Square D Co.

National Labor Relations Board - Board Decisions

Jun 2, 1953

105 N.L.R.B. 253 (N.L.R.B. 1953)

SQUARE D COMPANY 253
of compliance . This agreement effectively suspended the
union- shop provision , thereby legalizing the contract and making
it a bar as to any new petition.4
As we have noted above, the unit of furniture salesmen sought
by the Petitioner in its December 2 petition is inappropriate,
and the Petitioner did not seek to represent all the salesmen
until the February 12 hearing . The Board has held in an
analogous situation ,5 where the amendment at the hearing
"clearly claimed a unit larger and substantially different
from that sought in the original petition ," that a contract exe-
cuted after the filing of the petition but before the amendment
was a bar to the proceeding . Here, the alternative contention
at the hearing for a much larger , and substantially different,
unit constitutes a new claim or petition , which we find to be
barred by the outstanding contract , as supplemented on
December 8. Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
4Canada Dry Ginger Ale, incorporated, 97 NLRB 597.
The Intervenor came into compliance on December 22, 1952 , and the union- security pro-
vision thereafter lawfully went into effect The reinstatement of the union-security provision
was thus in conformity with the Act. Cf. Hughes-VertinLime Company, 104 NLRB 185.
5 American Suppliers , Incorporated , 98 NLRB 692, 694.
SQUARE D COMPANY and UNITED ELECTRICAL, RADIO AND
MACHINE WORKERS OF AMERICA (UE), LOCAL 1421,
INDEPENDENT . Cases Nos . 21-CA- 956 and 21 -CA-1106.
June 2, 1953
DECISION AND ORDER
On March 25, 1952 , Trial Examiner David F. Doyle issued
his Intermediate Report in the above - entitled proceeding,
finding that the Respondent had not engaged in the unfair labor
practices alleged in the complaint , as set forth in the copy of
the Intermediate Report attached hereto. Thereafter the General
Counsel and the charging Union filed exceptions to the Inter-
mediate Report , with supporting briefs . The Respondent fileda
brief in support of the Intermediate Report.
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 briefs,
and entire record in the case, and to the extent not inconsistent
with the findings and conclusions made below , hereby adopts the
Trial Examiner's findings , conclusions, and recommendations.
1. The complaint in this case , as explicated by the General
Counsel's bill of particulars , alleges a number of violations of
Section 8 (a) (5) of the Act, extending over a period starting in
March 1950 and reaching to November 1951 . Before issuance
105 NLRB No. 25.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the complaint on October 18, 1951, the Union filed two
charges, the first on November 24, 1950, and the second on
May 8, 1951 . As set forth in detail in the Intermediate Report,
the Union withdrew the first charge on February 26, 1951, and
the Regional Director approved such withdrawal on March 5.
At the hearing the General Counsel offered to prove the com-
mission of unfair labor practices during the 6-month period
preceding November 1950 . We agree with the Trial Examiner's
conclusion that because the first charge was effectively with-
drawn by the Union, it cannot now serve to support allegations
in the complaint referring to events occurring more than 6
months before the filing of the second charge.'
Although the Trial Examiner found that the first charge had
been effectively extinguished by its withdrawal , he considered
the possibility that the Respondent ' s concomitant promise to
hold four negotiation conferences with the Union might, as the
General Counsel argues, be tantamount to a settlement agree-
ment comparable to the usual Board settlements . In keeping
with its promise, the Respondent did meet and confer with the
Union on March 1, 7, 14, and 21. Because of these conferences,
the Trial Examiner found that, assuming the promise to meet
to have been the same as a conventional settlement agreement,
the Re spondent fully carried out such agreement by attending the
meetings. He then concluded that because the Respondent
fulfilled its promise , the Board may not find the commission
of any unfair labor practices before February 26, 1951, when
the promise , or alleged settlement agreement , was made. As
we have held that the withdrawal extinguished the first charge,
we find it unnecessary to decide whether or not the subsequent
conferences would have satisfactorily effectuated the terms of,
the agreement in a situation where a regular Board settlement
is executed . We do not regard the withdrawal as a settlement
agreement . We therefore do not adopt the Trial Examiner's
opinions and conclusions in this latter respect.
We also reject the Trial Examiner ' s further conclusion that
by its participation in the four March conferences , the Union
waived all possible earlier unfair labor practices , and that the
General Counsel was thereby estopped from alleging any unfair
labor practices preceding those conferences. The statute clearly
affords aggrieved parties the privilege of charging and proving
before the Board any unfair labor practices committed during
the 6-month period before the filing of the charge . In this case
the valid charge on which the complaint rests was filed on May
8, 1951. The full period covered by Section 10 (b) of the Act
therefore dates back to November 8, 1950 . Neither a union nor
an employer surrenders the statutory right to complain about
unfair labor practices by mere participation in negotiation
conferences . There is no statutory or logical support for the
contention that an effort to achieve stable and peaceful con-
tractual relations subjects a party to the loss of administrative
remedies . Indeed , the Trial Examiner would in effect penalize
a party to collective bargaining for engaging in the very peace-
I Olin Industries , Inc , 97 NLRB 130.
SQUARE D COMPANY 255
ful efforts to resolve labor disputes which it is the stated
purpose of the Act to encourage.
2. The negotiation conferences between the Respondent and
the UE, which are here being considered, started in March
1950 and ceased in June 1951. One of the major specifications
of the complaint is that between November 16, 1950, and March
1, 1951, the Respondent unlawfully refused to meet with the
Union's representatives. We do not agree with the Trial
Examiner's conclusion that the Respondent's admitted refusal
to deal with the Union during this period was excusable. On this
issue the pertinent facts are as follows:
,It is not disputed that on October 11, 1950, when the parties
last met before the period in question, the Union was, as it had
been for many years, the exclusive bargaining agent of the
Respondent's employees. That conference ended, as all others,
inconclusively.
On October 25, 1950, the International Brotherhood of Elec-
trical Workers and the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, AFL,
informed the Respondent by letter that they claimed to represent
its employees, and threatened to picket the Respondent's plant
if it negotiated further with the UE. On November 14, although
20 days had passed after these naked claims and no supporting
petitions had been filed, the Respondent advised the Federal
Mediation and Conciliation Service (which by this time had begun
to assist the parties to reach a contract) that because of the
rival unions' claims and the threat to picket the plant, the
Respondent did not believe it wise to arrange any further
meetings with the UE until "the atmosphere had cleared." On
November 16 the Union requested further meetings directly of
the Respondent, and insisted that the rival claims did not justify
the Respondent's refusal to continue the bargaining conferences
because the claims had not been followed by petitions within 10
days. Four days later, Burns, the Respondent's personnel
manager, spoke to the Union's chief steward in the plant about
the request to resume bargaining and told him that "he did not
know whether or not the IBEW claim was valid or not. But since
they had threatened us with a picket line . . . we wouldn't take
a chance until we were sure on it." On November 24, 1950,
the Union filed an 8 (a) (5) charge (Case No. 21-CA-956). The
parties never met again until after the Board's Regional Office,
having investigated this charge, advised the Respondent that a
complaint would issue.
The Respondent then asked for time in which to endeavor to
restore bargaining with the Union, and as a result it met with
union representatives again on February 26, 1951, when the
parties agreed to a withdrawal of the charge, and scheduled
the four negotiation conferences discussed above.
In recommending dismissal of this allegation, the Trial
Examiner rests on two conclusions of law which, on Board
precedent, are clearly erroneous. Contrary to his conclusion,
naked rival claims to representation, unsupported by subsequent
petitions or any other evidence of substance for a period as
long as more than 20 days, do not relieve an employer of the
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statutory obligation to bargain with the established majority
representative.? Similarly, the filing of charges does not excuse
an employer's refusal to bargain.'
The Trial Examiner supports his dismissal of this specific
charge on two other grounds which are equally untenable. He
finds that the parties had reached an impasse in their negotia-
tions, and that therefore the Respondent was justified in refusing
to meet further. The record shows that the parties were bar-
gaining "hard," but it does not support the finding that the
parties had reached an impasse. Nor did the Respondent then
advance such an assertion in justification of its refusal to meet.
The Trial Examiner's final ground, that because the Union met
with the Respondent in subsequent bargaining it precluded itself
from complaining of the earlier admitted refusals to meet, we
have already considered and rejected.
The only question that remains on this aspect of the case,
then, is whether the refusal to meet with the Union during this
period was grounded on any good-faith doubt of the Union's
majority. The Respondent did not then question the UE's
majority status. Rather, it gave as the ground for its refusal
the fear of picketing by other unions. As the Board has held,
the threat of economic reprisal does not excuse the commission
of unfair labor practices.4 These facts, coupled with the total
absence of any proof of substance to the rival claims and the
Respondent's willingness to deal with the UE once the charge
was withdrawn, are persuasive evidence that its denial of the
Union's request for meetings was in fact an act of bad faith.
Moreover, the Respondent did not choose to file a petition for
representation with the Regional Office, a simple way to "clear
the atmosphere." On all the facts, therefore, we find that by
refusing to meet with the Union from November 16, 1950,
through February 1951 the Respondent violated Section 8 (a) (5)
and (1) of the Act independently of any other element of the case.
3. A specific act of the Respondent, also alleged to be an
independent violation of Section 8 (a) (5), was its unilateral
institution of a pension plan in the Los Angeles plant. The
Respondent put the pension in effect on January 1, 1951, in the
middle of the 4-month period discussed above, during which it
was refusing unlawfully to meet with the Union at all. We do not
agree with the Trial Examiner's conclusion that this conduct
was entirely proper.
There has never been a pension plan at the Los Angeles
plant. The earliest reference to pensions shown in the record
is found in the December 1949 supplemental agreement between
the Respondent and the UE. This contract provided "this
company is now studying the various pension plans, and, when
the company policy has been determined, this office will be
prepared to discuss the pension plans or the equivalent with
2See William Penn, 93 NLRB 1104, and General Electric X-Ray, 67 NLRB 997.
3United Shoe Company, 96 NLRB 1309, 1327; Dealers Engine Rebuilders, 95 NLRB 1009,
and Union Manufacturing Company, 95 NLRB 792.
4See Printz Leather Co., 94 NLRB 1312, 1327; H. Milton Newman, 85 NLRB 725.
SQUARE D COMPANY 257
each bargaining unit." It then appears that the matter of
pensions was discussed at several of the bargaining conferences
after the last contract was terminated . The Union asked for
some form of pension benefit . At the July 6, 1950, meeting, the
Respondent said that it was "not prepared at this time to
discuss it ," and when the Union asked why the plan in effect
at the Respondent ' s Detroit plant could not be used in Los
Angeles, the Respondent answered , "we are not basing any
of the things we do on what Detroit does . . ." Again at the
August 23 meeting the Respondent said that it was working on
a plan, and explained that " the length of time required to work
out the details of the pension plan was due to the complicated
statistical data involved such as the number. . . employed in the
various age groups over the past 10 years, and the compilation
of actuarial figures from this data. . . ."
The first and only mention of the plan later instituted by the
Respondent occurred at the meeting of October 11, 1950. Here
the Respondent submitted its plan to the Union. Because Miss
Page, who made minutes of all the other meetings , was not
available that day, no written record was kept of this confer-
ence . Elconin, the Union ' s principal negotiator, testified that
the plan was presented at this meeting , that the Union asked
for time to study it and that Respondent ' s representatives
agreed to discuss the plan at a future meeting, that they said
they wanted it in effect as soon as possible but that no specific
date was mentioned for its adoption . Burns, the Respondent's
personnel manager, also testified that at this meeting the plan
was discussed , and added that "to the best of my knowledge
we had told the Union at that time, as I remember , we wished
to put the plan into effect the first of the year. " He also
testified that he did not recall any expression by the union
representatives for or against the proposed effective date.
On October 17, 1950, the Union issued a bulletin to its
members entitled " Company submits pension plan," in which
it took the position that there were various weaknesses in the
plan and called a union meeting to consider it. As stated above,
following the bare, and never restated , claims of the IBEW and
the Teamsters , the Respondent refused to meet with the Union
again . There were no other conferences until February 26,
1951, after charges had been filed.
On these facts and on the entire record it is clear that the
Respondent ' s action in putting the plan in effect was completely
unilateral and bypassed the recognized exclusive bargaining
agent . The record does not support the Trial Examiner's
finding that the Respondent did not act unilaterally. The
testimony of Elconin and Burns as to the conference of October
11 is substantially not in disagreement . Burns admitted that
he could not recall any expression by the Union for or against
any proposed effective date for the plan . Indeed, it is not clear
that he specified January 1 as the date which the Respondent
desired, for his testimony is couched in terms of "to the best
of my knowledge ," and "as I remember ." Certainly, his
testimony , which the Trial Examiner properly credited, does
not even suggest that the Union agreed either to the plan or to
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a set date for its adoption. The Respondent's refusal after
October 11 to hold any meetings with the Union made it im-
possible for the latter thereafter to express any position
respecting the plan.
Our conclusion that the Union did not agree to the plan also
rests on documentary evidence--its authenticity not attacked by
the Respondent. This is the Union's call to the employees on
October 17 to discuss the weaknesses of the plan. We see
nothing in this written announcement to support the Trial
Examiner's construction of it as an acceptance of the plan and
as announcement of a victory achieved by the Union in collective
bargaining on behalf of the employees.%
The Trial Examiner also based his dismissal of this allega-
tion on the alternative, and completely inconsistent ground, that
the parties had reached an impasse. Like the finding that the
Respondent did not act unilaterally, this second view is equally
untenable in the light of the evidence set forth above. The
Respondent's pension plan was discussed at only one meeting.
The Respondent submitted it and the Union was to consider it
and respond later. Negotiations then broke down and a charge
was filed, not because of any disagreement respecting the
pension plan, but because the Respondent unlawfully refused to
meet with the Union at all.
The court of appeals decision in the Bradley Washfountain
Co. case,' on which the Trial Examiner relies exclusively, is
in all material respects inapposite here. In that case not only
had the union rejected the employer's wage increase offer, but
the employer continued to recognize and deal with the union
despite its unilateral action. The Respondent, on the contrary,
not only ignored the Union by denying it any opportunity to take
a position respecting the pension proposal, but during the same
period refused to confer with its representatives.
For these various reasons, we find, contrary to the Trial
Examiner, that by unilaterally instituting its pension plan on
January 1, 1951, the Respondent committed an independent
violation of Section 8 (a) (5) and (1) of the Act.7
4. The last contract between the Respondent and Union was
terminated as of April 13, 1950. Up to that time, and for a
number of years, grievances in the plant had been processed
in accordance with set procedures established by contract.
Because the Union had chosen to cancel the last agreement, the
Respondent took the position that thereafter, and until a new
agreement might be made, it was no longer obligated to follow
the grievance procedure last agreed upon. The complaint
5 The pertinent language of this announcement read: "last week, the management submitted
a proposed pension plan ...your committee analyzed and compared the proposed plan with the
Detroit pension plan. The plan proposed locally has many basic weaknesses. At a meeting soon
to be announced, your committee will analyze these weaknesses and present NO facts in
connection with the Company's proposal. " (Emphasis in original.)
6192 F. 2d 144 (C. A. 7), reversing 89 NLRB 1662.
7 General Motors Corporation, 81 NLRB 779; Inland Steel v. N. L. R B., 170 F. 2d 247 (C. A.
7), affirmed on certiorari 339 U.S. 382, enforcing 77 NLRB 1.
SQUARE D COMPANY 259
alleges, however, that from that date on the Respondent not only
refused to honor the old procedures, but also refused to
recognize the union stewards in the plant, or to permit them to
participate in the handling of employee grievances at their
earlier stages. By such conduct then the Respondent unlawfully
denied the Union the representative status to which, as exclusive
bargaining agent, it was entitled. The Trial Examiner found
that the evidence did not support this allegation. We do not
agree.
As is true with respect to many other elements of this case,
the positions of the parties, as well as their conduct throughout
the long period of conferences, is shown primarily by the written
minutes of the meetings, received in evidence. The following
excerpts from these minutes clearly reveal the Respondent's
determined attitude on the subject of steward participation in
grievances, and consequently show what its conduct during the
period in question must have been.
At a meeting on April 10, 1950', just a few days before the
effective date of cancellation of the old contract, the Re-
spondent's representative said:
... When this contract was no longer in effect and until
such time as they bargain on a new one, the Company felt
that no union meetings of employees who were not reporting
for work should be allowed on company property without
securing the consent of management. Mr. Elconin asked
that this be repeated, and Mr. Miller explained that after
next Friday there will be no more shop committee, no more
stewards, and no more union meetings to be held on
company property unless permission is first secured from
management.
The minutes of the April 25 meeting contain the following:
. . . Mr. Elconin [union representative] said, the Company
is acting as if the Unionisnolonger recognized here--they
have told the people the shop stewards are no longer to be
recognized as such, .. .
Mr. Burns replied that the only purpose of the shop
committee is to administer the contract, and the contract
no longer existed since the Union had cancelled it.
When the Union cancelled their contract with this
Company, Mr. Miller [Respondent's representative'],_added,
in his opinion their status became the same as if they had
won an election in the shop and were just beginning
negotiations.
Mr. Elconin felt that ... the only sensible procedure
was to continue to recognize the shop stewards in the
matter of handling grievances.
Mr. Miller thought this was a rather one-sided deal and
the Company definitely could not agree to it.
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Elconin . . . said, "You have told the people the
shop committee no longer exists."
The Company maintained that the shop committee now
exists only for the purpose of negotiating , and Mr. Miller
said the Company was perfectly willing to listen to any
grievances individually; whereupon Mr. Elconin said, "We
are going to process grievances."
The Company again stated that they would listen to any
grievances individually.
Again at the July 6 meeting:
In [the Union ' s] opinion , the Company had committed
some acts which could well be considered unfair labor
practices . . . ( 1) the Company has shown an unfair attitude
toward the shop stewards . To this Mr . Miller replied that,
since there was no longer a contract in existence the
Company did not feel that they could recognize the shop
stewards as such.
As the meetings continued , the parties debated their con-
flicting grievance procedure proposals for a new contract. In
substance , the Union wanted its stewards to participate in the
first or second stage of grievances , while the Respondent
insisted that they should not participate in those low-level
grievances . In support of its position , the Respondent pointed
to the fact that during negotiations matters had proceeded
smoothly in the plant . The statement by the Respondent's
representative on this point at the August 23, 1950, meeting,
in effect an admission that stewards were not then being per-
mitted to function, reads as follows:
... during the past few months , grievances had been
handled and satisfactorily settled in this manner, and it
was not necessary to have the shop steward or shop
committee present until the third step had been reached.
On these pertinent excerpts from the minutes, and on the
entire record, we are convinced that the Respondent made it
clear to the union representatives during negotiating meetings
that it would not permit stewards to participate in the ordinary
grievances of the employees . It is now well established that an
employer may not unlawfully deny this privilege of repre-
sentation in grievances to the chosen majority representative
of the employees.s
It is true , as Burns testified , that during the 6-month period
preceding the charge the Union made no attempt to represent
grieving employees in defiance of the Respondent ' s declared
8 Bethlehem Steel Co , Shipbuilding Division , 89 NLRB 364.
See, also, Section 9 (a) of the Act , which provides in pertinent part, that employees may ap-
peal to the employer directly "Provided .. That the bargaining representative has been given
opportunity to be present at such adjustment."
SQUARE D COMPANY 2 61
prohibiting policy. In view of the adamant insistence of the
Respondent ' s representatives in the conferences , the Union
was not required to test the finality of the Respondent's
determination in order later to prove its existence . It suffices,
as proof of this particular allegation of the case , that the
record affirmatively establishes the Respondent ' s unlawful
refusal , in this respect , to accord to the Union the repre-
sentative status which under the Act it was obligated to grant.9
Accordingly, unlike the Trial Examiner, we find that by its
refusal to permit union stewards to represent employees in
grievances from November 8, 1950, and thereafter , the Re-
spondent violated Section 8 (a) (5) and ( 1) of the Act.
5. During the last 12 months of the abortive negotiations,
the Respondent persistently demanded a contract clause pro-
viding that , at the Respondent ' s choice, all representatives of
the Union , from international representatives down to stewards,
must sign affidavits disavowing communistic affiliations or
beliefs, as a prerequisite for dealing with the Respondent. The
complaint alleges that the Respondent refused to make any
contract without this clause and by such adamant insistence
committed an independent violation of Section 8 (a) (5).
The Respondent asserts that it did not insist upon inclusion
of this clause as a condition to signing a contract . It also
defends on the ground that it could lawfully insist upon the
provision to the point of impasse.
The Trial Examiner concluded that in the particular circum-
stances of this case the Respondent had a right to require the
disputed affidavits of all union representatives , and he therefore
recommended dismissal of this allegation of the complaint.
Apparently for this reason, he considered it unnecessary to
decide and made no finding as to the subsidiary question of
whether there was unyielding insistence by the Respondent.
The Respondent first advanced the non-Communist affidavit
proposal at the meeting of May 10, 1950.10 The minutes of
the subsequent meetings reveal repeated and extensive heated
arguments on the subject . The most significant excerpts
indicative of the Respondent ' s absolute insistence on this
clause start in the August 23 meeting , when , during a lengthy
discussion of the clause , the Respondent said that it "could not
agree to leave out any of it ," and "I think we're going to keep
9Relection, on credibility grounds, of the testimony of Gerardo that he attempted to repre-
sent a complaining employee and was denied the privilege by company officials, is not evidence
that the Respondent in fact permitted such activity
10 The proposal read as follows: "The Company may require a non-Communist affidavit from
any individual or individuals, claiming to represent the Union in any capacity before recognizing
such individual as a representative of the Union. The Company may refuse to confer, meet
with, or bargain with any such person or persons who decline to furnish such affidavit or
affidavits Such affidavit shall affirm that the individual is not a member of the Communist
Party or affiliated with such party and that he does not believe in and is not a member of or
supports any organization that believes in or teaches the overthrow of the United States Gov-
ernment by force or by any illegal or unconstitutional methods."
The only change in the proposal during theextended neogitations was a similar requirement
added with respect to company representatives.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that section. " At the September 13, 1950, meeting the Re-
spondent tried " to make clear the reason for [its] insistence
on the inclusion of this paragraph ." Again, on April 2, 1951, the
Respondent included the non - Communist affidavit proposal
among those concerning which the Union would have to change
its position before an agreement was reached , saying that these
articles "were the 'basic articles ' on which they felt they would
not change their position ." Finally, at the April 16, 1951,
meeting, the Respondent said that a union counterproposal of a
hortatory statement indicating adherence to the Constitution
generally was not sufficient ,- and that " in view of the facts
brought out there, the Company would . . . have to insist that
the Union and all its officers and/or representatives . . . shall
^o the satisfaction of the Company establish their freedom from
Communist activities . . . ." When asked by the Union whether
..you are saying you won't sign the contract with us unless you
get this," the Respondent replied , " that is what they said,"
and "that it was a basic condition with them."
