefs filed with me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent , a Montana corporation , with its principal place of business in Butte, Montana, is engaged in processing and producing defluorinated phosphate for animal feed. During the calendar year 1960 it furnished goods with a valuation in excess of $50,000 to customers located outside the State of Montana II. THE LABOR ORGANIZATIONS INVOLVED Engineers and Rocky Mountain Phosphate Workers Union , the latter called herein the Independent , are, each of them , labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain Pursuant to the results of an election conducted by the Board , on July 12, 1960, the Independent was certified as bargaining representative of Respondent's employees in the following unit found to be appropriate at all times material herein: All production and maintenance employees employed by the Respondent at its Butte , Montana, operation , excluding office clerical employees , guards, pro- fessional employees , and supervisors as defined in the Act. :300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the certification good -faith bargaining ensued and continued to a date in. March 1961, when an impasse was reached . on the issue of the union shop. The Respondent counteroffered a maintenance -of-membership clause to the Independent's .demand for a union shop , and sought to persuade the latter 's membership to its point of view but failed. As a result of the impasse in bargaining, members of the In- ,dependent switched their affiliation to the Engineers , signing cards designating Engi- neers their bargaining representative. On April 4, there was a meeting of the membership of the Independent at which the said membership authorized secret balloting on the question of dissolving the Independent , designating Engineers their bargaining representative , and transferring the Independent 's treasury to Engineers. At a secret ballot held on the following day, there was an affirmative vote on each of the three propositions. The results of the secret ballot were posted at Respondent 's place of business and Respondent's knowledge thereof is established, by the posting, by a letter dated April 6, 1961 advising the Respondent of the employees' designation of Engineers as their bargaining representative, and by the fact that Respondent's practice of period- ically deducting the dues of Independent's members from its payroll ceased after its notice of Engineers ' designation. On April 6, and on various subsequent occasions, Engineers requested that the Respondent bargain with it and the Respondent refused on the ground that it was bound to recognize and bargain with the Independent for a year following its certifi- cation. At the hearing, the Respondent advanced as an additional reason for its refusal to bargain with Engineers that it had a good-faith doubt that the Engineers actually represented a majority of its employees. Its doubt, it asserted, was based on the fact that prior to the bargaining election Engineers had advised it that it held enough authorizations among Respondent 's employees to require an election, whereas when the election was actually held no votes were cast for Engineers. Bryce Rhodes, Respondent's president, further testified that he had heard talk among the employees indicating that they did not really favor Engineers as their bargaining representative and would vote for the Independent in preference to it in a secret balloting, but he was unable to give his testimony such specificity as would make it persuasive. I am convinced that this was mere speculation on his part, speculation weighted by the fact that he favored the Independent. There can be no doubt that the Respondent was duly advised of the Independent's dissolution , the transfer of its financial assets to Engineers, and the designation of the latter as their bargaining representative by erstwhile Independent members. I think under such circumstances, established by undisputed testimony, the Respond- ent cannot be held to have had a good-faith doubt that on and after April 6, 1961, Engineers was authorized by a majority of its employees in an appropriate unit to act as their bargaining representative. The sole defense of any substance to its refusal on and after that date to bargain with Engineers, is that it believed that it was prohibited by law from recognizing and bargaining with any labor organiza- tion other than the Independent for a year following the certification of the latter. I do not question the testimony of its president, Rhodes, that he had legal advice to that effect and that he in good faith relied on that advice. One may sympathize with his position but in my opinion it is nevertheless grounded in a misunderstand- ing or misinterpretation of the law, and misunderstanding of the law, whether or not attended by good faith, is no defense. Absent unusual circumstances, an employer is indeed bound to bargain with a labor organization for at least 1 year following its certification, and Congress has provided in 9(c) (3) of the Act that: No election shall be directed in any bargaining unit or any subdivision within which in the preceding 12-month period, a valid election shall have been held. As to "unusual circumstances," obviously the complete dissolution of the certified union and the affiliation of its membership with another labor organization, qualifies the 1-year-after-certification rule. The purpose of the rule