Against this clear proof of the Respondent ' s adamant in-
sistence respecting the affidavits , its contention now that it
was always willing to bargain away the proposed clause is
unpersuasive . The record does show that on several occasions
it invited the Union to offer counterproposals , provided they
matched the Respondent ' s concept of the limitations that should
be imposed on the bargaining representatives . Every union
proposal was rejected . The Respondent also pointed to the fact
that at the June 5, 1951, meeting , the last between the parties,
it said that none of its proposals was important enough to hold
up agreement, and that it also suggested the same affidavits for
company representatives.
The June statement , referring generally to the great number
of disagreements of the past--including many economic mat-
ters--and made after a year of unwaivering insistence upon the
affidavits , serves little to offset the direct evidence set forth
above . In any event , it was made after the final charge was
filed. The offer to have the Respondent ' s officers sign affidavits
is, of course, no indication that the Respondent thereby relented
in its own demand.
Assuming , for the moment, that the Respondent was disposed
to sign a contract with the Union at all , we find, on the foregoing
facts and upon the record as a whole , that it would not have
signed any agreement without the non-Communist affidavit
clause upon which it insisted throughout the conferences.
It is clear that the affidavits in question were broader in
scope than those provided for in Section 9 (h) of the Act, and
that the Respondent ' s demand in effect extended the filing
requirements of that section to all union representatives--high
and low . It is not disputed that the clause imposed upon the
majority representative freely selected by the employees an
impediment in excess of any provision of the statute . Indeed,
the Respondent ' s purported reason for urging it was precisely
to impose such further restrictions.
SQUARE D COMPANY 263
It is now well - established law that an employer may not
curtail the right of employees to select a bargaining repre-
sentative of their own choosing by imposing impediments on
their union ' s bargaining activities , except to the extent specifi-
cally permitted by the Act.11 This basic principle has been
applied not only to attempted restraints bearing no relationship
to any statutory concepts , but also to attempts to extend those
limitations which the Act imposes.12 In view of the clear
principle emerging from these cases, which the Trial Examiner
recognizes , we find that the Respondent here couldnot lawfully
insist upon the clause in question , and that by so doing it
violated Section 8 (a) (5) and (1) of the Act.
We do not agree with the Trial Examiner ' s conclusion that
the Respondent's conduct, as revealed by the entire record in
this case , warrants a deviation from the general rule set forth
above. At the hearing it defended the earlier insistence upon the
affidavit clause as a bona fide attempt to protect the employees
and the plant from communist influence. One of the asserted
bases for this alleged concern was the tardy compliance with
the filing requirements of the Act by the Union while it was
affiliated with the Congress of Industrial Organizations. How-
ever , in 1949, when, because of the Union's noncompliance, the
Act explicitly withheld our administrative process from itas a
means to prove its majority status , it was the Respondent itself
which assisted the Union to evade the statutory disability by
holding a private election for its sole benefit.
The other principal reason urged by the Respondent at the
hearing was the fact that the CIO had expelled the Union because
of its Communist reputation . And yet, after the expulsion, this
Respondent negotiated and executed an agreement with the
Union , and even offered to reinstate the old contract as a
compromise for the Union' s new economic demands. And
finally, a third factor urged by the Respondent as prompting
its affidavit proposal was a speech made by Elconin, the
Union's chief negotiator , at a meeting reported in the local
newspapers as "leftist ." Significantly , however , the speech was
made a year after the Respondent submitted the clause to the
Union.
Due consideration of these facts can lead only to the conclu-
sion that the Respondent was not actually motivated by any
bona fide concern over the Union ' s left -wing reputation. The
patent deviousness of its sudden reasons, viewed in the light of
the other specific and independent violations of the Act by the
"The Oliver Corporation , 74 NLRB483 ( limitationoncomposition of bargaining committee);
IBS Mfg Co., et al ., 96 NLRB 1269 ( posting of performance bond ); Consumer Lumber and
Veneer, 63 NLRB 17, and Dalton Telephone Co. v. N: L. R. B. 187 F. 2d 811, cert. denied 392
U. S. 824 ( compliance with State registration statutes ); see also Hill v. Florida , 325 U. S.
538 (requiring license of union business agents).
i2Standard Generator Service Company of Missorui , 90 NLRB 790. In this case the Board
found that the employer evidenced its bad faith and thereby violated Section 8 (a) (5) by insist-
ing upon " inclusion of broad political and economic pledges" in the proposed contract. See
also United Electrical Radio & Machine Workers v. Paul M Herzog , 110 F. Supp 220 (D. C ,
D. C.).
291555 0 - 54 - 18
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent found herein, convinces us that it was motivated,
in its proposal of and insistence upon this clause, by a desire
never to reach agreement with the Union, rather than by what
we agree would be a commendable desire to combat subversive
influences.
We are not here called upon to decide the general merits of
such a defense if it were in fact founded upon security consid-
erations . In another case we might well entertain an argument
that, in view of the asserted relative ineffectiveness of Section
9 (h) today, it would not be unreasonable for an employer, who
was otherwise bargaining in good faith , to insist upon an affi-
davit clause of this type as a measure of self-protection, in a
situation where the statute could not help much against suspect
unions . Careful consideration and great weight would also be
given by this Board to an employer ' s refusal finally to execute
an agreement , after good-faith negotiations with union repre-
sentatives , if the refusal stemmed from a Defense Department
directive based on security factors . This case, however, is not
of such a character. As our findings above establish, the
Respondent ' s insistence on the non -Communist affidavits can
scarcely be said to have arisen solely froma desire to protect
either its plant or its employees ; the numerous other unfair
labor practices of the Respondent that do not relate to plant
protection , and the unpersuasive reasons advanced at the
hearing as justifying the proposal , negate any such inference.
Instead, the entire record presents a picture of an employer
seeking to avoid its responsibilities under the statute, attempting
to undermine a union, and determined to avoid reaching
agreement with it.
We find, accordingly, contrary to the Trial Examiner, that
this Respondent violated Section 8 (a) (5) and (1) of the Act by
insisting upon the non -Communist affidavit clause under the
circumstances present here.
6. In addition to the specific violations of Section 8 (a) (5)
discussed above, the complaint also calls attention to certain
other aspects of the Respondent 's conduct throughout the
conferences as being at least indicative of bad-faith bargaining,
and alleges that the Respondent was at all times determined
unlawfully to deny bargaining rights to the Union. The Trial
Examiner was of the opinion that the Respondent always bar-
gained in good faith , and, although he considered each of the
separate items of the bill of particulars , he found that there
was no evidence of bad faith in any of them.
As we have already found that the Respondent knowingly
breached its statutory obligation to bargain in several re-
spects--some of them clearly demonstrating its unlawful
intent--no useful purpose would be served by considering
each of the remaining allegations of the complaint. As to
some of them we might well agree with the Trial Examiner.
For example , he found that the Respondent' s continuance of
a cost-of -living bonus plan, instituted at a time now protected
by Section 10 (b) of the Act, was not unlawful despite the
Employer' s obligation to bargain with the Union. In ordinary
SQUARE D COMPANY 265
circumstances this ruling would be correct . However, in the
light of the unlawful frame of mind revealed by other conduct
of the Respondent , it may well be that those same raises were
granted in furtherance of an overall illegal intent. The same
is true about the Respondent ' s delay in setting conference
dates, its inconsistent arguments , and its complete reversal
of position respecting reinstatement of the old contract terms.
Indeed, it is possible that had the Trial Examiner reached the
correct conclusion with respect to those allegations which we
have considered at length , he might himself have seen evidence
of bad faith in other conduct and statements of the Respondent's
representatives.
We are satisfied upon the entire record that at no time during
the long period of futile conferences did the Respondent ap-
proach the negotiations with an open mind in an honest attempt
to reach agreement with the Union. As early as October 1950
it granted a cost-of-living bonus to all employees before
advising the Union of the amount of money involved or giving
it an opportunity to accept or reject the offer . " We make no
unfair labor practice finding with respect to this raise, but we
note the Respondent ' s unilateral action preceding the Section
10 (b) period.14
Thereafter the Respondent's intent to bypass the Union, to
discredit it, and to avoid making any contract is clearly shown
by its unilateral institution of the pension plan, refusal to
recognize stewards in the plant , refusal to meet with the Union
for a protracted period, and bad-faith insistence upon affidavits
intended to disqualify all union representatives. In these cir-
cumstances , we find it unnecessary to consider any other al-
legation of the complaint . Without adopting or rejecting the Trial
Examiner's many other detailed findings , we find that the
Respondent failed to meet the standards of good-faith bargaining
required by the Act and therefore violated Section 8 ( a) (5) and
(1) thereof.
7. At the hearing the Respondent contended that the Union
had lost its majority status , but the record does not show
whether this contention was urged as a defense to any of the
refusal-to -bargain allegations , or to avoid a future obligation
to recognize the Union as bargaining agent. The assertion
rests primarily upon an employee petition circulated by
employee Flores in March 1951 , in which more than 60 percent
of the employees expressed a desire for an election. The
Respondent met with the Union a number of times thereafter,
and it admits that it never questioned the Union ' s authority,
before the hearing, on this ground . Indeed, the only time the
Respondent made any issue of its statutory obligationto recog-
l3 The Trial Examiner erroneously reported that this bonus plan had been discussed with the
Union and that an impasse had been reached on the wage issue The record shows only, and we
find, that the Respondent offered the Union a single package bonus plan (with amounts yet to
be decided) to meet all wage demands, that the Union agreed to consider it and to reply later,
that the Respondent promised to advise the Union of the amounts involved, and that it then
proceeded to grant the raise to the employees before telling the Union how much was involved
and before the Union could respond at all on the proposal
14N. L. R. B v. General Shoe Corp , 192 F. 2d 504 (C. A 6). enforcing 90 NLRB 1330, cert
denied 343 U.S. 904.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nize the Union was on November 14, 1950, 3 weeks after re-
ceiving the naked and never substantiated rival claims of the
IBEW and the Teamsters.
The Union ' s majority , firmly established before the first
conference in January 1950 , and presumptively continuing
throughout the entire period of meetings, is plain. It was
originally certified by the Board back in 1943, while affiliated
with the CIO . The Union ' s authority was reaffirmed in 1948,
when it won an election conducted under the Respondent's own
auspices by a vote of 129 to 4. Throughout this long period it
has enjoyed successive collective -bargaining contracts.
In view of the serious unfair labor practices committed by
the Respondent before March 1951 , the Flores petition--even
assuming that it could in other circumstances be deemed to
rebut the presumption of continuing majority is --cannot now
serve as proof of loss of majority. By unlawfully - ignoring and
discrediting the Union , and thereby necessarily coercing the
employees in their union sympathies , the Respondent made it
impossible later to appraise their true sentiments towards the
Union as a bargaining agent.is We therefore reject the Trial
Examiner's finding that after March 26, 1951, the Union no
longer represented a majority of the employees here involved.
Nor is the Trial Examiner's findings of loss of majority
strengthened , as he says , by the fact that on July 11, 1951, 2
months after the final charge was filed, the United Automobile
Workers of America, CIO , filed a representation petition with
the Board supported by a majority of authorization cards. By
that time the Respondent ' s unremedied unfair labor practices
precluded any reliable and untrammeled expression of choice
by the employees as to their choice of bargaining representative.
8. In partial support of their request for reversal of the
Trial Examiner , both the General Counsel and the Union charge
that in his report of the case and in his consideration of the
many issues , the Trial Examiner revealed a prejudicial bias
against them. In major part , this contention rests on the facts
that the Intermediate Report contains a number of inaccuracies,
some misstatements of fact , and several material omissions,
and that, as we have already explained , the Trial Examiner
misconceived the law in a number of instances.
Although it is true that the Intermediate Report reveals
many errors of fact " and of law, we cannot say that mistakes
',Superior Engravinggg Company, 83 NLRB 215
16N L. R. B v, Franks Brothers Co , 321 U S 702.
17 We have already corrected those errors of the Trial Examiner whicc, are material to
the complaint allegations discussed above lie was also in error in stating that the minutes
of the October 11, 1950, meeting do not support Elconin's testimony that at that time he pro-
tested the Respondent's unilateral institution of a cost-of- living bonus; no minutes were made
of that meeting. The minutes of the April 2, 1951, meeting show that Elconin said the Re-
spondent was bargaining "hard." The Trial Examiner explicitly discredits Elconin's denial
of this statement, but nowhere in the record did Elconui make such a denial The Trial Exam-
iner also erroneously reported that the May 7 meeting adjourned because of a misunder-
standing among the union committeemen; instead the minutes show that the Union wished to
continue the meeting, but the Respondent flatly refused to do so
There are a number of other minor errors in the Intermediate Report. However, because a
detailed appraisal of the other allegations of the complaint could in no event alter our final
conclusion and remedial order. we find it unnecessary to correct each of them
SQUARE D COMPANY 267
are proof of bias. Nor do we believe that the Trial Examiner's
refusal to credit some of the General Counsel ' s witnesses, and
his consistent disagreement with the many contentions made in
support of the complaint, necessarily reflect a predetermined
judgment against the prosecution . All things considered, we
believe that the general charge of bias and prejudice has not
been sustained.
We do, however, agree with the General Counsel's insistence
that the record in this case affords no bias whatever for the
Trial Examiner's gratuitous comment that the General Coun-
sel's entire prosecution was carried on in bad faith. On the
contrary, the many intentional violations of the Act by the Re-
spondent established by the evidence adduced at the hearing
attest to the diligence and integrity of the General Counsel and
the Regional Office staff. The Trial Examiner found fault par-
ticularly with the General Counsel's contention that the Re-
spondent could not lawfully refuse to meet with the union repre-
sentatives during the short period immediately after issuance
of the complaint and before trial of this case.There is ample
support in past Board decisions for this position of the General
Counsel." If in this instance we make no specific finding re-
specting this particular allegation, it is only because, in view
of the long period of time covered by the charge and the many
complex issues involved , the Respondent's representatives
could normally require that immediate period to prepare their
defense. In any event, a possible error in judgment or as to the
law could no more justify criticism of the General Counsel than
the numerous mistakes of the Trial Examiner warrant a charge
of bias against him.
Accordingly, we reject every implication that the case was
not prosecuted in good faith by the General Counsel. We also
reject specifically the Trial Examiner's finding that the Union
filed its charge on May 8, 1951, for the purpose of obtaining
dismissal of the UAW-CIO's representation petition, which was
not filed until 2 months later.
The Effect of the Unfair Labor Practices Upon Commerce
The activities of the Respondent set forth herein, occurring in
connection with the operations of the Respondent, have a close,
intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend tolead to labor disputes bur-
dening and obstructing commerce and the free flow thereof.
THE REMEDY
Having found that the Respondent has engaged in the unfair
labor practices set forth above , we shall order that it cease
and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that the Respondent refused to bargain
collectively with the Union as the representative of its em-
l8See cases cited in footnote 3, supra
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in an appropriate unit. Accordingly, we shall order the
Respondent to bargain collectively with the Union as the ex-
clusive bargaining representative of the employees in the ap-
propriate unit with respect to rates of pay, wages, hours of
employment, and other terms or conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement.
The violations of the Act which the Respondent committed
are presuasively related to other unfair labor practices pro-
scribed by the Act, and the danger of their commission in the
future is to be anticipated from the Respondent's conduct in
the past. The preventive purposes of the Act will be thwarted
unless our order is coextensive with the threat. In order,
therefore, to make more effective the interdependent guaran-
tees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the polices of the Act,
we shall order the Respondent to cease and desist from in-
fringing in any manner upon the rights guaranteed in Section 7
of the Act.
CONCLUSIONS OF LAW
1. United Electrical, Radio and Machine Workers of America
(UE), Local 1421, Independent, is a labor organization admitting
to membership employees of the Respondent.
2. All production and maintenance employees of the Re-
spondent at its 4335 Valley Boulevard, Los Angeles, California,
plant, including warehousemen, watchmen, and janitors, but
excluding executives, administrative employees, clerks, office
employees , engineers , draftsmen , research employees, ex-
perimental employees, salesmen, outside employees, truck-
drivers, and supervisors 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. United Electrical, Radio and Machine Workers of America
(UE), Local 1421, Independent, is now, and during all times
material has been, the exclusive representative of all the em-
ployees in the aforesaid appropriate 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 Electrical,
Radio and Machine Workers of America (UE), Local 1421, In-
dependent, as the exclusive representative of its employees in
the aforesaid appropriate unit, the Respondent has engaged in
unfair labor practices within the meaning of Section 8 (a) (5)
and (1 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce, within the meaning of Section 2
(6) and (7) of the Act.
SQUARE D COMPANY 269
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, the National Labor
Relations Board hereby orders that Square D Company, Los
Angeles, California , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Electrical,
Radio and Machine Workers of America ( UE), Local 1421,
Independent , as the exclusive bargaining representative of all
production and maintenance employees of Respondent at its
4335 Valley Boulevard , Los Angeles, California , plant, including
warehousemen , watchmen , and janitors , but excluding execu-
tives, administrative employees , clerks, office employees,
engineers , draftsmen , research employees , experimental em-
ployees, salesmen , outside employees , truckdrivers , and super-
visors as defined in the Act , with respect to rates of pay , wages,
hours of employment , and other conditions of employment.
(b) Taking any unilateral action in derogation of the aforesaid
Union's right to act as the exclusive representative of such
employees , with respect to any matter properly subject to the
collective -bargaining process.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
United Electrical , Radio and Machine Workers of America (UE),
Local 1421 , Independent , 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, and
to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3)of the Act, as guaranteed
in Section 7 thereof.
(d) Interfering , in any other manner, with the efforts of the
Union to bargain collectively with it, onbehalf of the employees
in the aforesaid appropriate unit, as their exclusive bargaining
agent.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with United Electrical,
Radio and Machine Workers of America ( UE), Local 1421,
Independent , as the exclusive bargaining representative of the
employees in the aforesaid bargaining unit , with respect to rates
of pay, wages , hours of employment , and other conditions of
employment and, if an understanding is reached , embody such
understanding in a signed agreement.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its plant in Los Angeles , California , copies of
the notice attached hereto and marked "Appendix A." i9 Copies
of such notice, to be furnished by the Regional Director for the
Twenty - first Region ( Los Angeles , California ), shall after
being duly signed by the Respondent ' s representative , be posted
by the Respondent immediately upon receipt thereof , and main-
tained by it for a period of sixty ( 60) consecutive days there-
after in conspicuous places , including all places where notices
to employees customarily are posted . Reasonable 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 Twenty - first Region,
in writing , ten (10 ) days from date of this Order what steps the
Respondent has taken to comply herewith.
19 in the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words " Pursuant to a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Re-
lations Board , and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that :
WE WILL , upon request , bargain with United Electrical,
Radio and Machine Workers of America ( UE), Local 1421,
Independent , as the exclusive representative of all em-
ployees in the bargaining unit described below with respect
to wages, rates of pay, hours of employment , and other
conditions of employment , and if an understanding is
reached, embody such understanding in a signed agree-
ment. The bargaining unit is:
All production and maintenance employees at our plant at
4335 Valley Boulevard , Los Angeles , California , including
warehousemen , watchmen, and janitors , but excluding
executives , administrative employees , clerks, office em-
ployees, engineers , draftsmen , research employees, ex-
perimental employees, salesmen, outside employees,
truckdrivers , and supervisors as defined in the Act.
WE WILL NOT take any unilateral action in derogation
of the above -named union's right to act as the exclusive
representative of our employees in the above ,described
unit, with respect to any matter properly subject to the
collective -bargaining process.
WE WILL NOT in any manner interfere with, restrain,
or coerce our employees in the exercise of their right to
self-organization , to form labor organizations , to join or
SQUARE D COMPANY 271
assist United Electrical, Radio and Machine Workers of
America (UE), Local 1421, Independent, or any other labor
organization, to bargaining collectively through repre-
sentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all of
such activities, except to the extent that such right may be
affected by an agreement requiring membership in alabor
organization as a condition of employment as authorized in
Section 8 (a) (3) of the 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 that their right
to refrain may be affected by a lawful agreement which re-
quires membership in a labor organization as a condition of
employment.
SQUARE D COMPANY,
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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This consolidated complaint is based upon a charge filed on May 8, 1951, by United Elec-
trical, Radio and Machine Workers of America (UE),1 Local 1421, Independent, herein called
UE or the Union, against Square D Company of Los Angeles, California, herein called the
Respondent or the Company. The consolidated complaint, issued on October 18, 1951, by the
General Counsel of the National Labor Relations Board, herein called the General Counsel
and the Board, respectively, 2 by the Regional Director for the Twenty-first Region (Los
Angeles, California), alleges that theRespondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6)
and (7) of the National Labor Relations Act, 61 Stat 136, herein called the Act,
Copies of the charge, the complaint, and a notice of hearing were duly served upon all
parties In due course, the Respondent filed its answer
Specifically, the complaint alleges that the Respondent, from on or about February 20,
1950, to the date of the complaint, has failed and refused to bargain collectively in good faith
with the Union, with respect to wages, hours, and conditions of employment of the employees
in an appropriate unit represented by the UE
The Respondent, in its answer, filed October 29, 1951, denied that it had committed the
unfair labor practices alleged in the complaint, and it further alleged that the complaint
improperly and illegally included charges filed in Case No 21-CA-956, which had previously
been withdrawn by the Union on February 26, 1951, with the approval of the Regional Director,
and that the inclusion of these matters in the instant complaint was contrary to the provisions
I Pursuant to a request of Mr Elconin made at page 45 of the transcript, a copy of this
report and all subsequent documents will be sent to David Scribner, attorney for the UE, 11
East 51st Street, New York City.
2 The designation General Counsel is intended to include his representative at the hearing
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 10 (b) of the Act which prohibits the Board from issuing a complaint for an unfair
labor practice committed more than 6 months prior to the date of filing of such charge The
answer admitted that the unit of its employees (production and maintenance workers) alleged
in the complaint was an appropriate unit for the purposes of collective bargaining, as defined
in Section 9 of the Act
Thereafter, on December 3, 1951, the Respondent moved to dismiss those portions of the
complaint dealing with the charges in Case No 21-CA-956, which had previously been with-
drawn. Respondent also demanded and moved for a bill of particulars, that the General Counsel
specify when and in what manner the Respondent had failed or refused to bargain collectively
in good faith with the Union The motions for the bill of particulars, and to dismiss certain
portions of the complaint, were regularly referred to the Trial Examiner, appointed to hear
the above-captioned cases, by the Regional Director for the Twenty-first Region
Pursuant to notice, a hearing was held at Los Angeles, California, on December 12-19,
1951, before David F. Doyle, the undersigned Trial Examiner, duly designated by the Associ-
ate Chief Trial Examiner. All parties were represented and participated in the hearing Full
opportunity was afforded all parties to be heard, to examine and cross-examine witnesses,
and to introduce evidence relative and material to the issues
At the close of the evidence, all parties agreed to submit briefs in lieu of oral argument
Briefs have been received from the General Counsel and the Respondent and have been care-
fully considered
On the basis of his observation of the witnesses and the entire record in the case, the under-
signed makes the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is a corporation with its principal offices in the city of Detroit, Michigan It is
engaged in the business of manufacturing electric products and operates plants in Milwaukee,
Wisconsin, Peru, Indiana, San Francisco and Los Angeles, California, Seattle, Washington,
Houston, Texas, and Detroit, Michigan In the course and conduct of its business operations,
the Respondent purchases and has shipped to its various plants large quantities and valuable
amounts of equipment, materials, and supplies Large quantities and valuable amounts of
these items are transhipped to the various plants of the Company and are sold throughout all
the States of the United States The answer of the Respondent concedes and I find that the
operations of the Respondent constitute interstate commerce within the meaning of the Act
The parties also entered into a stipulation concerning the operations of the Respondent,
which states that the Square D Company has various plants throughout the country, that each
is run as an entirely separate and independent plant with a vice president in charge who re-
ports to no one other than the president of the Company in Detroit, and that the policies of
operation of the individual plants rest within the discretion of the individual vice president in
charge of that plant
IL THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of America (UE), Local 1421, Independent,
is and at all times herein mentioned has been a labor organization within the meaning of Sec-
tion 2 (5) of the Act
III. THE RESPONDENT'S MOTION TO DISMISS PORTIONS OF THE COMPLAINT AND FOR
A BILL OF PARTICULARS
At the opening of the hearing, after the introduction of the formal papers, the Respondent's
motions, which had been regularly referred to the Trial Examiner by the Regional Director,
were considered The charge in Case No. 21-CA-1106, which was filed on May 8, 1951, and
upon which the instant complaint is based, reads as follows
On or about April 13, 1950, and at all times since, the above-named Employer has
refused to bargain in good faith with the undersigned labor organization in violation of
Section 8 (a) (5) of the Act.
On November 24, 1950, the undersigned Union filed charges against the above Employer
in Case No 21-CA-956 alleging , among other things, a refusal to bargain in good faith.
SQUARED COMPANY 273
Case No 21-CA-956 alleged that
The Company by committing the following acts has violated Section 8 (a), subsections
(1), (2), (3) and (5) of the National Labor Relations Act:
1 The Company has refused to recognize the Union Stewards, and in the processing
of grievances in spite of the fact that the UE is the certified bargaining agent
2 The Company has refused to bargain in good faith on the terms of a new contract by
(1) Making proposals to the Union which have been unacceptable to the Union, and
(2) After the Union rejects such proposals, such as the escalator clause, the
Company puts its proposals into effect unilaterally and without the agreement of the
Union
(3) The Company has now refused to meet with the Union for the purpose of nego-
tiating the renewal of the contract
3 The Company has hired new employees through the IBEW-AFL while it has re-
fused to hire through the UE.
The Union is now reopening the charge in 21-CA-956 in its entirety and alleging the
violations quoted above as violations in the instant case
The Union further charges that on or about April 16, 1951 the Employer required, and
is requiring proof of non-communist affiliation and activity of both local and international
union officers and representatives as a condition of entering into any agreement, and that
this is a per se violation of Section 8 (a) (5) of the Act
The Union further charges that the Employer has at all times refused to sign a contract
and that the Employer, in fact, never intended to sign a contract with the undersigned
union which is the majority representative of all the employees
Examination of this charge disclosed that the charge and the complaint alleged unfair labor
practices occurring more than 6 months prior to May 8, 1951, the date upon which the charge
in 21-CA-1106 was filed. In connection with this situation, the following undisputed facts were
then developed by the arguments of counsel and by stipulation:
In the course of the instant controversy, the parties had reached a position in November
1950, which the Union thought constituted a violation of the Act, a refusal to bargain, by the
Company The Union filed a charge with the Board, numbered 21-CA-956 dated November 21,
1950. Thereafter, the Regional Office made an investigation of the charge On or about
February 25, 1951, Mr. Davis, a field examiner of the Board, to whom the case had been
assigned for investigation, informed both parties that the Regional Director was prepared to
issue a complaint against the Company alleging a refusal to bargain on the part of The Company,
based on the matters alleged in the charge When Davis informed Mr DeVoe Rea, labor con-
sultant for the Company, of this fact, Rea asked that a few days be given the Company before
issuance of the complaint, as the Company would endeavor to reinstitute bargaining with the
Union. On February 26, 1951, Messrs. Elconin and Fiering, representing the Union, obtained
a withdrawal request from the Regional Office, and went to Rea's office. In a conference at
that office, it was decided by the representatives of the parties to reinstitute negotiations The
agreement to this effect was evidenced by two documents Elconin, on behalf of the Union,
executed NLRB Form No 601 entitled "Withdrawal Request" and filed the withdrawal re-
quest with the Board. On the same day, February 26, 1951, the Regional Director approved
the withdrawal request The body of the request reads as follows:
This is to request withdrawal of the charge in the above case without prejudice
Rea, on behalf of the Respondent, gave the Union a letter addressed to it which reads as
follows:
This letter is intended to confirm the dates agreed upon for negotiation meetings as
follows:
Thursday, March 1, 1951 - 4.45 P M
Wednesday, March 7, 1951 - 4 45 P. M.
Wednesday, March 14, 1951 - 4:45 P. M.
Wednesday, March 21, 1951 - 4 45 P. M.
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All of the above meetings will be held at the Square D plant, located at 4335 Valley
Boulevard, Los Angeles, California.
On March 5, 1951, the Regional Director by letter advised all parties that the charge in
Case No. 21-CA-956 had, with his approval, been withdrawn without prejudice
It is also pertinent to note that the Regional Director , on October 16, 1951, 2 days prior
to the issuance of the instant complaint , notified the Company as follows
On February 26, 1951, the withdrawal of the above charge was approved by the Regional
Director On May 8, 1951 the Union filed another charge, Case No 21-CA-1106, in-
corporating the allegation of the charge in Case No . 21-CA-956 therein alleging a re-
sumption and continuation of the previous alleged refusal to bargain
Since a formal complaint will issue in a few days in these matters , I am therefore
rescinding my previous approval of the withdrawal in Case No 21-CA-956 The complaint
will encompass the refusal to bargain allegations of both charges.
With this documentary foundation, the General Counsel proposed that oral testimony be
taken to explain the circumstances of the withdrawal of charge numbered 21-CA-956 The
Respondent objected to the receipt of oral testimony to vary or interpret the written instru-
ment, withdrawal request, and objected on the grounds of relevancy and materiality The
objections were overruled Prior to the taking of oral testimony, counsel for each of the
parties made a statement of his position in the matter and the Trial Examiner mentioned
that the Board ' s recent decision in Ohn Industries , Inc , Winchester Repeating Arms Com-
pany Division, 97 NLRB 130, dated November 29, 1951, was pertinent
In his remarks regarding the proposed oral testimony, the General Counsel stated that he
proposed to show that the withdrawal request was given only after the letter setting four
specific meeting dates for the purposes of collective bargaining had been secured, and it was
in reliance on that promise to meet further that the withdrawal was niade He stated, "I
further intend to show that after the first four meetings which took place as the result of
withdrawal , the time lag perceptibly became greater between meetings , in other words a
substantial recurrence of precisely the very element which the Field Examiner suspected
was improper in Respondent ' s conduct before "
Counsel for the Respondent took the position that the parties had settled the claims of
unfair labor practice embraced in the charge on the basis of the Union withdrawing the
charge, and the Respondent agreeing to meet at four specific times He pointed out that the
meetings were scheduled, and were held, and that the Respondent actually performed all
parts of its agreement He pointed out that the General Counsel's argument related to events
after the Respondent had met at the four specific meetings After that something else happened,
namely, a claimed lag between meetings Respondent's counsel argued that the settlement
was fully executed, the withdrawal request was effective, and the General Counsel was
barred from prosecuting the Company on the basis of any of its conduct prior to 6 months
before the date of filing the charge in Case No 21-CA-1106 He argued that the withdrawal
and its subsequent rescission by the Regional Director did not stop the running of the statute
of limitations expressly set forth in Section 10 (b) of the Act
William B. Elconin, international representative of the UE, 'then was sworn as a witness
and testified substantially to the facts as set forth above in regard to the execution of the
withdrawal request in exchange for the letter setting up four bargaining meetings.
On the basis of this testimony, the General Counsel argued that: (1) The Regional Office
had decided that it had a case against the Respondent, (2) knowing the office was going ahead
with the complaint, the Respondent put in action certain steps designed to effectuate the with-
drawal; (3) the withdrawal of the charge occurred as the result of a settlement agreement
outside the Board He asserted that the Regional Director had the right to rescind his ap-
proval of the withdrawal, where in fact the parties had not lived up to the requirements of
the settlement agreement. The Trial Examiner indicated that he agreed with the argument of
counsel for the Respondent
Counsel for the General Counsel then stated that he wished to offer additional oral testi-
mony on the motion, to the effect that at the meeting in which the parties had agreed to execute
a withdrawal in consideration for setting up four bargaining meetings, the parties had also
agreed that in the event that the parties did not agree to a contract in the course of the
four scheduled meetings, that the UE would have the right to reinstitute the charges in Case
No 21-CA-956, and that agreement together with the fact that the charge was withdrawn
without prejudice proved that Respondent had anticipatorily waived the affirmative defense
of the statute of limitations Over the objection of counsel for the Respondent, Elconin was
SQUARED COMPANY 275
recalled to the stand He testified that at the meeting where the withdrawal was agreed to,
both parties had in mind, and agreed, that if the meetings were not productive of a contract
that the Union might reinstate the charges.Upon this testimony and these documents, the
motion was then submitted to the undersigned.
The Trial Examiner then ruled that the withdrawal request and the letter which were ex-
changed, formed a complete agreement which was fully executed 3 In making this ruling the
Trial Examiner pointed out that it was patent that the withdrawal request was executed in
consideration of the four bargaining conferences, that the four conferences were held, and
that admittedly the Company bargained not only at these conferences, but for a substantial
time thereafter, and that it was only at a remote point of time, after a great deal of bar-
gaining had taken place, and another point reached, that the Union attempted to reinstitute
the charges. Upon the evidence, I ruled that the letter given by the Company to the Union
comprised the entire undertaking of the Company I ruled therefore that the withdrawal and the
subsequent rescission of the withdrawal by the Regional Director was ineffective to stop the
running of the statute of limitations set forth in Section 10 (b) of the Act, and I therefore dis-
missed all portions of the complaint based on conduct of the Company occurring 6 months
prior to May 8, 1951, the date of the charge in Case No 21-CA-1106. The Trial Examiner
also ruled that the fact that the withdrawal request was signed "without prejudice" did not
stop the running of the 6-month statute of limitations, and I rejected the testimony and the
argument of the General Counsel that the Company had anticipatorily waived the affirmative
defense of the statute of limitations.
Of its nature, this motion was decided preliminary to taking evidence on the issues, as this
motion defined the issues. However, the undersigned wishes to point out that the evidence upon
the issues confirms the propriety of the Respondent's motion In making the ruling hereon,
the Trial Examiner stated that his decision, among other considerations, was influenced by
the ruling of the Board in Olin Industries, Inc., supra.4
The General Counsel excepted to the ruling of the Trial Examiner and stated that he wished
to introduce evidence as to matters occurring prior to November 8, 1950, as background
evidence throwing light upon the conduct of the parties during the period November 8, 1950,
to the date of the hearing. The Trial Examiner ruled that evidence as to conduct of the parties
prior to November 8, 1950, could be introduced in evidence as background testimony on the
basis of the Board's decision in Gagnon Plating and Manufacturing Company, 97 NLRB 104.
Counsel for the Respondent objected to the receipt of such evidence which was overruled,
and an exception granted.
Argument as to the motion for abillof particulars was then held The Trial Examiner ruled
that inasmuch as the complaint alleged a refusal to bargain in the most general terms from
February 1950 to the date of the complaint, he would grant the Respondent's motion and order
that the General Counsel furnish counsel for the Respondent with a bill of particulars, setting
forth the acts and conduct of the Company which the General Counsel claimed constituted a
refusal to bargain, with the approximate dateor dates upon which the act or conduct occurred
Thereafter, this order of the Trial Examiner was complied with
The only other motion which need be noted here is that in the course of the hearing, the
General Counsel moved to amend the complaint to extend the period of time of the alleged
refusal to bargain beyond the date of the complaint, up to and including the date of the
hearing. This amendment was permitted over the objection of the Respondent, the Trial
Examiner assuring the Respondent that he would be given time to prepare in the event he
claimed that the enlargement of the complaint surprised him as to any new matter Counsel
for the Respondent claimed no such surprise in the course of the proceedings At the close
of the evidence counsel for Respondent moved to dismiss the complaint. Decision of the
motion was reserved by the undersigned. It is decided in this report
IV. THE UNFAIR LABOR PRACTICES
The evidence adduced at the hearing covers a period of time beginning January 23, 1948,
and ending November 14, 1951 Much of this evidence can only be considered as background
evidence because of the Trial Examiner ' s ruling on the motion dismissing parts of the
complaint Under his ruling stated in open court , such evidence could not be the basis for a
3 The Trial Examiner rejected the testimony of Elconin on this point . It seemed incredible
that, if the parties actually agreed that the charges could be reinstated , experienced men
such as those involved here would not expressly state such an important term of the agreement
in writing.
4See also N . L R B. v, Pennwoven , Inc., 194 F. 2d 521 (C. A. 3)
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding of unfair labor practice against the Respondent It was received only on the theory
that, as background evidence, it shed light on the conduct of the parties after November 8,
1950 For that reason, in the chronology of events which I propose to set out, I will divide
the evidence into three parts: (1) Events prior to November 8, 1950, (2) events between
November 8, 1950, and February 26, 1951, the date when the charge in Case No. 21-CA-956
was, withdrawn, and (3) events from February 26, 1951, through December 12, 1951.
Most of the evidence in the case is documentary in form and is undisputed. The parties
and counsel exhibited an excellent spirit of cooperation in presenting the evidence on the
issues Consequently, the case rests to a very great extent upon documents, the authenticity
and accuracy of which are not challenged The case is based to a large extent upon certain
"Minutes of Negotiation Meetings " At these negotiation meetings , the Union was represented
by international representatives and various members of its bargaining committee . William
B Elconin , previously referred to, and Henry Fiering, both international representatives,
were the leading negotiators for the Union. The Company was represented by the following
company officials. E. Miller, plant superintendent, J. H. Burns, personnel manager, J R.
Liebsak, production superintendent, J. Hubbard and DeVoe Rea, labor relations consultants 5
Mrs Margaret Page, secretary to Mr. Burns, attended these meetings. It was her duty to
take notes in the course of the meeting which she later summarized and transcribed. Prior
to the hearing, all parties and counsel had an opportunity to examine the minutes of negotia-
tion meetings as transcribed by Mrs. Page These minutes were introduced in evidence by
agreement of counsel who stipulated that the minutes were correct and truly reflected the
positions of the parties, the course of events, and what was said and done in the meetings
with certain specific exceptions, which were outlined in the record by the General Counsel
The stipulation of counsel specifically stated that on those points in certain minutes which
were excepted from the general stipulation, oral testimony might be offered by either parry
The fact that the minutes were satisfactory to both the General Counsel and counsel for the
Respondent to such a great extent is recommendation of the accuracy of Mrs Page's minutes.
The excepted portions of the minutes is a very small portion of the whole which comprises
some 150 plus pages. Thus, the field of controversy was narrowed very greatly by the in-
troduction of the minutes pursuant to stipulation . In making the stipulation , the General
Counsel stated that the practice of having Mrs. Page take notes on the meeting had been one
long established by the parties and that neither the Union nor the General Counsel made
any claim that the keeping of such minutes was an unfair labor practice within the meaning
of the Board's decision in Reed & Prince Mfg Co., 96 NLRB 850.
In addition to the minutes , each of the parties made written counterproposals at various
times, issued bulletins and pamphlets, and wrote letters by cooperative effort these docu-
ments were gathered, and by stipulation were introduced in evidence In this manner, the
case is based entirely on documentary evidence except in those few exceptions wherein the
minutes of the negotiation meetings are challenged Some of the challenged points were
excepted from the stipulation for the purposes of clarification or amplification. There is only
one point upon which the minutes are challenged directly as to accuracy Thus, oral testi-
mony plays a relatively small part in the instant proceeding, and in the chronology of events
hereafter related, it may be taken for granted that the basis of this is documentary evidence
and not oral testimony unless it is so noted
A. Chronology of events from the documentary evidence
1 Events prior to November 8, 1950
The history of bargaining between the parties begins in 1943, when the Union was certified
as the result of a Board proceeding, Case No 21-R-1929 From that year until 1948, the
parties bargained and reached agreement on the provisions of a labor contract in each year
In 1948, however, the Union was not in compliance with Section 9 (f), (g), and (h) of the Act,
and the Company had received representation claims from the IBEW and Teamsters, AFL.
On May 18, 1948, the Respondent and the UE agreed that the Respondent would file an RM
petition and seek an election conducted by the Board. In the event a Board-conducted elec-
tion resulted in the IBEW and Teamsters not receiving a majority of the valid votes counted,
then the Respondent and the UE would conduct a private election, and in the event that elec-
tion disclosed that a majority of the employees in the appropriate unit wished to be rep-
resented by the UE, the Company would thereupon bargain with the UE. A private election
5For the sake of clarity in this report, I will designate company representatives--(C), and
union representatives--(U).
SQUARE D COMPANY 277
was the only election which could be obtained at that time by the UE because of its non-
compliance with Section 9 (f), (g), and (h) of the Act
Thereafter, the Board conducted an election in the unit , in which the employees voted
overwhelmingly against the IBEW and the Teamsters . In the private election which was held
on June 2, 1948, 129 employees voted for the UE and 4 voted against it
Thereupon , the Respondent and the UE began negotiations , ultimately arriving at a contract
whose effective date was April 1, 1949.
This contract was to run from April 1, 1949, to April 1, 1950 By its terms, it was auto-
matically renewed unless either of the parties notified the other of its intention to terminate
or modify the contract at least 60 days prior to its termination date The signatories to the
contract were the Company, the International Union, and the local Union
The next event which has bearing upon negotiations took place at Cleveland, Ohio, on
November 4, 1949, at the convention of the Congress of Industrial Organizations ., On that
date, in convention assembled , the delegates of all CIO unions by resolution adopted expelled
the UE from membership in the CIO on the ground that the UE was a Communist- dominated
union The alleged Communist domination of the UE had been mentioned in prior negotiations
between the parties, and the contract effective April 1, 1949, and one contract executed in
1948 had contained a clause stating that the Union and the Company subscribed to and believed
in "the letter and spirit of the constitution . . , and that neither the Company nor the Union
advocated or condoned . . . the overthrow of the United States Government by illegal or
unconstitutional means."
On December 13, 1949, pursuant to a reopening of the contract of April 1, 1949, the parties
executed a supplement to the agreement which effected some changes in the contract not
important to this controversy The event which really instituted the present controversy
began on January 30, 1950, when Elconin acting on behalf of the Union notified the Company
by letter of the Union's desire to modify the contract in accordance with article XIX and
presented the Company with the following demands.
Modifications which the Union wishes to make in the current Agreement are as
follows:
1. Tool and Die , Grade B Classification Rate should be raised to $1 605
2. All non-bonus groups should receive an inequity increase equal in cents per hour to
the average bonus received by the bonus groups in the plant
3 A general substantial wage increase should be added to the rates of all individual
employees in all classification rates.
4. Article IX , Section 1 , Vacations , should be modified to include three weeks'
vacation after five years ' service
Article IX , Section 2 , should be modified to define a three weeks' vacation as being equal
to twenty-one calendar days with 120 hours pay
5. Article VIII, Holidays , should be modified to add one additional paid holiday
6. Section X of the Schedule of Wage Rates , should be modified to provide for auto-
matic progression based upon seniority between the rate ranges established in that
section . Further , the Union must have the right to recourse of grievance machinery
when employees feel they are treated unfairly.
7. A new Section should be created to provide for sick leave of seven days per year
with pay.
8 A new Section should be added to the Schedule of Wage Rates covering Incentive
Plan which provides for the elimination of the present 60-40 split on all incentive earnings
over 10%, which provides 1% extra earnings for every 116 increase in production. The
incentive base rate should be raised and become equal to the hourly guarantee The Union
should have the right to recourse of grievance machinery for standards which are con-
sidered improper.