is to insure bargaining without interruption for at least a 1-year period but where that becomes impossible, as it did here with the dissolution of the Independent, clearly it may not be con- strued as such an absolute rule of law as to deny the employees whose bargaining rights it was designed to safeguard any bargaining representation whatever. Such would be its effect were Respondent's construction of the rule to prevail, for no matter how great his reservoir of good faith an employer cannot bargain with a labor organization which has ceased to exist. The same reasoning applies to Congress' enactment of the 1-year rule on elections. To prevent harassments during bargaining from claims of rival labor organizations, and to stabilize the bargaining process, it enacted the 1-year rule. And it is true that Engineers was barred from establishing its majority through an election for a ROCKY MOUNTAIN PHOSPHATES, INC. 301 year following Independent's certification. But elections are but one way of deter- mining a union's majority status, and where an employer has no good-faith doubt of a union's majority he may not demand an election as a condition precedent to recognition and bargaining. I think the 1-year rule on elections is not properly construed as depriving employees in an appropriate unit of bargaining rights for a substantial part of the certification year, where in the midst of the certification year They have effectively dissolved the certified union and transferred their member- ship and the assets of the certified union to another labor organization and have duly notified the employer of their action. The stabilization of the bargaining process is one thing; its absolute denial during a substantial period is something else, and I think neither the Board in its certification year formula, nor Congress in its enactment of the 1-year rule on elections, intended to accomplish this latter result. In short, I hold that on April 6 Engineers had acceded to all bargaining rights flowing from the certification of the Independent, and inasmuch as the Re- spondent was informed as of that date of the dissolution of the Independent and the transfer of its membership and financial assets to Engineers, its refusal on and after that date to bargain with Engineers constituted a violation of Section 8(a)(5) and, derivitively, 8(a)( I) of the Act.' B. The discharge of Edwin Reindl Edwin F. Reindl was employed by the Respondent in December 1960, in sacking and cleanup, at a wage of $2.03 an hour. After about a month he was put on a machine operation and classified as operator 3, at an increased rate of pay. In late December or early January 1961, according to him, Respondent's president, Rhodes, approached him and said while it was somewhat irregular he would like to have Reindl's view on unions, and there ensued a conversation in which Rhodes said that he favored "voluntary" unionism whereas Reindl expressed his views as favoring the union shop. Rhodes admitted that the conversation occurred and described it as a friendly exchange of views. I think it was just that. Reindl joined the Independent soon after his employment and in January was elected its president. He also served as chairman of its negotiating committee. There were several meetings of the committee with Rhodes and his plant superin- tendent, Adrian L. Mathis, in which there was bargaining on a contract. As previously stated an impasse was reached on the issue of the union shop. Reindl was instrumental in bringing about a dissolution of the Independent and a transfer of its membership and financial assets to the Engineers. On or about April 9, Respondent's plant was closed for modifications, repairs, etc., and a notice to employees stated that it would remain closed until further notice. That the plant was closed solely for economic reasons is not disputed. At the time of the shutdown only one employee had less seniority than Reindl. There was a total of 23 employees, including part-time employees. By letter dated May 9, Respondent advised Reindl that due to "changed operations" he would not be recalled to work and the letter also alluded to the fact that Reindl had "the second lowest length of service" with the Respondent. It is not disputed that one reason for the shutdown of Respondent's plant was the installation of machinery which would result in a saving on labor costs, and that the position of operator 3 on which Reindle was employed at the time of the shutdown was eliminated. It further appears that the employee lower than Reindl in terms of seniority also was not recalled. Some new employees were hired at intervals subsequent to the shutdown, on a temporary or permanent basis, but the credited testimony of Plant Superintendent Mathis shows that they were employed on jobs that required, for the most part, the frequent lifting of 100-pound sacks. During the shutdown, Respondent learned for the first time that prior to his employ- ment by the Respondent Reindl had suffered injuries of a serious nature in two industrial accidents and had obtained compensation therefor on the basis of partial permanent disability. On this point Rhodes testified, "It is part of our duty to see that we don't subject our own insurance carrier to an undue claim, and ourselves, too, by aggravating injuries which were present before." On the entire evidence I can find no substantial support for the allegation that Reindl was discharged or denied employment