The Company acknowledged receipt of this letter and the parties met to consider the
Union's demands on February 20, 1950 The parties examined each of the demands and the
Company stated that it considered the demands unreasonable . The Company stated that
economic factors would not permit it to accede to the Union ' s demands at that time, and
proposed that the Union agree to a renewal of the existing contract with a wage reopener in
July This proposal was rejected by the Union However , it was agreed that the Company
would give the matter further study and that the conferees would meet again on February
23, 1950 On the following day the Southern California UE News, an official organ of the
Union , printed an article stating that the Square D workers had demanded an increase by
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 1 and voted to back up their demand with a "No contract--no work" edict, and stated
that preparations for all "eventualities" were being made
On February 23, 1950, representatives of the parties again met and engaged in a general
discussion of the Union's demands All these discussions were directed to the economic
factors involved Both parties indicated that due to factors beyond their control each had to
hold fast to its position
On March 6 the Union in a bulletin to all the workers stated that, "In preparation for the
April 1 deadline of no contract, no work, the procurement committee of your shop will hold a
canned food collection tomorrow morning," and urged the employees to contribute to the fund
On March 9, 1950, the representatives of the parties again met The Company stated that
after reexamination of its rates of pay and a comparison with other shops in the area, the
Company was willing to grant a 5-cent an hour increase in pay to tool and die makers, ware-
housemen, and maintenance helpers But that on all other demands it had to stand firm The
incentive plan under which skilled employees of the Company received a base pay, plus a
bonus for over 100 percent production, was then discussed The Union insisted that the
system was unfair to the employees and demanded that it be revised It also insisted that
the setting of standards for employee performance be made a matter of negotiation between
the Union and the Company, and that the rates so set be subject to the grievance procedure
including arbitration, in the event that a worker felt the production standard had been set
too high Various computations of the incentive plan were made by both parties in the course
of this discussion. However, the Company took the position that it alone should set standards
of performance inasmuch as these were based on technical time studies, and that the more
people involved in setting up such standards the more confusion resulted In the course of
this meeting the Company asked the Union if the various bulletins passed out by the Union
which stated "No contract--no work" could be taken seriously The Union replied in the af-
firmative The conferees also discussed the fact that some employees a few days previously
had refused to work overtime when requested to do so by management and that the chief
steward on that occasion had told management, "No contract, no more overtime " The
chief steward, who was at the meeting, stated that the employees had agreed that they would
not work overtime until they had a new contract. Rea recommended to the Company that it
give orders in writing to people whom it wished to work overtime and that if they refused,
to take disciplinary action Despite this sharp point of difference the conferees continued
their discussion of other union demands At the close of the meeting, the chief steward in
answer to a question made it clear that if a contract was not reached by April 1, the Union
would give notice of termination of the contract and that 10 days thereafter the employees
would strike. The contract of April 1, 1949, plus the supplement thereto, contained a provi-
sion that no strike would occur during the term of the contract but that after the anniversary
date of the contract in any year, the contract could be terminated upon 10 days' notice by
either party
On March 21, 1950, Rea, on behalf of the Company, wrote a letter to the Union reviewing
the situation which had developed due to the refusal of employees to work overtime and
pointing out that the Company considered such refusal to be a breach of the contract sub-
jecting the individuals involved to disciplinary action Copies of this letter were sent to all
interested union officers
On March 29, 1950, the parties again conferred--the Union informing the Company that
it would withdraw its request for sick-leave pay, an extra holiday, and modify its request
for 3 weeks' vacation after 5 years to 3 weeks' vacation after 15 years The Union also
stated that it had no objection to the Company's proposals as to increased rates for the tool
and die makers, etc., provided any general increase given by the Company would be in
addition to these increases The Company rejected the Union's proposal on the incentive
plan and stood firm on that point Miller, on behalf of the Company, then stated that the
Company had made a proposal of a wage reopening clause after July 1 but that the Company
wished to withdraw that, as it wished to avoid labor trouble at that time, and would prefer
under the circumstances to make a firm contract for 1 year Elconin, for the Union, said there
was no possible hope of the two sides getting together on the situation by April 1, so on that
date the Union would move to terminate the contract, effective April 11. Later in the confer-
ence, Rea asked Elconin if it was the intention of the Union to strike after April 11 in the
event an agreement was not reached Elconin replied in the affirmative Although it appeared
that an impasse had been reached, Elconin requested that the Company continue to meet and
negotiate The Company said that it could see no reason for meeting unless either party
signified that it was willing to modify its position on some of the differences. The Company
stated it was willing to meet at any time if there was any possibility of progress, but that
it appeared that an impasse had been reached However the Company agreed to a reconsidera-
SQUARE D COMPANY 279
tion of the Union's demands and stated that it would notify the Union by mail in the event
it reached any change in position.
On April 3, 1950, the Union wrote the Company, as follows:
In accordance with Article XIX- -termination- -of our current Agreement, this is to
inform you that the Union desires to terminate the existing Agreement.
Between April 4 and 6 , 1950, Rea and Elconin exchanged letters in regard to the contract
termination , but pursuant to an agreement reached by telephone the representatives of the
parties again met on April 10, 1950. After some discussion it appeared that neither party
had changed its fundamental position. There was considerable discussion of the incentive
plan, but the parties could reach no agreement. The parties then discussed the advisability
of asking for the intervention of either a State or Federal conciliator.
On April 12, 1950, Mr. J. H. Pengilly, vice president in charge of the Los Angeles plant,
addressed the employees on the subject of their proposed strike. This speech, of which a
copy is in evidence, was in all respects proper. The General Counsel makes no claim that it
in any way interfered with the rights of the employees. Mr. Pengilly stressed the serious-
ness of the strike to both the Company and the individual employee and stated that in the
event of strike the Company would attempt to operate the plant, using all legal means.
Following this, a petition signed by all the employees addressed to Pengilly, and asking him
to intervene in the negotiations , was presented to management . Pengilly replied by posting
a bulletin to the employees which stated that the representatives of the Company who were
conducting negotiations were doing as much as he could do to solve the situation and for
that reason he felt his intervention would serve no useful purpose.
The employees did not strike on April 14, 1950, or thereafter.
The next event occurred on April 21, 1950, when the Union addressed a letter to the trade
customers of the Company. This letter stated that the Union was writing the trade customers
to advise them of the dispute it had with the Company which might affect the trade customers'
business. It informed the customers that the dispute had not yet developed into a strike,
only because it was the Union's desire to exhaust every peaceful means before resorting
to strike action. It stated that the Union had postponed its strike deadline of April 14 at the
request of a Federal conciliator. It blamed the Company with provoking strike action by
(1) refusing to meet at the request of the Federal conciliator; (2) by hiring armed guards in
an obvious show of force as its "answer " to the legitimate needs and proposals of the
employees; (3) by contacting the Los Angeles Police Department and announcing that it
would operate its plant with replacements brought through picket lines by the police; and
(4) by these actions the Company showed that it preferred resorting to violence in place of
sincere efforts to negotiate and settle differences.
This letter also stated that the Union's difference with the Company was the incentive plan
which was unfair to the employees, and that the Company refused to permit the incentive
plan to become a part of the contractual agreement with the Union; that for several years the
Union had sought to correct this situation by negotiations, without success. The letter stated
that in addition to this the only difference that the Union had with the Company was a general
wage increase.
On April 25, 1950, the representatives again met with Mr. Malcolm, a Federal conciliator,
present. Mr. Malcolm was informed of the points upon which the parties were in conflict. The
parties then turned again to a discussion of the incentive plan, with neither party indicating any
disposition to modify or change its position on the plan. In the general discussion, the
company representatives indicated that since the old contract had been terminated by the
Union, the Company wished to propose an entirely new contract which would retain the good
features of the old contract and some additional features which the Company wished to add.
The Union replied that it too was dissatisfied with many clauses in the old contract and had
some changes which it wished to propose.
On May 5, 1950, the Union issued a bulletin stating that Chief Steward Gill would broadcast
from a Los Angeles radio station on that evening upon the issues of the controversy. On May
10, 1950, representatives of the party again met with Malcolm, the Federal conciliator. At
this meeting, the Company presented some proposed changes in the contract between the
parties. Some of the proposals were minor variations of the old contract, but some of the
proposals were the source of further difference between the parties. Among the new proposals
which were the source of differericewere those which eliminated the maintenance-of-member-
ship clause and the checkoff clause from the contract, and a new section in place of the old
291555 0-54-19
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loyalty section. The latter section required a non-Communist affidavit from any individual
who represented the Union in dealings with the Company. These changes, the elimination of
the maintenance-of-membership and checkoff clauses and the question of form of loyalty
guarantee, remained in the controversy thereafter.
On May 23, 1950, representatives of the parties again met with Malcolm. At this meeting
all the points of disagreement between the parties were discussed.
On June 13, 14, and 16, 1950, the Union staged an after-work demonstration at the plant
in which the employees carrying placards stating "We want a contract" and "Quit your
stalling," paraded before the entrance to the plant for approximately one-half hour on each
day. On June 23, 1950, Elconin, on behalf of the Union, addressed a letter to Magin, president
of the Company, at Detroit, which informed Maginof the controversy as Elconin saw it. There
is no reply to this letter in the evidence. On June 26, 1950, the UE Southern California News
informed its readers of the progress of the strike between the Company and another local
of the Union at the Detroit plant.6
On July 6, 1950, the parties again met with Malcolm. Elconin informed the meeting of 11
benefits which the Union had won in its strike at the Detroit plant. However, the Company
pointed out that bargaining had always been conducted on an individual plant basis at the
Los Angeles plant in the past, and was being so conducted in these negotiations. The Company
then presented a new proposal on the incentive plant which embraced two factors: (a) The
bonus rate would be raised so that it would be equal to the guaranteed base rate; and (b) the
bonus payments would be changed so that the employees would receive a .7 of 1 percent
bonus for each 1 percent of earned efficiency above 100 percent instead of .6 of 1 percent,
as previously paid. In the operation of the incentive plan, rate setting was to remain with
the Company. The Company also proposed that inasmuch as General Motors and some other
companies had established a pattern of wage raises, it proposed a 4-cent per hour increase
for all employees. The Company also proposed a change in the vacation plan. Miller, on
behalf of the Company, then proposed that inasmuch as it was difficult to forecast when an
agreement would be reached by the parties, that the proposals made by the Company become
effective on the following dates: (1) The new incentive plan on Monday, July 17, the start of
the next pay period; (2) the 4-cent per hour wage increase to become effective Monday,
July 3, 1950; (3) 3 weeks' vacation for employees with 15 years' service with the Company
on April 1, 1950. Miller also stated that the Company was not in a position to discuss the
pension plan inasmuch as its information was not complete on that point. However, the
Company intended to put in effect a pension plan. Elconin asked why the Company could not
match Detroit in its contract; to which the Company replied that the situations were different.
Elconin wanted to know why the Company proposed to put these increases in effect. Miller
replied that the Company would like the employees to have the benefits without having to
wait until an agreement was reached on all other points. He asked the Union if it was opposed
to having the employees receive the benefits now. Elconm did not reply to this question but
charged that this was another attempt on the part of the Company to convince the people that
they didn't need a union. He suggested that the wage increase be put through when the rest of
the agreement went into effect and be made retroactive to April 3, 1950.
The conferees discussed the Company's proposals and after a recess, during which union
representatives conferred, Elconm proposed that: (1) The Company reinstate the old contract
for a 2-year period, including the union-security and maintenance-of-membership clause;
(2) a 4-cent per hour wage increase to be effective April 1 and another 4-cent increase
June 1, 1951; (3) the nonbonus groups receive an increase of 9 cents per hour effective April
1 and another 4-cent increase effective June 1, 1951; (4) the Union accept the new incentive
plan as proposed by the Company providing standards be made subject to the grievance
procedure and arbitration, effective July 17; (5) the vacation plan as proposed by the Company
be accepted with the addition of 21 weeks' vacation on and after 10 years of service; (6)
the pension plan be the same as the one adopted in Detroit. In the discussion of these pro-
posals, representatives of both parties spoke angrily but both parties agreed to reconsider
the proposals of the other and to meet again.
On July 7, 1950, the Company posted the following bulletin:
TO ALL EMPLOYEES:
A contract negotiation meeting was held last night, Thursday, July 6.
6It is pertinent to note at this point that on June 27, 1950, the President proclaimed a
National Emergency due to Communist aggression in Korea, and on July 1, 1950, United
States and United Nations troops went to the defense of the Republic of Korea.
SQUARED COMPANY 2 81
Although there have been quite a few Company-Union negotiation meetings held in the
past few months, it is still difficult to forecast when an agreement will be reached.
Therefore, the Company made the following proposals at last night's meeting in the
hopes that they will be accepted and thereby enable the employees to receive the benefits
of these proposals during the time negotiations are proceeding on other subjects.
The following are the proposals:
1. That the bonus base rate be raised so that it will be equal to the guaranteed hourly
base rate and that the bonus payments be changed so that the employees will receive a
.7 of 1% bonus for each 1% earned efficiency above 100%a This plan to become effective
on Monday, July 17, which is the start of the next pay (period.
2. That a 4 cents per hour wage increase be given to all employees and all classified
job rates be raised 4 cents per hour. This wage increase to become effective on Monday,
July 3.
3. That, in addition to the one week vacation after one year and two week's vacation
after two years which the employees are now receiving, a three week's vacation be given
to all employees whose length of service with the Company was 15 years or more prior
to April 1, 1950.
On July 13, 1950, the parties again metwith Mr. Malcolm. Miller, on behalf of the Company,
asked the union representatives if they had submitted the Company's proposals to the em-
ployees. Elconin replied that they had submitted both the Company's proposals and the
Union's counterproposals, and that the employees had voted to accept the Union's proposals
as their reply to the Company. Elconin then asked for a reply to the Union's proposals. The
Company answered that (1) they could not agree to the 4-cent increase being retroactive to
April 3. July 3 would be as far back as the Company could go; (2) a further 4-cent increase
on June 4, 1951, would mean that the Company would have to agree to a 2-year contract,
which the Company did not want as they were now negotiating for a 1-year contract; (3) the
Company did not feel that a 9-cent increase for the nonbonus group was warranted since the
Company had recently made a check of the area rates and adjusted the few inequities which
had been found; (4) the Company couldnotagree to the Union's request that standards be made
subject to grievance procedure since the Company's experience was that the more people
involved in the operation of the incentive plan, the more difficult it became; (5) the Company
could not add anything further to the present vacation plan other than it had proposed; (6) the
Company assured the Union that it would install a pension plan similar to the pension plans
in the East and should have something definite to report on it in a few weeks' time, but that
details were not available Elconin observed that the Company's statement amounted to a
flat rejection of the Union's proposals. He discussed at length the situation of other plants
at Peru and Detroit, and the benefits enjoyed by the employees at those plants. The conferees
then discussed maintenance of membership, checkoff, and the other items in dispute.
On July 14, 1950 the Company issued the following bulletin to all employees.
The following changes in the incentive plan, wages and vacations will become effective
on the dates shown below.
1. The hourly base rates of all employees will be increased by four cents per hour.
This increase will be effective as of July 3, 1950. If the Accounting Department is unable
to include these increases in the pay checks issued on Friday, July 21, you will receive
a separate check to cover this increase as soon as it can be computed.
Example: An employes whose base rate was $1.205 and whose bonus base was 80
cents will, for this pay period, be paid on a base rate of $1.245 and a bonus base of 80
cents computed under our present bonus schedule
2. The bonus base rates of all employees in bonus groups will be raised so that they
will be equal to the guaranteed hourly base rates The bonus payments will be changed so
that employees will receive 7 of 116 bonus for each 1% of earned efficiency above 100%
These changes will become effective on Monday , July 17, which is the start of the
next pay period.
Example: The same employee mentioned in (1) above will now have a base rate of
$1.245 and a bonus base rate of $1.245 and bonus will be computed under the new
bonus schedule.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Three weeks vacation will be given to all employees whose length of service with
the Company was 15 years or more prior to April 1, 1950, and who are otherwise
qualified.
4. In addition, selective increases are being considered for deserving employees in
non bonus groups.
On July 19 the parties again met with Mr. Malcolm. In reply to a question by Elconm, the
company representatives replied that their position had not changed since the last meeting.
Elconin then stated that the Company turned down the union proposals and then proceeded to
put their own proposals into effect without tying the Union in on it. He said he felt that could
be considered an unfair labor practice--it was an obvious attempt to circumvent the Union.
The company representatives replied that they assumed the primary interest of both parties
was the best interests of the employees, and they pointed out that the benefits which the
Company had put into effect had first been offered to the Union which had rejected them, and
made counterproposals which the Company did not feel it could accept. Elconin said that the
Union had rejected only the noneconomic proposals of the Company, and that the Union was
agreeable to a settlement on the basis of the Detroit settlement. The parties then discussed
retroactive pay, the maintenance-of-membership clause, vacations, and all the other points
upon which the parties were in disagreement.
On July 24, Rea (C) wrote a letter to Elconm which transmitted contract proposals on the
subject of discharges , management , seniority , general conditions . On July 26, 1950 , repre-
sentatives of the parties again met with Malcolm. Elconin asked for a recess in which he
conferred with members of the union committee. Upon returning to the meeting Elconin said
that he found himself at a loss for adequate clean words to describe the contract proposals
of the Company. He said that the latest edition of proposals was worse than anything the
Company had previously presented and stated that he didn't know in what concentration
camp the proposals had been written. Burns (C) asked in what respect the proposals were so
objectionable. Elconin first mentioned section II, under "Discharge." This section was the
same as in the old contract except for the addition of "A Ivocacy of the overthrow of the
United States Government by force or violence," as a cause for discharge. Elconin stated
that common sense was all that was needed to determine whether or not an employee's
conduct made him subject to discharge or discipline. Burns pointed out that the article was
subject to the grievance procedure , and that most of the proposal was the same as in the
old contract. Elconin replied that the Company was setting itself up as a judge and trying
to take over the duties of the FBI, which they had no right to do. Elconin took objection to
articles dealing with management and seniority and also to a section entitled , "General
conditions"--which read "All provisions of this agreement shall be subject and super-
seded by the laws, rules, regulations, and orders which may be imposed by the Government
of the United States and the State of California." Elcorun renewed the union demand as to
participation in the setting of standards under the incentive plan and insisted that the stand-
ards set be subject to the grievance machinery. All of the various proposals were discussed
in the course of the meeting without any change in the position of either party. Section 1,
article XIV, "Representation," as rewritten by the Company,was distributed to the conferees
near the end of the meeting. This section read:
Sec 1. The Company may require a non-Communist affidavit from any individual or in-
dividuals claiming to represent the Union in any capacity before recognizing such indi-
vidual as a representative of the Union and the Union may require a non-Communist
affidavit from any member of the Los Angeles Management who represents the Company
in dealings with the Union The Company or the Union may refuse to confer, meet with,
or bargain with any such person or persons who decline to furnish such affidavit or affi-
davits. Such affidavit shall affirm that the individual is not a member of the Communist
party or affiliated with such party and that he does not believe in, and is not a member
of, or supports any organization that believes in or teaches the overthrow of the United
States Government by force or by any illegal or unconstitutional method.
Rewriting had given to the Union the right to require non-Communist affidavits from the
representatives of management Elconin termed this nonsense Again the parties discussed
their differences without any change in the position of either.
SQUARE D COMPANY 7.83
2 Events occurring September 8, 1950--February 26, 19517
On September 8, 1950, the Union issued a bulletin entitled , "Negotiation Summary " This
document is a report by the Union to the membership on negotiations with the Company. It
divided the various provisions of the contract on which negotiations were being conducted into
three main categories It reported:
The Company and the Union agreed upon the following portions of the contract:
1. Preamble
2 Article I - Scope
3 Article II - Recognition
4 Article V - Overtime
5 Article VI - Shift Bonus
6 Article VIII - Holidays
7 Article X - Leave of Absence
8 Article XI - Illness
9 Article XII - Injuries
The following items agreed to except as to minor details
Article IV - Hours
Article IX - Vacations
Article XIII - Military Service
Article XVII - Seniority
On the following items, complete disagreement between the parties.
Article III - Union Membership
Article VII - Wages
Article XIV - Grievance Procedure
Article XV - Discharge
Article XVII - Management
On September 13, 1950, the parties met with Mr 0 E Goodwin, Federal conciliator
Elconin stated that the Union was prepared to drop one of its minor demands in regard to
military service and then stated that on the question of wages the committee thought the
present offer of the Company inadequate The company representatives asked what the Union
had in mind Elconin pointed out that the cost of living had skyrocketed during the past few
months (post-Korea ), and also a new wage pattern of 10 cents across the board with an addi-
tional 5 cents for skilled workers was now being established countrywide and the employees
felt they should participate in that pattern . Elconin stated that the employees felt they should
have 10 cents an hour increase and that the committee had decided upon 2 alternatives--6
cents across the board in addition to the 4 cents already granted or, in lieu of this, abolition
of the 70-30 retention on the incentive plan for the bonus groups , and an additional 6 cents for
nonbonus groups These were the only points on which the thinking of the Union had changed.
The conferees thendiscussed the question of wages as related to the pattern which was develop-
ing throughout the country Miller on behalf of the Company asked if the Union would have any
objection to a "percentage deal " The conferees then discussed how a percentage deal would
affect the take-home pay of the employees as against the increases in pay previously de-
manded by the Union Elconin stated that he would take up the question of a percentage in-
crease with the employees at a meeting they were having during the week The pension plan
was also discussed The Company reported that the details of the pension plan had not been
worked out in their entirety, but that it would soon be in final shape The conferees then had
a long discussion concerning the Company 's proposal that union representatives furnish a
non-Comr1 nist affidavit
On October 4, 1950, the Company posted a bulletin which stated that effective October 9,
1950, the employees of the Company at the Los Angeles plant would receive a quarterly
cost-of-living bonus on total earnings for all hourly paid employees , determined by the fluc-
tuations in the "Consumers Price Index for Moderate Income Families in Large Cities "
7 It is pertinent to note that the Defense Production Act of 1950 , which provided for price
and wage stabilization was approved September 8, 1950 Prior to that date prices had sky-
rocketed , due to the national transition to a semiwar economy.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This bulletin explained in detail how the bonus would be paid Substantially the employees re-
ceived a cost-of-living bonus in proportion to the increase in the cost of living as shown by
the Consumers Price Index The bonus was to become effective beginning in the first full pay
period after October 9, 1950, and at quarterly intervals thereafter
On October 6, 1950, the Company posted a notice to all employees stating that the Consumers
Price index for the quarter showed an increase over 2 but under 3 percent, and that in ac-
cordance with the Index the employees would receive a bonus of like amount
On October 11, 1950, the parties met again. Due to the illness of Mrs Page, no minutes of
this meeting were taken However, it should be noted from the oral testimony hereinafter
referred to, that the pension plan was submitted to the Union at this meeting On October 17,
1950, the shop committee of the Union issued a bulletin saying that the pension plan had been
submitted but that the committee felt the plan had several weaknesses which would be dis-
cussed at the next meeting of the Union.
On October 25, 1950, the International Brotherhood of Electrical Workers and the Inter-
national Brotherhood of Teamsters, both A F. of L , notified the Company by letter that they
represented the employees in the appropriate unit. The letter asserted that the Union with
whom the Company was conducting negotiations did not represent a majority of the employees
and warned the Company that if it conducted any more negotiations with the UE the unions
would place a picket line around the Company's plant
On November 14, 1950, Rea, on behalf of the Company, informed Goodwin of the Federal
Mediation and Conciliation Service that in view of the claim of representation by the IBEW
and the Teamsters and their threat to picket the plant, the Company did not believe it wise
to arrange any further meetings of the parties until the atmosphere had cleared.
On November 16, 1950, Elconin addressed a day letter to the Company which informed the
Company that the claims of the IBEW and the Teamsters were fraudulent as was proved by
the failure of these unions to file petitions with the NLRB It demanded that the Company
"cease its stalling and its misuse of fraudulent claims by nonexistent organizations among
the Square D workers in its efforts to prevent legitimate collective bargaining with the le-
gitimate representatives of the Square D workers " The day letter demanded a reply to the
shop committee by Monday noon, November 20 Burns (C) talked to the chief steward about
the situation, immediately on receipt of the letter His oral testimony is later reviewed.
On November 24, 1950, the Union filed a charge with the Board alleging a refusal to bar-
gain by the Company This charge is Case No 21-CA-956
On or about January 1, 1951, the Company put into effect the pension plan which had pre-
viously been submitted to the Union
On February 26, 1951, the Union and the Company agreed to reinstate bargaining nego-
tiations and as evidence thereof executed the withdrawal request and the letter setting up
four bargaining meetings, both of which have been referred to in the disposition of the motion
of the Respondent for the dismissal of portions of the complaint under Section 10 (b) of the
Act
3 Events occurring February 26, 1951, to December 12, 1951, the date of the hearing
On March 1, 1951, the parties met pursuant to their settlement arrangement Mr Henry
Fiering was the principal union representative at this meeting Fiering proposed that the
parties reestablish the old contract with appropriate changes. The Company objected to this,
pointing out that several provisions had been agreed upon in a proposed new contract, and
that the idea of going back to the old contract had been thoroughly discussed and rejected in
prior meetings. Fiering then proposed that the parties try to establish the old friendly attitude
between the parties by instituting the grievance procedure as established by the old contract
Company representatives stated that the Company had always listened to any complaints from
any of the employees. After some further discussion it was agreed that any employee who
wished to present a grievance might be accompanied by a steward from his department in
the presentation of that grievance. However, the Company stated that it wanted it clearly
understood that this procedure did not set up any formal contractual grievance procedure
The Company asked the Union to prepare proposals for the next meeting
On March 7, 1951, the parties again met. Fiering had prepared a letter containing the
Union's demands This letter was circulated to the conferees This letter made practically
the same demands as Elconin's letter to the Company at the time he gave notification of the
Union's desire to modify the contract Fiering's demands, however, took into account the
recent increases in pay and, to some extent, those points which had been withdrawn by the
Union in the course of prior negotiations Fiering's letter asked for a raise in pay from $ 2 10
SQUARE. D COMPANY 285
to $ 2 25 an hour for tool and die makers, and included an increase for painters to 10 cents
above any negotiated general wage increase, a substantial wage increase, the prorating of
vacations, the elimination of certain lines in the clause dealing with seniority and for auto-
matic progression under the "schedule of wage rates", and again renewed the Union's de-
mand that the setting of standards pursuant to the incentive plan be accomplished by nego-
tiation of the parties, and that the standards so set be subject to the grievance procedure
The parties then engaged in a discussion concerning past and proposed increases in wages,
in view of the new Government regulations stabilizing wages Fiering explained that the Union
sought an increase in excess of 10 percent, the limit under the stabilization law, that the
Union hoped that the particular circumstances of the situation might justify such an increase
Also, the Union was hopeful of a relaxation of wage restrictions and wished to provide for
that eventuality The conferees then discussed the cost-of-living bonus which was then in
effect The Company assured the Union that since the cost-of-living bonus was in effect
prior to January 25, 1950, the freezing date, it appeared that it would be permitted to pay
this bonus to employees for the next quarter, and that the Company under its interpretation
of the law intended to pay the bonus Thereafter the conferees reviewed all points of dis-
agreement between them
On March 14, 1951, the parties again met. In the course of discussing the proposed in-
creases for tool and die makers and painters, the Company pointed out that changes in these
categories put the entire wage classification system of the Company out of proportion and that
adjustment could not be made for the specific categories without evaluating all other classifi-
cations Fiering asked if it was true that there was no job evaluation plan in effect at that
time, to which the Company replied that there was not The conferees then discussed job
evaluation plans in general The Company stated that they thought that a job evaluation pro-
gram should be undertaken so that the Company could determine how the various jobs ought
to rank. It was pointed out that if they didn't do this, they would have complaints of inequities
all over the shop Miller, on behalf of the Company, reported that the Government regulations
in regard to the cost-of-living bonus had been clarified and that the bonus would be paid to
employees for the next quarter. Fiering requested that the Company notify the chief steward
when they received the new figures on the Index. The Company agreed that it would. One of
the union representatives then asked how long the cost-of-living bonus would be in effect and
Burns (C) replied, "Until June 31, 1951 It could continue on, but not increase, beyond that
date " At one point in the conference, Fiering said that the Company had not given the Union
the figures on the amount of increases that had been given to the employees Miller replied
that the Company had not completed its own figuring in the matter, but that a precheck showed
.that the increases given was not far away from the 10-percent limit. He added that the 4-cent
overall increase, and the 4-percent cost-of-living bonus were obvious increases, but the wage
regulations required that increases be figured on overall increases for the unit involved, and
the change in the bonus plan which increased the bonus earnings of certain groups had to be
taken into consideration also The Company said they would be willing to show their figures
to the Union when they were completed Union representatives hazarded the guess that the
Company's wage levels would be 2 to 3 percent below the 10 percent allowed, company repre-
sentatives guessed the figure to be within 1 percent The parties seemed to be in agreement
that the wage-fixing formula was a complication in their discussions The conferees then
discussed vacations, seniority. Fiering then proposed that the pension plan then in effect be
included in the contract. Burns asked him if he proposed that the plan as then in effect be in-
cluded. Fiering replied that he understood there was quite a difference between the plan in
Los Angeles and the one in effect in Detroit and asked what the differences were Burns
pointed out that the basic benefits of the two plans were the same, but that in Detroit there
were a series of committees appointed to administer the plan, while under the plan at Los
Angeles the Company administered the plan Company representatives said they would prefer
not to commit themselves on the subject of including the pension in the contract at this time,
but would like to have the chance to give it further consideration. Fiering stated he would
like to have the inclusion of the pension plan added to the list of proposals the Union had
already presented , and the Company agreed to consider the proposal, and to give an answer
later . Thereafter the conferees again discussed the maintenance of membership and checkoff
which disclosed that the parties had not changed their position on those matters In discussing
these clauses, Fiering said that the extent of the Union's consideration of the job evaluation
plan depended upon what the Company's attitude was going to be on reinstating the old con-
tract The Company again voiced its opposition to the old contract and one of the union con-
ferees then stated, "We're right back where we started " The conferees then discussed job
evaluation, and the Company supplied some material on that subject to the Union for its
study.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 21 representatives of the parties again met and discussed the subject of vaca-
tions at great length . Then the Union stated that they had considered the job evaluation pro-
gram and that they had a great many questions concerning it. After discussing various ad-
vantages and disadvantages of a job evaluation program, the parties discussed the manner of
instituting the program. The Company invited the Union to cooperate in working out a job
evaluation program through mutual effort. At this point, Fiermg stated the job evaluation
program should have nothing to do with the rest of the contract. The Company disagreed with
this statement immediately. Fiering then stated that he believed the Union would withdraw
any proposal it had made regarding job evaluation, and Miller asked if he meant "unless a
contract could be signed prior to working out a job evaluation program." Fiering replied that
he thought a contract could be worked out whether or not the Company worked on a job evalua -
tion program. The Company contended that if it tried to adjust rates on a few classifications
without ranking all jobs, other inequities would result which would cause other grievances
from employees in other classifications. The Company stated that the job evaluation should
be done concurrently with writing an agreement. Fiering then said that "If that was going to
hold up the contract, they would just stick with their proposals on the two classifications."
Pursuant to its agreement at the meeting of March 14, 1951, the Company presented its com-
putations showing the amount of increase which had been effected by the general increase and
the cost-of-living bonus. This computation showed that the Company had increased wages
slightly over 10 percent, the limit allowed by law. In connection with these figures Burns
(C) explained that if the Company had not given over 10 percent in wage increases since
January 15, 1950, and were to give a general increase at that time to make up the difference,
the employees would lose the automatic provisions of the escalator clause. Miller stated that
the employees would be getting more by accepting the cost-of-living increase. The con-
ferees then discussed the provisions of the old contract without any change in position. At
this meeting the Union had submitted a copy of its proposal concerning vacations.
At about this time, Frank Flores, a former steward of the UE, circulated a petition among
the employees. This petition was headed as follows: "We, the employees, would like to change
Union from United Electrical of America to some other union elected by the people and to be
voted on." Flores obtained 123 signatures of employees in the unit to this petition. However,
as will hereafter appear, he did not file the petition with the Board, but kept it in his posses-
sion.
On April 2, 1951, the parties again met to discuss the Company's proposed new contract.
The parties again took their old positions in regard to maintenance of membership. In the
course of this discussion, Elconm charged that the Company was not bargaining in good faith.
Later he said that "he didn't want the statement left on the records that they were accusing
the Company of not bargaining in good faith; rather, ..., they felt the Company was bargaining
hard." In the course of this discussion, Burns pointed out that the Union had canceled the
contract. Whereupon Elconin stated that there was too much emphasis on this point. The
parties then discussed all the provisions upon which they could not agree, with no change in
position by either.
On April 16, 1951, the parties again met. At this meeting the Union offered the following
proposal in regard to the loyalty question. The proposal was: "The Union and the Company
agree that its representatives subscribe to and actively uphold the Constitution of the United
States, its Bill of Rights, and the Declaration of Independence." The conferees then discussed
the fact that on the Friday previous, a leaflet had been distributed to the employees of the
Company in which Elconin had explained his attendance at an allegedly left-wing meeting as
reported in the Los Angeles newspapers. Also the Union had recently accused the Company
of red-baiting tactics. Miller (C) said that he had read the union pamphlet, which was mainly
an attack on the Un-American Activities Committee, and nowhere could he find a statement
that the Union and its leaders were not communistic. The parties then engaged in a sharp
altercation which will be set out more at length hereafter. After this altercation, the parties
discussed the other features of the contract. On May 7 a proposed meeting was adjourned be-
cause of a misunderstanding among the union committee.
On May 8, 1951, the UE filed the charge in Case No. 21-CA-1106, restating the charges
previously alleged in Case No. 21-CA-956.
On June 5, 1951, the parties again met. On this occasion they could not agree upon the
wordings for grievance and no-strike clauses. The Company then gave a fgrther definition of
its proposal on loyalty and again stated that it wished to include in the contract as a reason for
discharge, the advocacy of the overthrow of the United States Government by force. This
led to a long discussion of this subject. The conferees finally moved on to a clause pertain-
ing to demotions but were unable to resolve their differences on that point
SQUARED COMPANY 287
On June 8, 1951, Elconin wrote a letter to the Company submitting four proposals. The
parties then experienced difficulty in arranging a meeting because of the absence of two
company officials, Burns and Miller.
On July 13, 1951, the National Labor Relations Board notified the Company that the United
Automobile Workers, CIO, had filed a petition seeking certification as bargaining repre-
sentative of the employees in the appropriate unit. On the same date, Rea wrote Elconin that
negotiations were suspended pending a decision by the Board in regard to the UAW petition.
On July 25, 1951, the Company issued a set of revised rules of Square D Company.
On October 16, 1951, the Regional Director for the Board, by letter, notified the Company
that he rescinded his prior approval of the withdrawal in Case No. 21-CA-956.
On October 18, 1951, the consolidated complaint, order of consolidation, and notice of
hearing herein were served.
On October 26, 1951, the Regional Director for the National Labor Relations Board notified
both parties that the UAW-CIO petition had been dismissed. On November 8, 1951, Fiering
wrote the Company calling to their attention the fact that the UAW-CIO petition had been
dismissed and asking for a resumption of negotiations.
On November 14, 1951, Rea, on behalf of the Company, notified the Union that despite the
fact that the Board had dismissed the UAW-CIO's petition, the question of representation
still existed, and that the Company was engaged in preparing the present case for hearing.
The Testimony of the Witnesses
The Respondent called as a witness Frank Flores, who testified that he was a precision
grinder in the tool and die department and had been an employee of the Company for about
5 years. He had been a member of the UE and had been a steward. Between March 1 and 26,
1951, he circulated a petition among the employees of the Company, showing the employees
the heading at the top of the petition, which read:" We, the employees, would like to change
union from United Electrical of America to some other union elected by the people and to be
voted on." Of the 178 employees, 123 signed the petition. He testified that the employees
seemed to be glad to do it and that they all said that it was a good time to do it. 8
On cross-examination the witness stated that he had been a member of the UE for some
time and that his dues were checked off by the Company the same as the other employees. He
stated that he did not submit a resignation in writing to the Union, but that he "just pulled
out. Approved by the Chief Steward. I think it was Charlie Gill at the time." He stated that
he was definitely not a member of the Union thereafter. He stated that he left the Union in
the following words, "Just a matter of pulling away, due to the fact that there was no more
dues being paid. I don't think you have got very many of them that paid. You just automati-
cally pulled away. When you don't keep your membership dues up you are no part in the
Union." The witness said that he was engaged in circulating the petition for some weeks.
Flores testified he talked to the men in the shop and that they all seemed to be in agreement
that they should have an election and select a union through that procedure.
After Flores had completed the circulation of the petition, one Payne came to him and
inquired about the petition. Payne pointed out to him that he had been a member of the UE
and that the UE had done a lot for him. He suggested to Flores that the latter tear up the
petition. Flores told him that he had started the petition and that he intended to follow
through on it. On cross-examination the witness stated he had shown the petition to Burns
of the Company on the Friday before the hearing, but that up to that time he had not discussed
the petition or shown it to any member of management.
Flores impressed the undersigned as a truthful, reliable witness. I credit his testimony
fully.
The Respondent also called as a witness James Henry Burns , personnel manager. He
testified that the only relation between the plants of the Company as to the pension plan was
the basic element of the funding of the plan. He explained that the plan encompassed all
employees of the Company at all plants since it was not actuarially sound to fund a pension
plan for a company of less than 500 employees. In order to have a sound structure for the
plan, the plan was funded out of corporation headquarters in Detroit for the benefit of all
plants.
Burns testified that there was a meeting between representatives of the Union and the
Company on October 11, 1951. On this date, Mrs. Page, who usually took notes, was ill and
the Company felt it advisable to have no notes rather than to ask someone who was unfamiliar
8 It was stipulated by the parties that each person whose name purports to be signed to the
petition would testify to the genuineness of his signature if called as a witness
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the task to take the notes. The company representatives at the meeting were Miller,
Liebsack, Hubbard, and Burns. Union representatives were Elconin. Fiering, and Bracken.
The two main subjects discussed at the meeting were the cost-of-living bonus plan and the
pension plan. The discussion as to the cost-of-living bonus was confined to how the bonus
operated, method that was used, the index that was used, and the general administrative
details of the plan. This witness testified that outside of general questions from the union
representatives as to how the plan would operate and the various details involved in it,
that he did not remember any specific remarks or questions raised by the Union. As to the
pension, Burns stated that to the best of his recollection the Company told the Union at that
time that it wished to put the pension plan into effect on the first of the year. He did not
recall any expression on the part of the Union.
Referring to the minutes of March 14, the witness stated that he had a recollection of a
discussion that occurred on that date. The question concerned how the cost-of-living bonus
plan came into the wage stabilization regulations. At the meeting Burns stated, that as he
read the regulations, a company who had a cost-of-living bonus plan in operation prior to
January 25, 1951, the freeze date, would have free movement of the escalator type clause
up to and including June 30 of that year, with the idea that the Company could continue to
pay the same amount of cost-of-living bonus that it had been paying, but at the date of this
meeting the regulations had not provided for any adjustment beyond June 30, 1951. Burns
testified that in the meeting the Company did not state that no further adjustments would take
place after June 30, 1951.
In reference to the minutes of the meeting of March 14, 1951, Burns testified that he had
a discussion of the incentive plan in this meeting. The company position on the incentive plan
was that the Company wished to come to an agreement by negotiation on the entire incentive
plan, but that the Company sought to establish that the method of setting standards of pro-
duction would be left as a company prerogative and would not be subject to the grievance
procedure. There was never any statement by any management representative that the basic
structure of the incentive plan as agreed should not be put into the contract.
This witness testified that after November 8, 1950, there were no grievances processed.
No incident had arisen either before or after that date when an employee who had a grievance
requested the presence of a union representative; and management had declined to discuss a
grievance with a union representative. Burns testified that he had handled one grievance
himself specifically with the union representative present.
In reference to the minutes of March 21 and the "computation made by Company," Burns
testified that the computations had been prepared in advance of the meeting and that they
were furnished to the conferees at the meeting and that representatives of both parties
went over the figures as they are in the exhibit.
On cross-examination, the witness stated that he did not have an occasion to discuss a
grievance during the period April 10, 1950, to March 10, 1951. On the latter date the Company
agreed to a grievance procedure by which the Company made specific arrangements as to
grievance handling due to the fact that there was nothing in writing, such as a formal method
of handling of grievances. The witness explained that after the contract was terminated, the
Company continued in general the same procedure for grievances that it had before. The
grievance went to the foreman, to the factory office, and then to Burns. No formal notification
was given the employees of any change in the grievance procedure. After the termination of
the contract the employees and the Company simply continued the procedure previously used.
The witness denied that the Company did not recognize the union stewards.
Burns testified that he first saw the petition circulated by Frank Flores on the Friday
before the hearing. On that day he asked Flores if he had such petition . Flores said that he
had, and Burns asked him to give it to him for the purpose of introducing the petition in
evidence at the hearing. Burns had knowledge of the existence of such a petition since the
time it was circulated in March, as it was a matter of common discussion in the plant. He
stated that he did not know whether the petition asked for some specific union or not, but
that he had been informed that the petition stated that the employees wished to separate
themselves from the UE. The witness stated that on other occasions when unions other than
the UE had claimed to represent a majority of the employees in the unit, the Company had
notified the UE to that effect. The Company did not notify the UE of the circulation of this
petition, because the Company did not know much about the petition except that a petition
had been circulated.
Burns testified that there were three factors which the Company took into consideration
which prompted their request for some form of non-Communist oath. First was the original
failure of the UE to comply with the requirement of Section 9 (h) of the Act that it file
non-Communist affidavits. Second was the expulsion oftheUE from the CIO on the ground that
SQUARED COMPANY 289
it was a Communist-dominated union. The third was the fact that Elconin was reported in
the press as having made a speech at a purportedly left-wing organization, Southern Cali-
fornia Chapter of the National Council of the Arts, Sciences, and professions, on April 10,
1951.
He explained that the Company first proposed to renew the 1949 contract, primarily be-
cause the contract was still in effect and the Company would try to continue on that basis if
possible. However, the Union at the very beginning of negotiations took a very belligerent
attitude, threatening to strike, and refusing to accept reasonable overtime assignments.
When ultimately the Union terminated the contract, the Company felt that it was a good time
to bring up in bargaining certain clauses which hod caused the Company a good deal of
trouble. The portions of the contract which the Company did not like were those dealing with
maintenance of membership, checkoff, vacation, and assignment of personnel. Burns stated
that the vacation clause had caused much trouble as to whether it meant the employees
should be given the time off, or pay for the time. One case on the vacation clause had gone
to the State Labor Board. The clause on the assignment of personnel gave much difficulty
as the Company desired to shift people around when there was not work in one department
and there was work in another, rather than lay anyone off.
Burns impressed the undersigned very favorably. He testified in a straightforward and
candid manner . I credit his testimony fully.
K. L. Sinclair, assistant secretary of the Company , also testified. He stated that he was
present at negotiating meetings between the Company and the Union in April 1948. One of
the main issues at the 6 or 8 meetings which he attended was the loyalty oath. The other
main issues were the maintenance of membership and the checkoff. The Company was opposed
to these. The Company proposed some form of loyalty oath, the wording of which could not
be remembered by the witness. At these meetings both parties participated in trying to
work out some clause pertaining to loyalty and finally the clause in the agreement was
worked out. This witness testified that theclauseon the subject of loyalty in the 1948 and 1949
agreements was the result of conferences between the parties On cross-examination the
witness testified that according to his recollection the Company did not ask for the right
to discharge employees whose loyalty the Company doubted. Nor did it seek to have individ-
uals sign a non-Communist oath. What the Company wanted was a stronger article on loyalty
than was finally agreed upon.
Pursuant to a subpena, Noah N. Tauscher, assistant regional director of the UAW -CIO,
testified. He testified that the petition which the UAW -CIO filed with the Board in Case No.
21-RC-2055, on or about July 13, 1951, was supported by 108 signed authorization cards of
employees in the unit. Counsel for Respondent offered the cards in evidence but upon objec-
tion by the General Counsel they were not received. I credit his testimony.
Mrs. Margaret Page, the secretary to Mr. Burns who prepared the minutes of the negotiat-
ing meetings , also testified. She stated that she made stenographic notes of what was said
at the meetings and thereafter prepared a memorandum or summary from her notes. She
had with her her shorthand notes for the meeting of April 2, 1951. Mrs. Page testified that
her notebook showed that at that meeting Elconin had said, "Don't want the statement left
here, not bargaining in good faith. Mean the Company is bargaining hard," and that "hard"
was written in longhand in her stenographic notes. Mrs. Page was not subjected to any cross-
examination . I credit her testimony fully.
The General Counsel presented as a witness Blas Gerardo. This witness testified that
he was a shop steward for the UE. At one time, Hayden, his supervisor, told him that there
was no more union shop in the plant and that Gerardo would no longer be recognized as
steward. However this witness did not know whether this occurred in April 1950 or September
1950. After this incident he had participated in the contract negotiations. This witness
appeared to be confused. He did not appear to understand the questions propounded to him,
and also appeared to be unsure of his answer. There is no other testimony in the case which
supports any testimony which he gave. Because of his obvious confusion and lack of under-
standing, I do not credit his testimony.
Carl Brant, business representative of the UE, testified as a witness. He stated that he
participated in negotiations with the Company in 1944, 1945, 1946, 1947, and 1948. In those
negotiations a Mr. Gudie represented the Company, but in 1947 Gudie dropped out and Rea
took his place. Brant stated that after Rea came into the negotiations it was more difficult
to pin Rea down as to when the conferees would meet again, and the spacing between meetings
lengthened. Brant impressed the undersigned favorably. I credit his testimony.
William B. Elconin, previously referred to, was the principal witness for the Gen-
eral Counsel Most of his testimony was devoted to giving explanations, clarifications,
or amplification of those portions of the minutes of the negotiation meetings which
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were excepted from the stipulation of counsel . Elconm's testimony on all of these excepted
portions tended to put a more favorable light on the UE conduct in negotiations . He attempted
to give explanaticas as to allportions of the minutes in which the UE appeared to disadvantage.