for discriminatory reasons. There is no showing in this record that the Respondent bore any ill will toward any of its 1 In reaching these conclusions I have carefully read and studied the citations generously afforded me by Respondent's counsel, and while some of the language of these decisions appears to lend substance to the Respondent's position, none of the decisions deal with the problem which confronts us here: the total dissolution of the certified union in the midst of the certification year I think they are not controlling 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees because of their union affiliation and activities . To be sure this Respond- ent preferred to deal with an independent or company union and was opposed to compulsory unionism , but it had every lawful right to hold such views and to express them. I think there was no threat or coerciveness of any nature in Rhodes ' discus- sion of unions with Reindl soon after the latter was hired , and his negotiations with the Independent , while ending in a stalemate , admittedly were conducted in a friendly manner, without rancor or animosity , express or implied . Rhodes doubtless was aware of the leading role which Reindl played in negotiations for a union shop, and upon the breakdown of those negotiations , in the designation of Engineers by erst- while Independent members, just as he had knowledge of the leading role that some other employees played in those matters, but such knowledge alone is not sufficient to support an indictment for discriminatory action . Reindl 's job as operator was in fact eliminated and in my opinion the Respondent , in view of his physical disabilities had sound reasons for not bringing Reindl back as a common laborer who would be required to engage in heavy lifting. I shall recommend that the allegation of dis- crimination be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent 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 engaged in unfair labor practices by refusing on and after April 6, 1961 , to bargain with Engineers , the representative of its em- ployees in an appropriate unit, I shall recommend that the Respondent , on request, bargain with Engineers , and, if an understanding is reached , embody such understand- ing in a signed agreement. The refusal to bargain having risen from the Respondent 's bona fide belief that it was not required , under the circumstances of this case , to bargain with Engineers, no broad cease-and-desist order is required and none will be recommended. Upon the basis of the foregoing findings of fact , and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Engineers is, and Independent was, until its dissolution , a labor organization within the meaning of Section 2(5) of the Act. 2. All Respondent's production and maintenance employees at its Butte, Montana, plant, excluding office clerical employees , guards, supervisors , and professional em- ployees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. Engineers was on April 6, 1961 , and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargain- ing within the meaning of Section 9(a) of the Act. 4. By refusing on and after April 6, 1961, to bargain collectively with Engineers as exclusive representative of employees in the aforesaid appropriate unit , the Re- spondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (5) of the Act. 5. By the said refusal to bargain , the Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 6 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondent , Rocky Moun- tain Phosphates , Inc., its officers , agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Engineers as the exclusive bargaining representative of all employees in the previously described appropriate unit. ROCKY MOUNTAIN PHOSPHATES, INC. 303 (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to join or assist the Engi- neers or any other labor organization, 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, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with Engineers as the exclusive representa- tive of employees in the previously described appropriate unit, with respect to rates of pay, wages, hours of work, and other conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Butte, Montana, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Nineteenth Region, in writing, within 20 days from the date of the service of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply therewith .3 2In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 3In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively , upon request , with International Union of Operating Engineers , Local 375, AFL-CIO, as the exclusive representative of all our employees in the unit described below, with respect to rates of pay, wages, hours of employment , or other conditions of employment , and, if an understand- ing is reached, embody such understanding in a signed agreement . The bargain- ing unit is: All production and maintenance employees at our Butte, Montana, plant, excluding office clerical employees , guards, supervisors, and professional employees as defined in the National Labor Relations Act. All our employees are free to become , remain , or refrain from becoming members of the above -named Union , or any other labor organization , except to the extent this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act. ROCKY MOUNTAIN PHOSPHATES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.