Much of his testimony in regard to the negotiations in prior years is undisputed . I credit that
testimony.
However, a great deal of his testimony is devoted to proving that the UE protested at
negotiation meetings , when the cost -of-living bonus was put into effect , and when the pension
was put in effect . The minutes of neg..tiation meetings, as prepared by Mrs . Page, do not
relate any protest on these points by the UE. Inasmuch as Mrs . Page's notes were made in
the course of the negotiations , and were reduced to writing immediately thereafter and bear
every mark of accuracy and impartiality , I credit her testimony , and reject Elconin's
testimony on these points . Mrs. Page was very thorough in her reports. I do not believe
that she would fail to note protests of the Union, if in fact they had been made . Elconin also
denied that in the course of the meeting of April 2, 1951 , he made the statement that "I don't
want the statement left here that the Company is not bargaining in good faith . I mean the
Company is bargaining hard ." On that point Mrs . Page also testified that he said exactly
that, as reported in the minutes . On that point I credit Mrs. Page's testimony.
Elconin also testified that the minutes did not truly portray his arguments on the non-Com-
munist oath proposal. He testified that on July 26 he stated to the Company that in his
opinion no private party had a right to inquire into the political or religious affiliations of
any other individual and that the Union would not be a party to such an arrangement. The
Union felt that such a provision would be undermining the constitutional rights of Americans,
generally.
Elconin also explained that the Union objected to the discharge of any employee because
the employee advocated the overthrow of the Government by force or violence . He explained
that the Union maintained that such an employee should not be discharged until convicted in
a court of law, of a specific statute ; that subversive activities should be reported to the
proper governmental agency , and handled thereafter by the courts . He maintained that an
employer had no right to discharge employees for this reason , prior to conviction in a court.
For reasons which I will state hereafter , I have rejected all of this testimony.
Henry Fiering , international representative of the UE, also testified on behalf of the
General Counsel He testified in reference to the minutes of March 7 , that his comment
in regard to the wage proposals was that the Union felt that conditions in the plant merited
an increase above the 10 percent which was permitted by the wage stabilization regulations,
and it was up to the Company to negotiate with the Union fairly on what the conditions war-
ranted. After they had negotiated with the Union, and had come to an agreement , the Union
felt that the agreement would be justifiable for approval by the Wage Stabilization Board.
This witness also testified that the "computations made by the Company " mentioned in the
minutes of March 21 were not submitted to the Union at that meeting . He said that some of
the material was given to the union representatives by word-of -mouth at the meeting, but
not all the detailed information that appears in the supplements . Fiering's testimony as to
the "computations made by the Company " is flatly contradicted by Burns in his testimony
and by the fact that the computations are attached to the minutes of that date . I reject Fiering's
testimony on that point. However, the remainder of his testimony I credit.
Findings as to Bargaining
The evidence in the case is composed of the documents which have been identified in the
chronology of events and the oral testimony . The entire record has been carefully considered
by the undersigned. It must be clear, at this point, that any summary of this evidence must
give less than an exact account of all the various ramifications of these negotiations. A sum-
mary , however fairly and accurately prepared, cannot replace a firsthand examination of the
evidence here involved. It is only by careful examination of the conduct of the parties in this
negotiation , viewed against the backdrop of events, that the clear picture of the negotiation
emerges.
There are two issues in the present proceeding.
1. The General Counsel contends that the Company did not bargain with the Union in good
faith. His bill of particulars claims that at 18 points , the Company's bad faith, or lack of good
faith , is shown. Each of these points will be later reviewed under the heading "Findings as
to specifications of the bill of particulars."
2. The General Counsel contends that at all times relevant the Union was the representa-
tive of a majority of the employees in the appropriate unit.
S2UARE D COMPANY 291
There are certain undisputed facts in the background of this evidence that have important
bearing on the issue of the Company' s good faith. The first of these facts is that the Company
has a long and excellent history of collective bargaining with this very Union. Since 1943 the
two parties have dealt with each other amicably and fairly in accordance with the best princi-
ples of collective bargaining . It is manifest from the evidence that until the termination of the
contract by the Union on April 3, 1950, the Company had experienced no authorized or un-
authorized work stoppages . Also, in that long period of time , only a few (2 or 3) grievances
were processed each year by the Union. The record is devoid therefore of any evidence of
bad faith on the part of the Company in any of the bargaining which took place in the 8 prior
years. Also the record is devoid of evidence of antiunion conduct or animus on the part of the
Company in the 8 prior years.
In this controversy too, there is no claim of antiunion animus on the part of the Company,
outside of the bargaining . The General Counsel makes no claim that the Company interfered,
threatened , or coerced employees. He makes no claim that any official of the Company inter-
fered with the enjoyment of any employee of his rights under the Act.
The General Counsel admits that the parties bargained at many conferences , over a long
period of time , but his claim is that, in doing so , the Company was engaging in surface bar-
gaining , sham bargaining , while at all times it was in fact refusing to bargain with the repre-
sentative of a majority of its employees . He asserts that the Company sought in the bargain-
ing not legitimate provisions or contract clauses , whichwould confer benefits on the Company
and its operations , but that the Company sought to make agreement of the parties impossible
because it wished to evade its duty to bargain under the Act.
With this background in mind , and the issues squarely before us , we may examine the
evidence as it relates to the General Counsel 's bill of particulars . At each heading which
follows , I have placed the exact allegation as set forth in the General Counsel's bill of par-
ticulars . The number of each heading is the same as the number of the specification.
a. Findings as to specifications of the bill of particulars
#1. Refusal to meet and bargain with the Union on and after November 8, 1950, and
basing the refusal on the spurious outstanding claim of the International Brotherhood of
Electrical Workers , which claim had no merit.
# 2. Refusal to reply to the Union 's demand to meet and bargain on November 16, 1950.
There is one defense to both of these allegations which was not considered at the hearing.
It is undisputed that the Company and the Union entered into an agreement on February 26,
1951, wherein and whereby the Union withdrew its charge of refusal to bargain , Case No.
21-CA-956, and the Company agreed to meet and negotiate with the Union on four specific
dates . At the opening of the hearing the Respondent moved to dismiss certain portions of the
complaint on the ground that the complaint in certain respects violated the provisions of
Section 10 (b) of the Act . All discussion at that point was directed to an inquiry as to whether
this agreement tolled the running of the statute of limitations set forth in Section 10 (b). The
Respondent did not directly urge that the parties were bound by a fully executed settlement
agreement of the pending charges in Case No . 21-CA-956, and the Trial Examiner did not
rule on that question . However, in its brief the Company now urges that consideration.
The General Counsel at the hearing argued that this arrangement of the parties was a
settlement agreement , and that the Regional Director had a right to set aside the settlement
agreement when in the Regional Director 's opinion the settlement agreement was not fully
complied with by the Company. I agree that the Regional Director has the authority in a proper
case to set aside a settlement agreement on the basis of his own administrative finding that
the Company has not complied with the terms of the agreement . But he made no such ad-
ministrative finding in this case . His letter to the Company reads as follows:
On February 26, 1951, the withdrawal oftheabove charge was approved by the Regional
Director . On May 8, 1951 , the Union filed another charge , Case No. 21-CA-1106, in-
corporating the allegation of the charge in Case No . 21-CA-956 therein and alleging a
resumption and continuation of the previous alleged refusal to bargain.
Since a formal complaint will issue in a few days in these matters , I am therefore
rescinding my previous approval of the withdrawal in Case No 21-CA-956 The com-
plaint will encompass the refusal to bargain allegations of both charges
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to this decision, the Regional Director issued his complaint, putting the Respond-
ent to trial on the issues covered by the agreement. However, all the facts concerning this
agreement were litigated in the hearing; witnesses testified under oath as to the manner in
which the settlement agreement was effected, and as to the compliance of both parties with
the settlement agreement. It is undisputed that the agreement was entered into by the parties.
The terms of the agreement are likewise clear and specific, and not subject to any oral
limitation. I now find, upon the credible evidence pertinent to that point that the Company ful-
filled all the terms of its agreement--it bargained in good faith with the Union on the agreed
dates, and for a long time thereafter. Consequently I find that the settlement agreement of
February 26, 1951, bars the General Counsel from prosecuting the Company for any refusal to
bargain prior to that date.
Furthermore there is no proof that the Respondent refused to meet and bargain with the
UE on November 8, 1950. There is no evidence of any request to meet on that date or any date
thereafter until November 16, 1950. On the latter date, the UE demanded that the Respondent
meet and bargain and requested an answer by noon, November 20, 1950. This was answered by
Burns, who told the chief steward that the Company was considering what action it would take
in view of the conflicting claims made by the various unions upon the Company. These con-
siderations led ultimately to the settlement which was effected on February 26, 1951. The
demand of the Union was made on November 16, 1950. The Union followed its demand by
filing charges in Case No. 21-CA-956 on November 24, 1950. Under the circumstances, I
find that the Company, confronted with conflicting claims by two unions, had a reasonable
time to review its legal position, to consult counsel, or to confer with both unions, before it
made a decision as to its future position. The UE exhibited little patience in this situation. It
issued its demand to the Employer, and when it did not meet with the Union immediately, the
UE filed its unfair labor practice charge. Confronted with legal prosecution by the UE, the
Employer again had a reasonable time to survey the position in which he found himself, and
to decide to prepare his case forhearing,or to negotiate with the UE, upon the pending charges.
The Company here took the latter course and after negotiations, the pending charges were
settled on February 26, 1951. I find that this delay in meeting with the UE, under the cir-
cumstances, was not a refusal to bargain,
Furthermore the conduct of the UE in agreeing to settle the outstanding claims of failure to
bargain, and actually participating in bargaining from March 1, 1951. to June 11, 1951, was
in fact a waiver of any technical violation of the Act, which might have occurred prior to that
bargaining. This claim of the General Counsel typifies the union conduct at several points of
this controversy. The UE wanted to have its cake and to eat it, too. The UE demanded bar-
gaining conferences with the Company, and pursuant to such demand bargained with the
Company for many months, but now the General Counsel argues that the Company committed
a refusal to bargain before those negotiations commenced. I find that argument without merit.
By all the principles of estoppel or waiver, the General Counsel is precluded from that
position.
The UE's demand to bargain on November 16,1950, culminated a long series of negotiations
between the parties, which had ended in an impasse on several points. It is apparent from a
reading of all the evidence that in the negotiations for a new contract the UE insisted upon
making the setting of standards pursuant to the incentive plan subject to the grievance pro-
cedure and arbitration, a point on which the UE had always conceded in prior negotiations,
and the Company insisted upon the elimination of maintenance-of-membership and checkoff
clauses, points upon which the Company had always conceded in prior negotiations. These
three subjects are all bargainable subjects and it appears that from the inception of nego-
tiations through November 16, 1950, to the filing of the charges in Case No. 21-CA-1106 on
May 8, 1951, this impasse prevailed. On these issues both parties refused to budge, so each
bears a responsibility for the ultimate failure of negotiation. When an impasse was reached
prior to November 16, 1950, the Respondent was under no obligation to meet simply for the
sake of meeting. On that ground, also, I find that the Respondent did not refuse to bargain
by virtue of this specification.
#3. Unilateral institution of a pension plan on or about January 1, 1951.
It is undisputed that the pension plan was instituted on January 1, 1951. It is undisputed
that the pension plan was fully discussed with the UE well in advance of its institution and
that the desired effective date was discussed with the representatives of the UE. There was
never any demand or suggestion by the UE as to what the plan should entail. Union officials
inquired about the method of operation of the plan, and seemed to be favorably disposed to
the plan. Never at any time did they object to the institution of the pension plan.
SQUARED COMPANY 293
At the time the plan was instituted January 1, 1951, an impasse on the issues had occurred.
When the parties later met, after the institution of the plan, Fiermg requested that the
pension plan as then in effect be included in the contract.
In considering this question the decision of the Court of Appeals, for the Seventh Circuit
in N.L.R.B. v. Bradley Washfountam Co., 192 F. 2d 144, is apposite. Because the decision
reviews the pertinent cases on the subject. I will quote it at length:
As we read the Board's decision it concluded that the wage increases, although
awarded by respondent after proposing them to the Union, were improper because
at the time of the awards there had not been "a hardening of the attitude of the nego-
tiators." There is no question but that the parties were bargaining from time to time;
that the Union had demanded 16¢ an hour increase and certain privileges, and that,
as the negotiations progressed and wlule they were still continuing, the employer
concluded that it would yield to the request of the Union to the extent of at least 10¢ an
hour and made allowance of that amount on June 30. The next month it made the allow-
ance as to pay for holidays, and in October an additional 5¢ an hour. All of these awards,
as the Examiner and the Board found, were made after notice to and negotiation with the
Union, and were in direct response to the Union's request for an increase of 16¢ an
hour. The Union was not ignored; it was notified and consulted. Then the employees
were notified that, though the Union had not accepted, the company felt it only fair to
make the allowances. In other words, the ultimate situation was that the Union had
requested 16¢ and pay for holidays and that the respondent after notice to the Union
had allowed 15¢ and part of the relief prayed as to pay for holidays. How this can be
said to have been unilateral is well nigh impossible to see, for it was in fact, com-
pliance with the requests of the Union to the extent made and, as the Examiner found,
without prejudice to the rights of parties to continue their negotiations as to the demands
not granted and as to the form of a new contract to take effect upon expiration of the
then existing one. The allowances were concessions made in response to the requests
of the Union. True they did not include allowance of all of the demands, but, as to those
which were not allowed, the correspondence and the record as a whole indicate clearly
that it was contemplated that the parties would continue to bargain and negotiate as to
the balance of the Union requests and as to the form of a new contract. Surely such
action constituted no deprivation of or interference with the rights of the employees
and no interference with their bargaining agent but was in fact merely concession as
to part of the requests made, thus avoiding the necessity of further negotiations with
respect thereto.
That such acts upon the part of the respondent are innocent and should be encouraged
rather than discouraged is apparent from the reasoning in various decisions having to
do with the economic policy underlying the National Labor Relations Act.... Thus in
N. L. R. B. v. Crompton-Highland Mills, 337 U.S. 217, 224, ... [24 LRRM 2088], the
court said: "A unilateral grant of an increase in pay made by an employer after the
same proposal has been made by the employer in the course of collective bargaining ***
left unaccepted or even rejected in those negotiations *** might well carry no dis-
paragement of the collective bargaining proceedings. Instead of being regarded as an
unfair labor practice, it might be welcomed by the bargaining representative. without
prejudice to the rest of the negotiations. See In the Matter of W. W. Cross & Co., 77
N.L.R.B. 1162 [22 LRRM 1131]; In the Matter of Exposition Cotton Mills Co., 76 N.L.R.B.
1289 [21 LRRM 1319]; In the Matter of Southern Prison Co., 46 N.L.R.B. 1268 [11 LRR
Man. 224]." In N.L.R.B. v. Whittier Mills, 5 Cir., 111 F. 2d 474, 478 [6 LRRM 799] the
court commented: "Nothing prevented the employer at any time from changing for the
future the wages he would pay. *** The pendency of a negotiation for a collective con-
tract would not destroy the employer's right in this regard." Likewise in J. I. Case
Co. v. N.L.R.B., 321 U. S. 332... [14 LRRM. 501], the Supreme Court suggested that
"Men may continue work after a collective agreement expires and, despite negotiation
in good faith, the negotiation may be deadlocked or delayed; in the interim express or
implied individual agreements may be held to govern." The Board itself has reasoned
likewise. Thus, in Exposition Cotton Mills Co., 76 N.L.R.B. 1289 [21 LRRM 1319], the
Board said: "We are not convinced that Respondent's action in this instance was a
demonstration of bad faith. *** Respondent had been bargaining with the union for more
than two years in good faith, as conceded by the Trial Examiner as well as the union ***
We find that the posting of the wage increase notice on August 2, 1946, when 'appraised
in the total context of the case,' did not constitute a demonstration of bad faith on the
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of Respondent . Under these circumstances , it would do injustice and not effectuate
the policies of the Act to find a violation of Section 8 (5) of the Act."
The comment of the Trial Examiner upon this feature of the record is pertinent in
its suggestion that the acts complained of in reality had a tendency to enhance the
Union's prestige . He said: "The wage increase was less than the employees had in-
structed their committee to ask for . The notice fully apprised the employees , in effect,
that their bargaining agent was unsatisfied with the increase and presumably would
continue to ask for the greater amount. Nothing in the notice reasonably could have
been interpreted by the employees as an indication that the e mployer was seeking to
deprive the Union of prestige . Since the amount granted was less than the employees,
through the Union , had demanded , the action may hardly be construed as an effort on
the part of the employer to persuade them that they would benefit by withdrawing al-
legiance from the Union , particularly since for many years all employees had been
required to be union members ." When the company , after notifying the Union, made
its allowances , it said in effect: "You have requested certain allowances ; we concede
the justice of your request to the extent of 15¢ an hour . In the meantime we shall con-
tinue to bargain or negotiate with you as to the requests to which we have not acceded
and as to the terms of a new contract to succeed the one about to expire ." We think this
is a far cry from any violation of its duties under the Act but perceive in it rather
action favorable to promotion of the purposes of the legislation.
It seems obvious to us that it is impossible to construe the facts as disparaging or
undermining the Union , especially when taken in consideration with the long historically
amicable relationship existing between respondent and the Union . It was not necessary of
course that respondent praise the Union for , in the words of Mr. Justice Rutledge in a
concurring opinion in May Department Stores v . N.L.R.B ., 326 U . S. 376 ... [17 LRRM.
643], "Nothing in the Act requires an employer to maintain a union's prestige or to give
it credit for originating all proposals which may have some future effect upon his re-
lations with his employees . Section 8 (1) forbids interference , coercion and restraint
upon employees in the exercise of their rights , not the mere failure of the employer to
magnify the Union's influence."
On the basis of these cases, it appears that the institution of the pension plan was not a re-
fusal to bargain because (a) the institution of the pension plan was not unilateral ; (b) if it can
be considered unilateral , it was instituted after notice to the UE subsequent to attaining an
impasse in the negotiations ; and (c ) the pension plan could have properly been instituted even
without having attained an impasse.
# 4. Refusal to negotiate concerning the aforesaid plan on and after March 14, 1951.
The record is devoid of any evidence in support of this allegation . There is no evidence
that the UE sought to negotiate on and after March 14 , 1951, concerning the pension plan, or
that Respondent refused to do so . The conduct of union representatives, as disclosed in the
minutes, seems to be that they were quite well satisfied with the pension plan, had no objec-
tions to any particular feature of the plan, and voiced no objections to the manner in which
it had been instituted When the plan was submitted to the Union , the Union issued a bulletin
to the employees hailing the advent of the plan as a union accomplishment
# 5. Inconsistent proposals concerning Respondent's job evaluation plan.
#6. Company's insistence upon job evaluation plan as a condition of a contract on
March 14, 1951.
The evidence does not support these specifications. The subject of the job evaluation plan
came up for discussion for the first time in the minutes of March 14 , 1951 . The job evaluation
plan came into the negotiations between the parties as the result of the UE's proposal to in-
crease the pay of tool and die makers and painters in addition to the general increase. The
Company took the position that the wages paid various craftsmen were related to the wages
paid to other crafts, and that a job evaluation program might be the answer to the problem
posed by the Union 's demands on behalf of the tool and die makers and painters . At the outset
the union representatives appeared to be favorably disposed , but later , when they learned
that the Company would like the plan to be made concurrent with the execution of a new con-
tract, the union representatives demurred and stated that they would revert to their original
demands.
SQUARED COMPANY 295
There is absolutely no evidence that the Company insisted on a job evaluation plan as a
condition of a contract at any time. After the union representatives stated that the Union
wished to revert to its prior demands, the subject seems to have gone out of the negotiations.
#7. Refusal to recognize the Union's shop stewards and to permit them to participate
in the processing of employee grievances between November 8, 1950, to March 1, 1951.
There is a good deal of testimony on this subject in the minutes, but I find no credible
testimony which proves that the Respondent refused to recognize the Union's shop stewards
or to permit them to participate in the processing of grievances between the dates set forth.
Witnesses on behalf of the Company, whose testimony I credit, have established that the
Company considered, properly, that when the UE terminated the contract it terminated the
grievance procedure set forth in the contract. Burns testified credibly that no grievances
were processed in the period alleged, and he further testified that at other times the em-
ployees and management processed grievances in the same manner as they had been proc-
essed prior to the termination of the contract As to the recognition of the shop stewards
and the processing of grievances, the position of the Company appears to be clearly set
forth in the record I find that the Company took the position that the specific contract
procedure set forth in the contract had terminated when the contract terminated, but that
thereafter the Company did not refuse to recognize union stewards in the processing of
grievances
In this record, while there is a good deal of testimony on this subject, not one employee
was produced who claimed that his grievance was not processed. Nor was one union steward
produced who t...,tified that he was denied the right to represent an employee in filing a
grievance. Consequently I find that the Respondent has not failed to bargain, as alleged in
this specification.
#8. Insistence upon limitation of the rights of union stewards to participate in
grievances on March 1, 1951.
On March 1, 1951, the parties met for the first bargaining conference pursuant to the
settlement agreement of February 26, 1951. At that meeting, Fiering suggested that the
parties attempt to get back to their old friendly basis and suggested that the old grievance
procedure be reinstated between the parties. The Company made its position clear again.
It stated that it would cooperate in an effort to reestablish the old friendly basis and would
agree that if any employee desired to be represented by a steward in the presentation of a
grievance, the Company had no objection. However, the Company stated it would not institute
any "formalized" grievance machinery. The whole tenor of this discussion was that the
Company did not deny any employee the right to be represented by a union representative at
any time, but that the Company was not continuing in effect the grievance procedure set up in
the old contract or by instituting a temporary grievance procedure binding the Company to
the continuance of that particular procedure.
#9. Payment of a cost-of-living bonus during the first quarter of 1951, as disclosed in
the Company 's minutes of March 14, 1951, after unilaterally instituting the cost -of-living
bonus on or about October 4, 1950.
I find that the Respondent did not refuse to bargain by virtue of this allegation. The cost-of-
living bonus was instituted on October 4, 1950. That conduct at that time, according to the
Trial Examiner's ruling, could not be the basis of an unfair labor practice because of the
prohibition contained in Section 10 (b) of the Act. The General Counsel now proposes that a
quarterly payment of the cost-of-living bonus is an unfair labor practice, where the institu-
tion of the bonus plan cannot be the subject of prosecution by virtue of Section 10 (b). I find
that the statute of limitations has run on the question of whether or not the institution of the
cost-of-living bonus was an unfair labor practice, and that the quarterly payment was not an
unfair labor practice.
Furthermore the payment of a quarterly bonus could not be evidence of an unfair labor
practice if the institution of the bonus on October 4, 1950, was lawful and proper. On consid-
ering the evidence on this point, I find that the institution of the cost-of-living bonus on
October 4, 1950, was entirely proper for the following reasons: (a) An impasse had been
reached on the wage issue; and (b) the details of the cost-of-living plan had been fully dis-
cussed with and offered to the UE prior to its institution.
29i555 0 - 54 - 20
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
#10. Continuing the cost-of-living bonus since June 1951 without bargaining with the
Union about its continuance, although the Company's stated policy in negotiations with
the Union was that the bonus would be terminated on June 30, 1951.
I find that this specification has not been sustained by the evidence. There is no evidence
that the stated policy of the Respondent in negotiations with the UE was that the cost-of-
living bonus plan would be terminated June 30, 1951. The undisputed evidence is entirely to
the contrary. Burns' testimony in regard to the cost-of-living bonus cleared up what appears
to be a mistaken impression on the part of the Union and the General Counsel In discussing
the minutes of March 14, 1951, Burns testified that the discussion revolved around how the
cost-of-living bonus plan related to the wage stabilization regulations. Burns stated to the
representatives at the meeting that according to the regulations, if a company had a cost-of-
living bonus plan in operation prior to January 25, 1951, the freeze date, the company would
have free movement of the escalator type clause until June 30, 1951, but that at that time of
the meeting the wage stabilization regulations did not make provision for any further adjust-
ment in wages beyond June 30, 1951.
#11. Promulgation of factory rules and regulations issued July 25, 1951, unilaterally
changing working conditions by failure to mention the existence of a grievance procedure
and failure to mention union shop stewards.
The rules and regulations issued January 25,1951, did not refer to any grievance procedure
or to the union stewards. There was no duty on the part of the Company to make such refer-
ence. The existing grievance procedure had been terminated by the termination of the contract
by the Union. Thereafter there was no formal grievance procedure. It was true that the union
stewards were still the statutory representatives of the employees, but the Company was under
no duty to bring this to the attention of the employees. Nor was the Company required to explain
to the employees their right to be represented by stewards under the Act. As the Board has
stated many times, those rights were properly the business of the employees and the Union
alone. The Company had a right to assume that the Union would acquaint the employees with
the service which the Union was ready to perform on their behalf. As stated in May Depart-
ment Stores, Inc., supra, the Company was under no obligation to enhance the prestige of the
Union, and failure to do that is not a refusal to bargain and, of course, there was no duty on
the part of the Company to reinstate unilaterally the grievance procedure outlined in the con-
tract which the UE had terminated.
#12. On and after March 1, 1951, offering unacceptable contract proposals, knowing that
they could not be made the basis for a contract between the parties, and adamantly adher-
ing to such proposals, including, without limitation, proposals to abolish any form of union
security and more particularly to eliminate maintenance of membership and checkoff.
This specification is based on a fallacy. The General Counsel assumes that the UE was en-
titled, as a matter of law, to maintenance of membership and checkoff. The General Counsel
contends that the Company has refused to bargain because it made proposals which it thought
the Union would not accept. Under his theory of collective bargaining, the Company could only
make proposals which it knew the Union would accept. Such a concept denies the whole theory
of collective bargaining. It seems tobe his argument that having once bargained with the Union
and agreed to clauses of maintenance of membership and checkoff, the Company could never
thereafter propose the elimination of those clauses. In other words, bargaining was only a
process by which the Union could gain additional benefits, and benefits once won, could never
be lost. That idea is not correct. Here the UE terminated the contract which contained main-
tenance-of-membership and checkoff clauses. It terminated the contract in preparation for a
strike, which was forbidden by a no-strike clause of the contract. In order to shed the restraint
of one contract clause and to be able to strike, the Union terminated the contract. Now the
General Counsel says in effect that when the UE terminated the contract, it did not cancel all
mutual obligations of the parties pursuant to the contract, that the provisions for maintenance
of membership and checkoff had to be continued. As I understand collective bargaining, when
the Union terminated the contract, it terminated each and every clause of the contract. As of
April 14, 1950, no contract existed between the parties and when bargaining began thereafter,
it began afresh. There was no obligation on either party to continue in effect the no-strike
clause which the Union did not like, or the maintenance-of-membership and checkoff clauses
which the Company did not like. The Union terminated the contract in order to strike. This
SQUARE D COMPANY 297
contemplated resort to economic force fizzled for some reason. When the parties met again
they met as employer and employee representative, who were commencing negotiations anew.
Furthermore, there is no evidence that the Company knew the UE desires so well that it knew
that its proposals could not be the basis of a contract.
I find that the Respondent did not refuse to bargain by virtue of this specification.
#13. On and after November 8, 1950, refusing and failing to discuss the Union's demand
that the Respondent's incentive plan be made subject to the grievance procedure.
There is no evidence to support this specification. On the contrary, the parties bargained
through many conferences on the UE's demand that the incentive plan be made subject to the
grievance procedure.
#14. On and after November 18, 1850, adamantly refusing to bargain collectively with
the Union concerning the establishment of standards upon which the Respondent's incen-
tive plan is based.
This specification is also based on the fallacy mentioned previously. Heretofore the General
Counsel assumed that the Union had a right to maintenance of membership and checkoff. In
this specification he assumes that the setting of production standards is a function in which
management must agree to UE participation. That is not the law. The bargainable issue here
at issue is whether or not the UE shall participate in the setting of production standards. It
is proper for the Union to demand such participation, and it is equally proper for the Respond-
ent to refuse to grant such a demand. The Respondent did not grant the UE's demand that the
UE be permitted to participate in setting production standards. Respondent stated that the
setting of such standards was the result of time studies conducted by technical experts and
that the Company had found that the more people who participated in the formation of such
standards the more confusion resulted. It was also naturally understandable that the Company
did not wish to make such standards the result of negotiation between the parties with the
standards set in negotiation being subject to the grievance procedure. The Company feared
that if standards were the subject of negotiation they would tend to be set at the lowest level
upon which the conferees could agree, and that thereafter they would be the subject of endless
grievances on the part of the employees. The Union had a right to demand participation in
setting the standards and the Company had a right to refuse the Union's proposal. In prior
years the Union had consistently conceded on this point. But in these negotiations the Union
held fast to its demands. The General Counsel's position now is that the Company refused to
bargain by not conceding the maintenance of membership and checkoff because it had pre-
viously conceded those points, and that the Company has also refused to bargain because it
did not concede on this point on which the Union had always previously conceded.
The situation as regards this specification is clearly set forth in the record. The situation
may be summed up in the following words: (a) Whether or not there is to be an incentive plan
at all, is a bargainable issue; (b) what the terms are to be of such a plan if one is instituted,
is a bargainable issue; (c) whether or not the production standards underlying an incentive
plan are to be fixed by the Respondent or by the UE or by both, is a bargainable issue; (d) re-
fusal by either party to concede any particular alternative under paragraph (c), above, is not
a refusal to bargain. It is merely a refusal to yield an economic demand.
#15. Dilatory tactics by Respondent in setting meeting dates and in refusal by Respond-
ent to meet for periods of time long enough to discuss all issues.
#16. Failure to produce Company proposals in timely fashion.
There is no evidence sustaining these allegations. The minutes of the negotiating meeting
show that the Company bargained long and exhaustively with the Union on many occasions.
Meetings perhaps were not scheduled with the frequency which the UE desired, but there is
no evidence of bad faith in the manner in which meetings were scheduled and conducted The
discussions were long and thorough, and usually one or both of the parties undertook to prepare
some proposals for the next meeting. This factor tended to prolong the time between meetings.
There is no evidence to sustain the allegations that company proposals were not produced
in timely fashion. Some of these proposals are contained in General Counsel's Exhibits Nos.
10 (A) through 10 (J). These proposals show careful thought and preparation. In the course of
the bargaining conferences other proposals of the Company were made verbally. A reading
of this record forces the reader to the conclusion that the Respondent in the light of all the
circumstances did not refuse to bargain by virtue of these specifications.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
#17. Requiring as a condition of a contractthatall Union representatives sign and sub-
mit to the Company noncommunist affidavits , as appears in Article XIV in Respondent's
proposed contract.
Article XIV, which is mentioned in the specification , reads as follows:
Sec. 1 . The Company may require a noncommunist affidavit from any individual or in-
dividuals, claiming to represent the Union in any capacity before recognizing such indi-
vidual as a representative of the Union . The Company may refuse to confer , meet with, or
bargain with any such person or persons who decline to furnish such affidavit or affidavits.
Such affidavit shall affirm that the individual is not a member of the Communist Party or
affiliated with such party and that he does not believe in and is not a member of or sup-
ports any organization that believes in or teaches the overthrow of the United States Gov-
ernment by force or by any illegal or unconstitutional methods.
The above article was included by the Company in its proposed contract (General Counsel's
Exhibit No. 10 (C)), which was presented and distributed to the conferees at the meeting of
July 26 , 1950 . Toward the close of that meeting the article was rewritten to require that
company representatives give a similar affidavit to the Union.
At the same meeting and in the same proposals the Company proposed that the parties agree
that advocacy of the overthrow of the Government of the United States by force or violence be
made a cause for discharge under the contract . By virtue of the proposal , a discharge pur-
suant to this paragraph would be subject to the grievance procedure ending in arbitration.
Burns testified credibly that these proposals of the Company were prompted by three factors.
One was the failure of the UE to originally comply with the requirement of the Act as to the
filing of non-Communist affidavits by its officers . A second factor was the expulsion of the
UE from membership in the CIO pursuant to a resolution adopted at the CIO convention at
Cleveland , Ohio, on November 4, 1949 . This resolution reads as follows , in part:
REPORT OF COMMITTEE ON RESOLUTIONS ( Resumed)
COMMITTEE SECRETARY CURRAN: You have before you the special resolution on the
expulsion of the UE, which is as follows:
Resolution No 58
ON THE EXPULSION OF THE UERMWA
We can no longer tolerate within the family of CIO the Communist Party masquerading
as a labor union . The time has come when the CIO must strip the mask from these false
leaders whose only purpose is to deceive and betray the workers . So long as the agents
of the Communist Party in the labor movement enjoy the benefits of affiliation with the
CIO they will continue to carry on this betrayal under the protection of the good name of
the CIO.
The false cry of these mis-leaders of labor for unity and autonomy does not deceive us.
In the name of unity they seek domination.
In the name of autonomy they seek to justify their blind and slavish willingness to act
as puppets for the Soviet dictatorship and its foreign policy with all its twists and turns
from the Nazi -Soviet Pact to the abuse of the veto in the UN , the Cominform attack upon
the Marshall Plan , ECA, the Atlantic Treaty and arms aid to free nations.
Now that they are at theendof the trail , these Communist agents cry out against "raid-
ing and secession ." What they call raidmgandsecession is simply a movement of workers
throwing off their yoke of domination . These workers seek refuge from a gang of men who
are without principle other than a debased loyalty to a foreign power.
Their masters have long decreed the creation of a new labor federation into which they
hope to ensnare the labor unions they think they control. This has already taken place in
many countries of the world . It will not happen in America.
When they saw that their attempt to use UERMWA to subvert the CIO was failing, they
resorted to the typical Communist tactic of systematic character assassination against
the National CIO, our President, Philip Murray , and all affiliated unions and officers who
opposed the Commform policy.
Their program of vilification reveals the degradation of men who have surrendered the
right and lost the ability to think for themselves . It brands them as unfit to associate with
decent men and women in free democratic trade unions.
SQUARE D COMPANY Z 9 9
The CIO is a voluntary association of free trade unions dedicated by its constitution to
the protection and extension of our democratic institutions, civil liberties, and human
rights . Free unions are voluntary associations of free men , held together by common
loyalties and the elements of decency and honesty. We will fight with conviction and vigor
against all enemies within or without the CIO who would trample or seek to destroy these
sacred principles.
The certificate of affiliation of the CIO is a symbol of trust, democracy, brotherhood
and loyalty in the never-ending struggle of working men and women for a better life.
There is no place in the CIO for any organization whose leaders pervert its certificate
of affiliation into an instrument that would betray the American workers into totalitarian
bondage.
By the actions of its leadership, by their disloyalty to the CIO, and their dedication to
the purposes and program of the Communist Party, contrary to the overwhelming senti-
ment of the rank and file membership who are loyal Americans and loyal CIO members,
the leadership of the United Electrical, Radio and Machine Workers of America have
rendered their union unworthy of and unqualified for this certificate of affiliation.
s * a
NOW THEREFORE BE IT RESOLVED THAT:
1. This Convention finds that the Certificate of Affiliation heretofore granted to the
United Electrical, Radio and Machine Workers of America has fallen into the control of
a group devoted primarily to the principles of the Communist Party and opposed to the
constitution and democratic objectives of the CIO, and in particular to the following
declaration in the Preamble of the Constitution of the CIO,
In the achievement of this task we turn to the people because we have faith in them;
and we oppose all those who would violate this American emphasis of respect for
human dignity , all those who would use power to exploit the people in the interest of
alien loyalties,"
and, in conformance with the provisions of Article III, Section 6 of our Constitution, this
convention hereby expels the United Electrical, Radio and Machine Workers of America
from the Congress of Industrial Organizations and withdraws the said Certificate of
Affiliation.
The third factor prompting the request for these provisions was the fact that Elconm had
addressed a meet:lg of the California Council of the Arts, Sciences, and Professions,9 which
was reported in the Los Angeles press as a left-wing meeting, and that the Union had circu-
lated in the plant a pamphlet explaining his attendance, which was an attack on the Un-Amer-
ican Activities Committee of-the Congress.
The minutes which refer to this ineident are those of April 16, 1951. The minutes are as
follows:
Mr. Miller then mentioned that last Friday there was a leaflet distributed to the em-
ployees in which Bill Elconin explained his attendance at a reportedly left wing meeting.
The Union had recently accused the Company of red-baiting tactics; however, Mr. Miller
said after reading this leaflet, which was mainly an attack on the un-American Activities
Committee, nowhere could they find any statement that the UE and its leaders are not
Communistic. It was pure Communist propaganda. While a lot of references were made
bearing on other people, the leaflet didn't state that the UE is not Communistic. In
view of the facts that are brought out there, Mr. Miller said, the Company would not only
9The General Counsel in his brief requested that I take judicial notice of the fact that the
organization named is not on the Attorney General's list of subvcrisve organizations. I have
not complied with that request because (1) it was made after the close of the evidence, and
(2) the request was not accompanied by a copy of the said list, therefore, (3) the granting of
the request would necessitate my writing the Attorney General on this subject I am of the
opinion that it would be improper for nie to request that information from the Attorney General
inasmuch as that would amount to a personal investigation apart from the evidence. I have,
therefore, decided the issue herein on the evidence as submitted at the hearing
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have to insist that the section outlined in the present proposal be retained , but, before
they can agree to signing a contract they will have to Insist that the Union and all its
officers and/or representatives , other than employees of the Square D Company of Los
Angeles, shall, to the satisfaction of the Company, establish their freedom from Com-
munistic activity; and, further than that realizing as they do, that this local of the UE is
tied in with the International and, undoubtedly, the international organization must have
some influence over the local organization , therefore, the Company feels that they would
also have a letter from the international organization covering the same things as far as
their officers are concerned. Mr. Miller said they would like to clear up the whole thing
from the top down to the roots --they would like to know just what the UE stand is and
what is involved there. He added that he guessed that gave the Union the Company's
answer on that subject. (Emphasis supplied.)
The CIO resolution represents the collective action of millions of Americans engaged in the
field of labor. These millions of Americans by the vote of their delegates deemed the UE com-
munistic, and unworthy of association with other unions in the ranks of the CIO. Certainly the
action of the CIO would give pause to any man in the ranks of labor who found himself affili-
ated with the UE, and it would give pause to any man engaged in management who found himself
with contractual obligations to the UE. Furthermore, in the course of negotiations, on April
10, 1951, the Los Angeles press reported that Elconin, one of the UE's representatives, had
addressed a purportedly left-wing meeting. This action certainly did not allay the fears of the
Company. As background to these facts was the notorious failure of the UE to comply with the
provisions of Section 9 (f), (g), and (h) for a long time, and its bitter attack upon those pro-
visions of the law.
From these facts I find that the representatives of the Company had reasonable ground to
believe that (1) they were dealing with a Communist-dominated union, and that (2) some of the
representatives of the Union with whom the Company was presently dealing, were then
actively engaged in promoting the cause of communism. Under those circumstances, company
representatives certainly had the right in collective bargaining to take such reasonable mea-
sures as they felt necessary to safeguard the Company's plant and its continuous operation
against communistic activity. Such measures would be required not only for the security of the
plant, but for the security of the Nation as a whole. It can no longer be denied that the Soviet
Union by means of international communism is making war upon the United States and the
free world, militarily, politically, diplomatically, economically, and culturally. The Com-
munist attack takes various forms. In Korea it is armed force, and in American industry it
is infiltration, sabotage, and strikes inspired by political aims.
The two proposals of the Company, designed to afford security to the Company's plant and
operations, which are set forth above, were thoroughly discussed in subsequent negotiation
meetings. From time to time the Company proposed that the Union attempt to draw clauses
which would protect the Company against Communist activities. In these meetings the position
of the Company was clearly set forth. It wished to have the right, clearly expressed in the
contract, that it could discharge any employee who disseminated Communist propaganda in
writing among the employees, or who verbally advocated the overthrow of the United States
Government by force or violence. The Company stated that this proposal was designed to pro-
tect the Company against communistic activities of any of its own employees.
The Company, moreover, stated that it had no protection against representatives of the
Union, such as international representatives and the Union's paid staff who were sent to the
Company's plant by the Union. As to those representatives, the Company felt that the Union
should accept the responsibility for its representatives and give the Company some form of
guarantee in the contract that those individuals, with whom the Company was forced to deal,
were not Communists or did not advocate the overthrow of the United States Government by
force or violence. The Company made it clear that it felt that a non-Communist oath would
safeguard the Company against being forced to deal with or give access to its plant to a com-
munistic representative of the Union. The broad purpose of the oath was stressed in these
conferences, and it was made clear that what the Company wanted was some guarantee from
the Union or its representatives that the representatives of the Union who dealt with the Com-
pany were not Communists.
That the Company would want some assurance that it was not dealing with a Communist-
dominated union or with communistic representatives of the Union, appears to be natural and
proper in the circumstances here existent. Certainly the denunciation of the UE contained in
the resolution passed at the CIO convention was sufficient to cause a reasonable man to be
apprehensive in future dealings with the UE.
SQUARE D COMPANY 301
In passing Section 9 (f), (g), and (h) of the present Act, the Congress erected one safeguard
against the action of Communist-dominated unions and the Communist officers in those unions.
A reading of the legislative history of this Act shows that Congress did not intend those
sections to be the only safeguard for American industry. A reading of the legislative history
shows that Congress intended Section 9 (f), (g), and (h ) as a safeguard of both labor and in-
dustry , in addition to those rights and safeguards which both labor and management would
exert in their own right . In the present situation the CIO had protected itself by expelling the
UE from membership. The Company also had a right. Under the Act it would not refuse to
bargain with the Union because of its alleged Communist domination, but it could propose in
the field of collective bargaining such security measures as it deemed proper . I find , there-
fore , that under the circumstances of this case the Respondent had a right to seek in collective
bargaining that the UE give it security assurances or guarantees , which might be evidence of
bad faith if asked of a union who possessed a reputation of unquestioned patriotism.
There remains the further question as to whether the proposals were proper and reasonable
under the circumstances. The company proposal that the contract expressly state that the
Company had the right to discharge any employeewho disseminated communistic literature in
the plant, or who verbally advocated Communist action or the overthrow of the United States
Government by force or violence, was merely the expression of a right which the Company
already possessed. The Court of Appeals for the Third Circuit in N.L.R.B. v. Condenser
Corporation of America, et al., 128 F. 2d 67, March 25, 1942, said, "The Board does not
dispute the contention that the employee may be discharged by the employer for a good reason,
a poor reason , or no reason at all, so long as the terms of the statute are not violated." That
interpretation of the Act has been accepted from that day to this. It is too well established now
to admit of contradiction.
The Union and the Company both knew that the Company had the right to discharge an em-
ployee for engaging in Communist activity , but the Company sought to guard itself against a
political strike . With tension between the United States and Soviet Russia mounting , the Com-
pany could foresee that Communist activity might be increased at any time. At that time, one
pamphlet attacking the Un-American Activities Committee had been disseminated by the UE in
the plant. It could reasonably foresee that among its employees might be one who would advo-
cate the overthrow of the United States Government by force or violence or preach the Com-
munist doctrine. It wanted to have the right, clearly understood by the UE, that it could dis-
charge that employee. In the event of such a discharge, it desired that any difference with the
UE on the subject be governed by the contract and any grievance growing out of such discharge
submitted to the grievance procedure and to arbitration, in which all the facts of the case could
be disclosed. It sought to avoid a strike by the Union as a result of the discharge. Though the
Union knew that the Company had the right to discharge an employee for this reason, it re-
fused to embody in the contract such a provision . The Union sought to remain free to take
whatever action it desired .$The UE steadfastly maintained in regard to this proposal that the
employee could not be discharged until he had been convicted by a competent court of a viola-
tion of a specific statute . The UE claimed that the Company was arrogating to itself the right
to act as FBI , judge , and jury in such a case . That is not the fact, nor is it the law. If an em-
ployer suspects that one of his employees is any type of lawbreaker and he honestly deems the
employee an undesirable employee , his right to discharge the employee is absolute . The Act
places only one limitation on this right to discharge , and that is that the employer may not
discharge the employee for union activityunder thepretext that the employee is violating some
law. Even if the employer honestly but mistakenly discharges an employee whom he thinks is
breaking some law, he is not chargeable under the Act. I find , therefore, that this proposal of
the Company was proper and reasonable.
The Company 's ; roposal that the Union 's officers sign non -Communist affidavits , as later
explained in bargaining meetings , sprung from a desire of the Company to have an assurance
or guarantee from the Union that the men who the Union sent to its plant would not be Com-
munists. In this period of the world's history, with the Soviet Union through the medium of
international communism waging war upon us , this seems to be a most reasonable provision.
Under the rights granted to labor under the Act, employees may if they so desire designate a
Communist-dominated union as their collective-bargaining representative . Their right to
chose a representative is unrestricted . However, there is nothing in the Act , or its legislative
history , to prevent the employer from insisting in collective bargaining that the union, which
he has reasonable grounds to believe is Communist dominated , give him some assurance or
guarantee against Communist activities on the part of those representatives with whom the
employer must deal, and to whom he must give access to his plant.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The UE's reaction to these proposals was a further incitement to the fears of the Company.
In the meeting of September 13, 1950, Elconin and another representative of the Union, named
Torrey, defended the Communists saying that the "fear and hysteria which was sweeping the
nation on this subject was merely a repetition of previous persecutions of certain groups, such
as the persecution of the Mormons years ago...." Such a statement, which distorts the
facts of recorded history, is certainly amonstrous lie. To begin with, the "fear and hysteria"
referred to is the patriotic concern of all the citizens of this country for its continued ex-
istence. Practically all Americans in our present crisis believe that we must take measures
to counter the Communist offensive, wherever it is found. Our national policy is dedicated to
that purpose , and our soldiers are giving up their lives in battle for that purpose. Such a
policy, and the patriotic motives which prompt all citizens to rally to the support of the
Nation, can hardly be termed "fear and hysteria." To say that this fear and hysteria had
caused a "repetition of previous persecution of certain groups, such as the persecution of the
Mormons years ago," is demonstrably untrue. The Communists are not the ones who are
persecuted. The free world is guarding itself against the Communists because it is the Com-
munists who persecute all peoples who wish to enjoy a measure of the freedoms which we
hold sacred. It is the Communists who enslave and persecute, not the citizens of the free
world. The comparison of the Communists to the Mormons is a slander on a highly respected
Christian religion and those who believe in it. There is and can be no similarity between the
Church of Jesus Christ of the Latter Day Saints and the Communists. The Mormon religion is
based on the teaching of Jesus Christ, a doctrine founded on mercy, justice, and brotherly love.
The Mormons in their long trek West sought only a place where they could worship according
to the tenets of their faith. They sought to enslave no one. Communism is godless , persecutes
all religions , and preaches a doctrine of class hate , with the destruction of certain classes
the objective.
In the same meeting Elconin said that he , too, "knew the oath of allegiance ," in which there
was a statement of "equality and justice " for all. He argued that the UE was called communis-
tic because of its activities in behalf of minority groups like the Negroes and Mexicans. This
too, is a demonstrable distortion of the truth . The CIO resolution states many reasons for
which that organization condemned the UE , and none of those reasons has anything to do with
the UE's activities on behalf of the Negroes or Mexicans. However, it is a known fact that the
Communists seek to foment strife in , the United States by inciting hate among certain racial or
national groups. In the course of this meeting one of the company representatives asked Tor rey
if he was a Communist, and Torrey replied that he couldn't say, adding "What is a Com-
munist? " In the same meeting , the attitude of the Company was displayed by Burns who
stated that he didn 't know what the solution of the problem was going to be, but he would like
to suggest that the conferees drop the subject temporarily and that both sides give it more
thought.
In the meeting of August 23, 1950 , Elconin based his opposition to the proposals on the fact
that the Communist Party is a political party , and that the Company by the proposals was in-
terfering with the employees' political beliefs. In American Communications Assn. v. Douds,
339 U . S. 382 , in his opinion concurring in part and dissenting in part, Mr. Justice Jackson
stated the differences between the Communist Party and American political parties in clear
and precise language. He made the following distinctions: (1) The goal of the Communist
Party is to seize powers of government by and for a minority rather than to acquire power
through the vote of a free electorate. (2) The Communist Party alone among American parties,
past or present, is dominated and controlled by a foreign government. (3) Violent and un-
democratic means are the calculated and indispensable methods to attain the Communist
Party's goal. (4) The Communist Party has sought to gain this leverage and hold on the
American population by acquiring control of the labor movement. (5) Every member of the
Communist Party is an agent to execute the Communist program.
As stated earlier, these sophistries, half-truths, and lies propounded in the course of
collective bargaining by the UE representatives could only have had one effect upon the com-
pany representatives and that was to confirm their thought that some protective measures
were needed in the contract. However these statements made by Mr. Elconin have a more
important implication for the undersigned . Mr. Elconin was presented as a witness in this
proceeding. The minutes of the bargaining meetings, which were stipulated into evidence by
counsel, show that Mr. Elconin was the perpetrator of the statements enumerated above. I
find that this conduct of Elconin's evinces an utter disregard of the truth and, for that reason,
I find him to be an unreliable witness, unworthy of belief. Furthermore , most of Elconin's
testimony is contrary to the minutes , or to the testimony of creditable witnesses. Under the
SQUARE D COMPANY 303
circumstances I accept the testimony of the minutes , and those creditable witnesses on all
points at issue.
It is worthy of note that the violent opposition to these proposals came from the interna-
tional representatives of the Union , rather than from the committee which was elected by the
employees in the plant . Also in thecourseof the bargaining , the UE finally agreed in principle
that some guarantee should be given to the Company as to its security . At the time negotiations
ceased, the last proposal was that the UE would work over the proposals of the Company and
try to embody the Company 's ideas and its own in satisfactory phraseology.
The record also reveals that in all previous bargaining the question of loyalty had been dis-
cussed, and the parties had worked out by mutual effort the preamble of the contract which
stated that both parties would not advocate the overthrow of the United States Government by
force or violence.
Therefore I find that between the parties the question of security against Communist
activities had been a bargainable issue, and that the proposals of the Company were proper
within the framework of collective bargaining . Therefore I find that the Respondent did not
refuse to bargain by virtue of this specification.
#18. Refusal to meet with the Union on and after November 8 , 1951, for the purpose of
collective bargaining.
I find that the Respondents did not refuse to bargain by virtue of this specification because
an impasse had long since been reached in the negotiations . The parties were not required
therefore to meet merely for the sake of meeting . Also the UE had filed its charge in 21-CA-
1106 . It could not require that the Company bargain and also prepare this proceeding for
hearing at the same time . The Company had a right to prepare its case for hearing on the
merits, without being hampered by negotiations which had resulted in an impasse after many
months of sincere effort . Also , as will hereafter be found, the UE had long since ceased to be
the majority representative of the employees.
However, tins contention of the UE and the General Counsel , that though being prosecuted
for surface or sham bargaining , the Company was obliged to bargain further upon demand of
the UE, merits further examination and comment . This contention , to my mind , casts an aura
of bad faith over this entire prosecution.
The Board 's procedures are well known to the UE. One of the best known of these proce-
dures is that the Board will not entertain a petition for certification of representatives while
a charge of unfair labor practice filed by the current representative is outstanding . It appears
to me that the UE took advantage of this procedure to obtain the benefit of dismissal of the
petition of the UAW -CIO in the filing of Case No . 21-CA-1106. The UE by filing these charges
sought to isolate the employees from other potential representatives . The UE charged the
Company with bad-faith bargaining , but after the threat of being ousted by the UAW -CIO had
passed , the UE demanded that bargaining be resumed . By its charges the UE condemned the
Company's lack of faith , and yet demanded that the Company continue negotiations . That is
not the conduct of an honest representative , who finds that his sincere efforts at bargaining
have been betrayed by the other party's bad faith.
It is the conduct of a bargainer who knows he no longer represents a majority of the
employees , but who seeks to forestall an election while he tries to recapture majority
status through the medium of a contract . These charges appear to have been filed as a
tactical device, not as a bona fide charge, in which the charging party seeks a hearing on
the merits . Even to the date of the hearing10 the UE clamored for further bargaining. It was
the Company who in effect said , "We submit this case to the Board."
b. Concluding findings as to the bargaining
The consideration of each specification of the bill of particulars is necessarily confined on
a technical basis because there is particular law applicable to that specification . However,
the general issue in this case is the good faith of the Respondent. Technical defenses and
technical applications of the law avail the Respondent nothing if bad faith is manifest. How-
ever in this record I can find no evidence of bad faith on the part of the Company . One fact
which the General Counsel seems to have lost sight of, was the fact that this bargaining
took place at a time when the economy of the country was changing from a peacetime basis
to a wartime basis . The national emergency created by Korea occurred about midway in
this bargaining . When bargaining began the economy of the Nation was stabilized on a peace-
ioNote General Counsel' s amendment of complaint to date of hearing,
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time basis, but with the advent of the Korean situation national production, the cost of living,
and the rate of wage increased . Economic factors affecting the bargaining changed from day
to day. These factors had an important effect on the bargaining. At the beginning of the
conferences between the parties the wage increase requested by the Union was met with a
refusal on the part of the Company. However a few months later the economic situation in
the Nation had changed to such an extent that the parties accepted the wage pattern which was
then evolving; with the Company granting the increase previously denied without any show of
reluctance , and the parties immediately discussing another future increase in accordance
with the evolving wage pattern. Union representatives testified that when the cost-of-living
bonus was put in effect, and the pension was put in effect , they made protests . I do not credit
this testimony . During the transitional period it appears to me that to some extent both the
Union and the Company found themselves to be at sea on the subject of wages and pensions.
The wage stabilization regulations had come upon the parties and neither one knew exactly
what the future wage structure would be. Under those circumstances I find that the minutes
correctly portray the conduct of the Union. These minutes show that the Union accepted the
benefits of the cost-of-living bonus and the pension, and were concerned with how these
proposals worked out as regards the employees. There was no disposition on the part of
the Union to protest against the receipt of these benefits. The attitude of the Company seems
to have been that all of these measures were put into effect as an interim proposition which
would protect both the employees and the Company in this transition period, with the subject
of wages, bonuses, pensions, etc., to be the subject of future collective bargaining when the
economy reached another point of stabilization. Both parties in the course of the bargaining
showed a disposition to accept any fair interim procedure. Neither said that any of these
proposals were the last word to be said on that subject. Both parties indicated an acceptance
of changing conditions on a day-to-day basis, with the ultimate objective that bargaining
would continue and result in a contract at some time in the future when general conditions
were stabilized, and each party would know the factors with which he had to deal. To that
extent both parties were prisoners of changing economic conditions, and neither party
protested against the other. I find therefore that the Respondent at all times bargained in
good faith with the Union.
Majority Representation by the UE
As previously stated, the UE was certified by the Board in 1943 by virtue of a proceeding,
Case No. 21-R-1929. However that certification came to an end in the year 1948. On March
22 that year the Employer filed an RM petition in Case No. 21-RM-42. The Regional Director
certified that a question concerning representation existed and held an election in which the
IBEW and the Teamsters participated. Neither of these unions obtained a majority of the
employees in the unit involved.
Thereafter the UE engaged in a private election which was conducted on June 2, 1948. It
won this election, but no certification of the Board followed because this was a private
election. The UE was then not in compliance with Section 9 (f), (g), and (h) of the Act, and
could not be certified by the Board. Thereafter the UE was not the certified representative
of the employees in the unit, although it had proved itself to be the majority representative
by a private election.
The majority position of a union once established is presumed to continue until circum-
stances arise rebutting the presumption.
On November 4, 1949, the UE was expelled from the CIO on the ground that it was Com-
munist-dominated. The effect of this action on the employees in the unit is not in evidence.
However, it is established that thereafter, pursuant to contract, the Company checked off
the dues of members for the Union. But when the UE terminated the contract and the Company
no longer deducted dues for the UE, a considerable change seems to have taken place. On
March 1951, 132 employees, out of approximately 178, signed the Flores petition, which
stated that the employees wanted to choose a new bargaining representative by means of
an election. Furthermore, the petition for certification of representatives filed by the
UAW-CIO on July 11, 1951, Case No. 21-CA-2055, was supported by authorization cards
of a majority of the employees in the appropriate unit. The Regional Director's determi-
nation which dismissed the petition was based on the fact that the present charge of unfair
labor practice had been lodged by the UE against the Respondent. However, the fact that 108
employees had signed authorization cards for UAW-CIO, is also evidence that the UE had
ceased to be a majority representative of the employees in the unit."
It See N L R B v Vulcan Forging Co ., 188 F 2d 927 (C. A 6).
SQUARE D COMPANY 305
I find therefore that the UE was not the representative of a majority of employees in the
appropriate unit after March 26, 1951 , the date of the Flores petition.
c. Decision of Respondent 's motion to dismiss
Therefore , I grant the Respondent 's motion for dismissal of the consolidated complaint,
including all specifications of the bill of particulars , on the ground that the General Counsel
has failed to prove by a preponderance of the evidence (a) that the Respondent failed or
refused to bargain in good faith with the UE , and (b) that the UE was the representative of
a majority of the employees in the appropriate unit after March 26, 1951.
CONCLUSIONS OF LAW
1. United Electrical , Radio and Machine Workers of America (UE), Local 1421, Inde-
pendent , is a labor organization admitting to membership employees of the Respondent.
2. The Respondent herein has not committed the unfair labor practices alleged in the
complaint.
[Recommendations omitted from publication.]
Note: Attached hereto is an appendix listing the documentary evidence in chronological order.
APPENDIX
List of Documentary Evidence in Chronological Order
DATE DESCRIPTION EXHIBIT NO.,
1/23/48 Letter : Regional Director to Rea . UE not complied with Sec- GC 1-G
tion 9 (f), (g), and (h).
5/18/48 Letter : May 18 , 1948 , from Company to UE , Att: Elconin, 2 GC 7
pages. Agrees to election by IBEW and if that union not suc-
cessful, then private election by UE to be followed by bar-
gaining.
6/ 2/48 Tally of ballots--private election 129 UE, 4 against. GC 8
4/ 1/49 Contract--effective April 1 , 1949-April 1, 1950 . Automatic re- GC 5
newal, unless terminated or modified according to terms. Sig-
natories Company- - Intl. Union--Local Union--18 pages plus
supplement to agreement, dated Dec . 13, 1949--33 pages.
11/ 4/49 CIO Resolution . Stipulated adopted at convention, Cleveland, R 39
Ohio , Nov. 4, 1949.
12/13/49 Supplement to agreement of April 1, 1949 . GC 5 in part
1/30/50 Letter : January 30 , 1950 , from Elconin to Company Notifica- GC 9
tion of union 's desire to modify contract pursuant to article
XIX--1 page
2/ 6/50 Letter: Rea to UE Re : Modification--Company willing to nego- R 1
tiate.
2/20/50 Minutes of Feb. 20, 1950--5 pages. GC 4
2/20/50 Southern Cal. UE News. R 24
2/23/50 Minutes Feb. 23 , 1950--4 pages. GC 4
3/ 6/50 Bulletin : To all Square D workers , canned food collection. R 25
3/ 9/50 Minutes of March 9--4 pages. GC 4
3/21/50 Letter : Rea to UE. Re : Refusal to work overtime. R 2
3/27/50 Letter . Elconin to Company. List of officers of Local 1421 -- Intl R 3
Staff Representatives
3/29/50 Minutes of Mar . 29, 1950--3 pages. GC 4
3/31/50 Letter : Rea to Elconin. R 4
4/ 5/50 UE dues collected . List of employees. GC 30
4/ 3/50 Letter : UE to Company--registered , terminating contract. R-5
4/ 4/50 Letter : Rea to Elconin. Acknowledges termination. R 7
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DATE DESCRIPTION EXHIBIT NO.
4/ 4/50 Letter: Elcontn to Rea. "Letter-writing campaign." R 6
4/ 5/50 Letter: Rea to UE. Confirms telephone conversation to meet with
UE on April 10, 1950.
R 7
4/ 6/50 Letter: Elconin to Company. Replying toRea's letters of 4/4 and R 6
4/6/50.
4/ 9/50 List of hourly paid employees. GC 31
4/10/50 Minutes of April 10, 1950--7 pages. GC 4
4/12/50 Petition of employees. R 11
4/12/50 Speech of Pengilly. R 10
4/13/50 Notice to employees from Pengilly. R 12
4/21/50 Letter: Addressed to a number of trade customers of the Com-
pany.
R 13
4/25/50 Minutes of April 25, 1950--6 pages. GC 4
5/ 5/50 Shop bulletin. Gill on air, etc. R 26
5/10/50 Document: Headed "Agreement." Proposal submitted byCom-
pany May 10, 1950. See minutes.
GC 10-A
5/10/50 Minutes of May 10, 1950--7 pages. GC 4
5/23/50 Minutes of May 23, 1950--4 pages. GC 4
6/13/50 4:30 p.m. Photographs of demonstrations. R 22
6/14/50 various
6/16/50 photos
6/23/50 Letter: Elconm to Magin, president of Company. R 14
6/26/50 UE Southern Cal. News. R 27
7/ 6/50 Minutes of July 6. 1950--7 pages. GC 4
7/ 7/50 Notice to all employees.
1 Bonus rate raised to base rate Employees get 7 of
1 percent for each 1 percent earned efficiency
2 4 cents per hour to become effective July 3
3 3 weeks' vacation to 15-year employees
R 15
7/13/50 Minutes of July 13, 1950--6 pages.
7/15/50 Bulletin. To all hourly employees: The following changes in
rates, etc.
R 16
7/19/50 Minutes of July 19, 1950--8 pages. GC 4
7/24/50 Letter, plus 9 pages of proposals. Company to Elconm. Com-
pany proposals submitted that date. Meeting on 26.
GC 10-B
7/26/50 Minutes of July 26, 1950--6 pages.
7/26/50 Article XIX - Representation, etc. Revised proposals of Com-
pany on representation submitted meeting of Jiffy 26, 1950.
GC 10-C
7/26/50 Vacations. Revised proposals of Company re vacations sub-
nutted at meeting July 26, 1950.
GC-10-1)
8/ 7/50 Notice: To all employees. Re postponement of meeting.
8/10/50 Union's counterproposal. GC 10-E
8/15/50 Newspaper article. Company union smashed, etc. R 28
8/21/50 Minutes of August 21, 1950--1 page.
8/23/50 Minutes of August 23, 1950--7 pages.
9/ 8/50 Bulletin by UE. Negotiations summary. R 29
9/13/50 Minutes of September 13, 1950--9 pages. (Note outof sequence
in file - after March 14 meeting.)
10/ 4/50 Bulletin. Cost-of-living bonus. GC 11
10/ 6/50 Memo. Re: All hourly paid employees. Cost-of-livuigindex over
2 under 3 percent.
R 18
10/11/50 (Meeting - no minutes. Pension plan submitted.)
10/17/50 Bulletin: Company submits pension plan. R 30
10/25/50 Letter: IBEW to Company informs of claim for recognition. R 19
11/ 8/50 Note: (Cutoff date per ruling of Trial Examiner on Respondent's
motion per Section 10 (b).)
11/14/50 Letter: Rea to Mediation. Not to set meetings until atmosphere
is cleared.
R 20
11/16/50 Day letter from Elconm to Company. GC 12
11/20/50 Bulletin to UE. The case of the vanishing 14 percent. R 31
11/24/50 Charge in 21-CA-956 is filed. GC 1-C
DATE
SQUARED COMPANY
DESCRIPTION
307
EXHIBIT NO.
2/26/51 Regional Office closed case report (Davis). GC 3-C
2/26/51 Letter: Rea to UE, letter on 4 negotiating meetings GC 13, also
GC X
2/26/51 Withdrawal request, signed by Elconin and approved by Re- GC 3-A
gional Director.
2/28/51 Letter: Fiering to Company. List of Representatives.
3/ 1/51 Bulletin, UE. Square D and UE open negotiations today! Fac- R 32
simile of letter.
3/ 1/51 Minutes of March 1, 1951--3 pages.
3/ 5/51 Letter: Regional Director to Company. Approving withdrawal. GC 3-B
3/ 7/51 Letter: Fiering to Company--proposes to reinstate old agree- GC 14
ment with modifications.
3/ 7/51 Minutes of March 7, 1951--7 pages.
3/ 7/51 Letter: Fiering to Company. GC 10-F -
note same as
GC 14
3/14/51 Minutes of March 14, 1951--8 pages.
3/21/51 Minutes of March 21, 1951--10 pages. Copy of vacation amend-
ments proposed by union this date--1 page . Computations made
by Company--2 pages.
3/21/51 Copy of vacation amendments proposed by union March 21, 1951. GC 10-H
3/26/51 Petition (Flores)-- 123 names.
4/ 2/51 Minutes of April 2, 1951--10 pages. R 40
4/ 7/51 Letter by UE. Dear Member. Card attached. Summary of nego- R 33
tiations.
4/ 9/51 Bulletin by UE. A contract must have job security. R 34
4/12/51 Bulletin by UE. "Here's more evidence." R 35
4/16/51 Minutes of April 16/June 5, 1951. Copy unionproposal. Article GC 10-I
XIV --Representation.
4/16/51 Minutes of April 16, 1951--12 pages.
4/26/51 Letter: Rea to UE about meeting--not hearing from union. GC 15
5/ 8/51 Minutes of May 7, 1951--3 pages.
5/ 8/51 Charge in 21-CA-1106-- recites prior charge. GC 1-D
5/ 9/51 Letter: Rea to OF proposes meeting on May 21; if not then, it GC 16
cannot be held till June 4.
5/18/51 Letter: Rea to UE proposes meeting June 5, 1951. GC 18
6/ 5/51 Minutes of June 5, 1951--9 pages.
6/ 5/51 Company proposal on demotions . GC 10-J
6/ 8/51 Letter: Elconin to Company , submitting 4 proposals GC 19
6/11/51 Letter: Rea to UE. Not time to study proposals. Burns absent GC 20
in Army, Miller away--suggest July 16--20 for meeting.
6/18/51 Letter: Elconin to Rea. Request earlier meeting. GC 21
6/20/51 Letter: Rea to Elconin. Schedules meeting for July 16.
6/28/51 Bulletin by UE: Westinghouse--General Cable Workers vote R 36
UE.
7/13/51 Letter--NLRB to Company, advising UAW-CIO had petitioned. R 23
Fred W. Davis assigned.
7/13/51 Letter: Rea to Elconin. States UAW -CIO has filed petition--sus - GC 23
pends negotiations pending NLRB action.
7/25/51 Revised rules of Square D. GC 28
9/21/51 Letter from UE to employees' homes. R 37
10/16/51 Letter: Director NLRB to Company; rescinds prior approval of GC i-G
settlement.
10/18/51 Consolidated complaint, order consolidating, notice of hearing GC 1-E
issued.
10/26/51 Letter: NLRB to UAW-CIO dismissing petition. GC 24
11/ 8/51 Letter: Fiering to Rea calls attention to dismissal and asks for
resumption of negotiations.
11/14/51 Letter: Rea to UE. -Cites cases on question of representation. GC 26
11/14/51 List of hourly paid employees. GC 32
Undated Sample checkoff card GC 6
Undated Job descriptions. GC 10-G
Undated Chronology. GC 29